No. 2

Rethinking NDAs to Attract Advanced Technology from Non-Traditional Defense Contractors

By Major Dustin D. Harrison

The United States stands at the threshold of a looming national security crisis.1 It has relied upon clear military advantages and technological superiority to deter the aggression of near-peer adversaries, but, recently, these advantages have largely disappeared.2 Furthermore, for the first time since the Industrial Revolution, the United States is no longer the prime investor in research and development (R&D).3 The United States now finds itself in the Information Age, where non-traditional defense contractors4 in the commercial sector outspend both the Government and traditional defense contractors5 in basic R&D.6 Consequently, the commercial sector now offers commercial technology with military applications, technology the United States is not always able to counter immediately, to otherwise unsophisticated adversaries.7 Readily available commercial technology also renders new military capabilities obsolete before the Department of Defense (DoD) can even field them.8 Accordingly, the DoD is trying to harness the commercial sector’s innovation to once again achieve technological superiority over both near-peer and unsophisticated adversaries by prioritizing partnerships with industry despite decreased funding.9

Any attempt to achieve innovation implicates intellectual property (IP).10 Intellectual property is critical to the innovation and success of the commercial sector in the Information Age, thereby making a company’s IP one of its most valuable assets.11 The DoD has no rights to any IP developed exclusively at private expense.12 Self-funding is more beneficial to private industry because a recipient of DoD money for R&D risks losing rights to any IP they develop.13 This means the DoD increasingly finds itself without IP rights since it is no longer the primary financier of innovation. Instead, private industry has the financial means to fund its own R&D and no longer needs DoD seed money. As a result, private industry’s interest in doing business with the Government has waned.14

The DoD must adapt to non-traditional defense contractors’ decreased interest to do business with the Government—and decreased funding for R&D—by changing the way it does business with private industry.15 The Government has attempted to adapt through creative partnerships with the commercial sector to get the benefits of its IP using flexible authorities that do not have the Federal Acquisition Regulation’s (FAR) burdensome requirements.16 However, minimizing the burden through these authorities alone may not attract non-traditional defense contractors to do business with the DoD because of their reasonable focus on IP protection. Thus, the DoD must also ensure it protects IP.17 Acquisition professionals can protect IP through nondisclosure agreements (NDAs); especially for industry engagements18 where IP may be disclosed.19

This article focuses on the protection of IP, especially trade secrets. The goal is to provide a basic understanding of IP, the importance of protecting IP, and guidance on how to draft NDAs to protect IP. Competently handling and protecting IP through NDAs will enable Army organizations to earn the trust of non-traditional defense contractors while encouraging them to do business with the DoD.

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Background

The background defines IP and explains how and why the Government now has a diminished role in innovative R&D. It illustrates how this diminished role means the Government no longer has the luxury of private industry coming to it for money and contracts and how the FAR is a barrier to contracting in the Information Age. Finally, it explains why the innovators in the Information Age are non-traditional defense contractors and why they do not need, or have any interest in, doing business with the Government.

Intellectual Property Defined and the Preference for Trade Secrets Explained

Intellectual property is intangible personal property derived from “the human intellect that the law protects from unauthorized use by others.”20 Four legal constructs protect such property and provide its owner with a limited monopoly, including copyrights,21 trademarks,22 patents,23 and trade secrets.24 Rights to IP either come from outright ownership or through a license.25 A license is granted through a contract and is an authorization from the owner to another party to use the IP.26 This article focuses on the protection of trade secrets because private industry is particularly concerned about disclosing trade secrets to the Government because any public disclosure hurts their value.27 Also, private industry prefers trade secrets over patents even though patents offer more protections and guarantees.28 This preference exists for a couple of reasons. First, a trade secret does not require disclosing the IP to the general public through a patent filing.29 Second, not filing for a patent avoids filing and maintenance fees to obtain and maintain the patent.30

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Government Contracting During the Industrial Revolution

Development of the Defense Industrial Base and the Rise of Consumerism

The First Industrial Revolution lasted from 1760 to 1830. It generally included the rise of industry and manufacturing via early machinery made possible by “new energy sources . . . such as coal, the steam engine, electricity, petroleum, and the internal-combustion engine.”31 The Second Industrial Revolution took place in the late nineteenth and early twentieth centuries. It featured more modern manufacturing techniques using new materials such as “lighter metals, new alloys, and synthetic products” along with the early use of computers to automate machinery and production.32 Military contracts are at the very root of both industrial revolutions and fueled much of the innovation that took place.33

The Government had ready access to innovation and IP developed throughout the Industrial Revolutions because the Government created unique economic demands and infant industries needed the Government’s R&D money to prosper.34 At times the United States could even force contractors to give up their patent protections or risk losing Government business because it was often the primary consumer of many products.35 The advent of the “mail order house” and the “rise of consumerism” slightly eroded the United States’ unique niche as the primary consumer for infant industries’ mass produced goods.36 However, early consumerism was still no substitute for the scope and scale of the Government’s demand, which continued to grow throughout the twentieth century as America increasingly became a military power and created “the beginning of the modern military-industrial complex.”37

Over much of the twentieth century, Government demand exploded with the complete economic and industrial mobilizations that World War I, World War II, and the Great Depression’s public works projects necessitated.38 After World War II and the Korean War, overall demand for war materiel decreased. However, the United States “ended its traditional feast-to-famine routine of demobilization” and maintained a consistent demand for goods and services to maintain a large, standing military force because of the Cold War.39

Despite this constant demand, towards the latter half of the twentieth century, the increasingly rapid rate of innovation during the Information Age caused problems within the defense industrial base.40 Traditional defense contractors had to specialize and increase the use of subcontracting to keep up with the fast-paced advances in technology.41 By the early 1990s, the pace of innovation had reached the point where, while the DoD would attempt to purchase the latest technology, it would be outdated by the time it was delivered due to rapid technological advancements, such as microchips.42 To compound this problem, companies increasingly chose not to do business with the Government because of increased overhead and administrative costs created by its complicated acquisition laws and regulations.43 Furthermore, the consumerism trend reached the point where businesses now had a readily-available demand for goods and services from non-Government customers who did not have any such strict regulations.44

