This is the thirteenth 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 subsequent blogs describe the actions taken by various Government agencies to implement the Cyber EO from June 2021 through April 2022.  This blog reflects on the one year anniversary of the Cyber EO and discusses the status of various implementation activities.  It also describes key actions taken to implement the Cyber EO during May 2022.

U.S. Government Agencies’ Progress and Challenges with Implementing the Cyber EO

On May 12, 2022, the Advanced Technology Academic Research Center (“ATARC”) hosted a webinar with panelists representing multiple U.S. Government agencies and other stakeholders to commemorate the one year anniversary of the Cyber EO.  Some of the agencies represented included the Department of Homeland Security (“DHS”), the U.S. Army, and TRANSCOM.  The agency representatives expressed uniform support for implementing the Cyber EO, discussed the significant progress that their respective agencies have made in cybersecurity, and described areas for improvement.  Webinar attendees as a group reported that the Cyber EO is their highest compliance priority.

One theme that emerged from ATARC’s anniversary webinar was the widespread difficulty in adapting different agencies’ cybersecurity practices to rapidly changing technology.  Despite their significant progress in automating cybersecurity and standardizing their processes, agencies are finding it difficult to keep up with changing technology and are sometimes forced to be reactive to cybersecurity issues rather than proactive.  Larger agencies in particular find it difficult to train their employees on how to use rapidly changing cybersecurity technology.  For example, TRANSCOM reported challenges with implementing NIST’s Risk Management Framework (“RMF”) across all its various divisions.  

Agency representatives expressed their desire for assistance from private sector stakeholders.  For example, the panelists said that they want the different components of the supply chain to check for cybersecurity vulnerability before the agency itself purchases software.  Additionally, the agency representatives said that they want transparency from their vendors, so that they can better understand what software their vendors are using.  Fortunately, private sector solutions already exist to help agencies and contractors implement cybersecurity practices, such as vendor technologies that will create Software Bill of Materials (“SBOMs”) and open source tools for smaller organizations.  Nonetheless, providing SBOMs and meeting other requirements of the Cyber EO undoubtedly will require significant adjustments from agencies and contractors alike in the months and years ahead.

NIST Issues New Guidance for Cybersecurity Supply Chain Risk Management

On May 5, 2022, NIST released the final version of Special Publication 800-161, Revision 1, “Cybersecurity Supply Chain Risk Management Practices for Systems and Organizations.”  NIST removed from SP 800-161 several Cyber EO-directed guidance documents that had previously appeared in Appendix F to earlier drafts of that document and moved these and other EO-directed software supply chain security documents to a NIST website dedicated to EO documents.  The documents placed on NIST’s EO website include both existing standards, tools, and recommended practices and evolving standards, tools, and practices.  The existing references consist of the following: (1) the Critical Software Definition; (2) Security Measures for “EO Critical Software” Use; (3) Software Supply Chain Security Guidance for Producers and Users, including a document titled  “Attesting to Conformity with Secure Software Development Practices”, and (4) Recommended Minimum Standards for Vendor or Developer Verification of Software.  The evolving category consists of guidance regarding the following subjects: (1) SBOM; (2) Enhanced Vendor Risk Assessments; Open Source Software Controls; and (4) Vulnerability Management.  The website also contains a document listing additional existing industry standards, tools, and recommended practices, and a set of responses to Frequently Asked Questions.

According to NIST, “Federal agency acquirers should utilize this guidance to contextualize their application of any existing SP 800-161, Rev 1 controls upon their suppliers and–where feasible–adopt new software supply chain security recommendations that previously fell outside of the explicit scope of SP 800-161, Rev. 1, in the context of [the Cyber EO].”  However, NIST acknowledges that its EO-directed guidance “does not include contractual language for federal agencies or cybersecurity concepts and disciplines beyond core software supply chain security use cases.”  Instead, consistent with the Cyber EO, other agencies “are directed to take steps to ensure that federal procurement of software follows [the NIST] guidance.”  Notably, the Office of Management and Budget (“OMB”) intends to issue further guidance to agencies on how to use NIST’s secure supply chain guidance in acquiring software, and OMB has or will recommend contractual language to the Federal Acquisition Regulation (FAR) Council for proposed inclusion in the FAR.  Such FAR amendments are expected to be proposed in the Summer or early Fall of 2022.

In addition to its actions described above, NIST released on May 24, 2022 a report that it sent to the White House on May 10 summarizing the pilot programs that it conducted regarding cybersecurity labelling for consumer software development practices and consumer Internet of Things devices. Finally, on May 31, 2022, the Cybersecurity and Infrastructure Security Agency (CISA) announced that it would host a series of public “listening sessions” on SBOM implementation with industry and other stakeholders in July 2022.

OMB and CISA Work Toward Implementing Zero Trust Strategy

The Cyber EO Section 3 directs that the Federal Government must adopt security best practices to advance toward Zero Trust Architecture, and charges each agency with developing a plan to implement Zero Trust Architecture.  In response to the Cyber EO, in January 2022, OMB released Memorandum M-22-09 setting forth the federal Zero Trust Architecture strategy and requiring agencies to meet specific zero trust goals by the end of Fiscal Year 2024.  Memorandum M-22-09 directed federal agencies to submit implementation plans for OMB review and concurrence within 60 days.                     

On May 17, 2022, the House Committee on Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection & Innovation held a hearing regarding implementation of the Cyber EO.  Eric Goldstein the Executive Assistant Director for Cybersecurity at CISA and Christopher DeRusha, Deputy National Cyber Director for Federal Cybersecurity at OMB testified regarding implementation of the Cyber EO.  In particular, with regard to implementation of Zero Trust Architecture, DeRusha testified that a team comprised of the OMB, CISA, and the Office of the National Cyber Director is working on reviewing each agency’s implementation plan to ensure they are achievable and have the right investment requests.  Additionally, DeRusha confirmed that OMB intends to hold agencies accountable to these multi-year plans.  Goldstein further testified that CISA is providing guidance and hands on direct support to federal agencies so that they can effective meet Zero Trust objectives and OMB Guidance.  

Tags: Cyber EO, Cybersecurity, Executive Order, Executive Order 14028, Privacy
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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.

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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.

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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.

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Photo of Emma Merrill-Grubb Emma Merrill-Grubb

Emma Merrill-Grubb is an associate in the firm’s Washington, DC office and member of the Government Contracts practice group. Emma advises clients on a broad range of issues related to government contracting, including regulatory advising, bid protests, transactional matters. She maintains an active…

Emma Merrill-Grubb is an associate in the firm’s Washington, DC office and member of the Government Contracts practice group. Emma advises clients on a broad range of issues related to government contracting, including regulatory advising, bid protests, transactional matters. She maintains an active pro bono practice.

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