DoD Guidance on SSPs, POAMs, and NIST SP 800-171: How These Documents May Impact Your Bids and Contracts
DFARS Compliance has been top of mind for Prime contractors as well as Department of Defense suppliers for some time now. Over 87% of contracts written in 2017 had the DFARS 252.204-7012 clause written in them already, and DoD contractors large and small are reaping the award benefits of proving “adequate security” via NIST SP 800-171 implementation, as we see with our customer base. On the other end of the DoD cyber compliance road, some are experiencing the dark side of pushing off compliance, and are currently rushing to find a solution to remove the barrier to winning awards. We’ve seen this account firsthand as we’ve helped customers use CyberStrong to get compliant fast.
According to the DoD publication Assessing the State of a Contractor’s Internal Information System in a Procurement Action, “Plans of action, continuous monitoring and the system security plan (NIST SP 800-171 Security Requirements 312.2-3.12.4) must address all security requirements”.
The same document states that one of the objectives in assessing a contractor for procurement is assessing NIST SP 800-171 implementation as a separate technical factor in addition to “adequate security”, therefore, the assessor will “incorporate the System Security Plan (SSP) and Plan of Action into the contract” itself. Take note: If you don’t have a SSP or POAM yet, you might want to consider automating them with the CyberStrong Platform.
Another important objective to take note of is the organization which awards to contract will “Assess/track implementation of NIST SP 800-171 security requirements after contract award”. This objective has an effect on organizations who are battling spreadsheets to prove compliance - they should consider using a live, continuous compliance platform for DFARS compliance such as CyberStrong, that will make proving compliance and tracking progress easy, simple, and straightforward. Nor only does the subcontractor need to track and prove compliance, but the Prime contractor also has to track all of its facets and suppliers. CyberStrong makes it easy for both suppliers and primes to see the state of compliance and track their progress to show due diligence and prove “adequate security” if not better.
With that in mind, here is a list of risks that you take when you push off compliance or are managing it in a way that makes the proving aspect of compliance difficult, such as spreadsheets. These risks are credibly sourced from the National Law Review.
Bids: The DoD guidance talked about above is clear that SSPs and POA&Ms play a part of qualifying “adequate security” but we don't know what part they’ll play in bid protests. The first draft guidance document says that the DoD can execute these actions based on these documents: it can make an acceptable/unacceptable determination based on implementation status to award the contract or not, or it can evaluate implementation “as a separate technical evaluation factor.” This suggests, however, that more requirements than the minimum required in NIST SP 800-171 may be required.
As an organization in the bid process, you could be denied because of inconsistencies between your SSP and POAM and the state of your cyber security related to NIST 800-171. If the awardee’s implementation of NIST SP 800-171 is inconsistent with it’s documents, the DoD or Prime will likely choose another contract. Regardless, they will require the SSP and POAM for review, since those make a supplier conferment for 2018. If you’ve received a questionnaire in the past, know that that document doesn’t make you compliant and these compliance documents are paramount to your success.
Termination: To evaluate compliance with your SSP and POAM, the guidance says that your contract must include contract data requirements (CDRLs) that “require delivery of System Security Plan and any Plans of action after contract award.” Again, if you don’t have a live, transparent and simple way of getting those documents ready for every new contract - automate them! The accuracy of your SSP and POAM, plus clearly showing that you’re tracking toward full compliance, is paramount. The SSP and POAM will be in your contract, thus, failure to comply could easily lead to termination.
DCMA Audits: DoD has made it clear in presentations and online that the DCMA will verify that the contractor has an SSP and POA&M. If you haven’t had the DCMA interact with your organization regarding NIST 800-171 yet, this might be in your future.
False Claims Act: This risk is important to take note of. The use of the SSP to evaluate your security measures and using it as a deliverable related to a government contract can increase the potential risk of a False Claims Act violation for your company. Example: An SSP may misrepresent a contractor’s actual cybersecurity status, and the DoD may take action based on fraud in the inducement. The DoD can establish that the cybersecurity status of a contractor was included in the award decision, and this could potentially put all earnings under the contact at risk.