GSA Class Deviation CD-2020-15

DocuSign Envelope ID: 9F6CF558-C397-40D9-943A-AD9C719C11A2

GSA Office of Governmentwide Policy

8/ 6/ 2020

Class Deviation CD-2020-15

MEMORANDUM FOR GSA CONTRACTING ACTIVITIES
DocuSign cd by:

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FROM:

JEFFREY A. KOSES
2 1BD80B9E8AC4A0 ...
SENIOR PROCUREMENT EXECUTIVE
OFFICE OF ACQUISITION POLICY (MV)

SUBJECT:

GSAR Class Deviation for GSA's Lease Acquisitions and CSOs - Prohibition on
Contracting for Certain Telecommunications and Video Surveillance Services or
Equipment

A. Purpose.
GSA supports the Federal Government's efforts to combat a national security threat posed by
certain telecommunications equipment and services identified by Congress in Section 889 of the
John S. McCain National Defense Authorization Act for Fiscal Year 2019 (the NOAA). The
recently published Federal Acquisition Regulation (FAR) Case 2019-009 and the
previously-published FAR Case 2018-017 provide implementing guidance for FAR-based
contracts. Because the NOAA applies to all Federal contracts, not j ust to FAR-based contracts,
this class deviation applies the FAR representations and reporting requirements to GSA's
leasing of real property (lease acquisitions) and commercial solution opening procurements
(CSOs). 1
The Office of Government-wide Policy will provide further implementing instructions, including
greater clarity on the waiver process and on GSA Supply Chain Risk Management procedures
via a separate policy document in the next two to three weeks.
Specifically, this class deviation adds to the General Services Administration Acquisition
Regulation (GSAR) requirements that GSA lease acquisitions and CSOs follow the
representation and reporting requirements as stated at FAR 4.2105.2 Note that this class
deviation does not make GSA's lease acquisitions and CSO subject to other FAR provisions.

1 This

class deviation supersedes a previous class deviation, CD-2019-1 1. As explained in Addendum 1
to CD-2019-11, that class deviation's application of the representation and reporting requirements at FAR
4.2105 to GSA lease acquisitions and CSOs are stayed. The stay of the previous deviation, coupled with
the adoption of this class deviation, however, does not affect GSA lease acquisitions or CSOs because
this class deviation adopts the previous class deviation's application of the representation and reporting
requirements at FA R 4.2105 to GSA lease acquisitions and CSOs.
2
FAR 4.2105 was added through FAR Case 2018-017, which was published at 84 FR 40216 on August
13, 2019, and at 84 FR 68314 on December 13, 2019, and updated by FAR Case 20 19-009, which was
published at 85 FR 42665 on July 14, 2020.

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FAR 4.2105 requires insertion of provisions (FAR 52.204-24 and 52.204-26) and a clause (FAR
52.204-25) in solicitations and contracts, and this class deviation requires the inclusion of those
same provisions and clause in GSA's lease acquisitions and CSOs. The provision at FAR
52.204-24 requires offerors to represent whether they will provide covered telecommunications
equipment or services to the Government and whether they use covered telecommunications
equipment or services or any equipment, system, or service that uses covered
telecommunications equipment or services. The clause at FAR 52.204-25 requires contractors
to report if they identify covered telecommunications equipment or services used during contract
performance.
The class deviation also adds to the GSAR and General Services Administration Acquisition
Manual (GSAM) requirements that GSA lease acquisitions and CSOs follow GSA's Supply
Chain Risk Management procedures at GSAM subpart 504.70.3
B. Background.

The NOAA prohibits executive agencies from either:
(a) Procuring or obtaining, or extending or renewing "a contract to procure or obtain any
equipment, system, or service that uses covered telecommunications equipment or
services as a substantial or essential component of any system, or as critical technology
as part of any system"4
(b) Entering into (or extending or renewing) a contract with "an entity that uses any
equipment, system, or service that uses covered telecommunications equipment or
services as a substantial or essential component of any system, or as critical technology
as part of any system."
GSA is committed to the most effective and efficient implementation of the prohibitions of the
NOAA while maintaining its ability to meet its mission and to support the mission needs of
Federal agencies across the Government. Regulations for GSA lease acquisitions and CSOs
are found in the GSAR; they are not FAR-based. This class deviation is necessary to require
GSA lease acquisitions and CSOs to include the language of the representation and reporting
requirements at FAR 4 .2105 before the GSAR is revised via rulemaking.
First, this class deviation requires GSA lease acquisitions and CSOs to follow the representation
and reporting requirements at FAR 4.2105:
1. Offer-by-Offer Representation: FAR 4.2105(a) was issued through an interim rule for
FAR Case 2018-017 and requires the provision at FAR 52.204-24 to be inserted into all
solicitations. The provision at FAR 52.204-24 was updated by an interim rule for FAR
Case 2019-009 and now requires each offerer to provide two representations. First, that
it "will[ or] will not provide covered telecommunications equipment or services to the
Government in the performance of any contract, subcontract or other contractual
instrument resulting from this solicitation" and, second, that it "does[ or] does not use
3

GSAM subpart 504.70 was added through GSAM Case 2018-G505, w hich was published via GSA
Order A DM 2800.12B Change 101 on July 17, 2019.
4
Covered telecommunications equipment and services is defined at FAR 52.204-25(a).

