Office of the President
Senior Vice President—
Business and Finance
Research Administration Office
No. 91- 11, Sup. 1
ARCHIVE. See Memo 05-01 for current
guidance at http://www.ucop.edu/raohome/cgmemos/05-01.html
ARCHIVE. See Memo 05-01 for current guidance at http://www.ucop.edu/raohome/cgmemos/05-01.html
Subject: DHHS HHSAR 352.224-70 Confidentiality of Information Clause (APR 1984)
and Grant Operating Guidance Memo 91-11, dated
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]
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
(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|
|David F. Mears|
E-Mail Message from DHHS OGC to COGR
(Attachment to C&G Memo 91-11, S1.)
From: Robinson, Shadawn (NIH/OD)
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
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.