[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Proposed Rules]
[Pages 68055-68067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21328]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 4, 7, 10, 11, 12, 39, and 52

[FAR Case 2021-017; Docket No. FAR-2021-0017; Sequence No. 1]
RIN 9000-AO34


Federal Acquisition Regulation: Cyber Threat and Incident 
Reporting and Information Sharing

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to partially implement an Executive order 
on cyber threats and incident reporting and information sharing for 
Federal contractors and to implement related cybersecurity policies.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
December 4, 2023 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2021-017 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2021-017''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2021-017''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2021-017'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2021-
017'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. Public comments may be submitted as an individual, as an 
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s), 
please check https://www.regulations.gov, approximately two to three 
days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Marissa Ryba, Procurement Analyst, at 314-586-1280 or by email at 
<a href="/cdn-cgi/l/email-protection#cd80acbfa4bebeace39fb4afac8daabeace3aaa2bb"><span class="__cf_email__" data-cfemail="5d103c2f342e2e3c730f243f3c1d3a2e3c733a322b">[email protected]</span></a>. For information pertaining to status, publication 
schedules, or alternate instructions for submitting comments if https://www.regulations.gov cannot be used, contact the Regulatory Secretariat 
Division at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#bef9edffecdbd9eddbddfed9cddf90d9d1c8"><span class="__cf_email__" data-cfemail="c780948695a2a094a2a487a0b4a6e9a0a8b1">[email protected]</span></a>. Please cite FAR Case 
2021-017.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to increase the 
sharing of information about cyber threats and incident information 
between the Government and information technology and operational 
technology service providers, pursuant to Executive Order (E.O.) 14028, 
Improving the Nation's Cybersecurity. The E.O. was signed by the 
President on May 12, 2021, and published in the Federal Register at 86 
FR 26633 on May 17, 2021.
    The E.O. is focused on improving the nation's cybersecurity, in 
part through increased protection of Government networks. As directed 
in sections 2(d) and 2(g)(ii) of the E.O., this proposed rule 
implements Office of Management and Budget (OMB) recommendations from 
section 2(b) of the E.O., and Cybersecurity and Infrastructure Security 
Agency (CISA) recommendations from section 2(g)(i) of the E.O. This 
proposed rule considers recommendations issued by the Department of 
Homeland Security (DHS) pursuant to section 8(b). CISA is an agency 
within DHS. Additionally, this proposed rule supports implementation of 
the National Cyber Strategy by strengthening and standardizing contract 
requirements for cybersecurity and by providing mechanisms to help 
ensure that entities or individuals that knowingly put U.S. information 
or systems at risk, by violating these cybersecurity requirements, are 
held accountable. Finally, this proposed rule implements OMB Memorandum 
M-21-07, Completing the Transition to internet Protocol Version 6 
(IPv6), dated November 19, 2020.
    Recent cybersecurity incidents such as those involving SolarWinds, 
Microsoft Exchange, and the Colonial Pipeline incident are a sobering 
reminder that U.S. public and private sector entities increasingly face 
sophisticated malicious cyber activity from both nation-state actors 
and cyber criminals. These incidents share commonalities, including 
insufficient cybersecurity defenses that leave public and private 
sector entities more vulnerable to incidents. The E.O. makes a 
significant contribution toward modernizing cybersecurity defenses by 
protecting Federal networks, improving information sharing between the 
U.S. Government and the private sector on cyber issues, and 
strengthening the United States' ability to respond to incidents when 
they occur. This proposed rule underscores that the compliance with 
information-sharing and incident-reporting requirements are material to 
eligibility and payment under Government contracts.

II. Discussion and Analysis

    The following summarizes the proposed changes to the FAR:
    FAR 2.101 currently defines information and communication 
technology as information technology and other equipment, systems, 
technologies, or processes, for which the principal function is the 
creation, manipulation, storage, display, receipt, or transmission of 
electronic data and information, as well as any associated content. 
Examples include, but are not limited to, the following: Computers and 
peripheral equipment; information kiosks and transaction machines; 
telecommunications equipment; customer premises equipment; 
multifunction office machines; software; applications; websites; 
videos; and electronic documents. This definition was implemented in 
FAR case 2017-011 (August 11, 2021, 86 FR 44229, effective September 
10, 2021). It has examples primarily aimed at section 508 of the

[[Page 68056]]

Rehabilitation Act of 1973. This FAR case proposes to change the term 
defined in FAR 2.101 to information and communications technology (ICT) 
and to provide additional examples not primarily aimed at section 508: 
telecommunications services, electronic media, Internet of Things (IoT) 
devices, and operational technology. This definition is also proposed 
to be updated to revise the term software to computer software to align 
with the previously defined term of computer software in 2.101.
    The definition of information system currently appearing at 4.1901 
is proposed to be moved to 2.101 with a slight revision to the 
statutory citation.
    New definitions are proposed to be added for IoT devices (derived 
from section 2 of Pub. L. 116-207), operational technology (derived 
from NIST SP 800-160 vol. 2), telecommunications equipment (derived 
from DFARS subpart 239.74), and telecommunications services (derived 
from DFARS subpart 239.74). Additionally, these proposed definitions, 
except for IoT devices will be incorporated into the new clause. FAR 
Case 2021-019, Standardizing Cybersecurity Requirements for 
Unclassified Federal Information Systems, which also implements 
sections of E.O. 14028, is proposing to add some of the same 
definitions.
    FAR 7.105, Contents of written acquisition plans, is proposed to be 
updated to show the IPv6 coverage move to 39.106.
    FAR 11.002, Policy at subparagraph (g) is proposed to be revised to 
point to the IPv6 coverage move.
    FAR 12.202, Market research and description of agency need, is 
proposed to be updated to show the IPv6 coverage move.
    FAR 39.001, Applicability, is proposed to be revised to explain 
that the exceptions and exemptions at subpart 39.2 only apply to 
subpart 39.2.
    FAR 39.002, Definitions, is proposed to be updated to add the 
definition of Supplier's declaration of conformity as derived from NIST 
SP 500-281B.
    FAR 39.101, Policy, is proposed to be updated to show the IPv6 
coverage move.
    FAR 39.106, Contract clause, is proposed to be replaced with a new 
section, internet Protocol version 6 (IPv6). Sections are added at 
39.106-1, Policy and 39.106-2, Waiver of IPv6 requirements. This is a 
revision of coverage moved from FAR 11.002(g). (IPv6 is also covered in 
the new clause.)
    A new section is proposed to be added at 39.107, Response to 
incident reports and requests for information or access.
    The prescription for the contract clause at 52.239-1, Privacy or 
Security Safeguards, is proposed to be moved from 39.106 to 39.108 and 
designated paragraph (a). The prescription for the new contract clause 
at 52.239-ZZ, Incident and Threat Reporting and Incident Response 
Requirements for Products or Services Containing Information and 
Communications Technology, is proposed to be added at paragraph (b), 
and the prescription for the new solicitation provision at 52.239-AA, 
Security Incident Reporting Representation, is proposed to be added at 
paragraph (c).
    The provision at 52.212-3, Offeror Representations and 
Certifications--Commercial Products and Commercial Services, is 
proposed to be revised to add definitions for information and 
communications technology, security incident and security incident 
reports. This provision is also proposed to be updated to require 
offerors to represent that they have submitted all security incident 
reports in a current, accurate and complete manner; and represent that 
they have required each lower-tier subcontractor under certain 
contracts to include the requirements of paragraph (f) of FAR clause 
52.239-ZZ in their subcontract.
    The clause at 52.212-5, Contract Terms and Conditions Required to 
Implement Statutes or Executive Orders--Commercial Products and 
Commercial Services, is proposed to be revised to add the commercial 
product and service usage of the new clause 52.239-ZZ, including flow 
down to subcontracts.
    The clause at 52.213-4, Terms and Conditions--Simplified 
Acquisitions (Other Than Commercial Products and Commercial Services), 
is proposed to be revised to add the commercial product and service 
usage of the new clause 52.239-ZZ, including flow down to subcontracts.
    The prescription reference for the clause 52.239-1, Privacy or 
Security Safeguards, is proposed to be updated.
    A new provision at FAR 52.239-AA, Security Incident Reporting 
Representation, is proposed to be added to require offerors to 
represent that they have submitted all security incident reports in a 
current, accurate and complete manner; and represent whether they have 
required each lower-tier subcontractor to include the requirements of 
paragraph (f) of FAR clause 52.239-ZZ in their subcontract.
    A new clause at FAR 52.239-ZZ, Incident and Threat Reporting and 
Incident Response Requirements for Products or Services Containing 
Information and Communications Technology, is proposed to be added as 
required by section 2(a) of E.O. 14028. It establishes new definitions 
and coverage for: requests for security incident reporting; supporting 
incident response; cyber threat indicators and defensive measures 
reporting; and IPv6.
    The clause at 52.244-6, Subcontracts for Commercial Products and 
Commercial Services, is proposed to be revised to add the subcontract 
flowdown prescription for commercial product and service usage of the 
new clause 52.239-ZZ.

