Defense Federal Acquisition Regulation Supplement; Disclosure to Litigation Support Contractors (DFARS Case 2012-D029), 11337-11341 [2014-04159]
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Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Rules and Regulations
Authorization Act for Fiscal Year 2013.
Section 827 amends 10 U.S.C. 2409 and
10 U.S.C. 2324(k), making the changes
applicable to DoD and NASA. Each
agency is amending its FAR
supplement. This analysis pertains only
to the DFARS final rule. DFARS is
revising subpart 203.9, ‘‘Whistleblower
Protections for Contractor Employees.’’
The subpart covers the policy,
procedures for filing and investigating
complaints, remedies, and the
prescription for the clause at DFARS
252.203–7002, entitled ‘‘Requirement to
Inform Employees of Whistleblower
Rights.’’
The rule applies to all entities, small
as well as large, at the prime contract
and subcontract level. However, not all
entities will have a situation that
requires an employee to use the
whistleblower provisions, and there is
no way to predict the potential number
of whistleblowers in advance. However,
a small entity could be impacted by a
whistleblower employee either as a
Government prime contractor or
subcontractor. In addition, the impact
on an entity is directly related to the
seriousness of the alleged wrongdoing.
No comments were received from the
public on the Regulatory Flexibility
analysis. No comments were received
from the Chief Counsel for Advocacy of
the Small Business Administration.
There are no reporting requirements
associated with this rule. However, a
firm accused of retaliating against an
employee whistleblower is likely to be
required to furnish human resources
documentation to disprove the
accusation. This documentation,
however, would only be required in the
course of an investigation of the
accusation, not as a result of a contract
clause.
There are no alternatives to this rule.
Because of the terms used in the statute,
DoD is unable to exempt small entities
or establish a dollar threshold for
coverage. Regardless of the size of the
business, a whistleblower employee
must be protected from retaliation by
his/her employer.
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V. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
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List of Subjects in 48 CFR Parts 203 and
252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Accordingly, the interim rule
amending 48 CFR parts 203 and 252,
which was published in the Federal
Register at 78 FR 59851 on September
30, 2013, is adopted as a final rule with
the following changes:
PART 203—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
1. The authority citation for 48 CFR
part 203 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Section 203.900 is amended by—
a. Adding introductory text;
b. Redesignating paragraphs (a) and
(b) as paragraphs (1) and (2); and
■ c. In redesignated paragraph (2),
further redesignating paragraphs (1) and
(2) as paragraphs (2)(i) and (ii).
The addition reads as follows:
■
■
■
203.900
Scope of subpart.
This subpart applies to DoD instead of
FAR subpart 3.9.
*
*
*
*
*
203.901
[Amended]
3. Section 203.901 heading is
amended by removing ‘‘Definition’’ and
adding in its place ‘‘Definitions’’.
■ 4. Section 203.903 is amended by—
■ a. Revising paragraph (1);
■ b. Redesignating paragraphs (2), (3),
and (4) as paragraphs (3), (4), and (5),
respectively; and
■ c. Adding a new paragraph (2).
The revision and addition read as
follows:
■
203.903
request of an executive branch official,
unless the request takes the form of a
non-discretionary directive and is
within the authority of the executive
branch official making the request.
(2) Classified information. As
provided in section 827(h) of the
National Defense Authorization Act for
Fiscal Year 2013, nothing in this subpart
provides any rights to disclose classified
information not otherwise provided by
law.
*
*
*
*
*
203.904
[Amended]
5. Section 203.904 is amended by—
a. Redesignating paragraphs (a), (b),
and (c) as paragraphs (1), (2), and (3),
respectively; and
■ b. In the newly redesignated
paragraph (3), further redesignating
paragraphs (1), (2), (3), (4), and (5) as
paragraphs (3)(i), (ii), (iii), (iv), and (v),
respectively.
■ 6. Section 203.905 is amended by
revising paragraph (2) to read as follows:
■
■
203.905 Procedures for investigating
complaints.
*
*
*
*
*
(2) If the DoD Inspector General
investigates the complaint, the DoD
Inspector General will—
(i) Notify the complainant, the
contractor alleged to have committed
the violation, and the head of the
agency; and
(ii) Provide a written report of
findings to the complainant, the
contractor alleged to have committed
the violation, and the head of the
agency.
*
*
*
*
*
203.907
■
[Removed]
7. Remove Section 203.907.
[FR Doc. 2014–04158 Filed 2–27–14; 8:45 am]
BILLING CODE 5001–06–P
Policy.
(1) Prohibition. 10 U.S.C. 2409
prohibits contractors and subcontractors
from discharging, demoting, or
otherwise discriminating against an
employee as a reprisal for disclosing, to
any of the entities listed at paragraph (2)
of this section, information that the
employee reasonably believes is
evidence of gross mismanagement of a
DoD contract, a gross waste of DoD
funds, an abuse of authority relating to
a DoD contract, a violation of law, rule,
or regulation related to a DoD contract
(including the competition for or
negotiation of a contract), or a
substantial and specific danger to public
health or safety. Such reprisal is
prohibited even if it is undertaken at the
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 204, 212, 227, 237, and
252
RIN 0750–AH54
Defense Federal Acquisition
Regulation Supplement; Disclosure to
Litigation Support Contractors (DFARS
Case 2012–D029)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule.
AGENCY:
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DoD is amending the Defense
Federal Acquisition Regulation
Supplement (DFARS) to implement
authority for DoD to allow its litigation
support contractors to have access to
‘‘sensitive information,’’ provided that
the litigation support contractor is
subject to certain restrictions on using
and disclosing such information.
DATES: Effective February 28, 2014.
