A23 Attachment 9 Contractor NDA and COI Form.docx

ADAP Form 209-506-5 Contractor NDA and COI Form (FEB 16, 2024)

CONTRACTOR NON-DISCLOSURE AGREEMENT AND

CONFLICT OF INTEREST CERTIFICATION

I, ______________________, an employee of ___________________ hereby personally consent to the terms of this Agreement in consideration of my being granted conditional access to certain United States nonpublic information in the performance of Solicitation Number HQ003425RE149, Contract number ______TBD__________, issued by the Washington Headquarters Services/Acquisition Directorate.

I understand and agree to the following terms and conditions:

I may gain access to controlled information, both classified and unclassified, concerning government procurement sensitive information, business confidential or proprietary information of others, contract performance data (to include procurement data, contract information, plans, strategies, performance data, and dollar costs and other information), pre-decisional business, contract or procurement-related information of the federal government, as well as information protected from improper release or disclosure by the Privacy Act; personally identifiable information (PII); Planning, Programming, Budgeting, and Execution (PPBE) information; or information that is otherwise sensitive because it is deliberative or pre-decisional in nature, or is sensitive because the information relates to internal Government practices which, if disclosed inappropriately, would allow recipients of the information to circumvent a statute, regulation, or have unfair competitive advantage.

Such information may be identified as Controlled Unclassified Information (CUI) whether it is marked or unmarked as such, and may include oral communications, which is controlled under the standards of Executive Order 13556, or under law, regulation, or Government-wide policy (LRGWP) requiring or permitting safeguarding or dissemination controls but is not classified under Executive Order 13526 “Classified National Security Information” or the Atomic Energy Act, as amended. Improper disclosure of such information may result in the imposition of administrative, civil, or criminal sanctions, as may be authorized by law. I understand and accept the United States Government is placing special confidence and trust in me by granting me access to CUI.

Information that I may gain access to or have access to is subject to the disclosure restrictions imposed by statute or regulation, including the Procurement Integrity Act, 41 U.S.C. 423; and/or the Federal Acquisition Regulation, and the Privacy Act of 1974, 5 U.S.C. 552. Pre-decisional and deliberative information is exempt from public release under the terms of the Freedom of Information Act, 5 U.S.C. 552a.

PII includes, but is not limited to, information pertaining to an individual’s education, bank accounts, financial transactions, medical history, and criminal or employment history and other information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, date and place of birth, mother’s maiden name, biometric records, etc., including any other personal information which is linked or linkable to an individual. This definition includes information that the loss, misuse, or unauthorized access to or modification of could adversely affect the privacy that individuals are entitled to under the Privacy Act.

Government pre-decisional business, contract, or procurement-related information includes the categories of information described above, and information concerning and made known during discussions, meetings, and communications that relate to, and precede, a final action to be taken by the Government, even if the final action may properly be disclosed to the public. Such pre-decisional information may also be subject to the deliberative process privilege and no intent to waive that privilege is indicated by its disclosure to the contractor employee or personnel at any tier, subcontractors and their employees or personnel, consultants, or other private persons in the performance of their contractual duties with the Federal Government.

Nonpublic Information is information that is known or reasonably known to have not been provided to the public, including information that is routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected from disclosure by statute, Executive order, or regulation; is designated as confidential by an the DoD or its components; or has not actually been disseminated to the public and is not authorized to be made available to the public on request. See 5 C.F.R. 2635.703(b).

I certify that:

1. I will use the aforementioned types of information only for official Government purposes in the performance of Contract number _____________. I will disclose such information only to those individuals who have a specific need to know of this information in the performance of their official Government duties (i.e., federal employees) or have a need to know as part of their work under another contract with the Government.

2. I will ensure that my status as a contractor personnel is known when seeking access to and receiving such nonpublic information from Government employees.

3. I will comply with the standards for accessing, disseminating, handling, and safeguarding CUI as cited in this Agreement and in accordance with 32 C.F.R Part 2002, applicable LRGWP, and DoD policy relative to the category or categories of CUI. I will not disclose any nonpublic information to anyone I employ, contract with, or to any other contractor employee or personnel, contractor(s), subcontractor(s), consultants, or other privately employed person, unless they also have a specific need to know the information because of a contract with the Department of Defense (DoD), any component thereof, or another Federal Agency, and only if they have also signed a copy of this Agreement or another agreement that similarly limits their use of the nonpublic information to official purposes.

