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TrustedSec guidance: FCI and CUI safeguarding obligations do not apply pre-contract, and CMMC cannot be imposed during solicitation

1 fonte(s) · 1 atualização(ões) · publicado 20/10/2026 01:00 · coletado há 15 horas

TrustedSec (author Chris Camejo) explains that FCI and CUI safeguarding obligations do not exist during the pre-contract solicitation phase unless the contractor has agreed to a specific pre-contract agreement. Prime contractors, especially large DoD primes, are increasingly pushing CMMC, FAR 52.204-21 and DFARS 252.204-7012/7021 requirements onto prospective subcontractors and proposal consultants before any contract is signed. The post argues these demands go beyond what the government requires. Any dispute over them is a private contractual matter, not a government compliance issue. This is compliance guidance, not a security incident or threat report.

Technical Details

  • 32 CFR Part 2002 (the CUI regulation) applies directly only to executive branch agencies. Private entities become obligated only through agreements with agencies (32 CFR 2002.1(f), 2002.4(c), 2002.16(a)).
  • Contract clauses (FAR 52.204-21, DFARS 252.204-7012, DFARS 252.204-7021, HSAR 3052.204-72, NFS 1852.204-76) apply only to information handled under the contract that contains them, never to solicitation-phase data or data from earlier contracts.
  • FCI cannot exist before a contract, because FAR 52.204-21 defines it as information provided or generated under a contract.
  • Pre-contract CUI agreements are not standardized. An example C-130 RFP on sam.gov requires only need-to-know sharing, a DD Form 2345 and flow-down, with no NIST SP 800-171 or CMMC requirement.
  • Common confusions listed: applying 32 CFR 2002 directly to contractors, applying contract clauses pre-award, treating compliance with prior contracts as a safe harbor, treating proprietary or solicitation data as CUI, and applying CUI clauses to subcontracts that handle no CUI.

Remediation

  • Review each pre-contract agreement individually and flow down only legitimate government pre-contract agreements tied to the same solicitation.
  • Do not create home-made pre-contract CUI agreements or impose CMMC on potential subcontractors before award.
  • Subcontractors should ask questions and push back with accurate information on scope and applicability.
  • Even without a formal obligation, limit distribution, avoid public posting, ask senders about expectations, and consider basic safeguards. Also check NDAs, export-control rules and other private obligations.

Linha do tempo

  1. trustedsec.com ↗ · pub. 20/10/2026 01:00 · coletado 20/10 11:00 primeiro registro

    TrustedSec guidance: FCI and CUI safeguarding obligations do not apply pre-contract, and CMMC cannot be imposed during solicitation

    ler a análise desta fonte

    TrustedSec (author Chris Camejo) explains that FCI and CUI safeguarding obligations do not exist during the pre-contract solicitation phase unless the contractor has agreed to a specific pre-contract agreement. Prime contractors, especially large DoD primes, are increasingly pushing CMMC, FAR 52.204-21 and DFARS 252.204-7012/7021 requirements onto prospective subcontractors and proposal consultants before any contract is signed. The post argues these demands go beyond what the government requires. Any dispute over them is a private contractual matter, not a government compliance issue. This is compliance guidance, not a security incident or threat report.

    Technical Details

    • 32 CFR Part 2002 (the CUI regulation) applies directly only to executive branch agencies. Private entities become obligated only through agreements with agencies (32 CFR 2002.1(f), 2002.4(c), 2002.16(a)).
    • Contract clauses (FAR 52.204-21, DFARS 252.204-7012, DFARS 252.204-7021, HSAR 3052.204-72, NFS 1852.204-76) apply only to information handled under the contract that contains them, never to solicitation-phase data or data from earlier contracts.
    • FCI cannot exist before a contract, because FAR 52.204-21 defines it as information provided or generated under a contract.
    • Pre-contract CUI agreements are not standardized. An example C-130 RFP on sam.gov requires only need-to-know sharing, a DD Form 2345 and flow-down, with no NIST SP 800-171 or CMMC requirement.
    • Common confusions listed: applying 32 CFR 2002 directly to contractors, applying contract clauses pre-award, treating compliance with prior contracts as a safe harbor, treating proprietary or solicitation data as CUI, and applying CUI clauses to subcontracts that handle no CUI.

    Remediation

    • Review each pre-contract agreement individually and flow down only legitimate government pre-contract agreements tied to the same solicitation.
    • Do not create home-made pre-contract CUI agreements or impose CMMC on potential subcontractors before award.
    • Subcontractors should ask questions and push back with accurate information on scope and applicability.
    • Even without a formal obligation, limit distribution, avoid public posting, ask senders about expectations, and consider basic safeguards. Also check NDAs, export-control rules and other private obligations.