United States: Compliance Deadline Reached For DoD Contractor Security Controls Requirements

Under the Department of Defense (DoD) final Defense Federal Acquisition Regulation Supplement (DFARS) rule on Network Penetration Reporting and Contracting for Cloud Services,1 DoD contractors maintaining, processing, or otherwise possessing "covered defense information" (CDI) on their own systems must now be compliant with the technical, physical, and administrative security controls outlined in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, Protecting Controlled Unclassified Information in Nonfederal Systems and Organizations,2 as the "grace period" for compliance ended on December 31, 2017.3 The rule's flow-down mandate requires that the applicable contract terms (and therefore the NIST SP 800-171 implementation requirement and deadline) be flowed down to all subcontractors whose performance will "involve" CDI or who are providing "operationally critical support."4

For more information on the final rule, see our summary and analysis of the final rule, available here, as well as our summary and analysis of the prior, interim version of the rule, available here. Our summary and analysis of the parallel Federal Acquisition Regulations (FAR) rule, which requires all federal government contractors (regardless of federal contracting agency) to abide by a subset of the NIST SP 800-171 controls if they have federal contract information, is available here.

Compliance Options

DoD contractors and subcontractors subject to the rule5 have three options to ensure compliance with the rule's security standards:

1. Full Implementation. Contractors can comply with the rule's security requirements by fully implementing all security controls outlined in NIST SP 800-171 and documenting how those controls are met (or are otherwise inapplicable) in a System Security Plan (SSP).6

Ultimately, contractors are responsible for making their own determinations as to whether they are in compliance with the listed controls. DoD has stated that it will not certify contractor compliance with NIST SP 800-171 security controls, nor does it require, authorize, or recognize any third-party assessments or certifications.7 However, NIST released two documents in November 2017 that may be helpful to contractors trying to determine their implementation status:

  • A "Self-Assessment Handbook," which "provides guidance on implementing NIST SP 800-171 in response to" the DFARS rule.8 While the handbook was issued as part of NIST's Manufacturing Extension Partnership and is specifically intended to provide a "step-by-step guide [for] assessing a small manufacturer's information systems" and their compliance with NIST SP 800-171, this tool may be useful to all DoD contractors seeking to assess their own implementation of the NIST SP 800-171 controls.
  • A draft NIST publication, NIST SP 800-171A, Assessing Security Requirements for Controlled Unclassified Information.9

2. Partial Implementation with "POAM." Contractors who have not yet been able to implement all NIST SP 800-171 security controls should endeavor to implement as many controls as possible, and document those controls in their SSP. Any controls that have not yet been fully implemented should be documented, along with the SSP, using Plan(s) of Action and Milestones, or POAM(s).

During a DoD-held "Industry Information Day" in June 2017, DoD officials indicated that contractors "complying" with NIST SP 800-171 partially through the use of POAMs would be considered in compliance with the broader DFARS rule's security requirements (and therefore would not, for example, be vulnerable to False Claims Act enforcement for failure to implement the control).10 While DoD has not expressly confirmed this via formal written guidance, more recent DoD guidance has noted that SSPs can be used to document "[i]ndividual, isolated[,] or temporary deficiencies addressed by assessing risk and applying mitigations," and that, by December 31, 2017, "companies should have a system security plan in place, and associated plans of action to address any security requirements not yet implemented."11 Of course, inaccuracies in certifications or material documents, including an SSP, could create a risk of a False Claims Act action.

That said, contracting officers can require or allow elements of the SSP (and any associated POAMs) to be included in a contractor's proposal, use the SSP as an evaluation factor, and/or incorporate the SSP by reference into the contract.12 For example, contracting officers may require that proposals identify any security requirements not implemented at the time of award, or require in the solicitation that all NIST SP 800-171 requirements must be implemented by the time of award.13 As such, contractors should (1) ensure that their SSPs are accurate and associated POAMs are achievable and followed and (2) be mindful of the possibility that noncompliance with any of the NIST SP 800-171 security controls, particularly the more significant controls, could harm their ability to win contracts.

