Articles

Client Alert: Executive Order on Cybersecurity – What Government Contractors Need to Know

Date: May 14, 2021
In the wake of the Colonial Pipeline Hack, on May 12, 2021, the Biden Administration issued an Executive Order (EO) on Improving the Nation’s Cybersecurity.  The Government is proposing broad changes to the Federal Acquisition Regulation (FAR) and Department of Defense FAR Supplement (DFARS) in two areas. What do government contractors need to know?

If you are a contractor providing services for data processing (information technology or IT) or for systems that run “vital machinery that ensures our safety” (operational technology or OT), you will see some proposed changes to the FAR/DFARS within 60 days. The new requirements: (1) will impact the data/information that the contractors must preserve and control, both on their own systems and the government systems that they operate; and (2) will require contractors to share and report data/information not only with agencies with whom they contract, but also with other designated agencies.

If you provide software to the Government, proposed FAR/DFARS changes will be recommended in one year.  Software that does not meet these new requirements will be “remove[d]” from a host of contract vehicles.

As contractors struggle to understand what these changes mean, when they will be required to implement them, and what it will take to comply, it is important to remember the basics:
 
  • Even if the proposed changes to the FAR/DFARS are finalized, they do not yet apply to your contracts. The Government needs to take some action to incorporate new provisions into your contracts and, if that happens, you may be entitled to additional time or additional money to perform.
  • No software has yet been removed from any contract vehicle. If that happens, that could trigger a modification of your contract or possibly a termination, either of which could result in money to you, but you may have to actively pursue it.

Often in the world of Government Contracts, the Government focuses only on the “Government” part – what it wants.  But there is also the “Contracts” part. The Government doesn’t just get to do whatever it wants; but when it (inevitably) tries to do so, there are people to help you.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.