(1) When a DoD Component contract requires the operation or maintenance of a system of records or a portion of a system of records or requires the performance of any activities associated with maintaining a system of records, including the collection, use, and dissemination of records, the record system or the portion of the record system affected are considered to be maintained by the DoD Component and are subject to this part. The Component is responsible for applying the requirements of this part to the contractor. The contractor and its employees are to be considered employees of the DoD Component for purposes of the criminal provisions of 5 U.S.C 552a(i) during the performance of the contract. Consistent with the Federal Acquisition Regulation (FAR), Part 24.1, contracts requiring the maintenance or operation of a system of records or the portion of a system of records shall include in the solicitation and resulting contract such terms as are prescribed by the FAR.
(2) If the contractor must use, have access to, or disseminate individually identifiable information subject to this part in order to perform any part of a contract, and the information would have been collected, maintained, used, or disseminated by the DoD Component but for the award of the contract, these contractor activities are subject to this part.
(3) The restriction in paragraphs (a)(1) and (2) of this section do not apply to records:
(i) Established and maintained to assist in making internal contractor management decisions, such as records maintained by the contractor for use in managing the contract;
(ii) Maintained as internal contractor employee records even when used in conjunction with providing goods and services to the Department of Defense; or
(iii) Maintained as training records by an educational organization contracted by a DoD Component to provide training when the records of the contract students are similar to and commingled with training records of other students (for example, admission forms, transcripts, academic counseling and similar records).
(iv) Maintained by a consumer reporting agency to which records have been disclosed under contract in accordance with the Federal Claims Collection Act of 1966, 31 U.S.C. 3711(e).
(v) Maintained by the contractor incident to normal business practices and operations.
(4) The DoD Components shall publish instructions that:
(i) Furnish DoD Privacy Program guidance to their personnel who solicit, award, or administer Government contracts;
(ii) Inform prospective contractors of their responsibilities, and provide training as appropriate, regarding the DoD Privacy Program; and
(iii) Establish an internal system of contractor performance review to ensure compliance with the DoD Privacy Program.
(b)Contracting procedures. The Defense Acquisition Regulations Council shall develop the specific policies and procedures to be followed when soliciting bids, awarding contracts or administering contracts that are subject to this part.
(c)Contractor compliance. Through the various contract surveillance programs, ensure contractors comply with the procedures established in accordance with § 310.12(b).
(d)Disclosure of records to contractors. Disclosure of records contained in a system of records by a DoD Component to a contractor for use in the performance of a DoD contract is considered a disclosure within the Department of Defense (see § 310.21(b)). The contractor is considered the agent of the contracting DoD Component and to be maintaining and receiving the records for that Component.
Title 32 published on 2014-07-01
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