This is the nineteenth 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 October 2022.  This blog describes key actions taken to implement the Cyber EO during November 2022.

I. CISA, NSA, and ODNI Release Software Supply Chain Security Guide for Customers 

On November 17, 2022, the Cybersecurity and Infrastructure Security Agency (CISA), the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI) released the third in a series of recommended practice guides for securing the software supply chain (the “Customer Guide”).  The first practice guide in this series – published in September 2022 – was for software developers, and the second – published in October 2022 – was for software suppliers.  Each of the three guides is intended to supplement the Secure Software Development Framework (SSDF) published by the National Institute of Standards and Technology (NIST) pursuant to Section 4 of the Cyber EO.

The Customer Guide identifies key supply chain security objectives for software customers (acquirers) and recommends several broad categories of practices to achieve those objectives including security requirements planning, secure software architecture, and maintaining the security of software and the underlying infrastructure (e.g., environment, source code review, test).  For each of these practice categories, the guide identifies examples of scenarios that could be exploited (threat scenarios) and examples of controls that could be implemented to mitigate those threat scenarios. 

Section 2.1.3 of the Customer Guide is notable, and identifies objectives, scenarios, and mitigations for software acquisition contracts. This section highlights contracts that would be considered higher risk including (i) those with suppliers or sources under foreign control; (ii) contracts with incomplete security and supply chain requirements; (iii) missing software bills of material (“SBOMs”); (iv) suppliers with poor security hygiene, including those that have experienced a compromise that could impact their development cycle; and (v) suppliers who alter or substitute components in the product prior to package signing and hashing. 

To address some of these concerns, the guide recommends that such contracts incorporate a number of provisions designed to reduce supply chain risks.  Specific recommendations include:

  • Incorporation of forthcoming FAR/DFARS provisions for self-attestation from each supplier who provides products to U.S. Government customers that provide visibility into the provenance of each software product delivered;
  • A timeline or checklist of key steps that comprise the supplier’s security processes that were performed in the development of the product;
  • Signature by the supplier-designated official responsible for the security hygiene of the development process and infrastructure; and
  • A requirement for the supplier to provide cryptographic security for hashing/signature infrastructure of its product distribution system/method.

The Customer Guide also recommends that customers require suppliers to inform them on how to verify the integrity of all software components, including through:

  • Requiring the use of a hash or signature or similar method to ensure the integrity of each component and requiring each supplier to inform the customer on how to verify the integrity of the components;
  • Requiring that all artifacts sent by the supplier be in a standardized SBOM format;
  • Providing SBOMs for all upgrades;
  • Ensuring newly issued SBOMs incorporate all changes to the product baseline;
  • Providing continuous reporting for all of the supplier’s key attributes, such as its ownership, geolocation and foreign controls, as well as for any changes of the key attributes; and
  • Notifying the customer of cyber incidents and investigations, mitigations, and impacts to the product or the development environment of the product.

II. NIST Announces Project to Develop Guidance for Using DevSecOps Practices to Secure Software

On November 19, 2022, the NIST National Cybersecurity Center of Excellence (NCCoE) released a document, titled “Software Supply Chain And Devops Security Practices: Implementing a Risk-Based Approach to DevSecOps,” that describes its planned project to develop and document risk-based DevSecOps practices to secure software supply chains.  The document defines “DevSecOps” as the process of integrating security practices developed by a security team into existing “pipelines” such as continuous integration/continuous delivery (CI/CD) and existing toolchains used by developers and operators.  The document notes that the “project’s objective is to produce practical and actionable guidelines that meaningfully integrate security practices into development methodologies.” 

The DevSecOps project will ultimately result in the issuance of a publicly available NIST Cybersecurity Practice Guide that industry, government, and other organizations can use when choosing and implementing DevSecOps practices in order to improve the security of the software they develop and/or operate.  This guide will address how such organizations can generate artifacts as a by-product of their DevSecOps practices to support the organization’s self-attestations and compliance with applicable NIST and cybersecurity supply chain risk management practices.

III. DOD Issues Its Zero-Trust Strategy and Roadmap

On November 22, 2022, the Department of Defense (DOD) released its Zero Trust strategy for the next five years (FY23 – FY27).  According to the strategy, Zero Trust “uses continuous multi-factor authentication, micro-segmentation, advanced encryption, endpoint security, analytics, and robust auditing, among other capabilities, to fortify data, applications, assets, and services to deliver cyber resiliency.”  DOD’s strategy identifies four strategic principles, seven trust pillars, forty-five capabilities, and 152 activities involved in migrating DOD IT Systems to Zero Trust.  The strategy requires that DOD components reach the targeted level of Zero Trust—satisfaction of 91 of the 152 activities—by FY27, subject to a waiver process administered by DOD’s Zero Trust Portfolio Management Office.  Among others, the document lists “[i]ncorporate ZT requirements into DoD-wide and Component-specific strategies, policies, frameworks, and directives, and contracts by end of FY2023 and next iteration through FY 2027” as an objective of the strategy.

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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.

Photo of Susan B. Cassidy 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 defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national…

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national security related matters, including those matters that relate to federal cybersecurity and federal supply chain security. Ryan also advises on government cost accounting, FAR and DFARS compliance, public policy matters, and agency disputes. He speaks and writes regularly on government contracts and cybersecurity topics, drawing significantly on his prior experience in government to provide insight on the practical implications of regulations.

Photo of Hannah Hummel Hannah Hummel

Hannah Hummel is an associate in the firm’s Washington, DC office. She is a member of the Litigation and Investigations and the Government Contracts Practice Groups.