Comment Date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before April 29, 2014, to be
considered in the formation of a final
rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2012–D029,
using any of the following methods:
Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inserting
‘‘DFARS Case 2012–D029’’ under the
heading ‘‘Enter keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘DFARS Case 2012–D029.’’ Follow
the instructions provided at the ‘‘Submit
a Comment’’ screen. Please include your
name, company name (if any), and
‘‘DFARS Case 2012–D029’’ on your
attached document. Follow the
instructions for submitting comments.
Email: dfars@mail.mil. Include
DFARS Case 2012–D029 in the subject
line of the message.
Fax: 703–602–0350.
Mail: Defense Acquisition Regulations
System, Attn: Mr. Mark Gomersall,
OUSD(AT&L)DPAP(DARS), Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Gomersall, 703–602–0302.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Background
Section 802 of the National Defense
Authorization Act for Fiscal Year 2012
is a successor to section 801 of the
National Defense Authorization Act for
Fiscal Year 2011 (Pub. L. 111–383),
which amended 10 U.S.C. section 2320
to authorize DoD ‘‘covered litigation
support contractors’’ to have access to
and use of any technical, proprietary, or
confidential data delivered under a
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contract for the sole purpose of
providing litigation support. Section
802 amended 10 U.S.C. to add section
129d, repealed section 801 of the
National Defense Authorization Act for
Fiscal Year 2011, and expanded the
basic coverage first established in
section 801 to cover a significantly
broader class of ‘‘sensitive information,’’
which is defined as ‘‘confidential
commercial, financial, or proprietary
information, technical data, or other
privileged information.’’
II. Discussion and Analysis
The basic objective of the rule is to
expressly authorize DoD to provide its
litigation support contractors with
access to certain types of non-public
information, provided that the litigation
support contractors are required to
protect that information from any
unauthorized disclosure, and are
prohibited from using that information
for any purpose other than providing
litigation support services to DoD.
New DFARS subpart 204.74,
Disclosure of Information to Litigation
Support Contractors, along with its
associated new clauses, provides the
policy governing the new subpart in a
two pronged implementation approach:
• DoD is authorized to release
litigation information, including
sensitive information, to its litigation
support contractors provided that the
litigation support contractors are subject
to appropriate requirements and
restrictions that comply with the
requirements of 10 U.S.C. section 129d.
• Although not required by the
statute, DoD will, to the maximum
extent practicable, ensure that offerors
and contractors submitting information
to DoD under solicitations and contracts
will be notified that the submitted
information may be disclosed to DoD’s
litigation support contractors under the
aforementioned conditions.
The new clause at 252.204–7014,
Limitations on the Use or Disclosure of
Information by Litigation Support
Contractors, is the mechanism through
which the requirements and restrictions
of 10 U.S.C. section 129d are applied to
litigation support contractors.
Furthermore, new DFARS clause
252.204–7015, Disclosure of Information
to Litigation support Contractors,
requires litigation support contractors to
treat any and all information provided
to, or obtained by, the litigation support
contractor as sensitive information,
regardless of whether that information is
marked with a restrictive legend. While
not obviating the need, desire, or value
of using restrictive legends on sensitive
information, this approach ensures the
protection of all sensitive information,
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even when inadvertent error or
oversight results in a restrictive legend
being omitted from the information.
The new solicitation provision at
252.204–7013, Limitations on the Use or
Disclosure of Information by Litigation
Support Solicitation Offerors, sets forth
the same limitations and notifications in
252.204–7014 for litigation support
solicitation offerors.
The new clause at 252.204–7015,
Disclosure of Information to Litigation
Support Contractors, implements the
second of the two-prong policy
approach by providing notice to all
offerors and contractors that information
they may submit to DoD may be
disclosed to litigation support
contractors. The notice clarifies that
such releases to litigation support
contractors are authorized
notwithstanding any other provision of
the contract. This notice is not required
by the statute, nor is it otherwise
required as a condition of DoD being
authorized to make the disclosures
covered by 10 U.S.C. section 129d. The
notice is provided as a desired best
practice when DoD will be receiving
potentially sensitive information from
its offerors or contractors, to ensure that
the submitters are aware of this
potential, statutorily authorized release
in connection with litigation support
services.
The term ‘‘litigation information’’ is
created to capture all information that is
generated or obtained by the litigation
support contractor in providing the
litigation support services to DoD,
including but not limited to sensitive
information. The creation of the new
term ‘‘litigation information’’ was
particularly important for the
implementation of this approach. The
foundation of litigation support services
is based in large part on the
understanding that any or all
information involved in providing these
services must be treated as sensitive,
official use only information, which
cannot be shared with any unauthorized
persons or used for any other purpose
without careful review and approval by
the appropriate Government officials.
To avoid any potential confusion
regarding the application of
requirements for ‘‘covered Government
support contractors’’ to ‘‘litigation
support contractors,’’ a parenthetical
exclusion of litigation support
contractors from such requirements is
added at: 227.7103–6(c) and 227.7203–
6(d); and 252.227–7013(a)(5), 252.227–
7014(a)(6), 252.227–7015(a)(2), and
252.227–7018(a)(6).
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III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
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IV. Regulatory Flexibility Act
DoD has prepared an initial regulatory
flexibility analysis consistent with 5
U.S.C. 603. A copy of the analysis may
be obtained from the point of contact
specified herein. The analysis is
summarized as follows:
The objective of the rule is to
implement authority for DoD to allow
its litigation support contractors to have
access to sensitive information,
provided that the litigation support
contractor is subject to certain
restrictions on using and disclosing
such information.
DoD does not expect this interim rule
to have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because DoD activities using litigation
support contractors are generally
already using very restrictive
nondisclosure agreements to govern any
sensitive information that may be
provided to, or developed or discovered
by, the litigation support contractors in
providing litigation support services for
DoD. These DoD activities will likely
review their current practices and make
any necessary modifications to ensure
that there are no inconsistencies with
the new requirements. However, at this
time DoD is unable to estimate the
number of small entities to which this
rule will apply. Therefore, DoD invites
comments from small business concerns
and other interested parties on the
expected impact of this rule on small
entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
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U.S.C. 610 (DFARS Case 2012–D029) in
correspondence.
