Background Information

Background Information is a defined term in Government of Canada intellectual-property contract clauses. It means all Technical Information that is not Foreground Information and that is proprietary to, or confidential information of, the contractor, its subcontractors or another supplier of the contractor.

In plain terms, it is the information a supplier brings to a contract, as opposed to the information created while doing the work. The definition is published in Employment and Social Development Canada (ESDC) clauses, and the same wording appears in lowercase as "background information" in a second clause. You can read the full text in the ESDC intellectual property clause.

How the clauses define Background Information

The definition has three parts. The information must be Technical Information. It must not be Foreground Information. It must also be proprietary to, or confidential information of, the contractor, its subcontractors or another supplier of the contractor.

The last part matters because it covers more than the prime contractor. Information owned by a subcontractor, or by a third-party supplier working with the contractor, falls within the definition in the same way as the contractor's own information.

The lowercase form, "background information", carries the same meaning. It is published in a separate Government of Canada intellectual-property clause that sets out the same rule.

Technical Information and Foreground Information

Two companion terms give Background Information its meaning. Technical Information is scientific, technical or artistic information relating to the work. It includes inventions, designs, methods, processes, know-how, models, prototypes, experimental or test data, reports, drawings, plans, specifications, manuals and software.

Foreground Information is the technical information generated or first conceived during performance of the contract. How ownership of Foreground Information is allocated depends on the applicable contract clause.

The clauses therefore draw a line between what a supplier already had and what the contract produced. Background Information sits on the supplier's side of that line.

Restrictions on use and disclosure

The clauses state that Canada must require bidders and the contractor not to use or disclose Background Information. The only exception is where use or disclosure is necessary to bid for or carry out the contract. The lowercase clause gives bidders and contractors the same restriction.

• The restriction applies at the bid stage as well as during performance.
• Use or disclosure is allowed only as far as it is necessary for the bid or the work.
• The restriction covers information belonging to subcontractors and other suppliers, not only the prime contractor.

Background Information as a section heading

The phrase also appears in federal procurement documents in an ordinary descriptive sense. CanadaBuys procurement plan guidance uses "Background" for contextual information about a requirement, such as relevant audit recommendations, Canadian International Trade Tribunal determinations and Treasury Board decisions.

A federal Request for Information on a proposed carbon-dioxide-removal procurement used "Preliminary Requirements and Background Information" as an annex. That annex held information about the proposed procurement and questions for industry.

In these uses the phrase describes context for the requirement. It is not the defined intellectual-property term. Read the surrounding document to tell which meaning applies.

What it means for a supplier bidding on Canadian public contracts

Before bidding on a requirement that carries intellectual-property provisions, identify which of your existing technical information qualifies as Background Information. That includes information you own or control, and information that belongs to your subcontractors or other suppliers.

• Check the solicitation and the contract for confidentiality and use restrictions.
• Use or disclose Background Information only as far as needed to submit the bid or perform the contract.
• Keep Background Information distinct from Foreground Information, because ownership of Foreground Information follows the applicable clause.
• Tell subcontractors and partners that their proprietary information is covered by the same restriction.