This is part of an ongoing 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 subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through April 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during May 2024.  It also describes key actions taken during May 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, national security, and software supply chain security.

The Administration Releases Version 2 of the National Cybersecurity Strategy Implementation Plan

On May 7, the Biden Administration released version 2.0 of the National Cybersecurity Strategy Implementation Plan.  The roadmap outlines “high-impact” federal initiatives, each of which are intended to improve the nation’s information security and resilience.  The initiatives are structured around the following five pillars:

1. Defend Critical Infrastructure

This includes increasing cybersecurity in the public health sector through identifying health sector specific cybersecurity performance goals, in the Education Facilities Sub-sector by establishing an Education Facilities Sub-sector Government Coordinating Council, and the Water and Wastewater Systems Sector by promoting the adoption of cybersecurity best practices across the sector.

2. Disrupt and Dismantle Threat Actors

This includes adopting a multi-jurisdictional approach among federal, states, local, tribal, private sector, and international partners to address cybercrime committed by juvenile offenders.

3. Shape Market Forces to Drive Security And Resilience

This includes creation of a voluntary cybersecurity labeling program for wireless internet of things products and research and development for cybersecurity labeling for energy products.

4. Invest in a Resilient Future

This includes building the national cyber workforce, increasing diversity, and expanding access to cyber education and training.

5. Forge International Partnerships to Pursue Shared Goals

This includes investment in the development of standards-based networks through investments from the Wireless Supply Chain Innovation Fund.

GSA Requires Secure Software Development Self-Attestation Forms By June 8 for New Contracts for Critical and Non-Critical Software

On May 14, 2024, the General Services Administration (“GSA”) Senior Procurement Executive and Chief Information Officer jointly issued Supplement 2 to GSA Acquisition Letter MV-2023-02, “Ensuring Only Approved Software Is Acquired and Used at GSA.”  The Supplement notes that the Office of Management and Budget (“OMB”) and the Cybersecurity and Infrastructure Security Agency (“CISA”) released the Secure Software Development Self-Attestation Common Form on March 11, 2024.  Pursuant to OMB Memorandum MV-2023-02, federal agencies are required to obtain Self-Attestations Common Forms from producers of certain “critical” software by June 8, 2024 and certain “non-critical” software by September 8, 2024.  However, while the OMB Memo imposes a September 8 deadline for non-critical software, GSA’s Supplement states that it will begin collecting Common Form Self-Attestations on June 8 for new contracts (and the exercise of contract options) that include the use of software “regardless of whether or not the software is considered critical.”

NIST Issues SP 800-171 Rev. 3, But DOD Issues a Class Deviation Allowing Contractors to Continue Measuring Compliance Against 800-171 Rev.2.

On May 14, 2024, the National Institute of Standards and Technology (“NIST”) released Revision 3 of Special Publication 800-171, the recommended cybersecurity requirements for nonfederal information systems that form the bedrock of the DFARS 252.204-7012 cybersecurity requirements for DOD contractors and subcontractors who handle controlled unclassified information (“CUI”).

The principal change between Rev. 2 and Rev. 3 was NISTS’ expanded use of “organization-defined parameters” in certain security controls in order to increase flexibility and the addition of new tailoring categories for other controls.  NIST also modified the 800-171 security controls to be more aligned with the NIST 800-53B security controls for federal information systems. 

In anticipation of NIST’s issuance of 800-171 Rev. 3, DOD issued a class deviation to Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.204-7012 permitting DOD contractors and subcontractors to continue complying with Rev. 2 rather than having immediately comply with Rev. 3 for purposes of assuming or certifying their compliance with the NIST 800-171 security controls under DFARS 252.204-7012.  This is also consistent with DoD’s proposed rule for its Cybersecurity Maturity Model Certification (CMMC) Program, which incorporates Rev. 2 of NIST 800-171.    

CISA Issues Guidance on Use and Sharing of SBOMs

Two CISA-sponsored working groups have issued separate guidance documents on the use of software bills of materials (“SBOMs”).

The first SBOM guidance document, issued on May 20, is titled “Software Transparency in SaaS Environments.”  This guidance states that “SBOM[s] [have] emerged as a key tool for communicating data about the components in packaged software.”  It examines how to map the concepts and mechanics of SBOMs to on-line software-as-a-system (SaaS) applications, and addresses certain SaaS characteristics that complicate such mapping.  The guidance concludes that, while there are factors that limit the efficacy of using SBOMs to communicate software component data for SaaS applications “SBOM concepts provide a valuable jumping-off point toward transparency for SaaS.”

