[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]


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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)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule.

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[[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: http://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 http://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