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FH+H Attorneys Close a Multi-Million Dollar OTA

October 11, 2018

FH+H attorneys, including Partner Jennifer Huber and Senior Associate Marlena Ewald, helped close a multi-million dollar Other Transaction Agreement for a unique prototype project with the U.S. Government.

Other Transaction Agreement, or Other Transaction Authority, (OTA) contracts give the Department of Defense the ability to move forward with certain prototype and research projects without going through the traditional acquisition process, which can take years to complete. 10 U.S.C. § 2371b.

“Instead of undergoing a more rigid procurement process with the potential risk of a protest, OTAs allow for a much quicker and flexible avenue of procurement,” Ms. Huber said. “Contractors are able to innovate and create with today’s technology, not the technology of years ago when the solicitation process was started.”

The FH+H Government Contracts team is able to guide contractors through the applicable rules and regulations related to OTAs and other contracts in order to enable corporate success. Read about the group here.



Five Things You Should Know About ... The Foreign Agents Registration Act ("FARA")

October 09, 2018

Recent political and prosecutorial developments have revealed just how little the public knows about The Foreign Agents Registration Act (“FARA”), which is intended to preserve public and political awareness of information created to influence U.S. public opinion, policy, and legislation, and identify the individuals that are proliferating such information. In this week’s edition of Downrange. we will examine five core components of FARA.

1. Coverage. All U.S. individuals that are agents of a foreign principal must register with the FARA Registration Unit at the U.S. Department of Justice (“DOJ”).  Under FARA, “foreign principal” is defined as not only a foreign government, but also a foreign political party, person, or organization outside of the United States, and any entity organized under the laws of a foreign country or with its primary place of business in a foreign country.

“Agents” of foreign principals include all individuals acting in a political or quasi-political capacity.  The entities that are presently registered with the DOJ include law firms, consulting firms, investment firms, advocacy organizations, public relations firms, mobile communication entities, and marketing agencies. 

2. Registration. Covered individuals and entities must submit to DOJ a “Registration Statement” detailing the registrant’s address and, if applicable, entity information.  The Statement must list the name, position, nationality, and address of all foreign officers and directors of the registrant and must describe the scope of the registrant’s activities with the foreign principal(s) and all funds and items of value transferred in relation to such activities.  Each Statement must also include physical copies of all agreements – written and oral – with each foreign principal relating to the disclosed relationship.

If the registrant is an entity, it must also provide its organizational documents when filing its Registration Statement, and, if the registrant collected or received money through a fundraising campaign, a summary of such funds must be included as well. 

3. Exemptions. Although FARA covers a broad array of activities, some activities are exempt from its registration requirements.  Under FARA, individuals and entities engaged in “bona fide religious, scholastic, academic, or scientific” activities or the fine arts and those “not serving a predominantly foreign interest” are exempt. In addition, individuals working with foreign media companies owned by a foreign principal are also exempt.  Lastly, individuals engaging in bona fide, private, nonpolitical, purely commercial activities are exempt from FARA’s registration requirements, although the scope of exempt commercial activitienot s is ambiguous.

The burden of establishing a FARA exemption is on the individual/entity that would benefit from such exemption (most often the registrant).

4. Aggressive Enforcement. FARA was first enacted to address the threat of Nazi propaganda, but prosecutions under the Act have been rare. Until recently, DOJ has focused primarily on encouraging compliance with FARA’s disclosure requirements. However, as demonstrated by this year’s prosecution of former Trump campaign chairman Paul Manafort, DOJ has increased its FARA enforcement efforts. Additionally, DOJ has begun implementing FARA enforcement recommendations from the DOJ Office of the Inspector General’s 2016 FARA administration audit.  The audit report recommended, among other things, reforming the scope of information reviewed to identify potential or delinquent foreign agents; current exemptions; and the current registration fee structure.

5. Penalties. Failing to register under FARA and to properly label materials disseminated on behalf of a foreign principal can result in criminal penalties. Willful violations of the Act and the provision of misinformation in the Registration Statement is punishable by a fine of up to $10,000 and/or imprisonment for up to five years. Rather than facing public disclosure of a transaction with a foreign principal during a FARA prosecution or enduring criminal penalties, covered individuals and entities should file a FARA Registration Statement in accordance with FARA guidelines. Individuals and entities, whether covered or not under FARA, would also be wise to enforce FARA compliance in their international contracts, as appropriate.  

Be sure to check back in with us next week as we examine the filing and labeling requirements for informational materials under FARA.

About the Authors

Downrange authors Jennifer S. HuberAdam Munitz, and Lidiya Kurin are members of FH+H's International Trade + Transactions Practice. Focusing primarily on the defense, security, and intelligence sectors, Jennifer, Adam, and Lidiya help businesses translate their domestic successes into overseas growth and assist foreign entities with sensitive investments in, and acquisitions of, U.S. businesses.

Additional information regarding their capabilities and previous representations can be found here.

