[Code of Federal Regulations]

[Title 48, Volume 4]

[Revised as of October 1, 2006]

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

[CITE: 48CFR352.215-1]



[Page 73-74]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                  CHAPTER 3--HEALTH AND HUMAN SERVICES

 

PART 352_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents

 

              Subpart 352.2_Texts of Provisions and Clauses

 

Sec. 352.215-1  Instructions to offerors--Competitive acquisition.



    Insert the following paragraph (e) in place of paragraph (e) of the 

provision at FAR 52.215-1:



    (e) Restriction on disclosure and use of data. (1) The proposal 

submitted in response to this request may contain data (trade secrets; 

business data, e.g., commercial information, financial information, and 

cost and pricing data; and technical data) which the offeror, including 

its prospective subcontractor(s), does not want used or disclosed for 

any purpose other than for evaluation of the proposal. The use and 

disclosure of any data may be so restricted; provided, that the 

Government determines that the data is not required to be disclosed 

under the Freedom of Information Act, 5 U.S.C. 552, as amended, and the 

offeror marks the cover sheet of the proposal with the following legend, 

specifying the particular portions of the proposal which are to be 

restricted in accordance with the conditions of the legend. The 

Government's determination to withhold or disclose a record will be 

based upon the particular circumstances involving the record in question 

and whether the record may be exempted from disclosure under the Freedom 

of Information Act. The legend reads:



[[Page 74]]



    Unless disclosure is required by the Freedom of Information Act, 5 

U.S.C. 552, as amended, (the Act) as determined by Freedom of 

Information (FOI) officials of the Department of Health and Human 

Services, data contained in the portions of this proposal which have 

been specifically identified by page number, paragraph, etc. by the 

offeror as containing restricted information shall not be used or 

disclosed except for evaluation purposes.

    The offeror acknowledges that the Department may not be able to 

withhold a record (data, document, etc.) nor deny access to a record 

requested pursuant to the Act and that the Department's FOI officials 

must make that determination. The offeror hereby agrees that the 

Government is not liable for disclosure if the Department has determined 

that disclosure is required by the Act.

    If a contract is awarded to the offeror as a result of, or in 

connection with, the submission of this proposal, the Government shall 

have right to use or disclose the data to the extent provided in the 

contract. Proposals not resulting in a contract remain subject to the 

Act.

    The offeror also agrees that the Government is not liable for 

disclosure or use of unmarked data and may use or disclose the data for 

any purpose, including the release of the information pursuant to 

requests under the Act. The data subject to this restriction are 

contained in pages (insert page numbers, paragraph designations, etc. or 

other identification).

    (2) In addition, the offeror should mark each page of data it wishes 

to restrict with the following statement:

    ``Use or disclosure of data contained on this page is subject to the 

restriction on the cover sheet of this proposal or quotation.''

    (3) Offerors are cautioned that proposals submitted with restrictive 

legends or statements differing in substance from the above legend may 

not be considered for award. The Government reserves the right to reject 

any proposal submitted with a nonconforming legend.