Restriction confliction

Companies feel left out while agencies look to limit foreign nationals on contracts

Richard Clarke

As more agencies consider policies that would prevent contractors from using foreign nationals on some government projects, an industry group is complaining that companies are not being consulted on the impact of restrictions.

The departments of Defense, Energy, Treasury and Health and Human Services and the Nuclear Regulatory Commission are among the agencies considering restrictions, according to Jeff Lande, vice president of information technology services with the Information Technology Association of America. The Arlington, Va., association represents more than 500 member companies, including the largest government integrators and IT companies.

A governmentwide review is under way, he said, but is being conducted by individual agencies rather than as part of an overall plan.

"It's happening haphazardly, [and] there is no coordination," Lande said.

The reviews were sparked by President Bush's directive that all agencies conduct a systematic internal review of their security measures, he said.

Officials from the departments of Justice, Treasury and the Internal Revenue Service did not respond to requests for comment on the policy reviews.

Although agencies appear reluctant to talk publicly about restricting foreign nationals, an executive with a systems integrator, who asked not to be identified, said his company has been getting signals it should come up with a backup plan for replacing non-U.S. citizens it has working on federal contracts.

"I don't believe we've seen anything definitive come down yet, but we're getting hints from our [government] customers that we better think about how to fill in the positions," the executive said. "It'll affect some of our recruiting processes."

ITAA's concerns arise in part from the lack of opportunity to provide industry input on the structure and implementation of a policy change and its potential impact on companies.

As the nation's economy improves and market demand picks up, it will become harder once again to find qualified U.S. citizens to meet the workload requirements, the association contends.

ITAA also said that limiting the use of foreign nationals on government contracts could violate economic treaty obligations. There also is the emotional impact of barring citizens of foreign countries who are actively contributing to the U.S. war on terrorism overseas, Landes said.

"We're talking about some people whose brothers and sisters are serving in Afghanistan," he said.

Even Richard Clarke, the cybersecurity adviser to President Bush, has said that restricting the use of IT professionals who are non-U.S. citizens is an ineffective approach, since there are not enough U.S. citizens with the skills needed to meet the industry's needs, according to a March report in the Los Angeles Times.

The Justice Department actually tightened its restrictions on foreign nationals in July 2001 before the terrorist attacks. Justice also created a waiver process that allows companies to request individual exceptions from the department's chief information officer.

The Immigration and Naturalization Service issued a directive in April barring foreign nationals from being added to existing projects, or working on any new projects, which involve access to sensitive information.

According to an April 10 letter sent by INS to a contractor, the INS considers sensitive information technology to include data entry into an INS system, both real-time entry and batch jobs; using a computing device at a non-INS facility that connects to the INS network; using a computing device that contains sensitive information at an INS facility; and developing, operating, managing or maintaining INS' IT systems.

The agency requested that its contractors identify any of their non-U.S. citizen employees with access to INS information technology before the end of April.

In March, the Defense Department began a review of its policy on foreign nationals in positions involving "sensitive but unclassified" information. At first, the department said a new policy would be in place in 90 days, but that effort has slowed, according to Olga Grkavac, executive vice president of the enterprise solutions division at ITAA.

"Now the DoD policy is supposed to be finished by the end of the year," Grkavac said.

The association sent a letter March 18 to Edward "Pete" Aldridge, the undersecretary for acquisition, technology and logistics at the Pentagon, after it learned the Defense Department was performing the review. In the letter, ITAA asked that before the department makes such a major policy change, there should be "full, public review and discussion of the benefits and costs of such an action."

So far there has been no response, though Grkavac said the association recognizes "there's a war on."

Since the initial news of the Defense Department's impending change, Lande said he has heard but not been able to confirm that the Pentagon is considering implementing a policy allowing project-by-project assessment of the need for such restrictions, rather than imposing a universal rule.

The Treasury Department also is considering revamping its restrictions on the employment of foreign nationals, although it already has a very restrictive policy in place for those working on its Treasury Communications System contract, awarded to TRW Inc., Cleveland, in 1995.

The department's policy for this contract states that "all contractor, subcontractor and vendor personnel ... working on TCS development, implementation and maintenance, and/or ... having unescorted access to contractor-operated TCS facilities, must be United States citizens."

This is stricter than the departmentwide baseline policy, which allow both U.S. citizens and legal permanent residents to work as contractors, provided they meet security screening requirements.

Some major integrators, such as Lockheed Martin Corp. of Bethesda, Md., are not concerned about the effect of a ban on foreign nationals working on its federal contracts.

"In proportion to our overall work force, we don't have that many. We have to meet all kinds of requirement contracts anyway," said Lockheed Martin spokesman Joe Wagovich.

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