Class Deviation 2024-O0013

OFFICE OF THE UNDER SECRETARY OF DEFENSE
3000 DEFENSE PENTAGON
WASHINGTON, DC 20301-3000
ACQUISITION
AND SUSTAINMENT
In reply refer to
DARS Tracking Number: 2024-O0013, Revision 1
MEMORANDUM FOR COMMANDER, UNITED STATES CYBER
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES SPECIAL OPERATIONS
COMMAND (ATTN: ACQUISITION EXECUTIVE)
COMMANDER, UNITED STATES TRANSPORTATION
COMMAND (ATTN: ACQUISITION EXECUTIVE)
DEPUTY ASSISTANT SECRETARY OF THE ARMY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE NAVY
(PROCUREMENT)
DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE
(CONTRACTING)
DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS
SUBJECT: Class Deviation—Revision 1, Safeguarding Covered Defense Information and
Cyber Incident Reporting
Effective immediately, this class deviation revises and supersedes Class Deviation 2024-
O0013, issued on May 2, 2024. The revision is necessary to make administrative updates to the
links to the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-
171 Revision 2 and the Federal Risk and Authorization Management Program (FedRAMP)
Moderate baseline in the attached clause.
Contracting officers shall use the attached clause, 252.204-7012, Safeguarding Covered
Defense Information and Cyber Incident Reporting (DEVIATION 2024-O0013, Revision 1), in
lieu of the clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-
7012, Safeguarding Covered Defense Information and Cyber Incident Reporting.
The deviation clause requires contractors, who are subject to 252.204-7012, to comply
with NIST SP 800-171 Revision 2, instead of the version of NIST SP 800-171 in effect at the
time the solicitation is issued or as authorized by the contracting officer.
This class deviation remains in effect until rescinded. Inquiries regarding this class
deviation can be addressed to: osd.pentagon.ousd-a-s.mbx.dpc-cp@mail.mil.
John M. Tenaglia
Principal Director,
Defense Pricing and Contracting
Attachment:
As stated
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
252.204-7012 Safeguarding Covered Defense Information and Cyber Incident
Reporting. (DEVIATION 2024-O0013 REVISION 1)
Use the following clause in lieu of the clause at DFARS 252.204-7012.
SAFEGUARDING COVERED DEFENSE INFORMATION AND CYBER INCIDENT
REPORTING (MAY 2024) (DEVIATION 2024-O0013, REVISION 1)
(a) Definitions. As used in this clause—
Adequate security means protective measures that are commensurate with the
consequences and probability of loss, misuse, or unauthorized access to, or modification
of information.
Compromise means disclosure of information to unauthorized persons, or a violation
of the security policy of a system, in which unauthorized intentional or unintentional
disclosure, modification, destruction, or loss of an object, or the copying of information to
unauthorized media may have occurred.
Contractor attributional/proprietary information means information that identifies
the contractor(s), whether directly or indirectly, by the grouping of information that can
be traced back to the contractor(s) (e.g., program description, facility locations),
personally identifiable information, as well as trade secrets, commercial or financial
information, or other commercially sensitive information that is not customarily shared
outside of the company.
Controlled technical information means technical information with military or space
application that is subject to controls on the access, use, reproduction, modification,
performance, display, release, disclosure, or dissemination. Controlled technical
information would meet the criteria, if disseminated, for distribution statements B
through F using the criteria set forth in DoD Instruction 5230.24, Distribution
Statements on Technical Documents. The term does not include information that is
lawfully publicly available without restrictions.
Covered contractor information system means an unclassified information system
that is owned, or operated by or for, a contractor and that processes, stores, or transmits
covered defense information.
Covered defense information means unclassified controlled technical information or
other information, as described in the Controlled Unclassified Information (CUI)
Registry at http://www.archives.gov/cui/registry/category-list.html, that requires
Page 1 of 7
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
safeguarding or dissemination controls pursuant to and consistent with law,
regulations, and Governmentwide policies, and is—
(1) Marked or otherwise identified in the contract, task order, or delivery order
and provided to the contractor by or on behalf of DoD in support of the performance of
the contract; or
(2) Collected, developed, received, transmitted, used, or stored by or on behalf of
the contractor in support of the performance of the contract.
Cyber incident means actions taken through the use of computer networks that
result in a compromise or an actual or potentially adverse effect on an information
system and/or the information residing therein.
Forensic analysis means the practice of gathering, retaining, and analyzing
computer-related data for investigative purposes in a manner that maintains the
integrity of the data.
Information system means a discrete set of information resources organized for the
collection, processing, maintenance, use, sharing, dissemination, or disposition of
information.
Malicious software means computer software or firmware intended to perform an
unauthorized process that will have adverse impact on the confidentiality, integrity, or
availability of an information system. This definition includes a virus, worm, Trojan
horse, or other code-based entity that infects a host, as well as spyware and some forms
of adware.