The second of these guidance issued on May 24, is titled “SBOM Sharing Primer.”  It provides examples of how SBOMs can be shared among different actors throughout the software supply chain.  These examples are of SBOM sharing methods currently in use, from proprietary software vendors sharing SBOMs via email to open source software projects publishing SBOMs in centralized repositories.  The document concludes that choosing an appropriate SBOM sharing method “depends on factors like software licensing, industry practices, and organizational priorities.”

DOD Seeks Public Comment on How It Can Help Integrate AI Into Defense Systems

On May 22, 2024, the Department of Defense (“DOD”) Office of Policy, Analysis, and Transition published a notice in the Federal Register requesting public comment on the actions that DOD could take to enable the Defense Industrial Base (“DIB”) to adopt AI for defense applications.   The notice acknowledges that “integration of AI into defense systems is pivotal to national security” and poses 15 questions, including the following:

  • “What foundational investments in the DIB does the DOD need to make to support increased adoption of AI into defense systems (e.g., manufacturing considerations, standards, best practices, bill of materials, etc.)?  What foundational investments (e.g., standards, best practices, bill of materials, etc.) already exist within the DIB for defense systems that incorporate AI?
  • “Are there specific vulnerabilities in the current and future supply chain that the DOD needs to address to support defense systems that incorporate AI?”
  • “Are there specific intellectual property considerations or challenges related to the development of AI-enabled defense systems that impact the DIB?  If so, how can DOD address these issues to promote innovation?”
  • “What DOD financing and acquisition mechanisms can help facilitate or incentivize the DIB to continue to invest in AI Technologies for defense applications?”

DOD’s notice also requests persons submitting comments to identify “statutory, regulatory, or other policy barriers to the DIB’s design development, testing, and provision of AI-enabled defense systems in a manner consistent with DOD’s approach to Responsible AI.”

Comments are due by July 22, 2024.

NIST Initiates a Pilot Program for the Testing and Evaluation of Large Language Models

On May 28, 2024, NIST announced a program for Assessing Risks and Impacts of AI.  This program includes a pilot program for the testing and evaluation, validation, and verification (TEVV) of large language models.

This pilot will include three scenarios and related scoring methods that will be used to measure the extent to which large language models succeed or fail in meeting expected outcomes.

The Department of Defense Launches Open Data and Applications Government-owned Interoperable Repositories

The Department of Defense announced on May 30 that it has launched a new initiative, known as “Open Data and Applications Government-owned Interoperable Repositories.”  The initiative is intended to be an ecosystem that will enable industry and government to integrate data platforms to allow for the Government to maintain data ownership and industry to retain intellectual property rights to applications.  The Department has already executed contract and OTAs in connection with the initiative, including for activities to ensure access to software deployment tools and security architecture for Government data and to rapidly onboard third-party vendor and government capabilities into the government owned, contractor-operated data environment.

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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

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. 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.

Photo of Ashden Fein Ashden Fein

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Ashden counsels clients…

Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.

For cybersecurity matters, Ashden counsels clients on preparing for and responding to cyber-based attacks, assessing security controls and practices for the protection of data and systems, developing and implementing cybersecurity risk management and governance programs, and complying with federal and state regulatory requirements. Ashden frequently supports clients as the lead investigator and crisis manager for global cyber and data security incidents, including data breaches involving personal data, advanced persistent threats targeting intellectual property across industries, state-sponsored theft of sensitive U.S. government information, extortion and ransomware, and destructive attacks.

Additionally, Ashden assists clients from across industries with leading internal investigations and responding to government inquiries related to the U.S. national security and insider risks. He also advises aerospace, defense, and intelligence contractors on security compliance under U.S. national security laws and regulations including, among others, the National Industrial Security Program (NISPOM), U.S. government cybersecurity regulations, FedRAMP, and requirements related to supply chain security.

Before joining Covington, Ashden served on active duty in the U.S. Army as a Military Intelligence officer and prosecutor specializing in cybercrime and national security investigations and prosecutions — to include serving as the lead trial lawyer in the prosecution of Private Chelsea (Bradley) Manning for the unlawful disclosure of classified information to Wikileaks.

Ashden currently serves as a Judge Advocate in the
U.S. Army Reserve.

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.