a. Software Bills of Materials

    This rule proposes a new requirement for contractors to develop and 
maintain a software bill of materials (SBOM) for any software used in 
the performance of the contract regardless of whether there is any 
security incident. SBOMs are described at section 10(j) of E.O. 14028. 
Further information is available at the website listed at paragraph 
(c)(3)(i) of 52.239-ZZ. These SBOMs can be critical in incident 
response, as they allow for prompt identification of any sources of a 
known vulnerability. Recognizing the potential impact of this 
requirement, DoD, GSA, and NASA welcome input on the following 
questions regarding anticipated impact of including a requirement to 
develop SBOMs:
    <bullet> How should SBOMs be collected from contractors? What 
specific protections are necessary for the information contained within 
an SBOM?
    <bullet> How should the Government think about the appropriate 
scope of the requirement on contractors to provide SBOMs to ensure 
appropriate security?
    <bullet> What challenges will contractors face in the development 
of SBOMs? What challenges are unique to software resellers? What 
challenges exist regarding legacy software?
    <bullet> What are the appropriate means of evaluating when an SBOM 
must be updated based on changes in a new build or major release?
    <bullet> What is the appropriate balance between the Government and 
the contractor, when monitoring SBOMs for embedded software 
vulnerabilities as they are discovered?

b. CISA Engagement Services

    The rule proposes requirements that will include access by and 
cooperation with CISA engagement services related to threat hunting and 
incident response. The requirements in this proposed rule provide 
mechanisms whereby such access and cooperation can be initiated by 
CISA. The primary purpose of this

[[Page 68057]]

interaction is providing visibility into systems to observe adversary 
activity, which helps CISA drive risk reduction. CISA engagement 
reports may contain recommendations regarding compromised systems.
    It is expected that any action taken in response to such 
recommendations would only be taken after consultation between the 
contractor and the contracting agency, including both the requiring 
activity and the contracting officer.

c. Access to Contractor Information and Information Systems

    Through operation of paragraph (c)(6) of the clause at FAR 52.239-
ZZ, this proposed rule provides CISA, the Federal Bureau of 
Investigation (FBI) in the Department of Justice, and the contracting 
agency full access to applicable contractor information and information 
systems, and to contractor personnel, in response to a security 
incident reported by the contractor or a security incident identified 
by the Government, as required by the E.O.
    DoD, GSA, and NASA welcome input on the following questions:
    <bullet> Do you have any specific concerns with providing CISA, the 
FBI, or the contacting agency full access (see definition at 52.239-
ZZ(a)) information, equipment, and to contractor personnel? Please 
provide specific details regarding any concerns associated with 
providing such access.
    <bullet> For any specific concerns identified, are there any 
specific safeguards, including safeguards that would address the scope 
of full access or how full access would be provided, that would address 
your concerns while still providing the Government with appropriate 
access to conduct necessary forensic analysis regarding security 
incidents?
    <bullet> Subparagraph (g)(i)(C) of section 2 of E.O. 14028 
recognizes the need to identify appropriate and effective protections 
for privacy and civil liberties. Are there any specific safeguards that 
should be considered to ensure that these protections are effectively 
accomplished?

d. Compliance When Operating in a Foreign Country

    The proposed rule requires contractors and subcontractors to report 
security incidents and take additional actions to support incident 
response. DoD, GSA, and NASA recognize that contractors operating in 
certain foreign countries may be subject to laws and regulations from 
those countries regarding what information and access can be provided 
to the U.S. Government.
    For example, a vendor based in a foreign country may be part of the 
defense industrial base for that foreign country while also doing work 
for the U.S. Government as a subcontractor. Another example could be 
where a subcontractor produces an ICT product in a foreign country that 
prevents the supplier from sending information or data located in that 
foreign country to the U.S. Government.
    DoD, GSA, and NASA are considering, for purposes of the final rule, 
options to address this issue.
    DoD, GSA, and NASA welcome input on the following questions:
    <bullet> Are there any specific situations you anticipate where 
your organization would be prevented from complying with the incident 
reporting or incident response requirements of FAR 52.239-ZZ due to 
country laws and regulations imposed by a foreign government? If so, 
provide specific examples that identify which requirements would be 
impacted and the reason that compliance would be prevented by the laws 
of a foreign government or operating environment within a foreign 
country.
    <bullet> Do you anticipate situations where compliance with 
requirements in FAR 52.239-ZZ or alternative compliance methods (if 
added) would be prevented due to country laws and regulations imposed 
by a foreign government. If so, provide specific examples of when you 
expect such situations to occur, citing the authoritative source from 
the foreign government.

e. Security Incident Reporting Harmonization

    The Government needs to be aware of compromises of its data and the 
systems operated on behalf of the Government as soon as possible. 
Because compromises of the ICT described in this proposed rule can 
sometimes undermine Government network resilience and agency missions, 
the proposed rule requires contractors to ``immediately and thoroughly 
investigate all indicators that a security incident may have occurred 
and submit information using the CISA incident reporting portal . . . 
within eight hours of discovery . . . [and to] update the submission 
every 72 hours thereafter until the Contractor, the agency, and/or any 
investigating agencies have completed all eradication or remediation 
activities.''
    Timely incident reporting promotes the security and resilience of 
Government networks by facilitating rapid data analysis to promptly 
identify activity and actions of malicious actors, threats, and 
indicators of compromise. Recognizing that initial reports may not 
contain complete information, even incomplete early reports provide the 
Government an important opportunity to limit the extent of damage to 
its systems and data. Subsequent reporting throughout the lifecycle of 
the incident ensures the Government is able to take the full measure of 
appropriate actions.
    Given the ubiquity of ICT in products and services, contractors may 
offer products and services to the Government that are subject to 
additional incident reporting requirements imposed by other contracts 
or regulatory regimes. When the same underlying systems are subject to 
inconsistent or contradictory incident reporting requirements--or where 
such requirements are duplicative but enforced differently by different 
counterparties or regulators--companies may focus more on compliance 
than on security, which can result in passing higher costs on to 
customers, including the Government.
    DoD, GSA, and NASA recognize there are various reporting timeframes 
for cyber incidents across the Government and industry, including the 
Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, 
which requires reporting of the compromise of DoD controlled 
unclassified information (CUI) (only cyber incidents) within 72 hours 
of discovery; the Homeland Security Acquisition Regulation (HSAR), 
which requires contractors to report any cybersecurity incident that 
could affect CUI within eight hours (or one hour if it involves 
personally identifiable information); the Cyber Incident Reporting for 
Critical Infrastructure Act (CIRCIA), currently the subject of a 
separate rulemaking process (see 6 U.S.C. 681b(b)), which states that a 
``covered entity that experiences a covered cyber incident shall report 
the covered cyber incident to the Agency not later than 72 hours after 
the covered entity reasonably believes that the covered cyber incident 
has occurred''; and the National Industrial Security Program Operating 
Manual (NISPOM), which requires ``promptly'' reporting cyber incidents 
involving classified information (no specified time). The products and 
systems that contractors offer to the Federal Government may be subject 
to these and other incident reporting requirements.
    DOD, GSA, and NASA welcome public comment on incident reporting 
harmonization, including answers to the following questions:
    <bullet> Timeline for reporting: Are there specific situations you 
anticipate where your organization will be required to

[[Page 68058]]

report on different timelines in order to comply with the incident 
reporting requirements outlined in 52.239-ZZ, other Federal contract 
requirements, or other regulations promulgated under Federal law? How 
would your organization handle disparate cyber incident reporting 
timelines in other Federal Government contracting requirements or from 
other regulatory agencies?
    <bullet> Potential effect on incident response: Incident response 
and associated reporting are often iterative processes, with system 
owners updating reports as a situation evolves and more data becomes 
available. What implications are there for your organization, including 
with respect to incident response, to meet disparate timelines for 
incident reporting?
    <bullet> Cost of providing ICT products and services: How much, if 
at all, would you estimate that the initial reporting requirement 
described in this proposed rule could increase the price of the 
products or services your organization provides to the Federal 
Government?
    <bullet> Scope of the contract clause: The proposed rule would 
require the new incident reporting clause to be included in all 
contracts involving ICT that are subject to the FAR, including those 
for commercially available off-the-shelf (COTS) items. This is broader 
in scope than, for instance, the DFARS clause. How would differences in 
scope between reporting requirements affect your organization's 
implementation of this clause?
    <bullet> Definition of incident: The definition of ``security 
incident'' in the proposed rule incorporates the substantive provisions 
of the definition in 44 U.S.C. 3552, which has minor differences from 
with the definition of ``incident'' in Section 2209 of the Homeland 
Security Act of 2002 (as amended) and from the modified definition of 
``covered incident'' used in CIRCIA, which is currently the subject of 
a separate rulemaking process, see 6 U.S.C. 681b(b). What, if any, 
additional implementation issues would your entity face complying with 
different definitions of an incident? How would your entity make the 
distinction between ``imminent jeopardy'' and ``actual jeopardy,'' and 
what effect could that have on the number of reported incidents that 
did not end up actually affecting confidentiality, integrity, and 
availability of information or an information system?

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products, Including Commercially 
Available Off-the-Shelf (COTS) Items, or for Commercial Services

    This rule proposes to add a new clause at FAR 52.239-ZZ, Incident 
and Threat Reporting and Incident Response Requirements for Products or 
Services Containing Information and Communications Technology. The 
clause is prescribed at FAR 39.108(b) for use in all contracts and 
solicitations. Contracting officers will be required to use the clause 
in solicitations and contracts below the simplified acquisition 
threshold, and for commercial products, including COTS items, and for 
commercial services.

