Sec 889 Offeror Representation Form.pdf

ATTACHMENT 2 – Department of Transportation FAR 4.21 Agency Procedures - Representation

In accordance with Section 889(a) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 (Pub. L. 115-232), Executive agencies must adhere to two prohibitions to support national security considerations (for information on the prohibition see page 2, “Information for Section 889 Representation”). The offeror (vendor) shall complete the fill-ins below and return this document with their response. Unless an exception applies or a waiver is granted, no order will be placed with an offeror determined not compliant with the statutory requirement.

Representation for (briefly describe the purchase):

The Offeror represents that… (similar to FAR provision 52.204-24(d)(1))

It will It will not Provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation.

If ‘It will’, then continue to exception.

Mark this box, if you have completed the representation requirement of this section on SAM.gov.

(similar to FAR provision 52.204-24(d)(2)) It does It does not

Use covered telecommunication equipment or service, or use any equipment, system, or service that uses covered telecommunications equipment or services, except telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

Exception Yes No

The offering is for service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements.

The offering is for telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

Offeror Representation Certification Offeror Name:

Address:

Telephone:

Representative’s Printed Name:

Representative’s Signature:

Date:

INFORMATION FOR SECTION 889 REPRESENTATION

NOTE: The following information is provided to assist the offeror in understanding the terminology used in the representation.

Section 889(a)(1) of FY 2019 NDAA included two prohibitions to support national security considerations related to five Chinese telecommunications firms, effective August 13, 2019 and August 13, 2020, respectively. The prohibitions preclude the federal agencies from –

A. Procuring/obtaining, or extending or renewing a contract to procure or obtain any equipment, system or services that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any systems (Otherwise known as “prohibition on purchase” and effective August 19, 2019); or

B. Entering into a contract (or extending or renewing a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or substantial or essential component of any system, or as critical technology as part of any system (Otherwise known as “prohibition on use” and effective August 13, 2020). This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract.

Definitions pertaining to the representation are specified in FAR 4.2101 and provided as follows:

• Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

• Covered foreign country means The People’s Republic of China.

• Covered telecommunications equipment or services means– (1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation, (or any subsidiary or affiliate of such entities); (2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); (3) Telecommunications or video surveillance services provided by such entities or using such equipment; or (4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

• Critical technology means– (1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations; (2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled- (i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or (ii) For reasons relating to regional stability or surreptitious listening; (3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities); (4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);

(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or (6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).

• Interconnection arrangements means arrangements governing the physical connection of two or more networks to allow the use of another's network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.

• Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

• Roaming means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

• Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or services.