The FAR and Early Acquisition Reforms

The United States military used the Armed Services Procurement Regulations as the main authority to enter into contracts at the start of the Information Age.45 Since 1984, the FAR has been the main authority for the DoD to enter into contracts.46 Different Federal agencies added their own supplemental rules and requirements to the FAR, which made the overall regulatory scheme increasingly complex and difficult to understand.47 By the 1990s, all these supplemental acquisition regulations’ requirements discouraged companies from doing business with the DoD for several reasons. First, the depth and breadth of acquisition regulations became nearly insurmountable.48 Second, contractors were becoming increasingly disgruntled over the amount of paperwork required for a Government contract.49 Third, all the regulatory requirements, excess paperwork, and increased administrative requirements became increasingly expensive as overhead costs increased.50 Fourth, industry innovators became discouraged from working with the DoD over concerns their IP would not be protected.51

Congress addressed some of these problems in the mid-1990s by rewriting much of the FAR. This rewrite, the Federal Acquisition Streamlining Act (FASA), relaxed overly-stringent rules and empowered contracting officers52 by giving them more discretion.53 It also greatly improved the speed at which the Government could acquire commercial items.54 Yet FASA only addressed developed commercial items that were already available on the open market. It did not address the need for flexible contracting methods outside of the FAR to partner with those innovators who are conducting R&D activities in emerging technologies.55 Additionally, none of these reforms assured non-traditional defense contractors that the DoD would safeguard their IP.56

Because the FAR was a product of the Industrial Age, it worked best when technology developed at a slower rate and contract execution did not need to happen quickly. The complexities of the FAR, even as amended by FASA, have shown that it does not offer the flexibility needed in the Information Age. As a result, Congress enacted new, non-FAR authorities with the potential of executing agreements more quickly to match the pace of innovation in the Information Age.57 These non-FAR authorities include Other Transactional Authority (OTA),58 grants and cooperative agreements,59 cooperative research and development agreements,60 and patent licensing agreements.61 However, these non-FAR authorities have not addressed all of the Government’s contracting woes in the Information Age.

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Government Contracting in the Information Age

The Information Age has introduced new, advanced, and disruptive technologies like artificial intelligence, three-dimensional printing, cloud computing, 5G wireless networks, and increased use of automation.62 Private industry developed many of these technologies without any Government assistance or involvement.63 Instead, private industry has ignored the Government because other sectors provide lucrative demand through world trade and the $88 trillion global economy.64 The success of global trade means businesses do not need Government funding and can generate their own cash for R&D on an unprecedented scale, while the DoD budget continues to decrease.65 The days when non-traditional defense contractors would fight for Government contracts to have financial security are over.66 With these advances in technology occurring at a rate never seen before, the DoD needs acquisition vehicles that can keep pace with innovation.67

A contracting officer's role was much different before the FAR existed:

[C]ontracting officers were vested with a great deal of discretion, hampered by very few regulations which constricted their judgment. They could adapt contracts and clauses to individual circumstances. Throughout the nineteenth century, as the individual services and agencies began to impose standardized contracts, that discretion decreased. The beginning of the twentieth century saw the first government-wide standardized forms and clauses. These now pervade the procurement process and literally strip the contracting officer of discretion. Contracting officers today are told what to do and how to do it, down to the most minute details . . . . Such a process is disconcerting for contracting officers because it stifles their ingenuity and individuality; at the same time, it discourages contractors because it presents them with a contract virtually on a take-it-or-leave-it basis.68

The new, non-FAR-based authorities are designed to lose the “take-it-or-leave-it” mindset and restore the discretion for acquisition professionals to enter into agreements that non-traditional defense contractors are accustomed to seeing.69

These non-FAR authorities appear to offer solutions to every current barrier that discourages non-traditional defense contractors from doing business with the DoD.70 They do not have the strict regulatory requirements that result in excessive paperwork and overhead, and they provide acquisition professionals the discretion to find creative ways to contract with industry without standardized forms.71 They even solve the decreased R&D defense budget by permitting agreements under which the agency does not pay the partner for its work; instead, they provide logistical support such as the use of Federal laboratories.72

Nevertheless, the persistent fear that non-traditional defense contractors who work with the Government will lose their IP remains.73

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Intellectual Property

It is critical for acquisition professionals to understand the importance of protecting IP—especially trade secrets—and keeping them confidential to gain the trust of non-traditional defense contractors.74 Currently, the need for confidentiality is a problem for the DoD’s business with non-traditional defense contractors due to private industry’s perception it must disclose its IP to Government officials who do not understand the importance of keeping trade secrets confidential.75 Using NDAs is the solution to this perception.76 However, this solution is problematic because of a perception that NDAs are not binding on the Government.

The IP and NDA Problem

Cases like Liberty Ammunition, Inc. v. United States77 create the perception that Government officials do not understand how to handle IP. This case featured an inventor of a new type of ammunition who met with the chief of small arms for the United States Infantry Directorate of Combat Development (DCD) to determine if the ammunition would meet the Army’s requirements.78 The inventor took all appropriate steps to protect his invention by executing an NDA signed by the Chief of the DCD on behalf of the United States.79

The inventor later sued the United States, alleging it violated the NDA when it required other munitions manufacturers to adopt the specifications invented by Liberty Ammunition, which caused competitors to violate Liberty Ammunition’s patent.80 However, both the Court of Federal Claims and the Court of Appeals for the Federal Circuit determined the NDA was unenforceable because the Chief of the DCD was not a contracting officer with the actual or implied actual authority to bind the Government.81 The courts made this determination even though it was the Chief of the DCD’s job to “identify and develop new and improved technologies, and to work in collaboration with private industry,” which meant he frequently met with industry representatives who often shared IP with him.82 Consequently, this case has been reported as a warning to non-traditional defense contractors that “[i]n almost all cases, a[n] [NDA] with a government official will not bind the Federal [G]overnment.”83 Non-traditional defense contractors are always going to be wary of doing business with the DoD if this perception continues.84 Fortunately, new policies have been implemented to start addressing this concern, as discussed below.

New IP Policies

The DoD’s efforts to better manage IP originate from the 2018 National Defense Authorization Act.85 This act required the DoD to develop policies concerning the acquisition of IP or licenses as part of the acquisition process and hire and train subject matter experts to advise on such issues.86 The DoD started implementing this law by creating a new office called the IP Cadre.87 The IP Cadre has created and implemented IP policies while also serving as a “central point of contact for communication with the defense industry on IP issues.”88 New policies acknowledge the need to protect private industry’s IP but do not give any specific guidance on how it should be achieved.89

The DoD based these new policies on policies the Army recently implemented.90 The Army’s policies also emphasize the need to account for IP throughout the planning and acquisition process, which includes the need to protect IP to attract non-traditional defense contractors.91 The policy recommends the use of NDAs and acknowledgments and provides example templates, but it does not go far enough.92

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Protecting IP

Necessary Policy Changes

The DoD’s policies for both industry engagements and IP either fail to mention protecting IP or fail to provide any specifics on how to protect it.93 The Army’s policies are also inadequate because they merely provide that “[NDAs] may be used in the planning/pre-solicitation phase to protect both Government and industry IP.”94 These policies need to change to include stronger language that requires the use of NDAs for any industry engagement whenever IP will be disclosed, given its importance to private industry.95

Further, the Army’s IP policies focus on the FAR saying, “[t]his policy applies to . . . traditional [FAR]/Defense Federal Acquisition Regulation Supplement (DFARS)-based contracts. Where feasible, the principles of the policy should be applied to non-FAR/DFARS instruments . . . .”96 The Army policies acknowledge the increased use of non-FAR authorities, yet they continue to focus on the FAR instead of providing guidance specifically tailored to other acquisition vehicles.97 These policies must focus on non-FAR instruments to increase the likelihood of attracting non-traditional defense contractors.98

Finally, policies should empower certain acquisition professionals to actually bind the Government when signing NDAs to make their interactions with industry more meaningful. The creation of a new category of contracting officer, who can bind the Government under an NDA concerning the disclosure of information without the ability to obligate the Government to the expenditure of funds, can accomplish this goal. Such an action will attract more non-traditional defense contractors and lead to more meaningful industry engagements because companies will feel more comfortable disclosing their trade secrets with Government acquisition professionals who can execute binding NDAs.99 Furthermore, the template NDA and acknowledgment in Army policies need to be thorough enough to adequately protect the IP.100

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Content for NDAs

As previously mentioned, the value of certain types of IP rights remains only if the information remains confidential.101 Nondisclosure agreements permit the owner to disclose the information while maintaining confidentiality.102 Accordingly, an NDA “should clearly define the confidential information” while ensuring the definition is not so narrow that it “result[s] in the loss of trade secret protection . . . with respect to that portion of the information that falls outside the scope [nor can it be] an overly broad definition [that may make it] unenforceable.”103 Similarly, the NDA must place limitations on how the information may be used and whether it may be disclosed to another party.104 It is also advisable for NDAs “to limit disclosure to . . . specific employees . . . that have a need to review the confidential information, and to identify such persons by name, job title, or other description.”105 Additionally, the recipient should be held responsible for any damages resulting from a breach should any of the recipient’s employees make an improper disclosure in accordance with Title 18 of the U.S. Code.106 Requiring employees to sign written acknowledgments outlining their duty to maintain confidentiality can prevent improper disclosures.107

Nondisclosure agreements should also explain who may enforce the agreement, certify the provider is authorized to disclose the information, reserve the right to any “improvements, enhancements, or refinements” to the owner of the IP, and “disclaim any representation and warranties, express or implied, as to the accuracy, completeness, or usefulness of the confidential information.”108 Terms should also identify specific points of contact to ask questions or seek additional information so the provider of the information can easily track what information has been provided.109 Similarly, the agreement should prohibit any documents from being duplicated and require any “analyses, compilations, evaluations, notes, or other documents prepared by the recipient relating to the confidential information [to be] destroyed.”110 Finally, it is vital the NDA include a requirement that the IP be appropriately marked to prevent disclosure; including the Freedom of Information Act.111

Appendices A and B encompass recommended changes to the templates provided by the Army’s policies based upon the above discussion.112

CPT Nicolas L. Bauer, a JA for the 1st Theater Sustainment Command, completes Jacob's Ladder during an air assault pre-assessment on Camp Buehring, Kuwait. Soldiers completed a nine-event obstacle course as a prerequisite for Air Assault School. (Credit: SPC Cecilia Soriano)

Conclusion

The growing threats of near-peer adversaries and the rapid rate of innovation make it more important than ever for the DoD to attract today’s technological innovators, who also happen to be non-traditional defense contractors wary of doing business with the Government. The DoD is working to overcome this apprehension by using flexible, non-FAR-based authorities. However, the DoD will not fully overcome this apprehension until it increases its use of NDAs signed by individuals who have actual authority to bind the Government in engagements with private industry. TAL

MAJ Harrison is the Brigade Judge Advocate for the 1st Brigade Combat Team (Arctic), 11th Airborne Division at Fort Wainwright, Alaska.

Appendix A: Sample NDA

Nondisclosure Agreement

This Nondisclosure Agreement (“Agreement”) is entered into by and between ________ with its principal offices at ______ (“the Company”) and ________ on behalf of the United States Government (“the Government”) referred to collectively as “Parties.”

1. This Agreement prevents the Government from releasing any trade secrets disclosed by the Company unless otherwise authorized in writing.

2. The purpose and use of any trade secrets the Company discloses is strictly limited to evaluating and determining whether it is useful to ___(insert program or project name).

3. A “trade secret,” as defined by 18 U.S.C. § 1839(3), is “all forms and types of financial, business, scientific, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if – (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure of the information[.]”

4. The Government, as the recipient of the trade secrets, shall –

a. Accept the trade secrets “as is” without any representation as to their accuracy, completeness, usefulness, or suitability for their intended use whatsoever.

b. Use, modify, reproduce, release, perform, display, or disclose the trade secrets received only for evaluation purposes and not for any business purpose. The Government shall not, for example, enhance, decompile, disassemble, or reverse engineer the trade secrets.

c. Not release, perform, display, or disclose the trade secrets without express written permission of the Company.

d. Adopt or establish operating procedures and physical security measures designed to protect the trade secrets from inadvertent release or disclosure to any unauthorized third party. This shall include appropriately identifying and labeling everything that is disclosed as being protected by the Trade Secrets Act, 18 U.S.C. § 1905 and exempt from disclosure under the Freedom of Information Act in accordance with 5 U.S.C. § 552(b)(4).

e. Compile a list identifying the personnel who must receive the trade secrets in order to accomplish the purpose of this Agreement. The list shall identify the personnel either by name, job title, or some other description and identify whether they are a Department of the Army Civilian employee, Soldier, or support contractor.

f. Require all Department of the Army Civilian employees and Soldiers identified in the above-mentioned list to complete an Acknowledgment of Nondisclosure Obligations before permitting them to access the trade secrets.

g. Ensure any support contractors identified in the above-mentioned list have executed a separate Nondisclosure Agreement with the Company and obtain the Company’s written approval to disclose the trade secrets to the support contractors.

h. Direct all questions or requests for more information to the point(s) of contact provided in writing by the Company.

i. Return or destroy the trade secrets provided by the Company, including any copies, no later than 30 days after the date shown, or the occurrence described, in paragraph 10 of this Agreement.

j. Certify to the Company that everything has been returned or destroyed, including any and all analyses, compilations, evaluations, notes, or other documents prepared by the recipient relating to the trade secrets.

5. The Company disclosing the intellectual property shall –

a. Warrant that it is the owner of the intellectual property or otherwise has the legal authority to disclose it to the Government without violating the rights of any third parties.

b. Disclose the identity of any third parties who own any portion of the trade secrets being disclosed or may otherwise be entitled to enforce this Agreement.

c. Identify in writing specific individuals the Government should contact for any questions or requests for additional information, if necessary.

d. Clearly mark all trade secrets that are in writing or some other tangible form. If any disclosures are done orally, the Company shall use reasonable efforts to summarize the content of oral disclosures which contain trade secrets, but failure to provide such summary shall not affect the nature of the information disclosed if such information was identified as confidential or proprietary when orally disclosed.

6. Any improvements, enhancements, or refinements that may be made to the trade secrets in the course of performing this Agreement shall be owned by the Company.

7. The provisions of this Agreement are consistent with, and do not supersede, conflict with, or otherwise alter any employee’s obligations, rights, or liabilities created by existing statute or Executive Order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive Orders and statutory provisions are incorporated into this Agreement and are controlling.

8. Nothing in this Agreement shall be construed as an obligation or commitment of the Government to issue a solicitation for the program or project identified in paragraph 2, or to make a contract award to the Company. Subsequent use and disclosure of the trade secrets, either shared pursuant to this agreement or developed under a subsequent contract, will supersede this Agreement and be controlled by the terms and conditions of the solicitation, if issued, and any resultant contract.

9. This Agreement is effective as of the last signature date below.

10. This Agreement shall be effective for the period commencing with the parties’ execution of this Agreement and ending upon ______(date)_____ or the release of a Government solicitation for the program or project identified in paragraph 2, whichever is first. The obligations imposed by this Agreement shall survive the expiration or termination of the Agreement.

Appendix B: Sample Acknowledgment of Nondisclosure Obligations

Acknowledgment of Nondisclosure Obligations

The undersigned, as an employee of the United States Government (“Government”), hereby acknowledges that, in accordance with this Nondisclosure Acknowledgment (“Acknowledgment”), material may be provided in confidence that contains trade secrets, proprietary, confidential commercial, financial information, and/or any other intellectual property (“Protected Information”) of ________, with its principal offices at ______ (“the Company”). This material is being provided in accordance with a Nondisclosure Agreement (“the NDA”) signed by the Company and ________ on behalf of the Government effective __(date)___ pertaining to ___(insert program or project name)___.

The undersigned further acknowledges the responsibility and obligation to protect such information from disclosure to the extent permitted or required by 5 U.S.C. § 552(b)(4), Freedom of Information Act; Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information; 18 U.S.C. § 1905, Trade Secrets Act; 18 U.S.C. § 1831, Economic Espionage Act; and any other law, regulation, and requirement applicable to Government employees.

By signing this acknowledgment, the undersigned acknowledges all obligations under the authorities listed herein. However, in no event shall this acknowledgment be interpreted as creating a contract between the Company and the undersigned or as binding against any other person or entity, including the Government, except as provided in the NDA.

The undersigned acknowledges that, in receiving the Protected Information, the above authorities dictate all the responsibilities and obligations required to protect against any impermissible disclosure. The following paragraphs are provided to supplement and implement all obligations. In the event of any conflicts or inconsistencies, the authorities listed in the second paragraph shall take precedence over the following guidelines:

1. Restrictions

a. The undersigned acknowledges that –

i. All of the Protected Information must be held in confidence.

ii. All of the Protected Information must only be used for the purpose(s) stated in the NDA.

iii. The Protected Information may only be reproduced to the extent necessary and properly labeled in accordance with the NDA.

iv. The Protected Information can only be disclosed to those identified by the list compiled in accordance with the NDA and who have also signed an Acknowledgment.

v. The Protected Information cannot be disclosed to any third party, including but not limited to any manufacturer or independent contractor, without prior written approval of the Company.

vi. Written approval of the Company must be obtained before any of the Protected Information received may be reverse engineered, disassembled, decompiled, or analysis of the physical construction of any items.

vii. Any questions or requests for more information must be routed through the point(s) of contact provided by the Company in accordance with the NDA.

b. These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive Order relating to (1) classified information, (2) communications to Congress, (3) the reporting to the Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive Orders and statutory provisions are incorporated into this Acknowledgment and are controlling.

2. Information Considered to Be Protected Information.

The restrictions on the use and disclosure of Protected Information as set forth above shall not apply where such Protected Information:

a. Is wholly and independently developed by the undersigned or the Government without the use of the Company’s Protected Information.

b. Is or has become generally available to the public without violation of any law or Executive Order, either directly or indirectly.

c. At the time of disclosure, the Protected Information was known by the undersigned or Government without restriction as evidenced by documentation possessed by the Government or the undersigned.

d. Is approved for release by written authorization of the Company, but only to the extent of and subject to such conditions as may be imposed by such written authorization.

e. Is disclosed in response to a valid order of a court or other governmental body in the United States or any political subdivision thereof, but only to the extent of and for the purposes of such order; provided, however, that the undersigned first notifies the Company in writing of the order and permits the Company to seek an appropriate protective order.

3. Return of the Protected Information. The Company shall retain its preexisting property rights in the Protected Information. Unless otherwise waived in writing by the Company, all materials containing any Protected Information (including any and all copies) shall either be returned to the Company or destroyed in accordance with the timelines or occurrences described in the NDA. The undersigned must then certify that all Protected Information has been returned or destroyed. Destruction shall include any and all analyses, compilations, evaluations, notes, or other documents in written or electronic form the undersigned prepared relating to the Protected Information.

4. Term and Termination. This Acknowledgment shall begin on the date it is signed and shall terminate upon the termination or expiration of the NDA.

5. Survivability. The obligations contained in this Acknowledgment shall survive and continue after any termination or expiration and in accordance with applicable law.

