Defense Federal Acquisition Regulation Supplement: Disclosure to Litigation Support Contractors (DFARS Case 2012-D029), 28724-28729 [2016-10822]
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Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
The costs involved in this action are
imposed only by voluntary participation
in a federal program.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. The EPA has concluded
that this action will have no new tribal
implications, nor would it present any
additional burden on the tribes. It will
neither impose substantial direct
compliance costs on tribal governments,
nor preempt tribal law. Thus, Executive
Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to Executive
Order 13045, because it is not
economically significant as defined in
Executive Order 12866, and because the
EPA does not believe the environmental
health or safety risks addressed by this
action present a disproportionate risk to
children. The underlying RD&D rule
requires all RD&D permits to include
terms and conditions that are at least as
protective as the criteria for municipal
solid waste landfills to assure protection
of human health and the environment,
and this rule does not reopen or
otherwise change that requirement.
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H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes the human health
and environmental risk addressed by
this action will not have a new
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations. The underlying RD&D
regulations require all RD&D permits to
include terms and conditions that are at
least as protective as the criteria for
municipal solid waste landfills to assure
protection of human health and the
environment. This final rule is an
administrative action to extend the
maximum permit period, and it does not
reopen or otherwise change the
requirement for protectiveness.
Therefore, the EPA finds that the human
health and environmental risks
addressed by this action will not have
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations, because this action does
not affect the level of protection
provided to human health or the
environment.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 258
Environmental protection, Municipal
landfills, Reporting and recordkeeping
requirements, Waste treatment and
disposal.
Dated: April 29, 2016.
Gina McCarthy,
Administrator.
For the reasons set forth in the
preamble, EPA amends 40 CFR part 258
as follows:
PART 258—CRITERIA FOR MUNICIPAL
SOLID WASTE LANDFILLS
1. The authority citation for part 258
continues to read as follows:
■
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
Authority: 33 U.S.C. 1345(d) and (e); 42
U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c)
and 6949a(c), 6981(a).
Subpart A—General
2. Revise § 258.4(e)(1) to read as
follows:
I. National Technology Transfer and
Advancement Act (NTTAA)
■
This rulemaking does not involve
technical standards.
§ 258.4 Research, development, and
demonstration permits.
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(e) * * *
(1) The total term for a permit for a
project including renewals may not
exceed twenty-one (21) years; and
*
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[FR Doc. 2016–10993 Filed 5–9–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 204, 209, 212, 227, 237,
and 252
[Docket DARS–2014–0017]
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: Final rule.
AGENCY:
DoD is adopting as final, with
changes, an interim rule amending the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement a
section of the National Defense
Authorization Act for Fiscal Year 2012
that provides DoD the authority to allow
its litigation support contractors access
to ‘‘sensitive information’’ subject to
certain restrictions.
DATES: Effective May 10, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy G. Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published an interim rule in the
Federal Register at 79 FR 11337 on
February 28, 2014, to implement section
802 of the National Defense
Authorization Act for Fiscal Year 2012
(Pub. L. 112–81), which provides DoD
the express authority to allow its
litigation support contractors access to
‘‘sensitive information,’’ provided that
the litigation support contractor is
subject to certain restrictions on using
and disclosing such information. Two
respondents submitted public
comments in response to the interim
rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments received
and the changes made to the rule as a
result of those comments follows:
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A. Summary of Significant Changes
From the Interim Rule
1. A new paragraph (b)(4) is added to
the provision at DFARS 252.204–7013
and a new paragraph (b)(5) is added to
the clause at DFARS 252.204–7014 to
clarify that the offeror and the
contractor, respectively, shall destroy or
return to the Government, at the request
of the contracting officer, all litigation
information in its possession upon
completion of the authorized litigation
support activities.
2. A new paragraph (b)(2) is added to
the clause at DFARS 252.204–7014 to
clarify that the contractor shall not
disclose litigation information to any
entity outside the contractor’s
organization unless, prior to disclosure,
the contracting officer has provided
written consent.
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B. Analysis of Public Comments
1. Inclusion of Third Party Information
Comment: One respondent
commented that the interim rule went
beyond the definition of ‘‘sensitive
information’’ provided in 10 U.S.C.
129d because, as implemented,
‘‘sensitive information’’ is not limited to
information owned by the Department
of Defense. The respondent suggested
that the absence of the language
‘‘obtained from a person’’ as used in
Exemption 4 of the Freedom of
Information Act (5 U.S.C. 552(b)(4))
indicates that 10 U.S.C. 129d was
intended to apply only to information
‘‘owned by the Department of Defense.’’
The respondent stated that because the
interim rule does not limit the scope of
sensitive information to only
information owned by DoD, the rule
could expose the Government to
liability or penalties for unauthorized
disclosure of information under the
Federal Tort Claims Act, or a taking of
property under the U.S. Constitution,
the Procurement Integrity Act, 41 U.S.C.
2101 et seq., and the Trade Secrets Act,
18 U.S.C. 1905. The respondent called
for rescission of the interim rule until
the definition of ‘‘sensitive information’’
was narrowed.
Response: The statutory language and
legislative history do not indicate that
10 U.S.C. 129d is limited only to
information owned by the Department
of Defense (or the U.S. Government).
Prior to, and notwithstanding, the
enactment of the statute, DoD was
authorized to disclose information that
it owns. 10 U.S.C. 129d authorizes
disclosure of ‘‘sensitive information,’’
without limitation related to the
ownership or source of the information,
for the sole purpose of providing
litigation support to DoD. To narrow the
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definition as the respondent suggests
would obviate the need for any statutory
authorization. The new DFARS subpart
204.74 established by the interim rule
implements the statutory authorization
for litigation information, including
sensitive information owned by or
obtained from non-DoD sources.
Disclosure of such information is thus
authorized by law when done pursuant
to DFARS subpart 204.74. No change is
made in the final rule.
2. Safeguarding Unclassified Controlled
Technical Information
Comment: One respondent questioned
whether litigation support contractors,
and their subcontractors, will be
required to comply with the
requirements at DFARS clause 252.204–
7012, formerly entitled ‘‘Safeguarding of
Unclassified Controlled Technical
Information.’’
Response: The requirements of the
clause at DFARS 252.204–7012, now
entitled ‘‘Safeguarding Covered Defense
Information and Cyber Incident
Reporting,’’ will apply to contractors,
and their subcontractors, as required by
the clause.