V. Paperwork Reduction Act
The rule contains no new information
collection requirements that require the
approval of the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
VI. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to publish an interim rule prior to
affording the public an opportunity to
comment. Section 802 amends title 10,
United States Code (U.S.C.), by adding
section 129d to authorize an exception
to the statutory scheme that would
otherwise prohibit Government
litigation support contractors from
accessing or using sensitive information,
defined as ‘‘confidential commercial,
financial, or proprietary information,
technical data, or other privileged
information,’’ belonging to prime
contractors and other third parties,
provided that the support contractor is
subject to appropriate non-disclosure
and use restrictions. Additionally, 10
U.S.C. 129d mandates specific
restrictions for the litigation support
contractors that will receive the
sensitive information, to ensure that this
use does not threaten the data owner’s
competitive advantage due to the
proprietary information, and to provide
the data owner with a legal remedies
against the support contractor for any
breach of those use restrictions. Failure
to issue this rule as an interim rule will
severely impact the Government’s
ability to obtain administrative,
technical or professional services,
including expert or technical
consultation, in support of the
Government during or in anticipation of
litigation, thereby adversely affecting
the Government’s ability to successfully
engage in legal proceedings. However,
pursuant to 41 U.S.C. 1707 and FAR
1.501–3(b), DoD will consider public
comments received in response to this
interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Parts 204,
212, 227, 237, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 204, 212, 227,
237, and 252 are amended as follows:
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11339
1. The authority citation for 48 CFR
parts 204, 212, 227, 237, and 252
continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 204—ADMINISTRATIVE
MATTERS
2. Add subpart 204.74 to read as
follows:
■
SUBPART 204.74—DISCLOSURE OF
INFORMATION TO LITIGATION SUPPORT
CONTRACTORS
Sec.
204.7400 Scope of subpart.
204.7401 Definitions.
204.7402 Policy.
204.7403 Solicitation provision and
contract clauses.
SUBPART 204.74—DISCLOSURE OF
INFORMATION TO LITIGATION
SUPPORT CONTRACTORS
204.7400
Scope of subpart.
This subpart prescribes policies and
procedures for the release and
safeguarding of information to litigation
support contractors. It implements the
requirements at 10 U.S.C. 129d.
204.7401
Definitions.
‘‘Litigation support,’’ ‘‘litigation
support contractor,’’ and ‘‘sensitive
information,’’ as used in this subpart,
are defined in the clause at 252.204–
7014, Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors.
204.7402
Policy.
(a) Any release or disclosure of
litigation information that includes
sensitive information to a litigation
support contractor, and the litigation
support contractor’s use and handling of
such information, shall comply with the
requirements of 10 U.S.C. 129d.
(b) To the maximum extent
practicable, DoD will provide notice to
an offeror or contractor submitting,
delivering, or otherwise providing
information to DoD in connection with
an offer or performance of a contract
that such information may be released
or disclosed to litigation support
contractors.
204.7403 Solicitation provision and
contract clauses.
(a) Use the provision at 252.204–7013,
Limitations on the Use or Disclosure of
Information by Litigation Support
Solicitation Offerors, in all solicitations,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, that involve litigation
support services.
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(b) Use the clause at 252.204–7014,
Limitations on the Use or Disclosure of
Information by Litigation Support
Contractors, in all solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
that involve litigation support services.
(c) Use the clause at 252.204–7015,
Disclosure of Information to Litigation
Support Contractors, in all solicitations
and contracts, including solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items, that involve litigation
support services and do not include the
clause at 252.204–7014, Limitations on
the Use or Disclosure of Information by
Litigation Support Contractors.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
227.7103–6
[Amended]
5. Amend section 227.7103–6 by
removing the phrase ‘‘Government will
provide the contractor,’’ and adding in
its place ‘‘Government will provide the
contractor (other than a litigation
support contractor covered by 252.204–
7014),’’.
■ 6. In section 227.7200, revise
paragraph (b) to read as follows:
■
227.7200
Scope of subpart.
*
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*
(b) Does not apply to—
(1) Computer software or computer
software documentation acquired under
GSA schedule contracts; or
(2) Releases of computer software or
computer software documentation to
litigation support contractors (see
subpart 204.74).
227.7203–6
[Amended]
7. Section 227.7203–6 is amended by
removing the phrase ‘‘Government will
provide the contractor,’’ and adding in
its place ‘‘Government will provide the
contractor (other than a litigation
support contractor covered by 252.204–
7014),’’.
3. Amend section 212.301 by—
■ a. Redesignating paragraphs (f)(vii)
through (lxvii) as (f)(x) through (lxx);
and
■ b. Adding new paragraphs (f)(vii),
(viii), and (ix) to read as follows:
■
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
PART 237—SERVICE CONTRACTING
(f) * * *
(vii) Use the provision at 252.204–
7013, Limitations on the Use or
Disclosure of Information by Litigation
Support Solicitation Offerors, as
prescribed in 204.7403(a), to comply
with 10 U.S.C. 129d.
(viii) Use the clause at 252.204–7014,
Limitations on the Use or Disclosure of
Information by Litigation Support
Contractors, as prescribed in
204.7403(b), to comply with 10 U.S.C.
129d.
(ix) Use the clause at 252.204–7015,
Disclosure of Information to Litigation
Support Contractors, as prescribed in
204.7403(c), to comply with 10 U.S.C.
129d.
*
*
*
*
*
PART 227—PATENTS, DATA, AND
COPYRIGHTS
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Scope of subpart.
*
*
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*
(b) Does not apply to—
(1) Computer software or technical
data that is computer software
documentation (see subpart 227.72); or
(2) Releases of technical data to
litigation support contractors (see
subpart 204.74).
