As proposal professionals ponder how things are changing and what the future holds for the profession, individual proposal professionals may be weighing that question on a more personal level. Whether you are a free-lancer looking for your next gig or employed in-house by a mega-government contractor, you are faced with the question: What information, approaches, templates, etc. can I take with me to the next place I work?
An NDA is supposed to protect confidential information. Thus, it is necessary to ascertain what information the NDA defines as confidential.
This is not a question to take lightly, as a recent bid protest at the Government Accountability Office demonstrates. In IBM Corporation, B-415798.2, 2019 CPD ¶ 82, the protester (IBM) alleged that John Doe, a network architect on the incumbent IBM-led team who also had assisted IBM’s proposal effort, misappropriated IBM staffing information and other confidential information. Also, he allegedly provided the eventual awardee his own assessments of IBM’s team members based on his interaction with the incumbent team. IBM contended that the awardee knew that John Doe was subject to a non-disclosure agreement (NDA) prohibiting the disclosure of confidential IBM information to competitors, and that John Doe was in violation of the NDA when he provided IBM’s confidential information to the awardee. Therefore, IBM argued, the awardee violated the Procurement Integrity Act’s prohibition on knowingly obtaining contractor bid or proposal and should be disqualified from the procurement.
Presumably, that wasn’t the outcome the eventual awardee hoped for when it hired John Doe. Even if it got to keep the contract, valuable time, money, and customer goodwill were wasted just because the allegations were made.
As IBM’s allegations suggest, the first, and most obvious, place that both parties should look for a proposal professional’s obligations to his or her former employer is the contract or employment agreement and any NDAs they signed. An employment contract or consulting agreement may say that the company owns all work product, or it may define who owns what, or it may be silent. Likewise, an NDA may prohibit an employee or consultant from disclosing certain information of the company outside of the company, or even inside the company, except on a need-to-know basis relating to a business purpose of the company.
What information does an NDA protect? Only by reviewing the scope of the NDA together with all surrounding circumstances can one be certain. An NDA is supposed to protect confidential information. Thus, it is necessary to ascertain what information the NDA defines as confidential.
The specific types of information that are considered confidential will vary from company to company. Typically, however, this is information that would provide a competitive advantage to a person or entity outside of the company.
In order to qualify as “confidential information,” the information must be . . . in a word, confidential. The holder of trade secret or other confidential information can lose its proprietary rights in protected information if the information is disclosed without protecting the confidentiality of the disclosure. In other words, protected information is no longer protected when it becomes general or public knowledge. For instance, when the information has been disclosed in a trade journal or left behind on a seat in the Metro, it is not likely to be treated as confidential. It does not even matter whether the disclosure was intentional or not; once the information is in the public domain, it arguably has lost its confidential status. See, e.g., Digital Healthcare, Inc., B-296489, 2005 CPD ¶ 166 (information available on contractor’s website is not confidential). Thus, an employee or consultant need not blindly accept a company’s claim that something is confidential. If the employee knows that the information is public, the employee may be justified in treating it as being non-confidential.
Another strategy that some companies use is to require non-compete agreements limiting employees’ ability to become, or work for, competitors after they leave the company.
In fact, even before the information has become public, it may be difficult to argue that it is confidential if the company has not taken commercially reasonable steps to protect its confidentiality. For starters, companies should mark the information as “confidential.” Information on a server can be protected by requiring users who log-on or who call-up certain information to accept a confidentiality statement before gaining access. If every employee in the company can log-on to the server that houses a company’s proposal “memory” and can print, copy and email those materials at will, the company may be hard-pressed to argue that the material was confidential. It is important, therefore, to control employees’ and consultants’ access to information that the company wishes to argue is confidential. It goes without saying that companies also should control the access of your subcontractors and teaming partners to information in your proposal center of excellence. See, e.g., Accent Service Co., B‑299888, 2007 CPD ¶ 169 (information was no longer confidential after it was disclosed to visitors to the contractor’s office).
Another strategy that some companies use is to require non-compete agreements limiting employees’ ability to become, or work for, competitors after they leave the company. Laws vary from state-to-state, but many courts may consider non-competes to be against public policy. To be enforceable, a non-compete agreement should be written as narrowly as possible (in scope and duration) to protect the employer’s legitimate business interests without hamstringing the employee from earning a living in his or her chosen profession in the future. Ironically, in some states, the best thing that could happen to an employee is to be forced to sign a non-compete that is so broad it prevents him or her from working at all.
Finally, as the IBM case shows, it is in an employer’s interest to be sure that its new hires are not bringing confidential information from their former employers to their new jobs. If you are that new employee, don’t assume the new employer wants the documents in your briefcase or in the trunk of your car. Employers can, and do, sue their competitors when former employees take confidential information to the competitors, and damages can easily be in the millions of dollars. The former employer may even seek an injunction to keep the new employer out of a procurement because the new employer is tainted by purloined confidential information. Win or lose, such litigation is expensive, and it distracts contractors from doing what they want to be doing–winning contracts and making money. For the proposal professional, it could be a career-ending event.
So, good luck with that new job. As a wise man once said, “You can’t take it with you”—at least, not all of it.