3. Disposition of Litigation Information
Comment: One respondent suggested
that the interim rule should be amended
to include requirements for the
information provided to a litigation
support contractor to be destroyed or
returned to DoD when no longer needed
or at the end of contract performance.
Response: Paragraph (b)(4) is added to
the provision at DFARS 252.204–7013
and paragraph (b)(5) is added to the
clause at DFARS 252.204–7014 to
clarify that the contractor shall destroy
or return to the Government, at the
request of the contracting officer, all
litigation information in its possession
upon completion of the authorized
litigation support activities.
4. Use of Litigation Information
Comment: One respondent suggested
limiting the authorized use of litigation
information to the litigation support
required by the individual contract,
under which the litigation information
was received.
Response: Litigation support
contractors must be able to use the
litigation information provided by the
Government as needed. A contractor
may provide litigation support under
multiple contracts. In such instances,
limiting the scope of authorized use to
only the contract under which the
litigation information was provided
could require the Government to
provide the same information multiple
times. Having to exchange and handle
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multiple copies of the same information
increases the risk of inadvertent
disclosure and the cost of performance
and administration. No change is made
in the final rule.
5. Third Party Beneficiary Rights
Comment: One respondent stated that
if ‘‘sensitive information’’ includes
information owned by third parties,
then the interim rule should be
amended to require litigation support
contractors to comply with Federal
Acquisition Regulation (FAR) 9.505–
4(b) and have a direct nondisclosure
agreement between the owner of the
sensitive information and the litigation
support contractor. The respondent also
stated that the third party beneficiary
rights are illusory without notice to the
owner of the sensitive information.
Response: A direct nondisclosure
agreement or prior notice requirement
could prejudice the Government by
providing premature warning of
possible litigation or of the
Government’s litigation strategies.
Accordingly, DoD has determined that
requiring a direct nondisclosure
agreement pursuant to FAR 9.505–4(b)
for litigation support contractors would
not be in the Government’s interest. 10
U.S.C. 129d does not require that DoD
confer upon an owner of sensitive
information any third party beneficiary
rights; however, at paragraph (d) of the
clause at 252.204–7014, DoD has chosen
to provide third party beneficiary rights
analogous to those afforded by
paragraph (c) of the clause at DFARS
252.227–7025. No change is made in the
final rule as a result of this comment.
6. Appropriateness of an Interim Rule
Comment: One respondent stated that
issuing an interim rule was not
appropriate because there was
inadequate justification for the
determination of urgent or compelling
reasons for doing so. The respondent
suggested that, without further
justification, a proposed rule was more
appropriate and urged rescission of the
interim rule.
Response: DoD published the basis for
its determination that urgent and
compelling reasons existed to authorize
the use of an interim rule. After
consideration of the respondent’s
comment, DoD determined that
rescission of the interim rule was not
warranted.
7. Release of Information to Litigation
Support Subcontractors
Comment: One respondent stated that
while litigation support contractors are
required to flow down the clause at
DFARS 252.204–7014 to subcontractors,
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it is not clear whether litigation support
contractors and any subcontractors
would be subject to DFARS clause
252.204–7000, Disclosure of
Information.
Response: This rule does not affect
the applicability of the clause DFARS at
252.204–7000. In accordance with its
prescription at DFARS 204.404–70(a),
the clause applies to all solicitations
and contracts when the contractor will
have access to or generate unclassified
information that may be sensitive and
inappropriate for release to the public.
That clause will flow down to
subcontracts, in accordance with
paragraph (c) of the clause. There is no
conflict between the DFARS 252.204–
7000 clause and the DFARS 252.204–
7014 clause, at the prime or subcontract
level. The clause at DFARS 252.204–
7000 prohibits the release of
information outside the contractor’s
organization without permission from
the contracting officer, while the DFARS
252.204–7014 clause requires the
litigation support contractor to protect
against any unauthorized releases of
information, and does not authorize the
contractor to make any releases outside
the contractor’s organization. However,
to minimize any potential confusion,
paragraph (b)(2) is added to the DFARS
252.204–7014 clause to state more
clearly that it does not authorize the
contractor to release litigation
information outside the contractor’s
organization without permission of the
contracting officer. Contracting officers,
in conjunction with the Government
litigation team, maintain control over
the flow of information to litigation
support contractors and outside parties.
8. Prescription Conflict
Comment: One respondent pointed
out that the prescription in the interim
rule at DFARS 204.7403(c) would have
precluded DFARS 252.204–7015 from
ever being included in a contract.
Response: This error was corrected in
a technical amendment to the DFARS
published in the Federal Register at 79
FR 13568 on March 11, 2014.
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1. Definitions
a. The definition of ‘‘litigation
information’’ is revised to clarify that
information contained in publicly
available solicitations will not be
protected from disclosure as litigation
information, because the information
has already been released to the public.
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b. The term ‘‘Solicitation’’ is removed
from the title of the provision at DFARS
252.204–7013, as it is not necessary
because the title already refers to
‘‘Offerors.’’
c. Paragraph (b) of the clause at
DFARS 252.204–7014 is revised to state
that the contractor ‘‘shall’’ instead of
‘‘agrees and acknowledges’’ to ensure
the contractor complies with the
limitations set forth in paragraph (b)
during contract performance.
d. The title of the clause at DFARS
252.204–7015 is revised to ‘‘Notice of
Authorized Disclosure of Information
for Litigation Support’’ to more
accurately depict the intent of the
clause.
2. Conforming Changes
A. Applicability to Contracts at or Below
the SAT
41 U.S.C. 1905 governs the
applicability of laws to contracts or
subcontracts in amounts not greater
than the SAT. It is intended to limit the
applicability of laws to such contracts or
subcontracts. 41 U.S.C. 1905 provides
that if a provision of law contains
criminal or civil penalties, or if the FAR
Council makes a written determination
that it is not in the best interest of the
Federal Government to exempt contracts
or subcontracts at or below the SAT, the
law will apply to them. The Director,
Defense Procurement and Acquisition
Policy (DPAP), is the appropriate
authority to make comparable
determinations for regulations to be
published in the DFARS, which is part
of the FAR system of regulations.
