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Proprietary Information


Soozie

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I have a situation where my USG customer is questioning why I, a corporation, am marking my ECP Tech Props with the standard disclosure legend and has asked that I provide greater clarity to the rationale used in marking my documents. My initial reaction and response is that I must compete for my work and that my business processes are threaded throughout my documents. This USG customer has many contractors supporting them in their evaluation and decision making process and if I understand correctly some of those contractors are not comfortable reviewing our marked documents. That being said I have a Nondisclosure of Sensitive and/or Proprietary Data clause in my contract that requires all who do this type of review sign NDA's with USG and be firewalled. I asked USG to help me understand what they thought was not proprietary but instead have been tasked with writing up my position on why I do not want to remove my proprietary legends. Is there a really good reference site I can go to as I craft my position?

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Guest Vern Edwards
I have a situation where my USG customer is questioning why I, a corporation, am marking my ECP Tech Props with the standard disclosure legend and has asked that I provide greater clarity to the rationale used in marking my documents. My initial reaction and response is that I must compete for my work and that my business processes are threaded throughout my documents. This USG customer has many contractors supporting them in their evaluation and decision making process and if I understand correctly some of those contractors are not comfortable reviewing our marked documents. That being said I have a Nondisclosure of Sensitive and/or Proprietary Data clause in my contract that requires all who do this type of review sign NDA's with USG and be firewalled. I asked USG to help me understand what they thought was not proprietary but instead have been tasked with writing up my position on why I do not want to remove my proprietary legends. Is there a really good reference site I can go to as I craft my position?

You have not provided enough information. Do you have one or more "rights in data" clauses in your contract? They would begin with FAR 52.227 or DFARS 252.227. The answer to your question depends on the data clauses in your contract.

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Guest Vern Edwards
Apologies, I have several clauses 52-227-1, 2, 3, 11 and 252-227-7013, 14, 15, 16, 17, 19, 20, 21, 25, 26, 27, 28, 34, 36 & 37.

The first four clauses are patent rights clauses, not data rights clauses. Do you have a patent issue, a data issue, or both?

Before we go any further I have two questions:

1. Are you a trainee, intern, or "newbie"?

2. Have you read the DFARS data rights clauses? If so, do you think you understand them?

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You have not provided enough information. Do you have one or more "rights in data" clauses in your contract? They would begin with FAR 52.227 or DFARS 252.227. The answer to your question depends on the data clauses in your contract.
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New to this aspect and DoD. We were a PPP -- infrastructure, O&M, IT services. I am struggling with who covered the processes development, leaning toward mixed funding, so initially government purposes rights now unlimited rights. No I am not fully grasping all of this and am quite frustrated.

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Guest Vern Edwards
New to this aspect and DoD. We were a PPP -- infrastructure, O&M, IT services. I am struggling with who covered the processes development, leaning toward mixed funding, so initially government purposes rights now unlimited rights. No I am not fully grasping all of this and am quite frustrated.

Soozie:

I say this with kind intentions--you should not be working this problem on behalf of your company. Data rights is one of the most complex topics in Government contracting and is a field for experts. Having said that, read the clause at DFARS 252.227-7013. It contains the rules about what the contractor can and cannot mark as proprietary. Specifically, see paragraph (e), "Identification and delivery of data to be furnished with restrictions on use, release, or disclosure," and (f), "Marking requirements." Key subparagraphs are (e)(2) and (3), which read:

(2) Except as provided in paragraph (e)(3) of this clause, technical data that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure are identified in an attachment to this contract (the Attachment). The Contractor shall not deliver any data with restrictive markings unless the data are listed on the Attachment.

(3) In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision. Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the data... .

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Thank you for you for your response and kind words.

My 252.227-7013 clause is only referenced in Section I and I do not have an attachment to the contract in reference to this. So my dilemma is still the same I take no issue with USG using my data for their purposes but I do not want it to be disseminated to other contractors, who may or may not have executed NDA's, without some form of proprietary marking. This one is a tuffie!!

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