FAR 9.505-4—Obtaining access to proprietary information.
Plain-English Summary
FAR 9.505-4 addresses when a contractor’s access to proprietary information can create an unfair competitive advantage and what safeguards are required to prevent misuse. It covers three related situations: (1) when a contractor needs proprietary information from others to perform a Government contract and could use the leverage of that contract to obtain it, (2) when a contractor performing advisory and assistance services obtains proprietary information from other companies, and (3) when contractors use marketing consultants who may possess proprietary or source selection information that could affect a later acquisition. The section explains that restrictions are appropriate to protect proprietary information and encourage companies to share it when necessary for contract performance, but only to the extent the information is actually proprietary and not already voluntarily disclosed or otherwise available without restriction. In practice, this provision is meant to prevent contractors from using Government work, advisory roles, or consultant relationships to gain an unfair competitive edge in future procurements. It also places an affirmative duty on contractors and contracting officers to identify, document, and police the handling of protected information.
Key Rules
Protect proprietary information
When a contractor needs proprietary information from others to perform a Government contract and can use the leverage of that contract to obtain it, restrictions may be imposed to prevent unfair competitive advantage. The purpose is to protect the information and encourage companies to provide it when necessary for performance.
No protection for unrestricted information
These restrictions are not intended to protect information that was furnished voluntarily without limits on use, or information already available to the Government or the contractor from other sources without restriction. If the information is not truly proprietary or is otherwise freely available, the special protections do not apply.
Protect third-party data in advisory services
A contractor performing advisory and assistance services who gains access to another company’s proprietary information must agree to protect that information from unauthorized use or disclosure for as long as it remains proprietary. The contractor may use the information only for the purpose for which it was furnished.
Contracting officer must verify agreements
The contracting officer must obtain copies of the contractor’s agreements with the affected companies and ensure they are properly executed. This creates a record that the required protections are in place and allows the Government to verify compliance.
Watch marketing consultant influence
Contractors may obtain proprietary and source selection information through marketing consultants, which can create an unfair competitive advantage if later used in connection with an acquisition. Contractors should make inquiries of marketing consultants to ensure no such unfair advantage has been provided.
Responsibilities
Contractor
Avoid using Government contract leverage to obtain proprietary information in a way that creates an unfair competitive advantage. When performing advisory and assistance services, protect third-party proprietary information from unauthorized use or disclosure and use it only for the purpose for which it was provided. Also inquire of marketing consultants to ensure they have not provided proprietary or source selection information that could create an unfair competitive advantage.
Contracting Officer
Obtain copies of the agreements between the contractor and the companies whose proprietary information is accessed in advisory and assistance services. Ensure those agreements are properly executed and that the required protections are in place.
Other Companies / Information Owners
Provide proprietary information only under terms that protect it from unauthorized use or disclosure when necessary for contract performance. Determine whether information is being furnished voluntarily without restrictions or under limited-use conditions.
Government
Recognize when contractor access to proprietary information or consultant-provided information could affect competition and ensure appropriate restrictions and oversight are used to prevent unfair competitive advantage.
Practical Implications
This section is mainly about preventing a contractor from using one role to gain an edge in another procurement, especially where proprietary or source selection information is involved.
Contractors should document how they obtained information and whether any use restrictions apply; informal sharing can later become a protest or OCI issue.
Advisory and assistance contractors need written, executed agreements with information owners, and those agreements should be broad enough to cover unauthorized use and disclosure for as long as the information remains proprietary.
Marketing consultant relationships are a common hidden risk: contractors should ask direct questions about what information the consultant has and whether it could relate to a current or future acquisition.
Contracting officers should not assume the contractor has handled these issues correctly; they should request and review the underlying agreements and confirm the protections are actually in place.
Official Regulatory Text
(a) When a contractor requires proprietary information from others to perform a Government contract and can use the leverage of the contract to obtain it, the contractor may gain an unfair competitive advantage unless restrictions are imposed. These restrictions protect the information and encourage companies to provide it when necessary for contract performance. They are not intended to protect information- (1) Furnished voluntarily without limitations on its use; or (2) Available to the Government or contractor from other sources without restriction. (b) A contractor that gains access to proprietary information of other companies in performing advisory and assistance services for the Government must agree with the other companies to protect their information from unauthorized use or disclosure for as long as it remains proprietary and refrain from using the information for any purpose other than that for which it was furnished. The contracting officer shall obtain copies of these agreements and ensure that they are properly executed. (c) Contractors also obtain proprietary and source selection information by acquiring the services of marketing consultants which, if used in connection with an acquisition, may give the contractor an unfair competitive advantage. Contractors should make inquiries of marketing consultants to ensure that the marketing consultant has provided no unfair competitive advantage.