This is the fifteenth 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 described the actions taken by various Government agencies to implement the Cyber EO from June 2021 through June 2022.  This blog describes key actions taken to implement the Cyber EO during July 2022.

NIST Issues Report to White House on Software Supply Chain Security Deliverables Mandated by the Cyber EO

On July 5, 2022, the Department of Commerce publicly released its May 11, 2022 Report to the President on its progress to implement Section 4 of the Cyber EO, including its software supply chain security provisions.  Although the report touts certain progress made by the Department of Commerce to implement the EO, the Report discloses that the deliverables required by Sections 4(n), (o), and (p) have not yet been delivered:

  • Section 4(n) requires the Department of Homeland Security (“DHS”) to recommend to the Federal Acquisition Regulatory Council (“FAR Council”) by May 12, 2022 contract language requiring suppliers of software available for purchase by federal government agencies to comply with, and attest to complying with, the guidance for security measures for critical software use issued by the National Institute for Standards and Technology (“NIST”) on July 9, 2021. 
  • Section 4(o) states that after receiving DHS’s recommendations, the FAR Council shall review the recommendations and, as appropriate and consistent with applicable law, amend the FAR. 
  • Section 4(p) states that following the issuance of any final FAR rule, agencies shall, as appropriate and consistent with applicable law, remove software products that do not meet the requirements of the amended FAR from all indefinite delivery indefinite quantity contracts, Federal Supply Schedules, Government-wide Acquisition Contracts, Blanket Purchase Agreements, and Multiple Award Contracts.

Regarding the DHS recommendations required by section 4(n), the Commerce Report states that “Work is in Progress.”  Regarding the FAR amendment requirements of sections 4(o) and (p), the Report states that “[r]ecommendations have not yet been received by the FAR Council,” and that “[t]he FAR final rule has not yet been issued.”  However, it notes that FAR (contract) language requiring software providers to comply with and attest to complying with the NIST supply chain security guidelines is “an important security criteria enforcement mechanism for reducing the vulnerability of critical systems to nation-state or criminal attacks,” and urges DHS, OMB, and the FAR Council to complete the FAR revision process contemplated by sections 4(n)-(p) of the Cyber EO.

Cyber Safety Review Board Issues Report on Log 4j Event and Recommends the Government Explore Imposing a Baseline Requirement for Software Transparency on Government Contractors

On July 11, 2022, the Cyber Safety Review Board established by the Cyber EO issued a report on its review of the December 2021 Log 4j Event.  In reviewing the vulnerability and its impact on organizations, the Board highlighted that the organizations that were able to respond most effectively  had “technical resources and mature processes to manage assets, assess risk, and mobilize their organization and key partners to action.”  The Board noted however that few organizations were able to achieve this type of response.

Drawing on these and other observations, the report contains numerous recommendations that span from those centered on to dealing with the Log4j vulnerability itself, to improving security hygiene, to building a better software ecosystem, to making certain investments in the future.  Two notable recommendations include: (1) improving Software Bill of Materials (“SBOM”) tooling and adaptability, and (2) exploring a baseline requirement for software transparency for federal government vendors.

Regarding SBOM tooling and adaptability, the Board’s report notes that “[o]rganizations need the ability to quickly identify vulnerable software to facilitate swift response.  Traceability capabilities, such as SBOMs that can catalog the components of software, are promising possibilities, but at present are limited.”  The report states that “[t]he Board anticipates future improvements in SBOM implementations and adoption, which may enable organizations to leverage SBOMs for vulnerability management.” Pending such improvements, the Board recommends that “software developers should generate and ship SBOMs with their software, and be prepared to incorporate improvements in the tooling and processes as they become available to the industry.”  The Board also notes that the Cyber EO “provides a roadmap for the inclusion of SBOMs when providing software to the federal government.”

Regarding a baseline requirement for software transparency in federal procurement, the Report states that the US Government is a significant consumer of software, and “should be a driver of change in the marketplace around requirements for software transparency.”  The Report recommends that OMB and the FAR Council “use various mechanisms to minimize the US government’s use of software without provenance and dependency information,” and should consider using “procurement requirements, federal standards and guidelines, and investments in automation and tooling, to create clear and achievable expectations for baseline SBOM information.”  The Report further states that OMB should set a specific timeframe to achieve these goals.               

In a related development, Section 1627 of the Senate FY2023 National Defense Authorization Act bill (S.4543) released on July 18, 2022 would require DOD to amend the DFARS to require an SBOM for all noncommercial software created for or acquired by DOD.  Section 1627 would also require DOD to study whether to acquire SBOMs for such software already acquired by DOD, and, in consultation with industry, to develop an approach for “operationalizing” SBOMs for commercial software acquired by DOD.

NIST Releases Second Volume of Zero Trust Practice Guide

The NIST National Cybersecurity Center of Excellence published a preliminary draft of the second volume SP 1800-35B, “Implementing a Zero Trust Architecture.”  See also NIST Computer Security Resource Center, SP 1800-35.  This particular volume contains “use cases” for using commercially available technology to build Zero Trust Architecture (“ZTA”) example implementations consistent with the standards in NIST SP 800-207, “Zero Trust Architecture.”

The guidance is part of a broader publication that is intended to allow organizations to enable secure access to enterprise resources that are distributed across on-premises and cloud environments.  The project involves NIST’s collaboration with a number of ZTA technology providers.  Although the drafts are evolving, the guidance is currently comprised of multiple parts:

  • NIST SP 1800-35A: Executive Summary.  This is intended to be used to allow business decision makers to “to understand the drivers for the guide, the cybersecurity challenge we address, our approach to solving this challenge, and how the solution could benefit your organization.”
  • NIST SP 1800-35B: Approach, Architecture, and Security Characteristics.  This is intended to be used by technology, security, and privacy program managers to allow them to understand, assess, and mitigate risk and will “describe what we built and why, including the risk analysis performed and the security/privacy control mappings.”
  • NIST SP 1800-35C: How To Guides.  These are intended to be used by IT professionals and “will provide specific product installation, configuration, and integration instructions for building this project’s example implementations, allowing them to be replicated in whole or in part.”
  • NIST SP 1800-35D: Functional Demonstrations:  This is also targeted to IT professionals, and highlights use cases to showcase ZTA security capabilities and the results of demonstrating them with each of the example implementations.
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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.

Photo of Sarah Schuler Sarah Schuler

Sarah Schuler is an associate in the firm’s Washington, DC office. She is a member of the Government Contracts Practice Group, advising clients across a broad range of government contracting issues. She also maintains an active pro bono practice.