FH+H GovCon Team Successfully Prosecutes Client's Bid Protest

October 03, 2018

The FH+H Government Contracts team, including Partner Milt Johns and Associate Rachel Leahey, successfully prosecuted a bid protest for a client that resulted in the Government Accountability Office (GAO) sustaining the protest and recommending that the Agency award a contract to the client and pay the client's attorneys' fees.

Bringing the protest required careful argument interpreting a key passage of the solicitation. As the GAO found, the solicitation interpretation offered by the Agency was "not unreasonable." Decision, p.6.

However, as the GAO also recognized, we "advance[d] an alternative interpretation of the solicitation" on behalf of our client that the GAO also found to be "reasonable." Id. This was a critical finding, as it was only by successfully countering the Agency's solicitation interpretation that the GAO ultimately decided in favor of our client.

The GAO's decision is public and available for download here.



SBA to Begin Hearing VOSB and SDVOSB Status Challenges

October 02, 2018

As of October 1, 2018, the U.S. Small Business Administration Agency (SBA) has assumed the responsibility of issuing regulations relating to ownership and control for the Department of Veterans Affairs (VA) verification of Veteran-Owned and Service-Disabled Veteran-Owned Small Business concerns (VOSB or SDVOSB).  Regulations will appear in 13 C.F.R. part 125.  The National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017) authorized the transfer of these regulations from the VA to standardize definitions of VOSBs and SDVOSBs between the VA and SBA.

What the VA will do

The VA will continue to determine whether applicant firms qualify as either a VOSB or SDVOSB under its Vets First Contracting Program, thus allowing approved firms to participate in set-asides issued by the VA.

What the SBA will do

Under the new SBA rules, challenges to the status of a VOSB or SDVOSB based upon issues of ownership or control will be decided by the administrative judges at the SBA’s Office of Hearings and Appeals (OHA).  The SBA OHA will thus decide protests of eligibility for inclusion in the VA Center for Verification and Evaluation (CVE) database, including appeals of denials and cancellations of inclusion in the CVE database.  Protest regulations will appear in 13 C.F.R. part 134.

As always, contact an experienced government contracts attorney for assistance with protests before the SBA OHA, whether they are related to CVE issues, size issues, or NAICS issues.

About the Authors

GOVCON University Blog authors Milt Johns, Partner, and Rachel Leahey, Associate, lead FH+H's Government Contracts Practice. Focusing on the middle market, Milt and Rachel help guide government contractors through the maze of applicable rules and regulations to enable corporate success, now and in the future.

Additional information regarding their capabilities and previous representations can be found here.

FH+H Welcomes Jonathan Spaeth as Partner

September 24, 2018

FH+H is pleased to welcome Jonathan "Jon" Spaeth as a Partner to our firm's growing Corporate + Business Transactions and Litigation + Investigations practices in the D.C. Metro Area.

Mr. Spaeth has been a practicing attorney for more than 25 years and brings a unique blend of law firm and in-house experience to our team. He will round out the services FH+H provides to the region's most prominent public and private companies.

Mr. Spaeth was a long-time partner at Akin, Gump, Strauss, Hauer & Feld LLP, where he led high-profile, complex civil litigation for Fortune 100 and other large corporate clients. He subsequently held a variety of executive in-house positions at private and public companies across the technology and defense sectors, including Zebra Technologies and Raytheon.

"I am very pleased to join a group of successful, dedicated lawyers who are committed to achieving the most effective results on behalf of their clients," Mr. Spaeth said. "FH+H has a well-deserved reputation for client service, integrity, and the highest ethical standards, and I look forward to working and building my practice here."

Mr. Spaeth’s principal areas of expertise are civil litigation, commercial transactions, government contracts, artificial intelligence, privacy, and labor and employment matters.

"Jon has spent his entire career helping companies solve complex problems," FH+H Managing Partner Tom Craig said. "His experience will immediately benefit our clients. We are excited to welcome a lawyer onto our team who has such deep expertise in areas our clients value most."

Mr. Spaeth received his law degree from the University of Virginia and his undergraduate degree from the University of Michigan. He also serves as pro-bono counsel to the four-star charity navigator rated veterans' organization, Hope for the Warriors. Mr. Spaeth, his wife, and family reside in the Washington, D.C. region.

Read Mr. Spaeth's full bio here.

Partner France Hoang Joins National Security Institute as Visiting Fellow

September 21, 2018

Congratulations to FH+H Partner France Hoang, who recently joined the National Security Institute (NSI) at George Mason University’s Antonin Scalia Law School as a Visiting Fellow.

The NSI’s mission is “to identify practical solutions to hard, real-world national security problems,” according to its website, and its Visiting Fellows support the institute through policy papers, panel discussions, and other scholarship.

Mr. Hoang said after his family escaped Saigon when he was a child, he became distinctly aware of the fact that he wanted to repay the U.S. in some way for essentially saving his life. This sense of obligation paved the way for his career in national security.

“I really felt I owed a debt, first to the country in general for giving me this amazing life,” Mr. Hoang said in a National Security Law Today podcast. “There’s an alternate universe somewhere where instead of being here, I’m back there, and my parents went to re-education camp, and I grew up an orphan on the streets of Saigon.”

