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Trade Secrets Act & Disclosure of Proposal Proprietary Information


govt2310

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IAW FAR 3.104-7, a PIA Violation is when disclosure was on purpose and it occurred before award.  What if an 1102 employee purposely discloses contractor proposal information after award?  That would not be a PIA Violation.  However, it has to be a violation of some other law(s).  Trade Secrets Act? FOIA?  But there must other laws than that.  Also, what if the 1102 inadvertently discloses this information after award?

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@govt2310See FAR 3.104-2(b)(5) and 18 USC 1905:

Quote

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.

You've been around long enough to have been able to find that for yourself.

If you did it inadvertently, tell your boss and call your lawyer. If the government doesn't come after you the contractor might. They both might.

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Thanks, Vern.  By the way, it wasn't me.  The Trade Secrets Act 18 USC 1905 says "shall be fined . . . or imprisoned not more than one year, or both" and "shall be removed from office or employment."  What I don't understand is, I am familiar with stories ("cautionary tales") of these types of inadvertent disclosures happening at various federal agencies.  The information disclosed in many of those instances seemed to fit the term "trade secret," yet I do not recall ever hearing of a federal agency firing the federal employee that disclosed the information.  I do not even recall them transferring the person to a different position or "office" or losing their CO warrant.  Yet, the statute says "shall be removed from office or employment."  Even in the DoD OIG Report on the Amazon JEDI scandal, there was no mention of a violation of the Trade Secrets Act, a recommendation that the employees involved "shall be removed from office or employment," etc.  It did state that the leadership involved should investigate whether administrative action was appropriate, but that's it.  It didn't specifically cite the Trade Secrets Act.  I can't find an example of an 1102 at any agency that was actually fired for a TSA violation.  I find this very strange.

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govt2310, 18 USC 1905 is a criminal statute, so a matter would have to be treated criminally (rather than civilly) to reach that penalty.  Regarding DOJ's prosecution of cases under 18 USC 1905, you will be interested to read https://www.justice.gov/archives/jm/criminal-resource-manual-1665-protection-government-property-disclosure-confidential-government

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7 hours ago, govt2310 said:

What I don't understand is, I am familiar with stories ("cautionary tales") of these types of inadvertent disclosures happening at various federal agencies.  The information disclosed in many of those instances seemed to fit the term "trade secret," yet I do not recall ever hearing of a federal agency firing the federal employee that disclosed the information. 

What does that suggest to you? In another thread, Carl Culham provided a link to the Army Staff Judge Advocate's Contract Attorney Desk Book, 2022. In its 1,521 pages it mentions the Trade Secrets Act nine times, each mention being very brief. A sentence or two.

You obviously have access to the internet. If you are curious, do some research. But you can learn something from the ongoing brouhaha about two presidents and a vice president (and probably more to come) who mishandled information that they should have properly safeguarded. Instead of researching the Trade Secrets Act, which is only one of myriad laws about the handling of information, I suggest that you and your coworkers focus on making sure that you don't mishandle contractor and government information in your possession, because you can't afford the number and quality of lawyers that those guys have.

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As ji20874 points out, 18 USC 2905 is a criminal statute, and courts have ruled its application requires proof of criminal intent (mens rea) on the part of the accused.  Thus, "inadvertent" disclosures do not meet its requirements.

As stated by the Fifth Circuit in United States v. Wallington, 889 F.2d 573, 578 (5th Cir. 1989) (and cited in the DoJ link, above), "We do not believe that Congress intended to create strict criminal liability and impose prison sentences of up to one year for innocent disclosures of information. Nothing in the scant legislative history of section 1905 gives any hint that such a harsh result was intended. In the absence of strong indicia to that effect, we are unable to conclude that Congress meant to depart from the implicit background assumption that mens rea is required to commit a crime."

 

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Thanks, Vern!  The JAG Contract Attorney Desk Book (2022) is listed on this site, https://tjaglcs.army.mil/publications.  And here is the exact PDF, https://tjaglcs.army.mil/documents/35956/56922/2022+Contract+Attorney+Deskbook.pdf/9a2d2125-61b4-7dbe-8e1c-5ccf1339d9dd?t=1657901660444.  Yes, I did a keyword search for "Trade Secrets Act," and it appears 9 times.  However, they are almost all in the chapter on Intellectual Property and shed no light on actual examples of federal employees that were fired for inadvertent disclosure.

Thanks, bosgood!  I will look at the Wallington decision.

Edited by govt2310
Fix typo
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