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Time’s run out for TikTok with government contractors

June 07, 2023

June 7, 2023

 

New FAR and state rules clamp down on the social media platform

You’ve likely heard the rumblings in the news, at both the federal and state levels, regarding national security concerns and the popular social media application TikTok, owned by ByteDance. On August 6, 2020, President Trump issued Executive Order 13942 banning the use of TikTok in the United States. TikTok received a preliminary injunction that prohibited the enforcement of the executive order, and President Biden rescinded the executive order in 2021. In early 2023, Congress acted to renew the effort to restrict TikTok. Their action included a prohibition on TikTok in the Consolidated Appropriations Act 2023 which directed the Office of Management and Budget (“OMB”) to further implement the ban. OMB released guidance (M-23-13) on February 27, 2023, extending the prohibition to federal contractors.

On June 2, 2023, the FAR council published FAR Case 2023-010 ( Prohibition on a ByteDance Covered Application). This interim rule amends FAR part 4, adding a new subpart 4.22, Prohibition on a ByteDance Covered Application, with a corresponding new contract clause at 52.204–27, Prohibition on a ByteDance Covered Application. The FAR clause at 52.204–27 prohibits contractors from having or using a covered application, including TikTok or any successor application of TikTok, on any information technology owned or managed by the federal government or on any information technology (IT) used or provided by the contractor under a contract, including equipment provided by the contractor’s employees.

The new clause 52.204–27, Prohibition on a ByteDance Covered Application, will apply to federal government end-use contracts at all values, including contracts for Commercial Products, Commercial Services, and Commercial Off the Shelf (COTS) hardware and software. The interim rule directs buying commands to include the clause in solicitations issued on or after June 2, 2023. This means the industry will soon begin seeing this new prohibition flowing through contracts.

We see similar actions across SLED end users as well. Nearly 34 states have acted, at varying levels of prohibition, to restrict the use of TikTok by government employees. We have recently seen some states enact requirements banning the use and access of the popular application altogether within the state, including by private citizens.

In preparation for this new restriction, you should take prompt action to review company policies, internal IT controls, and the security of your public sector offerings for compliance with the new requirement. Moving quickly will ensure your readiness to support forthcoming opportunities.