Government Affairs and Advocacy

The Director of National Intelligence has issued USAID an extension of its Section 889 waiver through September 30, 2022.


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Cynthia Smith
Director, Government Affairs and Advocacy
Humentum
cynthia.smith@humentum.org
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In a meeting today with USAID PPL and M/OAA, Deb Broderick answered my questions re Section 889 waivers that were raised by our members: 

1. Under 889, does the Telecomm waiver USAID has received from DNI include internet and telephone services only or does it also cover video surveillance equipment? Yes, it includes video surveillance equipment.

2. When should we anticipate USAID sending out a public message via Industry Liaison or otherwise about the newly announced Utilities and Emergency Transport Waiver that was granted the Agency by DNI through September 30, 2022? – Deb Broderick says doesn't plan to; asks we share with implementing partners the news. 

3. Just to be clear, under FAR 4.2 contractors make a representation yes or no re use of covered prohibited technologies. If yes, it automatically triggers a waiver request for agency consideration, correct? The implementing partner doesn't have to affirmatively apply for a waiver. The representation itself of yes, we use the prohibited tech and here is our laydown plan, the agency reviews. Per Deb Broderick: Yes.

4. On the utilities and emergency transport waiver, does it operate as the telecomm waiver functions for those on the assistance side: those technologies that would otherwise be prohibited are/will remain allowable costs through September 30, 2022? -Deb Broderick: Yes, it does. On acquisition side, it too operates the same as the tech waiver does on the acquisition side (still make representation, representation of yes would trigger a waiver review by Agency).

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Cynthia Smith
Director, Government Affairs and Advocacy
Humentum
cynthia.smith@humentum.org
------------------------------

Original Message:
Sent: 09-30-2020 17:32
From: Cynthia Smith
Subject: USAID SECTION 889 WAIVER EXTENSION APPROVED BY DNI THROUGH SEPTEMBER 30 2022

The Director of National Intelligence has issued USAID an extension of its Section 889 waiver through September 30, 2022.

Section 889 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 Section (a)(1)(B) and Section (b)(1) of the law, went into effect on August 13, 2020. To support the Agency's work, USAID received a telecommunications waiver for internet and phone services, which was originally scheduled to expire on September 30, 2020. The Agency has received approval to extend this waiver through September 30, 2022.

Per USAID, "as of September 30, 2022, the Agency statutory waiver authority ends and the Agency will not enter into any contracts with contractors using covered technology. For contractors that wish to continue to do business with USAID, it is important to phase out the use of covered technology. Recipients should ensure they have alternate funding because costs for covered technology will become unallowable. In regard to assistance (grants/cooperative agreements), the Agency will be revising its policy to extend the period of the allowability of costs for internet and telephone services for new awards made during the duration of the waiver. In regard to acquisition (contracts), the Agency waiver does not alter the FAR requirements for contractors to make a representation. Nor does it alter the requirement to request a waiver and provide a laydown plan for covered technology if an affirmative representation is made and no existing waiver applies. The Agency will review a contractor's waiver request and the required laydown plan to determine whether this waiver applies in whole or part and whether any further waiver is required.

USAID will continue to pursue appropriate waivers for the ease of operations overseas. A number of waivers are pending but are pre-decisional and may not be discussed in detail until they are approved.

The Agency encourages partners to review ADS 302.mpb and review the USAID Section 889 Partner Information page. Questions related to Section 889 can be submitted to IndustryLiaison@usaid.gov. Regardless of this waiver, supply chain risk is a cybersecurity threat that USAID and the USG expect implementing partners to mitigate. Therefore the Agency urges implementing partners to continue to mitigate supply chain risk."

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Cynthia Smith
Director, Government Affairs and Advocacy
Humentum
cynthia.smith@humentum.org
------------------------------

Upon my additional request for clarification regarding the telecom waiver and whether it includes or excludes surveillance equipment, USAID/M/OAA Dep Director Deb Broderick clarified that the DNI waiver to USAID on telecom and internet DOES NOT INCLUDE SURVEILLANCE EQUIPMENT. Please see her clarifying message: 

"Hi Cynthia,

I want to write back and correct an error that I made yesterday regarding video surveillance equipment. I misspoke when I said that the waiver covered video surveillance as it does not. My apologies for this error.

