Photo of Nooree Lee

Nooree Lee

Nooree advises government contractors and financial investors regarding the regulatory aspects of corporate transactions and restructurings. His experience includes preparing businesses for sale, negotiating deal documents, coordinating large-scale diligence processes, and navigating pre- and post-closing regulatory approvals and integration. He has advised on 35+ M&A deals involving government contractors totaling over $30 billion in combined value. This includes Veritas Capital’s acquisition of Cubic Corp. for $2.8 billion; the acquisition of Perspecta Inc. by Veritas Capital portfolio company Peraton for $7.1 billion; and Cameco Corporation’s strategic partnership with Brookfield Renewable Partners to acquire Westinghouse Electric Company for $7.8+ billion.

Nooree also counsels clients navigating the Foreign Military Sales (FMS) program and Foreign Military Financing (FMF) arrangements. Nooree has advised both U.S. and ex-U.S. companies in connection with defense sales to numerous foreign defense ministries, including those of Australia, Israel, Singapore, South Korea, and Taiwan.

Recently, Nooree’s practice has expanded to include advising on the intersection of government procurement and artificial intelligence. Nooree counsels clients on the negotiation of AI-focused procurement and non-procurement agreements with the U.S. government and the rollout of procurement regulations and policy stemming from the Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence.

Nooree maintains an active pro bono practice focusing on appeals of denied industrial security clearance applications and public housing and housing discrimination matters. In addition to his work within the firm, Nooree is an active member of the American Bar Association’s Section of Public Contract Law and has served on the Section Council and the Section’s Diversity Committee. He also served as the firm’s Fellow for the Leadership Council on Legal Diversity program in 2023.

Follow:Read more about Nooree LeeEmailNooree's Linkedin Profile

This is the fifth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity”, issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the second, third, and fourth blogs described the actions taken by various federal government agencies to implement the EO during June, July, and August 2021, respectively.  This blog summarizes  key actions taken to implement the Cyber EO during September 2021.

I.   Actions Taken During September 2021 to Modernize Federal Government Cybersecurity

The Office of Management and Budget (OMB) publically released a draft zero trust architecture strategy for federal agencies on September 9, 2021.  On that same day, the Cybersecurity and Infrastructure Agency (CISA) issued two draft documents designed to further OMB’s zero trust strategy: the Zero Trust Maturity Model and the Cloud Security Technical Reference Architecture.  Each of these documents was required by Section 3 of the Cyber EO to modernize and standardize federal government agency approaches to cybersecurity.Continue Reading September 2021 Developments Under President Biden’s Cybersecurity Executive Order

On April 27, 2021, President Biden signed an Executive Order entitled “Increasing the Minimum Wage for Federal Contractors” that will raise the hourly minimum wage for federal contractors to $15.00 effective January 30, 2022.  This Executive Order builds on Executive Order 13658 (“Establishing a Minimum Wage for Contractors”), issued by President Obama in 2014, which first implemented an hourly minimum wage of $10.10 for covered federal contractors.[i]
Continue Reading Government Contractors Should Prepare Now for the $15 Per Hour Minimum Wage

As federal agencies adjust their worksites to the realities of the COVID-19 pandemic, these changes will likely have a direct impact on government contractors and their employees who work at those sites.  If the government closes or reduces operations at a site, a contractor may be forced to furlough or reduce the hours of employees.  Some reduction actions could result in an employee who was exempt from overtime payments under the Fair Labor Standards Act (“FLSA”) being reclassified as non-exempt, which would require the employer to pay the employee overtime wages, with negative long-term repercussions.

An employee may volunteer to reduce her salary for any period of time without any FLSA consequences so long as her decision is completely voluntary.  To the extent the employer must impose involuntary reductions on an exempt employee, the following options are available that should not result in the employee being reclassified as non-exempt under FLSA:Continue Reading FLSA Considerations In Response to Government COVID-19-Related Directions

Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act. This new guidance addresses the meaning of “confidential” in light of the Supreme Court’s decision in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019). While not determinative, this DOJ Guidance offers contractors critical insight into how agencies will respond in the first instance to FOIA requests for information that may be subject to Exemption 4. This exemption protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

As covered in this space earlier this year, in Food Marketing Institute, the Supreme Court jettisoned 40 years of established FOIA case law on how agencies defined confidential under Exemption 4. It rejected the well-established “competitive harm” test from National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) based on the lack of support in the statutory language. In its place, it adopted a “plain language” interpretation of confidential, finding two potential definitions: (1) information “customarily kept private, or at least closely held,” by the submitting party; and (2) information disclosed when the receiving party provides “some assurance that it will remain secret.” The Supreme Court held that the first condition was mandatory but expressly left open whether confidential information could lose that status if provided to the government “without assurances that the government will keep it private.” As a result, contractors and agencies alike were left without clear guidance as to whether, or when, a government “assurance” may be required.
Continue Reading DOJ Issues New Guidance for Treatment of Confidential Information Under Recent Supreme Court FOIA Decision

On October 15, 2019, the Defense Security Cooperation Agency (DSCA) announced that foreign arm sales for Fiscal Year (FY) 2019 totaled $55.4 billion.