IV. Expected Impact of the Rule

    The purpose of this proposed rule is to partially implement E.O. 
14028, Improving the Nation's Cybersecurity. Section 1 of the E.O. 
states: ``The United States faces persistent and increasingly 
sophisticated malicious cyber campaigns that threaten the public 
sector, the private sector, and ultimately the American people's 
security and privacy. The Federal Government must improve its efforts 
to identify, deter, protect against, detect, and respond to these 
actions and actors.''
    As businesses store more of their and their Federal Government 
customers' data online, they are becoming increasingly vulnerable to 
cyber thieves. Dealing with online criminals increases cybersecurity 
costs, which ultimately is passed down to the Federal Government in the 
form of higher prices. Studies have shown several ways that a company's 
failure to protect valuable data can harm their customers. Among these 
are lost revenue, increased costs, stolen intellectual property, and 
operational disruption.
    DoD, GSA, and NASA have performed a regulatory impact analysis 
(RIA) on this proposed rule. The total estimated public costs 
associated with this proposed FAR rule in millions calculated over a 
ten-year period (calculated at a 3-percent and 7-percent discount rate) 
are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                      Public        Government         Total
                             Summary                                 (million)       (million)       (million)
----------------------------------------------------------------------------------------------------------------
Present Value (3 percent).......................................          $8,644            $225          $8,869
Annualized Costs (3 percent)....................................           1,013              26           1,039
Present Value (7 percent).......................................           7,194             185           7,379
Annualized Costs (7 percent)....................................           1,024              26           1,050
----------------------------------------------------------------------------------------------------------------

    The following is a summary from the RIA of the specific compliance 
requirements and the estimated costs of compliance. The RIA includes a 
detailed discussion and explanation about the assumptions and 
methodology used to estimate the cost of this regulatory action, 
including the specific impact and costs for small businesses. It is 
available at https://www.regulations.gov (search for ``FAR Case 2021-
017'' click ``Open Docket,'' and view ``Supporting Documents'').
    This proposed rule will impact all contractors awarded contracts 
where ICT is used or provided in the performance of the contract. The 
Government does not have a way to track awards that may include ICT in 
support of the product or service being offered to the Government, so 
DoD, GSA, and NASA assume that 75 percent of all entities are awarded 
contracts that include some ICT. Of the 75 percent of entities awarded 
contracts with some ICT, it is assumed that 4 percent of those entities 
may have a reportable cyber incident.
    The portions of this proposed rule that are related to cyber 
incident reporting, in some cases, are estimated to apply to a smaller 
percentage of the 4 percent of unique entities (i.e., 10 percent, 20 
percent, 40 percent, or 50 percent of the 4 percent) that have awards 
containing some ICT, because some compliance activities are only 
necessary if required by the Government. For example, it is assumed 
that 10 percent of the 4 percent will be required to provide access for 
additional information for forensic analysis, 20 percent of the 4 
percent will be required to provide incident damage assessment 
information, 40 percent of the 4 percent will be required to submit 
malicious code samples, and 50 percent of the 4 percent will be 
required to develop, store, and maintain customization files and 
provide to the Government. The Government does not have precise 
quantifiable data that will represent Government requests related to 
the various compliance activities, but DoD,

[[Page 68059]]

GSA, and NASA have included these factors as assumptions based on 
subject matter expert input to reflect that the requirements will be 
variable depending on the Government's needs.
    The primary cost impact of this proposed rule is that contractors 
awarded contracts that include ICT will be required to conduct the 
activities below in accordance with FAR clause 52.239-ZZ, as required.

Security Incident Reporting

    Contractors awarded contracts that include ICT and experience a 
reportable security incident shall support security incident reporting 
by:
    <bullet> Providing information regarding reportable incidents to 
the CISA incident reporting portal at https://www.cisa.gov/report and 
to affected agencies, to include providing any updates until 
eradication or remediation activities are completed;
    <bullet> Conducting data preservation and protection and providing 
that information to the Government, if requested;
    <bullet> Developing, storing, and maintaining customization files, 
and providing to the Government, if requested;
    <bullet> Providing to the Government and any 3rd party authorized 
assessor all incident and damage assessment information, if the 
Government elects to conduct an incident or damage assessment;
    <bullet> Submitting malicious code samples or artifacts to CISA 
using the form at https://www.malware.us-cert.gov within 8 hours of 
discovery and isolation of the malicious software. Note that the 
response time for reporting security incidents is 8 hours; and
    <bullet> Providing access to additional information or equipment 
necessary for forensic analysis, upon request by the Government, and 
time to cooperate with the Government on ensuring effective incident 
response, corrections, or fixes and time to confirm validity of request 
from CISA and/or the FBI and notifying the contracting officer.

Security Incident Preparation

    In addition, regardless of whether a reportable security incident 
occurs, contractors for which the clause is prescribed will be required 
to conduct the preparation and maintenance activities described below.
    Contractors awarded contracts that include ICT shall support cyber 
incident reporting, should an incident occur in the future, by:
    <bullet> Providing and maintaining a software bill of materials 
(SBOM);
    <bullet> Subscribing to the automated indicator sharing (AIS) 
capability or successor technology during the performance of the 
contract; and
    <bullet> Sharing cyber threat indicators and recommended defensive 
measures in an automated fashion using AIS during the performance of 
the contract.

IPv6 Implementation

    In addition, contractors for which the clause is prescribed will 
also be required to complete the following IPv6 implementation 
activities, as required.
    The United States Government is transitioning to deliver its 
information services, operate its networks, and access the services of 
others using only IPv6 (see OMB Memorandum M-21-07, Completing the 
Transition to internet Protocol Version 6 (IPv6), dated November 19, 
2020). Contractors awarded contracts that include ICT products and 
services that use internet protocols will implement IPv6 by:
    <bullet> Providing IPv6 capabilities required (see USGv6 Profile 
NIST SP 500-267B) support the Government's transition to IPv6 (OMB 
Memorandum M-21-07);
    <bullet> Documenting the IPv6 capabilities provided by submitting a 
corresponding supplier's declaration of conformity, in accordance with 
the USGv6 Test Program (see NIST SP 500-281A); and
    <bullet> Developing and providing an IPv6 Implementation Plan to 
the Government that details how the contractor plans to incorporate 
applicable required capabilities recommended in the current version of 
NIST SP 500-267B into products and services provided to the Government, 
for contracts for which the agency CIO has approved a waiver of the 
IPv6 requirements above.

Benefits of This Proposed Rule

    The theft of intellectual property and sensitive information from 
all U.S. industrial sectors due to malicious cyber activity threatens 
economic security and national security. The Council of Economic 
Advisors estimates that malicious cyber activity costs the U.S. economy 
between $57 billion and $109 billion in 2016. Over a ten-year period, 
that burden would equate to an estimated $570 billion to $1.09 trillion 
dollars in costs. The purpose of this proposed rule is to protect the 
nation's economic and national security which can result in long-term 
economic and national security impacts.
    Furthermore, the purpose of this proposed rule is to partially 
implement Executive Order (E.O. 14028, Improving the Nation's 
Cybersecurity. E.O. 14028 states:

    ``The United States faces persistent and increasingly 
sophisticated malicious cyber campaigns that threaten the public 
sector, the private sector, and ultimately the American people's 
security and privacy. The Federal Government must improve its 
efforts to identify, deter, protect against, detect, and respond to 
these actions and actors. The Federal Government must also carefully 
examine what occurred during any major cyber incident and apply 
lessons learned. But cybersecurity requires more than government 
action. Protecting our Nation from malicious cyber actors requires 
the Federal Government to partner with the private sector. The 
private sector must adapt to the continuously changing threat 
environment, ensure its products are built and operate securely, and 
partner with the Federal Government to foster a more secure 
cyberspace. In the end, the trust we place in our digital 
infrastructure should be proportional to how trustworthy and 
transparent that infrastructure is, and to the consequences we will 
incur if that trust is misplaced.
    Incremental improvements will not give us the security we need; 
instead, the Federal Government needs to make bold changes and 
significant investments in order to defend the vital institutions 
that underpin the American way of life. The Federal Government must 
bring to bear the full scope of its authorities and resources to 
protect and secure its computer systems, whether they are cloud-
based, on-premises, or hybrid. The scope of protection and security 
must include systems that process data (information technology (IT)) 
and those that run the vital machinery that ensures our safety 
(operational technology (OT)).
    It is the policy of my Administration that the prevention, 
detection, assessment, and remediation of cyber incidents is a top 
priority and essential to national and economic security. The 
Federal Government must lead by example. All Federal Information 
Systems should meet or exceed the standards and requirements for 
cybersecurity set forth in and issued pursuant to this order.''

    IPv6 is the next-generation internet protocol, designed to replace 
version 4 (IPv4) that has been in use since 1983. The global demand for 
IP addresses has grown exponentially with the ever-increasing number of 
users, devices, and virtual entities connecting to the internet, 
resulting in the exhaustion of readily available IPv4 addresses. A full 
transition to IPv6 is the only viable option to ensure future growth 
and innovation in internet technology and services.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the

[[Page 68060]]

importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This is a 
significant regulatory action under section 3(f)(1) of E.O. 12866, 
Regulatory Planning and Review, dated September 30, 1993, as amended by 
E.O. 14094, Modernizing Regulatory Review, and, therefore, was subject 
to review under Section 6(b) of E.O. 12866.

