FAR 4.2104—Waivers.
Plain-English Summary
FAR 4.2104 explains when and how the government may waive the prohibitions in FAR 4.2102(a) on covered telecommunications equipment or services, including both the general waiver authority and the special rules for emergency acquisitions. It covers who may grant a waiver, the one-time nature of the executive agency waiver, the time limits tied to the two separate prohibitions in 4.2102(a)(1) and (a)(2), and the required showing of compelling justification, full and complete supply-chain laydown, and phase-out plan. It also addresses the extra prerequisites for waivers of 4.2102(a)(2), including designation of a senior agency official for supply chain risk management, participation in an information-sharing environment, and notice and consultation with ODNI and the Federal Acquisition Security Council. The section further sets out emergency waiver procedures when prior notice and consultation are impracticable, along with post-award notification requirements. Finally, it requires congressional notification for approved waivers and recognizes separate waiver authority for the Director of National Intelligence when the waiver is in the national security interests of the United States. In practice, this section is about tightly controlling exceptions to the telecom/video surveillance equipment prohibitions, documenting the risk, and ensuring senior-level and interagency oversight before the government proceeds.
Key Rules
One-time agency waiver
The head of an executive agency may grant a one-time waiver of the prohibition in 4.2102(a) for a Government entity that requests it. This is an exception authority, not a routine procurement tool, and it is limited to the specific waiver conditions in this section.
Time-limited waiver periods
A waiver may not extend beyond August 13, 2021 for the prohibition at 4.2102(a)(1), or beyond August 13, 2022 for the prohibition at 4.2102(a)(2). The waiver must fit within the applicable statutory deadline and cannot be open-ended.
Required waiver package
The requesting Government official must submit a compelling justification for extra implementation time and a full and complete laydown of covered telecommunications or video surveillance equipment or services in the relevant supply chain, plus a phase-out plan to remove them from relevant systems. The agency head must determine the justification is compelling.
Extra prerequisites for 4.2102(a)(2) waivers
Before granting a waiver for the broader prohibition in 4.2102(a)(2), the agency must designate a senior agency official for supply chain risk management, participate in an information-sharing environment as required by the FASC, and notify and consult with ODNI using appropriate guidance or direct inquiry. The agency must also notify ODNI and the FASC 15 days before granting the waiver.
Emergency waiver process
In an emergency, including a major disaster declaration, the agency head may waive the prior notice and consultation requirements if doing so is impracticable and would severely jeopardize mission-critical functions. The agency must determine the emergency condition makes notice and consultation impracticable and must notify ODNI and the FASC within 30 days of award.
Congressional notice after approval
For waivers of 4.2102(a)(1), the agency head must submit the full laydown and phase-out plan to the appropriate congressional committees within 30 days after approval. For waivers of 4.2102(a)(2), the agency head must submit an attestation that the waiver does not materially increase national security risk, the full laydown, and the phase-out plan within 30 days after approval.
ODNI waiver authority
Separately, the Director of National Intelligence may grant a waiver if the Director determines the waiver is in the national security interests of the United States. This is an independent waiver path from the executive agency process.
Responsibilities
Head of Executive Agency
Decide whether to grant a one-time waiver, ensure the waiver stays within the applicable deadline, determine that the justification is compelling, and approve only after all required documentation and prerequisites are satisfied. For 4.2102(a)(2) waivers, also ensure the agency has the required supply chain risk management official, information-sharing participation, and ODNI/FASC coordination.
Government Official Requesting Waiver
Submit the waiver request on behalf of the Government entity and provide the compelling justification, full and complete supply-chain laydown, and phase-out plan required by the rule. For emergency situations, support the agency’s determination that prior notice and consultation are impracticable.
Government Entity (Requirements or Contracting Office)
Request the waiver when needed and provide the underlying acquisition and supply-chain information needed to support the request. The entity must be prepared to implement the phase-out plan and comply with any waiver conditions.
Senior Agency Official for Supply Chain Risk Management
Be designated by the agency and be responsible for ensuring the agency carries out supply chain risk management functions and responsibilities required by law, regulation, and policy. This role is a prerequisite for waivers of 4.2102(a)(2).
Office of the Director of National Intelligence (ODNI)
Receive notice and consultation on waiver requests for 4.2102(a)(2), and receive emergency waiver notice within 30 days of award when prior notice was impracticable. ODNI also has a separate role in providing guidance, briefings, best practices, or direct inquiry support as appropriate.
Federal Acquisition Security Council (FASC)
Support interagency sharing of relevant acquisition supply chain risk information through the required information-sharing environment and receive advance notice of intended waivers for 4.2102(a)(2), or post-award notice in emergency cases.
