Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Rules and Regulations 11337 

Authorization Act for Fiscal Year 2013. 

Section 827 amends 10 U.S.C. 2409 and 

10 U.S.C. 2324(k), making the changes 

applicable to DoD and NASA. Each 

agency is amending its FAR 

supplement. This analysis pertains only 

to the DFARS final rule. DFARS is 

revising subpart 203.9, ‘‘Whistleblower 

Protections for Contractor Employees.’’ 

The subpart covers the policy, 

procedures for filing and investigating 

complaints, remedies, and the 

prescription for the clause at DFARS 

252.203–7002, entitled ‘‘Requirement to 

Inform Employees of Whistleblower 

Rights.’’ 

The rule applies to all entities, small 

as well as large, at the prime contract 

and subcontract level. However, not all 

entities will have a situation that 

requires an employee to use the 

whistleblower provisions, and there is 

no way to predict the potential number 

of whistleblowers in advance. However, 

a small entity could be impacted by a 

whistleblower employee either as a 

Government prime contractor or 

subcontractor. In addition, the impact 

on an entity is directly related to the 

seriousness of the alleged wrongdoing. 

No comments were received from the 

public on the Regulatory Flexibility 

analysis. No comments were received 

from the Chief Counsel for Advocacy of 

the Small Business Administration. 

There are no reporting requirements 

associated with this rule. However, a 

firm accused of retaliating against an 

employee whistleblower is likely to be 

required to furnish human resources 

documentation to disprove the 

accusation. This documentation, 

however, would only be required in the 

course of an investigation of the 

accusation, not as a result of a contract 

clause. 

There are no alternatives to this rule. 

Because of the terms used in the statute, 

DoD is unable to exempt small entities 

or establish a dollar threshold for 

coverage. Regardless of the size of the 

business, a whistleblower employee 

must be protected from retaliation by 

his/her employer. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 203 and 

252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Accordingly, the interim rule 

amending 48 CFR parts 203 and 252, 

which was published in the Federal 

Register at 78 FR 59851 on September 

30, 2013, is adopted as a final rule with 

the following changes: 

PART 203—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 1. The authority citation for 48 CFR 

part 203 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Section 203.900 is amended by— 

■ a. Adding introductory text; 

■ b. Redesignating paragraphs (a) and 

(b) as paragraphs (1) and (2); and 

■ c. In redesignated paragraph (2), 

further redesignating paragraphs (1) and 

(2) as paragraphs (2)(i) and (ii). 

The addition reads as follows: 

203.900 Scope of subpart. 

This subpart applies to DoD instead of 

FAR subpart 3.9. 

* * * * * 

203.901 [Amended] 

■ 3. Section 203.901 heading is 

amended by removing ‘‘Definition’’ and 

adding in its place ‘‘Definitions’’. 

■ 4. Section 203.903 is amended by— 

■ a. Revising paragraph (1); 

■ b. Redesignating paragraphs (2), (3), 

and (4) as paragraphs (3), (4), and (5), 

respectively; and 

■ c. Adding a new paragraph (2). 

The revision and addition read as 

follows: 

203.903 Policy. 

(1) Prohibition. 10 U.S.C. 2409 

prohibits contractors and subcontractors 

from discharging, demoting, or 

otherwise discriminating against an 

employee as a reprisal for disclosing, to 

any of the entities listed at paragraph (2) 

of this section, information that the 

employee reasonably believes is 

evidence of gross mismanagement of a 

DoD contract, a gross waste of DoD 

funds, an abuse of authority relating to 

a DoD contract, a violation of law, rule, 

or regulation related to a DoD contract 

(including the competition for or 

negotiation of a contract), or a 

substantial and specific danger to public 

health or safety. Such reprisal is 

prohibited even if it is undertaken at the 

request of an executive branch official, 

unless the request takes the form of a 

non-discretionary directive and is 

within the authority of the executive 

branch official making the request. 

(2) Classified information. As 

provided in section 827(h) of the 

National Defense Authorization Act for 

Fiscal Year 2013, nothing in this subpart 

provides any rights to disclose classified 

information not otherwise provided by 

law. 