3. Implement Alternative, Equally Effective Controls. Contractors can also comply with NIST SP 800-171 controls through "[a]lternative, but equally effective, security measures."14 To be approved for such a deviation, a contractor must submit a written request to the contracting officer for consideration by the DoD Chief Information Officer (CIO).15 However, NIST SP 800-171 is itself relatively flexible, and representatives from the DoD CIO's office have stated at public events that many, if not most, proposed "alternative" controls have actually been directly in compliance with the NIST SP 800-171 requirements, and, therefore, have not required approval for deviation.

Regardless of which option a contractor chooses, ongoing vigilance is critical to maintaining compliance. As new contracts are awarded, additional CDI is generated or obtained, security risks change, and best practices for protecting information and information systems evolve, contractors will need to continually assess their controls and update their SSPs. The DFARS rule specifically requires that contractors maintain "adequate security," which is, at a minimum, compliance with NIST SP 800-171. As such, even if a contractor complies with the NIST standard through one of the options described above, it still must ensure that its security practices and procedures provide "adequate security" for CDI.

DoD Resources

In addition to the materials described above, DoD has posted a number of resources regarding the rule under the "Cybersecurity" tab of the DoD Procurement Toolbox,16 including the January 2017 version of the FAQs on the rule.17 A revised FAQ document has been pending with DoD since at least June 2017, though the dedicated page on the Procurement Toolbox site continues to indicate that the update will be coming "soon."18


1. 81 Fed. Reg. 72986 (Oct. 21, 2016), available here.

2. The November 28, 2017, version of NIST SP 800-171 (Version 1.1) is available here.

3. DFARS 252.204-7012(b)(2)(ii)(A). Prior to this date, for contracts awarded prior to October 1, 2017, contractors not in full compliance with the NIST SP 800-171 security standards were required to report to the DoD CIO, within 30 days of award, which NIST SP 800-171 requirements they had not implemented. Id. 252.204-7012(b)(2)(ii).

4. Id. 252.204-7012(m)(1).

5. The rule contains an exception for contracts solely for commercially available off-the-shelf (COTS) items of supply.

6. See Department of Defense, Implementing DFARS Clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting: What Happens on December 31, 2017? at 15, available here (hereinafter, What Happens on December 31, 2017?). While the requirement for an SSP was expressly added in Version 1.1 of NIST SP 800-171, contractors with contracts that are subject to the prior version of NIST SP 800-171 (Version 1.0) should still document their security controls using an SSP per a DoD note, available here.

7. See, e.g., What Happens on December 31, 2017? at 13.

8. Patricia Roth, NIST Handbook 162, NIST MEP Cybersecurity Self-Assessment Handbook for Assessing NIST SP 800-171 Security Requirementsin Response to DFARS Cybersecurity Requirements (Nov. 2017), available here.

9. Ron Ross, Kelley Dempsey, and Victoria Pillitterri, Draft NIST Special Publication 800-171A, Assessing Security Requirements for Controlled Unclassified Information (Nov. 2017), available here.

10. Slides from the Industry Information Day are available here. Video from the session is posted in the Cybersecurity Resources tab of DoD's "Procurement Toolbox" website, here.

11. What Happens on December 31, 2017? at 15-16 (internal emphasis omitted).

12. Id. at 16-17; Frequently Asked Questions (FAQs) – Implementation of DFARS Case 2013-D018, Network Penetration Reporting and Contracting for Cloud Services at A21 (Jan. 27, 2017), available here.

13. What Happens on December 31, 2017? at 17.

14. DFARS 252.204-7012(b)(2)(ii)(B).

15. Id. When the CIO "has previously adjudicated the contractor's requests indicating that a requirement is not applicable or that an alternative security measure is equally effective," a copy of the approval shall be sent to the contracting officer. Id. 252.204-7012(b)(2)(ii)(C). The preamble to the final rule states that the DoD CIO will typically respond to such requests within five business days. 81 Fed. Reg. 72990.

16. Available here.

17. Available here.

18. See here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions