University of California Office of the President Senior Vice President— Business and Finance	Memo Operating Guidance
Research Administration Office	No. 91- 11, Sup. 1 August 16, 2004

IMPORTANT NOTICE:

ARCHIVE. See Memo 05-01 for current guidance at http://www.ucop.edu/raohome/cgmemos/05-01.html

CONTRACT AND GRANT OFFICERS

Subject: DHHS HHSAR 352.224-70 Confidentiality of Information Clause (APR 1984)

Background:

Contract and Grant Operating Guidance Memo 91-11, dated October 1, 1991, provided background for

Contract and Grant Officers on the 1991 court decision regarding the subject Department of Health and

Human Services (DHHS) acquisition regulation. [http://www.ucop.edu/raohome/cgmemos/91-11.html]

That memo instructed C&G Officers to request that this clause either be deleted or that the instructions

in Operating Guidance Memo 86-02 be followed which state that the University would want

paragraphs (b), (f), and (g) of this clause deleted. [http://www.ucop.edu/raohome/cgmemos/86-02.html]

Update:

The Council on Governmental Relations (COGR) has been working with National Institutes of

Health (NIH) to remove the objectionable provisions in the HHSAR 352.224--70 that continue to

appear in NIH solicitations and contracts. Until now, University C&G Officers have had to

negotiate these provisions on a case-by-case basis.

In the e-mail message attached, the DHHS Office of General Counsel confirms that

sections (b) and (f) of the above clause are unenforceable. These provisions may continue to be

found in DHHS solicitations and contracts because revising the HHSAR is a lengthy process.

If the clause cannot be negotiated out in its entirety, C&G Officers can now confirm the

unenforceability of these two paragraphs with the NIH Contracting Officer when this clause is

retained. A proposal cover letter could include a statement such as:

The DHHS Office of General Counsel recently confirmed that in light of the 1991 US District

Court opinion in Civil Action No. 90-2656, The Board of Trustees of the Leland Stanford Junior

University vs. Louis Sullivan, M.D., Secretary, Health and Human Services, et al., Sections

(b) and (f) of HHSAR clause 352.224--70 Confidentiality of Information (APR 1984) are

unenforceable. It is, therefore, our understanding that these sections are not applicable to

this solicitation and any resulting award.

Refer: Barbara Yoder	Subject: 01, 17, 18
(510) 987-9848	Organization: F-350
Barbara.Yoder@ucop.edu
	David F. Mears
	Director

Attachment

E-Mail Message from DHHS OGC to COGR

(Attachment to C&G Memo 91-11, S1.)

-----Original Message-----

From: Robinson, Shadawn (NIH/OD)

Sent: Friday, February 20, 2004 9:40 AM

Subject: HHSAR Confidentiality of Information Clause

As mentioned at the 2/10 AMC meeting, DAPE staff contacted the DHHS Office of General

Counsel (OGC) regarding the use of HHSAR Clause 352.224-70, Confidentiality of Information

(APR 1984), in contracts awarded to universities in light of the 1991 US District Court opinion in

Civil Action No. 90-2656, The Board of Trustees of the Leland Stanford Junior University vs.

Louis Sullivan, M.D., Secretary, Health and Human Services, et al. In that opinion, the judge

refers to the "illegal confidentiality clause".

The OGC concluded that the clause could continue to be used; however, subsections (b) and (f)

are unenforceable. Further, it advises that Contracting Officers may want to inform any contractors

of the unenforceability of the subsections, for the sake of clarity. Below is a copy of our

correspondence with OGC.

As a result of the OGC opinion, the Department staff has agreed to seek a revision to the

clause eliminating paragraphs (b) and (f) in particular, through an update to the HHSAR.

We will keep you informed of the status of the HHSAR change.