* * * * * 

203.904 [Amended] 

■ 5. Section 203.904 is amended by— 

■ a. Redesignating paragraphs (a), (b), 

and (c) as paragraphs (1), (2), and (3), 

respectively; and 

■ b. In the newly redesignated 

paragraph (3), further redesignating 

paragraphs (1), (2), (3), (4), and (5) as 

paragraphs (3)(i), (ii), (iii), (iv), and (v), 

respectively. 

■ 6. Section 203.905 is amended by 

revising paragraph (2) to read as follows: 

203.905 Procedures for investigating 

complaints. 

* * * * * 

(2) If the DoD Inspector General 

investigates the complaint, the DoD 

Inspector General will— 

(i) Notify the complainant, the 

contractor alleged to have committed 

the violation, and the head of the 

agency; and 

(ii) Provide a written report of 

findings to the complainant, the 

contractor alleged to have committed 

the violation, and the head of the 

agency. 

* * * * * 

203.907 [Removed] 

■ 7. Remove Section 203.907. 

[FR Doc. 2014–04158 Filed 2–27–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 212, 227, 237, and 

252 

RIN 0750–AH54 

Defense Federal Acquisition 

Regulation Supplement; Disclosure to 

Litigation Support Contractors (DFARS 

Case 2012–D029) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 


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11338 Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Rules and Regulations 

SUMMARY: DoD is amending the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to implement 

authority for DoD to allow its litigation 

support contractors to have access to 

‘‘sensitive information,’’ provided that 

the litigation support contractor is 

subject to certain restrictions on using 

and disclosing such information. 

DATES: Effective February 28, 2014. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before April 29, 2014, to be 

considered in the formation of a final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2012–D029, 

using any of the following methods: 

Regulations.gov: http://

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inserting 

‘‘DFARS Case 2012–D029’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2012–D029.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2012–D029’’ on your 

attached document. Follow the 

instructions for submitting comments. 

Email: dfars@mail.mil. Include 

DFARS Case 2012–D029 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Mr. Mark Gomersall, 

OUSD(AT&L)DPAP(DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, 703–602–0302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 802 of the National Defense 

Authorization Act for Fiscal Year 2012 

is a successor to section 801 of the 

National Defense Authorization Act for 

Fiscal Year 2011 (Pub. L. 111–383), 

which amended 10 U.S.C. section 2320 

to authorize DoD ‘‘covered litigation 

support contractors’’ to have access to 

and use of any technical, proprietary, or 

confidential data delivered under a 

contract for the sole purpose of 

providing litigation support. Section 

802 amended 10 U.S.C. to add section 

129d, repealed section 801 of the 

National Defense Authorization Act for 

Fiscal Year 2011, and expanded the 

basic coverage first established in 

section 801 to cover a significantly 

broader class of ‘‘sensitive information,’’ 

which is defined as ‘‘confidential 

commercial, financial, or proprietary 

information, technical data, or other 

privileged information.’’ 

II. Discussion and Analysis 

The basic objective of the rule is to 

expressly authorize DoD to provide its 

litigation support contractors with 

access to certain types of non-public 

information, provided that the litigation 

support contractors are required to 

protect that information from any 

unauthorized disclosure, and are 

prohibited from using that information 

for any purpose other than providing 

litigation support services to DoD. 

New DFARS subpart 204.74, 

Disclosure of Information to Litigation 

Support Contractors, along with its 

associated new clauses, provides the 

policy governing the new subpart in a 

two pronged implementation approach: 

• DoD is authorized to release 

litigation information, including 

sensitive information, to its litigation 

support contractors provided that the 

litigation support contractors are subject 

to appropriate requirements and 

restrictions that comply with the 

requirements of 10 U.S.C. section 129d. 

• Although not required by the 

statute, DoD will, to the maximum 

extent practicable, ensure that offerors 

and contractors submitting information 

to DoD under solicitations and contracts 

will be notified that the submitted 

information may be disclosed to DoD’s 

litigation support contractors under the 

aforementioned conditions. 