I want to respond more fully to the other two points in your email and will get back to you shortly. I just didn't want to let this error remain without immediate correction.

Best,
Deb"

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Cynthia Smith
Director, Government Affairs and Advocacy
Humentum
cynthia.smith@humentum.org
------------------------------

Original Message:
Sent: 10-07-2020 17:19
From: Cynthia Smith
Subject: USAID SECTION 889 WAIVER EXTENSION APPROVED BY DNI THROUGH SEPTEMBER 30 2022

In a meeting today with USAID PPL and M/OAA, Deb Broderick answered my questions re Section 889 waivers that were raised by our members: 

1. Under 889, does the Telecomm waiver USAID has received from DNI include internet and telephone services only or does it also cover video surveillance equipment? Yes, it includes video surveillance equipment.

2. When should we anticipate USAID sending out a public message via Industry Liaison or otherwise about the newly announced Utilities and Emergency Transport Waiver that was granted the Agency by DNI through September 30, 2022? – Deb Broderick says doesn't plan to; asks we share with implementing partners the news.

3. Just to be clear, under FAR 4.2 contractors make a representation yes or no re use of covered prohibited technologies. If yes, it automatically triggers a waiver request for agency consideration, correct? The implementing partner doesn't have to affirmatively apply for a waiver. The representation itself of yes, we use the prohibited tech and here is our laydown plan, the agency reviews. Per Deb Broderick: Yes.

4. On the utilities and emergency transport waiver, does it operate as the telecomm waiver functions for those on the assistance side: those technologies that would otherwise be prohibited are/will remain allowable costs through September 30, 2022? -Deb Broderick: Yes, it does. On acquisition side, it too operates the same as the tech waiver does on the acquisition side (still make representation, representation of yes would trigger a waiver review by Agency).

------------------------------
Cynthia Smith
Director, Government Affairs and Advocacy
Humentum
cynthia.smith@humentum.org

Original Message:
Sent: 09-30-2020 17:32
From: Cynthia Smith
Subject: USAID SECTION 889 WAIVER EXTENSION APPROVED BY DNI THROUGH SEPTEMBER 30 2022

The Director of National Intelligence has issued USAID an extension of its Section 889 waiver through September 30, 2022.

Section 889 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 Section (a)(1)(B) and Section (b)(1) of the law, went into effect on August 13, 2020. To support the Agency's work, USAID received a telecommunications waiver for internet and phone services, which was originally scheduled to expire on September 30, 2020. The Agency has received approval to extend this waiver through September 30, 2022.

Per USAID, "as of September 30, 2022, the Agency statutory waiver authority ends and the Agency will not enter into any contracts with contractors using covered technology. For contractors that wish to continue to do business with USAID, it is important to phase out the use of covered technology. Recipients should ensure they have alternate funding because costs for covered technology will become unallowable. In regard to assistance (grants/cooperative agreements), the Agency will be revising its policy to extend the period of the allowability of costs for internet and telephone services for new awards made during the duration of the waiver. In regard to acquisition (contracts), the Agency waiver does not alter the FAR requirements for contractors to make a representation. Nor does it alter the requirement to request a waiver and provide a laydown plan for covered technology if an affirmative representation is made and no existing waiver applies. The Agency will review a contractor's waiver request and the required laydown plan to determine whether this waiver applies in whole or part and whether any further waiver is required.

USAID will continue to pursue appropriate waivers for the ease of operations overseas. A number of waivers are pending but are pre-decisional and may not be discussed in detail until they are approved.

The Agency encourages partners to review ADS 302.mpb and review the USAID Section 889 Partner Information page. Questions related to Section 889 can be submitted to IndustryLiaison@usaid.gov. Regardless of this waiver, supply chain risk is a cybersecurity threat that USAID and the USG expect implementing partners to mitigate. Therefore the Agency urges implementing partners to continue to mitigate supply chain risk."

------------------------------
Cynthia Smith
Director, Government Affairs and Advocacy
Humentum
cynthia.smith@humentum.org
------------------------------