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237.174 Disclosure of information to
litigation support contractors.
See 204.74 for disclosure of
information to litigation support
contractors.
(End of provision)
■ 10. Add section 252.204–7014 to read
as follows:
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.204–7014 Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors.
■
9. Add section 252.204–7013 to read
as follows:
As prescribed in 204.7403(b), use the
following clause:
252.204–7013 Limitations on the Use or
Disclosure of Information by Litigation
Support Solicitation Offerors.
LIMITATIONS ON THE USE OR
DISCLOSURE OF INFORMATION BY
LITIGATION SUPPORT
CONTRACTORS (FEB 2014)
As prescribed in 204.7403(a), use the
following provision. If the solicitation is
a request for quotations, the terms
‘‘quotation’’ and ‘‘Quoter’’ may be
substituted for ‘‘offer’’ and ‘‘Offeror’’.
LIMITATIONS ON THE USE OR
DISCLOSURE OF INFORMATION BY
LITIGATION SUPPORT
SOLICITATION OFFERORS (FEB 2014)
4. In section 227.7100, revise
paragraph (b) to read as follows:
■
227.7100
8. Add section 237.174 to read as
follows:
■
other provision of this solicitation, by
submission of its offer, the Offeror agrees and
acknowledges—
(1) That all litigation information will be
accessed and used for the sole purpose of
providing litigation support;
(2) That the Offeror will take all
precautions necessary to prevent
unauthorized disclosure of litigation
information; and
(3) That litigation information shall not be
used by the Offeror to compete against a third
party for Government or nongovernment
contracts.
(c) Indemnification and creation of third
party beneficiary rights. By submission of its
offer, the Offeror agrees—
(1) To indemnify and hold harmless the
Government, its agents, and employees from
any claim or liability, including attorneys’
fees, court costs, and expenses, arising out of,
or in any way related to, the misuse or
unauthorized modification, reproduction,
release, performance, display, or disclosure
of any litigation information; and
(2) That any third party holding
proprietary rights or any other legally
protectable interest in any litigation
information, in addition to any other rights
it may have, is a third party beneficiary who
shall have a right of direct action against the
Offeror, and against any person to whom the
Offeror has released or disclosed such data or
software, for the unauthorized duplication,
release, or disclosure of such information.
(d) Offeror employees. By submission of its
offer, the Offeror agrees to ensure that its
employees are subject to use and
nondisclosure obligations consistent with
this provision prior to the employees being
provided access to or use of any litigation
information covered by this provision.
(a) Definitions. As used in this provision:
Computer software, litigation information,
litigation support, sensitive information, and
technical data, are defined in the clause at
DFARS 252.204–7014, Limitations on the
Use or Disclosure of Information by
Litigation Support Contractors.
(b) Limitations on use or disclosure of
litigation information. Notwithstanding any
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(a) Definitions. As used in this clause:
Computer software means computer
programs, source code, source code listings,
object code listings, design details,
algorithms, processes, flow charts, formulae,
and related material that would enable the
software to be reproduced, recreated, or
recompiled. Computer software does not
include computer data bases or computer
software documentation.
Litigation information means any
information, including sensitive information,
that is furnished to the contractor by or on
behalf of the Government, or that is generated
or obtained by the contractor in the
performance of litigation support work under
this contract.
Litigation support means administrative,
technical, or professional services provided
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in support of the Government during or in
anticipation of litigation.
Litigation support contractor means a
contractor (including an expert or technical
consultant) providing litigation support
under a contract with the Department of
Defense that contains this clause.
Sensitive information means confidential
information of a commercial, financial,
proprietary, or privileged nature. The term
includes technical data and computer
software, but does not include information
that is lawfully, publicly available without
restriction.
Technical data means recorded
information, regardless of the form or method
of the recording, of a scientific or technical
nature (including computer software
documentation). The term does not include
computer software or data incidental to
contract administration, such as financial
and/or management information.
(b) Limitations on use or disclosure of
litigation information. Notwithstanding any
other provision of this contract, the
Contractor agrees and acknowledges—
(1) That all litigation information will be
accessed and used for the sole purpose of
providing litigation support;
(2) That the Contractor will take all
precautions necessary to prevent
unauthorized disclosure of litigation
information;
(3) That litigation information shall not be
used by the Contractor to compete against a
third party for Government or
nongovernment contracts; and
(4) That violation of paragraph (b)(1),
(b)(2), or (b)(3), of this section, is a basis for
the Government to terminate this contract.
(c) Indemnification and creation of third
party beneficiary rights. The Contractor
agrees—
(1) To indemnify and hold harmless the
Government, its agents, and employees from
any claim or liability, including attorneys’
fees, court costs, and expenses, arising out of,
or in any way related to, the misuse or
unauthorized modification, reproduction,
release, performance, display, or disclosure
of any litigation information; and
(2) That any third party holding
proprietary rights or any other legally
protectable interest in any litigation
information, in addition to any other rights
it may have, is a third party beneficiary
under this contract who shall have a right of
direct action against the Contractor, and
against any person to whom the Contractor
has released or disclosed such data or
software, for the unauthorized duplication,
release, or disclosure of such information.
(d) Contractor employees. The Contractor
shall ensure that its employees are subject to
use and nondisclosure obligations consistent
with this clause prior to the employees being
provided access to or use of any litigation
information covered by this clause.
(e) Flowdown. Include the substance of this
clause, including this paragraph (e), in all
subcontracts, including subcontracts for
commercial items.
(End of clause)
■ 11. Add section 252.204–7015 to read
as follows:
VerDate Mar<15>2010
16:46 Feb 27, 2014
Jkt 232001
252.204–7015 Disclosure of Information to
Litigation Support Contractors.
