Tracye Howard Discusses Interim Rule Covering NDAA Chinese Telecom Ban on Government Contractors

July 15, 2020

Tracye Winfrey Howard, co-chair of Wiley’s National Security Practice and partner in the firm’s Government Contracts Practice, was quoted in a July 13 Law360 article regarding an interim rule released on July 14 by the Federal Acquisition Regulatory (FAR) Council. The rule covers the implementation of the ban in the 2019 National Defense Authorization Act (NDAA) on government contractors’ use of certain Chinese telecommunications and video surveillance equipment and services.

The interim rule closely follows the restrictions set by the NDAA, which barred federal contractors from using telecommunications and video surveillance equipment from five manufacturers with connections to the Chinese military, according to Law360.

While the ban is aimed at curtailing potential espionage, it is broadly defined. Contractors had lobbied for a narrower purview or for the August 13 compliance deadline to be extended, Law360 reported. The rule requires federal contractors to make a “reasonable inquiry” into whether banned equipment is used in their respective supply chains.

Ms. Howard told Law360 that what is “reasonable” is somewhat vague.

“It says you don't have to have a third-party audit or an internal audit, but there's no guideline for what a reasonable inquiry would look like short of an internal audit, so contractors are going to have to figure out for themselves what makes sense for their business and their supply chain,” Ms. Howard said.

On July 10, Ms. Howard co-authored an alert on the Interim Rule with Wiley partners Megan L. Brown and Richard C. Sofield, senior public policy advisor Nova J. Daly, and of counsel Daniel P. Brooks.

To read the Law360 article, click here (Subscription required).