This is the sixteenth 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 July 2022.  This blog describes key actions taken to implement the Cyber EO during August 2022.

Three Federal Agencies Issue Supply Chain Cybersecurity Guidance for Software Developers

The Cybersecurity and Infrastructure Security Agency (CISA), the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI) issued a Recommended Practices Guide for Developers (“Developers’ Guide”) for securing the software supply chain on August 31, 2022.  This guide is designed to inform implementation of the memorandum that was subsequently issued by the Office of Management and Budget (OMB) on September 14, 2022.  That September 14 OMB Memorandum requires federal agencies to obtain self-attestations, and potentially artifacts such as Software Bills of Materials (SBOMs), from software vendors before using such software in agency information systems.  The September 14 OMB Memorandum is the subject of a separate Covington blog post found here.

The Developers’ Guide includes separate sections addressing: (1) Developing Secure Code; (2) Verifying Third-Party Components; (3) Hardening the Build Environment; and (4) Delivering Code.  It identifies certain areas where software supply chain vulnerabilities may exist, including (i) undocumented features or risky functionality, (ii) unknown and/or revisions to contractual, functionality or security assumptions between evaluation and deployment, (iii) supplier’s change of ownership and/or of geo-location, and (iv) poor supplier enterprise or development hygiene.  Appendix A to the Developers’ Guide contains a cross-walk between the Guide’s use cases (scenarios) and the Secure Software Development Framework (SSDF) published by the National Institute of Standards and Technology (NIST) (Draft NIST SP 800-218 Version 1.1).  Other appendices address supply chain levels for software artifacts (SLSA) and best practices regarding such artifacts.

The Developers’ Guide is the first of what will be a series of guides regarding the software supply chain lifecycle.  The second in the series will be a recommended practices guide focused on software suppliers, and the third will focus on software customers, including federal government agencies.  Each of these three guides was or will be prepared by the Enduring Security Framework, a public-private working group that operates under the auspices of the Critical Infrastructure Partnership Advisory Council.

New FAR Part 40 Governing Cyber Supply Chain Security

On August 31, the FAR Council quietly announced a major proposed change to the U.S. Government’s approach to regulating supply chain security: the Government will be issuing an entirely new FAR Part 40 to implement software supply chain security requirements outlined in Section 4(n)-(p) of the Cyber EO.  Although few details of the forthcoming FAR Part 40 are available at this time, the stated purpose of the new FAR Part 40 would be to serve as a “single, consolidated location in the FAR for cybersecurity supply chain risk management requirements.”  The Director of the Defense Acquisition Regulatory Council has tasked staff to draft a “final FAR rule,” on which a progress report is due October 12, 2022.  Contractors would be wise to monitor progress toward the issuance of the new FAR Part 40 and take advantage of any opportunities for public review and comment.  

NIST Releases Additional Draft Volumes of Its Practice Guide for Zero Trust Architecture

On August 9, 2022, the NIST Cybersecurity Center of Excellence (NCCoE) issued preliminary draft Volumes C and D of the practice guide for its zero trust architecture (ZTA) implementation project under the Cyber EO.  This guide summarizes how the NCCoE and its collaborators use commercially available technology to build interoperable, open standards-based ZTA implementations that are consistent with the concepts and principles in NIST SP 800-207, Zero Trust Architecture.  Draft Volume C focuses on assisting IT professionals in designing and improving information systems to incorporate ZTA, while draft Volume D focuses on “Functional Demonstrations” of use cases of ZTA implementation.  These use cases are: “Discovery and Authentication of IDs, Assets, and Data Flows”; “Enterprise ID Access”; “Collaboration: Federated -ID Access”; “Other-ID Access”; “No-ID Access”; and “Confidence Level.”  NCCoE collected public comments on the draft through September 9, 2022, and is expected to revise the drafts based on those comments. 

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

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.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette 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…

Ryan Burnette 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 federal supply chain security. Ryan also advises on government cost accounting, FAR and DFARS compliance, public policy matters, and agency disputes. 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.

Photo of Terra White Fulham Terra White Fulham

Terra White Fulham represents corporations and individuals facing criminal and civil investigation.  Her experience includes representing clients in government investigations, responding to grand jury subpoenas and government inquiries, and conducting internal investigations.  She has experience in enforcement matters concerning the False Claims Act…

Terra White Fulham represents corporations and individuals facing criminal and civil investigation.  Her experience includes representing clients in government investigations, responding to grand jury subpoenas and government inquiries, and conducting internal investigations.  She has experience in enforcement matters concerning the False Claims Act, the Foreign Corrupt Practices Act, environmental statutes, and other federal fraud and conflict of interest statutes.  Ms. Fulham also has experience in civil litigation matters, including commercial and environmental tort litigation.