DoD Issues Further Guidance on Implementation of DFARS Cyber Rule

By Susan B. Cassidy on September 26, 2017

Posted in Cybersecurity, Defense Industry, Government Contracts Regulatory Compliance

On September 21, 2017, the Director of the Defense Pricing/Defense Procurement and Acquisition Policy (DPAP) issued guidance to Department of Defense (DoD) acquisition personnel in anticipation of the December 31, 2017 date for contractors to implement the security controls of NIST Special Publication (SP) 800-171. The guidance outlines (i) ways in which a contractor may use a System Security Plan (SSP) to document implementation of NIST SP 800-171; and (ii) provides examples of how DoD organizations could leverage a contractor’s SSP and related Plan of Action and Milestones (POA&M) in the contract formation, administration, and source selection processes.

Covered Defense Information (CDI) – The guidance states that DoD “must mark, or otherwise identify in the contract, any covered defense information that is provided to the contractor, and must ensure that the contract includes the requirement for the contractor to mark covered defense information developed in performance of the contract.” Although the requirement for DoD to mark data provided to the contractor during performance is clear, the guidance is less clear as to information developed in performance of the contract. In particular, noting a “requirement for the contractor to mark” information developed during performance, without specifying which information needs to be marked (i.e., specifying a particular CDRL) presents a compliance challenge and increases the opportunity for miscommunications between DoD and its contractors. The Department’s slides and statements at the June 2017 Industry Day were more explicit, noting that the Department must “[d]ocument in the contract (e.g., Statement of Work, CDRLs) information, including covered defense information, that is required to be developed for performance of the contract, and specify requirements for the contractor to mark, as appropriate, information to be delivered to DoD. (see, e.g., MIL-Handbook 245D, and Contract Data Requirements List (CDRL) (DD Form 1423)).” See Cybersecurity Challenges, Protecting DoD’s Unclassified Information, June 23, 2017 Industry Day at Slide 27. Contractors may see additional clarification of this point in the Frequently Asked Questions that DoD is expected to issue soon. Otherwise, contracting personnel may take a narrow view of their responsibilities to identify CDI that will be developed during performance.

Implementation of NIST 800-171 Security Controls – The guidance recognizes that NIST SP 800-171 provides latitude to contractors for how they choose to implement applicable security controls and for how contractors assess their own compliance with those requirements. DoD recognizes that compliance with NIST SP 800-171 involves both policy/procedures and technical controls. To the extent that a contractor seeks additional clarification as to the interpretation of NIST SP 800-171 security controls, the guidance points contractors to the corresponding NIST SP 800-53 security controls, as well as the 800-53 Supplemental Guidance.

Documenting Compliance with an SSP – Under 252.204-7012(b)(2)(ii)(A), contractors are required to “implement 800-171, as soon as practical, but not later than December 31, 2017.” Key to that implementation is the 110th security control, which was added in Revision 1 to NIST SP 800-171. This control requires contractors to create an SSP, which “describe[s] the boundary of [a contractor’s] information system; the operational environment for the system; how the security requirements are implemented; and the relationships with or connections to other systems.” At the June 23, 2017 Industry Day, DoD clarified that if a contractor is not in compliance with all 110 security controls by December 31, 2017, but has an SSP and POA&M that accurately reflect the status of its compliance with those controls, that contractor has “implemented” 800-171 for purposes of the 7012 clause. See Cybersecurity Challenges, Protecting DoD’s Unclassified Information, June 23, 2017 Industry Day at Slide 46.

In the guidance, DoD further noted that in addition to a POA&M, the SSP should “describe how and when any unimplemented security requirements will be met, how any planned mitigations will be implemented, and how and when they will correct deficiencies and reduce or eliminate vulnerabilities in the systems.” DoD again noted that there is no required format for an SSP and that it may be separate or combined documents.

Role of the SSP and POA&M in Contract Formulation, Administration and Source Selection – Revision 1 to NIST SP 800-171 provides that federal agencies may consider a contractor’s SSP and POA&Ms as “critical inputs to an overall risk management decision to process, store or transmit CUI [controlled unclassified information]” on a contractor’s internal networks. Although not mandatory, agencies will be permitted to use implementation of NIST SP 800-171 as an evaluation criteria. The guidance notes the following examples:

“Using proposal instructions and corresponding evaluation specifics” as to the implementation of NIST SP 800-171 to permit DoD to determine “whether it is an acceptable or unacceptable risk to process, store, or transmit” CDI on a contractor’s system”;
“Establishing compliance with DFARS 252.204-7012 as a separate technical evaluation factor”;
Identifying any NIST SP 800-171 security requirements not implemented at the time of the award and including associated POA&Ms implementation; and/or
“Identifying in the solicitation that all security requirements in NIST SP 800-171 must be implemented at the time of award”

Because contractors have objected that SSPs contain highly sensitive data about their networks, the guidance suggests that contracting officers incorporate the SSPs by reference as part of the contract. Thus, the accuracy of the SSPs and POA&Ms and a contractor’s follow through on its POA&Ms are crucial because by incorporating the documentation, DoD would make compliance with those documents a contractual obligation. This contractual obligation is further exacerbated by DFARS 252.204-7008, which provides that by submitting the offer, a contractor is representing that it has implemented the 800-171 security controls, including the requirement for an SSP.

This guidance represents DoD’s forward leaning approach to addressing industry concerns and questions with regard to the DFARS Cyber Rule. The next iteration of Frequently Asked Questions is expected soon and should provide further guidance to contractors.