By: Robert Huffman, Susan Cassidy, Michael Wagner, Ryan Burnette, and Emma Merrill

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

I. OMB Issues Memorandum Requiring Executive Agencies to Obtain Self-Attestations and Potentially SBOMs from Software Vendors

On September 14, 2022, the Director of the Office of Management and Budget (“OMB”) issued a memorandum to the heads of executive branch departments and agencies addressing the enhancement of security of the federal software supply chain.  Covington covered that memorandum in detail in an earlier post.  The memorandum applies to all software (other than agency-developed software) to be operated “on the agency’s information systems or otherwise affecting the agency’s information,” and requires new self-attestations from software vendors before that software can be used by agencies.

In particular, the memorandum mandates that to use software, agencies must first obtain a self-attestation from software providers that the software developer follows the secure development processes described by NIST Secure Software Development Framework (NIST SP 800-218) and the NIST Software Supply Chain Security Guidance (discussed here) (collectively, “NIST Guidance”).  Moreover, the memorandum also provides that a Software Bill of Materials (“SBOM”) and/or other artifact may be required by the agency in solicitation requirements.  If required, SBOMs must either be retained by the agency or posted on the website of the software producer.  SBOMs must be generated in the format set forth in a report issued by the National Telecommunications and Information Administration or successor guidance by the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”).

The American Bar Association (“ABA”) Subcontracting, Teaming and Strategic Alliances Committee hosted a roundtable to discuss the OMB memorandum on October 5, 2022.  The Committee discussed the content of the memorandum, how it relates to the Cyber EO, how the memorandum may immediately affect subcontractors, the timing for implementation of the new requirements on software, and potential ramifications of the lack of a traditional rulemaking process, including the absence of a notice and comment period.  The roundtable also considered whether there will be waivers for exceptional circumstances, vendors’ unwillingness to provide the necessary information, whether there will be differing timelines for software versus critical software, and the memorandum’s impact on bid protests, among other issues arising from the issuance of the memorandum.  That Committee is expected to continue to track this issue.

II. Industry Associations Criticize Pending FY 2023 NDAA Provisions Requiring SBOMs and Certifications.

Contemporaneous with the issuance of the OMB memorandum, several technology and defense industry associations submitted letters to the leadership of the House and Senate Armed Services Committees objecting to provisions in the pending House and Senate FY 2023 defense authorization bills that would require SBOMs and corresponding certifications from certain contractors.  Specifically, Section 6722 of the House-passed version of the FY 2023 NDAA would require the Department of Homeland Security (DHS) to issue guidance requiring DHS contractors to provide a “planned bill of materials” with all offers for new contracts relating to the procurement of IT and communications technology products and services and to certify that each item listed on the bill of materials is free from known security vulnerabilities or defects and/or notify the agency of each such vulnerability or defect.  The section would also require holders of an existing DHS contract for such products or services to submit the bill of materials used for such contract and the certification and notification required for new DHS contracts.

Section 1627 of the version of the FY 2023 NDAA passed by the Senate Armed Services Committee would require the U.S. Department of Defense (DOD) to amend the DFARS to require an SBOM for all non-commercial software created for or acquired by DOD going forward and a study to determine the feasibility and advisability of acquiring an SBOM for software already acquired by the Department.  The provision would also require DOD to develop, in consultation with industry, an approach for commercial software used or to be acquired by DOD that provides policies and processes for “operationalizing” SBOMs “to enable [DOD] to understand promptly the cybersecurity risks to Department capabilities posed by vulnerabilities and compromises in commercial and open source software.”  The industry associations criticized these provisions as vague and premature given the lack of any standard agency or industry approach to SBOMs and the ongoing efforts (as reflected in the OMB memorandum) to develop such standard approaches.

III. Senate Homeland Security Committee Adopts Bipartisan “Securing Open Source Software Act of 2022”

Shortly after the issuance of the OMB memorandum, Senators Peters and Portman introduced S.4913 a bipartisan bill, “the Securing Open Source Software Act of 2022” to establish certain duties of the Director of CISA regarding open source security software.  The government has long supported the use of open source software in appropriate circumstances, but the Log4j vulnerability in 2021 highlighted the need for a risk based  framework for using open source code.  The bill reiterates the importance of open source software to overall cybersecurity and directs the Director to perform outreach and engagement to bolster its security, support federal efforts to strengthen the security of open source software, and coordinate with non-federal entities to ensure the long term security of open source software, among other duties.  Additionally, the bill would require the Director to publish a framework incorporating NIST, industry, and open source software community frameworks and best practices for assessing the risk of such software, within 1 year of the bill’s enactment into law.  The bill would also establish a pilot open source program at selected agencies and require an assessment by the Director as to whether open source functions should be established at some or all of the covered agencies.  If the Director determines that some or all of the open source functions should be established at some or all of the agencies, the Director must issue guidance on how to implement those functions.                                         

IV. NIST Issues Final Guidance on Cybersecurity of Consumer Internet-of-Things (IoT) Products

On September 20, 2022, the National Institute of Standards and Technology (NIST) issued Internal Report 8425, “Profile of the Core Baseline for Consumer IoT Products.”  The report states that the core baseline is intended to be the “starting point for manufacturers to use in identifying the cybersecurity capabilities their customers may expect from the IoT devices they create.”  The report tailors (“profiles”) the core baseline capabilities for specific product sectors or use cases, in this case consumer IoT products.  These use cases can be used in the criteria for the cybersecurity labelling of IoT devices that the Cyber EO directs NIST to develop.

The Biden Administration is planning to move forward with developing a product labelling regime to alert consumers to the cybersecurity risks and capabilities of IoT products.  In a fact sheet issued on October 11, 2022, the White House announced that it will host a meeting with stakeholders in October “to discuss the development of a label for [IoT] devices so that Americans can easily recognize which devices meet the highest cybersecurity standards to protect against hacking and other cyber vulnerabilities…[b]y developing and rolling out a common label for products that meet U.S. Government standards and are tested by vetted and approved entities.”  The fact sheet states that the Administration intends to start by focusing on some of the most common and often most at-risk technologies–routers and home cameras–“to deliver the most impact most quickly.”

Photo of Robert Huffman 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).

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.

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.