In the first episode of “Are We All Clear? Facilitating Security Clearances,” the host Molly O'CaseyMeeting with a government contract attorney Erin Estevez. They provide a basic introduction to Facility Security Clearances (FCLs), explaining what they are, why they are important to contractors, and how the process of obtaining an FCL works.
Estevez will discuss key requirements such as establishing a need-to-know and finding a sponsor. We also discuss common pitfalls. This episode serves as a primer on this fundamental topic for understanding confidential contracts. Tune in for valuable insights on navigating the clearance process.
podcast transcript
Molly O'Casey: Welcome to the first episode of “Are We All Clear? Facilitating Security Clearances.” Here we decipher the acronyms and issues surrounding facility security clearance. I'm your host, Molly O'Casey. He is an international trade representative in Holland & Knight's Washington, DC office. In today's episode, we provide basic information about what it means for a government contractor to obtain a Facility Security Clearance (abbreviated as FCL) and access classified information, as well as how a government contractor can obtain her FCL. We provide As a starting point, this episode discusses the need to know the access you need and key sponsor requirements before applying for an FCL. Today's speaker is Erin Estevez, a partner in Holland & Knight's government contracting group in her Tysons, Virginia office. Hello, Erin.
Erin Estevez: Hello, Molly. I'm happy to be here this morning.
Molly O'Casey: wonderful. So, could you briefly describe your practice and experience with FCL?
Erin Estevez: Yes, I would be happy to do so. As Molly said, I'm a government contract attorney here at Holland & Knight. My practice focuses on counseling contractors on all compliance obligations associated with doing business with the U.S. federal government. I have a particular focus on the regulatory implications of transactional issues such as M&A finance and joint ventures. I also frequently work with small business programs. And that's why I'm here today, working with contractors who have or are looking for skills to support their contracting activities. I co-chair her FCL practice here at Holland & Knight.
Molly O'Casey: wonderful. As a starting point, could you tell us what FCL is?
Erin Estevez: absolutely. Therefore, the FCL essentially amounts to authorization by the U.S. government for government contractors to access classified information. Therefore, the FCL can be either a so-called occupier, meaning that the contractor can handle sensitive materials in its own physical location, or a non-occupier. This means that contractor personnel are accessing sensitive information only on approved government or third-party sites. Sales are issued primarily at the organizational level by the U.S. Department of Defense to contractors through an agency called the Defense Counterintelligence and Security Agency (abbreviated DCSA). Therefore, DCSA is also the gatekeeper of his FCL for NASA, Navy, Air Force, etc. as well as many other US government agencies. There are other agencies that have their own FCL processes, like the Department of Energy, which has a very similar process for his DOE classified contracts. Additionally, some institutions within the Intel community have their own processes for granting access on a contract-by-contract basis rather than across subscribers across one or more contracts. However, in both of these cases, his FCL for government contractors is that the company is under scrutiny in terms of its internal organization, ownership or control, and security infrastructure, and that it cannot provide access to sensitive information. This indicates that the decision is made by the government. is in the government's best interest without undue risk to the national security of the United States.
Molly O'Casey: interesting. So why is FCL important?
Erin Estevez: of course. Therefore, only contractors with his FCL are allowed access to classified information in the United States. And in fact, it is not just confidential information, but only the information specifically stated in the contract and necessary for the performance of the contract. Accessing sensitive information without the necessary security clearances has significant repercussions, and a contractor may not be permitted to perform certain contracts for which access is required unless granted her FCL. For many companies, and for everyone, this can be a huge business development opportunity. This opens doors that previously limited contract opportunities and customers trying to penetrate. At the same time, it requires initial and ongoing investment in the facilities, personnel, infrastructure, policies, and procedures that are truly necessary to obtain her FCL in the first place and to maintain her FCL in good condition.
Molly O'Casey: This is very useful. How do companies acquire it?
Erin Estevez: The starting point for the contractor that I alluded to at the beginning is that the contractor needs to know. Therefore, contractors must establish that in order to receive a contract, they need access to information to perform the work they have been contracted for or are bidding on. Contractors need sponsors. This means that another organization has already been authorized to access confidential information in support of the contractor's request to process the FCL itself. That sponsor could be a U.S. government agency that is the contractor's customer, or it could be a U.S. government agency that already has his FCL and the entity seeking authorization is a subcontractor, that is, a subcontractor that supports the primary performance. It could also be another prime contractor that is proposed to become. Government contracts. Therefore, once both pieces of information are obtained and the need-to-know sponsor has been identified, the sponsor will submit an initial request to her DCSA or Cognizant Security Agency for a contractor to undergo FCL processing. For DOE or Intel communities, the process is a little different. And everything is done through the contract officer for the specific contract case. Cognizant Security Agency responds to the contractor with a request for the information necessary to initiate the application. We'll go into more detail about the application and process in a later episode.
Molly O'Casey: What are some common pitfalls you've seen as you've helped companies deal with this issue?
Erin Estevez: of course. This means that contractors anticipating the need or desire for an FCL don't take the time to actually prepare themselves and their organizations for the process, or they try to do too much up front. It is often seen that So this timing balance is a bit more of an art than a science. In many cases, there are things you can do in advance, such as preparing government organizational documents, directing the appropriate individuals and key roles within the company, gathering information from owners and investors, laying the foundation for the property, and putting appropriate security protocols in place within the company. there are a lot of. This allows contractors to submit application packages in a timely manner, allowing the process to proceed with minimal delay and agency interaction. On the other hand, some of the steps that ultimately lead to the granting of his FCL are in fact determined by what he has considered the DCSA package and are subject to the discretion and approval of the Authority. Therefore, trying to implement too soon can actually result in duplication of effort or the need to undo and redo previous steps in the process. Based on our group's extensive collective experience with his FCL, we can predict with some certainty what the DCSA is likely to require, but for contractor-specific exercises it is very It is subtle. That's why we guide contractors along the way, depending on their specific circumstances. Therefore, we highly recommend consulting an experienced advisor early in the process to save you time and money in the long run.
Molly O'Casey: Thank you for your feedback, Erin. Therefore, the field of facility security clearance is like a collection of alphabetical acronyms. So, in each episode, we ask the speaker to explain only the incorrect answers to the acronyms featured in that episode. The current acronym is FCL or DCSA. Erin, do you have any ideas about what these acronyms mean and some of the wrong answers?
Erin Estevez: Yeah. Yes, it is. It's quite an alphabet soup when it comes to this practice area. So, courtesy of Antonia, another co-chair of the FCL firm, I will say that FCL stands for First Class Lawyer. So I know you guys listen to the Lawyer Talk Shop podcast all the time, but when you do, make it her FCL about FCL.
Molly O'Casey: Thank you very much, Erin. And thank you for taking the time to meet with us today and talk about your experience. In the next episode, we're going to talk about HR clearance. In the meantime, I hope you're all having a great week.
The content of this article is intended to provide a general guide on the subject. You should seek professional advice regarding your particular situation.
