Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

GAO Protest Timeline

govcon-gao-protest-timeline-thumb.jpg

Govcon GAO Post Award Protest Timeline Article

Contract Disputes Act Claim Timeline

govcon-contract-disputes-timeline-thumb.jpg

The Bayh-Dole Act

govcon-bayhdole-thumb.jpg

Anatomy of a Protest

govcon-federalclaimsprotest-thumb.jpg

Allowability of Legal Costs

govcon-allowabilityoflegalcosts-thumb.jpg

Procurement Integrity Act

240715-procurement-integrity-act-resized.jpg

Govcon-Resources

Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

reynolds_tina_blog_150x150.png

reynolds_tina_common_640x280.jpg

reynolds_tina_heroretina_2700x1160.jpg

reynolds_tina_mobileretina_750x1040.jpg

reynolds_tina_social_600x600.jpg

Partner

Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

tucker_james_blog_150x150.png

tucker_james_common_640x280.jpg

tucker_james_heroretina_2700x1160.jpg

tucker_james_mobileretina_750x1040.jpg

tucker_james_social_600x600.jpg

Of Counsel

Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

ward_alex_blog_150x150.png

ward_alex_common_640x280.jpg

ward_alex_heroretina_2700x1160.jpg

ward_alex_mobileretina_750x1040.jpg

ward_alex_social_600x600.jpg

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

Bradley Wine

gov-con-feature-image-thumb1.jpg

Welcome to the Government Contracts Insights Blog

Welcome to the Government Contracts Insights Blog

gov-con-feature-image_(1)1.jpg

The United States Capitol building

Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and proc

Announcements & Press

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech

Mofo Tech

News and thought leadership from lawyers who are adding value to the legal profession and the communities we call home.

  External-Link

MoFo + Blog

Mofo+

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

Our Government Contracts Insights blog provides in-depth analysis of developments and trends impacting U.S. government contracting and non-U.S. public procureme

Government Contracts Insights

  Linkedin

MoFo LinkedIN

Blog - Govcon RSS

Stay Connected

Never miss a post from Government Contracts Insights. Enter your email below to stay up-to-date.

Subscribe

The latest updates and analysis from Morrison Foerster

Morrison Foerster - Footer

Software companies that sell commercial software products to federal agencies soon must begin attesting to their compliance with guidance designed to enhance the security of the software supply chain.

Blogs -  Home Button

Home

Blog - Topics

Acquisition Regulations

Artificial Intelligence + Robotics

Compliance

Coronavirus

Cybersecurity & Data Privacy

Data Rights

Defense

Domestic Preferences

False Claims Act

Federal Procurement

Foreign Corrupt Practices Act

Grants

Health Care

Intellectual Property

International Public Procurement

Labor & Employment

Mergers & Acquisitions

National Security

Protests & Litigation

Resources

Schedule Contracting

Small Business

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

Companies Selling Software to the U.S. Government Soon Must Attest to Compliance with NIST Guidance on Software Supply Chain Security | Government Contracts Insights