DoD has determined that it is in the
best interest of the Federal Government
to apply the rule to contracts and
subcontracts in amounts not greater
than the SAT. Section 802 of the NDAA
for FY 2012 was enacted to ensure DoD
ligation support contractors protect
sensitive information from any
unauthorized disclosure and are
prohibited from using such information
for any purpose other than providing
a. A conforming change has been
made to DFARS 209.505–4(b)(i) in order
to differentiate between the
requirements that pertain to litigation
support contractors from the
requirements for other contractors,
consistent with the changes in this rule.
b. DFARS 209.505–4(b)(ii) is added to
clarify the policies and procedures (set
forth in 204.74 and associated
provisions and clauses) governing
access to proprietary information for
litigation support activities as an
element of the coverage for
organizational and consultant conflicts
of interest.
3. Technical Clarifications
C. Other Changes
A summary of revisions made to the
rule to make necessary conforming
changes, clarifications, and editorial
changes follows:
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A corresponding policy statement is
also added at DFARS 204.7402(c).
b. A policy statement is added at
DFARS 204.7402(d) to state that
contracting officers, when sharing
sensitive information with a litigation
support contractor, shall ensure that all
other applicable requirements for
handling and safeguarding the relevant
types of sensitive information re
included in the contract (e.g., FAR
subparts 4.4 and 24.1; DFARS subparts
204.4 and 224.1).
c. The definition of ‘‘litigation support
contractor’’ is revised to clarify that, in
addition to experts and technical
consultants, the term also includes the
contractor’s subcontractors and
suppliers. The text ‘‘the Department of
Defense’’ is also removed, since the
clause is only used in DoD contracts.
d. DFARS subpart 204.74, the
provision at 252.204–7013, and the
clauses at 252.204–7014 and 252.204–
7015 are revised to include the full text
of all relevant definitions, rather than
cross-referencing the definitions that
were provided in full-text only in the
contract clause at DFARS 252.204–7014.
Further, the definition of ‘‘sensitive
information’’ is clarified by removing
the term ‘‘confidential information’’ and
replacing it with ‘‘controlled
unclassified information’’ in subpart
204.74, the provision, and the clauses.
a. At paragraph (c)(2) of the provision
at DFARS 252.204–7013 and at
paragraph (d)(2) of the clause at DFARS
252.204–7014, the reference to ‘‘data or
software’’ is changed to ‘‘litigation
information’’ and the reference to ‘‘the
unauthorized duplication, release or
disclosure’’ is changed to ‘‘any such
unauthorized use or disclosure,’’ to
more accurately refer to all of the
unauthorized activities described at
paragraph (c)(1) of the provision and
paragraph (d)(1) of the clause.
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III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
The prescriptions for use of the
provision and clauses of this rule,
which implement section 802 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2012 (Pub.
L. 112–81) include use in contracts and
subcontracts valued at or below the
simplified acquisition threshold (SAT)
and contracts and subcontracts for the
acquisition of commercial items,
including commercially available offthe-shelf (COTS) items.
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litigation support services to DoD. Based
on data available in the Federal
Procurement Data System (FPDS) for FY
2015, 421 of the 453 total DoD awards
for professional attorney services or
associated legal services were valued at
less than the SAT. An exception for
contracts valued at or under the SAT
would exclude a large portion (93
percent) of the contracts intended to be
covered by section 802, thereby
undermining the overarching public
policy purpose of the law and adversely
affecting the Government’s ability to
successfully engage in legal
proceedings.
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B. Applicability to Contracts for the
Acquisition of Commercial Items,
Including COTS Items
41 U.S.C. 1906 governs the
applicability of laws to contracts for the
acquisition of commercial items, and is
intended to limit the applicability of
laws to contracts for the acquisition of
commercial items. 41 U.S.C. 1906
provides that if a provision of law
contains criminal or civil penalties, or if
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt commercial item contracts, the
provision of law will apply to contracts
for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the
applicability of laws to COTS items,
with the Administrator for Federal
Procurement Policy the decision
authority to determine that it is in the
best interest of the Government to apply
a provision of law to acquisitions of
COTS items in the FAR. The Director,
DPAP, is the appropriate authority to
make comparable determinations for
regulations to be published in the
DFARS, which is part of the FAR system
of regulations.
Given that the requirements of section
802 of the NDAA for FY 2008 were
enacted to protect sensitive information
provided to DoD litigation support
contractors from unauthorized use and
disclosure, DoD has determined that it
is in the best interest of the Federal
Government to apply the rule to
contracts for the acquisition of
commercial items, as defined at FAR
2.101. Based on data available in FPDS
for FY 2015, 352 of the 453 total DoD
awards for legal support services were
classified as commercial contracts. An
exception for contracts for the
acquisition of commercial items, would
exclude 78 percent of the contracts
intended to be covered by the law,
thereby undermining the overarching
public policy purpose of the law.
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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 a significant
regulatory action and, therefore, was
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.
disclosing litigation support
information. DoD organizations 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 organizations will
likely review their current practices and
make any necessary modifications to
ensure that there are no inconsistencies
with the new requirements. As such,
DoD does not expect the rule to have a
significant economic impact on the
small businesses affected by this rule.
There are no known significant
alternatives to the rule. The impact of
this rule on small business is not
expected to be significant.
V. Regulatory Flexibility Act
VI. Paperwork Reduction Act
DoD does not expect this final 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.
However, a final regulatory flexibility
analysis has been prepared and is
summarized as follows:
This rule amends the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement statutory
authority (10 U.S.C. 129d) 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.
The objective of the rule is to
expressly authorize DoD to provide its
ligation support contractors with access
to certain types of non-public
information, provided that the ligation
support contractors are required to
protect that information from any
unauthorized disclosure, and are
prohibited from using that for any
purpose other than providing litigation
support services to DoD.
No significant issues were raised by
the public comments in response to the
initial regulatory flexibility analysis
published with the interim rule.
According to data available in the
Federal Procurement Data System for
fiscal year 2015, DoD awarded 453 total
contracts for legal support services to
212 unique vendors. Of those awards,
340 awards or 75 percent were made to
162 small businesses.
The rule imposes no reporting,
recordkeeping, or other information
collection requirements; rather, the rule
subjects litigation support contractors to
certain restrictions on using and
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).
IV. Executive Orders 12866 and 13563
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List of Subjects in 48 CFR Parts 204,
209, 212, 227, 237, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, the interim rule amending
48 CFR parts 204, 212, 227, 237, and
252 which was published at 79 FR
11338 on February 28, 2014, is adopted
as a final rule with the following
changes:
■ 1. The authority citation for 48 CFR
parts 204, 209, 212, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 204—ADMINISTRATIVE
MATTERS
2. Section 204.7401 is revised to read
as follows:
■
204.7401
Definitions.
