CONTRACT AND GRANT OFFICERS

Subject: DHHS HHSAR 352.224-70 Confidentiality of Information Clause

The federal Department of Health and Human Services published revisions to its acquisition regulation (HHSAR) in the Federal Register on January 3, 2005. [http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/04-27697.pdf] This Direct Final Rule includes an amendment to the HHSAR clause at 352.224-70, Confidentiality of Information. [http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.gov/cfr_2004/octqtr/48cfr352.224-70.htm]
It "deletes unconstitutional and unenforceable portions of the Confidentiality of Information clause resulting form the outcome of "Board of Trustees of Leland Stanford Junior Univ. v. Sullivan…"

Specifically, the final rule deletes paragraphs (b) and (f) of this clause and relabels the remaining paragraphs. For your convenient reference, the following is the revised text of the Confidentiality of Information clause:

Confidentiality of Information

(a) Confidential information, as used in this clause, means information or data of a personal nature about an individual, or proprietary information or data submitted by or pertaining to an institution or organization.

(b) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the Contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the "Disputes" clause.

(c) If it is established elsewhere in this contract that information to be utilized under this contract, or a portion thereof, is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.

(d) Confidential information, as defined in paragraph (a) of this clause, that is information or data of a personal nature about an individual, or proprietary information or data submitted by or pertaining to an institution or organization, shall not be disclosed without the prior written consent of the individual, institution, or organization.

(e) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor should obtain a written determination from the Contracting Officer prior to any release, disclosure, dissemination, or publication.

(f) Contracting Officer determinations will reflect the result of internal coordination with appropriate program and legal officials.

(g) The provisions of paragraph (d) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.

(End of clause)

As paragraph (g) above states that " paragraph (d) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws," NIH and DHHS were asked if there were specific laws in mind to which this paragraph would apply. The response from the agency was that it "did not have anything specific in mind. It was intended as a general statement to make clear that fact that any laws on this matter would take precedent over the regulations contained in the HHSAR."

With this final rule, 352.224-70 Confidentiality of Information Clause is now acceptable without the need for additional changes.