Markus Gerhard Speidel

Software companies that sell commercial software products to federal agencies soon must begin attesting to their compliance with guidance designed to enhance the security of the software supply chain. Under a new White House Office of Management and Budget (OMB) <a href="https://www.whitehouse.gov/wp-content/uploads/2022/09/M-22-18.pdf">memorandum</a> issued September 14, federal agencies must require software “producers” (i.e., the developers of software) to confirm their compliance with specific guidance created by the National Institutes of Standards and Technology (NIST). The OMB memorandum implements the software supply chain enhancements first suggested under Executive Order (EO) 14028, Improving the Nation’s Cybersecurity, on which we’ve previously <a href="https://govcon.mofo.com/topics/210601-executive-order-on-cybersecurity">commented</a>. For purposes of the memorandum, the term “software” includes firmware, operating systems, applications, and cloud-based software, as well as products that contain software. The new requirements apply to software developed after the memorandum’s effective date (more on this below), and to existing software if modified by major version changes. Once the policy is in full effect, federal agencies may only use software if the software producer has attested to compliance with the NIST guidance, subject to certain limited exceptions. The purpose of the new requirements is to protect federal information systems from cyberattacks by ensuring the integrity of software acquired by the government. The policy can be traced to the SolarWinds compromise that impacted multiple U.S. government systems and other similar security incidents.When do the new rules take effect?Under the scheme set forth in the OMB memorandum, agencies have 90 days (or until December 14) to inventory their existing software and 120 days (until January 14, 2023) to develop a process for communication with software vendors. Agencies must begin collecting attestation letters for “critical software”<a href="about:blank">[1]</a> within 270 days (by June 14, 2023) and for all other software within 365 days (by September 14, 2023). In other words, within the next year, any software company seeking to sell its products to the federal government will need to assess and come into compliance with the NIST guidance. Note, however, the memorandum does permit agencies to request extensions of the above deadlines. If past is prologue, the implementation timeline may well be expanded beyond a year.What is the relevant NIST guidance?The two publications collectively referred to as the “NIST Guidance” in the OMB memorandum are the <a href="https://csrc.nist.gov/Projects/ssdf">NIST Special Publication (SP) 800-218</a> – Secure Software Development Framework (SSDF) and the <a href="https://www.nist.gov/system/files/documents/2022/02/04/software-supply-chain-security-guidance-under-EO-14028-section-4e.pdf">NIST Software Supply Chain Security Guidance</a>.NIST SP 800-218 provides high-level guidance on how software producers can integrate security into the software development life cycle. The framework consists of four recommendations, each broken down into a series of more specific practices and more well defined tasks, followed by examples and references. The recommendations are:<ul><li>Prepare the organization, by ensuring that the people, processes, and technology are prepared to perform secure software development.</li><li>Protect the software, including all components from tampering and unauthorized access.</li><li>Produce well-secured software, with minimal security vulnerabilities in each release.</li><li>Respond to vulnerabilities, by identifying residual vulnerabilities and responding appropriately to address those vulnerabilities and prevent similar ones from occurring in the future.</li></ul>The publication takes the form of a chart, mapping out each recommendation, practice, and task. The executive summary clarifies that not all practices apply to every use case, and that organizations should adopt a risk-based approach to determine which practices are relevant, appropriate, and effective to mitigate the threats to their software development practices.The NIST Software Supply Chain Security Guidance provides additional direction, aimed primarily at agencies, to assist in integrating the SSDF into procurements. The guidance clarifies that although open-source software freely obtained by federal agencies falls outside the scope of the framework, open-source software that is bundled, integrated, or otherwise used as part of any third-party software purchased by agencies is covered by the SSDF. Additionally, the guidance applies to both on premises and cloud-hosted software. The guidance further recommends that agencies:<ul><li>Use the SSDF’s terminology and structure to organize communications about secure software development requirements.</li><li>Require attestation to cover secure software development practices performed as part of processes and procedures throughout the software life cycle.</li><li>Accept first-party attestation of conformity with SSDF practices unless a risk-based approach determines that second or third-party attestation is required.