As used in this subpart—
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
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contractor by or on behalf of the
Government, or that is generated or
obtained by the contractor in the
performance of litigation support under
a contract. The term does not include
information that is lawfully, publicly
available without restriction, including
information contained in a publicly
available solicitation.
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 its experts,
technical consultants, subcontractors,
and suppliers) providing litigation
support under a contract that contains
the clause at 252.204–7014, Limitations
on the Use or Disclosure of Information
by Litigation Support Contractors.
Sensitive information means
controlled unclassified 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.
■ 3. Section 204.7402 is amended by
adding paragraphs (c) and (d) to read as
follows:
204.7402
Policy.
*
*
*
*
(c) Information that is publicly
available without restriction, including
publicly available solicitations for
litigation support services, will not be
protected from disclosure as litigation
information.
(d) When sharing sensitive
information with a litigation support
contractor, contracting officers shall
ensure that all other applicable
requirements for handling and
safeguarding the relevant types of
sensitive information are included in
the contract (e.g., FAR subparts 4.4 and
24.1; DFARS subparts 204.4 and 224.1).
■ 4. Section 204.7403 is revised to read
as follows:
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*
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
Offerors, in all solicitations for contracts
VerDate Sep<11>2014
15:17 May 09, 2016
Jkt 238001
that involve litigation support services,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items.
(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 that involve litigation support
services, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items.
(c) Use the clause at 252.204–7015,
Notice of Authorized Disclosure of
Information for Litigation Support, in all
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items.
PART 209—CONTRACTOR
QUALIFICATIONS
5. Amend section 209.505–4 by—
a. Redesignating paragraph (b) as
paragraph (b)(i);
■ b. In newly resdesignated paragraph
(b)(i), removing ‘‘For contractors’’ and
adding ‘‘For contractors, other than
litigation support contractors,’’ in its
place; and
■ c. Adding new paragraph (b)(ii).
The addition reads as follows:
■
■
209.505–4 Obtaining access to proprietary
information.
(b) * * *
(ii) For litigation support contractors
accessing litigation information,
including that originating from third
parties, use and nondisclosure
requirements are addressed through the
use of the provision at 252.204–7013
and the clause at 252.204–7014, as
prescribed at 204.7404(a) and
204.7404(b), respectively. Pursuant to
that provision and clause, litigation
support contractors are not required to
enter into nondisclosure agreements
directly with any third party asserting
restrictions on any litigation
information.
PART 212—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES FOR THE ACQUISITION OF
COMMERCIAL ITEMS
212.301
[Amended]
6. Amend section 212.301 by—
a. In paragraph (f)(ii)(E), removing the
term ‘‘Solicitation’’; and
■ b. In paragraph (f)(ii)(G), removing
‘‘Disclosure of Information to Litigation
Support Contractors’’ and adding
‘‘Notice of Authorized Disclosure of
Information for Litigation Support’’ in
its place.
■
■
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Fmt 4700
Sfmt 4700
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
7. Amend section 252.204–7013 by—
a. Revising the section heading.
b. In the clause heading, removing
‘‘Support Solicitation Offerors’’ and
adding ‘‘Support Offerors’’ in its place;
■ c. Removing the clause date ‘‘(FEB
2014)’’ and adding ‘‘(MAY 2016)’’ in its
place;
■ d. Revising paragraph (a).
■ e. In the paragraph (b) introductory
text, adding ‘‘that’’ after
‘‘acknowledges’’;
■ f. In paragraph (b)(1), removing ‘‘That
all’’ and adding ‘‘All’’ in its place;
■ g. In paragraph (b)(2), removing ‘‘That
the’’ and adding ‘‘The’’ in its place;
■ h. In paragraph (b)(3), removing
‘‘That’’ and adding ‘‘The’’ in its place
and removing ‘‘contracts.’’ and adding
‘‘contracts; and’’ in its place;
■ i. Adding paragraph (b)(4); and
■ j. In paragraph (c)(2), removing ‘‘such
data or software, for the unauthorized
duplication, release, or disclosure’’ and
adding ‘‘such litigation information, for
any such unauthorized use or
disclosure’’ in its place.
The revisions and addition read as
follows:
■
■
■
252.204–7013 Limitations on the Use or
Disclosure of Information by Litigation
Support Offerors.
*
*
*
*
*
(a) Definitions. As used in this
provision—
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 under
a contract. The term does not include
information that is lawfully, publicly
available without restriction, including
information contained in a publicly
available solicitation.
Litigation support means
administrative, technical, or
professional services provided in
support of the Government during or in
anticipation of litigation.
Sensitive information means
controlled unclassified information of a
E:\FR\FM\10MYR1.SGM
10MYR1
Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
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) * * *
(4) Upon completion of the authorized
litigation support activities, the Offeror
will destroy or return to the Government
at the request of the Contracting Officer
all litigation information in its
possession.
*
*
*
*
*
■ 8. Amend section 252.204–7014 by—
■ a. In the clause heading, removing the
clause date ‘‘(FEB 2014)’’ and adding
‘‘(MAY 2016)’’ in its place;
■ b. In paragraph (a), revising the
introductory text and the definitions of
‘‘Litigation information’’, ‘‘Litigation
support contractor’’, and ‘‘Sensitive
information’’;
■ c. Revising paragraph (b);
■ d. Redesignating paragraphs (c), (d),
and (e) as paragraphs (d), (e), and (f);
■ e. Adding a new paragraph (c);
■ f. In newly redesignated paragraph
(d)(2), removing ‘‘such data or software,
for the unauthorized duplication,
release, or disclosure’’ and adding ‘‘such
litigation information, for any such
unauthorized use or disclosure’’ in its
place; and
■ g. In newly redesignated paragraph (f),
removing ‘‘this paragraph (e)’’ and add
‘‘this paragraph (f)’’ in its place.
The revisions and addition read as
follows:
252.204–7014 Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors.
ehiers on DSK5VPTVN1PROD with RULES
*
*
*
*
*
(a) Definitions. As used in this
clause—
*
*
*
*
*
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 under
a contract. The term does not include
information that is lawfully, publicly
available without restriction, including
information contained in a publicly
available solicitation.