The new clause at 252.204–7014, 

Limitations on the Use or Disclosure of 

Information by Litigation Support 

Contractors, is the mechanism through 

which the requirements and restrictions 

of 10 U.S.C. section 129d are applied to 

litigation support contractors. 

Furthermore, new DFARS clause 

252.204–7015, Disclosure of Information 

to Litigation support Contractors, 

requires litigation support contractors to 

treat any and all information provided 

to, or obtained by, the litigation support 

contractor as sensitive information, 

regardless of whether that information is 

marked with a restrictive legend. While 

not obviating the need, desire, or value 

of using restrictive legends on sensitive 

information, this approach ensures the 

protection of all sensitive information, 

even when inadvertent error or 

oversight results in a restrictive legend 

being omitted from the information. 

The new solicitation provision at 

252.204–7013, Limitations on the Use or 

Disclosure of Information by Litigation 

Support Solicitation Offerors, sets forth 

the same limitations and notifications in 

252.204–7014 for litigation support 

solicitation offerors. 

The new clause at 252.204–7015, 

Disclosure of Information to Litigation 

Support Contractors, implements the 

second of the two-prong policy 

approach by providing notice to all 

offerors and contractors that information 

they may submit to DoD may be 

disclosed to litigation support 

contractors. The notice clarifies that 

such releases to litigation support 

contractors are authorized 

notwithstanding any other provision of 

the contract. This notice is not required 

by the statute, nor is it otherwise 

required as a condition of DoD being 

authorized to make the disclosures 

covered by 10 U.S.C. section 129d. The 

notice is provided as a desired best 

practice when DoD will be receiving 

potentially sensitive information from 

its offerors or contractors, to ensure that 

the submitters are aware of this 

potential, statutorily authorized release 

in connection with litigation support 

services. 

The term ‘‘litigation information’’ is 

created to capture all information that is 

generated or obtained by the litigation 

support contractor in providing the 

litigation support services to DoD, 

including but not limited to sensitive 

information. The creation of the new 

term ‘‘litigation information’’ was 

particularly important for the 

implementation of this approach. The 

foundation of litigation support services 

is based in large part on the 

understanding that any or all 

information involved in providing these 

services must be treated as sensitive, 

official use only information, which 

cannot be shared with any unauthorized 

persons or used for any other purpose 

without careful review and approval by 

the appropriate Government officials. 

To avoid any potential confusion 

regarding the application of 

requirements for ‘‘covered Government 

support contractors’’ to ‘‘litigation 

support contractors,’’ a parenthetical 

exclusion of litigation support 

contractors from such requirements is 

added at: 227.7103–6(c) and 227.7203– 

6(d); and 252.227–7013(a)(5), 252.227– 

7014(a)(6), 252.227–7015(a)(2), and 

252.227–7018(a)(6). 


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III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of the rule is to 

implement authority for DoD to allow 

its litigation support contractors to have 

access to sensitive information, 

provided that the litigation support 

contractor is subject to certain 

restrictions on using and disclosing 

such information. 

DoD does not expect this interim rule 

to have a significant economic impact 

on a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because DoD activities using litigation 

support contractors are generally 

already using very restrictive 

nondisclosure agreements to govern any 

sensitive information that may be 

provided to, or developed or discovered 

by, the litigation support contractors in 

providing litigation support services for 

DoD. These DoD activities will likely 

review their current practices and make 

any necessary modifications to ensure 

that there are no inconsistencies with 

the new requirements. However, at this 

time DoD is unable to estimate the 

number of small entities to which this 

rule will apply. Therefore, DoD invites 

comments from small business concerns 

and other interested parties on the 

expected impact of this rule on small 

entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2012–D029) in 

correspondence. 

V. Paperwork Reduction Act 

The rule contains no new information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the Paperwork 

Reduction Act (44 U.S.C. chapter 35). 

