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DFARS Rule Authorizes Access to Proprietary Contractor Data

An interim rule issued by the Department of Defense amends the Defense Federal Acquisition Regulation Supplement to implement Section 821 of the National Defense Authorization Act for Fiscal Year 2010 (PL 111-84). Section 821 authorizes certain types of support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, and allows the technical data owner to require the support contractor to execute a nondisclosure agreement with restrictions and remedies. Section 821 also authorizes limited releases of otherwise proprietary data to certain contractors that directly support the government's management and oversight of programs, and the rule defines these contractors as "covered Government support contractors." This new definition, which tracks 10 USC 2320(f), is inserted in the clauses at DFARS 252.227-7013 through DFARS 252.227-7015 and DFARS 252.227-7018. These revised clauses cross-reference revised DFARS 252.227-7025, which contains the required nondisclosure restrictions. The rule also revises these clauses to incorporate specific additional requirements that support and implement Section 821.

Mandatory NDAs

Section 821 also mandates specific restrictions for CGSCs that receive proprietary technical data, to ensure this use does not threaten the data owner's competitive advantage, and to provide the data owner with a more direct legal remedy against the CGSC for any breach of use restrictions. Accordingly, new DFARS 209.505-4 provides that pursuant to the DFARS 252.227-7025 clause, CGSCs may be required to enter into NDAs directly with the third party asserting restrictions on limited rights technical data, commercial technical data, or restricted rights computer software. Other revisions to DFARS 252.227-7025 state the third-party owner of the proprietary data or software has the sole discretion to require an NDA, and address the use of government-furnished information marked with commercial restrictive legends. Finally, the rule makes editorial changes. A full list of the provisions affected by the rule appears in the regulation table below. The effective date of the interim rule is March 2, 2011, and comments referencing DFARS Case 2009-D031 are due May 2, 2011. For the text of the rule, see 70,016.626.




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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