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NDAA:

These products are subject to certain restrictions on procurement, use, funding or contracting by the United States federal government as set forth in Section 889 (Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019.

The US Congress took action on this subject through the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) by banning the procurement or use of specifically named video surveillance camera and systems vendors as well as specifically named component suppliers that are used in some video surveillance products that could or are deployed in US Government-related video surveillance system deployments.

This interim Federal Acquisition Regulation applies to section (a)(1)(A) of Section 889 of the NDAA – there is no rule yet for the ‘blacklist’ clause, which has been spun off and will be implemented one year from now. It is an ‘interim’ rule because it has not been published in the Federal Register yet.

Once in the Federal Register, “interested parties” may submit suggestions for changes within a 60-day period. (Such modifications are typically minor – major changes would need “a supplemental proposed rule”, the Federal Register’s website states.)

The rule states that “it is in the best interest of the Government to apply this rule to contracts for the
acquisition of COTS items” [commercial off-the-shelf items], citing an “unacceptable level of risk”:

Most video surveillance products bought by the US government are ‘COTS’ in that they are widely commercially available

Contractors must include an NDAA notice – which discloses banned equipment – for all “solicitations issued on or after August 13”.

Even if the government requested solicitations before the 13th, if the contract is awarded afterwards, the notice must be included:

Even with ongoing contracts, the NDAA notice must be included, barring further procurement of covered products:

In their NDAA notices, contractors must pledge not to supply covered equipment:

Note: while the line above says ‘telecommunication’, the FAR itself defines video surveillance as part of ‘covered telecommunications equipment’

If they are including covered equipment, contractors must report it to the contracting officer or, for DoD contracts, directly to the DoD website:

Contractors must also disclose key details about the covered equipment, including whether “the entity was the OEM or a distributor”:

Waivers

Waivers allowing contractors to supply covered equipment are obtainable “on a one-time basis” from “[federal] agency heads”.

However, these waivers can only be granted if there is a “compelling justification for the additional time [necessary] to implement” the NDAA ban and the contractor submits a “phase-out plan”:

The only other way to get a waiver is if the Director of National Intelligence “determines the waiver is in the national security interests of the United States”.

For more information concerning the rules of deployment click here

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