VI. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. Section 802 amends title 10, 

United States Code (U.S.C.), by adding 

section 129d to authorize an exception 

to the statutory scheme that would 

otherwise prohibit Government 

litigation support contractors from 

accessing or using sensitive information, 

defined as ‘‘confidential commercial, 

financial, or proprietary information, 

technical data, or other privileged 

information,’’ belonging to prime 

contractors and other third parties, 

provided that the support contractor is 

subject to appropriate non-disclosure 

and use restrictions. Additionally, 10 

U.S.C. 129d mandates specific 

restrictions for the litigation support 

contractors that will receive the 

sensitive information, to ensure that this 

use does not threaten the data owner’s 

competitive advantage due to the 

proprietary information, and to provide 

the data owner with a legal remedies 

against the support contractor for any 

breach of those use restrictions. Failure 

to issue this rule as an interim rule will 

severely impact the Government’s 

ability to obtain administrative, 

technical or professional services, 

including expert or technical 

consultation, in support of the 

Government during or in anticipation of 

litigation, thereby adversely affecting 

the Government’s ability to successfully 

engage in legal proceedings. However, 

pursuant to 41 U.S.C. 1707 and FAR 

1.501–3(b), DoD will consider public 

comments received in response to this 

interim rule in the formation of the final 

rule. 

List of Subjects in 48 CFR Parts 204, 

212, 227, 237, and 252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 204, 212, 227, 

237, and 252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 204, 212, 227, 237, and 252 

continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Add subpart 204.74 to read as 

follows: 

SUBPART 204.74—DISCLOSURE OF 

INFORMATION TO LITIGATION SUPPORT 

CONTRACTORS 

Sec. 

204.7400 Scope of subpart. 

204.7401 Definitions. 

204.7402 Policy. 

204.7403 Solicitation provision and 

contract clauses. 

SUBPART 204.74—DISCLOSURE OF 

INFORMATION TO LITIGATION 

SUPPORT CONTRACTORS 

204.7400 Scope of subpart. 

This subpart prescribes policies and 

procedures for the release and 

safeguarding of information to litigation 

support contractors. It implements the 

requirements at 10 U.S.C. 129d. 

204.7401 Definitions. 

‘‘Litigation support,’’ ‘‘litigation 

support contractor,’’ and ‘‘sensitive 

information,’’ as used in this subpart, 

are defined in the clause at 252.204– 

7014, Limitations on the Use or 

Disclosure of Information by Litigation 

Support Contractors. 

204.7402 Policy. 

(a) Any release or disclosure of 

litigation information that includes 

sensitive information to a litigation 

support contractor, and the litigation 

support contractor’s use and handling of 

such information, shall comply with the 

requirements of 10 U.S.C. 129d. 

(b) To the maximum extent 

practicable, DoD will provide notice to 

an offeror or contractor submitting, 

delivering, or otherwise providing 

information to DoD in connection with 

an offer or performance of a contract 

that such information may be released 

or disclosed to litigation support 

contractors. 

204.7403 Solicitation provision and 

contract clauses. 

(a) Use the provision at 252.204–7013, 

Limitations on the Use or Disclosure of 

Information by Litigation Support 

Solicitation Offerors, in all solicitations, 

including solicitations using FAR part 

12 procedures for the acquisition of 

commercial items, that involve litigation 

support services. 


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11340 Federal Register / Vol. 79, No. 40 / Friday, February 28, 2014 / Rules and Regulations 

(b) Use the clause at 252.204–7014, 

Limitations on the Use or Disclosure of 

Information by Litigation Support 

Contractors, in all solicitations and 

contracts, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial items, 

that involve litigation support services. 

(c) Use the clause at 252.204–7015, 

Disclosure of Information to Litigation 

Support Contractors, in all solicitations 

and contracts, including solicitations 

and contracts using FAR part 12 

procedures for the acquisition of 

commercial items, that involve litigation 

support services and do not include the 

clause at 252.204–7014, Limitations on 

the Use or Disclosure of Information by 

Litigation Support Contractors. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 3. Amend section 212.301 by— 

■ a. Redesignating paragraphs (f)(vii) 

through (lxvii) as (f)(x) through (lxx); 

and 

■ b. Adding new paragraphs (f)(vii), 

(viii), and (ix) to read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(vii) Use the provision at 252.204– 

7013, Limitations on the Use or 

Disclosure of Information by Litigation 

Support Solicitation Offerors, as 

prescribed in 204.7403(a), to comply 

with 10 U.S.C. 129d. 

