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Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

Contact:Read more about Michael WagnerEmail

This is the tenth 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, third, fourth, fifth, sixth, seventh, eighth, and ninth blogs described the actions taken by various Government agencies to implement the EO from June 2021 through January 2022, respectively.

This blog summarizes key actions taken to implement the Cyber EO during February 2022.  As with steps taken during prior months, the actions described below reflect the implementation of the EO within the Government.  However, these activities portend further actions in March 2022 that are likely to impact government contractors, particularly those who provide software products or services to government agencies.

NIST Publishes Guidance to Federal Agencies on Practices to Enhance Supply Chain Security When Procuring Software

Section 4(e) of the Cyber EO requires the National Institute of Standards and Technology (NIST) to publish guidelines on practices for software supply security for use by U.S. Government acquisition and procurement officials.  Section 4(k) of the EO requires the Office of Management and Budget, within 30 days of the publication of this guidance (or March 4, 2022), to “take appropriate steps to require that agencies comply with such guidelines with respect to software procured after the date of the EO.  Section 4(n) of the EO states that within one year of the date of the EO (or May 12, 2023), the Secretary of Homeland Security…shall recommend to the FAR Council contract language requiring suppliers of software available for purchase by agencies to comply with, and attest to complying with, any requirements issued pursuant to subsections (g) through (k) of this section.”

NIST issued the Supply Chain Security Guidance called for by Section 4(e) of the EO on February 4, 2022.  The Supply Chain Security Guidance states that it “provides recommendations to federal agencies on ensuring that the producers of software they procure have been following a risk-based approach for secure software development throughout the software life cycle,” and that “[t]hese recommendations are intended to help federal agencies gather the information they need from software producers in a form they can use to make risk-based decisions about procuring software.”  The scope of the Supply Chain Security Guidance is expressly limited to “federal agency procurement of software, which includes firmware, operating systems, applications, and application services (e.g., cloud-based software), as well as products containing software.”  The Guidance further provides that “the location of the implemented software, such as on-premises or cloud-hosted, is irrelevant,” and also excludes open source software and software developed by federal agencies.  However, open-source software that is bundled, integrated, or otherwise used by software purchased by a federal agency is within the scope of the Guidance.

The Supply Chain Security Guidance defines minimum recommendations for federal agencies as they acquire software or a product containing software:

  1. Use the Secure Software Development Framework (SSDF) terminology and structure to organize communications about secure software development requirements.
  2. Require attestation to cover secure software development practices performed as part of processes and procedures throughout the software life cycle.
  3. Accept first-party attestation of conformity with SSDF practices unless a risk-based approach determines that second or third-party attestation is required.
  4. When requesting artifacts of conformance, request high-level artifacts.

Continue Reading February 2022 Developments Under President Biden’s Cybersecurity Executive Order

This is the ninth 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, third, fourth, fifth, sixth, seventh, and eighth blogs described the actions taken by various government agencies to implement the EO from June through December 2021, respectively.

This blog summarizes key actions taken to implement the Cyber EO during January 2022.  As with steps taken during prior months, the actions described below reflect the implementation of the EO within Government.  However, these activities portend further actions in February 2022 that are likely to impact government contractors, particularly those who provide software products or services to government agencies.

National Security Memorandum Issued on Application of Cyber EO Requirements to National Security Systems

On January 19, 2022, President Biden signed National Security Memorandum-8, “Memorandum on Improving the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems” (the NSM).  The NSM sets forth requirements for National Security Systems (NSS) that are equivalent to or exceed the cyber requirements for Federal Information Systems set forth in the Cyber EO. The NSM also establishes methods for obtaining exceptions to these requirements for unique mission needs.

Section 1 of the NSM addresses how requirements set forth in the Cyber EO will be applied to NSS.  In general, NSS are systems that involve:  intelligence activities, cryptologic activities related to national security, command and control of military forces, equipment that is an integral part of a weapon or weapons system, or are critical to the direct fulfillment of military or intelligence missions.[1]  The NSM states that Cyber EO Sections 1 (“Policy”) and 2 (“Removing Barriers to Sharing Threat Information”) apply to NSS in their entirety, except that the Director of the National Security Agency (“NSA”) (defined as the “National Manager”) shall exercise with respect to NSS the authorities granted the OMB Director and the Secretary of Homeland Security under Section 2 of the Cyber EO.  This means, among other things, that companies that contract with DOD and other national security agencies and whose performance involves NSS, may be subject to the cyber incident reporting and standard contractual clauses promulgated in the Federal Acquisition Regulation pursuant to section 2 of the Cyber EO.

