NEW RULE WILL INCREASE THE NUMBER OF AGENCIES THAT CAN ACCESS YOUR SYSTEMS

DHS’s Cybersecurity and Infrastructure Security Agency and the FBI will have complete access to a contractor’s information systems and personnel when responding to a cyber incident per a FAR rule now under development.  The rule, originally issued in “proposed” status, is based on a May 2021 Executive Order and is intended to implement improvements to the nation’s cybersecurity posture, as well as to implement contracting directives outlined in the National Cyber Strategy released last year.  While there is already a substantial list of government agencies who can come knocking on your door to examine contract-related business, industry groups are nevertheless pushing back on this proposal.  The Chamber of Commerce said in its comments on the proposed rule that the potential access to contractor IT equipment and personnel is “unprecedented” and is a violation of contractor privacy.  They recommended that government officials engage with industry first, before moving forward with a “problematic” policy.  Similarly, the Alliance for Digital Innovation and the Cybersecurity Coalition argued that the proposed rule may inadvertently give government agencies access to sensitive and proprietary information on a contractor’s non-federal customers.  “There’s really no bar or threshold for when that access would be allowed, or scope for what the access would entail, both of which are really big concerns,” said an ADI spokesperson speaking recently.  The comment period on the proposed rule closed February 2nd.  The FAR Council must now address all comments, including contractor concerns, before moving ahead with a final rule. While companies may not be able to submit formal comments, there is still the opportunity to reach out informally to the Office of Federal Procurement Policy to express concerns.  While cybersecurity is an important issue, it may not justify wholesale access by federal agencies to contractor systems.  Once the proverbial camel’s nose is under the tent it can sniff out whatever it wants.