DOD EXTENDS LIMITED SECTION 889B WAIVER
“Low-risk/high volume items” will be exempt from Section 889B requirements for two more years thanks to a waiver granted by DOD earlier this month. This is the same waiver that had been in place until September 30th. While there is no precise definition of what constitutes a “low risk/high volume item” potential examples include a camera used as part of a security system on a building not involved in any government business. Conversely, any covered equipment that captures and stores data or images may not be considered low risk, especially if the device(s) are used to store government information or on a site a contractor uses to support government business. Section 889B definitely still applies to any area not exempt. Industry and DOD leaders had both wanted to the waiver extended to give companies time to identify the types of IT and telecommunications equipment that have to be removed. The identification process, itself, could take months, meaning that no company would have been able to certify that they had conducted the “reasonable inquiry” required by the regulation implementing the statute, let alone removed any identified equipment. The publication of this waiver has not been well publicized. Contractors should ensure that they have the proper information to show any DOD customer that is unaware of it. While some had hoped that Congress would lessen the impact of the requirement in the FY’21 defense authorization bill, there is currently no such provision expected to be in the final version. It is unclear whether there may be a realistic opportunity to modify the applicability of the law in the FY’22 bill, though it is important to note that no observers expect the provision to be overturned or seriously modified even if it is addressed.