6. Applicability. The NDA constitutes the entire understanding between the Company and the Government pertaining to the disclosure of the Protected Information. This Acknowledgment and any discussions does not create any valid or binding agreement between the Company and the undersigned. This Acknowledgment is strictly informing the undersigned of all obligations to protect all Protected Information before it can be provided. Further, this Acknowledgment applies only to the undersigned and may not be assigned or transferred, in whole or in part, except as allowed by applicable law.

Notes

1. Paul Sonne & Shane Harris, U.S. Military Edge Has Eroded to ‘a Dangerous Degree,’ Study for Congress Finds, Wash. Post (Nov. 14, 2018, 11:43 AM), https://www.washingtonpost.com/world/national-security/us-military-edge-has-eroded-to-a-dangerous-degree-study-for-congress-finds/2018/11/13/ea83fd96-e7bc-11e8-bd89-eecf3b178206_story.html; Eric Edelman et al., The Nat’l Defense Strategy Comm’n, Providing for the Common Defense 11 (2018).

2. Edelman et al., supra note 1, at 7–8 (describing the technological advancements made by China and Russia to negate the United States military’s superiority); Military Assessment of the Security Challenges in the Indo-Asia-Pacific Region Before the H. Armed Servs. Comm., 115th Cong. 67 (2017) (statement of Admiral Harry B. Harris, Jr., Commander, U.S. Pacific Command) (testifying that “[o]ur near-peer competitors like China and Russia are quickly closing the technological gap”).

3. See James F. Nagle, History of Government Contracting 75–77, 184–87 (2d. ed. 1999) (describing the impact of Government contracts on innovation and wealth creation in the United States); Edelman et al., supra note 1, at 28 (“Today, the U.S. private sector invests significantly greater amounts than the federal government in research and only a small portion of government investment goes to developing emerging technologies.”).

4. A non-traditional defense contractor is defined as an entity that “do[es] not typically work with the federal government.” U.S. Gov’t Accountability Off., GAO-21-8, Army Modernization: Army Should Improve Use of Alternative Agreements and Approaches by Enhancing Oversight and Communication of Lessons Learned 5 (2020) [hereinafter GAO Improve Use of Alternative Agreements].

5. Traditional defense contractors are companies that make up the defense industrial base and are characterized as businesses that typically provide the DoD with products and services. Heidi M. Peters, Cong. Rsch. Serv., IF10548, Defense Primer: U.S. Defense Industrial Base 1 (2021).

6. Edelman et al., supra note 2, at 28; Sarah Feldman, Private Sector Outspends Defense Contractors in R&D, Statista (Oct. 1, 2019), https://www.statista.com/chart/19515/defense-spending-research-development (“Last year Amazon spent over $22 billion company-wide on R&D. That’s almost ten times more than longtime government contractor Boeing, which allocated just over $3 billion to research and nearly twenty times more than Lockheed Martin.”).

7. E.g., Douglas Steinberg, Note, Leveraging the Department of Defense’s Other Transaction Authority to Foster a Twenty-First Century Acquisition Ecosystem, 49 Pub. Cont. L.J. 537, 546 (2020) (stating ISIS successfully utilized commercial drones that the United States military could not immediately neutralize).

8. Feldman, supra note 6 (“[I]t can take two years to secure a contract and then additional time to test, approve, and prototype work. When the bureau finally uses the finished product, it may no longer match what the government needs, particularly for fast-moving fields and industries like software development.”); Jen Judson, Keeping the Momentum: New US Army Chief Will Build on Major Foundation He Helped Lay, Def. News (Aug. 9, 2019), https://www.defensenews.com/land/2019/08/09/keeping-the-momentum-new-army-chief-will-build-on-major-foundation-he-helped-lay (featuring an interview with General James C. McConville, Chief of Staff of the Army, concerning the rapid pace of technological advancements in the Information Age).

9. Scott Andrew Browne, Patents for Soldiers 41 (June 10, 2016) (MMAS dissertation, U.S. Army Command and General Staff College); Edelman et al., supra note 1, at 49–61 (discussing military funding issues beginning with the ramifications of the Budget Control Act and reduced spending to control the national debt).

10. See Kal Raustiala, Innovation in the Information Age: The United States, China, and the Struggle Over Intellectual Property in the 21st Century 58 Colum. J. Transnat’l L. 531, 532 (2020) (“Innovation is widely seen as a key driver of economic success in the twenty-first century . . . [a]nd while the secret sauce that yields a highly innovative economy is difficult to identify . . . robust and broad intellectual property (IP) protection is widely believed to be an essential component.”).

11. Id.; Lynn P. Hendrix & Peter O. Hansen, Dealing with Intellectual Property in Mergers and Acquisitions, 47 Rocky Mt. Min. L. Inst. § 8.01 (2001).

12. See generally DFARS 252.227-7013(b)(3)(i)(A) (2023) (explaining the limited rights DoD has to IP developed at private expense even when it is part of a government contract).

13. DFARS 252.227-7013(b)(1)(iii) (March 2022) (explaining when the DoD has unlimited rights to something developed exclusively with Government funds); Michael P. Fischetti, Challenges Facing Non-Traditional Contractors, Def. Acquisition Mag. Blog (Mar. 16, 2020), https://www.dau.edu/library/defense-atl/blog/Challenges-Facing—Non-traditional-Contractors (indicating a reason companies do not want to do business with the Government is the belief it will need to surrender all of its IP as a result); see infra notes 77–84 and accompanying text (describing private industry interpretation of a case where an inventor sued the Government for IP infringement, but the court gave no relief because it found the NDA was not binding); e.g., Nagle, supra note 3, at 82 (Asa Waters’ “contract is of particular interest because the price of $14.00 included the right of the United States to use in any of its armories the method of welding barrels covered by the Waters patent and also extended this right to any other contractors making arms for the government.”).

14. See Edelman et al., supra note 2, at 28; Feldman, supra note 6; infra Section titled “Government Contracting During the Industrial Revolution” (describing the critical role Government contracts and funding played in spurring innovation from the Civil War to the Cold War).

15. See Fischetti, supra note 13 (describing current barriers facing the DoD to work with non-traditional defense contractors).

