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Cybersecurity: Coming Soon to a Government Contract Near You




by:
Keir X. Bancroft
Rebecca E. Pearson
Venable LLP - Washington Office

William L. Walsh
Venable LLP - Tysons Corner Office

 
February 13, 2014

Previously published on February 2014

Do you want to be eligible for government contracts in the future? Per President Obama’s Cybersecurity Executive Order, a DoD and GSA joint working group recently recommended how cybersecurity can be implemented in federal acquisitions. The White House has recommended that the joint working group move quickly to develop an implementation plan for these recommendations, and outreach efforts are currently underway. For starters, all contractors must implement basic cybersecurity hygiene, take a close look at their supply chains, and ensure their workforce receives adequate cybersecurity training. 

Specific key recommendations include:

Establish Baseline Cybersecurity as a Condition of Award

For acquisitions presenting cyber risk, the government should only do business with organizations meeting baseline cybersecurity hygiene requirements. Baseline cybersecurity will apply to the contractor itself, and its products and services.The baseline recommendations include: 

  • Update virus protections;

  • Apply multiple factor logical access;

  • Ensure data confidentiality; and

  • Maintain current security software patches

Baseline cybersecurity requirements will be included in technical requirements for acquisitions, and include performance measures to ensure baseline cybersecurity is maintained, and ensure risks are identified throughout the lifespan of the product or service acquired.

Require Purchases from OEMs, Their Authorized Resellers, or Other “Trusted” Sources

If there is sufficient cyber risk, an agency may procure items only from original equipment manufacturers (OEMs), authorized resellers, or other trusted sources. 

  • Trusted sources - may be identified through use of qualified bidders, or manufacturers lists (QBLs).  The standards for establishing the QBLs will be based on the level of cyber risk to be mitigated.

  • Non-OEMs or trusted sources must guarantee the security and integrity of an item being purchased.

  • For high cyber-risk procurements, government audit may be necessary to evaluate qualifications to provide items.

These requirements reflect the joint working group’s focus on addressing supply chain risk and addressing anti-counterfeiting.  An example of an OEM requirement is found in the recent draft RFP for the NASA SEWP V (Solutions for Enterprise-Wide Procurement) contract, which expressly limits certain equipment requirements to items coming from OEMs or their authorized resellers. 

Condition Contract Eligibility on Workforce Cybersecurity Training

The joint working group has recommended comprehensive training for the acquisition workforce, including federal and contractor employees. 

  • For some acquisitions, contractors may be required to give their workforce compulsory cybersecurity training to be eligible to compete.

  • A suggested model is GSA’s “Pathway to Success,” a mandatory training program for would-be offerors for GSA Schedule contracts.

 The joint working group made other recommendations as well, including:

  • Developing common cybersecurity definitions throughout federal acquisitions, based on international standards;
  • Applying cybersecurity requirements, or “overlays” depending on the cyber risk of an acquisition; and
  • Holding agency personnel accountable for implementing cybersecurity protections throughout federal acquisitions, a requirement that will no doubt increase pressure on contractors to comply with agency cyber requirements.


 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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