On October 3, 2023, the Federal Acquisition Regulation (FAR) Council released two new proposed cybersecurity rules. The first of the two, covered in a separate blog, is titled “Cyber Threat and Incident Reporting and Information Sharing,” and adds new requirements to the cybersecurity incident reporting obligations of federal contractors. The second rule, titled “Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems,” covers cybersecurity contractual requirements for unclassified Federal information systems.
Both rules arise from Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). We have covered developments under this Executive Order as part of a series of monthly posts. The first blog summarized the Cyber EO’s key provisions and timelines, and subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through November 2023. This blog describes key requirements imposed by the proposed “Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems” rule (the “Proposed Standardizing Rule”)
Proposed Cybersecurity Requirements for Unclassified Federal Information Systems
As directed by the Cyber EO, the Proposed Standardizing Rule would establish cybersecurity policies, procedures, and requirements for contractors that develop, implement, operate, or maintain Federal Information Systems (“FIS”). Under the rule, a FIS is defined as “an information system used or operated by an agency, by a contractor of an agency, or by another organization on behalf of an agency.”
The proposed rule indicates that contractual cybersecurity standards currently applicable to unclassified FISs “are largely based on agency-specific policies and regulations.” According to the Director of CISA and the FAR council, a standardized set of minimum cybersecurity standards established under the Proposed Standardizing Rule when it becomes final will: (1) streamline requirements, (2) improve Government contractor compliance; and (3) ensure that unclassified FISs are better positioned to protect from cyber threats. To accomplish these objectives, the Proposed Standardizing Rule would add a new FAR subpart 39.X, “Federal Information Systems” to prescribe Government-wide policies and procedures for agencies when acquiring FIS services. The rule also augments or revises the language of other FAR parts, including FAR parts 2, 4, 7, and 37. In addition, upon issuance of a final rule, agencies will be required to remove any duplicative, agency-specific cybersecurity requirements.
Two New FAR Clauses
The Proposed Standardizing Rule adds two new FAR clauses for use in FIS contracts. One clause will apply to contracts using cloud computing services, and the other will apply to contracts using non-cloud computing (i.e., on-premises) services. Under the rule, contracting officers will include both clauses in all new solicitations and contracts, including contracts below the simplified acquisition threshold and contracts for commercial products and services including commercial off the shelf (COTS) items.
The two new clauses contain several common provisions. For example, both clauses reference the FAR clause proposed by the “Cyber Threat and Incident Reporting and Information Sharing” rule and require the contractor to grant additional government access rights for inspection, audit, and investigation of cyber incidents. Both clauses also require the contractor to indemnify the Government “against any liability arising out of the performance of [an FIS] contract.” The proposed rule lists, non-exhaustively, two specific scenarios requiring contractor indemnification: (1) liability arising from the contractor’s unauthorized use of copyrighted material; and (2) liability arising from the contractor’s potential or actual unauthorized disclosures.
The two new clauses also contain several unique provisions, and contractors that use both cloud- and non-cloud computing services must comply with the requirements of each clause as applicable.
New Requirements under FAR Clause 52.239-XX, “Federal Information Systems Using Cloud Computing Services”
- Security Controls and Safeguards: Under this clause, the agency will identify the FIPS 199 impact level and corresponding Federal Risk and Authorization Program (FedRAMP) level for the cloud computing services under the contract. The clause then requires contractors to implement and maintain the applicable security and privacy safeguards appropriate to that impact level.
- Maintaining Systems within the United States: Additionally, for any FIS required to meet FIPS Publication 199 high impact requirements, the proposed clause will require the contractor to maintain “within the United States and its outlying areas” all government data that is not physically located on U.S. Government premises.
New Requirements under FAR Clause 52.239-YY, “Federal Information Systems Using Non-Cloud Computing Services”
- Annual Assessments: Under this proposed clause, for systems designated as Moderate or High impact under FIPS 199, the contractor will be required to: (1) Perform an annual, independent assessment of the security of each FIS; (2) Conduct an annual cyber-threat hunting and vulnerability assessment; (3) Report the results of its assessments to the agency contracting officer, including recommended improvements or risk mitigations; and (4) Implement any agency requested improvements and mitigations for the FIS.
- Security and Privacy Controls: The proposed clause will require contractors to implement applicable NIST security and privacy standards specified by the contracting agency. The contractor will also be required to develop, and continually update, a System Security Plan to support authorization of applicable FIS. Finally, as with FIS using Cloud Computing Services, the contractor must maintain, within the United States or its outlying areas, all U.S. Government data that is not physically located on U.S. Government premises for a FIS that is required to meet FIPS Publication 199 High impact requirements.
- Maintain List of Operational Technology Equipment: The proposed clause requires the contractor to develop and maintain a list of the physical location of all Operational Technology (“OT”) associated with the FIS contract. The clause defines OT as “programmable systems or devices that interact with the physical environment or manage devices that interact with the physical environment.” Examples of OT specified by the clause include industrial control systems, building management systems, fire control systems and physical access control mechanisms.
Comments on the Proposed Standardizing Rule were originally due by Dec. 4, 2023, but the government extended the period for comments until Feb. 4, 2024.