By John V. Berry, Esq., www.berrylegal.com
The security clearance process for government contractors can often be confusing. The purpose of this article is to attempt to provide a better understanding of the steps involved in the security clearance process for government contractors.
Generally, there are two types of contractor employees that enter the security clearance process: (1) those individuals with an existing security clearance and (2) those individuals without an existing security clearance. Generally, if one has an existing security clearance in place with a prior employer or the government it may be possible to transfer the clearance to a new position without a new investigation taking place.
However, if too much time has elapsed or there are other security concerns an individual’s security clearance may not be transferred easily. For those individuals, and for those who do not have security clearances, they will have to undergo security clearance processing, which basically follows the following 4 steps.
Step 1 – Completion of Security Clearance Introductory Documentation
The first step in the process for contractors in need of a security clearance is to complete the necessary security clearance paperwork in order to begin the process. Typically, this begins with the submission of the Standard Form 86 (SF 86) using the Electronic Questionnaires for Investigations Processing (e-QIP) system. These are submitted by the individual contractor to their Facility Security Officer (FSO) (otherwise known as the contractor’s security clearance officer). These forms should be carefully reviewed and completed in order to ensure full disclosure early in the process and to avoid potential concerns that the applicant for the clearance has truthfully answered all questions. The FSO then reviews an applicant’s e-QIP application and submits it to the Defense Industrial Security Clearance Office (DISCO) and to the Office of Personnel Management (OPM).
Step 2 – The OPM Investigation Process & DISCO Review
The second step, following completion of an individual’s security clearance paperwork is for the investigator assigned to generally meet with the individual and conduct an investigation. The investigation is conducted by OPM investigators. During this process, the individual seeking the clearance will be interviewed by the assigned OPM investigator, along with other relevant individuals (i.e. friends, relatives, acquaintances).
Following the completion of OPM’s investigation, the matter will then be sent to the DISCO for review and approval. For most individuals, approximately 90-95% of those individuals seeking a clearance, this is the end of the security clearance process and a clearance is granted. However if the DISCO adjudicator is unable to resolve an individual’s existing security concerns, the case is then sent to the Defense Office of Hearings and Appeals (DOHA) for further review.
Step 3 – Referral to DOHA
The third step in the security clearance process for government contractors, if there has not been a positive adjudication before DISCO, is for the matter to be submitted to the DOHA for further review. DOHA adjudicators then review the security clearance matter. These adjudicators can remand (send back) the case to DISCO and instruct that the individual be granted the security clearance. DOHA can also (more typically the case) issue a Letter of Intent (LOI) to deny the security clearance to the applicant, providing the individual with a Statement of Reasons (SOR).
An SOR lists DOHA’s security concerns regarding an applicant’s attempt to obtain a security clearance. At this stage, an individual will be asked to respond to the SOR by admitting or denying the security concerns that have been raised. It is important to note that if the individual does not respond in a timely fashion to the SOR, DOHA will deny the security clearance.
Step 4 – The DOHA Hearing & the Appeal Process
The fourth step in the process is to proceed before the administrative judge assigned to hear an individual’s security clearance case. The individual will also have the opportunity to elect a hearing before an administrative judge or to instead request a review of the written record without a hearing. It is highly recommended that individuals at this stage of the process, however, elect a hearing before an administrative judge. Relying on a written decision, in our experience, tends to provide less of a chance to explain the security concerns and to mitigate them and hence a lower chance of being able to obtain the security clearance. It is very important that the contractor be represented during the hearing process.
Otherwise, it can be very difficult to explain and to mitigate the security concerns that have been raised. During this type of administrative hearing before DOHA, there are opening statements, the examination of witnesses, the cross-examination of witnesses, the introduction of exhibits and closing statements. Following the DOHA hearing, usually 2-3 months afterwards, the contractor will receive a copy of the administrative judge’s decision.
If the decision is favorable and the individual has mitigated all security concerns, then the security clearance will be granted. If the decision is not favorable, the security clearance is not granted and the individual can attempt to appeal the decision to the DOHA Appeal Board within 15 calendar days. Appeals can be difficult and are extremely time sensitive so it is critical to have counsel assist you in challenging a security clearance decision by appeal.
Closing Thoughts on the Contractor Security Clearance Process
Retaining an attorney familiar with the security clearance process is highly recommended. It is very important to do so early in the process. It can make the difference between obtaining and being denied your security clearance. Our law firm represents government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.