One respondent noted that the transitional arrangement appeared to be contrary to the Ministry of Defence`s guidelines on organizational conflicts of interest, noting that part of a large defence contractor could provide contractual support services to the state, giving that contractor the opportunity to obtain proprietary data from competitors. The defendant stated that it is only in certain circumstances that contractors should help contractors review the proprietary information of other contractors on a case-by-case basis, noting that a more appropriate solution might be to reduce the Department of Defense`s reliance on contractors. The DoD has, as a final, with amendments, passed a preliminary rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for fiscal year 2010 that gives certain types of state support contractors the authority to access proprietary technical data from prime contractors and other third parties. provided that the owner of the technical data can require the supporting contractor to enter into a non-disclosure agreement with certain restrictions and remedies. Comment: One respondent suggested that a covered government support contractor should be required to notify the owner of the proprietary information the first time the proprietary information was accessed and annually thereafter. (1) A support contractor of the Covered State in the performance of its Covered State Support Contract for the use, modification, reproduction, performance, display or disclosure to a person who has the right to receive technical data with limited rights; Or DoD response: This rule requires the use of clause under 252.227-7025 with all covered state support contractors, which serves as the “primary NDA” between the government and the supporting contractor, in which the owner of the proprietary information is a third party beneficiary of this NDA and therefore has a direct cause of action against the supporting contractor for violating the requirements of the NDA. However, as the respondent noted, earned value management data does not include limited-rights technical data or limited-rights computer software, and CTCBP`s efforts therefore fall outside the scope of this rule, as well as the underlying legal obligations regarding a direct confidentiality agreement between a covered government support contractor and the owner of the proprietary information. (3) For Small Business Innovation Research Program contracts, the terms “Entrepreneur Covered by Government Support”, “Limited Rights”, “Limited Rights” and “Rights to SBIR Data” are defined in clause 252.227-7018, Rights to Non-Commercial Technical Data and Computer Software – Small Business Innovation Research Program (SBIR). DoD`s response: The Use and Non-Disclosure Agreement at 227.7103-7 is an agreement between the government and a private party and will only be used if the information is provided to the private party outside of a contract containing the clause under 252.227-7025. If the receiving party is a supporting contractor of the covered State, the contract under which the information is provided must, by definition, include the clause under 252.227-7025 – otherwise, the receiving contractor cannot be considered a support contractor of the covered State and would not be allowed to receive the proprietary information for that performance of the contract. Thus, in these cases, the clause of 252.227-7025 is already applicable and the NDA at 227.7103-7 should not be used. In addition, NDA 227.7103-7 would be inadequate as it does not address specific restrictions for covered state support companies – as these restrictions are fully implemented in clause under 252.227-7025, which must be included in the contract in order for the beneficiary to be eligible to receive the information as a covered state support contractor.
DoD`s response: Regardless of this rule, the organizational conflict of interest rules limit a supporting contractor, including a covered government support contractor, to advising the government on acquisition strategies or overall strategies or other matters in which the supporting contractor would have a financial or other interest (i.e., This would be considered an organizational conflict of interest). These prohibitions and restrictions apply regardless of whether or not the consulting provider has access to the proprietary data of third parties in the context of such advice. This rule complements these existing restrictions on organizational conflicts of interest by adding additional levels of restriction and safeguards to ensure that a covered government support company`s access to third-party proprietary data does not result in competitive harm to the owner of the third-party data. Comment: One respondent noted that the rule makes revisions to the coverage for non-commercial limited-rights computer software, which are analogous to revisions for limited-rights technical data, but recommends revisions to recognize some important differences between limited-rights computer software and limited-rights technical data (p.B. that the government`s rights to use and reproduce software with restricted rights are otherwise prohibited and that printed page 30236 is larger than for limited rights technical data). The defendant recommends revisions to ensure that the authorized use of limited rights software by the covered state support contractor is subject to all restrictions that apply to government use (while maintaining additional restrictions that further restrict the activities of the covered state support contractor). DoD`s response: These Terms are contained in paragraph (b)(5) of 252.227-7025 and apply to all government-covered contractors, which is a mandatory clause for all contracts if the government is supposed to provide the contractor with technical data marked with the restrictive legends of another contractor in order to perform its contract (see the clause`s regulation in 227.7103-6(c), 227.7104(f)(1) and 227.7203-6(d)). .