[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]
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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.
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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:
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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
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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.
* * * * *
0
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