Overview
This section prescribes the mandatory procedures and specific language required to protect proprietary information within unsolicited proposals, ensuring that sensitive data is used strictly for evaluation purposes and not disclosed publicly without authorization.
Key Rules
- Mandatory Marking Language: To restrict data, an offeror must use the exact "Use and Disclosure of Data" legend specified in the FAR on the title page and mark each individual restricted sheet with a secondary warning.
- Rejection of Non-Standard Legends: Agencies are required to return any unsolicited proposal that uses a restrictive legend different from the FAR-prescribed text, requiring the offeror to resubmit with the proper language before it can be considered.
- Agency Handling Procedures: Government personnel must apply a specific "Unsolicited Proposal-Use of Data Limited" cover sheet to all proposals unless the offeror explicitly waives restrictions in writing.
- Third-Party Evaluations: If an agency needs to use non-Government evaluators, they must obtain written permission from the offeror (for for-profit entities) and ensure evaluators sign written non-disclosure agreements.
- FOIA and Legal Limits: While the markings identify trade secrets and confidential information, they do not provide an absolute shield against Freedom of Information Act (FOIA) requests; disclosure is ultimately governed by law and subsequent contract terms.
Practical Implications
- Strict Compliance Required: Contractors must use the "boilerplate" FAR language verbatim; modifying the restrictive legend to be more aggressive or protective can lead to the proposal being returned without review.
- Burden of Identification: The offeror bears the responsibility of identifying specific sheet numbers for protection, as the Government’s duty of "extreme care" is triggered specifically by the markings on the title page and individual pages.