This is the twelfth 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 second through eleventh blogs describe the actions taken by various Government agencies to implement the Cyber EO from June 2021 through March 2022, respectively.  This blog summarizes key actions taken to implement the Cyber EO during April 2022.  As with the steps taken during prior months, the actions described below reflect the implementation of the EO within the Government. However, these activities portend further actions, potentially in or before June 2022, that are likely to impact government contractors, particularly those who provide software products or services to the Government.

The Government Moves Forward Towards Proposing Federal Acquisition Regulation Updates

Sections 2(b)-(c) of the Cyber EO require the Department of Homeland Security (DHS) to recommend to the FAR Council contract language and requirements for IT and OT service providers regarding reporting of cyber incidents and related information preservation requirements.  Section 2(g)(i) of the Cyber EO requires DHS to recommend to the FAR Council contract language that identifies the nature of cyber incidents that require reporting by federal contractors.  The FAR Council opened Federal Acquisition Regulation (FAR) Case No. 2021-017 to consider the recommended contract language and requirements and to develop proposed FAR amendments based thereon.  On April 27, 2022, the Defense Acquisition Regulations Council (DARC), a subdivision of the FAR Council, met to discuss a draft proposed FAR rule implementing sections 2(b)-(c) and 2(g)(i) of the Cyber EO.  According to the report on open FAR cases dated May 6, 2022, the DARC agreed to the draft proposed FAR rule , and the DAR staff is currently processing the draft rule for proposal.  The draft proposed rule now goes to the Civilian Agency Acquisition Council (CAAC) for review, following which it would be submitted to the Office of Information and Regulatory Affairs (OIRA) for review and approval.  If approved, the rule could be expected to be proposed in late Summer 2022, although publication could occur earlier or later than that time.

Sections 2(i) and 8(b) of the Cyber EO require DHS to recommend to the FAR Council standardized contractual language regarding “appropriate cybersecurity requirements” for federal government contractors with controlled unclassified information (CUI) on their information systems.  According to the May 6, 2022, open FAR cases report, the FAR Council opened FAR Case No. 2021-019 and on April 13, 2022, the DARC received a draft proposed FAR rule regarding such standardized contract language and requirements from the DAR staff and on May 4, 2022, the DARC agreed to this draft proposed rule.  The proposed FAR “standardized” cybersecurity requirements rule will follow the same CAAC and OIRA review process described above and will likely be proposed in late Summer 2022, although it is unclear whether it will be proposed at the same time as the rule regarding cyber incident reporting requirements discussed above.

NIST Guidance on Cloud Security

In April 2022, NIST released three practice guide publications addressing trusted cloud and hardware-enabled security.

First, NIST released the final version of NIST SP 1800-19, titled “Trusted Cloud: Security Practice Guide for VMware Hybrid Cloud Infrastructure as a Service (IaaS) Environments.”  The Practice Guide addresses the challenges of enforcing security and privacy policies on cloud workloads in a consistent, repeatable, and automated way.  The substance of the Practice Guide demonstrates how organizations can implement trusted compute pools to safeguard the security and privacy of their applications and data being run within a cloud or being transferred between a private cloud and a hybrid or public cloud.

Second, NIST published the final version of NISTIR 8320B, titled “Hardware-Enabled Security: Policy-Based Governance in Trusted Container Platforms.”  Building on NISTIR 8320A, the report explains an approach based on hardware-enabled security techniques and technologies for safeguarding container deployments in multi-tenant cloud environments and describes a prototype implementation of the approach intended to be a template for the general security community.  Report 8320B uses the three stages of deployment described in Sections 3, 4, and 5 of NISTIR 8320A, and describes two additional stages for encrypting container images and creating data access policies for containers.

Finally, NIST issued a draft of NISTIR 8320C, titled “Hardware-Enabled Security: Machine Identity Management and Protection.”  The report provides a proposed approach for overcoming security challenges associated with creating, managing, and protecting machine identities throughout their lifecycle.  Similar to NISTIR 8320B, the report is intended to be a  template that the general security community can use to validate and implement the described implementation.  Comments are due on the draft by June 6, 2022.

