PROTECTING PROPRIETARY INFORMATIONshould take two steps. First, the offerorshould mark the title page of itsproposal with the following legend.This proposal includes data that shallnot be disclosed outside the governmentand shall not be duplicated, used, ordisclosed—in whole or in part—forany purpose other than to evaluatethis proposal. If, however, a contractis awarded to this offeror as a resultof—or in connection with—the submissionof this data, the governmentshall have the right to duplicate, use,or disclose the data to the extent providedin the resulting contract. Thisrestriction does not limit the government’sright to use informationcontained in this data if it is obtainedfrom another source without restriction.The data subject to this restriction arecontained in sheets [insert numbersor other identification of sheets].Second, the offeror should markeach sheet in its proposal containingdata it wishes to restrict with thefollowing legend:Use or disclose the data contained onthis sheet is subject to the restrictionon the title page of this proposal.Note that the FAR legends do notacknowledge that the informationmarked by the offeror is proprietary.Rather, the legends simply limit thedisclosure and use of the data bygovernment officials and employeesto proposal evaluation. In addition,as noted in the FAR legend itself, thegovernment’s right to use or disclosethe data after contract award is governedby the clauses incorporated intothe contract rather than the legend.Offerors submitting proposals to theDepartment of Defense (DOD) shouldalso be aware of DOD’s policy governingdisclosure and use of proprietaryproposal data. Specifically, DOD regulationsprovide that, by submitting theproposal, the offeror agrees that DODmay reproduce and use proposalinformation for evaluation purposes. 9The regulations also advise that subsequentto contract award, thegovernment shall have the right todisclose and use proposal informationwithin the government, and outsidethe government with the contractor’swritten permission. 10Additionally, NASA has its own policywith regard to proposals submittedin response to NASA ResearchAnnouncements. 11 This policy providesthat a proposal will be used forevaluation purposes only and will beprotected by NASA “to the extent permittedby law.” NASA also instructsofferors to insert the following noticeon the title page of the proposal.NOTICE—RESTRICTION ON USEAND DISCLOSURE OF PROPOSALINFORMATIONThe information (data) contained in[insert page numbers or other identification]of this proposal constitutes atrade secret and/or information that iscommercial or financial and confidentialor privileged.It is furnished to the governmentin confidence with the understandingthat it will not, without permission ofthe offeror, be used or disclosed otherthan for evaluation purposes; provided,however, that in the event a contract(or other agreement) is awarded onthe basis of this proposal the governmentshall have the right to use anddisclose this information (data) to theextent provided in the contract (orother agreement). This restrictiondoes not limit the government’s rightto use or disclose this information(data) if obtained from another sourcewithout restriction.Similar protection is affordedproposals submitted in response to aNASA Announcement of Opportunity. 12Protecting Data inan Unsolicited <strong>Proposal</strong>Government agencies also receiveunsolicited proposals from potentialcontractors setting forth new andinnovative ideas that have not beenthe subject of a government-initiatedsolicitation. Agencies are required toestablish procedures for the evaluationof unsolicited proposals and forthe control and protection of materialsubmitted in conjunction with theunsolicited proposals.The FAR recognizes that, likeresponses to an RFP, unsolicited proposalsmay include data that shouldnot be disclosed to the public or usedby the government for any purposeother than proposal evaluation. 13Further, the FAR provides an offerorsubmitting an unsolicited proposal thesame opportunity to limit the use ordisclosure of data as provided to anofferor responding to an RFP.Specifically, offerors submittingunsolicited proposals can mark thetitle page of the proposal and eachsheet of the proposal that it wishes tohave protected with the same legendsnoted earlier. 14If the offeror includes a legend thatdiffers from the legends set forth in theFAR, the agency point of contact isdirected to return the unsolicited proposalto the offeror without evaluation. 15Protecting Data from ReleaseUnder FOIAThe FAR legends noted earlier imposerestrictions on the government’s useor disclosure of proposal data. But,the FAR legends do not protect informationor data submitted with aproposal from release or disclosureunder the Freedom of <strong>Information</strong>Act (FOIA), 5 U.S.C. § 552. Enacted in1966, FOIA gives any person, includinga competitor, the right to requestaccess to company documents in thepossession of a federal agency.Since 1997, civilian agencies andDOD have been prohibited by statutefrom releasing under FOIA proposalssubmitted in response to a competitiveprocurement. 16 While this statuteaffords great protection, its application22 ■ Contract Management / July 2004