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.
Tags: Cyber EO, Cybersecurity, DoD, Executive Order 14028, NDAA, NIST
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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 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.

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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, 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.

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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 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.

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Photo of Sarah Schuler Sarah Schuler

Sarah Schuler is an associate in the firm’s Government Contracts Practice Group, advising clients across a broad range of government contracting compliance issues. Her areas of expertise include advising on intellectual property and data rights issues under the Federal Acquisition Regulation, including obligations…

Sarah Schuler is an associate in the firm’s Government Contracts Practice Group, advising clients across a broad range of government contracting compliance issues. Her areas of expertise include advising on intellectual property and data rights issues under the Federal Acquisition Regulation, including obligations imposed by the Bayh-Dole Act; application of the Freedom of Information Act to government contracts and related records; domestic sourcing requirements imposed under the Buy American Act and Trade Agreements Act; pricing and other compliance related issues arising under Federal Supply Schedule contracts; small business affiliation and certification analyses; the scope of flow-down requirements for subcontractors; and federal grant compliance under the Uniform Guidance and agency supplements. Sarah also counsels clients to navigate time-sensitive inquiries arising from contract compliance-related issues.

Sarah also maintains an active pro bono practice, providing counsel to U.S. service members with respect to the correction of military records and discharge upgrade requests.

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