New Cybersecurity Certification Framework Will Have Significant Impact on Defense Contractors

Perkins Coie

Perkins Coie

The U.S. Department of Defense (DOD) is forging ahead in its plan to adopt a new framework for cybersecurity, with significant ramifications for all defense contractors, including subcontractors.

On November 8, 2019, DOD released Version 0.6 of its Cybersecurity Maturity Model Certification (CMMC). DOD anticipates releasing the final model in January 2020 and including it in federal solicitations starting in fall 2020.

Intended to protect DOD’s supply chain against increasing cyber threats, CMMC will have a significant impact on contractors. Each of DOD’s 300,000-plus contractors and suppliers will need to be certified according to a new, unified cybersecurity framework.

This update provides an overview of CMMC and its significance. It also highlights key aspects of Version 0.6 and identifies important questions that remain open.

DOD’s Existing Framework Based on Self-Assessments

The existing cybersecurity framework for defense contractors is derived from various sources. Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012 requires that contractors implement the National Institute of Standards and Technology’s (NIST) Special Publication (SP) 800-171, which lists controls intended to safeguard Controlled Unclassified Information (CUI) residing on contractor systems. CUI is broadly defined as any information that law, regulation or governmentwide policy requires to have safeguarding or disseminating controls. CUI does not include classified information.

Among other things, NIST SP 800-171 requires contractors to develop, document and update system security plans. It also requires that contractors develop and implement plans to correct deficiencies and to reduce or eliminate vulnerabilities in their systems.

Under DFARS 252.204-7012, contractors must provide adequate security on their information systems. They also must rapidly report cyber incidents to DOD. The Federal Acquisition Regulation (FAR) also has “basic safeguarding requirements” for contractors’ information systems set forth in FAR 52.204-21.

To date, contractors have largely been allowed to determine for themselves how to implement NIST SP 800-171. In a September 2017 guidance, DOD explained that it is the contractor’s responsibility to implement NIST SP 800-171 and that third-party assessments of compliance are not required.

CMMC: Single, Unified Standard With Third-Party Verification

DOD has been developing CMMC with the input of industry, university-affiliated research centers, federally-funded research and development centers, and other stakeholders. The rollout process has shifted into a higher gear recently in anticipation of final release of the model.

CMMC reflects DOD’s assessment that cybersecurity is an increasingly urgent threat and that protecting against loss of CUI within the defense industrial base is critical to national security. Version 0.6 asserts that cybersecurity “must become a foundation of DoD acquisition.” DOD cites estimates that the global cost of cybercrime each year is approximately $600 billion.

CMMC will create a single, unified standard, borrowing from various existing cybersecurity controls. Defense contractors will be required to hold a CMMC certificate at the specified level to be eligible for award of DOD contracts. All companies conducting business with DOD will have to be certified, including subcontractors and companies that do not even handle CUI.

There will be five certification levels ranging from Level 1 (Basic Cybersecurity Hygiene) to Level 5 (Advanced/Progressive). Each level has its own practices and processes.

In September 2019, DOD released Version 0.4 for public comment. Based on these comments, Version 0.6 updates Levels 1 through 3 but omits Levels 4 and 5. According to DOD, Levels 4 and 5 will be addressed in the next public release.

CMMC categorizes cybersecurity best practices into 17 domains. Examples of domains are Access Control, Risk Management and Incident Response. Each domain is broken further into capabilities and even further into practices and processes. The practices and processes are the activities required to achieve specific capabilities for each of the five maturity levels of CMMC. Thus, to be certified at a given CMMC level, companies will have to demonstrate that they comply with the practices and processes for that level.

Third-Party Assessments and Certifications

The process of certifying contractors’ compliance with each of the CMMC levels will be performed by a Third-Party Assessment Organization that will assess the maturity of a company’s cybersecurity practices and processes and grant or deny certifications. Contractors will have to coordinate directly with these organizations to request and schedule an assessment.

Each Third-Party Assessment Organization must be accredited by an Accreditation Body, a yet-to-be-created non-governmental entity that will manage and operate CMMC. The Accreditation Body will set the terms and conditions for accrediting Third-Party Assessment Organizations and establish processes for things such as quality control, auditor training and dispute resolution. On November 19, 2019, DOD held a “kickoff meeting” with interested parties regarding the establishment of the Accreditation Body.

DOD intends to identify the required CMMC level in DOD solicitations and to use the level as a go/no go decision in the source selection process. Thus, companies will only be able to be considered for solicitations for which they have the proper certification level or higher. Without the proper CMMC certification, a company will not be eligible to receive the DOD contract.

