[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR3.104-4]



[Page 46-47]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 3_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents

 

                         Subpart 3.1_Safeguards

 

Sec. 3.104-4  Disclosure, protection, and marking of contractor bid or proposal information and source selection information.



    (a) Except as specifically provided for in this subsection, no 

person or other entity may disclose contractor bid or proposal 

information or source selection information to any person other than a 

person authorized, in accordance with applicable agency regulations or 

procedures, by the agency head or the contracting officer to receive 

such information.

    (b) Contractor bid or proposal information and source selection 

information must be protected from unauthorized disclosure in accordance 

with 14.401, 15.207, applicable law, and agency regulations.

    (c) Individuals unsure if particular information is source selection 

information, as defined in 2.101, should consult with agency officials 

as necessary. Individuals responsible for preparing material that may be 

source selection information as described at paragraph (10) of the 

``source selection information'' definition in 2.101 must mark the cover 

page and each page that the individual believes contains source 

selection information with the legend ``Source Selection Information--

See FAR 2.101 and 3.104.'' Although the information in paragraphs (1) 

through (9) of the definition in 2.101 is considered to be source 

selection information whether or not marked, all reasonable efforts must 

be made to mark such material with the same legend.

    (d) Except as provided in paragraph (d)(3) of this subsection, 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 in accordance with 

52.215-1(e) has been inappropriately marked. The contractor that has 

affixed the marking must be given an opportunity to justify the marking.

    (1) 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.

    (2) If, after reviewing the contractor's justification, the 

contracting officer determines that the marking is not justified, the 

contracting officer must notify the contractor in writing before 

releasing the information.

    (3) For technical data marked as proprietary by a contractor, the 

contracting officer must follow the procedures in 27.404(h).

    (e) This section does not restrict or prohibit--

    (1) A contractor from disclosing its own bid or proposal information 

or the recipient from receiving that information;

    (2) The disclosure or receipt of information, not otherwise 

protected, relating to a Federal agency procurement after it has been 

canceled by the Federal agency, before contract award, unless the 

Federal agency plans to resume the procurement;

    (3) Individual meetings between a Federal agency official and an 

offeror or potential offeror for, or a recipient of, a contract or 

subcontract under a Federal agency procurement, provided that 

unauthorized disclosure or receipt of contractor bid or proposal 

information or source selection information does not occur; or

    (4) The Government's use of technical data in a manner consistent 

with the Government's rights in the data.

    (f) This section does not authorize--

    (1) The withholding of any information pursuant to a proper request 

from the Congress, any committee or subcommittee thereof, a Federal 

agency, the Comptroller General, or an Inspector General of a Federal 

agency, except as otherwise authorized by law or regulation. Any release 

containing contractor bid or proposal information or source selection 

information must clearly identify the information as contractor bid or 

proposal information



[[Page 47]]



or source selection information related to the conduct of a Federal 

agency procurement and notify the recipient that the disclosure of the 

information is restricted by section 27 of the Act;

    (2) The withholding of information from, or restricting its receipt 

by, the Comptroller General in the course of a protest against the award 

or proposed award of a Federal agency procurement contract;

    (3) The release of information after award of a contract or 

cancellation of a procurement if such information is contractor bid or 

proposal information or source selection information that pertains to 

another procurement; or

    (4) The disclosure, solicitation, or receipt of bid or proposal 

information or source selection information after award if disclosure, 

solicitation, or receipt is prohibited by law. (See 3.104-2(b)(5) and 

subpart 24.2.)



[67 FR 13059, Mar. 20, 2002]