After graduating in the top 1% of his class at the United States Military Academy and completing his 5 years of active duty service, Mr. Hoang served as an Associate Counsel and Special Assistant to the President of the United States. In this capacity, he represented the White House in a myriad of investigations and other sensitive matters before Congress and government agencies, and he provided legal counsel to the Homeland Security Council.

Now a Partner at FH+H with a practice focused on government/internal investigations and corporate compliance, Mr. Hoang also serves as an advisor to the American Bar Association’s Standing Committee on Law & National Security.

Read Mr. Hoang’s full bio here, and listen to his story of “Becoming a National Security Entrepreneur” on the National Security Law Today podcast here.

The Illusion of Time and Decision Making

September 14, 2018

Adrienne Shoch, CEO of 5-to-1 Consulting and an expert in positive leadership and neuroscience, delivers a presentation on understanding the brain and body, the illusion of time, and the pitfalls of 24/7 access to technology in our event space on September 13, 2018.

Access the PowerPoint slideshow here, and watch her full presentation below.

Watch on Facebook here.

Boundary Spanning Leadership for Privacy, Cybersecurity, + Infrastructure Success

August 31, 2018

By David Delaney | FH+H Partner, Head of Privacy, Cybersecurity, + Critical Infrastructure Practice Area

In the last few weeks I have heard the same tale of woe nearly a dozen times — data management, privacy, and cybersecurity employees feel disconnected from the company’s strategies in those areas … and frequently don’t know how the strategies are formed.

There is no shortage of business drivers, laws, and policies in these areas, so communication is surely a problem. I suspect there is also a lack of boundary spanning leadership — enabling work with diverse groups to drive innovation and achievement.

Three articles caught my eye this week because they contain good boundary spanning advice to business leaders, lawyers, and cyber incident responders. Do you see ways to improve your business and find the right people to drive success?

  1. “As work becomes more complex, it takes teams and cross-boundary collaborations to build products, attract customers, and achieve results.  Change-agile leaders and organizations are replacing functional silos with formal and informal organizations that allow for the rapid flow of information and decision-making around a product, customer, or region.” Edith Onderick-Harvey in 5 Behavior of Leaders Who Embrace Change
  2. “Resist the temptation to gravitate toward people like you. Embrace and learn from the diversity of your colleagues. Watch for ways in which people behave differently toward, around or in the absence of women, people of color or members of the LGBTQ community and ask yourself if these differences are appropriate.” Alex Dimitrief in Looking Back—And Ahead: Advice From a Global Company Leader
  3. “An optimal incident response solution allows various actors to view common dashboards, includes the collection of assets and artifacts pertaining to stages of investigation or remediation, timelines, actors completing tasks, and next stages to be performed. This workflow may be drilled and practiced until the preparation and execution becomes cybersecurity muscle memory.” Michael Malore in Cybersecurity Muscle Memory: Drilling for a Tight Incident Response

About the Author

David Delaney is a Partner at FH+H, focusing his practice on clients' cyberspace needs. He advises on a wide range of business issues arising under international, federal, and state law, including data security, privacy, breach response, product development, contracts, internal policies, and regulatory compliance. He is licensed to practice in Maryland and North Carolina.

Read Mr. Delaney's full bio here.

Partner David Jonas Appointed to Council within American Bar Association

August 27, 2018

FH+H Partner David Jonas was recently appointed as a special advisor to the Rule of Law Initiative Council for the American Bar Association.

The Council promotes justice, economic opportunity, and human dignity through the rule of law.

“[Council] partners have sought to strengthen legal institutions, to support legal professionals, to foster respect for human rights, and to advance public understanding of the law and of citizen rights,” according to the Council’s website.

Mr. Jonas is an accomplished senior executive with diverse legal, business, government relations, strategic planning, and leadership experience, and he is eager to bring his professional talents to the Council.

“It is an honor to be chosen to serve on a council within such a distinguished organization like the American Bar Association,” Mr. Jonas said. “I look forward to working alongside my fellow council members to empower lawyers and overall work to improve our legal system.”

Mr. Jonas also serves on the Board of Directors of the Young Marines, Naval War College Foundation, and the Marine Executive Association, and he is on the Advisory Board of the Center for Ethics and the Rule of Law at University of Pennsylvania Law School.

Read Mr. Jonas’ full bio here.

FH+H Helps Secure Export License for Defense Contractor

August 24, 2018

FH+H recently helped a defense contractor export sensitive defense articles to the Middle East North Africa (MENA) region. 

The contractor was selected by a strategic U.S. ally to provide such articles and required assistance with navigating the regulatory hurdles that it faced.

Leveraging its experience and relationships in the export compliance arena, FH+H coordinated with the Department of State and the Department of Defense to help ensure that an export license was issued, and that the license's provisos both protected U.S. national security interests and allowed FH+H's client to satisfy its contractual obligations overseas.

"U.S. hardware and services remain in high demand across the Middle East and North Africa," FH+H International Trade + Transactions Partner Adam Munitz said. "And we will always utilize every skill we have to expedite their delivery and grow our clients' international footprints, all while preserving their compliance with U.S. laws and regulations."