This is part of 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 2021through July 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during August 2024.  We discuss developments during August 2024 to implement President Biden’s Executive Order on Artificial Intelligence in a separate post. 

New Guides Released Relating to Secure Software Development Requirements

On August 2, 2024, the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”) released a new guide titled, “Software Acquisition Guide for Government Enterprise Consumers: Software Assurance in the Cyber-Supply Chain Risk Management (C-SCRM) Lifecycle.”  This guide addresses the cybersecurity risks associated with the acquisition and use of third-party developed software and certain related physical products in an agency enterprise environment, and provides recommendations to agency personnel for understanding, addressing, and mitigating those risks.  This guide was followed on August 6, 2024, by a separate guide issued jointly by CISA and the FBI titled, “Secure By Demand Guide: How Software Customers Can Drive a Secure Technology Ecosystem.”  Together, these two guides provide agency and industry personnel a series of questions that can be used to obtain information from suppliers, set technical requirements, and develop contract terms for the acquisition of secure software as contemplated by the Cyber EO.  A more detailed analysis of these guides is available on our post on Inside Government Contracts. 

 DoD Publishes Proposed CMMC DFARS Rule

On August 15, the U.S. Department of Defense (“DoD”) published a proposed rule in the Federal Register that would implement the Cybersecurity Maturity Model Certification (“CMMC”) 2.0 in the Defense Federal Acquisition Regulation Supplement (“DFARS”).  The proposed rule incorporates contractual requirements related to CMMC 2.0, including by establishing a standard contract clause and solicitation provision. 

For example, the proposed rule would require (among other things) that contractors:

  • Hold “a current CMMC certificate or current CMMC self-assessment at” the CMMC level, or higher, that is specified in the solicitation as a condition of eligibility for award of the contract;
  • Consult 32 C.F.R. part 170 “related to flowing down information in order to establish the correct CMMC level requirements for subcontracts and other contractual instruments;”
  • Maintain “the CMMC level required by [the] contract for the duration of the contract for all information systems, used in performance of the contract, that process, store, or transmit Federal contract information (FCI) or controlled unclassified information (CUI);”
  • “Only process, store, or transmit data on information systems that have a CMMC certificate or CMMC self-assessment at the CMMC level required by the contract, or higher;”
  • Within 72 hours, notify the Contracting Officer “when there are any lapses in information security or changes in the status of CMMC certificate or CMMC self-assessment levels during performance of the contract;”
  • On an annual basis or when changes occur in CMMC compliance status, complete and maintain an affirmation of continuous compliance;
  • On an annual basis or when changes occur in CMMC compliance status, ensure all subcontractors and suppliers complete and maintain an affirmation of continuous compliance;
  • Provide “the Contracting Officer the DoD [unique identifier(s)] issued by SPRS for contractor information systems that will process, store, or transmit FCI or CUI during performance of the contract;”
  • Submit “into SPRS the results of self-assessment(s) for each DoD [unique identifier] applicable to each of the contractor information systems”; and
  • Report “any changes to the list of DoD [unique identifiers]” to the Contracting Officer.

The publication of the proposed rule follows shortly after the Office of Information and Regulatory Affairs (“OIRA”) completed its review of the proposed contract clause on August 7, 2024 and moves CMMC 2.0 closer to finalization.   DoD is accepting comments on the proposed rule through October 15, 2024. 

NIST Releases Second Draft of Digital Identity Guidelines Update

On August 21, the National Institute of Standards and Technology (“NIST”) issued a second draft of the update of its Special Publication (SP) 800-63, Rev. 4, “Digital Identity Guidelines,” and three companion guidelines, SP 800-63A, 63B, and 63C.  These guidelines address the mechanisms and best practices for providing and protecting digital access to online public services.  Among the newer practices addressed in the guidelines are the use of cloud-based  syncable authenticators as passkeys and the use of subscriber-controlled wallets.  Syncable authenticators are software or hardware authenticators that allow authentication keys to be cloned and exported to other storage to sync those keys to other authenticators.  Subscriber-controlled wallets are devices that are controlled by the user that allow the user’s device to act as an identity provider.  These practices may eventually show up in other NIST documents that have more direct applicability to contractors, such as NIST SP 800-53.  The guidelines also require that any machine learning or artificial intelligence used by identity systems must be documented and communicated to those that use the systems.  NIST is accepting comments on the draft guidelines through October 7, 2024.

Tags: Cyber EO, Cybersecurity
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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, 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.

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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.

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Photo of Matthew Harden Matthew Harden

Matthew Harden is a cybersecurity and litigation associate in the firm’s New York office. He advises on a broad range of cybersecurity, data privacy, and national security matters, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, and regulatory inquiries. He…

Matthew Harden is a cybersecurity and litigation associate in the firm’s New York office. He advises on a broad range of cybersecurity, data privacy, and national security matters, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, and regulatory inquiries. He works with clients across industries, including in the technology, financial services, defense, entertainment and media, life sciences, and healthcare industries.

As part of his cybersecurity practice, Matthew provides strategic advice on cybersecurity and data privacy issues, including cybersecurity investigations, cybersecurity incident response, artificial intelligence, and Internet of Things (IoT). He also assists clients with drafting, designing, and assessing enterprise cybersecurity and information security policies, procedures, and plans.

As part of his litigation and investigations practice, Matthew leverages his cybersecurity experience to advise clients on high-stakes litigation matters and investigations. He also maintains an active pro bono practice focused on veterans’ rights.

Matthew currently serves as a Judge Advocate in the U.S. Coast Guard Reserve.

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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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