9.505-4 Obtaining access to proprietary information
Source: FAR 9.505-4 on acquisition.gov
Contractors must protect proprietary information obtained during contract performance and avoid using it for unfair competitive advantage, with strict agreements and oversight required.
Overview
FAR 9.505-4 addresses the handling of proprietary information by contractors who require access to such information to perform government contracts. The regulation aims to prevent contractors from gaining unfair competitive advantages by leveraging proprietary data obtained during contract performance. It establishes requirements for protecting proprietary information, particularly when contractors perform advisory and assistance services or use marketing consultants who may have access to sensitive data.
Key Rules
- Restrictions on Use of Proprietary Information
- Contractors must not use proprietary information obtained through government contracts to gain an unfair competitive advantage, unless the information is voluntarily provided without restrictions or is otherwise publicly available.
- Protection Agreements
- Contractors accessing proprietary information during advisory and assistance services must enter into agreements with the information owners to protect it from unauthorized use or disclosure and use it only for its intended purpose. Contracting officers must obtain and verify these agreements.
- Marketing Consultants
- Contractors must ensure that marketing consultants have not provided them with an unfair competitive advantage by sharing proprietary or source selection information.
Responsibilities
- Contracting Officers: Must obtain and review executed protection agreements between contractors and information owners.
- Contractors: Must protect proprietary information, use it only as intended, and ensure marketing consultants have not created unfair advantages.
- Agencies: Oversee compliance and ensure proper documentation is in place.
Practical Implications
This section exists to foster fair competition and protect sensitive business information during government contracting. Contractors must be vigilant in handling proprietary data, execute proper agreements, and vet consultants to avoid conflicts of interest or procurement integrity violations. Failure to comply can result in protests, contract disputes, or loss of contracting opportunities.
(a) When a contractor requires proprietary information from others to perform a Government contract and can use the leverage of the contract to obtain it, the contractor may gain an unfair competitive advantage unless restrictions are imposed. These restrictions protect the information and encourage companies to provide it when necessary for contract performance. They are not intended to protect information-
(1) Furnished voluntarily without limitations on its use; or
(2) Available to the Government or contractor from other sources without restriction.
(b) A contractor that gains access to proprietary information of other companies in performing advisory and assistance services for the Government must agree with the other companies to protect their information from unauthorized use or disclosure for as long as it remains proprietary and refrain from using the information for any purpose other than that for which it was furnished. The contracting officer shall obtain copies of these agreements and ensure that they are properly executed.
(c) Contractors also obtain proprietary and source selection information by acquiring the services of marketing consultants which, if used in connection with an acquisition, may give the contractor an unfair competitive advantage. Contractors should make inquiries of marketing consultants to ensure that the marketing consultant has provided no unfair competitive advantage.