Tech5_NDA-Test SecurityConfidentiality Agreement.pdf

Regarding contract number________________________(hereafter, the Contract) between the Defense Language Institute Foreign Language Center (hereafter, DLIFLC

(an authorized entity of the United States Government)) and

_________________________________________ (hereafter the Contractor), I, _______________________________________, an authorized representative of the

Contractor, intending for the Contractor to be legally bound, consent to the terms in this

NDA in consideration of the Contractor (to include any and all of the Contractor’s officers, directors, employees, contractors, subcontractors, agents, and affiliates) being granted conditional access to Controlled Unclassified Information (CUI) that is owned by, produced by, produced on behalf of, or in the possession of the DLIFLC. The CUI relevant to this NDA include DLPTs, DLPT test materials, OPIs, and OPI test materials.

These terms are defined below under Definitions.

contractor’s business name as appears in the Contract

Technical Exhibit 5

The Defense Language Institute Foreign Language Center (DLIFLC)

NON-DISCLOSURE AGREEMENT (NDA)

DLIFLC NDA

Contract Number:

References (Applicable Laws, Regulations, or Government-Wide Policies)

a. Memorandum, DAMI-CD, 27 Aug 2020, subject: Implementing Guidance for Department of Defense Instruction 5200.48, Controlled Unclassified Information

b. DoD Instruction 5200.48, Controlled Unclassified Information (CUI), 6 Mar 2020

c. Defense Federal Acquisition Regulation Supplement (DFARS), secs. 252.204- 7008 and 252.204-7012, 30 Nov 2020

d. AR 25-55, The Department of the Army Freedom of Information Act Program, 1 Nov 1977

e. Memorandum, ATZL-CSI, 19 Jan 2018, subject: Controlled Unclassified Information (CUI) Training

f. AR 611-5, Personnel and Classification Testing, 9 Dec 2015

g. DLIFLC Regulation 611-1, Personnel Selection and Classification: Test Integrity, 31 Aug 2015

h. Title 18 U.S. Code, sec. 641, Public Money, Property, or Records

i. National Institute of Standards and Technology Special Publication 800-88, Revision 1, “Guidelines for Media Sanitization,” December, 2014

Definitions

Controlled Unclassified Information (CUI) As used in this agreement, information the Government creates or possesses, or that an entity creates or possesses for or on behalf of the Government, that a law, regulation, or Government-wide policy (LRGWP) requires or permits an agency to handle using safeguarding or dissemination controls.

Note that CUI does not include classified information [Information that Executive Order 13526, Classified National Security Information, December 29, 2009 (3 CFR §2010 Comp., p. 298), any predecessor or successor order, or the Atomic Energy Act of 1954, as amended, requires agencies to mark with classified markings and protect against unauthorized disclosure] or information a non-executive branch entity possesses and maintains in its own systems that did not come from, or was not created or possessed by or for, an executive branch agency or an entity acting for an agency.

Defense Language Test Program (DLTP) Includes those Department of Defense (DoD) approved tests used to measure language proficiency (e.g., versions of the Defense Language Proficiency Test, the Oral Proficiency Interview, the Defense Language Reading Proficiency Test, the Very Low Range Defense Language Proficiency Test to measure FLP, the computer adaptive test ECL and paper and pencil ECL tests to measure English language proficiency.

Defense Language Proficiency Test (DLPT) System The DoD standardized testing system for measuring an individual’s proficiency in a foreign language. It consists of a battery of tests that measures the general ability of a native or near-native speaker of English to comprehend a spoken and written foreign language and to speak the language.

Defense Language Proficiency Test (DLPT) A computer-based and/or Web-delivered test that measures an individual’s foreign language proficiency in the listening and/or reading modalities. This test instrument is used in personnel training and as a tool in determining the qualifications of candidates for employment, entrance on duty, advancement, and promotion. The United States Government requires safeguarding and dissemination controls for the DLPT and DLPT test materials. Unauthorized distribution of this instrument or its contents is strictly prohibited and may be punishable by civilian and criminal penalties.

DLPT Test Materials Information (physical and/or electronic) that includes but is not limited to the following: DLPT development data, Interagency Language Roundtable (ILR)-review data, field-test data, standard-setting data, test form data, item-bank content, item-response data, technical materials and other non-publicly available documentation related to the DLPT including Social Security and Privacy Act data, testing frameworks, specifications and blueprints, operating procedures, DLIFLC-sponsored research reports or other statistical data, and test items (to include the various stages of the test-item lifecycle: in-development, non-operational, and operational (scored and non-scored)). A test item consists of an orientation statement, target-language passage or transcription, English rendering (translation), audio file, stem, options, and key ideas.

Interagency Language Roundtable (ILR) A federal interagency organization established for the coordination and sharing of information about language-related activities at the federal level. The ILR language skill level descriptions are used by United States Government agencies to measure foreign language proficiency on a scale of 0, 0+,1, 1+, 2, 2+, 3, 3+, 4, 4+, and 5 in the modalities of listening, reading, speaking and writing.

Modalities The three language-related certifiable proficiencies of concern to the Defense Language, Regional Expertise, and Culture (LREC) program: the modalities of listening, reading, and speaking.

