4.2104 Waivers
Source: FAR 4.2104 on acquisition.gov
FAR 4.2104 establishes strict, time-limited procedures and documentation requirements for agencies seeking waivers to prohibitions on certain telecommunications and video surveillance equipment, with heightened oversight and reporting obligations.
Overview
FAR 4.2104 outlines the process and requirements for obtaining waivers to the prohibitions on contracting for certain telecommunications and video surveillance equipment or services, as specified in FAR 4.2102(a). The section details who may grant waivers, under what circumstances, and the procedural steps and documentation required. It also addresses emergency situations and the necessary notifications to oversight bodies and Congress.
Key Rules
- Executive Agency Waivers
- The head of an executive agency may grant a one-time waiver to the prohibitions, provided a compelling justification and a detailed phase-out plan are submitted. Waivers are time-limited and must not extend beyond specified dates (August 13, 2021 or August 13, 2022, depending on the prohibition).
- Additional Requirements for 4.2102(a)(2) Waivers
- Agencies must designate a senior supply chain risk official, participate in information-sharing as required, and consult with the ODNI and FASC before granting a waiver.
- Emergency Waivers
- In emergencies, waivers may be granted without prior notice/consultation, but notification to ODNI, FASC, and Congress must occur within 30 days of award.
- Waiver Notification
- Agencies must notify Congress and provide detailed documentation within 30 days of waiver approval.
- Director of National Intelligence Waivers
- The DNI may grant waivers if deemed in the national security interest.
Responsibilities
- Contracting Officers: Ensure compliance with waiver procedures, documentation, and notification requirements.
- Contractors: Provide necessary information for agency waiver requests and support phase-out plans.
- Agencies: Oversee waiver process, designate officials, ensure interagency coordination, and fulfill reporting obligations.
Practical Implications
- This section provides a structured, accountable process for exceptions to strict prohibitions, balancing operational needs with national security. Contractors and agencies must be prepared for rigorous documentation and oversight, especially in emergency or high-risk situations. Failure to comply can result in contract delays or legal consequences.
(a) Executive agencies. The head of an executive agency may, on a one-time basis, waive the prohibition at 4.2102(a) with respect to a Government entity (e.g., requirements office, contracting office) that requests such a waiver.
(1) Waiver. The waiver may be provided, for a period not to extend beyond August 13, 2021 for the prohibition at 4.2102(a)(1), or beyond August 13, 2022 for the prohibition at 4.2102(a)(2), if the Government official, on behalf of the entity, seeking the waiver submits to the head of the executive agency–
(i) A compelling justification for the additional time to implement the requirements under 4.2102(a), as determined by the head of the executive agency; and
(ii) A full and complete laydown or description of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems.
(2) Executive agency waiver requirements for the prohibition at 4.2102(a)(2). Before the head of an executive agency can grant a waiver to the prohibition at 4.2102(a)(2), the agency must—
(i) Have designated a senior agency official for supply chain risk management, responsible for ensuring the agency effectively carries out the supply chain risk management functions and responsibilities described in law, regulation, and policy;
(ii) Establish participation in an information-sharing environment when and as required by the Federal Acquisition Security Council (FASC) to facilitate interagency sharing of relevant acquisition supply chain risk information;
(iii) Notify and consult with the Office of the Director of National Intelligence (ODNI) on the waiver request using ODNI guidance, briefings, best practices, or direct inquiry, as appropriate; and
(iv) Notify the ODNI and the FASC 15 days prior to granting the waiver that it intends to grant the waiver.
(3) Waivers for emergency acquisitions.
(i) In the case of an emergency, including a declaration of major disaster, in which prior notice and consultation with the ODNI and prior notice to the FASC is impracticable and would severely jeopardize performance of mission-critical functions, the head of an agency may grant a waiver without meeting the notice and consultation requirements under 4.2104(a)(2)(iii) and 4.2104(a)(2)(iv) to enable effective mission critical functions or emergency response and recovery.
(ii) In the case of a waiver granted in response to an emergency, the head of an agency granting the waiver must—
(A) Make a determination that the notice and consultation requirements are impracticable due to an emergency condition; and
(B) Within 30 days of award, notify the ODNI and the FASC of the waiver issued under emergency conditions in addition to the waiver notice to Congress under 4.2104(a)(4).
(4) Waiver notice.
(i) For waivers to the prohibition at 4.2102(a)(1), the head of the executive agency shall, not later than 30 days after approval—
(A) Submit in accordance with agency procedures to the appropriate congressional committees the full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain; and
(B) The phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems.
(ii) For waivers to the prohibition at 4.2102(a)(2), the head of the executive agency shall, not later than 30 days after approval submit in accordance with agency procedures to the appropriate congressional committees—
(A) An attestation by the agency that granting of the waiver would not, to the agency's knowledge having conducted the necessary due diligence as directed by statute and regulation, present a material increase in risk to U.S. national security;
(B) The full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain, to include a description of each category of covered technology equipment or services discovered after a reasonable inquiry, as well as each category of equipment, system, or service used by the entity in which such covered technology is found after conducting a reasonable inquiry; and
(C) The phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems.
(b) Director of National Intelligence. The Director of National Intelligence may provide a waiver if the Director determines the waiver is in the national security interests of the United States.