Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
I am exploring starting my own consulting company. I currently hold a TS/SCI and would need to maintain a minimum SECRET clearance in my new role. How can I maintain my clearance without setting up a Security Office?
Prior DOD adjudicative determinations for appointments in sensitive positions or access to classified information, including those pertaining to SCI, will be mutually and reciprocally accepted by all DOD agencies without requiring additional investigation unless there has been a break in the individual’s employment greater than 12 months or unless derogatory information that occurred subsequent to the last prior security determination becomes known. 32 C.F.R. §154.25. Therefore, so long as the consulting company obtains a contract for services that requires a clearance less than 12 months after this individual’s departure from his prior employment and nothing negative about this individual has come to light, it will not be necessary for him to be reinvestigated.
Whether a Security Office is needed appears to depend upon the structure of this individual’s consulting company. Typically, after a security determination has been reached, an individual’s trustworthiness is continually assessed by both the government and by the individual’s supervisor and the organization’s command. 32 C.F.R. § 154.60. Management is required to ensure that employees assigned to sensitive duties are initially indoctrinated and periodically instructed thereafter on the national security implication of their duties and on their individual responsibilities. Id. Additionally, along with individuals receiving clearances, a DOD contractor’s facilities must also be approved for security clearances, a facility clearance (FCL). These responsibilities generally are assigned to a company’s Security Office, as noted by the questioner.
The DOD Defense Security Service, Industrial Security Program Office addressed the security clearance and facility clearance issues for self-employed consultants in an April 16, 2003, Industrial Security Letter issued to the public. The Industrial Security Office stated that cleared contracts may process self-incorporated consultants for a security clearance provided the consultant and members of his/her family are the sole owners of the consultant’s company and only the consultant requires access to classified information. Additionally, in these cases, a FCL is not required. However, should other employees of the consultant’s company require access to classified information, that would constitute a classified subcontract and as such, a DD Form 254 (a DOD Contract Security Classification Specification) must be issued by the prime contractor and the consultant’s firm would require a FCL. In these cases where a company has multiple employees with access to classified information and must meet the standards of a FCL, a stand-alone Security Office may be the most efficient method for handling the necessary security needs of the consulting company.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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