Oral Proficiency Interview (OPI). A test administered in person, by telephone, or other approved means to measure an individual’s foreign language proficiency in the speaking modality across the entire ILR scale. A proficiency assessment, the OPI assesses functional foreign language speaking ability in a holistic, global manner. It is used as a tool in determining the qualifications of candidates for employment, entrance on duty, advancement, and promotion.

OPI Test Materials Information (physical and/or electronic) that includes but is not limited to the following: OPI test design, tasks, scoring & score reporting (including tester certification), task items, test review form, OPI audio files (recordings), Interagency Language Roundtable (ILR)-review data, technical materials and other non-publicly available documentation related to the OPI including Social Security and Privacy Act data, testing frameworks, specifications and blueprints, operating procedures, OPI-sponsored research reports or other statistical data, and task items (to include the role-plays, preludes, in-development, non-operational, and operational).

Declarations

INITIALS: 1. The Contractor’s authorized representative who is initialing these declarations and signing this NDA represents and warrants that he or she has the authority to enter into this agreement on behalf of the Contractor.

For the purpose of declarations 2 through 13, “Contractor” means any and all of the Contractor’s officers, directors, employees, contractors, subcontractors, agents, and affiliates who are being or will be granted conditional access to CUI that is owned by, produced by, produced on behalf of, or in the possession of DLIFLC under the terms of the Contract.

INITIALS: 2. The Contractor acknowledges that as part of the contracted work with DLIFLC, the Contractor will have conditional access to DLPTs, DLPT test materials, OPIs, and/or OPI test materials, which are considered CUI by the United States Government.

INITIALS: 3. The Contractor will not disclose or release any CUI provided to the Contractor or produced by the Contractor pursuant to the Contract without proper authority or authorization. Should situations arise that warrant the disclosure or release of such CUI, the Contractor will do so only under approved circumstances and in accordance with the applicable LRGWP. The Contractor will honor and comply with any and all dissemination restrictions cited or verbally relayed to the Contractor by the proper authority.

INITIALS: 4. The Contractor agrees that the Contractor shall promptly report to appropriate officials any loss, theft, misuse, misplacement, unauthorized disclosure, or other security violation that the Contractor has knowledge of and whether or not the Contractor is involved. The Contractor also understands that a reporting person’s anonymity will be preserved to the extent reasonably possible when reporting security violations.

INITIALS: 5. If the Contractor violates the terms and conditions of this agreement, such violation may result in the cancellation of the Contractor’s conditional access to the CUI covered by this agreement. This may serve as a basis for denying the Contractor conditional access to other types of information, including classified national security information.

INITIALS: 6. The Contractor assigns to the United States Government all royalties, remunerations, and emoluments that have resulted, will result, or may result from any disclosure, publication, or revelation of the information inconsistent with the terms of this agreement.

INITIALS: 7. This agreement is made and intended for the benefit of the DLIFLC and may be enforced by the United States Government. By granting the Contractor conditional access to CUI in this context, the United States Government may seek any remedy available to it to enforce this agreement, including, but not limited to, application for a court order prohibiting disclosure of CUI in breach of this agreement. The Contractor understands that if the Contractor violates the terms and conditions of this agreement, the Contractor could be subjected to administrative, disciplinary, civil, or criminal action, as appropriate, under the LRGWP applicable to the category of CUI involved, and that the United States Government has not waived any statutory or common law evidentiary privileges or protections that it may assert in any administrative or court proceeding to protect any CUI to which the Contractor has been given conditional access under the terms of this agreement.

INITIALS: 8. Unless and until the Contractor is released in writing by an authorized representative of DLIFLC (if permissible for the particular category of information), the Contractor understands that all conditions and obligations imposed upon the Contractor by this agreement apply during the time that the Contractor is granted conditional access, and at all times thereafter.

INITIALS: 9. 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.

INITIALS: 10. The Contractor’s execution of this agreement shall not nullify or affect in any manner any other secrecy or NDA(s) that the Contractor has executed or may execute with the United States Government or any of its departments, agencies, or authorized entities.

INITIALS: 11. These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order (E.O.) No. 12958, as amended; Section 7211 of Title 5, United States Code (5 USC §7211) (governing disclosures to Congress); 10 USC §1034, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); 5 USC §2302(b)(8), as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 USC §421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including 18 USC §§641, 793, 794, 798, 952, and Section 4(b) of the Subversive Activities Act of 1950 (50 USC §783(b)).

The definitions, requirements, obligations, rights, sanctions, and liabilities created by said E.O. and listed statutes are incorporated into this agreement and are controlling.

INITIALS: 12. Signing this agreement does not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

INITIALS: 13. The Contractor’s authorized representative has read this agreement carefully and his or her questions, if any, were answered. The Contractor’s authorized representative acknowledges that DLIFLC’s contract office representative has made available to the Contractor’s authorized representative any laws, regulations, or directives referenced in this agreement so that he or she may read them at this time, if he or she so chooses.

The Defense Language Institute Foreign Language Center (DLIFLC)

NON-DISCLOSURE AGREEMENT (NDA)

Acknowledgement

SIGNATURE OF AUTHORIZED

CONTRACTOR REPRESENTATIVE

AUTHORIZED DLIFLC

REPRESENTATIVE

PRINTED NAME OF AUTHORIZED

CONTRACTOR REPRESENTATIVE

PRINTED NAME OF

AUTHORIZED DLIFLC

REPRESENTATIVE

DATE SIGNED DATE SIGNED