The K&L Gates U.S. national security law and policy group provides a powerful collaboration of multiple practice areas joining forces to deliver to our clients a 360-degree perspective of the legal and political dynamics arising from the U.S. government acting in its national security capacity.
The U.S. government’s national security priorities create a set of particular challenges and opportunities for both U.S. and non-U.S. companies alike, and we can help. Our global interdisciplinary team of lawyers and government affairs professionals is uniquely suited to assist clients operating in a broad range of industries that intersect with the U.S. government’s national security activities, including aerospace, defense, manufacturing, maritime, transportation, and technology.
Our team’s comprehensive approach allows us to solve complicated problems in the ever-changing U.S. national security landscape. We have extensive experience achieving desired outcomes related to U.S. military contracts, emerging technologies, investigations, congressional and executive engagement, regulatory compliance, and more. Cross-Practice Capabilities
Our capabilities harness the experience of attorneys and policy professionals across multiple practice groups to provide our clients with full-service solutions. Our capabilities include:U.S. Military Contracts
- Bid Protests: We represent companies competing for U.S. government contracts with national security implications in filing or defending bid protests at the Government Accountability Office and U.S. Court of Federal Claims.
- Military Construction: We assist construction contractors with projects on military bases and other federal facilities, including Miller Act litigation on federal projects, Little Miller Act litigation on state projects, contract reviews, arbitration and claims litigation, and bid protests.
- Public-Private Partnerships: We provide extensive experience negotiating and structuring public-private partnership collaborations with the Department of Defense, with sector specific engagements including transportation fuels and microelectronics and advanced materials, amongst others.
- Base Realignment & Closure (BRAC) Program: We advise local government authorities and community organizations on how to best advance local interests and concerns in the creation, deliberations, and recommendations of base reduction and closing rounds.
- U.S. Contracting Overseas: We assist U.S. government contractors perform U.S. government contracts overseas, including by analyzing international agreements that can provide U.S. government contractors certain benefits, establishing business presences in local jurisdictions, acquiring work and residency permits, facilitating the import and export of goods for U.S. government use, and more.
- Cutting-Edge Technology: We bring an understanding of and focus on cutting-edge technology, including artificial intelligence and machine learning technology, cybersecurity, quantum computing and communications, and advanced robotics. Our team advises on the newest regulatory regimes affecting cutting-edge technology, such as the Export Control Reform Act of 2018, and creates policy opportunities that allow these technology industries to thrive.
- Commercial Spaceflight: We assist the U.S. government’s commercial partners and leading industry associations in their goals of quickly and safely expanding the commercial spaceflight industry and its national security capabilities.
- Other Transaction Agreements: We review and negotiate other transaction agreements, which are designed to allow the federal government quick and efficient access to innovative research and development of cutting-edge prototypes.
Congressional and Executive Engagement
- Mandatory Disclosures: In line with the Mandatory Disclosure Rule, we assist U.S. government contractors with conducting internal investigations of criminal violations, civil False Claims Act violations, and significant overpayments; preparing and submitting disclosures to the U.S. government; and coming to an acceptable resolution with the relevant enforcement authorities, including DOJ and suspension and debarment authorities.
- Voluntary Self-Disclosures: We regularly assist clients in determining if an apparent violation of export controls (ITAR and EAR) or sanctions has occurred. We work with our clients to conduct a thorough internal investigation, draft a voluntary self-disclosure, and work with the relevant enforcement authorities to resolve any issues to their, and our client’s, satisfaction.
- Response to Government Inquiries: We represent companies in government inquiries, including from U.S. government agencies responsible for audits and investigations, U.S. government agency suspension and debarment authorities, Department of State’s Directorate of Defense Trade Controls (DDTC), the Department of Commerce’s Bureau of Industry and Security (BIS), and OFAC. We also represent clients in defense of fraud litigation involving the False Claims Act (FCA), which prohibits government contractors and others from making fraudulent claims for payment by the U.S. government.
- Congressional Investigations: We represent clients in all aspects of congressional investigations touching on national security and cross-border issues, including responses to document requests and subpoenas, participation in staff briefings and transcribed interviews, and witness appearances in depositions and hearings. Our bipartisan team has deep U.S. House and Senate expertise conducting, managing, and navigating legislative inquiries.
Mergers and Acquisitions
- Appropriations: We advise a wide range of clients seeking information about the appropriations process and consideration of their products, services, and equities in the development and approval of annual appropriations legislation by Congress.
- Department of Defense (DoD) Coordination: We advise clients on DoD policy, the annual National Defense Authorization Act, budget and program coordination, the Budget Control Act of 2011, and program funding and appropriations assistance in support of national security policy.