This amount nearly matches the total from FY 2018 of $55.7 billion, continuing the significant increase in foreign arm sales under the Trump Administration and potentially signaling…
Continue Reading A New Normal for Foreign Military Sales? Total Sales for FY 2019 Nearly Matches FY 2018

(This article was originally published in Law360 and has been modified for this blog.)

On July 15, 2019, President Trump issued an Executive Order on Maximizing Use of American-Made Goods, Products, and Materials.  The EO directs the FAR Council to “consider” amending the Federal Acquisition Regulation’s provisions governing the implementation of the Buy American Act.  This EO is the Trump administration’s latest – and most concrete – step toward enhancing domestic sourcing preferences and restricting foreign sources of supply for federal customers.  And if implemented, the change promises to have dramatic implications for government contractors and their supply chains.
Continue Reading Another Executive Order on Buying American, and This One Has Teeth

Earlier this year, the White House issued an Executive Order on AI mandating that the National Institute of Standards and Technology develop a guide to federal engagement on AI technical standards.  While the federal government’s actions have understandably garnered significant attention, state and local governments are also undertaking preliminary efforts…
Continue Reading New York City, Vermont, and Other State and Local Governments Evaluating AI Trustworthiness

On Monday, the Supreme Court significantly altered how government agencies will treat confidential commercial information protected from disclosure by Exemption 4 of the Freedom of Information Act (“FOIA”) — an issue that recurs repeatedly with respect to information submitted by contractors to government agencies.  Food Marketing Institute v. Argus Leader Media, No. 18-481 (U.S. June 24, 2019). The Court overturned 45 years of lower-court precedent requiring that the submitter show both that the information was not publicly disclosed, and that its release would cause substantial competitive harm.  The Court’s decision seemingly expands the scope of Exemption 4 by removing the “substantial competitive harm” requirement. However, the effect of this apparent expansion is unclear, because the Court suggested but did not resolve whether Exemption 4 also requires a new element: a showing that the submitter’s information was provided under an assurance by the government that it would keep the information confidential.

Notwithstanding the question left open by the Court, Food Marketing points the way to several steps that contractors can take to protect their commercial and financial information from release under the new interpretation of Exemption 4.Continue Reading Supreme Court Shakes Up FOIA Exemption for Confidential Information

On May 23, 2019, multiple news outlets reported that the White House was considering an emergency declaration to permit arms shipments to Saudi Arabia without Congressional approval.  These reports were met with sharp criticism by multiple legislators.  These recent developments shine a spotlight on the contours of the Congressional notice and approval mechanisms set forth in the Arms Export Control Act (AECA).

AECA (22 U.S.C. § 2751 et seq.) is the authorizing statute for the Foreign Military Sales (FMS) program.  AECA and the implementing guidance from the Defense Security Cooperation Agency (DSCA) set forth the procedures for the development of a transaction under the FMS program, referred to as an FMS case.

Once an FMS case has been negotiated between the U.S. Government and the foreign government purchaser, the White House is required submit a formal notification to the Speaker of the House of Representatives, the House Committee on Foreign Affairs, and the Senate Committee on Foreign Relations (although this requirement is subject to country- and defense article-specific dollar value thresholds).  Congress then has 30 days (or 15 days for certain proposed sales to a NATO county, Australia, Japan, South Korea, Israel, or New Zealand) to enact a joint resolution opposing the sale.  Unless a joint resolution is passed within the time period, Congress is considered to have consented to the sale.Continue Reading Congress Braces for a Fight Over Executive Authority Under the Arms Export Control Act

Earlier this month, the FAR Council issued a proposed rule to expand the definition of “commercial item” under the Federal Acquisition Regulation (FAR) to include certain items sold in substantial quantities to foreign governments.  This new rule implements section 847 of the National Defense Authorization Act (NDAA) for FY 2018 (Pub. L. 115-91), and has the potential to extend commercial item status to defense articles that have been sold to foreign militaries, including sales under the Foreign Military Financing program.

Ensuring the commercial item status of products and services has long been a key point of federal contracting compliance for many businesses, as commercial item contracts typically avoid many of the more burdensome provisions imposed by the FAR.  While the term “commercial item” is often generalized to refer to items offered for sale to the general public for non-governmental purposes, the definition of “commercial item” under FAR 2.101 includes certain items used for governmental purposes and sold in substantial quantities to multiple state and local governments.  See FAR 2.101.  This provision permitted products like protective equipment used by police and fire departments to be deemed commercial items.Continue Reading Proposed Rule Offers Foreign Military Sales as a Potential Pathway to Commerciality