(viii) Use the clause at 252.204–7014, 

Limitations on the Use or Disclosure of 

Information by Litigation Support 

Contractors, as prescribed in 

204.7403(b), to comply with 10 U.S.C. 

129d. 

(ix) Use the clause at 252.204–7015, 

Disclosure of Information to Litigation 

Support Contractors, as prescribed in 

204.7403(c), to comply with 10 U.S.C. 

129d. 

* * * * * 

PART 227—PATENTS, DATA, AND 

COPYRIGHTS 

■ 4. In section 227.7100, revise 

paragraph (b) to read as follows: 

227.7100 Scope of subpart. 

* * * * * 

(b) Does not apply to— 

(1) Computer software or technical 

data that is computer software 

documentation (see subpart 227.72); or 

(2) Releases of technical data to 

litigation support contractors (see 

subpart 204.74). 

227.7103–6 [Amended] 

■ 5. Amend section 227.7103–6 by 

removing the phrase ‘‘Government will 

provide the contractor,’’ and adding in 

its place ‘‘Government will provide the 

contractor (other than a litigation 

support contractor covered by 252.204– 

7014),’’. 

■ 6. In section 227.7200, revise 

paragraph (b) to read as follows: 

227.7200 Scope of subpart. 

* * * * * 

(b) Does not apply to— 

(1) Computer software or computer 

software documentation acquired under 

GSA schedule contracts; or 

(2) Releases of computer software or 

computer software documentation to 

litigation support contractors (see 

subpart 204.74). 

227.7203–6 [Amended] 

■ 7. Section 227.7203–6 is amended by 

removing the phrase ‘‘Government will 

provide the contractor,’’ and adding in 

its place ‘‘Government will provide the 

contractor (other than a litigation 

support contractor covered by 252.204– 

7014),’’. 

PART 237—SERVICE CONTRACTING 

■ 8. Add section 237.174 to read as 

follows: 

237.174 Disclosure of information to 

litigation support contractors. 

See 204.74 for disclosure of 

information to litigation support 

contractors. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 9. Add section 252.204–7013 to read 

as follows: 

252.204–7013 Limitations on the Use or 

Disclosure of Information by Litigation 

Support Solicitation Offerors. 

As prescribed in 204.7403(a), use the 

following provision. If the solicitation is 

a request for quotations, the terms 

‘‘quotation’’ and ‘‘Quoter’’ may be 

substituted for ‘‘offer’’ and ‘‘Offeror’’. 

LIMITATIONS ON THE USE OR 

DISCLOSURE OF INFORMATION BY 

LITIGATION SUPPORT 

SOLICITATION OFFERORS (FEB 2014) 

(a) Definitions. As used in this provision: 

Computer software, litigation information, 

litigation support, sensitive information, and 

technical data, are defined in the clause at 

DFARS 252.204–7014, Limitations on the 

Use or Disclosure of Information by 

Litigation Support Contractors. 

(b) Limitations on use or disclosure of 

litigation information. Notwithstanding any 

other provision of this solicitation, by 

submission of its offer, the Offeror agrees and 

acknowledges— 

(1) That all litigation information will be 

accessed and used for the sole purpose of 

providing litigation support; 

(2) That the Offeror will take all 

precautions necessary to prevent 

unauthorized disclosure of litigation 

information; and 

(3) That litigation information shall not be 

used by the Offeror to compete against a third 

party for Government or nongovernment 

contracts. 

