The “Defense or Intelligence Contracts” Requirement Under HSR Rules
Overview of Requirement
The “Defense or Intelligence Contracts” section of the revised HSR form requires filers to report details about certain “pending requests for proposals” (RFPs) or “awarded procurement contracts” with the Department of Defense (DOD) or any member of the U.S. Intelligence Community. The requirement applies to RFPs or awarded procurement contracts (i) that have a value of $100 million or more; and (ii) for which either:
- The revenue from the pending RFP or procurement contract can be identified with an “overlap” NAICS code reported by both parties in their HSR forms; or
- The RFP or contract “involve[s] or will involve an overlap product or service as described in the Overlap Description or the Supply Relationships Description.”
Acquiring persons (buyers) should only report relevant RFPs and procurement contracts that involve the acquiring entity (i.e., the entity that is directly making the acquisition) or any “entity within the acquiring person that directly or indirectly controls the acquiring entity.”
Acquired persons (sellers) should only report relevant RFPs and procurement contracts that involve the entities, assets, or businesses that are being sold.
For each relevant RFP and procurement contract, the filer must report:
- the name of the entity within the filing person;
- the “contracting office” that awards or executes the contract;
- the Contracting Office ID;
- the Award ID; and
- the NAICS code(s), if any, listed in the System for Award Management database.
If the information is classified, the parties are prohibited from including the information in the HSR filing itself, but must expressly note that the information is being withheld because it is classified.
This reporting requirement does not apply if the filing is for a “select 801.30 transaction” (e.g., certain tender offers, open-market purchases, or similar acquisitions of non-controlling interests).
Furthermore, under Section 857 of the National Defense Authorization Act for Fiscal Year 2024 (NDAA), if the parties are making an HSR filing for a transaction that “will require a review by the Department of Defense,” they must “concurrently provide” a copy of their HSR filing to the Department of Defense during the HSR waiting period. There is some uncertainty as to when a transaction “requires” DOD review, as the DOD currently has no statutory authority mandating it to “review” a transaction, and neither the DOJ, FTC, nor DOD have provided concrete guidance on the issue. However, where the parties are reporting an RFP or procurement contract, they should strongly consider whether it would be prudent to voluntarily submit their HSR filings to the DOD’s Office of Industrial Base Policy.
How This Information Gets Used
This information helps the agencies screen for transactions that may implicate national security interests and identify stakeholders from the Department of Defense or Intelligence Community whose perspectives may be needed to evaluate the transaction.
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A representative response to this item might look like:
Frequently Asked Questions
Q. Which government agencies are considered members of the “U.S. Intelligence Community”?
A. The website for the office of the Director of National Intelligence (ODNI) maintains a list of Intelligence Community members. This list comprises 18 different organizations, including the ODNI, the Central Intelligence Agency (CIA), various DOD elements, and various elements within the Department of Energy, Department of Homeland Security (DHS), the Department of State, the Department of the Treasury, the Federal Bureau of Investigation (FBI), and the Drug Enforcement Administration (DEA).
Q. How should I go about determining whether an RFP or procurement contract is “valued at $100 million or more”?
A. According to the FTC, “filers should use the maximum estimated quantity or value in their proposed or awarded prices to determine the estimated value of the contract. Otherwise, filers should use reasonable judgment in determining how to value their contracts and may explain the method of valuation used.”
Q. If my company is a subcontractor for a DOD or Intelligence contract, but we contract with a third party which in turn contracts with the DOD or Intelligence Community, are we required to report our subcontract?
A. No. According to the FTC, only “direct” contracts with the relevant DOD and IC agencies must be disclosed.