Section 1 of the NSM also requires the Committee on National Security Systems (CNSS) and the national security/intelligence agencies to take several actions to modernize NSS consistent with Section 3 of the Cyber EO.  For example, the NSM requires all agencies that own or operate NSS to update their existing plans to use cloud technology and to develop plans to implement Zero Trust Architecture by March 18, 2022.  The NSM further requires owners or operators of NSS to implement multifactor authentication and encryption of data-in-transit and data-at-rest on such systems by July 18, 2022.  The NSM also requires NSS owners and operators to adhere to the standards for enhancing software supply chain security developed under section 4 of the Cyber EO except where “otherwise authorized by law” or where the National Manager grants an exception.  Section 3 of the NSM sets forth the procedures and conditions for granting exceptions to NSS from the requirements of the Cyber EO.

In addition to the requirements described above, the NSM requires national security agencies to adhere to a process to be developed by the Director of NSA to identify and then inventory the NSS under their control according by April 19, 2022.  This guidance and inventory will be critical to defining the scope of application of the requirements of the memorandum.

The NSM also requires such agencies to report all known or suspected compromises of or unauthorized access to such NSS to the Director of NSA in accordance with procedures to be developed by the Director of NSA.  The NSM authorizes the Director of NSA to issue Emergency Directives and Binding Operational Directives to NSS owners and operators that are similar to the directives that the Cybersecurity and Infrastructure Security Agency (CISA) is authorized to issue to civilian agencies.
Continue Reading January 2022 Developments Under President Biden’s Cybersecurity Executive Order

In a December 2020 speech, Deputy Assistant Attorney General Michael Granston warned that cybersecurity fraud could see enhanced enforcement under the False Claims Act (“FCA”).  On October 6, 2021, Deputy Attorney General Lisa Monaco announced that the Department of Justice (“DOJ”) would be following through on that warning with the…
Continue Reading DOJ Announces New Civil Cyber-Fraud Initiative

Under the January 2021 “Made in America” Executive Order 14005, President Biden established a new Made in America Office to oversee and administer domestic preference requirements in federal procurements.  Housed within the Office of Management and Budget (“OMB”), the Made in America Office was tasked with, among other things,…
Continue Reading The Made in America Office Website Is Live

As discussed in our

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Continue Reading FAR Council Virtual Public Meeting on the Proposed Made in America FAR Rule

As GSA Multiple Award Schedule contractors know all too well, Schedule contracting involves a complex web of customer-tracking, reporting, and price-adjustment requirements.  Those of us who navigate these often byzantine rules understand why many in the industry have called for the adoption of an alternative approach to verifying price reasonableness.

For the last several years, GSA has been piloting just such an alternative:  the Transactional Data Reporting (“TDR”) program, through which the government collects transaction-level data on products and services purchased through the Schedule to make data-driven decisions that save taxpayer dollars.  GSA has been running a TDR pilot program for several years to test the potential for a new regulatory regime, though the program sometimes has been the source of criticism and controversy.  Now that controversy has heightened further:  GSA’s Office of Inspector General published an audit report on June 24, 2021 that is sharply critical of the program, only to see GSA’s Federal Acquisition Service (“FAS”) Commissioner publicly reject the report’s conclusions and defend TDR’s effectiveness.
Continue Reading The End of CSP and PRC Requirements? — GSA’s TDR Pilot Program Faces Further Internal Criticism

The American Rescue Plan, signed into law last month, includes $1.9 trillion in economic stimulus, healthcare, and related funding.  And just last week the Biden administration released an infrastructure proposal, the American Jobs Plan, that includes $2.3 trillion in transportation, connectivity, power, and other critical infrastructure investments.Contractors are

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Continue Reading U.S. Senators Propose Trade-Pact Waivers Amidst Focus on Domestic Preference Laws

When the United States government decides to intervene in False Claims Act litigation after initially declining intervention, it is not “déjà vu all over again.”  Instead, as one court has recognized, the “government is getting on a moving train,”[1] and it can only be permitted to “intervene at a

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Continue Reading False Claims Act Update: District Court Rejects DOJ Motion to Intervene for Lack of “Good Cause”

On February 24, 2021, President Biden signed an Executive Order entitled “Executive Order on America’s Supply Chains” (the “Order”). Among other things, the Order is an initial step toward accomplishing the Biden Administration’s goal of building more resilient American supply chains that avoid shortages of critical products, facilitate investments to…
Continue Reading President Biden Directs Broad Review of America’s Supply Chains

On February 17, 2021, Senator Chuck Grassley (R-IA) and Brian Boynton, Acting Attorney General for the Department of Justice’s Civil Division, provided opening remarks at the Federal Bar Association’s annual Qui Tam Conference. Both emphasized the key role of the FCA in combating fraud against the Government, and noted an

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Continue Reading Senator Grassley and Senior DOJ Official Discuss Potential False Claims Act Changes and Enforcement Priorities