(c) Indemnification and creation of third 

party beneficiary rights. By submission of its 

offer, the Offeror agrees— 

(1) To indemnify and hold harmless the 

Government, its agents, and employees from 

any claim or liability, including attorneys’ 

fees, court costs, and expenses, arising out of, 

or in any way related to, the misuse or 

unauthorized modification, reproduction, 

release, performance, display, or disclosure 

of any litigation information; and 

(2) That any third party holding 

proprietary rights or any other legally 

protectable interest in any litigation 

information, in addition to any other rights 

it may have, is a third party beneficiary who 

shall have a right of direct action against the 

Offeror, and against any person to whom the 

Offeror has released or disclosed such data or 

software, for the unauthorized duplication, 

release, or disclosure of such information. 

(d) Offeror employees. By submission of its 

offer, the Offeror agrees to ensure that its 

employees are subject to use and 

nondisclosure obligations consistent with 

this provision prior to the employees being 

provided access to or use of any litigation 

information covered by this provision. 

(End of provision) 

■ 10. Add section 252.204–7014 to read 

as follows: 

252.204–7014 Limitations on the Use or 

Disclosure of Information by Litigation 

Support Contractors. 

As prescribed in 204.7403(b), use the 

following clause: 

LIMITATIONS ON THE USE OR 

DISCLOSURE OF INFORMATION BY 

LITIGATION SUPPORT 

CONTRACTORS (FEB 2014) 

(a) Definitions. As used in this clause: 

Computer software means computer 

programs, source code, source code listings, 

object code listings, design details, 

algorithms, processes, flow charts, formulae, 

and related material that would enable the 

software to be reproduced, recreated, or 

recompiled. Computer software does not 

include computer data bases or computer 

software documentation. 

Litigation information means any 

information, including sensitive information, 

that is furnished to the contractor by or on 

behalf of the Government, or that is generated 

or obtained by the contractor in the 

performance of litigation support work under 

this contract. 

Litigation support means administrative, 

technical, or professional services provided 


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in support of the Government during or in 

anticipation of litigation. 

Litigation support contractor means a 

contractor (including an expert or technical 

consultant) providing litigation support 

under a contract with the Department of 

Defense that contains this clause. 

Sensitive information means confidential 

information of a commercial, financial, 

proprietary, or privileged nature. The term 

includes technical data and computer 

software, but does not include information 

that is lawfully, publicly available without 

restriction. 

Technical data means recorded 

information, regardless of the form or method 

of the recording, of a scientific or technical 

nature (including computer software 

documentation). The term does not include 

computer software or data incidental to 

contract administration, such as financial 

and/or management information. 

(b) Limitations on use or disclosure of 

litigation information. Notwithstanding any 

other provision of this contract, the 

Contractor agrees and acknowledges— 

(1) That all litigation information will be 

accessed and used for the sole purpose of 

providing litigation support; 

(2) That the Contractor will take all 

precautions necessary to prevent 

unauthorized disclosure of litigation 

information; 

(3) That litigation information shall not be 

used by the Contractor to compete against a 

third party for Government or 

nongovernment contracts; and 

(4) That violation of paragraph (b)(1), 

(b)(2), or (b)(3), of this section, is a basis for 

the Government to terminate this contract. 

(c) Indemnification and creation of third 

party beneficiary rights. The Contractor 

agrees— 

(1) To indemnify and hold harmless the 

Government, its agents, and employees from 

any claim or liability, including attorneys’ 

fees, court costs, and expenses, arising out of, 

or in any way related to, the misuse or 

unauthorized modification, reproduction, 

release, performance, display, or disclosure 

of any litigation information; and 

(2) That any third party holding 

proprietary rights or any other legally 

protectable interest in any litigation 

information, in addition to any other rights 

it may have, is a third party beneficiary 

under this contract who shall have a right of 

direct action against the Contractor, and 

against any person to whom the Contractor 

has released or disclosed such data or 

software, for the unauthorized duplication, 

release, or disclosure of such information. 

(d) Contractor employees. The Contractor 

shall ensure that its employees are subject to 

use and nondisclosure obligations consistent 

with this clause prior to the employees being 

provided access to or use of any litigation 

information covered by this clause. 

