Information Technology Contracting

Late last month, the National Institute of Standards and Technology (“NIST”) released a set of documents for public comment that are aimed at helping contractors assess and implement compliance with NIST Special Publication (“SP”) 800-171, which establishes the standards for protecting Covered Defense Information (“CDI”), among other forms of Controlled Unclassified Information (“CUI”). First, NIST released an updated final public draft of SP 800-171A, Assessing Security Requirements for Controlled Unclassified Information. Second, NIST released templates for contractor system security plans (“SSPs”) and plans of action and milestones (“POAMs”). While neither finalized nor mandatory, these documents provide useful guidance for contractors struggling with SP 800-171 compliance.
Continue Reading NIST Seeks to Assist Contractors in Assessing SP 800-171 Compliance

On February 7, the Department of Defense (DoD) awarded REAN Cloud a contract valued at up to $950 million to work with defense agencies to migrate existing applications to commercial cloud solutions. The award is of significant relevance to efforts currently underway in connection with the upcoming DoD Joint Enterprise Defense Infrastructure—or “JEDI”—procurement. However, the award is also important in a broader context in that it was issued as a follow-on production contract to an “other transaction” (OT) prototype agreement awarded on an expedited basis by DoD’s Defense Innovation Unit Experimental organization (DIUx). The award, therefore, reflects DoD’s increased comfort with issuing high-value production contracts following preliminary work with DIUx under OT prototype agreements.
Continue Reading DIUx and DoD Other Transaction Prototype Agreements: The Fast Track to DoD Funding

On August 1, 2017, a bipartisan group of Senators introduced legislation (fact sheet) that would establish minimum cybersecurity standards for Internet of Things (“IoT”) devices sold to the U.S. Government. As Internet-connected devices become increasingly ubiquitous and susceptible to evolving and complex cyber threats, the proposed bill attempts to safeguard the security of executive agencies’ IoT devices by directing executive agencies to include specified clauses in contracts for the acquisition of Internet-connected devices.

The bill’s provisions leverage federal purchasing power to improve the security of IoT devices by requiring, among other things, IoT device, software, and firmware providers to certify compliance with specified security controls and requirements relating to vulnerability patching and notification, unless such contractors otherwise satisfy one of three waiver requirements.

The bill also directs the Department of Homeland Security (“DHS”) to issue vulnerability disclosure guidance for government contractors; to amend federal statutes, specifically the Computer Fraud and Abuse Act (“CFAA”) and Digital Millennium Copyright Act (“DMCA”), to exempt certain “good faith” activities by cybersecurity researchers; and require all executive branch agencies to maintain an inventory of IoT devices active on their networks.

In addition, the statute would require the Director of the Office of Management and Budget (“OMB”) to issue guidelines to federal agencies consistent with the bill within 180 days of enactment.

The bill is summarized below.
Continue Reading A Summary of the Recently Introduced “Internet of Things (IoT) Cybersecurity Improvement Act of 2017”

The Department of Defense (“DoD”) held an “Industry Information Day” on June 23, 2017 to address questions regarding DFARS Case 2013-D018 “Network Penetration and Reporting for Cloud Services,” including DFARS clauses 252.204-7012 “Safeguarding Covered Defense Information and Cyber Incident Reporting” and 252.239-7010 “Cloud Computing Services.”   DoD’s presentation lasted approximately four hours and covered a wide

On May 11, 2017, the U.S. China Economic and Security Review Commission (“Commission”) issued a Request for Proposal to “to provide a one-time unclassified report on supply chain vulnerabilities from China in U.S. federal information technology (IT) procurement.”

