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

I.  CISA, NSA, and ODNI Release Software Supply Chain Security Guidance for Suppliers 

In October 2022, the Cybersecurity and Infrastructure Security Agency (CISA), the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI) released Part 2 in its series of recommended practice guides for securing the software supply chain (the “Supplier Guide”).  This second practice guide is for software suppliers—Part 1 of the guide is intended to be used by software developers, and the third (and final) guide will be targeted to software customers (i.e., acquirers).  Each of these 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.

According to the Supplier Guide, a software supplier acts as a liaison, or intermediary, between the developer and customer, and, as such, “retains primary responsibility over the following”:

  1. Maintaining the integrity of securely delivered software.
  2. Validating software packages and updates.
  3. Maintaining awareness of known vulnerabilities.
  4. Accepting customer reports of issues or newly discovered vulnerabilities and notifying developers for remediation.

The guide is intended to reflect “industry best practices and principles.”  It identifies key supplier objectives and recommends several broad categories of practices to achieve those objectives.  For each of these practice categories, the guide identifies scenarios that could be exploited (threat scenarios) and actions that could be taken to mitigate those threat scenarios.  For example, the guide outlines recommended mitigations for protecting the integrity of software code being developed either on premises or in a SaaS cloud solution, among many others.

The guide also has several appendices.  Of particular interest is Appendix C, “Supply-chain levels for Software Artifacts” (SLSA).  The SLSAs contained in this appendix address the four levels of security guidelines that are supposed to be tied to industry standards.   Appendix C designates which requirements apply to each of the four levels of SLSAs, with the fourth level representing the ideal end state for a secure software supply chain “from source to service.”

II. White House Issues Fact Sheet Detailing Past and Future Cybersecurity Efforts

On October 11, 2022, the Biden Administration issued a fact sheet that described various efforts that the Administration has undertaken to strengthen and safeguard the nation’s cybersecurity.  Among these efforts are several mandated by the Cyber EO.  The fact sheet demonstrates the Administration’s overall emphasis on implementation of the Cyber EO and its continued view of federal contracting as a lever to pull in that process.  Among other things, the fact sheet highlights that the Administration “issued a strategy for Federal zero trust architecture implementation, as well as budget guidance to ensure that Federal agencies align resources to our cybersecurity goals.”  Regarding procurement, the fact sheet states that “we are . . . harnessing the purchasing power of the Federal Government to improve the cybersecurity of products for the first time, by requiring security features in all software purchased by the Federal Government, which improves security for all Americans.”  As discussed in more detail below, the fact sheet also highlighted the White House’s plan to bring together private companies, associations, and Government agencies to discuss the development of a label for Internet of Things (IoT) devices “so that Americans can easily recognize which devices meet the highest cybersecurity standards to protect against hacking and other cyber vulnerabilities.”         

III. White House Holds Meeting to Discuss Cybersecurity Label for Consumer Internet-of-Things Devices

As previewed by the October 11 White House fact sheet (see section II above), the Biden Administration convened a meeting of representatives of industry, associations, and Government agencies on October 19, 2022 to discuss the Administration’s cybersecurity labelling program for IoT devices.  This program is based on labelling criteria developed by the IoT labelling pilot program conducted by NIST pursuant to the Cyber EO.  These criteria envision a physical label on the IoT device accompanied by a QR code that consumers could use to obtain further information regarding the cybersecurity vulnerabilities and resilience of the device, coupled with vendor self-attestations, and possible third-party certifications.  Speakers at the conference suggested that the Administration is planning a targeted rollout of a national cybersecurity labelling program in Spring 2023.

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 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 Ryan Burnette Ryan Burnette

Ryan Burnette is a government contracts and technology-focused lawyer that 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…

Ryan Burnette is a government contracts and technology-focused lawyer that 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 supply chain security. Ryan also advises on FAR and DFARS compliance, public policy matters, agency disputes, and government cost accounting.  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.

Ryan is especially experienced with:

  • Government cybersecurity standards, including the Federal Risk and Authorization Management Program (FedRAMP); Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012 and 252.204-7020; National Institute of Standards and Technology (NIST) publications, such as NIST SP 800-171; software and artificial intelligence security, attestations, and bill of materials requirements; and the Cybersecurity Maturity Model Certification (CMMC) program.
  • 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 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 developed and implemented government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year. While in government, Ryan worked on 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, GSA Schedules and interagency acquisitions, competition requirements, and suspension and debarment, among others.

Additionally, in the wake of significant incidents affecting the program, Ryan was selected to serve on a core team that led reform of security processes affecting federal background investigations for cleared employees and contractors. These efforts resulted in the establishment of a new federal bureau to conduct and manage background investigations.

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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.

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