The FSO, Sub-Contracts and NISPOM

As we continue the series of articles on the self-inspection, we should understand that FSOs or designated inspecting officers may find themselves addressing “Elements of Inspection” that are common to ALL cleared companies participating in the NISP. Still, there are other topics that do not apply, but the opportunity to learn something new applies. There are a few more elements that might be applied at unique cleared facilities, but FSOs  in those situations can adapt these articles to those specific needs. As a recap, according to DSS’  The Self-Inspection Handbook for NISP Contractors, the five elements that pertain to ALL cleared defense contractors are:

(A) Facility Security Clearance (FCL)

(B) Access Authorizations

(C) Security Education,

(D) FOCI

(E) Classification

 Though not applicable to all cleared contractors, subcontracting is covered in NISPOM. This article will address the requirements of the subcontracting and how to set up both the prime and sub for success.  The following are questions from the self-inspection handbook and how to address them.

Are all required actions completed prior to release or disclosure of classified information to sub-contractors?

An FSO might get direction by referring directly to the DD Form 254. Since it’s called the Contract Security Classification Specification, it should be used for the prime to direct classified work requirements and the sub to prepare their cleared employee and facility to perform. Items 10 and 11 provide performance and access information required of the subcontractor. These yes or no questions will outline expectations. Will the sub-contractor be expected to use COMSEC equipment, operate a SCIF, or create classified documents? If so, there are some subtasks required during preparation. For example, if the prime expects the sub to perform classified work on site, appropriate storage space, designated or dedicated work areas, information systems, and etc. should be approved, certified and accredited in time to meet performance requirements.

Are the clearance status and safeguarding capability of all subcontractors determined as required?

The cleared contractor should identify work requirements in the DD Form 254 to include storage level, where classified work will be performed, access requirements, and security guidance expected to be flowed down to the subcontractor. The DD Form 254 should be provided with the statement of work, contract, request for quote and etc. Iis the nexus of work, preparation, and expectations required of the sub and it allows the sub to cost the work performance. This documented performance requirement ranges from simply requiring a facility clearance with no storage capability to provide cleared employees to perform off site to classified storage capability to receive and generate classified information on site.

The DD Form 254 should trigger some actions by the prime contractor. For example, in block 11, the prime informs the subcontractor whether or not they will need to access classified information on-site.  Prior to the subcontracting effort, the prime contractor should make that determination and flow requirements to the sub-contractor. The prime contractor should show due diligence that they vetted and awarded the classified contract to a subcontractor who is able or will be able to protect classified information or otherwise perform on classified contracts per NISPOM when the performance requirements begin.

Do requests for facility clearance or safeguarding include the required information?

If the winning subcontractor is not currently cleared, the prime will have to jump into action to sponsor them (see how this is done) for a facility security clearance (FCL). This requires the prime to be proactive as they must solicit the cognizant security agency (usually Defense Security Services (DSS) for the Department of Defense) on behalf of the sub-contractor and provide rationale for the FCL. This rationale should include any safeguarding requirements and description of classified work required in the contract. The rationale should also include all factors to help DSS determine whether or not the subcontractor meets NISPOM requirements.  Though the sub can prepare administrative actions such as compiling and completing required documents and certificates, the sub-contractor cannot request their own clearance.

If your company is a prime contractor, have you incorporated adequate security classification guidance into each classified subcontract?

This is where blocks 13 and 14 really count. According to the DSS’s Guide For Preparing a  DD Form 254, block 13 should not just be a list of requirements documentation. Prime contractors should not just write, “protect all classified information according to NISPOM” or similar vague instruction. This area should be used to provide explicit information to help the subcontractor understand the nuances of protecting classified information according to the contract. To be specific, exact protection language should be incorporated here. If reference documents are used, such as security classification guides, statements of work, or other requirements items, the prime should list the document name, page number and exact language. This also includes any source documents as attachments to the DD Form 254 or delivered separately. The point is that blocks 13 should include specific security language to protect contract specific classified information.

If there are any security requirements that go above and beyond the NISPOM, these should be listed in Block 14. These also require prior approval from the government contracting activity.

Are original Contract Security Classification Specifications (DD 254) included with each classified solicitation?

This is a fair and accurate way to get the message across that any contractor that bids on the classified contract understands the requirements to protect the classified information. The DD Form 254 is a legally binding contractual document and the subcontractor will be required to perform to the contract specification. This requires the prime contractor to present the expected work outright in the statement of work and the DD Form 254.

If your company is a prime contractor, have you obtained approval from the GCA for subcontractor retention of classified information associated with a completed contract?

If the prime contractor expects to deliver 2000 classified documents or expects the sub-contractor to generate and or store classified information on site, the prime will need to secure approval from the Government Contracting Activity. Then the prime will flow approval and protection requirements down to the sub-contractor. Among other uses, this approval provides the GCA with assurance that the classified information is offered the same level of protection as required at the prime contractor cleared facility. The sub in return will receive the protection specifications and prepare the storage and work performance compliance and prepare to receive them. 

The FSO or self-inspecting official should look at all DD Form 254s generated by the cleared facility. They should validate that each is issued properly while seeking a demonstration of answers to each question. 

Jeffrey W. Bennett, ISP is the owner of Red Bike Publishing Red Bike Publishing . He regularly consults, presents security training, and recommends export compliance and intellectual property protection countermeasures. He is an accomplished writer of non-fiction books, novels and periodicals. Jeff is an expert in security and has written many security books including: "Insider's Guide to Security Clearances" and "DoD Security Clearances and Contracts Guidebook", "ISP Certification-The Industrial Security Professional Exam Manual", and NISPOM/FSO Training".