16. U.S. Dep’t of Def., Other Transactions Guide 4 (2018) [hereinafter OTA Guide] (describing other transactional authorities (OTA) and the flexibility they offer); U.S. Dep’t of Army, Dir. 2018-26, Enabling Modernization Through the Management of Intellectual Property, encl. 1, para. 5 (7 Dec. 2018) [hereinafter Army Dir. 2018-26] (listing grants, cooperative agreements, cooperative research and development agreements, and patent licensing agreements as examples of non-traditional government contracting instruments); GAO Improve Use of Alternative Agreements, supra note 4, at 4–5 (listing non-FAR authorities and explaining how use of these authorities supports the Army’s modernization efforts); Christopher R. Yukins, The U.S. Federal Procurement System: An Introduction, 2017 Upphandlingsrättslig Tidskrift [Procurement L. J.] 69, 73, 79 (2017) (describing how the amount of procurement regulations has created barriers to doing business with the Government); Fischetti, supra note 13 (indicating non-traditional defense contractors do not want to contract with the Government because procurement regulations are too “cumbersome and complicated”).

17. See Fischetti, supra note 13 (stating two reasons non-traditional defense contractors do not want to work with the Government is the fear they must give away their IP and “that government personnel simply don’t understand how industry works.”); Hendrix & Hansen, supra note 11, § 8.02(1)(b) (“Trade secrets arise as a matter of law if secrecy is maintained, and appropriate steps must be taken to ensure that employees, business partners, and potential business partners with access to trade secrets maintain their secrecy.”).

18. Industry engagements entail meeting with the private sector to assess their capabilities. Although this requires fostering relationships, the Government must continue to observe ethical boundaries. Memorandum from Deputy Sec’y of Def. to Secretaries of the Mil. Dep’ts et al., subject: Engaging with Industry (2 Mar. 2018) [hereinafter DoD Industry Engagement Memo].

19. Army Dir. 2018-26, supra note 16, encl. 1, paras. 6(a)(1), 6(a)(1)(b) (requiring measures to protect IP disclosed during industry engagements and that “[NDAs] may be used in the planning/pre-solicitation phase to protect both Government and industry IP.”).

20. Intellectual Property, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/intellectual_property (last visited Mar. 1, 2023).

21. A copyright is an original work that must be “fixed in a tangible medium.” Hendrix & Hansen, supra note 11, § 8.02(2)(a). Examples of copyright works are books, music, sculptures, motion pictures, recordings, and architectural drawings. Hendrix & Hansen, supra note 11, § 8.02(2)(a).

22. A trademark “is any word, name, symbol, or device, or any combination thereof, adopted and used by a party to identify its goods or services and to distinguish them from those manufactured and sold or provided by others.” Hendrix & Hansen, supra note 11, § 8.02(3)(a).

23. A patent concerns the invention or discovery of “a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement.” Hendrix & Hansen, supra note 11, § 8.02(4)(a). “The concept behind patent law is that, in return for the inventor fully disclosing the device or process, the government grants a monopoly to the inventor[.] The basic premise is that society will benefit from full disclosure of the invention and thereby will be able to improve upon the invention.” Id. Patents are created by filing them with the United States Patent and Trademark Office. Hendrix & Hansen, supra note 11, § 8.02(4)(b).

24.

Trade secrets consist of all forms and types of financial, business, scientific, technical, economic, or engineering information (including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes). This designation applies if: (a) the owner has taken reasonable measures to keep such information secret, and (b) the information gives an opportunity to obtain an economic advantage over competitors who do not know or use the information.

U.S. Dep’t of Army, Off. Assistant Sec’y of Army (Acquisition, Logistics & Tech.), Implementation Guidance to Accompany Army Directive 2018-26: Enabling Modernization Through Management of Intellectual Property 7 (C1, 17 Dec. 2020) [hereinafter Army Dir. 2018-26 Guide].

25. Hendrix & Hansen, supra note 11, § 8.01; Army Dir. 2018-26 Guide, supra note 24, at 8–9.

26. Hendrix & Hansen, supra note 11, § 8.01 (“Licenses can place a variety of restrictions on the use and disclosure of [IP]. Restrictions can be placed on where, when, for how long, how, and by whom the [IP] can be used.”).

27. Army Dir. 2018-26 Guide, supra note 24, at 7 (“[I]ndustry tries to limit/restrict the Government’s rights in trade secrets because if/when the Government releases or discloses this information to someone else, the value of that trade secret is diminished.”).

28. Browne, supra note 9; Hendrix & Hansen, supra note 11, § 8.02(4)(e).

29. Browne, supra note 9, at 75.

30. Browne, supra note 9, at 76.

31. Industrial Revolution, Britannica Academic (Jan. 2, 2023), https://britannica.com/event/Industrial-Revolution.

32. Id.

33. See, e.g., Nagle, supra note 3, at 2.

Western military enterprise had mainly caused the rise of modern industrial capitalism. Since the [United States’] birth, industrial development has been tied to military contracts. Besides mechanized production itself, such items as computers, sonar, radar, jet engines, swept-wing aircraft, insecticides, transistors, fire and weather-resistant clothing, antibacterial drugs, numerically controlled machine tools, high-speed integrated circuits, and nuclear power are just a few of the best-known industrial products of military enterprise since World War II.

Nagle, supra note 3, at 2.

34. Nagle, supra note 3, at 75–77 (describing Eli Whitney’s desperation for a government contract and advance payments to produce muskets in order to keep all his factories in business).

[The rise of consumerism after the Civil War created] . . . department stores like Macy’s; the mail order catalogs, like Sears and Montgomery Ward; and the chain stores, like the Great Atlantic and Pacific Tea Company [which] could not have [been] developed without government contracts. [Consequently,] [g]overnment contracts . . . transformed the wealth creation process in this country . . . . [F]or hundreds of years . . . land had been the ticket to wealth. The “landed gentry” or the “propertied classes” were aptly named; their money flowed directly from the land. Merchants were considered little more than tradesmen and did not achieve real respectability until they had acquired land.

[The transformation caused by government contracts] happened because most private contracts were relatively small matters. It was only the government, with its huge requirements, that enabled the amassing of wealth . . . . Merchants became capitalists or industrialists. The wartime contracts of J.P. Morgan, Phillip Armour, Clement Studebaker, Cornelius Vanderbilt, the DuPonts, and Andrew Carnegie allowed them to amass fortunes that funded their enterprises for the remainder of the nineteenth century.

Nagle, supra note 3, at 215–216.

35. See, e.g., Nagle, supra note 3, at 82.

36.

After the [Civil War], the military demobilized quickly. Firms which months before had more government business than they could handle now had idle plants, workers, and inventory.

