Section H of the Department of Justice's Request for Proposals for "Independent Technical Review of the Carnivore Electronic Communication Collection System".
(This page contains "Section H - Special Contract Requirement", which covers ownership of data, safeguarding of data, confidentiality, and no publicity.
Solicitation Number: JSJMD-00-0106.
Date Issued: August 24, 2000.
Source: U.S. Department of Justice. The full RFP is 50 pages, and is available in the DOJ web site in both WordPerfect and PDF.
For more information, contact Mark Selweski, (202) 307-1968, mark.e.selweski@usdoj.gov.

SECTION H - SPECIAL CONTRACT REQUIREMENTS

H.1 Organizational Conflict of Interest

(a) The Contractor warrants that, to the best of its knowledge and belief, and except as otherwise set forth in this contract, it does not have any organizational conflict of interest as defined below.

The term "organizational conflict of interest" means a situation where a Contractor has interests, either due to its other activities or its relationships with the Department of Justice or other law enforcement organizations, which place it in a position that may be unsatisfactory or unfavorable from the Government's standpoint in being able to secure an impartial, technically sound, objective review of the Carnivore system from the Contractor.

(b) The Contractor agrees that, if after contract award it discovers an organizational conflict of interest with respect to this contract, the Contractor shall make an immediate and full disclosure in writing to the Contracting Officer that shall include a description of the action that the Contractor has taken or proposes to take to avoid, eliminate or neutralize the conflict. The Department may, however, terminate this contract for the convenience of the Government if termination is in the best interest of the Government.

(c) If the Contractor was aware of organizational conflict of interest before contract award and intentionally did not disclose the conflict to the Contracting Officer, the Department may terminate this contract at no cost to the Government.

H.2 Data Rights

(a) Government Furnished Data. The Government shall retain all rights and privileges, including those of patent and copy, to all Government furnished data. The Contractor shall neither retain nor reproduce for private or commercial use any information or other materials furnished or made available under this contract. The Contractor agrees not to assert any rights at common law or in equity or establish any claim to statutory copyright in such data. These rights are not exclusive and are in addition to any other rights and remedies to which the Government is otherwise entitled elsewhere in this contract.

(b) Contractor Produced Data and Materials. All property rights, including publication rights, in the information and materials first produced by the Contractor in connection with this contract (to include task orders issued under this contract) shall vest in the Government. Information and materials shall include, but are not limited to all reports and site surveys.

H.3 Security Requirements

H.3.1 Contractor/Subcontractor Personnel

Because of the sensitive nature of the information involved in this contract, all Contractor/subcontractor personnel will be subject to a basic criminal record checks and federal agency index check. All Contractor/subcontractor personnel that may have access to any of the information under this contract must prepare and submit to the COTR a limited biographical information form that will be used by the Security Program Manager (SPM) to perform the checks described above. The Contractor will not be permitted to commence performance under the contract until a sufficient number of its personnel, as determined by the COTR and SPM, have received favorable checks.

H.3.2 Safeguarding Data

(a) In performance of this contract, the Contractor will have access to sensitive Government information. The Contractor agrees to comply with and assume responsibility for compliance by its employees, and any subcontractors or team members, with the following requirements:

(1) All work shall be performed under the supervision of the Contractor or the Contractor’s employees.

(2) All individuals who receive access to any sensitive Government information concerning the Carnivore system (system) shall be subject to the personnel security requirements specified in Section H.3.1. The Department may remove access privileges for Contractor personnel for unauthorized, negligent, or willful actions. These may include, but are not limited to unauthorized modification or disclosure of the system or related data.

(3) All individuals who receive access to any sensitive Government information will be required to sign a nondisclosure agreement similar to that in Section J, Attachment 2 prior to having access to that information. Also, the Contractor shall ensure that access to sensitive Government information is provided to a minimum number of Contractor personnel (to include subcontractor personnel or team member personnel) necessary to adequately conduct the review.