Media means physical devices or writing surfaces including, but is not limited to,
magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and
printouts onto which covered defense information is recorded, stored, or printed within
a covered contractor information system.
Operationally critical support means supplies or services designated by the
Government as critical for airlift, sealift, intermodal transportation services, or
logistical support that is essential to the mobilization, deployment, or sustainment of
the Armed Forces in a contingency operation.
Rapidly report means within 72 hours of discovery of any cyber incident.
Technical information means technical data or computer software, as those terms
are defined in the clause at DFARS 252.227-7013, Rights in Technical Data—Other
Page 2 of 7
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
Than Commercial Products and Commercial Services, regardless of whether or not the
clause is incorporated in this solicitation or contract. Examples of technical information
include research and engineering data, engineering drawings, and associated lists,
specifications, standards, process sheets, manuals, technical reports, technical orders,
catalog-item identifications, data sets, studies and analyses and related information,
and computer software executable code and source code.
(b) Adequate security. The Contractor shall provide adequate security on all covered
contractor information systems. To provide adequate security, the Contractor shall
implement, at a minimum, the following information security protections:
(1) For covered contractor information systems that are part of an Information
Technology (IT) service or system operated on behalf of the Government, the following
security requirements apply:
(i) Cloud computing services shall be subject to the security requirements
specified in the clause 252.239-7010, Cloud Computing Services, of this contract.
(ii) Any other such IT service or system (i.e., other than cloud computing)
shall be subject to the security requirements specified elsewhere in this contract.
(2) For covered contractor information systems that are not part of an IT service
or system operated on behalf of the Government and therefore are not subject to the
security requirement specified at paragraph (b)(1) of this clause, the following security
requirements apply:
(i) Except as provided in paragraph (b)(2)(ii) of this clause, the covered
contractor information system shall be subject to the security requirements in National
Institute of Standards and Technology (NIST) Special Publication (SP) 800-171,
“Protecting Controlled Unclassified Information in Nonfederal Information Systems
and Organizations”, Revision 2 (available via the internet at
https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-171r2.pdf).
(ii)(A) The Contractor shall implement NIST SP 800-171, as soon as
practical, but not later than December 31, 2017. For all contracts awarded prior to
October 1, 2017, the Contractor shall notify the DoD Chief Information Officer (CIO),
via email at osd.dibcsia@mail.mil, within 30 days of contract award, of any security
requirements specified by NIST SP 800-171 not implemented at the time of contract
award.
(B) The Contractor shall submit requests to vary from NIST SP 800-171
in writing to the Contracting Officer, for consideration by the DoD CIO. The Contractor
Page 3 of 7
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
need not implement any security requirement adjudicated by an authorized
representative of the DoD CIO to be nonapplicable or to have an alternative, but equally
effective, security measure that may be implemented in its place.
(C) If the DoD 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 that approval shall be provided to the Contracting Officer
when requesting its recognition under this contract.
(D) If the Contractor intends to use an external cloud service provider
to store, process, or transmit any covered defense information in performance of this
contract, the Contractor shall require and ensure that the cloud service provider meets
security requirements equivalent to those established by the Government for the
Federal Risk and Authorization Management Program (FedRAMP) Moderate baseline
(https://www.fedramp.gov/documents-templates/) and that the cloud service provider
complies with requirements in paragraphs (c) through (g) of this clause for cyber
incident reporting, malicious software, media preservation and protection, access to
additional information and equipment necessary for forensic analysis, and cyber
incident damage assessment.
(3) Apply other information systems security measures when the Contractor
reasonably determines that information systems security measures, in addition to
those identified in paragraphs (b)(1) and (2) of this clause, may be required to
provide adequate security in a dynamic environment or to accommodate special
circumstances (e.g., medical devices) and any individual, isolated, or temporary
deficiencies based on an assessed risk or vulnerability. These measures may be
addressed in a system security plan.
(c) Cyber incident reporting requirement.
(1) When the Contractor discovers a cyber incident that affects a covered
contractor information system or the covered defense information residing therein, or
that affects the contractor’s ability to perform the requirements of the contract that are
designated as operationally critical support and identified in the contract, the
Contractor shall—
(i) Conduct a review for evidence of compromise of covered defense
information, including, but not limited to, identifying compromised computers, servers,
specific data, and user accounts. This review shall also include analyzing covered
contractor information system(s) that were part of the cyber incident, as well as other
information systems on the Contractor’s network(s), that may have been accessed as a
Page 4 of 7
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
result of the incident in order to identify compromised covered defense information, or
that affect the Contractor’s ability to provide operationally critical support; and
(ii) Rapidly report cyber incidents to DoD at https://dibnet.dod.mil.
(2) Cyber incident report. The cyber incident report shall be treated as
information created by or for DoD and shall include, at a minimum, the required
elements at https://dibnet.dod.mil.