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covered telecommunications equipment or services, or use any equipment, system, or
service that uses covered telecommunications equipment or services."
2. Reporting: FAR 4.2105(b) was issued as a part of the same interim rule for FAR Case
2018-017 and requires the clause at FAR 52.204-25 to be inserted into all solicitations
and contracts. Paragraph (d) of the clause at FAR 52.204-25 requires contractors that
identify that "covered telecommunications equipment or services [was) used as a
substantial or essential component of any system, or as critical technology as part of any
system, during contract performance" to report information required by FAR
52.204-25(d)(2) to the contracting officer.
3. Entity Representation: FAR 4.2105(c) was issued through a second interim rule for FAR
Case 2018-017 and requires the provision at FAR 52.204-26 to be inserted into all
solicitations.5 The provision at FAR 52.204-26 requires each offerer to provide a
representation, via the System for Award Management (SAM), that it "does[ or] does not
provide covered telecommunications equipment or services as a part of its offered
products or services to the Government in the performance of any contract, subcontract,
or other contractual instrument".6
Second, this class deviation requires GSA lease acquisitions and CSOs to follow GSA's Supply
Chain Risk Management procedures at GSAM subpart 504.70.

C. Applicability.
1. Deviation Implementation.
a. GSAR Class Deviation.
The GSAR class deviation applies the representation and reporting requirements at FAR 4 .2105
to GSA lease acquisitions and CSOs. The GSAR class deviation also applies GSA's Supply
Chain Risk Management procedures at GSAM subpart 504.70 to CSOs. See Attachment A for
the GSAR deviation text implementing this class deviation.

b. GSAM Class Deviation.

5

Note that if a solicitation includes any of the follow ing, no further action is required (the solicitation does
not need to be updated because the provision at FAR 52.204-26 is already included by reference): FAR
52.204-7, System for Award Management (OCT 201 8), FAR 52.204-19, Incorporation by Reference of
Representations and Certifications (DEC 2014), FAR 52.212-3, Offeror Representations and
Certifications - Commercial Items (JUN 2020).
6 The provision at FAR 52.204-26 (DEC 2019) w ill be updated via a future FAR rule to include an
additional representation as to w hether entities do or do not "use covered telecommunications equipment
or services, or use any equipment, system, or service that uses covered telecommunications equipment
or services." FAR 4 .2103 will also be updated by the same FAR rule to allow entities to not provide a
response to the provision at FAR 52.204-24 when submitting offers if they have, in response to the
provision at FAR 52.204-26, represented that they both do not provide and do not use covered
telecommunications equipment or services. Note that if a lease offeror uses the flexibility of Acquisition
Letter MV-20-04, which allow s lease offerors to submit offers prior to SAM registration (provided that the
lease offeror is registered prior to award}, any lease offers must include the representation required by the
provision at FAR 52.204-24.

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The GSAM class deviation applies GSA's Supply Chain Risk Management procedures at GSAM
subpart 504.70 to GSA lease acquisitions. See Attachment B for the GSAM deviation text
implementing this class deviation.
2. Implementation Timelines.
a. Representation Provision at FAR 52.204-24.

All new lease and CSO solicitations, issued on or after August 13, 2020, shall include the
language from the provision at FAR 52.204-24 (AUG 2020).
For lease or CSO solicitations that were issued prior to August 13, 2020 that have not closed, or
awards that have not been made by August 13, 2020, the contracting officer shall either amend
the solicitation to include the language from the provision at FAR 52.204-24 (AUG 2020) or
incorporate it into the award of the apparent successful offerer.
b. Reporting Clause at FAR 52.204-25.

All lease acquisitions and CSOs awarded on or after August 13, 2020 shall include the language
from the clause at FAR 52.204-25 (AUG 2020).
All existing lease acquisitions and CSOs shall be modified to include the language from the
clause at FAR 52.204-25 (AUG 2020) as they are modified to extend their periods of
performance, such as upon the exercise of options.

c. Representation Provision at FAR 52.204-26.
All new lease and CSO solicitations, issued on or after August 13, 2020, shall include the
language from the provision at FAR 52.204-26 (DEC 2019).
For lease or CSO solicitations that were issued prior to August 13, 2020 that have not closed, or
awards that have not been made by August 13, 2020, the contracting officer shall either amend
the solicitation to include the language from the provision at FAR 52.204-26 (DEC 2019) or
incorporate it into the award of the apparent successful offerer.
Note that if a solicitation includes any of the following, no f urther action is required (the
solicitation does not need to be updated because the provision at FAR 52.204-26 is already
included by reference): FAR 52.204-7, System for Award Management (OCT 2018), FAR
52.204-19, Incorporation by Reference of Representations and Certifications (DEC 2014), FAR
52.212-3, Offerer Representations and Certifications - Commercial Items (JUN 2020).7
Once the future FAR rule is published and FAR 52.204-26 (DEC 2019) is updated, follow the
FAR rule to again update new and existing solicitations.

