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.
Tags: COTS, FAR, Federal Acquisition Regulation 52.204-27, Federal Contractor TikTok Ban, TikTok
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Photo of Laura A. Mitchell Laura A. Mitchell

Laura Mitchell is a principal in the Denver office of Jackson Lewis P.C. and leads the firm’s Workplace Analytics and Preventive Strategies Pay Equity subgroup. She partners with employers to evaluate, develop and implement policies and practices that ensure workplace fairness while mitigating…

Laura Mitchell is a principal in the Denver office of Jackson Lewis P.C. and leads the firm’s Workplace Analytics and Preventive Strategies Pay Equity subgroup. She partners with employers to evaluate, develop and implement policies and practices that ensure workplace fairness while mitigating legal risk. Laura is a guiding force in the firm’s most specialized and technical practice areas where she leverages an analytics-focused approach to partner with her clients in building legally compliant programs around which they can anchor their workplaces achieving productivity and stability.

Laura understands that creating a competitive advantage for employers in today’s workplace involves using a data-driven approach to counsel companies on the development of proactive and equitable non-discriminatory practices in hiring, promotions, separations and pay—and where advancements in technology can create both opportunities for efficiencies and risk that can be measured. Committed to putting her clients’ organizational goals first and foremost while balancing legal risk, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication. Staying the course with employers across their organizational journey while balancing legal compliance obligations throughout their employees’ lifecycle ensures Laura’s position as a go-to resource.

Laura works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize the combined vision of legal compliance, increased productivity and economic growth enhanced by a focus on pay equity.  As part of the pay equity journey, she advises employers on the evolving pay transparency landscape, working to align compliant practices with the practical realities of the business world.

Laura partners closely with government contractors to understand, implement and demonstrate compliance with their EEO regulatory and compliance obligations. She also works closely with non-government contractor clients to conduct risk assessments of their programs, policies, and training to align with federal and state anti-discrimination requirements.

Laura is the editor and a principal contributor of the GovCon Employment Exchange blog and presents on pay equity and government contractor obligations. To round out her days, Laura enjoys spending time with her family and friends attending sports events, working out, riding her bike, playing pickleball and taking in Colorado’s incomparable sunsets.

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