(3) Medium assurance certificate requirement. In order to report cyber incidents
in accordance with this clause, the Contractor or subcontractor shall have or acquire a
DoD-approved medium assurance certificate to report cyber incidents. For information
on obtaining a DoD-approved medium assurance certificate, see
https://public.cyber.mil/eca/.
(d) Malicious software. When the Contractor or subcontractors discover and isolate
malicious software in connection with a reported cyber incident, submit the malicious
software to DoD Cyber Crime Center (DC3) in accordance with instructions provided by
DC3 or the Contracting Officer. Do not send the malicious software to the Contracting
Officer.
(e) Media preservation and protection. When a Contractor discovers a cyber
incident has occurred, the Contractor shall preserve and protect images of all known
affected information systems identified in paragraph (c)(1)(i) of this clause and all
relevant monitoring/packet capture data for at least 90 days from the submission of the
cyber incident report to allow DoD to request the media or decline interest.
(f) Access to additional information or equipment necessary for forensic analysis.
Upon request by DoD, the Contractor shall provide DoD with access to additional
information equipment that is necessary to conduct a forensic analysis.
(g) Cyber incident damage assessment activities. If DoD elects to conduct a damage
assessment, the Contracting Officer will request that the Contractor provide all of the
damage assessment information gathered in accordance with paragraph (e) of this
clause.
(h) DoD safeguarding and use of contractor attributional/proprietary information.
The Government shall protect against the unauthorized use or release of information
obtained from the contractor (or derived from information obtained from the contractor)
under this clause that includes contractor attributional/proprietary information,
including such information submitted in accordance with paragraph (c). To the
maximum extent practicable, the Contractor shall identify and mark
Page 5 of 7
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
attributional/proprietary information. In making an authorized release of such
information, the Government will implement appropriate procedures to minimize the
contractor attributional/proprietary information that is included in such authorized
release, seeking to include only that information that is necessary for the authorized
purpose(s) for which the information is being released.
(i) Use and release of contractor attributional/proprietary information not created by
or for DoD. Information that is obtained from the contractor (or derived from
information obtained from the contractor) under this clause that is not created by or for
DoD is authorized to be released outside of DoD—
(1) To entities with missions that may be affected by such information;
(2) To entities that may be called upon to assist in the diagnosis, detection, or
mitigation of cyber incidents;
(3) To Government entities that conduct counterintelligence or law enforcement
investigations;
(4) For national security purposes, including cyber situational awareness and
defense purposes (including with Defense Industrial Base (DIB) participants in the
program at 32 CFR part 236); or
(5) To a support services contractor (“recipient”) that is directly supporting
Government activities under a contract that includes the clause at 252.204-7009,
Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber
Incident Information.
(j) Use and release of contractor attributional/proprietary information created by or
for DoD. Information that is obtained from the contractor (or derived from information
obtained from the contractor) under this clause that is created by or for DoD (including
the information submitted pursuant to paragraph (c) of this clause) is authorized to be
used and released outside of DoD for purposes and activities authorized by paragraph
(i) of this clause, and for any other lawful Government purpose or activity, subject to all
applicable statutory, regulatory, and policy based restrictions on the Government’s use
and release of such information.
(k) The Contractor shall conduct activities under this clause in accordance with
applicable laws and regulations on the interception, monitoring, access, use, and
disclosure of electronic communications and data.
(l) Other safeguarding or reporting requirements. The safeguarding and cyber
Page 6 of 7
Attachment
Class Deviation 2024-O0013, Revision 1
Safeguarding Covered Defense Information and Cyber Incident Reporting
Changes to the text are indicated by a change bar in the right-hand margin.
incident reporting required by this clause in no way abrogates the Contractor’s
responsibility for other safeguarding or cyber incident reporting pertaining to its
unclassified information systems as required by other applicable clauses of this
contract, or as a result of other applicable U.S. Government statutory or regulatory
requirements.
(m) Subcontracts. The Contractor shall—
(1) Include this clause, including this paragraph (m), in subcontracts, or similar
contractual instruments, for operationally critical support, or for which subcontract
performance will involve covered defense information, including subcontracts for
commercial products or commercial services, without alteration, except to identify the
parties. The Contractor shall determine if the information required for subcontractor
performance retains its identity as covered defense information and will require
protection under this clause, and, if necessary, consult with the Contracting Officer; and
(2) Require subcontractors to—
(i) Notify the prime Contractor (or next higher-tier subcontractor) when
submitting a request to vary from a NIST SP 800-171 security requirement to the
Contracting Officer, in accordance with paragraph (b)(2)(ii)(B) of this clause; and
(ii) Provide the incident report number, automatically assigned by DoD, to
the prime Contractor (or next higher-tier subcontractor) as soon as practicable, when
reporting a cyber incident to DoD as required in paragraph (c) of this clause.
(End of clause)
Page 7 of 7