CISA Releases Secure Cloud Business Applications Reference Documents

As a part of the Secure Cloud Business Applications project, the Cybersecurity and Infrastructure Security Agency (CISA) released two publications in April 2022: Secure Cloud Business Applications (SCuBA) Technical Reference Architecture (TRA) and Extensible Visibility Reference Framework (eVRF) Program Guidebook.  Pursuant to Cyber EO Section 3(c), CISA is responsible for developing security principles governing Cloud Service Providers (CSPs) for incorporation into agency modernization efforts.  The SCuBA was established to develop effective, modern, and manageable security configurations to help secure agency information assets stored within cloud environments.  To implement the program, CISA released the SCuBA TRA, which is a security guide for agencies to use to adopt technology for cloud deployment, adaptable solutions, secure architecture, and zero trust frameworks.  Additionally, CISA released the eVRF Guidebook which provides an overview of the eVRF framework.  CISA is requesting comments on these reference documents by May 19, 2022.

NIST Updates Guidance for Securing Operational Technology

On April 26, 2022, NIST released Special Publication 800-82 Revision 3, “Guide to Operational Technology (OT) Security,” the third iteration of NIST’s guidance on securing OT.   The publication supplies guidance for how to implement secure OT while simultaneously “addressing OT’s unique performance, reliability, and safety requirements.”  OT refers to a wide spectrum of programmable systems and devices that interact with the physical environment, such as industrial control systems, physical environment measuring systems, and physical environment monitoring systems.

The third revision surveys “methods and techniques” for protecting OT systems.  Specifically, the publication analyzes typical threats and vulnerabilities associated with OT systems and advocates for certain “security countermeasures” to combat the relevant OT risks.  Additionally, the publication explains how to apply the Cybersecurity Framework (CSF) to OT systems and supplies OT-specific guidance for NIST Special Publication 800-53 Revision 5, Security and Privacy Controls for Information Systems and Organizations.  The publication remains open for public comment until July 1, 2022.

NIST Seeks Public Comment on Draft Publication on Safeguarding 5G Cybersecurity

NIST’s National Cybersecurity Center of Excellence is soliciting public comments on NIST’s second publication in its three volume series on 5G Cybersecurity.  Special Publication 1800-33B is meant to assist organizations with the challenge of securing technologies that use 5G while the development and usage of these technologies remains ongoing.  The draft publication provides a sample solution for addressing challenges unique to 5G cybersecurity, which incorporates a “risk analysis.”  The solution will provide “actionable and prescriptive guidance” for how to use “standards and recommended practices” to safeguard 5G technologies under various scenarios.  NIST expects to release at least one updated draft for public comment.  The comment period lasts until June 27, 2022.

 

 

 

 

 

 

Robert Huffman

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance…

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance, contract claims and disputes, and intellectual property (IP) matters related to U.S. government contracts.

Bob has leading expertise advising companies that are defending against investigations, prosecutions, and civil suits alleging procurement fraud and false claims. He has represented clients in more than a dozen False Claims Act qui tam suits. He also represents clients in connection with parallel criminal proceedings and suspension and debarment.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including cybersecurity, the Buy American Act/Trade Agreements Act (BAA/TAA), and counterfeit parts requirements. He also has extensive experience litigating contract and related issues before the Court of Federal Claims, the Armed Services Board of Contract Appeals, federal district courts, the Federal Circuit, and other federal appellate courts.

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 items and services. He handles IP matters involving government contracts, grants, Cooperative Research and Development Agreements (CRADAs), and Other Transaction Agreements (OTAs).

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.

Emma Merrill

Emma Merrill is an associate in the firm’s Washington, DC office. She advises clients on a broad range of issues related to government contracting, including both regulatory and transactional matters. She maintains an active pro bono practice.