52.204-27 Prohibition on a ByteDance Covered Application
Source: FAR 52.204-27 on acquisition.gov
Contractors are strictly prohibited from using or having TikTok or any ByteDance-developed app on any government or contractor IT used under a federal contract, and must ensure all subcontractors comply as well.
Overview
FAR 52.204-27 prohibits contractors from using or having the TikTok application (or any successor app or service developed by ByteDance Limited) on any information technology (IT) owned or managed by the government, or on any IT used or provided by the contractor under a federal contract. This prohibition is mandated by the "No TikTok on Government Devices Act" and related OMB guidance. The rule applies to all executive agency IT, including contractor-furnished equipment, unless a written exception is granted by the Contracting Officer. The clause must also be flowed down to all subcontractors, including those providing commercial products or services.
Key Rules
- Definition of Covered Application
- TikTok and any successor apps or services by ByteDance Limited are banned from covered IT systems.
- Scope of Information Technology
- Applies to IT used directly by the agency or significantly in contract performance, but not to incidental contractor equipment.
- Prohibition on Use
- Contractors cannot have or use TikTok (or similar ByteDance apps) on any covered IT unless a written exception is granted.
- Subcontractor Flowdown
- The prohibition must be included in all subcontracts, including those for commercial products or services.
Responsibilities
- Contracting Officers: Must ensure the clause is included in contracts and manage exception requests per OMB guidance.
- Contractors: Must ensure no covered application is present or used on covered IT and flow down the clause to all subcontractors.
- Agencies: Oversee compliance and grant exceptions only per OMB Memorandum M-23-13.
Practical Implications
- This clause exists to protect government IT systems from potential security risks associated with TikTok and ByteDance apps.
- Contractors must audit and monitor their IT systems and those of their employees to ensure compliance.
- Failure to flow down the clause to subcontractors or to comply with the prohibition can result in contract violations and potential penalties.
As prescribed in 4.2203 , insert the following clause:
Prohibition on a ByteDance Covered Application (Jun 2023)
(a) Definitions. As used in this clause—
Covered application means the social networking service TikTok or any successor application or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.
Information technology, as defined in http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title40-section11101(6)&num=0&edition=prelim" target="_blank">40 U.S.C. 11101(6)—
(1) Means any equipment or interconnected system or subsystem of equipment, used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency, if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency that requires the use—
(i) Of that equipment; or
(ii) Of that equipment to a significant extent in the performance of a service or the furnishing of a product;
(2) Includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources; but
(3) Does not include any equipment acquired by a Federal contractor incidental to a Federal contract.
(b) Prohibition. Section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), the No TikTok on Government Devices Act, and its implementing guidance under Office of Management and Budget (OMB) Memorandum M-23-13, dated February 27, 2023, “No TikTok on Government Devices” Implementation Guidance, collectively prohibit the presence or use of a covered application on executive agency information technology, including certain equipment used by Federal contractors. The Contractor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees; however, this prohibition does not apply if the Contracting Officer provides written notification to the Contractor that an exception has been granted in accordance with OMB Memorandum M-23-13.
(c) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts, including subcontracts for the acquisition of commercial products or commercial services.
(End of clause)