Company that helped discover OPM breach still not paid

Editor's Note: This story first appeared on FCW.com

On April 21, 2015, an IT contractor unexpectedly found himself at the center of what would become the biggest cybersecurity breach in U.S. government history – the massive breach of Office of Personnel Management databases.

"The whole thing was bungled from the beginning by OPM," Ben Cotton, CEO of the service-disabled veteran-owned small business CyTech Services, told FCW.

Cotton was close to the discovery of the devastating OPM breach – so close that the Wall Street Journal actually reported CyTech's tools were actually responsible for its discovery. OPM has since claimed agency personnel found the intrusion themselves, and Cotton isn't fighting for breach discovery credit.

He is, however, fighting to get paid.

Jumping right in

By OPM's accounting, the feds found the breach on April 15, 2015, and expelled the adversary by April 24.

Cotton was at OPM demonstrating CyTech's CyFIR security tool in between those dates.

"From an atmospheric environment on the 21st, it did not appear to be an organization in the middle of incident response," Cotton said.

Since there was "no real sense of urgency" as he took most of the day to rack up his CyFIR server, Cotton said his OPM escort called it a day around 4 p.m.

Cotton didn't actually scan OPM's systems until the next day, April 22.

"From a known malware perspective, they weren't doing too bad," Cotton said, but when he reported three unknown processes running in OPM's active RAM, "all of a sudden hell broke loose."

OPM's then-CIO Donna Seymour later told Congress that OPM knew the breach had happened and were testing – or "tricking," as one congressman put it – the small business.

Cotton said he leapt into action without signing official paperwork because it was the right thing to do.

"Ben was special forces for 21 years, so he kicked into, 'I see a problem, I need to help' mode," said John Irvine, CyTech's CTO.

Cotton said he stayed on to support the mitigation work for the next week and a half, imaging the RAM and hard disks of potentially affected computers. Another CyTech engineer joined him, and they were at OPM until May 1.

The contract question

They didn't have a written contract. OPM says they never had a contract of any kind.

It's Cotton's contention that OPM director of security operations Jeff Wagner issued an "emergency verbal purchase order" to him on April 22, 2015, and told him to work through prime contractor Imperatis to sort out the details.

Last summer, then-CIO Seymour testified that OPM had purchased licenses from Cytech, but an OPM official told FCW on background that the agency had no records of such a contract, and that Seymour may have spoken in error.

The Imperatis rep that Cotton said was tasked with the contract work, meanwhile, told FCW, "I'm not allowed to talk about that."

Whatever happened, oral contracts are a murky business. The contracting experts with whom FCW spoke agreed that oral orders can be legally binding, but noted they're a minefield for small businesses that don't follow up with written documentation immediately.

Cotton says his company has been stiffed roughly $800,000. OPM officials don't just deny the claims, but have also  discussed the possibility of referring CyTech's case to the Justice Department for False Claims Act charges, according to an agency source. However, proving CyTech is acting in bad faith could be just as difficult for the government as proving a contract ever existed could be for CyTech.

CyTech sent a complaint letter to OPM in January, and OPM responded on March 17 with a request for supporting documentation -- the very documentation CyTech says doesn't exist, because the whole thing was predicated on a spoken order.

Other questions – from a breach cleanup contract breaking rules to a CIO shop accused of providing the inspector general with bad info – add to the strangeness surrounding the OPM hack.

In the end, Cotton left a single CyFIR server with OPM.

In August, OPM abruptly returned the device after the House Oversight Committee started asking questions, with data deleted.

"The data they deleted was also a full record of what our participation was," Cotton said.

Rep. Jason Chaffetz (R-Utah), who chairs the House Oversight and Government Affairs Committee, asked acting OPM Director Beth Cobert for details and documentation on the CyTech appliance in a September 2015 letter. Chaffetz later filed a subpoena for the records, and the issue bubbled up to the fore in Cobert's February 2016 confirmation hearing.

Whether congressional investigators can fill in the record to match Cotton's account remains an open question. Chaffetz, through a spokesperson, declined to be interviewed for this story.

About the Author

Zach Noble is a staff writer covering digital citizen services, workforce issues and a range of civilian federal agencies.

Before joining FCW in 2015, Noble served as assistant editor at the viral news site TheBlaze, where he wrote a mix of business, political and breaking news stories and managed weekend news coverage. He has also written for online and print publications including The Washington Free Beacon, The Santa Barbara News-Press, The Federalist and Washington Technology.

Noble is a graduate of Saint Vincent College, where he studied English, economics and mathematics.

Click here for previous articles by Noble, or connect with him on Twitter: @thezachnoble.

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