For some, the transition was relatively painless and even exciting as new opportunities opened. The wartime production of the clothing and shoe industries had so standardized the product fines and techniques that now they could easily mass produce items. They clearly had a ready civilian market, however, they needed an outlet beyond the local community. That outlet came in 1872 when the first mail order house in the country was opened in Chicago. Now, mass produced goods could be purchased from anywhere in the country and delivered by the [transportation infrastructure] that government contracting had subsidized.

Nagle, supra note 3, at 215.

37. Nagle, supra note 3, at 223.

38. See Nagle, supra note 3, at 269, 311, 361, 387, 410, 431.

39. Nagle, supra note 3, at 445, 452.

40. Nagle, supra note 3, at 445.

41.

Modern weapons have become so complicated that no defense conglomerate, no matter how sophisticated its research and engineering staff or how extensive its capital assets, can even hope to build them alone. Before, subcontracting was done reluctantly and at government urging; now it has become accepted and vital.

Nagle, supranote 3, at 455.

42. Nagle, supra note 3, at 504 (“In the 1970s, 1980s, and 1990s, information technology exploded so quickly, it simply outpaced the most efficient acquisitions. Often, when the technology was delivered . . . the specified items were outdated.”).

43. Nagle, supra note 3, 506–07.

44.

After World War II, the confluence of an incredible mass production capacity and piles of cash stockpiled during the war by consumers meant the greatest and longest boom in history. Gradually, many contractors, especially sellers of commercial items, found other customers, including many who made larger purchases than government agencies and without all the extra risks and hassles. The government’s share of the market shrank while the amount it had to spend also decreased.

Nagle, supranote 3, at 505.

45. U.S. Defense Procurement, GW Law: The Jacob Burns L. Lib. (Feb. 13, 2023, 6:02 PM), https://law.gwu.libguides.com/c.php?g=330645&p=2219710 (explaining the Armed Services Procurement Regulation was in effect from 1948 to 1978).

46. Kate M. Manuel et al., Cong. Rsch. Serv., R42826, The FAR: Frequently Asked Questions, at summary (2015); FAR 1.101 (2022) (“The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies.”).

47. Nagle, supra note 3, at 506 (“Seventy-nine separate offices issued voluminous acquisition regulations . . . equal[ing] five times the length of Leo Tolstoy’s novel War and Peace.”).

48. Nagle, supra note 3, at 506.

49. Nagle, supra note 3, at 506 (“One respondent stated that a recent quote on a government job required three weeks and 100 pages of paperwork in contrast to a similar commercial job that required three hours and 10 pages of paperwork.”).

50. Nagle, supra note 3, at 506–07 (“[A]quisition laws represented the apex of a ‘cascading pyramid’ of stricter regulations, overly-detailed military specifications, and common procurement practices typically added 30 to 50 percent of the costs of doing business with the [DoD].”).

51. Nagle, supra note 3, at 507 (“Alcoa, the aluminum giant, had developed special alloys for airplane manufacturing, but Alcoa wasn’t eager to trade with the Pentagon because it feared the disclosure of its technology.”).

52. A contracting officer is “a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings.” FAR 2.101 (2022).

53. Nagle, supra note 3, at 512 (“The report committed the Clinton Administration to rewrite [the FAR and agency supplements to] . . . shift from rigid rules to guiding principles, promote decision making at the lowest possible level, end unnecessary regulatory requirements, and facilitate innovating contracting approaches.”).

54. Nagle, supra note 3, at 516 (“FASA substantially overhauled the laws governing federal acquisition. It increased the government’s access to products developed in the commercial sector, created a new simplified threshold, changed protest and dispute procedures, revised cost principles, gave an expansive definition of ‘commercial item’ . . . and streamlined and consolidated acquisition laws.”).

55. See Nagle, supra note 3, at 516.

56. Fischetti, supra note 13. See Nagle, supra note 3, at 507.

57. See, e.g., Steinberg, supra note 7, at 557 (explaining the purpose of OTAs was to provide NASA with “a method to rapidly procure leading technology to compete with the Soviet Union in the space race”).

58. 10 U.S.C. § 4021 (2022); 10 U.S.C. § 4022 (2022); OTA Guide, supra note 16, at 4.

59. 10 U.S.C. § 4954 (2022).

60. 15 U.S.C. § 3710a(a) (2022).

61. Id. § 3710a(b).

62. Susan Lund et al., The Global Economy’s Next Winners: What It Takes to Thrive in the Automation Age, 98 Foreign Aff. 121, 124–25 (2019). See also Ben Rossi, Why 2017 Will Be the Year of Automation, Info. Age (Dec. 9, 2016), https://www.information-age.com/2017-will-year-automation-123463545 (explaining that so much information has accumulated on networks that automation must be used to process it).

63. See Alan Greenblatt, What Government Gets Wrong About Technology, Governing: The Future of States and Localities (Jan. 22, 2020), https://www.governing.com/now/What-Government-Gets-Wrong-About-Technology.html (“Today, governments largely leave [R&D] to big companies and startups in Silicon Valley and elsewhere . . . . ”).

64. Fischetti, supra note 13 (explaining why non-traditional defense contractors do not want to work with the Government); Susan Lund et al. supra note 62, at 124 (“The availability of cheap, fast digital communication has boosted trade. E-commerce platforms allow buyers and sellers to find each other more easily. The Internet of Things . . . lets companies track shipments around the world and monitor their supply chains.”); Iman Ghosh, The $88 Trillion World Economy in One Chart, Visual Capitalist, https://www.visualcapitalist.com/the-88-trillion-world-economy-in-one-chart (summarizing data from the World Bank and showing that the global economy in 2019 was $87.8 trillion).

65. Feldman, supra note 6; Edelman et al., supra note 1, at 28, 49–61.

66. Nagle, supra note 3, at 3 (describing how winning or losing a Government contract often meant financial success or failure for contractors).

67. See, e.g., GAO Improve Use of Alternative Agreements, supra note 4, at 10 (showing how the use of OTAs have enabled the Army to triple the number of prototype projects within the last three years).

68. Nagle, supra note 3, at 7.

69. See Nagle, supra note 3, at 7; Fischetti, supra note 13; GAO Improve Use of Alternative Agreements, supra note 4, at 10 (“The Army expanded its overall use of alternative agreements in recent years through a significant increase in other transactions for prototype projects and expanded alternative approaches to foster partnerships to address Army modernization priorities.”).

70. GAO Improve Use of Alternative Agreements, supra note 4, at summary (“[T]he Army increasingly uses alternative agreements instead of [FAR]-based contracts for [R&D] and has expanded the use of alternative approaches that engage industry and academia.”).