VI. Regulatory Flexibility Act

    This proposed rule, when finalized, may have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601-612. An Initial Regulatory 
Flexibility Analysis (IRFA) has been performed and is summarized as 
follows:

    DoD, GSA, and NASA are proposing to revise the FAR to increase 
the sharing of information about cyber threats and incident 
information between the Government and information technology and 
operational technology service providers, pursuant to Executive 
Order 14028, Improving the Nation's Cybersecurity (the E.O.). The 
E.O. was signed by the President on May 12, 2021, and published in 
the Federal Register at 86 FR 26633 on May 17, 2021.
    The E.O. is focused on improving the nation's cybersecurity, in 
part through increased protection of Federal Government networks. 
This proposed rule would implement sections 2(d) (implementing OMB 
recommendations from section 2(b)) and 2(g)(ii) (implementing CISA 
recommendations from section 2(g)(i)) of the E.O., including 
consideration of the recommendations issued by the DHS pursuant to 
section 8(b). Additionally, this proposed rule would implement 
related cybersecurity policy in OMB Memorandum M-21-07, Completing 
the Transition to internet Protocol Version 6 (IPv6), dated November 
19, 2020.
    Recent cybersecurity incidents such as those involving 
SolarWinds, Microsoft Exchange, and the Colonial Pipeline incident 
are a sobering reminder that U.S. public and private sector entities 
increasingly face sophisticated malicious cyber activity from both 
nation-state actors and cyber criminals. These incidents share 
commonalities, including insufficient cybersecurity defenses that 
leave public and private sector entities more vulnerable to 
incidents. The E.O. makes a significant contribution toward 
modernizing cybersecurity defenses by protecting Federal networks, 
improving information-sharing between the U.S. Government and the 
private sector on cyber issues, and strengthening the United States' 
ability to respond to incidents when they occur.
    The objective is to implement sections 2(d) and 2(g)(ii), of 
Executive Order 14028. Promulgation of the FAR authorized by 40 
U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy 
provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
    The proposed rule may affect a portion of entities that contract 
with the Federal Government. Based on data obtained from the Federal 
Procurement Data System for fiscal years 2019 through 2021, an 
average of 94,035 entities, of which 61,797 are small entities, were 
awarded Federal contracts. It is assumed that 75 percent of the 
94,035 entities awarded contracts are awarded contracts with some 
ICT, or 70,526 entities, of which 46,348 are small business 
entities. Portions of this proposed rule would apply to the 70,526 
entities, including the 46,348 small business entities.
    In addition, DoD, GSA, and NASA estimate that portions of the 
proposed rule will apply to different percentages of the 70,526 
entities depending on how often the Government requests the data and 
information associated with each requirement.
    The proposed rule would institute compliance requirements for 
contractors to implement requirements to support incident response 
and to submit information on all reportable incidents involving a 
product or service provided to the Government that includes ICT, or 
the information system used in developing or providing the product 
or service.
    The Government has no way to know how often a particular 
requirement will impact the public, except for estimates of 4 
percent for cyber incident reporting and 40 percent for malware 
submission based on historical data, but the Government otherwise 
assumes the impact for other activities will occur for 10 percent, 
20 percent, or 50 percent of the entities that have contract awards 
containing ICT for which there is a reportable cyber incident. The 
portions of this proposed rule that are related to cyber incident 
reporting, in some cases, are estimated will apply to a smaller 
percentage of the 4 percent of unique entities (i.e., 10 percent, 20 
percent, 40 percent, or 50 percent of the 4 percent) that have 
awards containing some ICT, because some compliance activities are 
only necessary if required by the Government. For example, it is 
assumed that 10 percent of the 4percent will be required to provide 
access for additional information for forensic analysis, 20 percent 
of the 4 percent will be required to provide incident damage 
assessment information, 40 percent of the 4 percent will be required 
to submit malicious code samples, and 50 percent of the 4 percent 
will be required to develop, store, and maintain customization 
files, and provide to the Government. The Government does not have 
precise quantifiable data that will represent Government requests 
related to the various compliance activities but DoD, GSA, and NASA 
have included these factors as assumptions to reflect that the 
requirements will be variable depending on the Government's needs.
    This proposed rule will establish safeguards that will increase 
the sharing of information about cyber threats and incident 
information between the Government and information technology and 
operational technology service providers.
    The proposed rule includes reporting or recordkeeping 
requirements. The following are compliance requirements of the 
proposed rule:
    (a) Regulatory familiarization.
    (b) 52.239-ZZ, paragraph (b), for contractors to support 
security incident reporting including: providing information 
regarding reportable incidents to CISA at https://www.cisa.gov/report, and to affected agencies, and any updates until eradication 
or remediation activities are completed.
    (c) 52.239-ZZ, paragraph (c)(1), for contractors to support 
incident response by conducting data preservation and protection and 
providing to the Government, if requested.
    (d) 52.239-ZZ, paragraph (c)(2), for contractors to support 
incident response by developing, storing, and maintaining 
customization files, and providing to the Government, if requested.
    (e) 52.239-ZZ, paragraph (c)(3), for contractors to support 
incident response by developing and maintaining a software bill of 
materials (SBOM) and providing or providing access to the SBOM (and 
its updates) to the Government.
    (f) 52.239-ZZ, paragraph (c)(4), for contractors to support 
incident response by providing to the Government and any 3rd party 
authorized assessor all incident and damage assessment information 
identified in clause paragraphs (c)(1)-(3), if the Government elects 
to conduct an incident or damage assessment.
    (g) 52.239-ZZ, paragraph (c)(5), for contractors to support 
incident response by, if applicable, submitting malicious code 
samples or artifacts to CISA using the form at https://www.malware.us-cert.gov within 8 hours of discovery and isolation of 
the malicious software.
    (h) 52.239-ZZ, paragraph (c)(6), for contractors to support 
incident response by providing access (see (c)(6)(i)) to additional 
information or equipment necessary for forensic analysis, upon 
request by the Government, and time to cooperate with the Government 
on ensuring effective incident response, corrections, or fixes, and 
time (see (c)(6)(ii)) to confirm validity of request from CISA by 
contacting the CISA Hotline and notifying the contracting officer.
    (i) 52.239-ZZ, paragraph (d)(1), for contractors to support 
incident response by subscribing to the Automated Indicator Sharing 
(AIS) capability or successor technology during the performance of 
the contract.
    (j) 52.239-ZZ, paragraph (d)(2), for contractors to support 
incident response by sharing cyber threat indicators and recommended 
defensive measures in an automated fashion using AIS during the 
performance of the contract.
    (k) 52.239-ZZ, paragraph (e) for contractors to support incident 
response by implementing delta capabilities required for moving to 
IPv6 for ICT products and services using internet protocol 
(capabilities in NIST SP 500-267B).
    (l) 52.239-ZZ, paragraph (e) for contractors to provide a 
corresponding supplier's declaration of conformity in accordance 
with the USGv6 Test Program (see NIST SP 500-281A).
    (m) 52.239-ZZ, paragraph (e) for contractors, for which the 
agency CIO has approved a waiver of IPv6 requirements, to

[[Page 68061]]

develop and provide an IPv6 Implementation Plan to the Government 
that details how the contractor plans to incorporate applicable 
mandatory capabilities recommended in the current version of NIST SP 
500-267B into products and services provided to the Government.
    (n) 52.239-AA, paragraph (b) for offerors to represent that they 
have submitted all security incident reports in a current, accurate 
and complete manner; and represent that they have required each 
lower-tier subcontractor to include the requirements of paragraph 
(f) of FAR clause 52.239-ZZ in their subcontract.
    The proposed rule would not duplicate, overlap, or conflict with 
any other Federal rules.
    There are no available alternatives to the proposed rule 
identified to accomplish the desired objective of the E.O. 14028.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this proposed rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2021-017), 
in correspondence.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies because 
the proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat Division has submitted a 
request for approval of a new information collection requirement 
concerning incident and threat reporting and incident response 
requirements to the Office of Management and Budget.
    The annual reporting burden is estimated as follows:

A. Public Burden for This Collection of Information

    (1) Submitting information regarding reportable incidents to be 
included in the CISA incident reporting portal at https://www.cisa.gov/report.
    DoD, GSA, and NASA estimate that providing this information will 
take 4 hours applied to 2,821 entities, of which 1,854 are small 
business entities. The number of entities are assumed based on an 
assumption that 75 percent of all entities awarded contracts (94,035) 
are awarded contracts with some ICT, and of that 75 percent, it is 
assumed that 4 percent of the entities will have a reportable cyber 
incident for which this information collection activity applies.
    Number of respondents: 2,821.
    Responses per respondent: 4.
    Total annual responses: 11,284.
    Hours per response: 4.
    Total burden hours: 45,136.
    (2) Preserving data resulting from data preservation activities and 
conducting data preservation activities.
    It is estimated that this activity will take 7.5 hours to preserve 
data and conduct data preservation activities applied to 2,821 
entities, of which 1,854 are small business entities, or 4 percent of 
the 75 percent of entities impacted by this portion of the proposed 
rule.
    Number of respondents: 2,821.
    Responses per respondent: 1.
    Total annual responses: 2,821.
    Hours per response: 7.5.
    Total burden hours: 21,158.
    (3) Developing and maintaining customization files.
    It is estimated that this activity will take 5 hours to develop and 
maintain customization files applied to 35,263 entities, of which 
23,174, are small business entities, or 50 percent of the 75 percent of 
entities impacted by this portion of the proposed rule.
    Number of respondents: 35,263.
    Responses per respondent: 1.
    Total annual responses: 35,263.
    Hours per response: 5.
    Total burden hours: 176,315.
    (4) Developing and providing a software bill of materials (SBOM), 
if required.
    It is estimated that this activity will take 80 hours to develop 
and maintain an SBOM applied to 70,526 entities, of which 46,348 are 
small business entities, or the 75 percent of entities impacted by this 
portion of the proposed rule.
    Number of respondents: 70,526.
    Responses per respondent: 1.
    Total annual responses: 70,526.
    Hours per response: 80.
    Total burden hours: 5,642,080.
    (5) Providing incident and damage assessment information, if 
requested.
    It is estimated that this activity will take 2 hours to submit the 
preserved data and images, the SBOM, if requested, and the 
customization files applied to 564 entities, of which 371 are small 
business entities, or 20 percent of 4 percent of the 75 percent of 
entities impacted by this portion of the proposed rule.
    Number of respondents: 564.
    Responses per respondent: 1.
    Total annual responses: 564.
    Hours per response: 2.
    Total burden hours: 1,128.
    (6) Providing malicious code samples or artifacts, if available.
    It is estimated that this activity will take 0.5 hours to share the 
malicious code samples or artifacts, applied to 1,128 entities, of 
which 742 are small business entities, or 40 percent of 4 percent of 
the 75 percent of entities impacted by this portion of the proposed 
rule.
    Number of respondents: 1,128.
    Responses per respondent: 1.
    Total annual responses: 1,128.
    Hours per response: 0.5.
    Total burden hours: 564.
    (7) Sharing threat indicator information.
    It is estimated that this activity will take 1 hour per week to 
share the threat indicator information, or 52 hours per year, applied 
to 70,526 entities, of which 46,348 are small business entities to be 
shared via the Automated Indicator Sharing (AIS), of 75 percent of 
entities, which are impacted by this portion of the proposed rule.
    Number of respondents: 70,526.
    Responses per respondent: 1.
    Total annual responses: 70,526.
    Hours per response: 52.
    Total burden hours: 3,667,352.
    (8) Developing a supplier's declaration of conformity (regarding 
IPv6) and providing, if required.
    It is estimated that this activity will take 8 hours applied to 
70,526 entities, of which 46,348 are small business entities, or 75 
percent of entities impacted by this portion of the proposed rule.
    Number of respondents: 70,526.
    Responses per respondent: 1.
    Total annual responses: 70,526.
    Hours per response: 8.
    Total burden hours: 564,208.
    (9) Developing and providing an IPv6 Implementation Plan, if 
required.
    It is estimated that to develop and provide an IPv6 Implementation 
Plan, if required, will take 20 hours applied to 705 entities, of which 
463 are small business entities, or 1 percent of 75 percent of entities 
impacted by this portion of the proposed rule.
    Number of respondents: 705.
    Responses per respondent: 1.
    Total annual responses: 705.
    Hours per response: 20.
    Total burden hours: 14,100.
    The total public burden is below:
    Number of respondents: 254,880.
    Responses per respondent: 1.0332.
    Total annual responses: 263,343.
    Hours per response: 38.47.
    Total hours: 10,132,040.

