On Friday January 31, 2020, Ellen Lord, Under Secretary of Defense for Acquisition and Sustainment, Kevin Fahey, Assistant Secretary of Defense for Acquisition, and Katie Arrington, the Chief Information Security Officer for the Department of Defense (“DoD”), briefed reporters on the release of the Cybersecurity Maturity Model Certification (“CMMC”) Version 1.0.  We have discussed draft versions of the CMMC in earlier blog posts.

At the press conference, Under Secretary Lord and her staff emphasized the concerns that the DoD has with regard to sensitive, unclassified government data that resides in the networks of its supply chain, discussed the timeline for rolling out the CMMC, confirmed that DoD will be promulgating a new DFARS regulation to implement aspects of the CMMC, and acknowledged that DoD is continuing to work through the accreditation process.

First, Secretary Lord emphasized the significant national security threat that contractors and their subcontractors face from sophisticated cyber adversaries.  She noted that cyber attacks are low cost to conduct, but that in the past year alone, cyber attacks resulted in approximately $600 billion dollars of global GDP lost through cyber theft.  She also emphasized that DoD has expended considerable efforts communicating with and receiving input from industry and sees this as a key partnership between DoD and the defense industry to protect sensitive government information.

Second, DoD representatives explained that DoD is taking a “crawl, walk, run” approach with implementation of the CMMC.  Although the rollout will begin this year, DoD’s goal is to have the requirement fully implemented by Fiscal Year 2026.  This year, DoD intends to select third party accreditation vendors, to be called “C3PAOs.”  Although no significant details as to content were shared, DoD also plans to publish a new DFARS regulation in late spring or in early summer.  Finally, DoD plans to add CMMC requirements to ten procurements at the end of this year with contractors and subcontractors expected to meet all applicable CMMC requirements at the time of award.  DoD’s expectation is that each individual procurement will affect a relatively large number of contractors once subcontract awards at various levels of the supply chain are taken into account.  These procurements are expected to include a mix of CMMC Levels.

Third, DoD provided some insight into the Accreditation Body, which it stood up in early January 2020.  The Accreditation Body is charged with overseeing training, quality, and administration of the C3PAOs and will consist of 13 members from the defense industrial base, cybersecurity community, and academic community who self-nominate to join.  The names of the members of the Accreditation Body were not provided at the press conference, but DoD shared that the Body has elected a Chairman and that it has a Board of Directors.  DoD is currently drafting a memorandum of understanding (“MOU”) with the Accreditation Body that will outline the roles, rules, and responsibilities of the parties.  Given the sensitive information that the Accreditation Body and the auditors will have access to, the MOU is expected to address potential conflicts of interest.

Finally, DoD clarified some operational questions.  DoD confirmed that it will not seek to modify current contracts to apply the CMMC retroactively (although it is unclear whether the CMMC could be applied to an existing contract when DoD exercises an option).  DoD also stated that subcontractors will only need to be certified to the appropriate level based on the data that they receive or develop and the work they will perform on a contract.  Thus, depending on the type of work being flowed down, it is possible that a Level 3 procurement could have Level 1 subcontractors.  CMMC accreditation will be effective for three years, but DoD did not provide further guidance on the costs of obtaining the certification or specifics on how the audit process will work.

Shortly following the press conference, DoD published Version 1.0 of the CMMC, found here.  Although the press conference clarified some outstanding questions, others still remain.  We are analyzing the requirements imposed by Version 1.0 of the CMMC and will publish our analysis in an upcoming post.

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Photo of Susan B. Cassidy Susan B. Cassidy

Susan Cassidy co-chairs Covington’s Aerospace and Defense Industry Group, and has been advising government contractors for more than 35 years on the requirements imposed on companies contracting with the U.S. Government.

Susan’s practice focuses on the intersection of cybersecurity, national security, and supply…

Susan Cassidy co-chairs Covington’s Aerospace and Defense Industry Group, and has been advising government contractors for more than 35 years on the requirements imposed on companies contracting with the U.S. Government.

Susan’s practice focuses on the intersection of cybersecurity, national security, and supply chain risk management for companies that sell products and services to the U.S. Government. Susan advises contractors at all phases of the procurement cycle, and regularly:

advises clients on compliance obligations imposed by the FAR, DFARS, and other agency regulatory requirements;
leads internal and government False Claims Act (FCA) investigations addressing allegations of violations of government cybersecurity, national security, supply chain, quality, and MIL-SPEC requirements; and
advises clients who have suffered a cyber breach where U.S. government information may have been impacted.

In her work with global, national, and start-up contractors, Susan advises companies on all aspects of government supply chain issues including:

Government cybersecurity requirements, including the Cybersecurity Maturity Model Certification (CMMC), DFARS 252.204-7012, FedRAMP, controlled unclassified information (CUI), and NIST SP 800-171 requirements;
Evolving sourcing issues such as Section 889, counterfeit part requirements, Section 5949 semiconductor product and service restrictions, and limitations on sourcing a variety of products from China; and
Federal Acquisition Security Council (FASC) regulations and product exclusions.

 

Susan previously served as senior in-house counsel for two major defense contractors (Northrop Grumman Corporation and Motorola Incorporated) and is Chambers rated in both Government Contracts and Government Contracts Cybersecurity. Chambers USA has quoted sources stating that “Susan’s in-house experience coupled with her deep understanding of the regulatory requirements is the perfect balance to navigate legal and commercial matters.”

Susan is a former Public Contract Law Procurement Division Co-Chair, former Co-Chair and current Vice-Chair of the ABA PCL Cybersecurity, Privacy and Emerging Technology Committee.

