NDAA (National Defense Authorization Act) Section 889 Compliance (effective 2019/2020)
Read the full Bill: https://www.congress.gov/bill/115th-congress/house-bill/5515/text
For a PDF version: https://www.congress.gov/115/plaws/publ232/PLAW-115publ232.pdf
Please reach out to Diane Baldwin, AVP Sponsored Programs with any questions (dbaldwin@bu.edu; 617 353-4377).
High Level Overview (March 2021) – communication sent to all PI’s and Administrators
Prohibitions
Section 889 of the National Defense Authorization Act of 2019 prohibits:
- Federal agencies from entering into contracts, including sponsored research contracts, with any entity that uses “covered telecommunications equipment or services” as a “substantial or essential component of any system” or as “critical technology as part of any system”. This prohibition applies whether or not such equipment or services are used to perform the contract with the federal agency;
- Recipients of a federal loan or grant funds from using those funds to procure or obtain covered telecommunications equipment or services. ; and
- Providing to the federal government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
“Covered telecommunications equipment or services” are:
- Telecommunications equipment produced by Huawei Technologies Company, ZTE Corporation, or any subsidiary or affiliate of these entities;
- Video surveillance technology and equipment used for certain public safety, physical surveillance, or national security purposes and produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, Dahua Technology Company, or any subsidiary or affiliate of these entities;
- Telecommunications or video surveillance services provided by any of the above-named entities or using the above-described equipment; and
- Telecommunications or video surveillance equipment or services of an entity that the U.S. Secretary of Defense reasonably believes to be owned or controlled by, or otherwise connected to, the government of the People’s Republic of China.
For more information and to access a list of the subsidiary and affiliate companies, visit this link.
Steps You Should Take
Review your office and lab equipment and services, particularly if it was not purchased centrally through Sourcing & Procurement or IS&T. If you have space or are responsible for purchases abroad, please review any equipment and services there too. If you identify equipment or services that are prohibited, please notify Diane Baldwin (dbaldwin@bu.edu). The equipment will need to be taken offline promptly. Please note: these prohibitions apply to all purchases, regardless of whether the funds used were sponsored research funds or other type of funds (endowments, unrestricted, gifts, etc.).
Actions Taken by Boston University
Sponsored Programs has worked with Sourcing and Procurement, IS&T, and Property Management to review centrally purchased equipment and services and has taken steps to replace any identified prohibited equipment. Language has been inserted in form agreements to ensure that vendor arrangements handled by Sourcing and Procurement hold the vendor accountable for compliance with this Section.
List of companies (continuously updated)
Governing Grants:
Uniform Guidance provision
§200.216 Prohibition on certain telecommunications and video surveillance services or equipment. (a) Recipients and subrecipients are prohibited from obligating or expending loan or grant funds to: (1) Procure or obtain; (2) Extend or renew a contract to procure or obtain; or (3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (i) 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). (ii) Telecommunications or video surveillance services provided by such entities or using such equipment. (iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the 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. (b) In implementing the prohibition under Public Law 115–232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions, and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained. (c) See Public Law 115–232, section 889 for additional information. (d) See also § 200.471.
Governing Contracts
FAR (Federal Acquisition Regulation) and DFAR (Defense Federal Acquisition Regulation) Clauses
FAR 52.204-25 – Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment
https://www.acquisition.gov/far/52.204-25
DFARS 252.204-7018 – Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services