B. Request for Comments Regarding Paperwork Burden

    Submit comments on this collection of information no later than 
December 4, 2023 through https://www/

[[Page 68062]]

regulations.gov and follow the instructions on the site. All items 
submitted must cite OMB Control No. 9000-XXXX, Incident and Threat 
Reporting and Incident Response Requirements. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting. If there are difficulties submitting comments, 
contact the GSA Regulatory Secretariat Division at 202-501-4755 or 
<a href="/cdn-cgi/l/email-protection#5f180c1e0d3a380c3a3c1f382c3e71383029"><span class="__cf_email__" data-cfemail="0e495d4f5c6b695d6b6d4e697d6f20696178">[email protected]</span></a>.
    Public comments are particularly invited on:
    <bullet> The necessity of this collection of information for the 
proper performance of the functions of Federal Government acquisitions, 
including whether the information will have practical utility;
    <bullet> The accuracy of the estimate of the burden of this 
collection of information;
    <bullet> Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> Ways to minimize the burden of the collection of 
information on respondents, including the use of automated collection 
techniques or other forms of information technology.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat Division by 
calling 202-501-4755 or emailing <a href="/cdn-cgi/l/email-protection#6e293d2f3c0b093d0b0d2e091d0f40090118"><span class="__cf_email__" data-cfemail="0a4d594b586f6d596f694a6d796b246d657c">[email protected]</span></a>. Please cite OMB 
Control Number 9000-XXXX, Incident and Threat Reporting and Incident 
Response Requirements, in all correspondence.

List of Subjects in 48 CFR Parts 1, 2, 4, 7, 10, 11, 12, 39, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2, 
4, 7, 10, 11, 12, 39, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 2, 4, 7, 10, 11, 12, 39, 
and 52 continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. In section 1.106 amend in the table following the introductory text, 
by adding in numerical order, entry for ``52.239-ZZ'' and its 
corresponding OMB Control Number ``9000-XXXX'' to read as follows.


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                            OMB control
                       FAR segment                              No.
------------------------------------------------------------------------
 
                                * * * * *
52.239-ZZ...............................................       9000-XXXX
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

PART 2--DEFINITIONS OF WORDS AND TERMS

0
3. Amend section 2.101 in paragraph (b)(2) by--
0
a. Removing the definition ``Information and communication technology 
(ICT)''; and adding the definition ``Information and communications 
technology (ICT)'' in its place; and
0
b. Adding in alphabetical order the definitions ``Information system'', 
``Internet of Things (IoT) devices'', ``Operational technology'', 
``Telecommunications equipment'', and ``Telecommunications services''.
    The revision and additions read as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Information and communications technology (ICT) means information 
technology and other equipment, systems, technologies, or processes, 
for which the principal function is the creation, manipulation, 
storage, display, receipt, or transmission of electronic data and 
information, as well as any associated content. Examples of ICT include 
but are not limited to the following: Computers and peripheral 
equipment; information kiosks and transaction machines; 
telecommunications equipment; telecommunications services; customer 
premises equipment; multifunction office machines; computer software; 
applications; websites; electronic media; electronic documents; 
Internet of Things (IoT) devices; and operational technology.
* * * * *
    Information system means a discrete set of information resources 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of information (44 U.S.C. 3502(8)). 
Information resources, as used in this definition, includes any ICT.
* * * * *
    Internet of Things (IoT) devices means, consistent with section 2 
paragraph 4 of Public Law 116-207, devices that--
    (1) Have at least one transducer (sensor or actuator) for 
interacting directly with the physical world, have at least one network 
interface, and are not conventional information technology devices, 
such as smartphones and laptops, for which the identification and 
implementation of cybersecurity features is already well understood; 
and
    (2) Can function on their own and are not only able to function 
when acting as a component of another device, such as a processor.
* * * * *
    Operational technology means programmable systems or devices that 
interact with the physical environment (or manage devices that interact 
with the physical environment). These systems or devices detect or 
cause a direct change through the monitoring and/or control of devices, 
processes, and events. Examples of operational technology include 
industrial control systems, building management systems, fire control 
systems, and physical access control mechanisms (NIST SP 800-160 vol 
2).
* * * * *
    Telecommunications equipment means equipment used to transmit, 
emit, or receive signals, signs, writing, images, sounds, or 
intelligence of any nature, by wire, cable, satellite, fiber optics, 
laser, radio, or any other electronic, electric, electromagnetic, or 
acoustically coupled means.
    Telecommunications services means services used to transmit, emit, 
or receive signals, signs, writing, images, sounds, or intelligence of 
any nature, by wire, cable, satellite, fiber optics, laser, radio, or 
any other electronic, electric, electromagnetic, or acoustically 
coupled means.
* * * * *

PART 4--ADMINISTRATIVE AND INFORMATION MATTERS

0
4. Amend section 4.1202 by adding paragraph (a)(35) to read as follows:


4.1202  Solicitation provision and contract clause.

    (a) * * *
    (35) 52.239-AA, Security Incident Reporting Representation.
* * * * *

[[Page 68063]]

4.1901  [Amended]

0
5. Amend section 4.1901 by removing the definition ``Information 
system''.

PART 7--ACQUISITION PLANNING


7.103  [Amended]

0
6. Amend section 7.103 by removing from paragraph (q) ``information and 
communication technology'' and adding ``information and communications 
technology'' in its place.
0
7. Amend section 7.105 by revising paragraph (b)(5)(iii) to read as 
follows:


7.105  Contents of written acquisition plans.

* * * * *
    (b) * * *
    (5) * * *
    (iii) For ICT acquisitions using internet Protocol, discuss whether 
the requirements documents include the internet Protocol Version 6 
(IPv6) requirements specified in 39.106-1 or a waiver of these 
requirements has been granted by the agency's Chief Information Officer 
in accordance with 39.106-2.
* * * * *

PART 10--MARKET RESEARCH


10.001  [Amended]

0
8. Amend section 10.001 by removing from paragraph (a)(3)(ix) 
''information and communication technology'' and adding ``information 
and communications technology'' in its place.

PART 11--DESCRIBING AGENCY NEEDS

0
9. Amend section 11.002 by--
0
a. Removing from paragraph (f)(1)(i) ''information and communication 
technology'' and adding ``information and communications technology'' 
in its place; and
0
b. Revising paragraph (g).
    The revision reads as follows:


11.002  Policy.

* * * * *
    (g) For information on internet Protocol Version 6 (IPv6) see 
39.106.
* * * * *

PART 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

0
10. Amend section 12.202 by--
0
a. Removing from paragraph (d) ``information and communication 
technology'' and adding ``information and communications technology'' 
in its place; and
0
b. revising paragraph (e).
    The revision reads as follows:


12.202  Market research and description of agency need.

* * * * *
    (e) When acquiring information technology using internet Protocol, 
agencies must include the appropriate internet Protocol version 6 
(IPv6) compliance requirements in accordance with 39.106 and 39.108.