Susan’s pro-bono work extends to assisting veterans in a variety of matters, as well as providing advice to elderly clients on their wills and other end-of-life planning documents.

Photo of Ashden Fein Ashden Fein

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Ashden counsels…

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Ashden counsels clients on preparing for and responding to cyber-based attacks, assessing security controls and practices for the protection of data and systems, developing and implementing cybersecurity risk management and governance programs, and complying with federal and state regulatory requirements. Ashden frequently supports clients as the lead investigator and crisis manager for global cyber and data security incidents, including data breaches involving personal data, advanced persistent threats targeting intellectual property across industries, state-sponsored theft of sensitive U.S. government information, extortion and ransomware, and destructive attacks.

Additionally, Ashden assists clients from across industries with leading internal investigations and responding to government inquiries related to the U.S. national security and insider risks. He also advises aerospace, defense, and intelligence contractors on security compliance under U.S. national security laws and regulations including, among others, the National Industrial Security Program (NISPOM), U.S. government cybersecurity regulations, FedRAMP, and requirements related to supply chain security.

Before joining Covington, Ashden served on active duty in the U.S. Army as a Military Intelligence officer and prosecutor specializing in cybercrime and national security investigations and prosecutions — to include serving as the lead trial lawyer in the prosecution of Private Chelsea (Bradley) Manning for the unlawful disclosure of classified information to Wikileaks. Ashden is a retired U.S. Army officer.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette is a government contracts and technology-focused lawyer that advises on federal contracting compliance requirements and on government and internal investigations that stem from these obligations. Ryan has particular experience with defense and intelligence contracting, as well as with cybersecurity, supply chain…

Ryan Burnette is a government contracts and technology-focused lawyer that advises on federal contracting compliance requirements and on government and internal investigations that stem from these obligations. Ryan has particular experience with defense and intelligence contracting, as well as with cybersecurity, supply chain, artificial intelligence, and software development requirements.

Ryan also advises on Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) compliance, public policy matters, agency disputes, and government cost accounting, drawing on his prior experience in providing overall direction for the federal contracting system to offer insight on the practical implications of regulations. He has assisted industry clients with the resolution of complex civil and criminal investigations by the Department of Justice, and he regularly speaks and writes on government contracts, cybersecurity, national security, and emerging technology topics.

Ryan is especially experienced with:

Government cybersecurity standards, including the Federal Risk and Authorization Management Program (FedRAMP); DFARS 252.204-7012, DFARS 252.204-7020, and other agency cybersecurity requirements; National Institute of Standards and Technology (NIST) publications, such as NIST SP 800-171; and the Cybersecurity Maturity Model Certification (CMMC) program.
Software and artificial intelligence (AI) requirements, including federal secure software development frameworks and software security attestations; software bill of materials requirements; and current and forthcoming AI data disclosure, validation, and configuration requirements, including unique requirements that are applicable to the use of large language models (LLMs) and dual use foundation models.
Supply chain requirements, including Section 889 of the FY19 National Defense Authorization Act; restrictions on covered semiconductors and printed circuit boards; Information and Communications Technology and Services (ICTS) restrictions; and federal exclusionary authorities, such as matters relating to the Federal Acquisition Security Council (FASC).
Information handling, marking, and dissemination requirements, including those relating to Covered Defense Information (CDI) and Controlled Unclassified Information (CUI).
Federal Cost Accounting Standards and FAR Part 31 allocation and reimbursement requirements.

Prior to joining Covington, Ryan served in the Office of Federal Procurement Policy in the Executive Office of the President, where he focused on the development and implementation of government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year.  While in government, Ryan helped develop several contracting-related Executive Orders, and worked with White House and agency officials on regulatory and policy matters affecting contractor disclosure and agency responsibility determinations, labor and employment issues, IT contracting, commercial item acquisitions, performance contracting, schedule contracting and interagency acquisitions, competition requirements, and suspension and debarment, among others.  Additionally, Ryan was selected to serve on a core team that led reform of security processes affecting federal background investigations for cleared federal employees and contractors in the wake of significant issues affecting the program.  These efforts resulted in the establishment of a semi-autonomous U.S. Government agency to conduct and manage background investigations.

Photo of Darby Rourick Darby Rourick

Darby Rourick is a government contracts lawyer that advises on federal contracting compliance requirements and on government and internal investigations that stem from these obligations. She has particular experience in federal cybersecurity and information technology supply chain issues. Darby has an active investigations…

Darby Rourick is a government contracts lawyer that advises on federal contracting compliance requirements and on government and internal investigations that stem from these obligations. She has particular experience in federal cybersecurity and information technology supply chain issues. Darby has an active investigations practice and advises contractors when faced with cyber incidents involving government information, as well as representing contractors facing allegations of cyber fraud under the False Claims Act. She also counsels clients on cybersecurity incident response; compliance with federal cybersecurity laws, regulations, and standards; supplier and subcontractor security issues; and cybersecurity related investigations.

Darby has particular regulatory experience with:

Government cybersecurity supply chain issues like the Cybersecurity Maturity Model Certification (CMMC), DFARS 7012, and NIST SP 800-171 requirements; and
Information handling, marking, and dissemination requirements, including those relating to Covered Defense Information (CDI) and Controlled Unclassified Information (CUI)

She also assist clients when allegations of non-compliance arise with procurement requirements, such as in the following areas:

Procurement fraud and FAR mandatory disclosure requirements;
Allegations of violations of cybersecurity regulation;
Cyber incidents and data spills; and 
Compliance with MIL-SPEC requirements, the Qualified Products List, and other sourcing obligations.