This is the thirteenth 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 describe the actions taken by various Government agencies to implement the Cyber EO from June 2021 through April 2022.  This blog reflects on the one year anniversary of the Cyber EO and discusses the status of various implementation activities.  It also describes key actions taken to implement the Cyber EO during May 2022.

U.S. Government Agencies’ Progress and Challenges with Implementing the Cyber EO

On May 12, 2022, the Advanced Technology Academic Research Center (“ATARC”) hosted a webinar with panelists representing multiple U.S. Government agencies and other stakeholders to commemorate the one year anniversary of the Cyber EO.  Some of the agencies represented included the Department of Homeland Security (“DHS”), the U.S. Army, and TRANSCOM.  The agency representatives expressed uniform support for implementing the Cyber EO, discussed the significant progress that their respective agencies have made in cybersecurity, and described areas for improvement.  Webinar attendees as a group reported that the Cyber EO is their highest compliance priority.

One theme that emerged from ATARC’s anniversary webinar was the widespread difficulty in adapting different agencies’ cybersecurity practices to rapidly changing technology.  Despite their significant progress in automating cybersecurity and standardizing their processes, agencies are finding it difficult to keep up with changing technology and are sometimes forced to be reactive to cybersecurity issues rather than proactive.  Larger agencies in particular find it difficult to train their employees on how to use rapidly changing cybersecurity technology.  For example, TRANSCOM reported challenges with implementing NIST’s Risk Management Framework (“RMF”) across all its various divisions.  

Agency representatives expressed their desire for assistance from private sector stakeholders.  For example, the panelists said that they want the different components of the supply chain to check for cybersecurity vulnerability before the agency itself purchases software.  Additionally, the agency representatives said that they want transparency from their vendors, so that they can better understand what software their vendors are using.  Fortunately, private sector solutions already exist to help agencies and contractors implement cybersecurity practices, such as vendor technologies that will create Software Bill of Materials (“SBOMs”) and open source tools for smaller organizations.  Nonetheless, providing SBOMs and meeting other requirements of the Cyber EO undoubtedly will require significant adjustments from agencies and contractors alike in the months and years ahead.

NIST Issues New Guidance for Cybersecurity Supply Chain Risk Management

On May 5, 2022, NIST released the final version of Special Publication 800-161, Revision 1, “Cybersecurity Supply Chain Risk Management Practices for Systems and Organizations.”  NIST removed from SP 800-161 several Cyber EO-directed guidance documents that had previously appeared in Appendix F to earlier drafts of that document and moved these and other EO-directed software supply chain security documents to a NIST website dedicated to EO documents.  The documents placed on NIST’s EO website include both existing standards, tools, and recommended practices and evolving standards, tools, and practices.  The existing references consist of the following: (1) the Critical Software Definition; (2) Security Measures for “EO Critical Software” Use; (3) Software Supply Chain Security Guidance for Producers and Users, including a document titled  “Attesting to Conformity with Secure Software Development Practices”, and (4) Recommended Minimum Standards for Vendor or Developer Verification of Software.  The evolving category consists of guidance regarding the following subjects: (1) SBOM; (2) Enhanced Vendor Risk Assessments; Open Source Software Controls; and (4) Vulnerability Management.  The website also contains a document listing additional existing industry standards, tools, and recommended practices, and a set of responses to Frequently Asked Questions.

According to NIST, “Federal agency acquirers should utilize this guidance to contextualize their application of any existing SP 800-161, Rev 1 controls upon their suppliers and–where feasible–adopt new software supply chain security recommendations that previously fell outside of the explicit scope of SP 800-161, Rev. 1, in the context of [the Cyber EO].”  However, NIST acknowledges that its EO-directed guidance “does not include contractual language for federal agencies or cybersecurity concepts and disciplines beyond core software supply chain security use cases.”  Instead, consistent with the Cyber EO, other agencies “are directed to take steps to ensure that federal procurement of software follows [the NIST] guidance.”  Notably, the Office of Management and Budget (“OMB”) intends to issue further guidance to agencies on how to use NIST’s secure supply chain guidance in acquiring software, and OMB has or will recommend contractual language to the Federal Acquisition Regulation (FAR) Council for proposed inclusion in the FAR.  Such FAR amendments are expected to be proposed in the Summer or early Fall of 2022.

In addition to its actions described above, NIST released on May 24, 2022 a report that it sent to the White House on May 10 summarizing the pilot programs that it conducted regarding cybersecurity labelling for consumer software development practices and consumer Internet of Things devices. Finally, on May 31, 2022, the Cybersecurity and Infrastructure Security Agency (CISA) announced that it would host a series of public “listening sessions” on SBOM implementation with industry and other stakeholders in July 2022.

OMB and CISA Work Toward Implementing Zero Trust Strategy

The Cyber EO Section 3 directs that the Federal Government must adopt security best practices to advance toward Zero Trust Architecture, and charges each agency with developing a plan to implement Zero Trust Architecture.  In response to the Cyber EO, in January 2022, OMB released Memorandum M-22-09 setting forth the federal Zero Trust Architecture strategy and requiring agencies to meet specific zero trust goals by the end of Fiscal Year 2024.  Memorandum M-22-09 directed federal agencies to submit implementation plans for OMB review and concurrence within 60 days.                     

On May 17, 2022, the House Committee on Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection & Innovation held a hearing regarding implementation of the Cyber EO.  Eric Goldstein the Executive Assistant Director for Cybersecurity at CISA and Christopher DeRusha, Deputy National Cyber Director for Federal Cybersecurity at OMB testified regarding implementation of the Cyber EO.  In particular, with regard to implementation of Zero Trust Architecture, DeRusha testified that a team comprised of the OMB, CISA, and the Office of the National Cyber Director is working on reviewing each agency’s implementation plan to ensure they are achievable and have the right investment requests.  Additionally, DeRusha confirmed that OMB intends to hold agencies accountable to these multi-year plans.  Goldstein further testified that CISA is providing guidance and hands on direct support to federal agencies so that they can effective meet Zero Trust objectives and OMB Guidance.  

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.

Anna Menzel

Anna Menzel has experience working closely with government contractors to resolve a broad range of U.S. Government contracting issues.

Anna’s practice includes counseling contractors regarding compliance with procurement and grant regulations, flow-down requirements, and non-traditional agreements with the U.S. Government. She represents contractors…

Anna Menzel has experience working closely with government contractors to resolve a broad range of U.S. Government contracting issues.

Anna’s practice includes counseling contractors regarding compliance with procurement and grant regulations, flow-down requirements, and non-traditional agreements with the U.S. Government. She represents contractors in bid protests and regularly advises clients on transactional matters involving government contractors including performing due diligence, negotiating transaction documents, and assisting with post-closing activities.

Anna routinely writes on issues related to government contracts compliance and other policy issues.

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.