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DoD Digs In Its Cyber “SPRS”: New Solicitation Provision Requires Contracting Officers to Consider SPRS Risk Assessments

By Michael G. Gruden, CIPP/G & Nkechi Kanu on March 28, 2023
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On March 22, 2022, the Department of Defense (DoD) issued a final rule requiring contracting officers to consider supplier risk assessments in DoD’s Supplier Performance Risk System (SPRS) when evaluating offers. SPRS is a DoD enterprise system that collects contractor quality and delivery performance data from a variety of systems to develop three risk assessments: item risk, price risk, and supplier risk. The final rule introduces a new solicitation provision, DFARS 252.204-7024, which instructs contracting officers to consider these assessments, if available, in the determination of contractor responsibility.

SPRS risk assessments are generated daily using specific criteria and calculations based on the price, item, quality, delivery, and contractor performance data collected in the system.  Although compliance with cybersecurity clauses DFARS 252.204-7012, -7019, or -7020 are not currently used to generate supplier risk assessments, the potential cybersecurity implications are evident. Under DFARS -7019 and -7020, DoD requires contractors to demonstrate their compliance with cybersecurity standard NIST SP 800-171 by scoring their implementation of 110 controls and uploading their score to SPRS.

Some believe that DoD could incorporate the NIST 800-171 Basic Self-Assessment score into the supplier risk assessment at any time. If SPRS scores are incorporated into supplier risk assessments, this solicitation provision will make the accuracy and veracity of contractors’ SPRS scores significantly more important. Inaccurate SPRS scores could open contractors to legal risk, including False Claims Act (FCA) liability. Under the Department of Justice’s Civil Cyber Fraud Initiative, FCA actions regarding inaccurate cybersecurity representations have increased. Because these assessments will now influence award decisions, accuracy will become key.

Photo of Michael G. Gruden, CIPP/G Michael G. Gruden, CIPP/G

Michael G. Gruden is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Government Contracts and Privacy and Cybersecurity groups. He possesses real-world experience in the areas of federal procurement and data security, having worked…

Michael G. Gruden is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Government Contracts and Privacy and Cybersecurity groups. He possesses real-world experience in the areas of federal procurement and data security, having worked as a Contracting Officer at both the U.S. Department of Defense (DoD) and the U.S. Department of Homeland Security (DHS) in the Information Technology, Research & Development, and Security sectors for nearly 15 years. Michael is a Certified Information Privacy Professional with a U.S. government concentration (CIPP/G). He is also a Registered Practitioner under the Cybersecurity Maturity Model Certification (CMMC) framework. Michael serves as vice-chair for the ABA Science & Technology Section’s Homeland Security Committee.

Michael’s legal practice covers a wide range of counseling and litigation engagements at the intersection of government contracts and cybersecurity. His government contracts endeavors include supply chain security counseling, contract disputes with federal entities, suspension and debarment proceedings, mandatory disclosures to the government, prime-subcontractor disputes, and False Claims Act investigations. His privacy and cybersecurity practice includes cybersecurity compliance reviews, risk assessments, data breaches, incident response, and regulatory investigations.

Read more about Michael G. Gruden, CIPP/GEmail
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Photo of Nkechi Kanu Nkechi Kanu

Nkechi A. Kanu is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group.

Nkechi’s practice focuses on False Claims Act investigations and litigation. Nkechi has significant experience assisting companies with…

Nkechi A. Kanu is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group.

Nkechi’s practice focuses on False Claims Act investigations and litigation. Nkechi has significant experience assisting companies with complex internal investigations and represents clients in government investigations involving allegations of fraud. She also focuses on assisting clients with investigations relating to cybersecurity and information security compliance. Her complementary litigation practice involves defending companies in government-facing litigation arising under the FCA, resulting in the dismissal of qui tam complaints and successful settlements of FCA claims with DOJ.

Read more about Nkechi KanuEmail
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  • Posted in:
    Government Contracts
  • Blog:
    Government Contracts Legal Forum
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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