Appropriate Congressional Committees
Receive the required waiver notice package within 30 days after approval, including the laydown and phase-out plan for 4.2102(a)(1) waivers, and the attestation, laydown, and phase-out plan for 4.2102(a)(2) waivers.
Director of National Intelligence
May independently grant a waiver when the Director determines it is in the national security interests of the United States.
Practical Implications
Waivers are highly documented exceptions, not a workaround for incomplete planning. Agencies and contractors should expect to produce detailed supply-chain information and a credible removal plan before a waiver is approved.
The two prohibitions in 4.2102(a) are treated differently, so it is important to identify which one applies. Waivers for 4.2102(a)(2) have additional governance and coordination requirements that do not apply to 4.2102(a)(1).
Emergency waivers are narrow and require a real showing that notice and consultation are impracticable and would jeopardize mission-critical functions. Agencies should not assume an emergency label alone is enough.
Congressional reporting is mandatory after approval, so waiver decisions create a formal record and oversight trail. Missing the 30-day reporting deadline is a compliance risk even if the waiver itself was properly granted.
Contracting officers should coordinate early with program, legal, cybersecurity, and supply-chain officials because the waiver package depends on accurate identification of covered equipment or services in the relevant supply chain and a realistic phase-out plan.
Official Regulatory Text
(a) Executive agencies . The head of an executive agency may, on a one-time basis, waive the prohibition at 4.2102 (a) with respect to a Government entity ( e.g. , requirements office, contracting office) that requests such a waiver. (1) Waiver. The waiver may be provided, for a period not to extend beyond August 13, 2021 for the prohibition at 4.2102 (a)(1), or beyond August 13, 2022 for the prohibition at 4.2102(a)(2), if the Government official, on behalf of the entity, seeking the waiver submits to the head of the executive agency– (i) A compelling justification for the additional time to implement the requirements under 4.2102 (a), as determined by the head of the executive agency; and (ii) A full and complete laydown or description of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems. (2) Executive agency waiver requirements for the prohibition at 4.2102(a)(2). Before the head of an executive agency can grant a waiver to the prohibition at 4.2102 (a)(2), the agency must— (i) Have designated a senior agency official for supply chain risk management, responsible for ensuring the agency effectively carries out the supply chain risk management functions and responsibilities described in law, regulation, and policy; (ii) Establish participation in an information-sharing environment when and as required by the Federal Acquisition Security Council (FASC) to facilitate interagency sharing of relevant acquisition supply chain risk information; (iii) Notify and consult with the Office of the Director of National Intelligence (ODNI) on the waiver request using ODNI guidance, briefings, best practices, or direct inquiry, as appropriate; and (iv) Notify the ODNI and the FASC 15 days prior to granting the waiver that it intends to grant the waiver. (3) Waivers for emergency acquisitions. (i) In the case of an emergency, including a declaration of major disaster, in which prior notice and consultation with the ODNI and prior notice to the FASC is impracticable and would severely jeopardize performance of mission-critical functions, the head of an agency may grant a waiver without meeting the notice and consultation requirements under 4.2104 (a)(2)(iii) and 4.2104 (a)(2)(iv) to enable effective mission critical functions or emergency response and recovery. (ii) In the case of a waiver granted in response to an emergency, the head of an agency granting the waiver must— (A) Make a determination that the notice and consultation requirements are impracticable due to an emergency condition; and (B) Within 30 days of award, notify the ODNI and the FASC of the waiver issued under emergency conditions in addition to the waiver notice to Congress under 4.2104 (a)(4). (4) Waiver notice. (i) For waivers to the prohibition at 4.2102 (a)(1), the head of the executive agency shall, not later than 30 days after approval— (A) Submit in accordance with agency procedures to the appropriate congressional committees the full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain; and (B) The phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems. (ii) For waivers to the prohibition at 4.2102 (a)(2), the head of the executive agency shall, not later than 30 days after approval submit in accordance with agency procedures to the appropriate congressional committees— (A) An attestation by the agency that granting of the waiver would not, to the agency's knowledge having conducted the necessary due diligence as directed by statute and regulation, present a material increase in risk to U.S. national security; (B) The full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain, to include a description of each category of covered technology equipment or services discovered after a reasonable inquiry, as well as each category of equipment, system, or service used by the entity in which such covered technology is found after conducting a reasonable inquiry; and (C) The phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems. (b) Director of National Intelligence . The Director of National Intelligence may provide a waiver if the Director determines the waiver is in the national security interests of the United States.