7

If a lease solicitation includes the provision at GSAM 552.270-33, System for Award Management Leasing or its Alternate, authorized by Acquisition Letter MV-20-04 for use in lieu of FAR 52.204-7, the
solicitation likewise does not be updated.

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D. Authority.
This class deviation is issued under the authority of GSAM 501.404.

E. Effective Date.
This class deviation is effective on August 13, 2020, and it remains in effect until rescinded or
incorporated into the GSAR. See Section C.2 for implementation timelines.

F. Federal Acquisition Service (FAS) and Public Building Service (PBS) Guidance.
FAS and PBS will revise applicable policies, such as solicitation and ordering guides, issue
implementation guidance, revise contract templates, and provide training, as appropriate, to
align with this class deviation.

G. Resources.
The following Section 889 resources are available on the "Prohibited Sources and Supply Chain
Risk Management (SCRM)" Acquisition Portal Page (https://insite.gsa.gov/scrm):
• Link to Information for Industry
• Overview Flyer
• Frequently Asked Questions (FAQs)
• Training for Government-wide acquisition workforce
• Training for GSA acquisition workforce
• Acquisition Letter (MV-20-10) for GSA's FAR-Based Contracts
0
0

0

xx
xx
xx

H. Points of Contact.
For questions concerning:
• This class deviation, send inquiries to [email protected]
• Leasing implementation, send inquiries to [email protected]
• CSO implementation, send inquiries to the appropriate innovation advocate on
https://insite.qsa.qov/acguisitioncontacts

Attachment A -GSAR Deviation Text
Attachment B -GSAM Deviation Text

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ATTACHMENT A
GSAR Deviation Text

•
•
•
•

Additions to baseline made by this class deviation are indicated by [bold text in
brackets]
Deletions to baseline made by this class deviation are indicated by strilmtRro1:1~Rs
Five asterisks (* * * * *) indicate that there are no revisions between the preceding and
following sections
Three asterisks (* * *) indicate that there are no revisions between the material shown
within a subsection

GSAR Baseline: Change 110 effective 06/24/2020

Part 501-General Services Administration Acquisition Regulation System
Subpart 501.1-Purpose, Authority, Issuance
*****

501.106 0MB approval under the Paperwork Reduction Act.
GSAR Reference

0MB Control No.

***

***

[570.701(a)]

[3090-XXXX]

[571 .001]

[3090-XXXX]

***

***

*****

Part 570-Acquiring Leasehold Interests in Real Property
Subpart 570.7-Solicitation Provisions and Contract Clauses
570.701 FAR provisions and clauses.
Include provisions or clauses substantially the same as the FAR provisions and clauses listed
below.

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If .. .

Then include ...

(a) the estimated value of the acquisition
exceeds the micro-purchase threshold
identified in FAR 2.101

52.204-3 Taxpayer Identification.
52.204-6 Data Universal Numbering System
(DUNS) Number.
52.204-7 System for Award Management.
[52.204-24 Representation Regarding
Certain Telecommunications and Video
Surveillance Services or Equipment.
52.204-25 Prohibition on Contracting for
Certain Telecommunications and Video
Surveillance Services or Equipment.]

***

***

*****

Part 571-Pilot Program for Innovative Commercial Items
Subpart 571.1-General
[571.001 Applicability.
Procurements under the CSO Pilot Program must be compliant with the requirements of
Section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year
2019, must include the language of the representation and reporting requirements at FAR
4.2105, and must comply with subpart 504. 70.]
* ****

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ATTACHMENT B
GSAM Deviation Text

•
•
•
•

Additions to baseline made by this class deviation are indicated by [bold text in
brackets]
Deletions to baseline made by this class deviation are indicated by strilmtRro1:1~Rs
Five asterisks (* * * * *) indicate that there are no revisions between the preceding and
following sections
Three asterisks (* * *) indicate that there are no revisions between the material shown
within a subsection

GSAM Baseline: Change 110 effective 06/24/2020

Part 570-Acquiring Leasehold Interests in Real Property
Subpart 570.1-General
570.101 Applicability.
* **
(c) The following GSAM provisions apply to acquisitions of leasehold interests in real
property. These are in add ition to the GSAR requirements identified in 570.1 OHb).

GSAM Applicable to Acquisitions of Leasehold Interests in Real Property
***

[504.70]
***

***

*****

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