Friday, June 24, 2011

Making Sure Your Proprietary Information Stays Protected

Contractors (or prospective contractors) that include data in their proposals that they do not want disclosed to the public for any purpose, or used by the Government except for evaluation purposes, must mark the title page with the following legend (see FAR 52.215-1):

This proposal includes data that shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed - in whole or in part - for any purpose other than to evaluate this proposal. If, however, a contract is awarded to this offeror as a result of - or in connection with - the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit the Government's right to use information contained in this data if it is obtained from another source without restriction. The data subject to this restriction are contained in sheets (insert numbers or other identification of sheets).

Then, following the cover page, offerors must mark each sheet of data it wishes to restrict with the following legend:

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.

Once these markings are affixed to the title page and the pages containing proprietary data pages, no person or other entity may disclose contractor bid or proposal information to any person other than a person authorized, in accordance with applicable agency regulations or procedures.

Many times, contractors simply classify everything as proprietary when it may not be so. We have seen extreme usage of proprietary markings that include blank or separator sheets. FAR 3.104-4 contains provisions for resolving disagreements as to whether particular data is proprietary or not.

First, the contracting officer must notify the contractor in writing if the contracting officer believes that proprietary information, contractor bid or proposal information, or information marked proprietary has been inappropriately marked. The contractor that has affixed the marking must be given an opportunity to justify the marking.

If the contractor agrees that the marking is not justified, or does not respond within the time specified in the notice, the contracting officer may remove the marking and release the information.

If the contractor continues to hold firm on its positions, it must submit additional justification. The contracting officer will review the additional justification and either concur or not. If the contracting officer determines that the marking is not justified, he/she must notify the contractor in writing before releasing the information.

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