Procurement Information Circular
January 25, 2006
CONTRACTOR ACCESS TO SENSITIVE INFORMATION
PURPOSE: To provide guidance to contracting officers in dealing with requests for access to sensitive information submitted under contracts that did not contain the clause at 1852.237-73, Release of Sensitive Information.
BACKGROUND: PN 04-05, dated June 21, 2005, provided new NASA Federal Acquisition Regulation (FAR) Supplement (NFS) coverage on the acquisition of services to support management activities and administrative functions when providing that support will necessitate that the service provider have access to “sensitive” information submitted by other contractors. The NFS revisions defined the term “sensitive” and described the type of information that is entitled to protection. The revisions also prescribed two reciprocal implementing clauses. The first, “Access to Sensitive Information,” is included in all solicitations and contracts for services that may require access to sensitive information belonging to other companies or generated by the Government. This “Access” clause requires each service provider to limit its use of sensitive information to certain purposes specified in its contract, to train its employees in effective techniques and procedures to safeguard the information, and to obtain an affirmation from each employee regarding the training and his/her obligations to protect sensitive information submitted by other contractors. The second clause, “Release of Sensitive Information,” is included in all solicitations, contracts, and basic ordering agreements. Through the “Release” clause, the owner of sensitive information expressly consents to its release to a service provider subject to specific safeguards and protections enumerated in the “Access” clause.
Because the new policy and procedures rely on implementing clauses, these NFS revisions can operate prospectively only. NASA also possesses a large amount of information submitted under contracts that did not contain the new “Release” clause. Consequently, there is no clear record with regard to information submitted under these circumstances whether each owning contractor considers the information to be sensitive and entitled to protection. Without the “Release” clause, there is also no clear indication whether the owning contractor has consented to NASA releasing this information to service providers. Accordingly, this PIC provides guidance to contracting officers in dealing with requests from service providers for access to information that is not subject to the “Release” clause.
GUIDANCE: For the near term, NASA anticipates that service providers will request information submitted under contracts that did not contain the “Release” clause. To minimize the burden of these requests, contracting officers should be proactive and review all their open contracts, identify any that do not contain the “Release” clause, and propose contract modifications to incorporate the new clause. In many circumstances, the clause, with its enumerated protections and affirmations, may represent the fairest and most realistic way that NASA can continue to make necessary information available to support important Agency operations.
If a service provider requests access to certain “sensitive” information, yet the owning contractor resists a contract modification to incorporate the “Release” clause, the contracting officer should take the following steps to sharpen the issues and explore all reasonable bases for resolving the disagreement:
(1) The contracting officer should contact the requiring organization to examine the requested information and determine whether it bears any markings or other indications that the owning contractor considers the information sensitive and entitled to protection.
(2) If the information appears to be entitled to protection, but the objection to the “Release” clause remains firm, the contracting officer should consult with the requiring organization regarding the validity and extent of the service provider’s need for the information. On closer examination, the available evidence may not establish a valid need for any of the information and the contracting officer should resolve the matter with the service provider. If the available evidence supports a need for access to some lesser amount of information than the service provider has requested, it may be possible to structure an agreement with the owning contractor for some reduced level of access and enhanced terms of protection.
(3) If the service provider establishes a valid need for all of the information requested, the contracting officer should scrutinize whether the owning contractor is reasonably entitled to protection. Whether information is sensitive and entitled to protection are questions that can frequently lead to litigation. In evaluating the parties’ competing interests, therefore, the contracting officer should consult with Center counsel.
(4) Ultimately, the owning contractor may not convince the contracting officer that the information is “sensitive” and entitled to protection. If so, the contracting officer, with the advice of Center counsel, shall notify the owning contractor that NASA intends to release the information to the service provider by a date certain. This notice should allow the owning contractor a reasonable amount of time to supply additional evidence or take legal steps to resist release of the information to the service provider.
EFFECTIVE DATE: This PIC is effective as dated and shall remain in effect until cancelled or superseded.
HEADQUARTERS CONTACT: David Forbes, Contract Management Division, (202) 358-2051, email: firstname.lastname@example.org.
Acting Director, Contract Management Division