Congress established the Commission in 2000 to monitor and report to Congress on the national security implications

On January 27, 2017, the Department of Defense (DoD) issued an updated Frequently Asked Questions (FAQ) regarding the application and requirements of DFARS 252.204.7012 Safeguarding Covered Defense Information and Cyber Incident Reporting. Though questions remain regarding various nuances of the rule, the FAQ is a helpful document for those contractors still working on implementation of DFARS 252.204.7012.  Divided into three sections — (1) General Application, (2) Security Requirements, and (3) Cloud Computing — the FAC provides answers to 59 commonly asked questions and provides greater clarity on a number of important points, which are discussed in greater detail below.
Continue Reading DoD Further Clarifies Its DFARS Cybersecurity Requirements

Supply chain protection has been a point of increasing emphasis by the Government and especially the Department of Defense (“DoD”) in recent years. In no area is this more true than ensuring that Government systems and equipment are free from counterfeit electronic parts, which can raise both security and defect concerns. DoD has accordingly taken several steps, many of which have taken the form of new requirements on contractors, to protect against counterfeit electronic parts. With these requirements has come added risk to contractors that even mistakenly use electronic parts in the goods they sell to DoD. However, an August 30, 2016, final DFARS rule (implemented at DFARS 2301.205-71) seeks to mitigate some of this risk by allowing contractors to recover the cost of replacing counterfeit electronic parts, as long as the contractor has taken certain steps to prevent the use of such parts.
Continue Reading DOD Final Rule Addresses Source Requirements and Cost Recovery for Use of Counterfeit Electronic Parts

IT-acquisition reform remains an area of ongoing concern for Federal agencies and government contractors.  Indeed, as we previously discussed, the GAO has added IT Acquisitions and Operations to its bi-annual list of programs it identifies as posing a high risk for fraud, waste, abuse, and mismanagement.  Strengthened by Congress’ passage in December 2014 of the Federal IT Acquisition Reform Act (“FITARA”), OMB has implemented several initiatives to reduce redundancy, improve efficiencies, and lower costs with respect to the government’s procurement and management of IT resources.  However, a recent Department of Defense (“DoD”) Inspector General (“IG”) audit report analyzing one of these initiatives—the Federal Data Center Consolidation Initiative (“FDCCI”) —highlights the ongoing struggle that Federal agencies face when seeking to execute IT reform.  If DoD responds to this audit report by stepping up its efforts under FDCCI, one result could be increased opportunities for IT contractors offering cloud computing and other services.
Continue Reading DoD IG Report Reveals Ongoing Struggles in IT-Acquisition Reform

On December 30th, the Department of Defense (DoD) issued a Second Interim Rule amending its “Network Penetration Reporting and Contracting for Cloud Services” Interim Rule and giving  contractors until December 31, 2017 to implement the NIST SP 800-171 security controls required by DFARS 252.204-7012.  As noted in a previous post, DoD has already issued a class deviation giving covered contractors up to nine (9) months (from the date of contract award or modification incorporating the new clause(s)) to satisfy the requirement for “multifactor authentication for local and network access” found in Section 3.5.3 of NIST SP 800-171.  This current revision appears responsive to significant concerns raised by Industry about compliance with the remaining safeguarding requirements imposed overnight on contractors on August 26, 2015.

The Second Interim Rule imposes the following changes:
Continue Reading Time Is On My Side: DoD Hears Industry Concerns – Additional Time Provided to Implement Security Controls Under New Cyber Rule

Last week, on October 8th, DoD issued a class deviation replacing DFARS 252.204-7012 and 252.204-7008 with revised clauses that give covered contractors up to nine (9) months (from the date of contract award or modification incorporating the new clause(s)) to satisfy the requirement for “multifactor authentication for local and network access” found in Section 3.5.3 of National Institute of Standards and Technology (NIST) Special Publication 800-171, “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations.”

We previously reported on the August 26th Department of Defense (DoD) interim rule that greatly expanded the obligations imposed on defense contractors for safeguarding “covered defense information” and for reporting cybersecurity incidents involving unclassified information systems that house such information. The interim rule, which went into effect immediately, requires non-cloud contractors to comply with several new requirements, including those in DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting” and DFARS 252.204-7008, “Compliance with Safeguarding Covered Defense Information Controls.”  While the class deviation is a welcomed development for contractors that may struggle to implement the NIST SP 800-171 requirements for multifactor authentication, the deviation: (1) requires contractors to notify the government if they need more time to satisfy those requirements, and (2) does not alter any other aspect of the August 26th interim rule. 
Continue Reading DoD Issues Targeted Class Deviation Updating Recently Adopted Cybersecurity DFARS Clauses