National Security-Related Investigations
Our lawyers have represented contractors in connection with a number of investigations and proceedings that involve national security: allegations of abuse at Abu Ghraib prison; security breach at DOE Y-12 nuclear facility; unauthorized releases of classified information by contractor employees; security services at US embassies; and uses of force and allegations of rebels among a contractor workforce in Iraq.
Where there is foreign investment in a company that performs classified work, Arent Fox is very experienced at implementing and advising on measures to mitigate foreign ownership and control or influence (FOCI) in accordance with the government’s National Industrial Security Program Operating Manual (NISPOM). Our team works closely with the Defense Security Services (DSS) or other cognizant Security Agency to identify potential FOCI – and to implement mitigation measures.
- Our team has represented 18 companies to develop and implement proxy agreements, special security agreements (SSA), security control agreement (SCA), or other FOCI-mitigation measures.
- Our lawyers often continue to represent FOCI-mitigation companies post-closing to assist with and oversee implementation of FOCI-mitigation processes and contracting practices.
When equity investments are made in contractors that have security clearances or hold unclassified controlled information, review by the Committee of Foreign Investment in the United States (CFIUS) may be appropriate. Our lawyers advise clients regarding, and represent them in, the CFIUS review process. Our lawyers are on the leading edge of assisting clients in addressing and complying with the 2018 requirements for mandatory submissions to CFIUS. Our team has a strong record of success in dealing with CFIUS. In addition, our lawyers are experienced in coordinating submissions for concurrent review by DSS and CFIUS.
We represent companies that use IT systems to process, store, and transmit classified information, naval nuclear propulsion information (NNPI), controlled unclassified information (CUI), sensitive but unclassified information (SBU), and other information that is at risk of cyber-attack. Our team regularly advises clients on the applicability and requirements of the most recent revisions to FAR and DFARS cybersecurity rules, providing best practices for preparing System Security Plans (SSPs) and plans of action (POAMs), drafting SSPs and POAMs as needed, and preparing policies and procedures for mandatory reporting. We also advise clients with contracts with civilian agencies that handle sensitive but unclassified information. Representative engagements:
- Advise dozens of clients regarding DOD cybersecurity rules (effective January 1, 2018).
- For over 20 years, advised major credit card company in cybersecurity rules applicable to credit card transactions involving government accounts.
- Represented mobile communications provider of real-time, in-field identification and assessment of potential security threats to law enforcement (FBI criminal background information) at Super Bowl.
Personnel Security Clearances and Facility Security Clearances
Our team advises contractors and key personnel regarding issues that relate to security clearances – and, as necessary, represents clients in security clearance proceedings before the Defense Office of Hearings and Appeals (DOHA). We have a record of success in contesting denial of a security clearance (or renewal) where government officials have erred in considerations of the factors and circumstances that are relevant to issuance of security clearances.
We also help companies ensure they have in place policies, procedures, training, and systems relevant for access to classified information.
Industrial Base – Adequacy and Competition
When government contractors combine, the effect may be to reduce the number of competitors for key government programs. This can cause competition concerns for buying agencies and for government antitrust authorities. Our team has many years of experience assisting clients in developing M&A strategies and in showing government agencies how those approaches are consistent with the government’s interests in competition and in obtaining quality, low-priced goods and services.
Our team advises clients when disputes arise with respect to the Defense Priorities and Allocations System (DPAS) and in meeting DPAS requirements when a contractor is bought or sold.