- Foreign Agent Registration Act: We advise corporate and individual clients on Foreign Agent Registration Act (FARA) filing obligations, assist companies and organizational to develop FARA compliance programs, and assist clients in responding to FARA-related inquiries from the Department of Justice.
- Committee on Foreign Investment in the United States (CFIUS): We counsel both sellers and purchasers of U.S. businesses, and in particular those that involve critical infrastructure or critical technologies, on whether it would be advisable or required to notify CFIUS of the transaction. We regularly assist clients with submitting such notifications and in employing any mitigation solutions that CFIUS may require. In line with the Foreign Investment Risk Review Modernization Act of 2018, we also advise clients on the ongoing expansion of CFIUS jurisdiction over emerging and foundational technologies, and, where appropriate, conduct outreach to key stakeholders.
- Foreign Ownership, Control, or Influence (FOCI): Pursuant to the National Industrial Security Program Operating Manual (NISPOM), we advise U.S. companies with foreign ownership on how to implement governance structures that insulate and mitigate foreign influence, enabling them to obtain necessary security clearances and compete for sensitive U.S. government contracts.
Areas of Practice Public Policy
- Supply Chain Compliance: We assist contractors and their supply chains comply with restrictions on providing certain products and materials in the performance of contracts in which the U.S. government is the end customer, such as the Buy American Act (BAA) and the Trade Agreements Act (TAA); with export controls including the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR); and with economic sanctions enforced by the Department of the Treasury’s Office of Foreign Assets Control (OFAC).
- Federal Acquisition Regulation (FAR)/Defense Federal Acquisition Regulation Supplement (DFARS) Compliance: We advise clients on the complex and ever-changing regulatory regime that governs federal contracts (and the contractors that perform them), from socioeconomic policies to cybersecurity requirements.
- DHS Chemical Facility Anti-Terrorism Standards (CFATS) regulations: We advise chemical manufacturers on how to comply with Department of Homeland Security’s (DHS) regulations and institute appropriate levels of security for their facilities.
- Anti-corruption/Foreign Corrupt Practices Act (FCPA): We help companies involved in international business handle compliance, enforcement, and investigation issues related to improper payments to foreign government personnel, which are prohibited by the FCPA, the U.K.’s Bribery Act, and similar laws in other jurisdictions.
- Trade Investigations: We help clients navigate trade remedies and unfair trade practices, including Section 232 investigations, where the U.S. government determines the effects of imports on national security, and Section 301 investigations, pursuant to which the U.S. government analyzes whether foreign practices violate trade agreements or unduly burden or restrict U.S. commerce.
For more than 45 years, our policy group has been helping clients shape and affect the national security and defense policy landscape. We have extensive experience working on the annual National Defense Authorization Act, the annual Defense Appropriations bill, the annual Homeland Security Appropriations bill, and a broad range of other national security legislation. We have advised clients on authorization and appropriations issues related to quantum science and computing, artificial intelligence, cybersecurity, commercial spaceflight, space-based robotics, international military and diplomatic relations, maritime and trade policy, defense logistics, poverty-focused and humanitarian foreign assistance, and transportation security preparedness.
Congress will operate under tight fiscal constraints for the foreseeable future due to the large size of the U.S. national debt. This in turn will necessitate tough decisions for policymakers on various national security policy and research and development issues. This environment could pose numerous challenges and opportunities and our policy group is well-equipped to help both anticipate and navigate them.
We assist government contractors and their supply chains who support the U.S. government’s national security efforts both domestically and abroad. Our practice includes a strong bench of litigators who represent our clients in bid protests, sub/prime contractor disputes, and claims. Additionally, as the U.S. government responds to national security threats, our team stays up-to-date on evolving regulatory requirements and regularly assists clients understand and implement them. We also advise clients on a wide variety of compliance issues, including supply chain security, domestic sourcing (“Buy American”) requirements, and cybersecurity compliance.
Our international trade team advises clients on a range of trade matters with national security implications, including export controls and sanctions, customs, trade remedies and unfair trade practices proceedings, trade agreements, foreign investment in the United States, and unlawful payments. Our considerable international trade regulation and trade policy experience, coupled with our global reach, allows us to support clients on an extensive number of issues associated with national security. These issues include interactions with the Defense Counterintelligence and Security Agency (DCSA), mitigating foreign ownership, control, or influence, assessing the need for and submission of voluntary and mandatory filings with the Committee on Foreign Investment in the United States (CFIUS), analyzing commodities, software, and technology to determine whether they could be controlled pursuant to the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR), and submitting license applications and agreements to relevant government agencies to obtain approval to EAR controlled items, defense articles and related technology, and defense services. Clients range from manufacturers, exporters, importers, and governments, to individuals, associations, and other organizations from virtually every geographic region.