4. I will take all reasonable precautions to safeguard and prevent the unauthorized disclosure and use of such information. I understand that I am obligated to protect CUI from unauthorized disclosure in accordance with the terms of this Agreement, 32 C.F.R Part 2002, DoD policy, and the LRGWP applicable to specific CUI categories. I will not disclose, publish, divulge, release, or make known, in any manner or to any extent, to any individual other than persons who meet the exceptions set forth above, the content of any nonpublic information as described in this Agreement, or any other information marked as controlled provided to me or obtained during the course of my performance of work in support of Contract number __________________, or otherwise.

5. I will fully and completely observe this Non-Disclosure Agreement and I understand it. I will not disclose the information described herein to any unauthorized person, or use any information obtained for private use or gain (my own or that of any other person or entity) at any time, including subsequent to the performance of duties in support of Contract number __________________.

6. I will submit for Defense Office of Prepublication and Security Review prior to any submission for publication, any book, article, column, or other written work for general publication that is based upon any knowledge I obtain during the course of my work in connection with the DoD. I hereby assign to the United States all rights, royalties, remunerations, and emoluments that have resulted or will result or may result from any disclosure, publication, or revelation of nonpublic information not consistent with the terms of this Agreement.

7. I understand that unless Washington Headquarters Services provides me a written release from this Agreement, or any portion of it, all terms, conditions, and obligations contained in this Agreement apply both during my conditional access, and at all times thereafter.

8. I agree to return and/or destroy any nonpublic information given to me pursuant to this agreement upon the request of the Contracting Officer and/or the Contracting Officer’s Representative or upon the completion of Contract number_____________, whichever comes first.

9. If I become aware of any improper release or disclosure of such nonpublic information, I will immediately inform the Contracting Officer and the Contracting Officer's Representative in writing.

10. I understand that any unauthorized use, release, or disclosure of nonpublic information in violation of this Agreement will subject me to administrative, civil, or criminal remedies, as may be authorized by law.

11. I understand that the obligations under this agreement are continuing in nature. If anything takes place that would cause a change to any statement or create a violation of any representation or rule of conduct contained in this agreement, I will immediately inform the Contracting Officer and the Contracting Officer’s Representative in writing.

Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceable, all other provisions shall remain in full force and effect.

These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.

2. CONFLICT OF INTEREST (COI)

The Government anticipates that participation in procurement related activities under this contract may expose me to procurement sensitive information, proprietary, business confidential or financial data of other companies (i.e., budget information about contracts, including labor categories, rates, and hours). Further, the Government anticipates that my participation under this contract may grant me access to the Government’s Financial and Procurement Management systems.

By signing below, I, a contractor / contractor employee / contractor personnel, (herein after referred to as “I”) certify that neither I, nor any person whose financial interest is imputed to me, such as a spouse, minor child, general partner, organization in which I may serve as officer, director, trustee, general partner, or employee, or any person with whom I am negotiating for or have arranged concerning prospective employment, have any direct or indirect financial interest or any other beneficial interest in my work (i.e., pre-award, post-award, and other acquisition related efforts) under this contract in accordance with 5 C.F.R. 2635.402(b)(2).

I acknowledge that direct or indirect financial interest includes any current or contingent ownership, equity, or security interest in real or personal property or a business entity and may include indebtedness or compensated employment relationship. It includes, for example, financial interests in the nature of stocks, bonds, partnership interests, fee and leasehold interests, mineral and other property rights, deeds of trust, and liens, and extends to any right to purchase or acquire any such interest, such as a stock option or commodity future. The term financial interest also includes service, with or without compensation, as an officer, director, trustee, general partner, or employee of any person, including a nonprofit entity, whose financial interests are imputed to the employee under 5 C.F.R. § 2635.402(b)(2)(iii) or (iv).

If my financial or otherwise beneficial interest concerning the current contract has changed since this, or any previously executed NDA or COI agreement was submitted, or was not clearly identified within those previously executed or submitted documents, I will indicate the exact financial or otherwise beneficial interest that I now hold to the Contracting Officer within one business day of knowledge of such COI. In the event the Contracting Officer unilaterally determines that any such conflict cannot be satisfactorily avoided or mitigated, the Contracting Officer may affect other remedies as he or she deems necessary, including prohibiting me from participation in subsequent contracted requirements which may be affected by the conflict. Such subsequent contract requirements include but are not limited to (1) participating in drafting statement of work, (2) reviewing bids and proposals, (3) evaluating products, systems, or services using subjective criteria, and (4) serving on the technical evaluation panel to review submitted bids and proposals.

