By: Robert Huffman, Susan Cassidy, Michael Wagner, Ryan Burnette, and Emma Merrill

This is the seventeenth 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 August 2022.  This blog describes key actions taken to implement the Cyber EO during September 2022.

I. OMB Issues Memorandum Requiring Executive Agencies to Obtain Self-Attestations and Potentially SBOMs from Software Vendors

On September 14, 2022, the Director of the Office of Management and Budget (“OMB”) issued a memorandum to the heads of executive branch departments and agencies addressing the enhancement of security of the federal software supply chain.  Covington covered that memorandum in detail in an earlier post.  The memorandum applies to all software (other than agency-developed software) to be operated “on the agency’s information systems or otherwise affecting the agency’s information,” and requires new self-attestations from software vendors before that software can be used by agencies.

In particular, the memorandum mandates that to use software, agencies must first obtain a self-attestation from software providers that the software developer follows the secure development processes described by NIST Secure Software Development Framework (NIST SP 800-218) and the NIST Software Supply Chain Security Guidance (discussed here) (collectively, “NIST Guidance”).  Moreover, the memorandum also provides that a Software Bill of Materials (“SBOM”) and/or other artifact may be required by the agency in solicitation requirements.  If required, SBOMs must either be retained by the agency or posted on the website of the software producer.  SBOMs must be generated in the format set forth in a report issued by the National Telecommunications and Information Administration or successor guidance by the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”).

The American Bar Association (“ABA”) Subcontracting, Teaming and Strategic Alliances Committee hosted a roundtable to discuss the OMB memorandum on October 5, 2022.  The Committee discussed the content of the memorandum, how it relates to the Cyber EO, how the memorandum may immediately affect subcontractors, the timing for implementation of the new requirements on software, and potential ramifications of the lack of a traditional rulemaking process, including the absence of a notice and comment period.  The roundtable also considered whether there will be waivers for exceptional circumstances, vendors’ unwillingness to provide the necessary information, whether there will be differing timelines for software versus critical software, and the memorandum’s impact on bid protests, among other issues arising from the issuance of the memorandum.  That Committee is expected to continue to track this issue.

II. Industry Associations Criticize Pending FY 2023 NDAA Provisions Requiring SBOMs and Certifications.

Contemporaneous with the issuance of the OMB memorandum, several technology and defense industry associations submitted letters to the leadership of the House and Senate Armed Services Committees objecting to provisions in the pending House and Senate FY 2023 defense authorization bills that would require SBOMs and corresponding certifications from certain contractors.  Specifically, Section 6722 of the House-passed version of the FY 2023 NDAA would require the Department of Homeland Security (DHS) to issue guidance requiring DHS contractors to provide a “planned bill of materials” with all offers for new contracts relating to the procurement of IT and communications technology products and services and to certify that each item listed on the bill of materials is free from known security vulnerabilities or defects and/or notify the agency of each such vulnerability or defect.  The section would also require holders of an existing DHS contract for such products or services to submit the bill of materials used for such contract and the certification and notification required for new DHS contracts.

Section 1627 of the version of the FY 2023 NDAA passed by the Senate Armed Services Committee would require the U.S. Department of Defense (DOD) to amend the DFARS to require an SBOM for all non-commercial software created for or acquired by DOD going forward and a study to determine the feasibility and advisability of acquiring an SBOM for software already acquired by the Department.  The provision would also require DOD to develop, in consultation with industry, an approach for commercial software used or to be acquired by DOD that provides policies and processes for “operationalizing” SBOMs “to enable [DOD] to understand promptly the cybersecurity risks to Department capabilities posed by vulnerabilities and compromises in commercial and open source software.”  The industry associations criticized these provisions as vague and premature given the lack of any standard agency or industry approach to SBOMs and the ongoing efforts (as reflected in the OMB memorandum) to develop such standard approaches.

III. Senate Homeland Security Committee Adopts Bipartisan “Securing Open Source Software Act of 2022”

Shortly after the issuance of the OMB memorandum, Senators Peters and Portman introduced S.4913 a bipartisan bill, “the Securing Open Source Software Act of 2022” to establish certain duties of the Director of CISA regarding open source security software.  The government has long supported the use of open source software in appropriate circumstances, but the Log4j vulnerability in 2021 highlighted the need for a risk based  framework for using open source code.  The bill reiterates the importance of open source software to overall cybersecurity and directs the Director to perform outreach and engagement to bolster its security, support federal efforts to strengthen the security of open source software, and coordinate with non-federal entities to ensure the long term security of open source software, among other duties.  Additionally, the bill would require the Director to publish a framework incorporating NIST, industry, and open source software community frameworks and best practices for assessing the risk of such software, within 1 year of the bill’s enactment into law.  The bill would also establish a pilot open source program at selected agencies and require an assessment by the Director as to whether open source functions should be established at some or all of the covered agencies.  If the Director determines that some or all of the open source functions should be established at some or all of the agencies, the Director must issue guidance on how to implement those functions.                                         

IV. NIST Issues Final Guidance on Cybersecurity of Consumer Internet-of-Things (IoT) Products

On September 20, 2022, the National Institute of Standards and Technology (NIST) issued Internal Report 8425, “Profile of the Core Baseline for Consumer IoT Products.”  The report states that the core baseline is intended to be the “starting point for manufacturers to use in identifying the cybersecurity capabilities their customers may expect from the IoT devices they create.”  The report tailors (“profiles”) the core baseline capabilities for specific product sectors or use cases, in this case consumer IoT products.  These use cases can be used in the criteria for the cybersecurity labelling of IoT devices that the Cyber EO directs NIST to develop.

The Biden Administration is planning to move forward with developing a product labelling regime to alert consumers to the cybersecurity risks and capabilities of IoT products.  In a fact sheet issued on October 11, 2022, the White House announced that it will host a meeting with stakeholders in October “to discuss the development of a label for [IoT] devices so that Americans can easily recognize which devices meet the highest cybersecurity standards to protect against hacking and other cyber vulnerabilities…[b]y developing and rolling out a common label for products that meet U.S. Government standards and are tested by vetted and approved entities.”  The fact sheet states that the Administration intends to start by focusing on some of the most common and often most at-risk technologies–routers and home cameras–“to deliver the most impact most quickly.”

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