PART 39--ACQUISITION OF INFORMATION AND COMMUNICATIONS TECHNOLOGY

0
11. The heading for part 39 is revised to read as set forth above.
0
12. Amend section 39.000 by revising paragraph (b) to read as follows:


39.000  Scope of part.

* * * * *
    (b) Information and communications technology (ICT), as well as 
supplies and services that use ICT (see 2.101(b)).
0
13. Amend section 39.001 by revising the first sentence in paragraph 
(a), and paragraph (b) to read as follows:


39.001  Applicability.

* * * * *
    (a) ICT, as well as supplies and services that use ICT, which 
includes information technology, Internet of Things (IoT) devices 
(e.g., connected appliances, wearables), and operational technology, by 
or for the use of agencies except for acquisitions of information 
technology for national security systems. * * *
    (b) ICT by or for the use of agencies or for the use of the public. 
When applying the policy in subpart 39.2, see the exceptions at 39.204 
and exemptions at 39.205.
0
14. Amend section 39.002 by adding in alphabetical order the definition 
``Supplier's declaration of conformity'' to read as follows:


39.002  Definitions.

* * * * *
    Supplier's declaration of conformity means a standardized format to 
document the USGv6 capabilities supported by a specific product or set 
of products and provides traceability back to the accredited laboratory 
that conducted the tests (see NIST SP 500-281B).
0
15. Amend section 39.101 by revising paragraph (d) to read as follows:


39.101  Policy.

* * * * *
    (d) When acquiring information and communications technology (ICT) 
using internet Protocol, agencies must include the appropriate internet 
Protocol version 6 (IPv6) compliance requirements in accordance with 
39.106.
* * * * *
0
16. Revise section 39.106 and add sections 39.107 and 39.108 to read as 
follows:


39.106  internet Protocol version 6 (IPv6).


39.106-1  Policy.

    ICT products and services must conform, at a minimum, to the IPv6 
mandatory capabilities in the current version of the USGv6 Profile 
(National Institute of Standards and Technology (NIST) SP 500-267B) or, 
if the agency Chief Information Officer (CIO) grants a waiver, provide 
for a product/service-specific IPv6 implementation plan (see 39.106-
2(c)). See Office of Management and Budget (OMB) Memorandum M-21-07, 
Completing the Transition to internet Protocol Version 6 (IPv6), dated 
November 19, 2020.


39.106-2  Waiver of IPv6 requirements.

    (a) The agency's CIO may grant a waiver for any of the IPv6 
mandatory capabilities specified in 39.106-1.
    (b) The contracting officer shall coordinate with the requiring 
activity to verify if the agency CIO has waived any IPv6 mandatory 
capabilities, in accordance with agency procedures.
    (c) If a waiver has been granted by the agency's CIO, the 
contracting officer shall include that fact in the solicitation and 
also include a request for documentation from offerors detailing 
explicit plans, including timelines, to incorporate the IPv6 mandatory 
capabilities in NIST SP 500-267B.


39.107  Response to incident reports and requests for information or 
access.

    (a) If the contracting officer receives a notice of a request for 
access to contractor information or equipment from the Cybersecurity 
and Infrastructure Security Agency (CISA), the Federal Bureau of 
Investigation (FBI), or the contractor, the contracting officer shall--
    (1) Acknowledge the request, though acknowledgment is not a 
required condition to trigger contractor response pursuant to clause 
52.239-ZZ(c)(6);
    (2) Facilitate the request, including through coordination, as 
appropriate, with the requiring activity, senior agency official for 
privacy, agency chief information security officer, agency legal 
counsel, and any other agency officials identified in the notification 
requirement;
    (3) Document the contract file to reflect the access request and 
any access granted pursuant to the request; and
    (4) If notified by CISA or the FBI that retention of records 
pursuant to

[[Page 68064]]

paragraph (c)(1)(ii) of 52.239-ZZ is necessary beyond 180 days, the 
contracting officer shall instruct the contractor to retain such 
records as necessary.
    (b) If the contracting officer receives a request from CISA, the 
agency CIO or Chief Information Security Officer, or the relevant 
program office for access to a software bill of materials as provided 
under paragraph (c)(3) of 52.239-ZZ, the contracting officer shall 
provide such access in a timely manner in accordance with agency 
procedures.
    (c) If the contracting officer receives a notification that an 
incident report has been filed by a contractor pursuant to paragraph 
(b)(1) of 52.239-ZZ, the contracting officer shall--
    (1) Notify the requiring activity;
    (2) If the affected contract is an indefinite delivery contract, 
notify any contracting officers that placed orders under the contract; 
and
    (3) Follow any additional agency procedures.


39.108  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 52.239-1, Privacy or Security Safeguards, in 
solicitations and contracts for information technology that require 
security of information technology, and/or are for the design, 
development, or operation of a system of records using commercial 
information technology services or support services.
    (b) The contracting officer shall insert the clause at 52.239-ZZ, 
Incident and Threat Reporting and Incident Response Requirements for 
Products or Services Containing Information and Communications 
Technology, in all solicitations and contracts.
    (c) The contracting officer shall insert the provision at 52.239-
AA, Security Incident Reporting Representation, in all solicitations.
0
17. The heading for subpart 39.2 is revised to read as follows:

Subpart 39.2--Information and Communications Technology 
Accessibility


39.201  [Amended]

0
18. Amend section 39.201 by removing from paragraph (a) ``information 
and communication technology'' and adding ``information and 
communications technology'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
19. Amend section 52.204-8 by revising the date of the clause and 
adding paragraph (c)(1)(xxvi) to read as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (DATE)

* * * * *
    (c)(1) * * *
    (xxvi) 52.239-AA, Security Incident Reporting Representation. 
This provision applies to all solicitations.

* * * * *
0
20. Amend section 52.212-3 by--
0
a. Revising the date of the provision;
0
b. Removing from the introductory text ``(c) through (v)'' and adding 
``(c) through (w)'' in its place;
0
c. In paragraph (a), adding in alphabetical order the definitions 
``Information and communications technology'', ``Security incident'', 
and ``Security incident reports'';
0
d. Removing from paragraph (b)(2) ``Offeror to identify the applicable 
paragraphs at (c) through (v)'' and adding ``Offeror to identify the 
applicable paragraphs at (c) through (w)'' in its place; and
0
e. Adding paragraph (w).
    The revision and additions read as follows:


52.212-3  Offeror Representations and Certifications--Commercial 
Products and Commercial Services.

* * * * *

Offeror Representations and Certifications--Commercial Products and 
Commercial Services (DATE)

* * * * *
    (a) * * *
    Information and communications technology has the meaning given 
in paragraph (a) of FAR clause 52.239-ZZ, Incident and Threat 
Reporting and Incident Response Requirements for Products or 
Services Containing Information and Communications Technology.
* * * * *
    Security incident has the meaning given in paragraph (a) of FAR 
clause 52.239-ZZ.
    Security incident reports means the submission of information on 
security incidents as required by paragraphs (b)(1) through (b)(3) 
of FAR clause 52.239-ZZ.
* * * * *
    (w) Security Incident Reporting Representation.
    (1) The Offeror represents that it has submitted in a current, 
accurate, and complete manner, all security incident reports 
required by current existing contracts between the Offeror and the 
Government.
    (2) Under current existing contracts between the Offeror and the 
Government where information and communications technology is used 
or provided in the performance of a subcontract, the Offeror 
represents that it has required each first tier subcontractor to:
    (i) Notify the Offeror within 8 hours of discovery of a security 
incident, as required by paragraph (f) of FAR clause 52.239-ZZ; and
    (ii) Require the next lower tier subcontractor to include the 
requirement to notify the prime Contractor and next higher tier 
subcontractor within 8 hours of discovery of a security incident, 
and include this reporting requirement and continued flow down 
requirement in any lower tier subcontracts, in this and other 
executive agency contracts, as required by paragraph (f) of FAR 
clause 52.239-ZZ.
* * * * *
0
21. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(63) and (64) as paragraphs (b)(64) and 
(65), and adding a new paragraph (b)(63);
0
c. Redesignating paragraph (e)(1)(xxiv) as paragraph (e)(1)(xxv), and 
adding a new paragraph (e)(1)(xxiv);
0
d. In Alternate II:
0
i. Revising the date of Alternate II; and
0
ii. Redesignating paragraph (e)(1)(ii)(W) as paragraph (e)(1)(ii)(X), 
and adding a new paragraph (e)(1)(ii)(W).
    The revisions and additions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (DATE)

* * * * *
    (b) * * *
    __(63) 52.239-ZZ, Incident and Threat Reporting and Incident 
Response Requirements for Products or Services Containing 
Information and Communications Technology (DATE) (E.O. 14028).
* * * * *
    (e)(1) * * *
    (xxiv) 52.239-ZZ, Incident and Threat Reporting and Incident 
Response Requirements for Products or Services Containing 
Information and Communications Technology (DATE) (E.O. 14028). Flow 
down required in accordance with paragraph (f) of FAR clause 52.239-
ZZ.
* * * * *
    Alternate II (DATE) * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (W) 52.239-ZZ, Incident and Threat Reporting and Incident 
Response

[[Page 68065]]

Requirements for Products or Services Containing Information and 
Communications Technology (DATE) (E.O. 14028). Flow down required in 
accordance with paragraph (f) of FAR clause 52.239-ZZ.
0
22. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a)(2)(vii) ``(SEP 2023)'' and adding 
``(DATE)'' in its place; and
0
c. Redesignating paragraph (b)(1)(xxi) as paragraph (b)(1)(xxii) and 
adding a new paragraph (b)(1)(xxi).
    The revision and addition read as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (DATE)

* * * * *
    (b) * * *
    (1) * * *
    (xxi) 52.239-ZZ, Incident and Threat Reporting and Incident 
Response Requirements for Products or Services Containing 
Information and Communications Technology (DATE) (E.O. 14028). 
(Applies to all solicitations and contracts.)
* * * * *


52.239-1  [Amended]

0
23. Amend section 52.239-1 by removing from the introductory text 
``39.106'' and adding ``39.108(a)'' in its place.
0
24. Add sections 52.239-AA and 52.239-ZZ to read as follows:


52.239-AA  Security Incident Reporting Representation.

