What is the Procurement Integrity Act and how does it affect NDAs?

The Procurement Integrity Act (41 U.S.C. 2102-2107) prohibits disclosure of contractor bid or proposal information and source selection information. Violations can result in criminal penalties, civil fines, contract cancellation, and debarment. NDAs must specifically address PIA restrictions.

What is source selection information?

Source selection information includes bid prices, technical scores, evaluation rankings, competitive range determinations, and source selection plans. This information is protected until after contract award and cannot be disclosed to competing contractors.

How should NDAs address Organizational Conflicts of Interest (OCI)?

NDAs should include OCI mitigation provisions such as information barriers, personnel restrictions, and disclosure requirements. Recipients should acknowledge potential OCIs and agree to notify the government of any conflicts arising from access to procurement information.

Can contractors share proposal information with teaming partners?

Yes, but with restrictions. Teaming partners should execute NDAs before receiving bid or proposal information. The NDA should limit use to the specific procurement, prohibit use for competitive advantage, and require return or destruction if the team dissolves.

Government Procurement NDA | Source Selection & B&P Protection

⚠️ Procurement Integrity Act Restrictions

The Procurement Integrity Act (41 U.S.C. 2101-2107) imposes strict criminal and civil penalties for improper disclosure of procurement information. Your NDA must address these restrictions.

5 Years

Maximum Criminal Sentence

$100K+

Criminal Fine

Debarment

Contract Cancellation

🔒 Protected Procurement Information

The Procurement Integrity Act protects two categories of information during competitive acquisitions:

Contractor Bid or Proposal Information

Cost or pricing data
Indirect costs and direct labor rates
Proprietary manufacturing processes
Technical approach and methodology
Management approach and key personnel
Proprietary data marked as such

Source Selection Information

Bid prices before public opening
Proposed costs or prices in sealed acquisitions
Technical/quality evaluation scores
Competitive range determinations
Rankings of responses
Source selection plans and reports

Essential Procurement NDA Provisions

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Procurement Integrity Act Acknowledgment

PIA Required

Explicit acknowledgment of PIA restrictions and agreement to comply with all requirements.

Receiving Party acknowledges that information disclosed hereunder may constitute "contractor bid or proposal information" as defined in 41 U.S.C. § 2101 and FAR 3.104-1. Receiving Party agrees to comply with all requirements of the Procurement Integrity Act (41 U.S.C. §§ 2101-2107) and FAR 3.104, including restrictions on disclosure and prohibitions on obtaining contractor bid or proposal information or source selection information improperly.

📊

Bid and Proposal Data Protection

Required

Specific protections for bid and proposal information shared during teaming or evaluation.

Receiving Party agrees that all bid and proposal information, including cost/pricing data, technical approaches, key personnel, and teaming arrangements, shall be: (i) used solely for evaluation of the proposed teaming arrangement; (ii) limited to personnel with a need to know; (iii) not disclosed to any competing offeror or government source selection official; and (iv) returned or destroyed within [30] days if the parties do not proceed with the arrangement.

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Competitive Use Prohibition

Required

Prohibits use of disclosed information for competitive advantage in the same or related procurements.

Receiving Party shall not use Confidential Information to gain competitive advantage in the Identified Procurement or any related procurement. If the teaming arrangement terminates or the parties compete separately on the Identified Procurement, Receiving Party shall not use Disclosing Party's bid or proposal information, pricing approaches, or technical solutions in preparing its own proposal.

🔎

OCI Acknowledgment and Mitigation

Recommended

Addresses potential organizational conflicts of interest arising from access to procurement information.

Receiving Party acknowledges that access to Disclosing Party's Confidential Information may create an organizational conflict of interest (OCI) under FAR Subpart 9.5. Receiving Party agrees to: (i) disclose to the Contracting Officer any OCI arising from this Agreement; (ii) implement appropriate mitigation measures as required; (iii) maintain information barriers between personnel with access to Confidential Information and personnel working on competing efforts; and (iv) execute any additional certifications required by the Contracting Officer.

📅

Post-Award Obligations

Required

Addresses what happens to information after contract award or if no award is made.

Upon contract award, termination of discussions, or expiration of this Agreement: (i) Receiving Party shall return or certify destruction of all Confidential Information; (ii) obligations regarding source selection information continue until public release; (iii) obligations regarding proprietary technical information continue for [5] years; and (iv) Receiving Party shall not hire personnel with access to Confidential Information for competitive work for [12] months without consent.

🚧 Organizational Conflict of Interest (OCI) Considerations

FAR Subpart 9.5 requires identification and mitigation of OCIs. Your procurement NDA should address:

Unequal Access to Information

One contractor has access to nonpublic information that gives competitive advantage

Biased Ground Rules

Contractor sets ground rules for procurement in which it will compete

Impaired Objectivity

Contractor's work may be affected by its financial or other interests

👥 Teaming Arrangement Considerations

When sharing procurement information with potential teaming partners, your NDA should address:

✓

Identification of the specific procurement opportunity

✓

Exclusivity period and competing bid restrictions

✓

Proposed work share allocation

✓

Cost and pricing information handling

✓

Key personnel and staffing plans

✓

Technical approach and methodology protection

✓

Termination rights if team dissolves

✓

Post-loss information handling

📅 Procurement NDA Timeline

Key milestones and obligations throughout the procurement lifecycle:

Pre-RFP Phase

Execute NDA before sharing any bid strategy, pricing approaches, or teaming discussions. Establish information barriers early.

RFP Release

Finalize teaming arrangements. Ensure all team members understand PIA restrictions. Document information access.

Proposal Preparation

Maintain strict controls on cost volumes. Limit access to pricing data. Document all disclosures.

Source Selection

Highest sensitivity period. No contact with source selection officials. Report any attempted procurement violations.

Post-Award

Return/destroy losing offeror information. Continue protecting proprietary data. Maintain OCI barriers if applicable.

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⚖️ Procurement Integrity Compliance Review Required

Procurement integrity violations carry severe criminal and civil penalties. This template provides a foundation but must be reviewed by counsel experienced in government contract law and procurement integrity requirements. When in doubt, consult with your company's ethics officer or legal counsel. Request a consultation.