Section 889 Flows Down. The Part That Reaches Your Whole Company Does Not.
If your supplier questionnaire asks whether the supplier uses covered telecommunications equipment, you are collecting an answer to a question that does not bind you. The answer that would actually protect you is one your subcontract never told that supplier to give.
FAR 52.204-25 is already on the paper. The contracting officer inserts it in all solicitations and contracts under FAR 4.2105(b), and no dollar threshold appears in 4.2105 or in the clause's own flow-down paragraph. The clause is live in its November 2021 form.
What paragraph (e) sends down
The flow-down is one sentence. "The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial products or commercial services."
Four things follow, and together they answer how far down this goes.
- It moves substance rather than a clause number, which is why prime paper often paraphrases rather than incorporating it by number.
- It carries itself. "Including this paragraph (e)" puts the same duty on your subcontractor, and on theirs.
- It reaches commercial subcontracts by name. The usual exit is closed in the text.
- It excludes paragraph (b)(2), also by name.
The exclusion is not a carve-out
Read (b)(1) and (b)(2) beside each other and the exclusion stops looking like relief.
Paragraph (b)(1) recites the agency prohibition that has run since August 13, 2019, then adds a second sentence of its own. "The Contractor is prohibited from providing to the Government 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," unless an exception at paragraph (c) applies or a waiver described in FAR 4.2104 covers it.
Paragraph (b)(2) recites the agency prohibition that has run since August 13, 2020, on entering into, extending or renewing a contract with an entity that uses such equipment. It then widens that reach in its own words, saying the prohibition applies to the use of covered equipment or services "regardless of whether that use is in performance of work under a Federal contract." And it stops there. No sentence in (b)(2) begins "The Contractor is prohibited from."
So there was never a contractor-side prohibition in (b)(2) for the flow-down to carve out. The bar on providing is a term of your contract and travels as one. The bar on using describes what the agency may not do, and what puts your own use in front of the government is a different instrument. The representation at 52.204-26(c)(2) has the offeror represent, after conducting a reasonable inquiry, that it does or does not use covered telecommunications equipment or services. That provision is prescribed at FAR 4.2105(c) for government solicitations, and it is not part of the substance paragraph (e) sends down the chain.
A supplier that signs your use questionnaire has told you something about itself. It has not answered the representation you signed, which is about you.
The clock runs on a call nobody has to make
Paragraph (d)(1) starts when the contractor identifies covered equipment used as a substantial or essential component during contract performance, or when "the Contractor is notified of such by a subcontractor at any tier or by any other source." The report goes to the contracting officer unless the contract establishes other procedures, and to dibnet.dod.mil for the Department of Defense.
Paragraph (d)(2)(i) gives you one business day from that identification or notification, and it wants a filled-out record: the contract number, the order numbers if applicable, the supplier name, the supplier unique entity identifier and CAGE code if known, the brand, the model number, an item description, and any readily available information about mitigation undertaken or recommended. Paragraph (d)(2)(ii) gives ten business days after that for further mitigation detail and a description of the efforts made to prevent use or submission of covered equipment.
One business day is an assembly deadline rather than an investigation deadline. It begins the moment a subcontractor tells you, and the substance that paragraph (e) puts into your subcontract does not order that subcontractor to tell you, or to tell you with a CAGE code attached.
The exceptions will not fill the gap either. Paragraph (c) covers a service connecting to the facilities of a third party, such as backhaul, roaming or interconnection arrangements, and telecommunications equipment that cannot route or redirect user data traffic or permit visibility into user data or packets. Neither is a diligence exception. A substantial or essential component is defined as any component necessary for the proper function or performance of a piece of equipment, system or service, which is a wide net to cast over an assembly.
So the questionnaire sitting in your vendor file answers a question the government did not put to you, and the answer that decides whether you make the one business day sits with a supplier several tiers down who has no contractual reason to pick up the phone. While the subcontract is open, that is a drafting question. After it signs, it is a late report with your contract number on it.