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.

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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.