I also certify that I will NOT disclose to any person or entity any information I receive or am exposed to as I (1) provide the Government with systems engineering and technical direction, (2) prepare specifications or work statements for the Government, (3) provide assistance with technical evaluation of offers or advisory and assistance services to the Government, (4) acquire proprietary information of other companies to perform under this contract, and (5) perform budget work (e.g., filling out purchase request(s), Military Interdepartmental Purchase Request document(s), and etc.,) that pertains to the Contractor, the Contractor’s company, and/or another affiliated entity (such as a subcontractor, and etc.,) for the Government. I understand that Conflict of Interest risks arise from my access and exposer to, and involvement with, procurement sensitive information, proprietary, business confidential or financial data of other entities.

I understand that by signing this Agreement, I agree that I will not, in any capacity or manner, participate in any aspect of a bid or proposal process in response to any solicitation issued contemplating work surrounding my efforts on this contract. I also understand that I am to abide by internal company firewalls implemented to protect against the transfer of information between myself and those not a part of this contract and bound by this agreement.

CERTIFICATION

I voluntarily agree to the terms of this Agreement and certify that I have read and understand it. I further certify that the statements made herein are true and correct. If I do not understand any portion of this Agreement, I understand it is my obligation to seek clarifications from the Contracting Officer.

CONTRACTOR PERSONNEL NAME (print): _______________________________________

CONTRACTOR COMPANY NAME: ___________________________________________

SIGNATURE: ___________________________________ DATE: ________________

ADAP Form 209-506-1 Contractor Conflict of Interest Disclosure Form (AUG 2024)

1. WHS Solicitation or Contract Number:

2. Program Supported:

3. Organization name and address (if the conflict is with a Subcontractor, please provide their name and POC as well):

4. POC & Telephone:

5. Description of Work:

6. Is there an actual or potential conflict of interest? ___ NO ___ YES If yes, please provide the following information: Solicitation or Contract or Subcontract Number for Potential Conflict of Interest, Contract Number, Program Name, Project Name, Period of Performance, and Contract Value

7. Description of work performed under Block 6 action:

8. Relationship between requirements of Block 1 and the work performed under Block 6:

9. Organizational Conflict of Interest Evaluation and Assessment.

Describe the actual or potential conflict of interest. (Attach a copy of the SOW for the Block 6 and complete Block 10).

10. Summary of actions planned to avoid, neutralize, or mitigate the actual or potential conflict:

11. Personal Conflict of Interest Mitigation Plan.

In the event that a personal conflict of interest is identified, describe the conflict and provide a mitigation plan.

12. Typed Name of Responsible Official

13. Signature

14. Date

INSTRUCTIONS FOR COMPLETING THIS FORM

All Blocks: Please be as specific as possible, citing the specific RFP/SOW paragraph, etc. Please include subcontractors in any conflict analysis.

Block 6: Please mark an “X” to state whether an actual or potential conflict of interest exists. If answering “No,” then the contractor will not answer the remaining questions but will complete boxes 12 – 14. If answering “yes,” then provide the requested information in Block 6. NOTE: One Contractor Conflict of Interest Disclosure Form shall be submitted for EACH related solicitation, contract, or subcontract.

Block 7: Provide a brief, but specific, narrative summary of the SOW and work performed on the contract or subcontract listed in Block 6, including the period of performance and the value.

Block 8: Provide a brief, but specific, narrative summary of ANY relationship between the work to be performed under the action listed in Block 1 and the previous work performed under the action listed in Block 6.

Block 11: The contractor shall review and analyze potential personal conflicts of interest of employees to determine whether an actual or potential personal conflict of interest exists. Information should be gathered and analyzed for all governing body members (e.g., board of directors, trustees, etc.) and principals of the organization as defined by FAR 52.203-13 and for each manager and key personnel who would be, or are involved, with the performance of the contract.

To assist in the identification and analysis, the contractor should consider the following, at a minimum, in determining if personal conflicts of interest are present.

• Assets, sources of income, outside positions, etc. for self, spouse/domestic partner, and any dependent(s);

• Assets and healthcare related income arrangements or agreements to include healthcare related stock, bond, sector fund, employer or business fees, commissions, honoraria, real estate investment, for self, spouse/domestic partner, and any dependent(s);

• Liabilities for self, spouse/domestic partner, and any dependent(s); and

• Non-employer healthcare travel-related reimbursements or gifts.

Block 12 and 13: Provide the name of your company official with the responsibility for and authority to discuss and commit the company on matters related to OCI issues. That official should then sign and date each form.