CMMC Levels 1 Through 3

Version 0.6 provides greater insight into the differences between Levels 1, 2 and 3 as follows:

  • To comply with Level 1, companies will have to implement the basic security controls set forth in FAR 52.204-21, the “basic safeguarding” clause. Version 0.6 states that Level 1 practices are foundational and must be completed by all certified organizations. Version 0.6 maps the Level 1 practices to the specific requirements in FAR 52.204-21 and to particular requirements in NIST SP 800-171.
  • Level 2 focuses on “intermediate cyber hygiene” and requires more advanced practices to protect and to sustain assets against cyber threats. Companies certified at Level 2 will be expected to establish and document standard operating procedures, policies and strategic plans for cybersecurity.
  • Level 3 companies will have “good cyber hygiene” and must meet the security requirements in NIST SP 800-171 Rev. 1. Organizations that will generate or require access to CUI will need a Level 3 certification. Companies certified at Level 3 must have a basic ability to protect and sustain an organization’s assets and CUI, but may have challenges defending against advanced persistent threats, according to the draft model.
  • Levels 4 and 5 apply to organizations with a “substantial and proactive cybersecurity program” that allows them to address the changing tactics, techniques and procedures used by advanced persistent threats.

An appendix to Version 0.6 lists the practices applicable to each CMMC level and offers examples of policies and practices for Level 1.

Implications for Contractors and Open Questions

The establishment of a new, single and unified standard has the promise of bringing greater clarity and predictability to a highly complex and evolving area involving multiple standards issued by multiple bodies. CMMC’s establishment of a go/no-go test for all DOD contractors will also introduce a significant new step in the source selection process that stops short of making cybersecurity compliance a factor to be evaluated like other non-price factors.

Industry and other stakeholders have raised a number of concerns and questions about CMMC and its implementation. For example:

  • Impact on small businesses and commercial suppliers: CMMC does not have exceptions for commercial suppliers or small businesses. Although DOD’s goal is for CMMC to be cost effective and affordable for small businesses to implement at the lower CMMC levels, certification and compliance are likely to challenge many suppliers.
  • Identification of the relevant controls: To help identify what controls apply to them, companies should scrutinize the differences between CMMC’s unified standard and presently applicable controls. CMMC incorporates dozens of practices from NIST SP 800-171 that currently apply to contracts under the DFARS, but also borrows standards from the United Kingdom and Australia that are less familiar to contractors.
  • Subcontractor flow-down issues: There are questions regarding the flow down of certification requirements to subcontractors and lower tier subcontractors and the responsibilities of prime contractors and subcontractors for lower tier subcontractors. For example: will subcontractors at each tier need to satisfy the same level as the prime?
  • Quality control: Significant questions remain regarding the CMMC Accreditation Body, including what processes the body will put in place to ensure quality control of third-party assessments of companies’ cybersecurity practices and processes.
  • Identification of the level for a given procurement: DOD states that the CMMC level will be specified in Sections L and M of solicitations. This introduces an element of uncertainty. It is unclear what standards agencies will apply in the selection of a CMMC level for a specific solicitation. It also is unclear to what extent each military department will follow a standard level selection approach.
  • Cost allowability: Compliance costs could be significant. DOD has stated that cybersecurity compliance will be an allowable cost but has yet to offer details. One question is whether contractors will have any means of recovering pre-award costs to bring their systems into compliance with CMMC in a particular procurement.
  • Disputes and protests: There are questions as to whether and in what form disputes may be resolved, especially to the extent that third-party assessors will be private companies. The Contract Disputes Act only applies to suits against the government. Another issue is to what extent the General Accountability Office and U.S. Court of Federal Claims will have jurisdiction to hear cybersecurity-related bid protests under the CMMC framework.
  • Non-DOD and intelligence community contracts: At least for now, CMMC does not apply to non-DOD agencies and does not provide controls for classified systems. Different cyber approaches among defense and civilian agencies could pose a problem.
  • Consequences for failure to meet cybersecurity requirements: Companies certified at a given level could face serious risks if they fail to meet cybersecurity requirements. For example, in July 2019, there was an $8.6 million settlement resolving a qui tam relator’s suit under the False Claims Act based on alleged cybersecurity non-compliance.

In anticipation of CMMC’s release next year, companies should familiarize themselves with Version 0.6 and ensure that they are taking steps to prepare for CMMC to the extent possible, including identifying which CMMC level(s) will likely apply to them and their suppliers.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.