As prescribed in 204.7403(c), use the
following clause:
DISCLOSURE OF INFORMATION TO
LITIGATION SUPPORT
CONTRACTORS (FEB 2014)
(a) Definitions. As used in this clause:
Litigation support means administrative,
technical, or professional services provided
in support of the Government during or in
anticipation of litigation.
Litigation support contractor means a
contractor (including an expert or technical
consultant) providing litigation support
under a contract with the Department of
Defense that contains this clause.
Sensitive information means confidential
information of a commercial, financial,
proprietary, or privileged nature. The term
includes technical data and computer
software, but does not include information
that is lawfully, publicly available without
restriction.
(b) Authorized disclosure. Notwithstanding
any other provision of this solicitation or
contract, the Government may disclose to a
litigation support contractor, for the sole
purpose of litigation support activities, any
information, including sensitive information,
received—
(1) Within or in connection with a
quotation or offer; or
(2) In the performance of or in connection
with a contract.
(c) Flowdown. Include the substance of this
clause, including this paragraph (c), in all
subcontracts, including subcontracts for
commercial items.
(End of clause)
252.227–7013
[Amended]
12. Amend section 252.227–7013 by—
a. Removing the clause date (JUN
2013) and adding in its place (FEB
2014); and
■ b. In paragraph (a)(5), removing the
phrase ‘‘Covered Government support
contractor means a contractor’’ and
adding in its place ‘‘Covered
Government support contractor means a
contractor (other than a litigation
support contractor covered by 252.204–
7014)’’.
■
■
252.227–7014
[Amended]
13. Amend section 252.227–7014 by—
a. Removing the clause date (MAY
2013) and adding in its place (FEB
2014); and
■ b. In paragraph (a)(6), removing the
phrase ‘‘Covered Government support
contractor means a contractor’’ and
adding in its place ‘‘Covered
Government support contractor means a
contractor (other than a litigation
support contractor covered by 252.204–
7014)’’.
■
■
252.227–7015
■
[Amended]
14. Amend section 252.227–7015 by—
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
11341
a. Removing the clause date (JUN
2013) and adding in its place (FEB
2014); and
■ b. In paragraph (a)(2), removing the
phrase ‘‘Covered Government support
contractor means a contractor’’ and
adding in its place ‘‘Covered
Government support contractor means a
contractor (other than a litigation
support contractor covered by 252.204–
7014)’’.
■
252.227–7018
[Amended]
15. Amend section 252.227–7018 by—
a. Removing the clause date (MAY
2013) and adding in its place (FEB
2014); and
■ b. In paragraph (a)(6), removing the
phrase ‘‘Covered Government support
contractor means a contractor’’ and
adding in its place ‘‘Covered
Government support contractor means a
contractor (other than a litigation
support contractor covered by 252.204–
7014)’’.
■
■
[FR Doc. 2014–04159 Filed 2–27–14; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 204, 225, and 252
Defense Federal Acquisition
Regulation Supplement; Technical
Amendments
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is making technical
amendments to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to provide needed editorial
changes.
SUMMARY:
DATES:
Effective February 28, 2014.
Mr.
Manuel Quinones, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Telephone 571–372–6088; facsimile
571–372–6094.
SUPPLEMENTARY INFORMATION: This final
rule amends the DFARS as follows:
1. Correct 204.1105 and 252.204–7004
to conform to the FAR by changing
‘‘clause’’ to ‘‘provision’’.
2. Correct a cross reference at
204.7103–1(d).
3. Redesignate 225.004 as 225.070 and
revise the text.
FOR FURTHER INFORMATION CONTACT:
E:\FR\FM\28FER1.SGM
28FER1
]]>Agencies
[Federal Register Volume 79, Number 40 (Friday, February 28, 2014)]
[Rules and Regulations]
[Pages 11337-11341]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04159]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 212, 227, 237, and 252
RIN 0750-AH54
Defense Federal Acquisition Regulation Supplement; Disclosure to
Litigation Support Contractors (DFARS Case 2012-D029)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
-----------------------------------------------------------------------
[[Page 11338]]
SUMMARY: DoD is amending the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement authority for DoD to allow its
litigation support contractors to have access to ``sensitive
information,'' provided that the litigation support contractor is
subject to certain restrictions on using and disclosing such
information.
DATES: Effective February 28, 2014. Comment Date: Comments on the
interim rule should be submitted in writing to the address shown below
on or before April 29, 2014, to be considered in the formation of a
final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2012-D029,
using any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inserting
``DFARS Case 2012-D029'' under the heading ``Enter keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``DFARS Case 2012-D029.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``DFARS Case 2012-D029'' on your attached
document. Follow the instructions for submitting comments.
Email: dfars@mail.mil. Include DFARS Case 2012-D029 in the subject
line of the message.
Fax: 703-602-0350.
Mail: Defense Acquisition Regulations System, Attn: Mr. Mark
Gomersall, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, 703-602-0302.
SUPPLEMENTARY INFORMATION:
I. Background
Section 802 of the National Defense Authorization Act for Fiscal
Year 2012 is a successor to section 801 of the National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383), which amended
10 U.S.C. section 2320 to authorize DoD ``covered litigation support
contractors'' to have access to and use of any technical, proprietary,
or confidential data delivered under a contract for the sole purpose of
providing litigation support. Section 802 amended 10 U.S.C. to add
section 129d, repealed section 801 of the National Defense
Authorization Act for Fiscal Year 2011, and expanded the basic coverage
first established in section 801 to cover a significantly broader class
of ``sensitive information,'' which is defined as ``confidential
commercial, financial, or proprietary information, technical data, or
other privileged information.''
II. Discussion and Analysis
The basic objective of the rule is to expressly authorize DoD to
provide its litigation support contractors with access to certain types
of non-public information, provided that the litigation support
contractors are required to protect that information from any
unauthorized disclosure, and are prohibited from using that information
for any purpose other than providing litigation support services to
DoD.
