48 C.F.R. § 15.609

15.609 Limited use of data.

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(a) An unsolicited proposal may include data that the offeror does not want disclosed to the public for any purpose or used by the Government except for evaluation purposes. If the offeror wishes to restrict the data, the title page must be marked with the following legend:

Use and Disclosure of Data

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. However, if a contract is awarded to this offeror as a result of—or in connection with—the submission of these 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 these data if they are obtained from another source without restriction. The data subject to this restriction are contained in Sheets [insert numbers or other identification of sheets].

(b) The offeror shall also 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.

(c) The agency point of contact shall return to the offeror any unsolicited proposal marked with a legend different from that provided in paragraph (a) of this section. The return letter will state that the proposal cannot be considered because it is impracticable for the Government to comply with the legend and that the agency will consider the proposal if it is resubmitted with the proper legend.

(d) The agency point of contact shall place a cover sheet on the proposal or clearly mark it as follows, unless the offeror clearly states in writing that no restrictions are imposed on the disclosure or use of the data contained in the proposal:

Unsolicited Proposal—Use of Data Limited

All Government personnel must exercise extreme care to ensure that the information in this proposal is not disclosed to an individual who has not been authorized access to such data in accordance with FAR 3.104, and is not duplicated, used, or disclosed in whole or in part for any purpose other than evaluation of the proposal, without the written permission of the offeror. If a contract is awarded on the basis of this proposal, the terms of the contract shall control disclosure and use. This notice does not limit the Government's right to use information contained in the proposal if it is obtainable from another source without restriction. This is a Government notice, and shall not by itself be construed to impose any liability upon the Government or Government personnel for disclosure or use of data contained in this proposal.

(e) Use the notice in paragraph (d) of this section solely as a manner of handling unsolicited proposals that will be compatible with this subpart. However, do not use this notice to justify withholding of a record, or to improperly deny the public access to a record, where an obligation is imposed by the Freedom of Information Act (5 U.S.C. 552). An offeror should identify trade secrets, commercial or financial information, and privileged or confidential information to the Government (see paragraph (a) of this section).

(f) When an agency receives an unsolicited proposal without any restrictive legend from an educational or nonprofit organization or institution, and an evaluation outside the Government is necessary, the agency point of contact shall—

(1) Attach a cover sheet clearly marked with the legend in paragraph (d) of this section;

(2) Change the beginning of this legend to read “All Government and non-Government personnel * * * ”; and

(3) Require any non-Government evaluator to agree in writing that data in the proposal will not be disclosed to others outside the Government.

(g) If the proposal is received with the restrictive legend (see paragraph (a) of this section), the modified cover sheet shall also be used and permission shall be obtained from the offeror before release of the proposal for evaluation by non-Government personnel.

(h) When an agency receives an unsolicited proposal with or without a restrictive legend from other than an educational or nonprofit organization or institution, and evaluation by Government personnel outside the agency or by experts outside of the Government is necessary, written permission must be obtained from the offeror before release of the proposal for evaluation. The agency point of contact shall—

(1) Clearly mark the cover sheet with the legend in paragraph (d) or as modified in paragraph (f) of this section; and

(2) Obtain a written agreement from any non-Government evaluator stating that data in the proposal will not be disclosed to persons outside the Government.

[62 FR 51230, Sept. 30, 1997, as amended at 67 FR 13056, Mar. 20, 2002]

Notes of Decisions

Cited in 14 cases, 1985–2017 · leading case: CACI Field Servs., Inc. v. United States, 13 Cl. Ct. 718 (Ct. Cl. 1987).

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CACI Field Servs., Inc. v. United States, 13 Cl. Ct. 718 (Ct. Cl. 1987). · cites it 4× “26 CACI argues that its proposal was determined by the CO to be within the competitive range but that meaningful discussions, within the context of FAR § 15.610, were not conducted.”

Labat-Anderson, Inc. v. United States, 42 Fed. Cl. 806 (Fed. Cl. 1999). · cites it 2× “” 48 C.F.R. § 15.609 (a). AID’S procurement instructions similarly provide that a proposal “is in the competitive range unless it is so technically inferior or out of line with regard to price that meaningful negotiations are precluded, or, that there is no possibility that it…”

M.W. Kellogg Co./Siciliana Appalti Costruzioni, S.p.A. v. United States, 10 Cl. Ct. 17 (Ct. Cl. 1986). · cites it 2× “§ 2304 (g), § 2305(b)(4), and 48 C.F.R. § 15.609 ; that the December 2, 1985 round of best and final offers constituted technical leveling, in violation of 48 C.”

Birch & Davis Int'l, Inc. v. Warren M. Christopher, Sec'y of State, 4 F.3d 970 (Fed. Cir. 1993). · cites it 2× “See FAR, 48 C.F.R. § 15.609 (a) (1991). This action left Maximus as the sole offeror in range.”

USfalcon, Inc. v. United States, 92 Fed. Cl. 436 (Fed. Cl. 2010). “” 48 C.F.R. § 15.609 (a) (1997); 48 Fed.Reg.”

Southfork Sys., Inc. v. The United States, & State of Texas, Acting Through the Texas Comm'n for the Blind, 141 F.3d 1124 (Fed. Cir. 1998). “See 48 C.F.R. § 15.609 (a) (1996). 11 We have stated that “[a] contracting officer has broad discretion in determining competitive range, and such decisions are not disturbed unless clearly unreasonable.”

W & D Ships Deck Works, Inc. v. United States, 39 Fed. Cl. 638 (Fed. Cl. 1997). “48 C.F.R. § 15.609 (a) (FAR § 15.609(a)).”

Pikes Peak Fam. Hous., LLC v. United States, 40 Fed. Cl. 673 (Fed. Cl. 1998). “48 C.F.R. §§ 15.609 (c), 15.1002(b) (1996).”

Compubahn, Inc. v. United States, 33 Fed. Cl. 677 (Fed. Cl. 1995). “” 48 C.F.R. § 15.609 (a). Plaintiffs argument that this section was violated fails for two reasons.”

Sys. Dynamics Int'l, Inc. v. United States, 130 Fed. Cl. 499 (Fed. Cl. 2017). “”); 48 C.F.R. 15.609(a) (1992) (emphasis added).”

Aero Corp., S.A. v. United States, 38 Fed. Cl. 739 (Fed. Cl. 1997). “See 48 C.F.R. § 15.609 (1996) (FAR 15.609). Moreover, defendant was not prohibited from relying upon such additional factors in its overall competitive range determination.”

Saratoga Dev. Corp. v. United States, 21 F.3d 445 (D.C. Cir. 1994). · cites it 2× “Under the FAR, however, a proposal can be within the “competitive range” — the collection of “all proposals that have a reasonable chance of being selected for award”, 48 CFR § 15.609 (a)—even though it contains a “deficiency”, defined as something “that fails to satisfy the…”

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— 48 C.F.R. § 15.609(a) — 1 case

Sys. Dynamics Int'l, Inc. v. United States, 130 Fed. Cl. 499 (Fed. Cl. 2017). “”); 48 C.F.R. 15.609(a) (1992) (emphasis added).”

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