Facility Security Clearance
- Holland & Knight's Facility Security Clearance Team guides government contractors, investors, and other clients whose work or transaction involves classified information of the U.S. government in achieving their business goals.
- Our experienced attorneys counsel clients on obtaining security clearances and maintaining them through the business life cycle, including developments such as mergers and acquisitions (M&A), joint ventures, foreign investment deals and other transactions.
- We advise clients on structuring their organizations, submitting key management personnel (KMP) lists, negotiating Foreign Ownership, Control or Influence (FOCI) mitigation and handling a host of other issues to obtain and preserve security clearances.
- We also advise businesses, investors, and entrepreneurs considering investments in, or acquisitions of, companies operating with facility security clearances to understand national security-related regulatory implications and plan transaction strategies.
Overview
U.S. Government agencies grant access to classified information only on a need-to-know basis. Correspondingly, we know what clients need to obtain and maintain facility security clearances. Holland & Knight's industrial security lawyers assist federal government contractors in submitting a sponsorship letter, the initial facility clearance package and KMP lists, negotiating FOCI mitigation with the Defense Counterintelligence and Security Agency (DCSA), and structuring their organizations through all types of transactions so that clearances are processed smoothly or preserved. Clients rely on our deep bench of attorneys, many having more than a decade of facility clearance and industrial security experience, to counsel them on an array of issues surrounding their clearance matters.
Experienced Guidance Through the Security Clearance Process
Our lawyers counsel clients on how to navigate the facility security clearance process, including submitting KMP lists, SF-328s (Certificate Pertaining to Foreign Interest) and other mandatory materials. We understand the rules and policy around industrial security and foreign investment, and we guide clients through negotiations and mitigation measures to achieve their business goals. Clients also benefit from the skill and experience of attorneys in our CFIUS and Industrial Security Team, National Security, Defense and Intelligence Team, Government Contracts Group and transactional practices, who collaborate with us on these matters.
Maintaining Facility Clearance Through Complex Transactions
When companies doing government business are bought or sold, the resulting change in ownership must be reported and actions taken to keep the facility clearance. We know how to structure M&A transactions, joint ventures and similar deals so that the facility clearance is protected and maintained. For example, in a deal worth more than $400 million, lawyers on our Industrial Security Team represented a company acquiring the assets of a manufacturer of classified military equipment. Within 45 days, we had set up a new legal entity that received top secret clearance so that the acquiring company could continue production on the classified contracts without interruption.
Handling Challenges to Facility Clearance
When issues arise suddenly, our attorneys are prepared to provide timely help so that security clearances are not threatened. For instance, when a private equity group purchased a company with facility clearance and hired a foreign executive to run it, we knew how to quickly resolve the situation so that the client's clearance was not invalidated.
Representative Matters
- Advising on FOCI mitigation in portfolio investments by private equity firms in government contractors
- Advising an artificial intelligence/machine learning-based software company negotiating a proxy agreement with DCSA
- Representing a software solutions company performing data analytics for mission-critical information in a major capital investment from a global investment firm, including the negotiation of FOCI mitigation
- Assisting client in preparation of responses and associated filings to address FOCI and other ownership concerns from the CIA
- Advising a cleared company through the establishment of a new proxy board, changes to FOCI supplements, and the termination and replacement of the cleared company CEO
- Navigating post-transaction matters, such as novations
- Creating and getting a subsidiary cleared to house classified operations.
- Guiding clients through industrial and personnel security requirements in government contracts at the proposal stage and during performance
- Ensuring that joint ventures, licensing agreements and other types of partnerships obtain appropriate approvals
- Addressing the impact of corporate transactions and reorganizations on facility clearances
- Submitting change conditions throughout the business life cycle
- Negotiating FOCI mitigation instruments with DCSA and intelligence community agencies
- Guiding clients through the process of identifying and interviewing potential outside directors for FOCI mitigation structure; responding to government inquiries concerning industrial security programs and compliance