*
*
*
*
*
VerDate Sep<11>2014
15:17 May 09, 2016
Jkt 238001
Litigation support contractor means a
contractor (including its experts,
technical consultants, subcontractors,
and suppliers) providing litigation
support under a contract that contains
this clause.
Sensitive information means
controlled unclassified 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) Limitations on use or disclosure of
litigation information. Notwithstanding
any other provision of this contract, the
Contractor shall—
(1) Access and use litigation
information only for the purpose of
providing litigation support under this
contract;
(2) Not disclose litigation information
to any entity outside the Contractor’s
organization unless, prior to such
disclosure the Contracting Officer has
provided written consent to such
disclosure;
(3) Take all precautions necessary to
prevent unauthorized disclosure of
litigation information;
(4) Not use litigation information to
compete against a third party for
Government or nongovernment
contracts; and
(5) Upon completion of the authorized
litigation support activities, destroy or
return to the Government at the request
of the Contracting Officer all litigation
information in its possession.
(c) Violation of paragraph (b)(1),(b)(2),
(b)(3), (b)(4), or (b)(5) of this clause is a
basis for the Government to terminate
this contract.
*
*
*
*
*
■ 9. Amend section 252.204–7015 by—
■ a. Revising the section heading,
introductory text, the clause heading,
and paragraph (a); and
■ b. In the paragraph (b) heading,
removing ‘‘Authorized disclosure’’ and
adding ‘‘Notice of authorized
disclosures’’ in its place.
The revision read as follows:
252.204–7015 Notice of Authorized
Disclosure of Information for Litigation
Support.
As prescribed in 204.7403(c), use the
following clause:
Notice of Authorized Disclosure of
Information for Litigation Support (May
2016)
(a) Definitions. As used in this
clause—
Computer software means computer
programs, source code, source code
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Frm 00041
Fmt 4700
Sfmt 4700
28729
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 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 its experts,
technical consultants, subcontractors,
and suppliers) providing litigation
support under a contract that contains
the clause at 252.204–7014, Limitations
on the Use or Disclosure of Information
by Litigation Support Contractors.
Sensitive information means
controlled unclassified 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.
*
*
*
*
*
[FR Doc. 2016–10822 Filed 5–9–16; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 215, 216, and 225
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.
DATES: Effective May 10, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Jennifer L. Hawes, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), Room
SUMMARY:
E:\FR\FM\10MYR1.SGM
10MYR1
]]>Agencies
[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)]
[Rules and Regulations]
[Pages 28724-28729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10822]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 209, 212, 227, 237, and 252
[Docket DARS-2014-0017]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is adopting as final, with changes, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement a section of the National Defense Authorization Act for
Fiscal Year 2012 that provides DoD the authority to allow its
litigation support contractors access to ``sensitive information''
subject to certain restrictions.
DATES: Effective May 10, 2016.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 79 FR
11337 on February 28, 2014, to implement section 802 of the National
Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), which
provides DoD the express authority to allow its litigation support
contractors access to ``sensitive information,'' provided that the
litigation support contractor is subject to certain restrictions on
using and disclosing such information. Two respondents submitted public
comments in response to the interim rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments received and the changes made to the
rule as a result of those comments follows:
[[Page 28725]]
A. Summary of Significant Changes From the Interim Rule
1. A new paragraph (b)(4) is added to the provision at DFARS
252.204-7013 and a new paragraph (b)(5) is added to the clause at DFARS
252.204-7014 to clarify that the offeror and the contractor,
respectively, shall destroy or return to the Government, at the request
of the contracting officer, all litigation information in its
possession upon completion of the authorized litigation support
activities.
2. A new paragraph (b)(2) is added to the clause at DFARS 252.204-
7014 to clarify that the contractor shall not disclose litigation
information to any entity outside the contractor's organization unless,
prior to disclosure, the contracting officer has provided written
consent.
B. Analysis of Public Comments
1. Inclusion of Third Party Information
Comment: One respondent commented that the interim rule went beyond
the definition of ``sensitive information'' provided in 10 U.S.C. 129d
because, as implemented, ``sensitive information'' is not limited to
information owned by the Department of Defense. The respondent
suggested that the absence of the language ``obtained from a person''
as used in Exemption 4 of the Freedom of Information Act (5 U.S.C.
552(b)(4)) indicates that 10 U.S.C. 129d was intended to apply only to
information ``owned by the Department of Defense.'' The respondent
stated that because the interim rule does not limit the scope of
sensitive information to only information owned by DoD, the rule could
expose the Government to liability or penalties for unauthorized
disclosure of information under the Federal Tort Claims Act, or a
taking of property under the U.S. Constitution, the Procurement
Integrity Act, 41 U.S.C. 2101 et seq., and the Trade Secrets Act, 18
U.S.C. 1905. The respondent called for rescission of the interim rule
until the definition of ``sensitive information'' was narrowed.
Response: The statutory language and legislative history do not
indicate that 10 U.S.C. 129d is limited only to information owned by
the Department of Defense (or the U.S. Government). Prior to, and
notwithstanding, the enactment of the statute, DoD was authorized to
disclose information that it owns. 10 U.S.C. 129d authorizes disclosure
of ``sensitive information,'' without limitation related to the
ownership or source of the information, for the sole purpose of
providing litigation support to DoD. To narrow the definition as the
respondent suggests would obviate the need for any statutory
authorization. The new DFARS subpart 204.74 established by the interim
rule implements the statutory authorization for litigation information,
including sensitive information owned by or obtained from non-DoD
sources. Disclosure of such information is thus authorized by law when
done pursuant to DFARS subpart 204.74. No change is made in the final
rule.
2. Safeguarding Unclassified Controlled Technical Information
Comment: One respondent questioned whether litigation support
contractors, and their subcontractors, will be required to comply with
the requirements at DFARS clause 252.204-7012, formerly entitled
``Safeguarding of Unclassified Controlled Technical Information.''
Response: The requirements of the clause at DFARS 252.204-7012, now
entitled ``Safeguarding Covered Defense Information and Cyber Incident
Reporting,'' will apply to contractors, and their subcontractors, as
required by the clause.
3. Disposition of Litigation Information
Comment: One respondent suggested that the interim rule should be
amended to include requirements for the information provided to a
litigation support contractor to be destroyed or returned to DoD when
no longer needed or at the end of contract performance.
