Today the Federal Acquisition Regulatory Council published a second Interim Rule to revise the certification requirements related to Section 889(a)(1)(B) of the National Defense Authorization Act for Fiscal Year 2019. The second Interim Rule, effective on Oct. 26, 2020, allows contractors who do not use covered telecommunications equipment or services to certify annually through the federal System for Award Management database rather than on a contract-by-contract basis, as was required in the initial rule.

While this revision to the certification requirement may lighten the compliance burden for some contractors, there is still an ongoing duty to conduct a reasonable inquiry into whether covered telecommunications equipment or services are being used. Federal contractors of all sizes should, therefore, continue to monitor their telecommunications supply chains for compliance with Section 889(a)(1)(B) and be prepared to identify potential issues before each contract award.

The sweeping nature of Section 889(a)(1)(B) has proven challenging to implement and many questions remain about which telecommunications equipment and services are covered by the rule and what constitutes a reasonable inquiry.

We expect further refinement of the rule before it is finalized, and will continue to provide updates as information becomes available. For questions related to the second Interim Rule and Section 889 in general, please contact a member of Taft’s Government Contracts team.