The Contractor hereby certifies that costs for work performed under this contrect and any subcontract hereunder are not duplicative of any costs charged against any other Government contrect, subcontract, or other Government source. The Contractor will include the provisions of this paragraph in every subcontract issued hereunder which exceeds $2,500. The Contractor agrees to advise the Contracting Officer, in writing, of any other Government contract or subcontract it has performed or is performing which involves work directly related to the purpose of this contract. (IXIC HAR 72)

This is in response to your recent letter transmitting
a series of questions addressing the policies of the
Department of Defense with respect to disposition and
collateral use, by contractors, of information that
they have assembled or generated under our contracts.

Our answers to these questions are set forth in the attachment hereto.

RESPONSES TO QUESTIONS ON USES AND
DISPOSITION OF INFORMATION DEVELOPED BY
FEDERAL CONTRACTORS

QUESTION 1:

Does the Department have a policy on contractor's
collateral uses and disposition of records and data;
if so:

a. Provide copies of departmental directives,
memos, regulations, as appropriate.

ANSWER:

The Department of Defense does not have a directive that addresses generally the disposition and collateral use by contractors of personal information developed in pursuit of Government contracts. Such use and disposition is now controlled only to the extent such information comes within a class of records and data that is the subject of regulation for a specific purpose. For instance:

(i) Books, documents, and records relating to contract

performance. A clause required by statute to be included in contracts
1/
for purchase of supplies and services calls for the retention by the con-
tractor of "directly pertinent books, documents, papers, and records of
the contractor involving transactions related to the contract for individual
periods specified by document type but in no event exceeding three years
after final payment under the contract. There is a similar obligation with

1/ Clause entitled "Examination of Records by Comptroller General (1975 JUN)"; Defense Acquisition Regulation (D. A. R.) 7-104. 15 (July 1976). The statutory requirement appears at 10 U. S. C. § 2313 (1976). On March 28, 1978, the Armed Services Procurement Regulation (A. S. P. R. ) was retitled as the Defense Acquisition Regulation (D. A. R.). Bearing the A. S. P. R. designation, the D. A. R. has been reprinted with its own numbering system in the Code of Federal Regulations, Title 32, Subchapter A, Parts 1-39 (1975 & 1976). Inasmuch as such publication does not reflect D. A. R. in its most current form all citations herein are to D. A. R. (1 July 1976), as revised.

respect to records of the contractor relating to negotiation, pricing or

employees (e. g., payroll sheets, tax withholding statements and paid checks) are a type of record containing personal information that would come within

these clauses.

(ii) Records and data relating to military security requirements.

A clause is required to be included in each contract whose performance

necessitates access by the contractor or its employees to classified

3/

information. That clause obliges the contractor to comply with a 4/

Manual

that in turn establishes procedures under which contractors

may clear their employees for access to information classified "Confidential. " As a part of this process, the contractor is required to obtain background information of a personal nature from the employee.

The Manual also sets forth procedures for the Department of Defense to grant clearances to contractor employees. Issuance of a Letter of Consent is the means used for granting such clearances.

The

letter to the employer-contractor contains personal information relating to the employee. The terms of the Letter of Consent authorize its reproduction by the contractor but forbid providing a copy thereof to the employee.

2/ D. A. R. 7-104. 41(a).

3/ D. A. R. 7-104.12.

4/ Department of Defense, Industrial Security Manual for Safeguarding Classified Information (DoD 5220. 22-M, October 1977).

After clearances are granted the contractor is obliged to

make certain reports to the Government with respect to cicumstances

under which clearances may have to be reevaluated. Some of these 5/

reports will contain personal information.

(iii) Records and data relating to equal employment

opportunity compliance.

6/

Executive Order 11246 requires the

inclusion of an "Equal Opportunity" clause in substantially all Federal

agency purchase contracts and subcontracts exceeding $10,000. Under 7/

the terms of the clause, the contractor agrees to furnish information

8/

These

and reports required by the Order and by the Secretary of Labor. reports may specifically identify an individual employee's race. Although this information is considered sensitive and personal by the employer and the Department of Defense, there are no obligations imposed by contract or regulation with respect to maintenance or

5/ The contractor is required to report any information received concerning cleared employee indicating that continued access of the employee to classified information may not be clearly consistent with the national interest. The contractor must also report the establishment of a personal relationship between a cleared employee and a resident of a communist country. Department of Defense Industrial Security Manual for Safeguarding Classified Information, para. 6.

6/ 3 C. F. R. 339 (1964-1965 Comp.), as amended by Exec. Order No. 11375, 3 C. F. R. 684 (1966-1970 Comp.), and Exec. Order No. 11478, 3C. F. R. 803 (1966-1970 Comp.), reprinted in 42 U. S. C. § 2000e (1970).

7/ "Equal Opportunity (1976 JUL)," D. A. R. 7-103. 18(a).

8/

e. g., the report filed annually with the procuring agency pursuant to 41 C. F. R. § 60-1.7 (1977).