Response: Paragraph (b)(4) is added to the provision at DFARS
252.204-7013 and paragraph (b)(5) is added to the clause at DFARS
252.204-7014 to clarify that the contractor shall destroy or return to
the Government, at the request of the contracting officer, all
litigation information in its possession upon completion of the
authorized litigation support activities.
4. Use of Litigation Information
Comment: One respondent suggested limiting the authorized use of
litigation information to the litigation support required by the
individual contract, under which the litigation information was
received.
Response: Litigation support contractors must be able to use the
litigation information provided by the Government as needed. A
contractor may provide litigation support under multiple contracts. In
such instances, limiting the scope of authorized use to only the
contract under which the litigation information was provided could
require the Government to provide the same information multiple times.
Having to exchange and handle multiple copies of the same information
increases the risk of inadvertent disclosure and the cost of
performance and administration. No change is made in the final rule.
5. Third Party Beneficiary Rights
Comment: One respondent stated that if ``sensitive information''
includes information owned by third parties, then the interim rule
should be amended to require litigation support contractors to comply
with Federal Acquisition Regulation (FAR) 9.505-4(b) and have a direct
nondisclosure agreement between the owner of the sensitive information
and the litigation support contractor. The respondent also stated that
the third party beneficiary rights are illusory without notice to the
owner of the sensitive information.
Response: A direct nondisclosure agreement or prior notice
requirement could prejudice the Government by providing premature
warning of possible litigation or of the Government's litigation
strategies. Accordingly, DoD has determined that requiring a direct
nondisclosure agreement pursuant to FAR 9.505-4(b) for litigation
support contractors would not be in the Government's interest. 10
U.S.C. 129d does not require that DoD confer upon an owner of sensitive
information any third party beneficiary rights; however, at paragraph
(d) of the clause at 252.204-7014, DoD has chosen to provide third
party beneficiary rights analogous to those afforded by paragraph (c)
of the clause at DFARS 252.227-7025. No change is made in the final
rule as a result of this comment.
6. Appropriateness of an Interim Rule
Comment: One respondent stated that issuing an interim rule was not
appropriate because there was inadequate justification for the
determination of urgent or compelling reasons for doing so. The
respondent suggested that, without further justification, a proposed
rule was more appropriate and urged rescission of the interim rule.
Response: DoD published the basis for its determination that urgent
and compelling reasons existed to authorize the use of an interim rule.
After consideration of the respondent's comment, DoD determined that
rescission of the interim rule was not warranted.
7. Release of Information to Litigation Support Subcontractors
Comment: One respondent stated that while litigation support
contractors are required to flow down the clause at DFARS 252.204-7014
to subcontractors,
[[Page 28726]]
it is not clear whether litigation support contractors and any
subcontractors would be subject to DFARS clause 252.204-7000,
Disclosure of Information.
Response: This rule does not affect the applicability of the clause
DFARS at 252.204-7000. In accordance with its prescription at DFARS
204.404-70(a), the clause applies to all solicitations and contracts
when the contractor will have access to or generate unclassified
information that may be sensitive and inappropriate for release to the
public. That clause will flow down to subcontracts, in accordance with
paragraph (c) of the clause. There is no conflict between the DFARS
252.204-7000 clause and the DFARS 252.204-7014 clause, at the prime or
subcontract level. The clause at DFARS 252.204-7000 prohibits the
release of information outside the contractor's organization without
permission from the contracting officer, while the DFARS 252.204-7014
clause requires the litigation support contractor to protect against
any unauthorized releases of information, and does not authorize the
contractor to make any releases outside the contractor's organization.
However, to minimize any potential confusion, paragraph (b)(2) is added
to the DFARS 252.204-7014 clause to state more clearly that it does not
authorize the contractor to release litigation information outside the
contractor's organization without permission of the contracting
officer. Contracting officers, in conjunction with the Government
litigation team, maintain control over the flow of information to
litigation support contractors and outside parties.
8. Prescription Conflict
Comment: One respondent pointed out that the prescription in the
interim rule at DFARS 204.7403(c) would have precluded DFARS 252.204-
7015 from ever being included in a contract.
Response: This error was corrected in a technical amendment to the
DFARS published in the Federal Register at 79 FR 13568 on March 11,
2014.
C. Other Changes
A summary of revisions made to the rule to make necessary
conforming changes, clarifications, and editorial changes follows:
1. Definitions
a. The definition of ``litigation information'' is revised to
clarify that information contained in publicly available solicitations
will not be protected from disclosure as litigation information,
because the information has already been released to the public. A
corresponding policy statement is also added at DFARS 204.7402(c).
b. A policy statement is added at DFARS 204.7402(d) to state that
contracting officers, when sharing sensitive information with a
litigation support contractor, shall ensure that all other applicable
requirements for handling and safeguarding the relevant types of
sensitive information re included in the contract (e.g., FAR subparts
4.4 and 24.1; DFARS subparts 204.4 and 224.1).
c. The definition of ``litigation support contractor'' is revised
to clarify that, in addition to experts and technical consultants, the
term also includes the contractor's subcontractors and suppliers. The
text ``the Department of Defense'' is also removed, since the clause is
only used in DoD contracts.
d. DFARS subpart 204.74, the provision at 252.204-7013, and the
clauses at 252.204-7014 and 252.204-7015 are revised to include the
full text of all relevant definitions, rather than cross-referencing
the definitions that were provided in full-text only in the contract
clause at DFARS 252.204-7014. Further, the definition of ``sensitive
information'' is clarified by removing the term ``confidential
information'' and replacing it with ``controlled unclassified
information'' in subpart 204.74, the provision, and the clauses.
2. Conforming Changes
a. A conforming change has been made to DFARS 209.505-4(b)(i) in
order to differentiate between the requirements that pertain to
litigation support contractors from the requirements for other
contractors, consistent with the changes in this rule.
b. DFARS 209.505-4(b)(ii) is added to clarify the policies and
procedures (set forth in 204.74 and associated provisions and clauses)
governing access to proprietary information for litigation support
activities as an element of the coverage for organizational and
consultant conflicts of interest.
