Background

DoD’s 2016 final rule promulgating cybersecurity requirements at DFARS 252.204-7012 was a momentous development for DoD contractors, in part because the requirements included compliance with 110 security controls in National Institute of Standards and Technology (“NIST”) Special Publication 800-171. Compliance with these requirements is burdensome and expensive. Earlier this year, DoD announced a separate cybersecurity initiative called the Cybersecurity Maturity Model Certification (“CMMC”), which may prove to be just as significant for contractors as the 2016 final rule. As we discussed in our prior article, the CMMC initiative will be a comprehensive and coordinated standard for cybersecurity, bringing together certain existing requirements, private sector contributions, and input from academia. We discussed other key aspects of the CMMC, including:

• The CMMC will include deployment of a tool that third-party cybersecurity certifiers will use to audit contractors;
• The CMMC will consist of 5 levels, ranging from basic hygiene (Level 1) to “State-of-the-Art” (Level 5), which will appear in sections L and M of DoD solicitations;
• CMMC Version 1.0 is targeted for a January 2020 delivery, with third-party audits to begin shortly thereafter; and
• The required CMMC Level will be a “go/no-go decision” in DoD procurements, meaning that failure to comply may be fatal to a contractor’s offer.

This article provides updates on several significant CMMC developments since we published our prior article.

Public Presentations Providing Additional Information About the CMMC

The CMMC initiative is being spearheaded by DoD’s Katie Arrington, Special Assistant for Cybersecurity to the Assistant Secretary of Defense for Acquisition. Since we published our prior article on July 8, 2019, Ms. Arrington has spoken publicly about the CMMC initiative. We identify below information from certain of these presentations that was not part of our prior article.

The focus of the CMMC initiative is the supply chain, which comprises roughly 300,000 companies. Clearly, DoD has concluded that large numbers of companies in the supply chain are not complying with DFARS 252.204-7012. All companies will have to obtain certification in order to do business with DoD. Stated another way, the CMMC is not a source selection criterion—companies will either be qualified to submit proposals or not. This is the only way to level the playing field for the supply chain.  

The CMMC is an iterative process with industry. The notional model, “CMMC Phase 1,” is that there will need to be a number of controls for each CMMC Level. Level 1 is basic hygiene, such as changing passwords. Level 3 triggers application of all of the DFARS clause requirements, including compliance with all 110 NIST security controls.  

DoD cannot perform the certification efforts for 300,000 suppliers and will need to rely on auditors/certifiers. DoD will turn the CMMC over to industry certifiers for training in 2020, and many companies are lining up to be certifiers. Consistent with DoD’s emphasis on enhancing protection of the supply chain, every prime contractor and vendor will need to be certified. Third-party certifiers will be able to certify to all levels, and there will be a tool to ensure conformity among certifiers. There will be no contracts between contractors and certifiers, and contractors will be able to choose who will certify them. Universities and academia will need to be certified to perform DoD grants and cooperative agreements, which is significant because DFARS 252.204-7012 does not apply to grants and cooperative agreements. Importantly, there will be an appeal process for companies that are denied certification. The CMMC should be a positive development for prime contractors, who should be able to trust third-party certifiers with respect to suppliers.

A particular contractor’s certification level will be made public. However, details regarding specific findings will not be publicly accessible.

Contractors will receive a holistic security score—every IP address will receive a score. This score will not be used as part of the “go/no-go decision” or for assessing past performance, but rather will apparently be used to determine unusually high cyber activity/vulnerability that will enable DoD to offer assistance.  

The proposed FAR rule on Controlled Unclassified Information is being delayed, and the drafting of that rule is being reconsidered, as DoD assesses what happens with the CMMC exercise.  

DoD Website

The DoD CMMC website is up and running. The introductory section of the website states in part:

The Office of the Under Secretary of Defense for Acquisition and Sustainment (OUSD(A&S)) recognizes that security is foundational to acquisition and should not be traded along with cost, schedule, and performance moving forward. . . .  OUSD(A&S) is working with DoD stakeholders, University Affiliated Research Centers (UARCs), Federally Funded Research and Development Centers (FFRDC), and industry to develop the Cybersecurity Maturity Model Certification (CMMC).

The website also contains helpful FAQs, including:

• Are the results of my assessment public? Does the DoD see my results? Your certification level will be made public, however details regarding specific findings will not be publically accessible. The DoD will see your certification level.
• If my organization is certified CMMC and I am compromised will my organization require re-recertification? A compromise will not automatically require a recertification. However, depending on the circumstances of the compromise and the direction of your government program manager, you may be required to be recertified.
• My organization does not handle Controlled Unclassified Information (CUI).  Do I have to be certified anyway? Yes. All companies conducting business with the DoD must be certified. The level of certification required depends upon the CUI a company handles or processes.

DoD Has Issued Its First CMMC Draft
    
In an important development, DoD issued a draft of the CMMC—CMMC v0.4—on September 5, 2019. That draft is available here. DoD has indicated the draft is the “midpoint” of development and has requested feedback by 5:00 pm on September 25, 2019 (via a form and email address provided in the previous link to the draft). The CMMC model will continue to be improved over the next several months, with the finalization of v1.0 in January 2020.  

In addition to the form for submitting feedback, DoD issued two primary documents:  (1) a 19-page document summarizing information about the CMMC, and (2) a 58-page “Version 0.4” that provides extensive information about each of the 5 Levels. The 19-page document includes the following information:

• The CMMC model framework consists of 18 “Domains,” based on cybersecurity “best practices.”
• Domains are comprised of “Capabilities” – achievements to ensure cybersecurity within each domain.
• Capabilities are comprised of “Practices” and “Processes,” which are mapped to Levels 1 through 5.  Rev 0.4 adds numerous Practices to each Level. For example, Rev 0.3 had 17 Practices for Level 1, and Rev 0.4 adds 18 Practices for a total of 35 for Level 1.
• The CMMC will be included in RFIs starting in June 2020 and in RFPs starting in Fall 2020.
• DoD will issue a “Rev 0.6” version of the CMMC in November 2019 for public comment.
• The model is still being refined and a reduction in size is anticipated; detailed assessment guidance is under development.

The second primary document issued by DoD is the 58-page “Version 0.4” document. That document is organized by the 18 Domains (e.g., the first Domain is “Access Control”). Within each Domain, the document is further divided into specific Capabilities, and for each Capability, the document lists Practices and Processes for the five Levels. This is a significant amount of information and is undoubtedly the focus of DoD’s statement that “Down selecting, prioritizing, and consolidating capabilities is still to occur.”

What Steps Can You Take to Be Ready for the CMMC?
    
In addition to the steps we identified in our prior article, you should monitor DoD’s CMMC website periodically for new information about the initiative.
    
You also can use the website to submit questions and comments about CMMC to DoD.
    
You should consider reviewing the detailed information in the documents DoD recently issued as part of CMMC v0.4 and providing feedback on those documents. While you should feel free to provide feedback on any aspect of the documents, DoD has asked four questions in soliciting feedback:

1. What do you recommend removing or de-prioritizing to simplify the model and why?
2. Which elements provide high value to your organization?
3. Which practices would you move or cross-reference between levels and domains?
4. In preparation for the pending easy-to-use assessment guidance, what recommendations might you have to clarify practices and processes?

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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