Attach 2- NDA_COI Form.docx

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

CONTRACTOR NON-DISCLOSURE AGREEMENT AND CONFLICT OF INTEREST CERTIFICATION

I, ______________________, an employee or a personnel 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 Contract number TBD, Solicitation number HQ003425RE167 issued by the Washington Headquarters Services/Acquisition Directorate.

1. NON-DISCLOSURE

I understand and agree to the following terms and conditions:

I may gain access to government procurement sensitive information, business confidential or proprietary information of others, contract performance data, 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), 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 give unfair competitive advantage, and controlled information, both classified and unclassified.

Information to which I may have access to includes, but is not limited to, procurement sensitive information, business confidential or proprietary information of others, and contract performance data to include procurement data, contract information, plans, strategies, performance data, dollar costs, and other nonpublic information.

Such 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.

Controlled Unclassified Information is information that requires safeguarding or is subject to dissemination controls pursuant to and consistent with applicable laws, regulations, and Government-wide policies, 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.

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 and 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, in this paragraph, and other 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 my status as a contractor employee or contractor personnel is known when seeking access to and receiving such nonpublic information from Government employees.

3. 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), consultant(s), 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, any component thereof, or another Federal Agency and only if they have also signed a copy of this Agreement or another agreement that limits their use of the information to official purposes. I will take all reasonable precautions to prevent the unauthorized disclosure and use of such information.

4. I will not disclose, publish, divulge, release, or make known, in any manner or to any extent, to any individual other persons who meet the descriptions in paragraphs 1 or 2 above, the content of any nonpublic information, such as but not limited to, procurement sensitive information, business confidential or proprietary information, contract performance data, and pre-decisional business, contract - or procurement-related information of the Federal Government, Government pre-decisional information PPBE, 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 have read this Non-Disclosure Agreement and I understand it. I will fully and completely observe this Agreement and 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 (DOPSR), 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 Department of Defense. 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 and 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 NAME (print): ____________________________________________

SIGNATURE: ____________________________________ DATE: _________________