    As prescribed in 39.108(c), insert the following provision:

Security Incident Reporting Representation (DATE)

    (a) Definitions. As used in this provision: Information and 
communications technology, and Security incident have the meanings 
given in paragraph (a) of FAR clause 52.239-ZZ, Incident and Threat 
Reporting and Incident Response Requirements for Products or 
Services Containing Information and Communications Technology.
    Security incident reports means the submission of information on 
security incidents as required by paragraphs (b)(1) through (b)(3) 
of FAR clause 52.239-ZZ.
    (b) Representation.
    (1) The Offeror represents that it has submitted in a current, 
accurate, and complete manner, all security incident reports 
required by current existing contracts between the Offeror and the 
Government.
    (2) Under current existing contracts containing FAR clause 
52.239-ZZ between the Offeror and the Government where information 
and communications technology is used or provided in the performance 
of a subcontract, the Offeror represents that it has required each 
first tier subcontractor to--
    (i) Notify the Offeror within 8 hours of discovery of a security 
incident, as required by paragraph (f) of FAR clause 52.239-ZZ; and
    (ii) Require the next lower tier subcontractor to include the 
requirement to notify the prime Contractor and next higher tier 
subcontractor within 8 hours of discovery of a security incident, 
and include this reporting requirement and continued flow down 
requirement in any lower tier subcontracts, in this and other 
executive agency contracts, as required by paragraph (f) of FAR 
clause 52.239-ZZ.
(End of provision)


52.239-ZZ  Incident and Threat Reporting and Incident Response 
Requirements for Products or Services Containing Information and 
Communications Technology.

    As prescribed in 39.108(b), insert the following clause:

Incident and Threat Reporting and Incident Response Requirements for 
Products or Services Containing Information and Communications 
Technology (DATE)

    (a) Definitions. As used in this clause--
    Active storage means storing data in a manner that facilitates 
frequent use and ease of access.
    Cold data storage means storing data in a manner that minimizes 
costs while still allowing some level of access and use.
    Computer software
    (1) Means--
    (i) Computer programs that comprise a series of instructions, 
rules, routines, or statements, regardless of the media in which 
recorded, that allow or cause a computer to perform a specific 
operation or series of operations; and
    (ii) Recorded information comprising source code listings, 
design details, algorithms, processes, flow charts, formulas, and 
related material that would enable the computer program to be 
produced, created, or compiled.
    (2) Does not include computer databases or computer software 
documentation.
    Cyber threat indicators, in accordance with 6 U.S.C. 1501, means 
information that is necessary to describe or identify--
    (1) Malicious reconnaissance, including anomalous patterns of 
communications that appear to be transmitted for the purpose of 
gathering technical information related to a cybersecurity threat or 
security vulnerability;
    (2) A method of defeating a security control or exploitation of 
a security vulnerability;
    (3) A security vulnerability, including anomalous activity that 
appears to indicate the existence of a security vulnerability;
    (4) A method of causing a user with legitimate access to an 
information system or information that is stored on, processed by, 
or transiting an information system to unwittingly enable the defeat 
of a security control or exploitation of a security vulnerability;
    (5) Malicious cyber command and control;
    (6) The actual or potential harm caused by an incident, 
including a description of the information exfiltrated as a result 
of a particular cybersecurity threat;
    (7) Any other attribute of a cybersecurity threat, if disclosure 
of such attribute is not otherwise prohibited by law; or
    (8) Any combination thereof.
    Defensive measures means an action, device, procedure, 
signature, technique, or other measure applied to an information 
system or information that is stored on, processed by, or transiting 
an information system that detects, prevents, or mitigates a known 
or suspected cybersecurity threat or security vulnerability. The 
term ``defensive measures'' does not include a measure that 
destroys, renders unusable, provides unauthorized access to, or 
substantially harms an information system or information stored on, 
processed by, or transiting such information system not owned by the 
private entity operating the measure; or by another entity or 
Federal entity that is authorized to provide consent and has 
provided consent to that private entity for operation of such 
measure (6 U.S.C. 1501(7)).
    Eradication means eliminating or resolving the mechanisms, 
components, and cause(s) of the incident, (such as deleting malware 
and disabling breached user accounts), as well as identifying all 
affected hosts within information systems and mitigating all 
exploited vulnerabilities.
    Event means any observable occurrence in a system or network.
    Full access means, for all contractor information systems used 
in performance, or which support performance, of the contract--
    (1) Physical and electronic access to--
    (i) Contractor networks,
    (ii) Systems,
    (iii) Accounts dedicated to Government systems,
    (iv) Other infrastructure housed on the same computer network,
    (v) Other infrastructure with a shared identity boundary or 
interconnection to the Government system; and
    (2) Provision of all requested Government data or Government-
related data, including--
    (i) Images,
    (ii) Log files,
    (iii) Event information, and
    (iv) Statements, written or audio, of contractor employees 
describing what they witnessed or experienced in connection with the 
contractor's performance of the contract.
    Government-related data means any information, document, media, 
or machine-readable material regardless of physical form or 
characteristics that is created or obtained by a contractor through 
the storage, processing, or communication of Government data. 
Government-related data does not include--
    (1) A contractor's business records (e.g., financial records, 
legal records) that do not incorporate Government data, or
    (2) Data such as operating procedures, software coding or 
algorithms that are not uniquely applied to the Government data.
    Information and communications technology (ICT) means 
information

[[Page 68066]]

technology and other equipment, systems, technologies, or processes, 
for which the principal function is the creation, manipulation, 
storage, display, receipt, or transmission of electronic data and 
information, as well as any associated content. Examples of ICT 
include but are not limited to the following: Computers and 
peripheral equipment; information kiosks and transaction machines; 
telecommunications equipment; telecommunications services; customer 
premises equipment; multifunction office machines; computer 
software; applications; websites; electronic media; electronic 
documents; Internet of Things (IoT) devices; and operational 
technology.
    Information system means a discrete set of information resources 
organized for the collection, processing, maintenance, use, sharing, 
dissemination, or disposition of information (44 U.S.C. 3502(8)). 
Information resources, as used in this definition, includes any ICT.
    Operational technology means programmable systems or devices 
that interact with the physical environment (or manage devices that 
interact with the physical environment). These systems or devices 
detect or cause a direct change through the monitoring and or 
control of devices, processes, and events. Examples include 
industrial control systems, building management systems, fire 
control systems, and physical access control mechanisms (NIST SP 
800-160).
    Security incident means actual or potential occurrence of the 
following--
    (1) Any event or series of events, which pose(s) actual or 
imminent jeopardy, without lawful authority, to the integrity, 
confidentiality, or availability of information or an information 
system; or constitutes a violation or imminent threat of violation 
of law, security policies, security procedures, or acceptable use 
policies;
    (2) Any malicious computer software discovered on an information 
system; or
    (3) Transfer of classified or controlled unclassified 
information onto an information system not accredited (i.e., 
authorized) for the appropriate security level.
    Software bill of materials (SBOM) means a formal record 
containing the details and supply chain relationships of various 
components used in building software.
    Supplier's declaration of conformity means a standardized format 
to document the USGv6 capabilities supported by a specific product 
or set of products and provides traceability back to the accredited 
laboratory that conducted the tests (see NIST SP 500-281B).
    Telecommunications equipment means equipment used to transmit, 
emit, or receive signals, signs, writing, images, sounds, or 
intelligence of any nature, by wire, cable, satellite, fiber optics, 
laser, radio, or any other electronic, electric, electromagnetic, or 
acoustically coupled means.
    Telecommunications services means services used to transmit, 
emit, or receive signals, signs, writing, images, sounds, or 
intelligence of any nature, by wire, cable, satellite, fiber optics, 
laser, radio, or any other electronic, electric, electromagnetic, or 
acoustically coupled means.
    Telemetry means the automatic recording and transmission of data 
from remote or inaccessible sources to an information system in a 
different location for monitoring and analysis. Telemetry data may 
be relayed using radio, infrared ultrasonic, cellular, satellite or 
cable, depending on the application.
    (b) Security incident reporting.
    (1)(i) The Contractor shall submit a CISA Incident Reporting 
Form on all security incidents involving a product or service 
provided to the Government that includes information and 
communications technology, or the information system used in 
developing or providing the product or service, to the Cybersecurity 
and Infrastructure Security Agency (CISA) in the Department of 
Homeland Security using the CISA Incident Reporting System. The CISA 
Incident Reporting System, along with information on types of 
incidents, can be found here: https://www.cisa.gov/report.
    (ii) Consistent with applicable laws, regulations, and 
Governmentwide policies, CISA will share the information reported 
with any contracting agency potentially affected by the incident or 
by a vulnerability revealed by the incident and other executive 
agencies responsible for investigating or remediating cyber 
incidents, such as the Federal Bureau of Investigation (FBI), and 
other elements of the intelligence community.
    (2) The Contractor shall also notify the Contracting Officer, 
and the contracting officer (or ordering officer) of any agency 
which placed an affected order under this contract, that an incident 
reporting portal has been submitted to CISA.
    (3) The Contractor shall immediately and thoroughly investigate 
all indicators that a security incident may have occurred and submit 
information using the CISA incident reporting portal pursuant to 
paragraphs (b) and (c) of this clause within 8 hours of discovery 
that a security incident may have occurred and shall update the 
submission every 72 hours thereafter until the Contractor, the 
agency, and/or any investigating agencies have completed all 
eradication or remediation activities. Security incidents involving 
specific types of information (e.g., controlled unclassified 
information, classified information) may require additional 
reporting that is separate from the requirements of this clause.
    (4) In the event the Contractor suspects a compromise of a 
communications or messaging platform, the Contractor should avoid 
use of such potentially compromised means to provide notification(s) 
or otherwise communicate information about a security incident and 
associated response activities.
    (c) Supporting incident response.
    (1) Data preservation and protection.
    (i) The Contractor shall collect, and preserve for at least 12 
months in active storage followed by 6 months in active or cold 
storage, available data and information relevant to security 
incident prevention, detection, response and investigation within 
information systems used in developing or providing ICT products or 
services to the Government. This data includes, but is not limited 
to, network traffic data, full network flow, full packet capture, 
perimeter defense logs (firewall, intrusion detection systems, 
intrusion prevention systems), telemetry, and system logs including, 
but not limited to, system event logs, authentication logs, and 
audit logs. Upon request by the Contracting Officer, the Contractor 
shall promptly provide this data and information to the Government.
    (ii) When the Contractor has discovered that a security incident 
may have occurred on an affected information system, the Contractor 
shall immediately preserve and protect images of all known affected 
information systems and all available monitoring/packet capture 
data. Following submission of a security incident report pursuant to 
paragraph (b) of this clause, or receipt of a request for access 
pursuant to paragraph (c)(6) of this clause, such images and data 
shall be retained for the longer of--
    (A) 180 days from the submission of the report or receipt of the 
request;
    (B) Any longer period required under paragraph (c)(1)(i) of this 
clause; or
    (C) If instructed to retain such images and data beyond 180 days 
by the Contracting Officer, until the Contractor is notified by the 
Contracting Officer that retention is no longer required.
    (2) Customization files. The Contractor shall develop, store, 
and maintain throughout the life of the contract and for at least 1 
year thereafter an up-to-date collection of customizations that 
differ from manufacturer defaults on devices, computer software, 
applications, and services, which includes but is not limited to 
configuration files, logic files and settings on web and cloud 
applications for all information systems used in developing or 
providing an ICT product or service to the Government. Upon request 
by the Contracting Officer, or consistent with paragraph (c)(6) of 
this clause, the Contractor shall provide the cognizant program 
office/requiring activity, CISA and/or the FBI, with a copy of the 
current and historical customization files, and notice to the 
Contracting Officer that such information has been shared and with 
whom it has been shared.
    (3) Software bill of materials (SBOM).
    (i) The Contractor shall maintain, and upon the initial use of 
such software in the performance of this contract, provide or 
provide access to the Contracting Officer a current SBOM for each 
piece of computer software used in performance of the contract. Each 
SBOM shall be produced in a machine-readable, industry-standard 
format and shall comply with all of the minimum elements identified 
in Section IV of The Minimum Elements for a Software Bill of 
Materials (the current version at the time of solicitation) 
published by the Department of Commerce at https://www.ntia.doc.gov/report/2021/minimum-elements-software-bill-materials-sbom, except 
for frequency which is addressed in paragraph (c)(3)(ii) of this 
clause. These minimum elements establish the baseline technology and 
practices for the provisioning of a SBOM that enable computer 
software transparency, capturing both the technology and functional 
operation.
    (ii) If a piece of computer software used in the performance of 
the contract is updated