New DFARS subpart 204.74, Disclosure of Information to Litigation
Support Contractors, along with its associated new clauses, provides
the policy governing the new subpart in a two pronged implementation
approach:
DoD is authorized to release litigation information,
including sensitive information, to its litigation support contractors
provided that the litigation support contractors are subject to
appropriate requirements and restrictions that comply with the
requirements of 10 U.S.C. section 129d.
Although not required by the statute, DoD will, to the
maximum extent practicable, ensure that offerors and contractors
submitting information to DoD under solicitations and contracts will be
notified that the submitted information may be disclosed to DoD's
litigation support contractors under the aforementioned conditions.
The new clause at 252.204-7014, Limitations on the Use or
Disclosure of Information by Litigation Support Contractors, is the
mechanism through which the requirements and restrictions of 10 U.S.C.
section 129d are applied to litigation support contractors.
Furthermore, new DFARS clause 252.204-7015, Disclosure of Information
to Litigation support Contractors, requires litigation support
contractors to treat any and all information provided to, or obtained
by, the litigation support contractor as sensitive information,
regardless of whether that information is marked with a restrictive
legend. While not obviating the need, desire, or value of using
restrictive legends on sensitive information, this approach ensures the
protection of all sensitive information, even when inadvertent error or
oversight results in a restrictive legend being omitted from the
information.
The new solicitation provision at 252.204-7013, Limitations on the
Use or Disclosure of Information by Litigation Support Solicitation
Offerors, sets forth the same limitations and notifications in 252.204-
7014 for litigation support solicitation offerors.
The new clause at 252.204-7015, Disclosure of Information to
Litigation Support Contractors, implements the second of the two-prong
policy approach by providing notice to all offerors and contractors
that information they may submit to DoD may be disclosed to litigation
support contractors. The notice clarifies that such releases to
litigation support contractors are authorized notwithstanding any other
provision of the contract. This notice is not required by the statute,
nor is it otherwise required as a condition of DoD being authorized to
make the disclosures covered by 10 U.S.C. section 129d. The notice is
provided as a desired best practice when DoD will be receiving
potentially sensitive information from its offerors or contractors, to
ensure that the submitters are aware of this potential, statutorily
authorized release in connection with litigation support services.
The term ``litigation information'' is created to capture all
information that is generated or obtained by the litigation support
contractor in providing the litigation support services to DoD,
including but not limited to sensitive information. The creation of the
new term ``litigation information'' was particularly important for the
implementation of this approach. The foundation of litigation support
services is based in large part on the understanding that any or all
information involved in providing these services must be treated as
sensitive, official use only information, which cannot be shared with
any unauthorized persons or used for any other purpose without careful
review and approval by the appropriate Government officials.
To avoid any potential confusion regarding the application of
requirements for ``covered Government support contractors'' to
``litigation support contractors,'' a parenthetical exclusion of
litigation support contractors from such requirements is added at:
227.7103-6(c) and 227.7203-6(d); and 252.227-7013(a)(5), 252.227-
7014(a)(6), 252.227-7015(a)(2), and 252.227-7018(a)(6).
[[Page 11339]]
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD has prepared an initial regulatory flexibility analysis
consistent with 5 U.S.C. 603. A copy of the analysis may be obtained
from the point of contact specified herein. The analysis is summarized
as follows:
The objective of the rule is to implement authority for DoD to
allow its litigation support contractors to have access to sensitive
information, provided that the litigation support contractor is subject
to certain restrictions on using and disclosing such information.
DoD does not expect this interim rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because DoD activities using litigation support contractors are
generally already using very restrictive nondisclosure agreements to
govern any sensitive information that may be provided to, or developed
or discovered by, the litigation support contractors in providing
litigation support services for DoD. These DoD activities will likely
review their current practices and make any necessary modifications to
ensure that there are no inconsistencies with the new requirements.
However, at this time DoD is unable to estimate the number of small
entities to which this rule will apply. Therefore, DoD invites comments
from small business concerns and other interested parties on the
expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D029) in
correspondence.
V. Paperwork Reduction Act
The rule contains no new information collection requirements that
require the approval of the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment.
Section 802 amends title 10, United States Code (U.S.C.), by adding
section 129d to authorize an exception to the statutory scheme that
would otherwise prohibit Government litigation support contractors from
accessing or using sensitive information, defined as ``confidential
commercial, financial, or proprietary information, technical data, or
other privileged information,'' belonging to prime contractors and
other third parties, provided that the support contractor is subject to
appropriate non-disclosure and use restrictions. Additionally, 10
U.S.C. 129d mandates specific restrictions for the litigation support
contractors that will receive the sensitive information, to ensure that
this use does not threaten the data owner's competitive advantage due
to the proprietary information, and to provide the data owner with a
legal remedies against the support contractor for any breach of those
use restrictions. Failure to issue this rule as an interim rule will
severely impact the Government's ability to obtain administrative,
technical or professional services, including expert or technical
consultation, in support of the Government during or in anticipation of
litigation, thereby adversely affecting the Government's ability to
successfully engage in legal proceedings. However, pursuant to 41
U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments
received in response to this interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Parts 204, 212, 227, 237, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 204, 212, 227, 237, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR parts 204, 212, 227, 237, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 204--ADMINISTRATIVE MATTERS
0
2. Add subpart 204.74 to read as follows:
SUBPART 204.74--DISCLOSURE OF INFORMATION TO LITIGATION SUPPORT
CONTRACTORS
Sec.
204.7400 Scope of subpart.
204.7401 Definitions.
204.7402 Policy.
204.7403 Solicitation provision and contract clauses.
SUBPART 204.74--DISCLOSURE OF INFORMATION TO LITIGATION SUPPORT
CONTRACTORS
204.7400 Scope of subpart.
This subpart prescribes policies and procedures for the release and
safeguarding of information to litigation support contractors. It
implements the requirements at 10 U.S.C. 129d.