(4) Any system data made available in any format shall be used only for the purpose of carrying out the provisions of this contract. Information contained in such material shall be treated as confidential and shall not be divulged or made known in any manner to any person except as may be necessary in the performance of this contract. Disclosure to anyone other than a member of the team performing work under this contract on behalf of the Contractor shall be prohibited.

(5) All system data shall be accounted for upon receipt and properly stored before, during, and after processing.

(6) The Contractor certifies that system data used during the performance of this contract shall be completely purged from all data storage components of its computer facility(ies), and no sensitive information shall be retained by the Contractor at the time the work is completed. If immediate purging of all data storage components is not possible, the Contractor certifies that any system data remaining in any storage component will be safeguarded to prevent unauthorized disclosures.

(7) Any spoilage or any intermediate hard copy printout which may result while using system data shall be destroyed using a document shredder or other method approved by the COTR.

(8) No work involving system data furnished under this contract shall be subcontracted without the specific written approval of the Contracting Officer.

(9) The Contractor shall maintain a list of employees authorized access to system data. Such list will be provided to the COTR upon request.

(10) Use of remote maintenance or monitoring capabilities (at a Contractor site via communications link) must be explicitly authorized by the COTR.

(11) The DOJ will have the right to terminate this contract if the Contractor fails to provide the safeguards described above.

(b) The Contractor shall inform its officers and employees of the penalties for improper disclosure (of any system data) imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a(I)(1), which is made applicable to contractors by 5 U.S.C. 552a(m)(1), provides that any officer or employee of a contractor who, by virtue of his/her employment or official position, has possession of or access to agency records which contain individually identifiable information, the disclosure of which is prohibited by the Privacy Act or regulations established thereunder, and who knowing that disclosure of the specific material is prohibited, wilfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

(c) To the extent required to carry out a program of inspection to safeguard against threats and hazards to the security, integrity, and confidentiality of Government data, the Contractor shall afford the Government access to the Contractor's facilities, installations, technical capabilities, operations, documentation, records, and databases. These inspections may take place at any time during the term of this contract and may include a live demonstration of the Contractor’s computer systems capabilities. The Contractor will be given advance written notice of the Department’s intent to perform an inspection. The Contractor shall immediately correct any specific measures where the Contractor is found to be noncompliant with contract safeguards.

(d) The Contractor shall not publish or disclose in any manner, without the Contracting Officer's written consent, the details of any safeguards used by the Government to protect its systems.

(e) If new or unanticipated threats or hazards are discovered by either the Government or the Contractor, or if existing safeguards have ceased to function, the discoverer shall immediately bring the situation to the attention of the other party. Mutual agreement shall then be reached on changes or corrections to existing safeguards or institution of new safeguards, with final determination of appropriateness being made by the Government. The Government's liability is limited to an equitable adjustment of cost for such changes or corrections, and the Government shall not be liable for claims of loss of business, damage to reputation, or damages of any other kind arising from discovery of new or unanticipated threats or hazards, or any public or private disclosure thereof.

H.4 Confidentiality

Duplication or disclosure of the data and other information to which the Contractor will have access as a result of this contract is prohibited. It is understood that throughout performance of this contract, the Contractor will have access to confidential data which is either the sole property of the Department of Justice or is the sole property of other than the contracting parties. The Contractor and his subcontractor(s) (if any) agree to maintain the confidentiality of all data to which access may be gained throughout contract performance, whether title thereto vests in the Department of Justice or otherwise. The Contractor and his Subcontractor(s) (if any) agree to not disclose said data, any interpretations and/or translations thereof, or data derivative therefrom, to unauthorized parties in contravention of these provisions, without the prior written approval of the Contracting Officer or the party in which title thereto is wholly vested. Subcontractors are subject to the same stipulations and may be held responsible for any violations of confidentiality.