3. Technical Clarifications
a. At paragraph (c)(2) of the provision at DFARS 252.204-7013 and
at paragraph (d)(2) of the clause at DFARS 252.204-7014, the reference
to ``data or software'' is changed to ``litigation information'' and
the reference to ``the unauthorized duplication, release or
disclosure'' is changed to ``any such unauthorized use or disclosure,''
to more accurately refer to all of the unauthorized activities
described at paragraph (c)(1) of the provision and paragraph (d)(1) of
the clause.
b. The term ``Solicitation'' is removed from the title of the
provision at DFARS 252.204-7013, as it is not necessary because the
title already refers to ``Offerors.''
c. Paragraph (b) of the clause at DFARS 252.204-7014 is revised to
state that the contractor ``shall'' instead of ``agrees and
acknowledges'' to ensure the contractor complies with the limitations
set forth in paragraph (b) during contract performance.
d. The title of the clause at DFARS 252.204-7015 is revised to
``Notice of Authorized Disclosure of Information for Litigation
Support'' to more accurately depict the intent of the clause.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
The prescriptions for use of the provision and clauses of this
rule, which implement section 802 of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112-81) include use in
contracts and subcontracts valued at or below the simplified
acquisition threshold (SAT) and contracts and subcontracts for the
acquisition of commercial items, including commercially available off-
the-shelf (COTS) items.
A. Applicability to Contracts at or Below the SAT
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 41
U.S.C. 1905 provides that if a provision of law contains criminal or
civil penalties, or if the FAR Council makes a written determination
that it is not in the best interest of the Federal Government to exempt
contracts or subcontracts at or below the SAT, the law will apply to
them. The Director, Defense Procurement and Acquisition Policy (DPAP),
is the appropriate authority to make comparable determinations for
regulations to be published in the DFARS, which is part of the FAR
system of regulations.
DoD has determined that it is in the best interest of the Federal
Government to apply the rule to contracts and subcontracts in amounts
not greater than the SAT. Section 802 of the NDAA for FY 2012 was
enacted to ensure DoD ligation support contractors protect sensitive
information from any unauthorized disclosure and are prohibited from
using such information for any purpose other than providing
[[Page 28727]]
litigation support services to DoD. Based on data available in the
Federal Procurement Data System (FPDS) for FY 2015, 421 of the 453
total DoD awards for professional attorney services or associated legal
services were valued at less than the SAT. An exception for contracts
valued at or under the SAT would exclude a large portion (93 percent)
of the contracts intended to be covered by section 802, thereby
undermining the overarching public policy purpose of the law and
adversely affecting the Government's ability to successfully engage in
legal proceedings.
B. Applicability to Contracts for the Acquisition of Commercial Items,
Including COTS Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. 41 U.S.C. 1906 provides that if a provision of law contains
criminal or civil penalties, or if the FAR Council makes a written
determination that it is not in the best interest of the Federal
Government to exempt commercial item contracts, the provision of law
will apply to contracts for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS
items, with the Administrator for Federal Procurement Policy the
decision authority to determine that it is in the best interest of the
Government to apply a provision of law to acquisitions of COTS items in
the FAR. The Director, DPAP, is the appropriate authority to make
comparable determinations for regulations to be published in the DFARS,
which is part of the FAR system of regulations.
Given that the requirements of section 802 of the NDAA for FY 2008
were enacted to protect sensitive information provided to DoD
litigation support contractors from unauthorized use and disclosure,
DoD has determined that it is in the best interest of the Federal
Government to apply the rule to contracts for the acquisition of
commercial items, as defined at FAR 2.101. Based on data available in
FPDS for FY 2015, 352 of the 453 total DoD awards for legal support
services were classified as commercial contracts. An exception for
contracts for the acquisition of commercial items, would exclude 78
percent of the contracts intended to be covered by the law, thereby
undermining the overarching public policy purpose of the law.
IV. 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 a significant regulatory action and, therefore, was 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.
V. Regulatory Flexibility Act
DoD does not expect this final 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. However, a final
regulatory flexibility analysis has been prepared and is summarized as
follows:
This rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement statutory authority (10 U.S.C. 129d)
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.
The objective of the rule is to expressly authorize DoD to provide
its ligation support contractors with access to certain types of non-
public information, provided that the ligation support contractors are
required to protect that information from any unauthorized disclosure,
and are prohibited from using that for any purpose other than providing
litigation support services to DoD.
No significant issues were raised by the public comments in
response to the initial regulatory flexibility analysis published with
the interim rule.
According to data available in the Federal Procurement Data System
for fiscal year 2015, DoD awarded 453 total contracts for legal support
services to 212 unique vendors. Of those awards, 340 awards or 75
percent were made to 162 small businesses.
The rule imposes no reporting, recordkeeping, or other information
collection requirements; rather, the rule subjects litigation support
contractors to certain restrictions on using and disclosing litigation
support information. DoD organizations 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 organizations
will likely review their current practices and make any necessary
modifications to ensure that there are no inconsistencies with the new
requirements. As such, DoD does not expect the rule to have a
significant economic impact on the small businesses affected by this
rule.
There are no known significant alternatives to the rule. The impact
of this rule on small business is not expected to be significant.
VI. 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).
List of Subjects in 48 CFR Parts 204, 209, 212, 227, 237, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, the interim rule amending 48 CFR parts 204, 212, 227,
237, and 252 which was published at 79 FR 11338 on February 28, 2014,
is adopted as a final rule with the following changes:
0
1. The authority citation for 48 CFR parts 204, 209, 212, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 204--ADMINISTRATIVE MATTERS
0
2. Section 204.7401 is revised to read as follows:
204.7401 Definitions.
As used in this subpart--
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
[[Page 28728]]
contractor by or on behalf of the Government, or that is generated or
obtained by the contractor in the performance of litigation support
under a contract. The term does not include information that is
lawfully, publicly available without restriction, including information
contained in a publicly available solicitation.
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 its
experts, technical consultants, subcontractors, and suppliers)
providing litigation support under a contract that contains the clause
at 252.204-7014, Limitations on the Use or Disclosure of Information by
Litigation Support Contractors.
Sensitive information means controlled unclassified 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.
0
3. Section 204.7402 is amended by adding paragraphs (c) and (d) to read
as follows:
204.7402 Policy.
* * * * *
(c) Information that is publicly available without restriction,
including publicly available solicitations for litigation support
services, will not be protected from disclosure as litigation
information.
(d) When sharing sensitive information with a litigation support
contractor, contracting officers shall ensure that all other applicable
requirements for handling and safeguarding the relevant types of
sensitive information are included in the contract (e.g., FAR subparts
4.4 and 24.1; DFARS subparts 204.4 and 224.1).
