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Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the Cost Accounting Standards.  Prior to joining Covington, Mr. Burnette served in the Office of Federal Procurement Policy in the Executive Office of the President, where he worked on government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year.

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 secondthirdfourthfifthsixthseventheighth, 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 secondthirdfourthfifthsixthseventh, 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

On November 5, 2021, an Editorial Note was added to the Federal Register stating “An agency letter requesting withdrawal of this document was received after placement on public inspection. The document will remain on public inspection through close of business November 4, 2021. A copy

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 launch of the DOJ’s Civil

This is the fifth 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, and fourth blogs described the actions taken by various

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 maintain America’s competitive edge, and

As described in an earlier blog post, the Department of Defense (DoD) released an Interim Rule on September 29, 2020 that address DoD’s increased requirements for assessing whether contractors are compliant with the 110 security controls in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 (NIST 800-171).[1]  Under this new

On May 5, 2020 the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency’s (“CISA”) Information and Communications Technology (“ICT”) Supply Chain Risk Management (“SCRM”) Task Force (the “Task Force”) released a six-step guide for organizations to start implementing organizational SCRM practices to improve their overall security resilience.  The Task Force also released a revised fact sheet to further raise awareness about ICT supply chain risk.

As we discussed in a prior blog post on the Task Force’s efforts, the Task Force was established in 2018 with representatives from 17 different defense and civilian agencies, as well as industry representatives across the information technology and communications sectors.  The Task Force has been focused on assessing and protecting security vulnerabilities in government supply chains.  Since its founding, the Task Force has inventoried existing SCRM efforts across the government and industry, including some of the practices reflected in the guide.

The six step guide (key points from which are described in the table below) captures the basic blocking and tackling that companies should consider when establishing their SCRM processes and procedures.
Continue Reading CISA Information and Communications Technology Supply Chain Risk Management Task Force Releases New Guidance on Security Resiliency