Non-Disclosure Agreements in U.S.
Government Procurement Context:
Casual Exchanges and Observations
Alan Dickson, Esq.
Holland & Knight LLP
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Rock Bottom – What is an NDA?
-- A contract (“I promise not to disclose”)
subject to principles of legal validity and
interpretation like other contracts:
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-- Consideration?
-- What law applies?
-- Subject matter?
-- What does it require to be done or not done?
-- Enforcement / Disputes.
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Typical Uses of NDAs ??
• Part of employment contract or application?
• Part of officer/employee
resignation/severance package?
• Can it be imposed as part of exit interview?
• Part of Teaming Agreement between
companies? -- Very typical
• Preliminary commitment for discussions
prior to TA? -- Typical and often advisable
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NDA usage, Cont’d
• As an adjunct to “walling off” a person or
group to mitigate an Organizational
Conflict of Interest? -- Not uncommon
• However, of the 3 generic types of OCIs
[unequal access; biased ground rules;
impaired objectivity], courts and others
may view the third as not being capable of
remediation simply by firewalls and NDAs
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Usage, Cont’d
• For Government transmission of
contractor or subcontractor proprietary
data / software to third parties under
procedures in DFARS 227.7103-7 or
252.227-7025.
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NDA Usage, Cont’d
• Settlement of disputes:
– Lawsuits
– Business spinoffs / unwindings
– Divorce, custody, etc.
– Common to require non-discussion, nondisclosure of amounts, terms, etc.
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NDA usage, cont’d
• As part of company process of hiring
outside legal counsel?
• Actual example: “____ proposes to
disclose to Holland & Knight information
that may be proprietary relating to a joint
project involving development and
manufacturing of _______.”
• That one needed some tailoring,
obviously.
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Usage, Cont’d
• More generic problem: “NDAs in a Drawer”.
• Must carefully consider the particulars and the
purposes of NDAs.
• Must write so that the basics will be
understandable by persons who are not parties
to the actual transaction – e.g., bosses, higherlevel Govt officials, judges, arbitrators.
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Typical Terms of ND Agreements
-- Recite purpose, parties
-- Recite consideration
-- Define confidential information and exceptions
-- Not apply to Govt classified information
-- Spell out nondisclosure obligations and
exceptions (e.g., compelled disclosure by
subpoena, court order, etc.)
-- Term of agreement
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Typical Terms, cont’d
-- Return or destruction of materials, info
-- Injunctive relief may be sought
-- Indemnity running from recipient to grantor of
data, etc.
-- Disclaimers (e.g., no license implied, no
property rights)
-- In some cases (e.g., pre-teaming), no
requirement for parties to enter into or maintain
business relationship with each other
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Terms, cont’d
-- Parties not to disclose to third parties
the existence or content of the agreement
or of related discussions between parties
-- No warranties as to accuracy or
completeness of the confidential
information
-- Governing law; attorneys’ fees,
assignment; no waiver, entire agreement,
parties’ notices to each other; severability
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Questions / Complaints / Threats
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Thank You, SF Valley!!
Alan Dickson
Holland & Knight LLP
Los Angeles
213-896-2415
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