March 01, 2017 Public Contract Law Journal

Negotiating In and Around Critical Infrastructure Vulnerabilities: Why the Department of Defense Should Use Its Other Transaction Authority in the New Age of Cyber Attacks

by Krista A. Nunez

Krista Nunez (knunez1@law.gwu.edu) is a J.D. candidate at The George Washington University Law School and a Member and Notes Editor of the Public Contract Law Journal. She would like to thank Professor Megan Bartley, Notes Editor Alejandra Hernández Irizarry, and colleague Oliver Nassiri for their guidance and support throughout the Notewriting process.

I.  Introduction

The U.S. government prevents thousands of hackers from breaching its systems every day.1 An increase in the frequency of cyberattacks, however, requires that the federal government strengthen existing security defense mechanisms and preventative cyber tactic procedures. The U.S. Department of Defense (DoD) currently employs traditional procurement methods to obtain information technology (IT) defense contracts for software, hardware, and general technological development.2 Rather than continuing this process, which inhibits the DoD’s ability to keep pace with the ever-evolving cyber world and associated threats, the DoD must use its statutory power of other transaction authority (OTA) to protect, prevent, and defend against these threats. If the DoD does not actively invoke its OTA to create new cyber software and hardware agreements, hackers will reap increasing amounts of private information from the federal government’s databases and servers, invariably leading to detrimental consequences.3

This Note explores the need for the DoD to invoke its OTA for more advanced technology contracts. Part II discusses the events and current state of the U.S. cyber security regime, both private and governmental. Part III addresses the benefits and drawbacks of current IT procurement vehicles and how they inadequately meet the United States’ changing cyber needs. Finally, Part IV proposes that the DoD should use its OTA to meet those changing cyber needs, which would simultaneously bolster cyber security defense measures for both the DoD and the private sector.

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