</li><li>Request high-level artifacts demonstrating conformance, when needed. </li></ul>How do I provide an attestation?The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has been directed to work with OMB to establish a “common form” suitable for use by multiple agencies. The form will provide a minimum level of assurance that the vendor followed NIST Guidance, and will include the software producer’s name, a description of the product or products the statement covers, and a statement attesting that the software producer followed NIST recommended secure development practices. Alternatively, a vendor may obtain a third-party assessment, provided by a certified FedRAMP Third-Party Assessor Organization (3PAO) or another assessor approved by the agency, in lieu of attestation. The OMB memorandum suggests that use of this process might be especially useful for open source software, or products incorporating open source software.Beyond the simple attestation form, agencies may also request artifacts in future solicitations, such as a complete Software Bill of Materials (SBOM), depending on the criticality of the software or the agency’s determination of need. To facilitate information sharing with the government, within the next two years CISA will establish a government-wide repository for software attestations and artifacts. As needed, CISA also will publish updated SBOM guidance for federal agencies.What if my software does not fully comply?In exceptional circumstances, and only for limited durations, agencies may seek a waiver of specific requirements from OMB, which will review the requests on a case-by-case basis. OMB will post specific instructions for submitting waiver or extension requests within 90 days.If a software producer cannot attest to its conformance with one or more practices from the NIST Guidance, the requesting agency shall require the software producer to identify those practices to which they cannot attest, to document measures in place to mitigate risks, and to develop a Plan of Action & Milestones (POA&M) to address remaining gaps. The POA&M and other documentation will not be posted publicly by either the vendor or the agency. If the software producer supplies this documentation and the agency finds the POA&M satisfactory, the agency may use the software despite the producer’s inability to provide a complete self-attestation.What if my company does not develop software, but uses third-party software in its products?The scope of the attestation requirement extends not just to stand alone software and cloud-based software-as-a-service offerings but also to other products that incorporate third-party software. Under the process as described, the attestation must come from the software “producer” itself. But companies that incorporate third-party software into their own products will have a vested interest in ensuring compliance by their essential software subcontractors, as the end products incorporating the software may not be sold to the government absent an attestation (or use of an alternative assessment methodology, or an agency waiver).ConclusionBy requiring software producers to attest to compliance with the NIST Guidance, the government aims to ensure that companies undertake a risk-based approach to secure software development, which ultimately will help ensure the overall security of federal information systems. Given the deadlines, all companies that sell (or want to sell) software to the government, whether directly or through resellers or other channels, should quickly assess their compliance with the NIST Guidance, develop action plans to address any gaps, and carefully document their activities. Some companies may be required to rethink development strategy for new products or major version upgrades. As with all recent government cybersecurity initiatives, dates may slip and the contours of the requirements may change around the edges, but the basic policy directive here is clear, and software producers that intend to keep the U.S. government as customers need to get on board. In addition, contractors whose products rely upon or incorporate software will need to ensure that the vendors upon which they are dependent are fully engaged in the attestation process.By implementing the policy through an attestation form rather than a contract clause, the government is making sure software producers are directly involved in the process, and are legally liable, under False Statements and False Claims Act authority, for any misrepresentations or misstatements. This was surely a deliberate decision to reinforce the seriousness of the issue and to help ensure more widespread compliance. As with any attestation or certification requirement, the new policy brings with it the potential for enforcement actions, whether initiated by the government or by False Claims Act qui tam relators. Software vendors therefore should pay particular attention to their compliance assessments and the representations that they make going forward.  <a href="about:blank">[1]</a> A <a href="https://whitehouse.gov/wp-content/uploads/2021/08/M-21-30.pdf" target="_blank">prior OMB memorandum</a> directed NIST to issue guidance of security measures for “critical software,” defined as any software that has, or has direct software dependencies upon, one of more components with at least one of these attributes:- is designed to run with elevated privilege or manage privileges; - has direct or privileged access to networking or computing resources; - is designed to control access to data or operational technology; - performs a function critical to trust; or - operates outside of normal trust boundaries with privileged access.

Companies Selling Software to the U.S. Government Soon Must Attest to Compliance with NIST Guidance on Software Supply Chain Security

More

Associate

Less Oversight and Undefined Penalties: The NDAA’s Proposed Protest Reforms

The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments

Bid Protest Spotlight: Standing, Relationships, Responsibility

House’s Passage of the SAMOSA Act Signals Policy Shift Towards Government-Wide Enterprise Software Licensing

New DFARS Regulation on Small Business Affiliate Past Performance

LinkedIN