204.7401 Definitions.
``Litigation support,'' ``litigation support contractor,'' and
``sensitive information,'' as used in this subpart, are defined in the
clause at 252.204-7014, Limitations on the Use or Disclosure of
Information by Litigation Support Contractors.
204.7402 Policy.
(a) Any release or disclosure of litigation information that
includes sensitive information to a litigation support contractor, and
the litigation support contractor's use and handling of such
information, shall comply with the requirements of 10 U.S.C. 129d.
(b) To the maximum extent practicable, DoD will provide notice to
an offeror or contractor submitting, delivering, or otherwise providing
information to DoD in connection with an offer or performance of a
contract that such information may be released or disclosed to
litigation support contractors.
204.7403 Solicitation provision and contract clauses.
(a) Use the provision at 252.204-7013, Limitations on the Use or
Disclosure of Information by Litigation Support Solicitation Offerors,
in all solicitations, including solicitations using FAR part 12
procedures for the acquisition of commercial items, that involve
litigation support services.
[[Page 11340]]
(b) Use the clause at 252.204-7014, Limitations on the Use or
Disclosure of Information by Litigation Support Contractors, in all
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
that involve litigation support services.
(c) Use the clause at 252.204-7015, Disclosure of Information to
Litigation Support Contractors, in all solicitations and contracts,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial items, that involve litigation support
services and do not include the clause at 252.204-7014, Limitations on
the Use or Disclosure of Information by Litigation Support Contractors.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
3. Amend section 212.301 by--
0
a. Redesignating paragraphs (f)(vii) through (lxvii) as (f)(x) through
(lxx); and
0
b. Adding new paragraphs (f)(vii), (viii), and (ix) to read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(vii) Use the provision at 252.204-7013, Limitations on the Use or
Disclosure of Information by Litigation Support Solicitation Offerors,
as prescribed in 204.7403(a), to comply with 10 U.S.C. 129d.
(viii) Use the clause at 252.204-7014, Limitations on the Use or
Disclosure of Information by Litigation Support Contractors, as
prescribed in 204.7403(b), to comply with 10 U.S.C. 129d.
(ix) Use the clause at 252.204-7015, Disclosure of Information to
Litigation Support Contractors, as prescribed in 204.7403(c), to comply
with 10 U.S.C. 129d.
* * * * *
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
4. In section 227.7100, revise paragraph (b) to read as follows:
227.7100 Scope of subpart.
* * * * *
(b) Does not apply to--
(1) Computer software or technical data that is computer software
documentation (see subpart 227.72); or
(2) Releases of technical data to litigation support contractors
(see subpart 204.74).
227.7103-6 [Amended]
0
5. Amend section 227.7103-6 by removing the phrase ``Government will
provide the contractor,'' and adding in its place ``Government will
provide the contractor (other than a litigation support contractor
covered by 252.204-7014),''.
0
6. In section 227.7200, revise paragraph (b) to read as follows:
227.7200 Scope of subpart.
* * * * *
(b) Does not apply to--
(1) Computer software or computer software documentation acquired
under GSA schedule contracts; or
(2) Releases of computer software or computer software
documentation to litigation support contractors (see subpart 204.74).
227.7203-6 [Amended]
0
7. Section 227.7203-6 is amended by removing the phrase ``Government
will provide the contractor,'' and adding in its place ``Government
will provide the contractor (other than a litigation support contractor
covered by 252.204-7014),''.
PART 237--SERVICE CONTRACTING
0
8. Add section 237.174 to read as follows:
237.174 Disclosure of information to litigation support contractors.
See 204.74 for disclosure of information to litigation support
contractors.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
9. Add section 252.204-7013 to read as follows:
252.204-7013 Limitations on the Use or Disclosure of Information by
Litigation Support Solicitation Offerors.
As prescribed in 204.7403(a), use the following provision. If the
solicitation is a request for quotations, the terms ``quotation'' and
``Quoter'' may be substituted for ``offer'' and ``Offeror''.
LIMITATIONS ON THE USE OR DISCLOSURE OF INFORMATION BY LITIGATION
SUPPORT SOLICITATION OFFERORS (FEB 2014)
(a) Definitions. As used in this provision:
Computer software, litigation information, litigation support,
sensitive information, and technical data, are defined in the clause
at DFARS 252.204-7014, Limitations on the Use or Disclosure of
Information by Litigation Support Contractors.
(b) Limitations on use or disclosure of litigation information.
Notwithstanding any other provision of this solicitation, by
submission of its offer, the Offeror agrees and acknowledges--
(1) That all litigation information will be accessed and used
for the sole purpose of providing litigation support;
(2) That the Offeror will take all precautions necessary to
prevent unauthorized disclosure of litigation information; and
(3) That litigation information shall not be used by the Offeror
to compete against a third party for Government or nongovernment
contracts.
(c) Indemnification and creation of third party beneficiary
rights. By submission of its offer, the Offeror agrees--
(1) To indemnify and hold harmless the Government, its agents,
and employees from any claim or liability, including attorneys'
fees, court costs, and expenses, arising out of, or in any way
related to, the misuse or unauthorized modification, reproduction,
release, performance, display, or disclosure of any litigation
information; and
(2) That any third party holding proprietary rights or any other
legally protectable interest in any litigation information, in
addition to any other rights it may have, is a third party
beneficiary who shall have a right of direct action against the
Offeror, and against any person to whom the Offeror has released or
disclosed such data or software, for the unauthorized duplication,
release, or disclosure of such information.
(d) Offeror employees. By submission of its offer, the Offeror
agrees to ensure that its employees are subject to use and
nondisclosure obligations consistent with this provision prior to
the employees being provided access to or use of any litigation
information covered by this provision.
