This is the eighth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the second, third, fourth, fifth, sixth, and seventh blogs described the actions taken by various government agencies to implement the EO from June through November 2021. This blog summarizes the key actions taken to implement the Cyber EO during December 2021.  Although the actions described below implement different sections of the Cyber EO, each of them portends further actions in February 2022 that are likely to impact government contractors, particularly those who provide software products or services to federal government agencies.

The FAR Council Announces Proposed Rulemakings in February 2022 To Impose Cyber Incident Reporting Requirements on Certain Federal Contractors and to Standardize Common Cybersecurity Contractual Requirements Across Federal Agencies

The Federal Acquisition Regulatory Council updated its regulatory agenda on December 20, 2021 to provide further information on two Federal Acquisition Regulation (FAR) cases previously established to implement various sections of the Cyber EO.  The first of these updates indicated that a Notice of Proposed Rulemaking (NPRM) will be issued around February 2022 to amend the FAR to “increase the sharing of information about cyber threats and incident information between the Government and certain providers” pursuant to Office of Management and Budget recommendations under sections 2(b)-(c) and Department of Homeland Security recommendations under section 8(b) of the Cyber EO.  This NPRM will also seek comment on amendments to the FAR pursuant to section 2(g)(i) of the Cyber EO to require certain contractors to report cyber incidents to the Government.

The updated regulatory agenda describes a second NPRM, also to be issued in February 2022, that will “standardize common cybersecurity requirements across Federal agencies for unclassified information systems, pursuant to Department of Homeland Security recommendations in accordance with sections 2(i) and 8(b) of” the Cyber EO.  The updated agenda provides for the close of comments on both NPRMs around April 2022.  The agenda provides no date for promulgation of final rules in either rulemaking, nor does it address the extent to which either rulemaking would modify or replace the cybersecurity safeguarding and reporting requirements currently applicable to most Department of Defense (DoD) contractors under Defense FAR Supplement (DFARS) 252.204-7012.

NIST and CISA Seek Input on Implementing Software Bills of Material

The National Institute of Standards and Technology (NIST) held a workshop on December 1, 2021 where, among other things, that agency sought public input on the proposed Software Bill of Materials (SBOM) requirements identified in Appendix F to the second draft of NIST Special Publication 800-161, “Cybersecurity Supply Chain Risk Management Practices for Systems and Organizations, Rev. 1.”  Appendix F describes SBOMs as an “emerging software supply chain concept,” and defines an SBOM as a “formal record containing the details and supply chain relationships of various components used in building software, similar to food ingredient labels on packaging.”  The intent of the SBOM is to “provide increased transparency, provenance, and speed at which vulnerabilities can be identified and remediated by departments and agencies.”  Appendix F identifies certain SBOM capabilities that federal government agencies should require their suppliers to demonstrate.  NIST representatives intend to use the input from the December 1 workshop in revising the SBOM requirements in a further draft of Appendix F that they plan to release in February 2022.

The Cybersecurity and Infrastructure Security Agency held a two day “SBOM-a-rama” virtual event on December 15 and 16, 2021, in which it sought stakeholder feedback on its efforts to build on SBOM publications by the National Telecommunications and Information Administration (NTIA).  These publications include guidance on SBOM minimum requirements issued by NTIA pursuant to the Cyber EO and SBOM playbooks for software suppliers and users that NTIA issued in November 2021.  NIST representatives have stated that they intend to consider the NTIA publications in fashioning the SBOM requirements in the final version of Appendix F of NIST SP 800-161.

NIST Holds Workshop On Draft Criteria for Consumer Software Security Labelling and IOT Device Labelling Pilot Programs

NIST held a workshop on December 9, 2021 to receive additional input on the draft criteria that it issued in November 2021 for the consumer software security labelling and consumer Internet of Things (IOT) devices labelling pilot programs required by the Cyber EO.   Under the Cyber EO, NIST is required to issue final labelling criteria for these pilot programs by February 6, 2022.  NIST intends to use the input from the December 9 workshop and other stakeholder comments in developing the final labelling criteria.  NIST labeling requirements will not be mandatory at the outset, but some software manufacturers may see commercial advantages to adopting security labels voluntarily.

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Robert Huffman

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance…

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance, contract claims and disputes, and intellectual property (IP) matters related to U.S. government contracts.

Bob has leading expertise advising companies that are defending against investigations, prosecutions, and civil suits alleging procurement fraud and false claims. He has represented clients in more than a dozen False Claims Act qui tam suits. He also represents clients in connection with parallel criminal proceedings and suspension and debarment.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including cybersecurity, the Buy American Act/Trade Agreements Act (BAA/TAA), and counterfeit parts requirements. He also has extensive experience litigating contract and related issues before the Court of Federal Claims, the Armed Services Board of Contract Appeals, federal district courts, the Federal Circuit, and other federal appellate courts.

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 items and services. He handles IP matters involving government contracts, grants, Cooperative Research and Development Agreements (CRADAs), and Other Transaction Agreements (OTAs).

Susan B. Cassidy

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government…

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government contractors and represents her clients before the Defense Contract Audit Agency (DCAA), Inspectors General (IG), and the Department of Justice with regard to those investigations.  From 2008 to 2012, Ms. Cassidy served as in-house counsel at Northrop Grumman Corporation, one of the world’s largest defense contractors, supporting both defense and intelligence programs. Previously, Ms. Cassidy held an in-house position with Motorola Inc., leading a team of lawyers supporting sales of commercial communications products and services to US government defense and civilian agencies. Prior to going in-house, Ms. Cassidy was a litigation and government contracts partner in an international law firm headquartered in Washington, DC.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the…

Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the Cost Accounting Standards.  Prior to joining Covington, Mr. Burnette served in the Office of Federal Procurement Policy in the Executive Office of the President, where he worked on government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year.