The Department of Defense (DoD) released key documentation relating to Cybersecurity Maturity Model Certification (CMMC) 2.0 over the past several weeks, including (1) a CMMC 2.0 Model Overview document, (2) CMMC Self-Assessment Scopes for Level 1 and 2 assessments/certifications, (3) CMMC Assessment Guides for Level 1 and 2 attestations/certifications, and (4) the CMMC Artifact Hashing Tool User Guide.

DoD has stated that CMMC 2.0 will not be a contractual requirement until the Department completes the rulemaking needed to implement the program.  Although that rulemaking process is estimated by DoD at 9 to 24 months, these documents are highly relevant to any contractors selling to DoD.  Once CMMC 2.0 is implemented, it will be mandatory where sensitive DoD information is provided to a contractor or generated, processed, stored, or transmitted in support of performance of a DoD contract.  Moreover, those contractors who can implement CMMC practices more quickly likely will have a competitive advantage over contractors who wait to address CMMC until right before the clauses appear in individual procurements.  Key aspects of each of these documents are discussed below.

CMMC 2.0 Overview Document

As we discussed in more detail in prior posts, CMMC 2.0 is markedly different than CMMC 1.0 in certain ways.  Principal differences include the fact that CMMC 2.0 has only three maturity levels — Foundational (Level 1), Advanced (Level 2), and Expert (Level 3) — relative to CMMC 1.0, which had five levels.  Under CMMC 2.0, a Level 1 self-assessment is required where Federal Contract Information (FCI) is involved, a Level 2 self-assessment/attestation or third-party certification is required where Controlled Unclassified Information (CUI) is involved, and a Level 3 certification is required where DoD determines that a contractor must implement additional practices to reduce the risk associated with Advanced Persistent Threats.

The newly released overview document outlines the general requirements that contractors must implement to achieve each CMMC level.  As set forth in the document, Level 1 of CMMC 2.0 is equivalent to all of the safeguarding requirements from FAR Clause 52.204-21 and Level 2 is equivalent to all of the security requirements in NIST SP 800-171, “Protecting Controlled Unclassified Information in Nonfederal Systems and Organizations” (Rev. 2).  The overview document indicates that Level 3 certification requirements will be a subset of the requirements in NIST SP 800-172, “Enhanced Security Requirements for Protecting Controlled Unclassified Information: A Supplement to NIST Special Publication 800-171”, but it does not specify which requirements will apply, and only notes that details for Level 3 certifications will be released at a later date.  In each case, the levels build on one another, i.e., a contractor must implement all of the practices at Levels 1 and 2 plus additional Level 3 requirements in order to achieve a Level 3 certification.

As Level 2 tracks with the requirements set forth under NIST SP 800-171 Rev. 2, the document references the “[d]evelop[ment] and implement[ion of] plans of action designed to correct deficiencies and reduce or eliminate vulnerabilities in organizational systems,” but provide no further specifics.  Nonetheless, DoD has indicated elsewhere, including in a recent Federal Register Notice (previously rescinded but now republished with certain changes), that a Plan of Action and Milestone (POA&M) may be used in certain contexts.

CMMC Self-Assessment Scopes for Levels 1 and 2

The CMMC Self-Assessment Scope for Level 1 and Level 2 is used to define those assets within the contractor’s environment that will be in scope of the assessment and self-attestation/third-party certification.  Specifically, this document relates to the description of the environment that will store, process, or transmit FCI (Level 1) or CUI (Level 2), which are considered to be “in-scope assets.”

Each of these documents makes clear that there are no documentation requirements for out of scope assets and that such assets should not be part of the assessment.  Notably, each document addresses “Specialized Assets,” which includes Government Property, Internet of Things or Industrial Internet of Things, Operational Technology, Restricted Information Systems, and Test Equipment.  Specialized Assets are not part of the assessment scope under Level 1 and are therefore not assessed against CMMC practices.  Specialized Assets are part of the CMMC assessment scope under Level 2, however, and contractors are required to document these assets in the System Security Plan (SSP) and detail how they are managed using the contractor’s risk-based information security policy, procedures, and practices.

CMMC Assessment Guides for Levels 1 and 2

The Level 1 Assessment Guide and Level 2 Assessment Guide are intended to provide certified assessors, contractors, and IT and cybersecurity professionals with guidance to help prepare for a CMMC assessment (including self-assessments).  The two guides are similarly organized, and each provides: (1) an overview of the CMMC assessment and certification process, (2) information about assessment criteria and methodology, (3) clarification of the intent and scope of various terms of the CMMC, and (4) assessment requirements and specifics for each CMMC practice.  Specific information in the guides includes the type of documentation to be assessed, documentation of assessment findings, and examples of implemented technical practices, among other things.  The Level 2 Assessment Guide also indicates that it leverages information included in NIST SP 800-171A, “Assessing Security Requirements for Controlled Unclassified Information,” that NIST published in 2018.

CMMC Artifact Hashing Tool User Guide

This hashing guide is used for the very specific purpose of overviewing the CMMC’s Artifact Hashing Tool, which is used to create a unique digital fingerprint (i.e. SHA-256 hash) for each document, file, or other artifact used as proof of compliance with CMMC.  The document explains that assessors do not take copies of artifacts of evidence with them after an assessment because these articles are proprietary to the contractor.  Instead, the assessor generates unique fingerprints of each file using the tool and follows the instructions set forth in the guide so that the assessor can document the exact artifacts, and the contractor could produce those artifacts in the future, if needed.

