Section 851 bars DoD contractors retaining 1260H lobbyists
The statutory deadline beat the DFARS clauses, leaving legal teams to certify a broad ban before DoD explains the mechanics.
TL;DR
Federal News Network reports that Section 851 of the fiscal 2025 National Defense Authorization Act is now in force, requiring DoD contractors to certify they do not retain lobbyists or consultants representing companies on the Pentagon’s Section 1260H Chinese military-company list. Primes, contractors and counsel face loss of current and future DoD eligibility, including debarment, while DoD has not issued the DFARS clauses, audit process, reporting timelines or retroactive diligence rules.
Section 851 is now a live eligibility problem for defense contractors, not a policy debate waiting for the Defense Federal Acquisition Regulation Supplement to catch up. Federal News Network reports that the fiscal 2025 defense authorization provision bars DoD from contracting with companies that retain “covered lobbyists,” meaning entities that perform lobbying activities for companies on the Pentagon’s Section 1260H list of Chinese military companies. Contractors now have to certify that outside consultants, law firms, lobbying shops and public relations firms are not on the wrong side of that line.
There is a real policy problem underneath this. GAO warned in 2024 that federal agencies obligated more than $500 billion on consulting-services contracts from fiscal 2019 through 2023, with DoD and DHS accounting for more than half, and that existing acquisition rules did not specifically tell buyers how to consider consultants’ work for China before most awards (https://www.gao.gov/products/gao-24-106932). Congress did not invent the risk last week. It did, however, choose a blunt procurement remedy: sever the relationship or risk Pentagon business.
The implementation gap is the operational story. The House China panel has urged DoD to read the ban broadly, including subsidiaries of 1260H companies and behind-the-scenes lobbying work such as research and planning. At the same time, DoD has not published the DFARS rule, contract clauses, enforcement process, audit approach, reporting timelines or guidance on whether contractors must run retroactive diligence on existing consultant relationships. The law includes a safe harbor for “reasonable inquiries,” but leaves the phrase doing a lot of work.
For primes and major subcontractors, the immediate task is relationship inventory, not legal theorizing. Identify the consultants and lobbying-adjacent firms, ask whether they represent 1260H-listed companies or covered subsidiaries, document the inquiry and keep the file current as the Pentagon updates the list. That may still be imperfect. It is also more defensible than waiting for DoD to explain a certification contractors already have to make.
Published ·Deep Fathom