(e) Flowdown. Include the substance of this 

clause, including this paragraph (e), in all 

subcontracts, including subcontracts for 

commercial items. 

(End of clause) 

■ 11. Add section 252.204–7015 to read 

as follows: 

252.204–7015 Disclosure of Information to 

Litigation Support Contractors. 

As prescribed in 204.7403(c), use the 

following clause: 

DISCLOSURE OF INFORMATION TO 

LITIGATION SUPPORT 

CONTRACTORS (FEB 2014) 

(a) Definitions. As used in this clause: 

Litigation support means administrative, 

technical, or professional services provided 

in support of the Government during or in 

anticipation of litigation. 

Litigation support contractor means a 

contractor (including an expert or technical 

consultant) providing litigation support 

under a contract with the Department of 

Defense that contains this clause. 

Sensitive information means confidential 

information of a commercial, financial, 

proprietary, or privileged nature. The term 

includes technical data and computer 

software, but does not include information 

that is lawfully, publicly available without 

restriction. 

(b) Authorized disclosure. Notwithstanding 

any other provision of this solicitation or 

contract, the Government may disclose to a 

litigation support contractor, for the sole 

purpose of litigation support activities, any 

information, including sensitive information, 

received— 

(1) Within or in connection with a 

quotation or offer; or 

(2) In the performance of or in connection 

with a contract. 

(c) Flowdown. Include the substance of this 

clause, including this paragraph (c), in all 

subcontracts, including subcontracts for 

commercial items. 

(End of clause) 

252.227–7013 [Amended] 

■ 12. Amend section 252.227–7013 by— 

■ a. Removing the clause date (JUN 

2013) and adding in its place (FEB 

2014); and 

■ b. In paragraph (a)(5), removing the 

phrase ‘‘Covered Government support 

contractor means a contractor’’ and 

adding in its place ‘‘Covered 

Government support contractor means a 

contractor (other than a litigation 

support contractor covered by 252.204– 

7014)’’. 

252.227–7014 [Amended] 

■ 13. Amend section 252.227–7014 by— 

■ a. Removing the clause date (MAY 

2013) and adding in its place (FEB 

2014); and 

■ b. In paragraph (a)(6), removing the 

phrase ‘‘Covered Government support 

contractor means a contractor’’ and 

adding in its place ‘‘Covered 

Government support contractor means a 

contractor (other than a litigation 

support contractor covered by 252.204– 

7014)’’. 

252.227–7015 [Amended] 

■ 14. Amend section 252.227–7015 by— 

■ a. Removing the clause date (JUN 

2013) and adding in its place (FEB 

2014); and 

■ b. In paragraph (a)(2), removing the 

phrase ‘‘Covered Government support 

contractor means a contractor’’ and 

adding in its place ‘‘Covered 

Government support contractor means a 

contractor (other than a litigation 

support contractor covered by 252.204– 

7014)’’. 

252.227–7018 [Amended] 

■ 15. Amend section 252.227–7018 by— 

■ a. Removing the clause date (MAY 

2013) and adding in its place (FEB 

2014); and 

■ b. In paragraph (a)(6), removing the 

phrase ‘‘Covered Government support 

contractor means a contractor’’ and 

adding in its place ‘‘Covered 

Government support contractor means a 

contractor (other than a litigation 

support contractor covered by 252.204– 

7014)’’. 

[FR Doc. 2014–04159 Filed 2–27–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 225, and 252 

Defense Federal Acquisition 

Regulation Supplement; Technical 

Amendments 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is making technical 

amendments to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to provide needed editorial 

changes. 

DATES: Effective February 28, 2014. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Manuel Quinones, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6088; facsimile 

571–372–6094. 

SUPPLEMENTARY INFORMATION: This final 

rule amends the DFARS as follows: 

1. Correct 204.1105 and 252.204–7004 

to conform to the FAR by changing 

‘‘clause’’ to ‘‘provision’’. 

2. Correct a cross reference at 

204.7103–1(d). 

3. Redesignate 225.004 as 225.070 and 

revise the text. 


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