71. See Nagle, supra note 3, at 7, 506–07.

72. 15 U.S.C. § 3710a(a) (2022); Sylvia Jacobs & Peter Perna, Leveraging Cooperative Research and Development Agreements to Support Department of Defense Acquisition Requirements 1 (2012) (stating that, under a cooperative research and development agreement, a non-DoD partner “may provide funding to [a Federal] laboratory, but the laboratories may never provide funding for the partner’s work.”); see Edelman et al., supra note 1, at 49–61.

73. Fischetti, supra note 13.

74. Hendrix & Hansen, supra note 11, § 8.02(1)(b).

75. See Fischetti, supra note 13.

76. See Hendrix & Hansen, supra note 11, § 8.02(1)(a) (Trade secrets “may be protected as a property right under trade secret law, contractually through the use of [NDAs] . . . .”).

77. Liberty Ammunition, Inc. v. United States, 835 F.3d 1388 (Fed. Cir. 2016).

78. Id. at 1393.

79. See id. at 1394 & 1404 (Newman, J., dissenting in part).

80. Id. at 1391.

81. Id. at 1401–03.

82. Id. at 1404–05 (Newman, J., dissenting).

83. Robert Yarbrough, NDA with the U.S. Government?, Lipton, Weinberger & Husick (Oct. 3, 2016), https://garson-law.com/nda-with-the-u-s-government.

84. See id.; Fischetti, supra note 13.

85. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 802, 131 Stat. 1283, 1450 (2017) (enacting 10 U.S.C. § 2322, Management of Intellectual Property Matters Within the Department of Defense, which was then transferred to 10 U.S.C. § 3791 by the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, 134 Stat. 3388 (2021)).

86. 10 U.S.C. § 3791 (2022).

87. U.S. Dep’t of Def. Instr. 5010.44, Intellectual Property (IP) Acquisition and Licensing para. 2.1.b.(1) (16 Oct. 2019) [hereinafter DoDI 5010.44] (stating the Under Secretary of Defense for Acquisition and Sustainment is responsible for “[e]stablishing an appropriate leadership structure and office for the IP Cadre.”); see Jared Serbu, New Cadre of Experts to Overhaul DoD’s Intellectual Property Policies, Fed. News Network (Aug. 27, 2019), https://federalnewsnetwork.com/defense-news/2019/08/new-cadre-of-experts-to-overhaul-dods-intellectual-property-policies.

88. Serbu, supra note 87.

The IP Cadre facilitates the development and use of a highly competent and consistent approach across the DoD for acquiring, licensing, and managing IP, by providing timely expert advice, assistance, and resources to the acquisition workforce on IP matters. IP Cadre members will advise, assist, and provide resources to DoD Components on IP matters at various stages of the life cycle of a system.

DoDI 5010.44, supra note 87, para. 3.1.

89. See DoDI 5010.44, supra note 87, para. 2.4(g) (“When communicating with industry . . . address the need for competitive and affordable product support and upgrades while providing appropriate protections for privately developed IP.”).

90. Serbu, supra note 87 (“[Ellen] Lord[, Defense Undersecretary for Acquisition and Sustainment,] indicated the new department-wide policies would lean heavily on the work the Army did while” Mark Esper, the former Secretary of Defense, was the Secretary of the Army).

91. Army Dir. 2018-26, supra note 16, para 2.

[IP] plays a critical role in our ability to modernize weapons systems and maintain technological overmatch. We must be careful to ensure that the policies and practices governing [IP] provide us with the necessary access to effectively support our weapons systems, but . . . do not dissuade commercial innovators from partnering with us. This partnership with the industrial base is critical to developing the capabilities we need to be successful during future conflicts. Appropriate safeguards and protections for industry investment have been and will remain a foundation of our approach.

Army Dir. 2018-26, supra note 16, para 2.

92. See Army Dir. 2018-26, supra note 16, encl. 1, para. 6(a)(1)(b).

93. See DoD Industry Engagement Memo, supra note 18 (providing guidance on industry engagements but failing to mention the need to protect IP); DoDI 5010.44, supra note 87, para. 3.1.

94. Army Dir. 2018-26, supra note 16, encl 1, para. 6(a)(1)(b) (emphasis added).

95. See Hendrix & Hansen, supra note 11, § 8.02(1)(b); Army Dir. 2018-26 Guide, supra note 16, at 7.

96. Army Dir. 2018-26, supra note 16, encl. 1, para. 5 (emphasis added).

97. Army Dir. 2018-26 Guide, supra note 16, at 32 (“Non-FAR/DFARS instruments are commonly used in Army acquisition and, with the emphasis on OTAs as a means of accelerating fielding of capabilities, will likely be increasingly so.”).

98. See Army Dir. 2018-26 Guide, supra note 16, at 32; supra Section “The FAR and Early Acquisition Reforms” (describing the problems of the FAR and how non-FAR acquisition vehicles are more appealing to non-traditional defense contractors).

99. See Liberty Ammunition, Inc. v. United States, 835 F.3d 1388, 1405 (Fed. Cir. 2016) (Newman, J., dissenting) (“The Court of Federal Claims relied . . . on [the Chief of the DCD’s] lack of formal ‘contracting officer’ status [in finding the NDA was not binding on the Government]. A contracting officer ‘obligate[s] the Government to an expenditure of appropriated funds.’ Nondisclosure agreements need not incur expenditure; the issue here is the disclosure of information, not expenditure.” (citation omitted)); Yarbrough, supra note 83.

100. See generally Army Dir. 2018-26 Guide, supra note 16, at 58–64.

101. Hendrix & Hansen, supra note 11, § 8.03(3)(a).

102. Hendrix & Hansen, supra note 11, § 8.03(3)(a).

103. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(i).

104. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(i).

105. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(i).

106. 18 U.S.C. § 1905.

Whoever, being an officer or employee of the United States or of any department or agency thereof . . . publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any [confidential] information . . . to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.

Id.

107. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(i).; infra Appendix B.

108. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(ii).

109. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(ii).

110. Hendrix & Hansen, supra note 11, § 8.03(3)(a)(ii).

111. The Freedom of Information Act, 5 U.S.C. § 552(b)(4) (providing that “trade secrets and commercial or financial information” are exempt from any Freedom of Information Act requests).

112. See Army Dir. 2018-26 Guide, supra note 16, at 58–64 (providing a sample specially negotiated license).