48 C.F.R. § 9.505-4

9.505-4 Obtaining access to proprietary information.

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(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.

[48 FR 42142, Sept. 19, 1983, as amended at 55 FR 42686, Oct. 22, 1990; 56 FR 55377, Oct. 25, 1991; 62 FR 235, Jan. 2, 1997; 84 FR 19846, May 6, 2019]

Notes of Decisions

Cited in 7 cases, 1985–2011 · leading case: Turner Constr. Co., Inc. v. United States, 94 Fed. Cl. 561 (Fed. Cl. 2010).

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Turner Constr. Co., Inc. v. United States, 94 Fed. Cl. 561 (Fed. Cl. 2010). “See 48 C.F.R. § 9.505-4 . First, a firm must have access to “nonpublic information” while performing a government contract.”

Vantage Assocs., Inc. v. United States, 59 Fed. Cl. 1 (Fed. Cl. 2003). “48 C.F.R. § 9.505-4 (2002); see, e.g., Aetna Gov’t Health Plans, Inc.”

Geo Grp., Inc. v. United States, 100 Fed. Cl. 223 (Fed. Cl. 2011). “Among the organizational conflicts of interest identified by the FAR are those involving unequal access to information, which arise when the contractor has access to “[sjouree selection information .”

Axiom Resource Mgmt., Inc. v. United States, 78 Fed. Cl. 576 (Fed. Cl. 2007). “See 48 C.F.R. § 9.505-4 ; see also Aetna Gov't Health Plans, Inc.”

Medco Behavioral Care Corp. of Iowa v. State Dep't of Human Servs., 553 N.W.2d 556 (Iowa 1996). “48 C.F.R. § 9.505-4 ; Aetna, 74 Comp.Gen.”

Axiom Resource Mgmt., Inc. v. United States, 80 Fed. Cl. 530 (Fed. Cl. 2008). “See 48 C.F.R. § 9.505-4 ; see also Aetna Gov't Health Plans, Inc.”

Informatics Gen. Corp. v. Weinberger, 617 F. Supp. 331 (D.D.C. 1985). “This contract restriction was consistent with the provisions of 48 C.F.R. § 9.505-4 (a). 9 . DOD has arranged for another contractor to perform Task 1 of the SETAC contract with respect to CHCS; however, EDS will perform Task 1 with respect to other aspects of the TRIMIS program.”

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