In an interim rule that took effect immediately upon publication, new federal contracts will include a prohibition on having TikTok installed on any device used to fulfill the requirements of the contracts, including not only company-issued mobile devices but also employees’ personal mobile devices. The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) joined forces to update the Federal Acquisition Regulation (FAR) in compliance with a federal law, the “No TikTok on Government Devices Act,” located in section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117–328).
The clause is entitled “Prohibition on a ByteDance Covered Application,” referring to the privately owned company in China that owns the popular TikTok app. The federal government views the app as a security risk. Federal agencies must include the new clause in solicitations for federal contracts issued on or after June 2, 2023. For solicitations that were issued earlier but awarded after the June 2, 2023, effective date, federal agencies must incorporate the new clause in the solicitation by July 3, 2023. Companies whose federal contracts become subject to the new clause must include the clause in all their subcontracts. The prohibition on the use of TikTok applies to federal contracts regardless of the dollar amount and regardless of whether the contract is for commercially available off-the-shelf (COTS) items. The federal government is still developing a final rule, and is accepting comments on its interim rule through August 1, 2023 (88 Fed Reg 36430, June 2, 2023).
Tips: If/when you land a federal contract that is subject to the TikTok ban, work with your IT department to ensure that TikTok (or any other app owned by ByteDance or any successor company) is not on any devices used to fulfill the federal contracts. This could require uninstalling the app, disabling the ability to download it in the future, and notifying employees of your policy. Implementing these procedures may be relatively straightforward for company-owned devices, but you will also need to evaluate whether any employee-owned devices are also subject to the policy. For example, if you allow employees to use their personal mobile phones to access company email, and those emails relate to the covered federal contract, then the TikTok prohibition will apply to their personal devices.