[[Page 68067]]

with a new build or major release, the contractor must update the 
computer SBOM in paragraph (c)(3)(i) of this clause to reflect the 
new version of the computer software and provide (or provide access 
to) the updated SBOM to the Contracting Officer. This includes 
computer software builds to integrate an updated component or 
dependency.
    (iii) If an SBOM has been provided to the contracting officer at 
the basic contract level, the SBOM does not need to be provided to 
the contracting officer for each order.
    (4) Incident and damage assessment activities. If the Government 
elects to conduct an incident or damage assessment regarding a 
security incident, the Contractor shall promptly provide to the 
Government, and any independent third party specifically authorized 
by the Government, all information identified in paragraphs (c)(1), 
(c)(2), and (c)(3) of this clause.
    (5) Malicious computer software. If the Contractor discovers and 
isolates malicious computer software in connection with a security 
incident, the Contractor shall submit malicious code samples or 
artifacts to CISA using the appropriate form at https://www.malware.us-cert.gov within 8 hours of discovery and isolation of 
the malicious computer software in addition to required incident 
reporting pursuant to paragraph (b) of this clause.
    (6) Access, including access to additional information or 
equipment necessary for forensic analysis.
    (i) Upon request by the Contracting Officer, CISA or the FBI, in 
response to a security incident reported in accordance with 
paragraph (b)(1) of this clause, or in response to a CISA or FBI 
access request based on an identified security incident, the 
Contractor shall first validate any CISA or FBI access request 
according to the procedures in (c)(6)(ii) of this clause, and then 
respond to any requests for access from the contracting agency, 
CISA, and the FBI within 96 hours with available information 
identified in paragraphs (c)(1), (c)(2), and (c)(3) of this clause, 
as well as access to additional information or equipment that is 
necessary to conduct a forensic analysis.
    (A) Consistent with applicable laws, regulations, and 
Governmentwide policies that limit or prohibit access to data, this 
includes full access and cooperation for all activities determined 
by the contracting agency, CISA, and the FBI to:
    (1) Ensure an effective incident response, investigation of 
potential incidents, and threat hunting activity, including 
supporting cloud and virtual infrastructure; and
    (2) Coordinate with CISA, the FBI, and the contracting agency to 
develop and implement corrections, fixes or other mitigations for 
discovered vulnerabilities and exploits.
    (B) This also includes timely access to Contractor personnel 
involved in the performance of the contract.
    (ii) Prior to responding to a request from CISA or the FBI for 
information or access under this clause, the Contractor shall:
    (A)(1) For requests from CISA, confirm the validity of the 
request by contacting CISA Central at <a href="/cdn-cgi/l/email-protection#5f2d3a2f302d2b1f3c362c3e71383029"><span class="__cf_email__" data-cfemail="0674637669747246656f756728616970">[email protected]</span></a> or (888) 282-
0870,
    (2) For requests from the FBI, confirm the validity of the 
request by contacting the FBI field office identified by the 
requestor using contact information from https://www.fbi.gov/contact-us/field-offices; and
    (B) Immediately notify the Contracting Officer and any other 
agency official designated in the contract in writing of receipt of 
the request. Provision of information and access to CISA and the FBI 
under this clause shall not be delayed by submission of this 
notification or awaiting acknowledgement of its receipt.
    (d) Cyber threat indicators and defensive measures reporting. 
The Contractor shall either--
    (1) Subscribe to the Automated Indicator Sharing (AIS) (https://www.cisa.gov/ais) capability or successor technology during the 
performance of the contract. The Contractor shall share cyber threat 
indicators and recommended defensive measures, to include associated 
tactics, techniques, and procedures, if available, when such 
indicators or measures are observed on information and 
communications technology used in performance of the contract or 
provided to the Government, in an automated fashion using this 
medium during the performance of the contract. Contractors 
submitting cyber threat indicators and defensive measures through 
AIS will receive applicable legal protections (see 6 U.S.C. 1505) in 
accordance with the Cybersecurity Information Sharing Act of 2015, 
Procedures and Guidance; or
    (2) During the performance of the contract, participate in an 
information sharing and analysis organization or information sharing 
and analysis center with the capability to share indicators with AIS 
or successor technology and that further shares cyber threat 
indicators and recommended defensive measures submitted to it with 
AIS, during the performance of the contract. The Contractor shall 
share cyber threat indicators and recommended defensive measures, 
when such indicators or measures are observed on information and 
communications technology used during performance of the contract or 
provided to the Government, with the ISAO or ISAC during the 
performance of the contract, in addition to required incident 
reporting pursuant to paragraph (b) of this clause. Contractors 
submitting cyber threat indicators and defensive measures through an 
ISAO or ISAC will receive applicable legal protections in accordance 
with the Cybersecurity Information Sharing Act of 2015 Procedures 
and Guidance.
    (e) Internet Protocol version 6 (IPv6).
    (1) This paragraph (e) applies to--
    (i) Any ICT using internet protocol provided to the Government, 
and
    (ii) Any interfaces exposed to the Government from a Contractor 
information system using internet protocol.
    (2) The Contractor shall comply with all applicable mandatory 
capabilities specified in the current version of the USGv6 Profile 
(NIST Special Publication 500-267B) (see Office of Management and 
Budget (OMB) Memorandum M-21-07, Completing the Transition to 
Internet Protocol Version 6 (IPv6) dated November 19, 2020) and 
provide to the Contracting Officer a copy of or access to the 
corresponding supplier's declaration of conformity in accordance 
with the USGv6 Test Program (see NIST SP 500-281A).
    (3) The agency may have granted a waiver to this paragraph (e). 
If so, elsewhere in this contract the waiver will be identified 
along with any conditions (see FAR 39.106-2).
    (f) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (f), in all subcontracts where 
ICT is used or provided in the performance of the subcontract, 
including subcontracts for the acquisition of commercial products or 
services. All references to the Contractor are applicable to all 
subcontractors. The Contractor shall require subcontractors to 
notify the prime Contractor and next higher tier subcontractor 
within 8 hours of discovery of a security incident.
(End of clause)
0
25. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Redesignating paragraph (c)(1)(xxi) as paragraph (c)(1)(xxii) and 
adding a new paragraph (c)(1)(xxi).
    The revision and addition read as follows:


52.244-6  Subcontracts for Commercial Products and Commercial Services.

* * * * *

Subcontracts for Commercial Products and Commercial Services (DATE)

* * * * *
    (c)(1) * * *
    (xxi) 52.239-ZZ, Incident and Threat Reporting and Incident 
Response Requirements for Products or Services Containing 
Information and Communications Technology (Date) (E.O. 14028), if 
flow down is required in accordance with paragraph (f) of FAR clause 
52.239-ZZ.
* * * * *
[FR Doc. 2023-21328 Filed 10-2-23; 8:45 am]
BILLING CODE 6820-14-P


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