In the extensive chatter since the Federal Acquisition Regulatory Council (“FAR Council”) published an interim rule on the new Federal Acquisition Regulation (FAR) 52.204-27, “Prohibition on a ByteDance Covered Application,” commentators have almost universally advised that if a federal contractor’s employee uses a device in connection with a government contract in any way, TikTok is banned on that device. These conclusions seem to rely on the common understanding of the term “information technology.” But both the underlying congressional statute and the new implementing FAR clause adopt a specific statutory definition of “information technology” that is far more nuanced and far from clear in its scope. Contractors may be ignoring this nuance and reading too much into the clause to their disadvantage. Rather than assume the ban is more extensive than the text of the interim rule requires, contractors should use the notice-and-comment period to ask the FAR Council to clarify the rule’s intended scope.
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