This is the eleventh 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 through tenth blogs described the actions taken by various Government agencies to implement the EO from June 2021 through February 2022, respectively.  This blog summarizes key actions taken to implement the Cyber EO during March 2022.  As with steps taken during prior months, the actions described below reflect the implementation of the EO within the Government.  However, these activities portend further actions, potentially in or before June 2022, that are likely to impact government contractors, particularly those who provide software products or services to the Government.

OMB Tells Agencies to Begin Implementing  Secure Software Acquisition and Development Practices

Section 4(e) of the Cyber EO requires the National Institute of Standards and Technology (NIST) to publish guidelines on practices for software supply chain security for use by U.S. Government agency acquisition and procurement officials.  Section 4(k) of the EO requires the Office of Management and Budget (OMB), within 30 days of the publication of this guidance, to “take appropriate steps to require that agencies comply with such guidelines with respect to software procured after the date of the EO.”  Section 4(n) of the EO states that within one year of the EO (May 12, 2022), the Secretary of Homeland Security…shall recommend to the FAR Council contract language [for the FAR] requiring suppliers of software available for purchase by agencies to comply with, and attest to complying with, any requirements issued pursuant to subsections (g) through k) of this section.”

NIST issued two guidance documents pursuant to Section 4(e).  The first was the Secure Software Development Framework (SSDF), issued on September 30, 2021.  The second was the Software Supply Chain Security Guidance, issued on February 4, 2022, which incorporates and builds upon the SSDF.  Both the SSDF and the Software Supply Chain Security Guidance envision attestations by software producers and providers regarding secure software development practices performed as part of processes and procedures throughout the software life cycle.

On March 7, 2022, OMB issued a document entitled “Implementation of Software Supply Chain Security Guidance under Executive Order (EO) 14028 Section 4(k).”  The document states that “Agencies should begin integrating the NIST Software Supply Chain Security Guidance into their existing software lifecycle management and acquisition practices to ensure purchase of only secure and trustworthy products.”  The document notes that “[f]ollowing SSDF practices should help software producers reduce the number of vulnerabilities in released software, reduce the potential impact of the exploitation of undetected or unaddressed vulnerabilities, and address the root causes of vulnerabilities to prevent recurrence.”  The document states that NIST intends to issue further guidance regarding secure software development and acquisition practices based on industry responses to the following questions (and any other comments that they wish to submit):

  • How would you describe the ideal process for Federal agencies to obtain and retain secure software development attestation documents for software being procured?
  • Are there examples of successful systems, tools, and procedures for assessing compliance that should be examined for applicability to the SSDF?  What characteristics of other established processes are most important to emulate?  Do you recommend any particular standard format(s) for attesting to compliance?
  • Are there elements of the framework for which there are alternative and potentially effective ways (e.g., conformity assessments) of demonstrating adoption than attestation?
  • What risk-based factors should be considered to determine when third party attestation is most appropriate for affirming adequate SSDF practices are in place?
  • How should vendors articulate the products and the boundaries of the products covered within the attestation?
  • What information do vendors need in advance in order to comply with implementation guidance?

NIST held a workshop on its Software Supply Chain Security Guidance on March 22, 2022.  At the workshop, OMB Deputy Director and Federal CISO Chris DeRusha stated that OMB was seeking input on the Software Supply Chain Security Guidance to ensure that OMB develops a “clear, concise approach to vendor attestation and federal verification measures,” and that it wants to ensure that agencies are doing this in the same way.  DeRusha stated the OMB intended to issue further guidance within the next 8 to 12 weeks, and that it would align such guidance with the recommendations that EO section 4(n) requires DHS to make to the FAR Council by May 12, 2022, regarding contract language for ensuring software supply chain security practices.  It was unclear from DeRusha’s remarks whether OMB’s forthcoming guidance will be incorporated into the recommended FAR contract language, or whether the two efforts would simply be coordinated.

NIST Issues Guidance for Securing Industrial Control Systems

On March 17, 2022, NIST’s National Cybersecurity Center of Excellence issued Special Publication 1800-10, “Protecting Information and System Integrity in Industrial Control System Environments: Cybersecurity for the Manufacturing Sector.”  This publication is intended to guide manufacturers in mitigating risks to their operational technology (OT) systems as they integrate those systems with IT systems to boost productivity and gain efficiencies.

The publication notes that integration of OT and IT systems provinces malicious actors “a fertile landscape where they can exploit cybersecurity vulnerabilities to compromise the integrity of,” internal control systems and data.  The publication provides four examples of “practical solutions” that manufacturers can implement to protect their internal control systems from information and system integrity attacks.  The publication provides a detailed description of how each such solution was implemented and the technologies that were used to achieve the implementing organization’s goals.  The publication also discusses the results and challenges of each of the four solutions.

CISA Issues Paper On Integrating Zero Trust Principles Into Federal Mobile Device Security at Enterprise Level

Section 3 of the Cyber EO requires agencies to modernize their approach to cybersecurity, including by advancing towards Zero Trust Architecture.  Pursuant to that section, DHS’s Cybersecurity and Infrastructure Security Agency (CISA) issued a draft paper on March 7, 2022 to guide Government agencies in applying Zero Trust principles to mobile devices at the enterprise level.  The draft paper presents architectural frameworks, principles, and capabilities for attaining Zero Trust, and maps mobile security approaches into these frameworks, principles, and capabilities that an agency can use to align its current mobile security capabilities with a Zero Trust approach.  CISA is accepting public comments on the draft paper until April 18, 2022.

Tags: CISA, Cyber EO, Cybersecurity, Executive Order, Executive Order 14028, NIST, Supply Chain
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 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 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 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, cybersecurity and FedRAMP requirements. She 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. 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.

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
Photo of Darby Rourick Darby Rourick

Darby Rourick advises defense and civilian contractors on a range of issues related to government contracting and has particular experience in federal cybersecurity and information technology supply chain issues. She has an active investigations practice and has experience representing clients in internal and…

Darby Rourick advises defense and civilian contractors on a range of issues related to government contracting and has particular experience in federal cybersecurity and information technology supply chain issues. She has an active investigations practice and has experience representing clients in internal and government investigations, including conducting witness interviews and managing government subpoena and CID responses. 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.

Read more about Darby RourickEmail
Show more Show less