0
4. Section 204.7403 is revised to read as follows:
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 Offerors, in all
solicitations for contracts that involve litigation support services,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items.
(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 that involve litigation support services,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial items.
(c) Use the clause at 252.204-7015, Notice of Authorized Disclosure
of Information for Litigation Support, in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items.
PART 209--CONTRACTOR QUALIFICATIONS
0
5. Amend section 209.505-4 by--
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a. Redesignating paragraph (b) as paragraph (b)(i);
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b. In newly resdesignated paragraph (b)(i), removing ``For
contractors'' and adding ``For contractors, other than litigation
support contractors,'' in its place; and
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c. Adding new paragraph (b)(ii).
The addition reads as follows:
209.505-4 Obtaining access to proprietary information.
(b) * * *
(ii) For litigation support contractors accessing litigation
information, including that originating from third parties, use and
nondisclosure requirements are addressed through the use of the
provision at 252.204-7013 and the clause at 252.204-7014, as prescribed
at 204.7404(a) and 204.7404(b), respectively. Pursuant to that
provision and clause, litigation support contractors are not required
to enter into nondisclosure agreements directly with any third party
asserting restrictions on any litigation information.
PART 212--SOLICITATION PROVISIONS AND CONTRACT CLAUSES FOR THE
ACQUISITION OF COMMERCIAL ITEMS
212.301 [Amended]
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6. Amend section 212.301 by--
0
a. In paragraph (f)(ii)(E), removing the term ``Solicitation''; and
0
b. In paragraph (f)(ii)(G), removing ``Disclosure of Information to
Litigation Support Contractors'' and adding ``Notice of Authorized
Disclosure of Information for Litigation Support'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. Amend section 252.204-7013 by--
0
a. Revising the section heading.
0
b. In the clause heading, removing ``Support Solicitation Offerors''
and adding ``Support Offerors'' in its place;
0
c. Removing the clause date ``(FEB 2014)'' and adding ``(MAY 2016)'' in
its place;
0
d. Revising paragraph (a).
0
e. In the paragraph (b) introductory text, adding ``that'' after
``acknowledges'';
0
f. In paragraph (b)(1), removing ``That all'' and adding ``All'' in its
place;
0
g. In paragraph (b)(2), removing ``That the'' and adding ``The'' in its
place;
0
h. In paragraph (b)(3), removing ``That'' and adding ``The'' in its
place and removing ``contracts.'' and adding ``contracts; and'' in its
place;
0
i. Adding paragraph (b)(4); and
0
j. In paragraph (c)(2), removing ``such data or software, for the
unauthorized duplication, release, or disclosure'' and adding ``such
litigation information, for any such unauthorized use or disclosure''
in its place.
The revisions and addition read as follows:
252.204-7013 Limitations on the Use or Disclosure of Information by
Litigation Support Offerors.
* * * * *
(a) Definitions. As used in this provision--
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 under a contract. The term does not
include information that is lawfully, publicly available without
restriction, including information contained in a publicly available
solicitation.
Litigation support means administrative, technical, or professional
services provided in support of the Government during or in
anticipation of litigation.
Sensitive information means controlled unclassified information of
a
[[Page 28729]]
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) * * *
(4) Upon completion of the authorized litigation support
activities, the Offeror will destroy or return to the Government at the
request of the Contracting Officer all litigation information in its
possession.
* * * * *
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8. Amend section 252.204-7014 by--
0
a. In the clause heading, removing the clause date ``(FEB 2014)'' and
adding ``(MAY 2016)'' in its place;
0
b. In paragraph (a), revising the introductory text and the definitions
of ``Litigation information'', ``Litigation support contractor'', and
``Sensitive information'';
0
c. Revising paragraph (b);
0
d. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e),
and (f);
0
e. Adding a new paragraph (c);
0
f. In newly redesignated paragraph (d)(2), removing ``such data or
software, for the unauthorized duplication, release, or disclosure''
and adding ``such litigation information, for any such unauthorized use
or disclosure'' in its place; and
0
g. In newly redesignated paragraph (f), removing ``this paragraph (e)''
and add ``this paragraph (f)'' in its place.
The revisions and addition read as follows:
252.204-7014 Limitations on the Use or Disclosure of Information by
Litigation Support Contractors.
* * * * *
(a) Definitions. As used in this clause--
* * * * *
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 under a contract. The term does not
include information that is lawfully, publicly available without
restriction, including information contained in a publicly available
solicitation.
* * * * *
Litigation support contractor means a contractor (including its
experts, technical consultants, subcontractors, and suppliers)
providing litigation support under a contract that contains this
clause.
Sensitive information means controlled unclassified 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) Limitations on use or disclosure of litigation information.
Notwithstanding any other provision of this contract, the Contractor
shall--
(1) Access and use litigation information only for the purpose of
providing litigation support under this contract;
(2) Not disclose litigation information to any entity outside the
Contractor's organization unless, prior to such disclosure the
Contracting Officer has provided written consent to such disclosure;
(3) Take all precautions necessary to prevent unauthorized
disclosure of litigation information;
(4) Not use litigation information to compete against a third party
for Government or nongovernment contracts; and
(5) Upon completion of the authorized litigation support
activities, destroy or return to the Government at the request of the
Contracting Officer all litigation information in its possession.
(c) Violation of paragraph (b)(1),(b)(2), (b)(3), (b)(4), or (b)(5)
of this clause is a basis for the Government to terminate this
contract.
* * * * *
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9. Amend section 252.204-7015 by--
0
a. Revising the section heading, introductory text, the clause heading,
and paragraph (a); and
0
b. In the paragraph (b) heading, removing ``Authorized disclosure'' and
adding ``Notice of authorized disclosures'' in its place.
The revision read as follows:
252.204-7015 Notice of Authorized Disclosure of Information for
Litigation Support.
As prescribed in 204.7403(c), use the following clause:
Notice of Authorized Disclosure of Information for Litigation Support
(May 2016)
(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 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 its
experts, technical consultants, subcontractors, and suppliers)
providing litigation support under a contract that contains the clause
at 252.204-7014, Limitations on the Use or Disclosure of Information by
Litigation Support Contractors.
Sensitive information means controlled unclassified 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.
* * * * *
[FR Doc. 2016-10822 Filed 5-9-16; 8:45 am]
BILLING CODE 5001-06-P