Photo of Robert Huffman Robert Huffman

Bob Huffman counsels government contractors on emerging technology issues, including artificial intelligence (AI), cybersecurity, and software supply chain security, that are currently affecting federal and state procurement. His areas of expertise include the Department of Defense (DOD) and other agency acquisition regulations governing…

Bob Huffman counsels government contractors on emerging technology issues, including artificial intelligence (AI), cybersecurity, and software supply chain security, that are currently affecting federal and state procurement. His areas of expertise include the Department of Defense (DOD) and other agency acquisition regulations governing information security and the reporting of cyber incidents, the proposed Cybersecurity Maturity Model Certification (CMMC) program, the requirements for secure software development self-attestations and bills of materials (SBOMs) emanating from the May 2021 Executive Order on Cybersecurity, and the various requirements for responsible AI procurement, safety, and testing currently being implemented under the October 2023 AI Executive Order. 

Bob also represents contractors in False Claims Act (FCA) litigation and investigations involving cybersecurity and other technology compliance issues, as well more traditional government contracting costs, quality, and regulatory compliance issues. These investigations include significant parallel civil/criminal proceedings growing out of the Department of Justice’s Cyber Fraud Initiative. They also include investigations resulting from False Claims Act qui tam lawsuits and other enforcement proceedings. Bob has represented clients in over a dozen FCA qui tam suits.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including those arising under the Buy American Act/Trade Agreements Act and Section 889 of the FY2019 National Defense Authorization Act. In addition, Bob advises government contractors on rules relating to IP, including government patent rights, technical data rights, rights in computer software, and the rules applicable to IP in the acquisition of commercial products, services, and software. He focuses this aspect of his practice on the overlap of these traditional government contracts IP rules with the IP issues associated with the acquisition of AI services and the data needed to train the large learning models on which those services are based. 

Bob writes extensively in the areas of procurement-related AI, cybersecurity, software security, and supply chain regulation. He also teaches a course at Georgetown Law School that focuses on the technology, supply chain, and national security issues associated with energy and climate change.

Photo of Susan B. Cassidy Susan B. Cassidy

Susan is co-chair of the firm’s Aerospace and Defense Industry Group and is a partner in the firm’s Government Contracts and Cybersecurity Practice Groups. She previously served as in-house counsel for two major defense contractors and advises a broad range of government contractors…

Susan is co-chair of the firm’s Aerospace and Defense Industry Group and is a partner in the firm’s Government Contracts and Cybersecurity Practice Groups. She previously served as in-house counsel for two major defense contractors and advises a broad range of government contractors on compliance with FAR and DFARS requirements, with a special expertise in supply chain and cybersecurity requirements. She has an active investigations practice and advises contractors when faced with cyber incidents involving government information. Susan relies on her expertise and experience with the Defense Department and the Intelligence Community to help her clients navigate the complex regulatory intersection of cybersecurity, national security, and government contracts. She is Chambers rated in both Government Contracts and Government Contracts Cybersecurity. In 2023, Chambers USA 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.”

Her clients range from new entrants into the federal procurement market to well established defense contractors and she provides compliance advices across a broad spectrum of procurement issues. Susan consistently remains at the forefront of legislative and regulatory changes in the procurement area, and in 2018, the National Law Review selected her as a “Go-to Thought Leader” on the topic of Cybersecurity for Government Contractors.

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 7012, and NIST SP 800-171 requirements,
  • Evolving sourcing issues such as Section 889, counterfeit part requirements, Section 5949 and limitations on sourcing from China
  • Federal Acquisition Security Council (FASC) regulations and product exclusions,
  • Controlled unclassified information (CUI) obligations, and
  • M&A government cybersecurity due diligence.

Susan has an active internal investigations practice that assists clients when allegations of non-compliance arise with procurement requirements, such as in the following areas:

  • Procurement fraud and FAR mandatory disclosure requirements,
  • Cyber incidents and data spills involving sensitive government information,
  • Allegations of violations of national security requirements, and
  • Compliance with MIL-SPEC requirements, the Qualified Products List, and other sourcing obligations.

In addition to her counseling and investigatory practice, Susan has considerable litigation experience and has represented clients in bid protests, prime-subcontractor disputes, Administrative Procedure Act cases, and product liability litigation before federal courts, state courts, and administrative agencies.

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.

Prior to joining Covington, Susan served as in-house senior counsel at Northrop Grumman Corporation and Motorola Incorporated.

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 clients…

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. 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, 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 currently serves as a Judge Advocate in the
U.S. Army Reserve.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette is a government contracts and technology-focused lawyer that advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts…

Ryan Burnette is a government contracts and technology-focused lawyer that advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national security related matters, including those matters that relate to federal cybersecurity and supply chain security. Ryan also advises on FAR and DFARS compliance, public policy matters, agency disputes, and government cost accounting.  He speaks and writes regularly on government contracts and cybersecurity topics, drawing significantly on his prior experience in government to provide insight on the practical implications of regulations.

Ryan is especially experienced with:

  • Government cybersecurity standards, including the Federal Risk and Authorization Management Program (FedRAMP); Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012 and 252.204-7020; National Institute of Standards and Technology (NIST) publications, such as NIST SP 800-171; software and artificial intelligence security, attestations, and bill of materials requirements; and the Cybersecurity Maturity Model Certification (CMMC) program.
  • 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 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 developed and implemented government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year. While in government, Ryan worked on 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, GSA Schedules and interagency acquisitions, competition requirements, and suspension and debarment, among others.

Additionally, in the wake of significant incidents affecting the program, Ryan was selected to serve on a core team that led reform of security processes affecting federal background investigations for cleared employees and contractors. These efforts resulted in the establishment of a new federal bureau to conduct and manage background investigations.