(End of provision)
0
10. Add section 252.204-7014 to read as follows:
252.204-7014 Limitations on the Use or Disclosure of Information by
Litigation Support Contractors.
As prescribed in 204.7403(b), use the following clause:
LIMITATIONS ON THE USE OR DISCLOSURE OF INFORMATION BY LITIGATION
SUPPORT CONTRACTORS (FEB 2014)
(a) Definitions. As used in this clause:
Computer software means computer programs, source code, source
code listings, object code listings, design details, algorithms,
processes, flow charts, formulae, and related material that would
enable the software to be reproduced, recreated, or recompiled.
Computer software does not include computer data bases or computer
software documentation.
Litigation information means any information, including
sensitive information, that is furnished to the contractor by or on
behalf of the Government, or that is generated or obtained by the
contractor in the performance of litigation support work under this
contract.
Litigation support means administrative, technical, or
professional services provided
[[Page 11341]]
in support of the Government during or in anticipation of
litigation.
Litigation support contractor means a contractor (including an
expert or technical consultant) providing litigation support under a
contract with the Department of Defense that contains this clause.
Sensitive information means confidential information of a
commercial, financial, proprietary, or privileged nature. The term
includes technical data and computer software, but does not include
information that is lawfully, publicly available without
restriction.
Technical data means recorded information, regardless of the
form or method of the recording, of a scientific or technical nature
(including computer software documentation). The term does not
include computer software or data incidental to contract
administration, such as financial and/or management information.
(b) Limitations on use or disclosure of litigation information.
Notwithstanding any other provision of this contract, the Contractor
agrees and acknowledges--
(1) That all litigation information will be accessed and used
for the sole purpose of providing litigation support;
(2) That the Contractor will take all precautions necessary to
prevent unauthorized disclosure of litigation information;
(3) That litigation information shall not be used by the
Contractor to compete against a third party for Government or
nongovernment contracts; and
(4) That violation of paragraph (b)(1), (b)(2), or (b)(3), of
this section, is a basis for the Government to terminate this
contract.
(c) Indemnification and creation of third party beneficiary
rights. The Contractor agrees--
(1) To indemnify and hold harmless the Government, its agents,
and employees from any claim or liability, including attorneys'
fees, court costs, and expenses, arising out of, or in any way
related to, the misuse or unauthorized modification, reproduction,
release, performance, display, or disclosure of any litigation
information; and
(2) That any third party holding proprietary rights or any other
legally protectable interest in any litigation information, in
addition to any other rights it may have, is a third party
beneficiary under this contract who shall have a right of direct
action against the Contractor, and against any person to whom the
Contractor has released or disclosed such data or software, for the
unauthorized duplication, release, or disclosure of such
information.
(d) Contractor employees. The Contractor shall ensure that its
employees are subject to use and nondisclosure obligations
consistent with this clause prior to the employees being provided
access to or use of any litigation information covered by this
clause.
(e) Flowdown. Include the substance of this clause, including
this paragraph (e), in all subcontracts, including subcontracts for
commercial items.
(End of clause)
0
11. Add section 252.204-7015 to read as follows:
252.204-7015 Disclosure of Information to Litigation Support
Contractors.
As prescribed in 204.7403(c), use the following clause:
DISCLOSURE OF INFORMATION TO LITIGATION SUPPORT CONTRACTORS (FEB 2014)
(a) Definitions. As used in this clause:
Litigation support means administrative, technical, or
professional services provided in support of the Government during
or in anticipation of litigation.
Litigation support contractor means a contractor (including an
expert or technical consultant) providing litigation support under a
contract with the Department of Defense that contains this clause.
Sensitive information means confidential information of a
commercial, financial, proprietary, or privileged nature. The term
includes technical data and computer software, but does not include
information that is lawfully, publicly available without
restriction.
(b) Authorized disclosure. Notwithstanding any other provision
of this solicitation or contract, the Government may disclose to a
litigation support contractor, for the sole purpose of litigation
support activities, any information, including sensitive
information, received--
(1) Within or in connection with a quotation or offer; or
(2) In the performance of or in connection with a contract.
(c) Flowdown. Include the substance of this clause, including
this paragraph (c), in all subcontracts, including subcontracts for
commercial items.
(End of clause)
252.227-7013 [Amended]
0
12. Amend section 252.227-7013 by--
0
a. Removing the clause date (JUN 2013) and adding in its place (FEB
2014); and
0
b. In paragraph (a)(5), removing the phrase ``Covered Government
support contractor means a contractor'' and adding in its place
``Covered Government support contractor means a contractor (other than
a litigation support contractor covered by 252.204-7014)''.
252.227-7014 [Amended]
0
13. Amend section 252.227-7014 by--
0
a. Removing the clause date (MAY 2013) and adding in its place (FEB
2014); and
0
b. In paragraph (a)(6), removing the phrase ``Covered Government
support contractor means a contractor'' and adding in its place
``Covered Government support contractor means a contractor (other than
a litigation support contractor covered by 252.204-7014)''.
252.227-7015 [Amended]
0
14. Amend section 252.227-7015 by--
0
a. Removing the clause date (JUN 2013) and adding in its place (FEB
2014); and
0
b. In paragraph (a)(2), removing the phrase ``Covered Government
support contractor means a contractor'' and adding in its place
``Covered Government support contractor means a contractor (other than
a litigation support contractor covered by 252.204-7014)''.
252.227-7018 [Amended]
0
15. Amend section 252.227-7018 by--
0
a. Removing the clause date (MAY 2013) and adding in its place (FEB
2014); and
0
b. In paragraph (a)(6), removing the phrase ``Covered Government
support contractor means a contractor'' and adding in its place
``Covered Government support contractor means a contractor (other than
a litigation support contractor covered by 252.204-7014)''.
[FR Doc. 2014-04159 Filed 2-27-14; 8:45 am]
BILLING CODE 5001-06-P
