Nondisclosure agreements with vendors

Gary Leonard

Gary Leonard, head of the Legal Office, wrote this column.

Happy new year from the Legal Office!

We handle many items in the Legal Office, including procurement matters, tech transfer issues and ethics questions. The nondisclosure agreement, or NDA, affects all of these areas.

Employees often bring to the Legal Office NDAs they receive from various businesses. An NDA is an agreement that a vendor or a potential research partner typically wants the laboratory to sign before showing us its new product or technology, which may or may not have appropriate intellectual property protections.

Through NDAs, projects and experiments can gain access to technologies and products that may be only emerging from the research and development phase. This allows the lab to evaluate a vendor’s product or service. Using an NDA helps the lab accomplish its mission.

A vendor understandably may not want us to discuss proprietary information on a new product or technology with other vendors it may be competing with. The NDA provides a measure of protection. In signing the contract, the laboratory promises not to share the information we learn about the vendor’s product and how it performs with anyone else outside of individuals the NDA authorizes. Sometimes the NDA requires us to destroy or return copies of confidential information within a certain time frame.

All NDAs must be reviewed by the Legal Office prior to execution of the agreement. The Legal Office determines whether the information or product to be shared is properly identified. This protects the lab by limiting the scope of what is considered confidential and makes it clear to both parties. If it is determined the NDA is part of an ongoing competition for a supply or service or for a proposed future purchase of a supply or service, a copy will be placed in the procurement file as part of the documentation of the competition or purchase.

The Legal Office also ensures that the NDA terms and conditions are in compliance with our obligations to DOE and our prime contract. For example, we identify whether there are any indemnification or hold-harmless clauses that would require FRA to pay for unspecified and various costs that the vendor may encounter as a result of our use of any supply or service.

Finally, the Legal Office prepares the NDA for signature by Finance Section Deputy Head Jeff Irvin, the individual at Fermilab authorized to sign NDAs related to procurements.

We want to ensure that we have the supplies and services to fulfill our mission and that we gain access to these in an appropriate and legal manner. So if you get an NDA, please give us folks in legal a call and we will help you get it done properly.