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.

Tags: Cyber EO, Cybersecurity, Executive Order, Executive Order 14028, NIST
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
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 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 President Trump’s 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 is ranked by Chambers USA for his work in government contracts and he 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.

Read more about Robert HuffmanEmail
Show more Show less
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.

Read more about Susan B. CassidyEmail
Show more Show less
Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

Read more about Michael WagnerEmail
Show more Show less
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.

Read more about Ryan BurnetteEmail
Show more Show less