3.  Non-Public Government Information

Comments: One respondent suggested that the definition of "non-public Government information" be limited by providing more specific guidance. One specific approach that was suggested involved requiring that any protected information be explicitly designated as such in writing by the Government. Another respondent suggested that the rule should be broadened to prohibit contractor employees from using any information related to the contract on which they work. This respondent stated that anything less would "open the floodgates" for mitigation or waivers, and debates over timelines of when information was publicly available.

Response: It would be overly burdensome to require that all such information be explicitly marked by the Government. The definition of "non-public Government information" was intended to have a broad meaning, including proprietary data belonging to another contractor as well as information that could confer an unfair competitive advantage to a contractor for whom the employees work. This proposed definition requires the use of judgment on the part of contractors. A contractor employee should presume that all information given to a contractor has not been made public unless facts clearly indicate the contrary.  Further, the definition of "non-public Government information" is similar to the standard Government employees use executing their jobs--a standard that is particularly appropriate when tasks involve acquisition functions closely associated with inherently governmental functions.

This topic is relevant to other pending and forthcoming FAR cases, and for that reason, some structural changes have been made to the definition to harmonize this case with potential future usage. Specifically, the qualification that the information be accessed through performance on a Government contract has been removed from the definition, but has been applied in the rule text in appropriate places.