A new Federal Acquisition Regulation (FAR 52.204-27) enacted in June 2023 requires companies with covered contracts to ban the use of TikTok and other apps developed by ByteDance Limited on employee devices, including personal cell phones, which are used in the performance of government contracts. The ban does not apply to devices “incidental to a Federal contract” however, the term “incidental” is not defined.
The ban applies to federal contracts that include the FAR clause (FAR 52.204-27), which Federal agencies were directed to include in all new solicitations beginning June 2, 2023. Existing contracts and indefinite-delivery contracts may also be amended to include the new clause. The ban is far-reaching and applies to contracts below the micro-purchase threshold, contracts for commercial products and services, and Commercially Available Off the Shelf (COTS) items.
While the interim rule is already in effect, public comments are still being solicited. The ban was designed to ensure data security but could create headaches for federal contractors as it may implicate wage and hour, free speech and other legal issues.
Prime contractors must flow down the clause in subcontracts, but there is no current mechanism requiring prime contractors monitor compliance by subcontractors. There is no self-certification or non-compliance reporting obligation.
To ensure compliance with the new rule, contractors should take the following steps:
- Review contracts, bids solicitations and any requests for amendment: Examine existing contracts entered in after June 2, 2023 and upcoming solicitations to determine applicability of the ban.
- Update policies and procedures: Revise company policies and procedures to reflect the ban on TikTok usage and its impact on device policies. Consider obtaining employee acknowledgment of the policy.
- Block TikTok on company-issued devices: Take necessary technical measures to prevent the usage of TikTok on devices owned by the company, including those issued to employees.
- Discuss implications with counsel: The TikTok ban may have an impact on existing policies and practices, and it may create other legal risks and compliance issues, especially in connection with personal employee devices used for work.