NDA theater: Preaward agreements among contractors are often toothless

Many NDAs are worth only the paper they’re not printed on.

While #MeToo cast aspersions on the Hollywood NDA, they still flourish elsewhere in the private sector, and especially among the Beltway bandits–cum–dealmakers:

“Want to discuss the $300 million pre-RFP notice everyone saw on GovWin?”

“Sure, but let’s put an NDA in place.”

Contracts teams are put in touch, and an NDA is negotiated and executed. Inevitably its template contains a clause similar to the following:

Unwritten information shall be treated as Proprietary Information under this agreement only if it is explicitly designated as proprietary when first disclosed by the Originating Party. Additionally, the Originating Party shall provide a written summary of the information, clearly labeled as Proprietary Information, to the receiving party within fifteen (15) calendar days of the initial disclosure.

Let’s break this down:

• The unwritten as Proprietary Information: Information conveyed orally or through other unwritten means may be treated as confidential under the agreement, but only when identified as proprietary at the time it is initially shared. For example, during a meeting, I stand to say, “My following blabbering is proprietary under our in-force NDA dated 3 October 2024."
• Written summary of information: After the initial unwritten disclosure, the disclosing party (referred to as the Originating Party) must summarize the disclosed information in writing. (”When, on 9 January 2025, I said the contract reminded me of a pastrami sandwich, that was proprietary information covered by our in-force NDA dated 3 October 2024.”)
• Clearly labeled: This written summary must clearly and conspicuously mark the information as proprietary, as in the above-bullet’s parenthetical example.
• Timing requirement: The written summary must be sent to the receiving party within fifteen calendar days of the original unwritten disclosure. Should the summary not be provided timely, nondisclosure protections do not apply.

Written disclosures often must follow similar procedures.

Because NDAs cannot cover publicly available information, my guess is most address very little content (ie, risk). This is the hallmark of security theater, providing jobs for the ushers while inflating their customers' egos.

Buyer beware of superficial assurances.