H.5 Indemnification

(a) Responsibility for Government-owned or -leased Property and Equipment: During contract performance, the Contractor shall be responsible for all negligent acts or omissions of its employees or agents or the employees or agents of its subcontractor(s). In this regard, the contractor shall, at no cost to the Government and at the Government's option, replace or compensate the Government for any damage to or loss of Government-owned or -leased property caused by such negligent acts or omissions.

(b) Responsibility for Contractor or Third Party-owned or -leased Property and Equipment: The contractor shall indemnify the Government against any and all liability claims for loss or damage to any Contractor owned or leased property occurring as a result of negligence or omissions by employees or agents of the contractor or its subcontractor(s) in connection with the performance of work under the terms of this contract.

(c) Responsibility for Property and Equipment Damaged or Lost through no fault of the Contractor or the Government: Property damage or loss that occurs through no fault of either the Contractor, their subcontractors or agents or the Government shall be the responsibility of the party holding title to or having leased the property.

(d) Contractor Actions: The Contractor shall indemnify and hold the Government, its agents and employees, harmless against any financial loss or liability, including costs and expenses, arising from any negligent or wrongful act, or omission, or malpractice, on the part of the Contractor, or any of its agents or employees, during the Contractor’s performance under this contract. The Contractor also agrees that if the Government suffers any financial loss or liability because of any negligent or wrongful act, or omission, or malpractice, by the Contractor, or any of its agents or employees, the Department may offset any such sums against any money in the Department’s possession, which would otherwise be due and payable to the Contractor.

H.6 Publicity

Publicity releases in connection with this contract shall not be made by the Contractor unless prior written approval has been received from the Contracting Officer.

H.7 Freedom of Information Act (FOIA) Requests

Notwithstanding any other provision in this contract or any statement or restriction in the Contractor's proposal, by entering into this contract, the Contractor acknowledges that the Department will release Section B of this contract, to include all Pricing Tables, in their entirety in response to Freedom of Information Act (FOIA) requests without giving the Contractor advance notice of the release. With respect to a FOIA request for any part of the Contractor's technical proposal that is either set forth or incorporated by reference in this contract, before responding to the FOIA request the Department will afford the Contractor an opportunity to explain why it believes some or all of the relevant parts of the technical proposal may be exempt from release under the FOIA.

H.8 Subcontracts

The addition of a subcontractor(s) which was not included in the original (at contract award) project team to perform work under this contract is subject to the prior written consent of the Contracting Officer.

H.9 Government Contractor Relationships

(a) The Government and the Contractor understand and agree the support services to be delivered under this contract by the Contractor are nonpersonal services and the parties recognize and agree that no employer-employee relationships exist or will exist under the contract between the Government and the Contractor and/or between the Government and the Contractor's employees.

(b) Contractor personnel under this contract shall not: (1) Be placed in a position where they are appointed or employed by a Federal employee, or are under the supervision, direction, or evaluation of a Federal employee; (2) Be placed in a staff or policy making position; or (3) Be placed in a position of supervision, direction, or evaluation over DOJ personnel, or personnel of other contractors, or become a part of a Government organization.

(c) The services to be performed under this contract do not require the contractor or its employees to exercise personal judgment and discretion on behalf of the Government. Rules, regulations, directions, and requirements which are issued by DOJ Management under their responsibility for good order, administration, and security are applicable to all personnel who enter a Government installation. This is not to be construed or interpreted to establish any degree or Government control which is inconsistent with a nonpersonal services contract. The Contractor will not be paid for performance of personal services. Therefore, the Contractor shall immediately advise the Contracting Officer in the event the contractor or its employee are directed by any Government employee to perform personal services.

H.10 Release of Claims

After completing the contract, and prior to final payment, the Contractor shall furnish to the Contracting Officer, a release of claims against the United States arising out of the contract, other than claims specifically excepted from the operation of the release. Copies of the required form may be obtained from the Contracting Officer at the address listed in Section G.1.2.