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NDA with Govenment Personnel

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As a Government contractor, at times, we have new science and technical approaches we will like to share with the Government. At times, we have executed Non-Disclosure Agreements (NDAs) between the Government and my company. Recently, our NDA staffer stated the following: "When I was working on an NDA with a Navy organization, we were advised that under 18 USC Sec 1905 ? Government employees are prohibited from disclosing company proprietary information provided such information is marked as proprietary and qualifies as proprietary. Therefore, I was advised there is no reason for any Government employee to sign an NDA."

This is new to me; however, it does make sense but how many Government employee can site you the USC and are aware of their responsibilities. Just trying to get your feedback. Thanks.

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Who signs the NDA and in what capacity?

Are individual government employees signing the NDAs in their personal capacities? If so, do you find these particularly useful? I've never been able to find a reported case where a company successfully sued an individual government employee for breaching a nondisclosure agreement. What would you do if the individual employee refused to sign?

Are you asking anyone to sign on behalf of the government? If so, I hope you're asking someone with a warrant, but they would probably know better than to sign. While you are correct that the Trade Secrets Act places limits on the ability of the government and government employees to release information that falls within its protections, whether the information that you believe is a trade secret actually is is another matter. I'm sure a number of companies have been surprised by what was released over their objections in response to a Freedom of Information Act request. If the information is not a trade secret, then it is probably releasable under FOIA. Given that FOIA is statutory, and the government generally can't contract away its obligations under FOIA, how does the NDA provide greater protection than in its absence?

Perhaps companies seek NDAs out with the government not for the legal effectiveness, but as moral persuasion.

The key IMHO is to avoid having company information make its way into government records, or to so limit the government's rights in the information such that it doesn't qualify as a government record. Limitations on data rights in any deliverable would likely provide better protection than an NDA, if you have a procurement contract. Cooperative research and development agreements (CRADAs) may provide another mechanism for the government to acknowledge is limited ownership in any data provided under an agreement, if your circumstances permit using a CRADA.

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Here is the text of 18 USC 1905, "Disclosure of confidential information generally":

Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311?1314), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.

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I've seen companies ask government employees to sign NDAs even though I believe everyone was aware of USC 1905. Once was when an agency was conducting market research before finalizing their statement of requirements for an upcoming acquisition. I think the purpose of that NDA was to stress that the company didn't want to see their processes specifically appear as part of the SOW. The other was a company was contemplating an unsolicited proposal. They wanted to get the government's preliminary thoughts and didn't want someone letting competitors know, at least until after they had a contract.

So the NDA was to serve as reminders.

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.

Hey, guy from the Spanish Caribbean,

thanks for asking this.

I recently asked some government employees (Congressional staffers) to sign NDA's on an Unsolicited Proposal and they refused. I wasn't aware of the protections of USC 1905.

I've had trade secrets submitted in an Unsolicited Proposal later show up in a book written by someone who used to collaborate with, but not work for, the agency that received my UP. Somebody in the agency violated these USC 1905 restrictions, but I was too lazy/ poor to pursue it, because I thought my only protection was in FAR 15.6.

This tidbit of information is worth a lot more than what I pay in dues to participate here.

Thanks also to Bob.

.

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Government personnel act in an official capacity and should make no personal commitments to or agreements with contractors. Contractors enter into agreements and contracts with the government, not with government employees. It is up to the Department of Justice to act if a government employee improperly discloses trade secrets or other confidential business information.

Any government employee who signs a nondisclosure agreement written by some contractor is a damned fool. If I were a CO and a contractor asked me to sign a nondisclosure agreement concerning an unsolicited proposal, I cannot tell you the language that I would use in refusing and telling the contractor what to do with, and where to put, its proposal.

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