27.404-5
Unauthorized, omitted, or incorrect markings
Contractors must ensure data is properly marked and respond promptly to Government inquiries, or risk losing data rights and protections under the contract.
Overview
FAR 27.404-5 addresses procedures for handling data delivered under government contracts that are marked with unauthorized, omitted, or incorrect restrictive legends. It outlines the rights and responsibilities of both the Government and contractors when data is improperly marked, as well as the process for correcting or challenging such markings. The regulation ensures that data rights are properly protected and that both parties have clear recourse in the event of marking disputes.
Key Rules
- Unauthorized Markings
- The Government may return, cancel, or ignore unauthorized markings on data, but must first provide the contractor at least 60 days to justify the markings in writing. If the contractor fails to respond or justify, the Government may proceed. If the contractor justifies, the contracting officer reviews and decides, with possible appeal to court.
- Omitted or Incorrect Notices
- Data delivered without proper restrictive notices is presumed to be delivered with unlimited rights to the Government. Contractors may request to add or correct notices within 6 months (or longer with approval), provided they meet specific criteria and acknowledge no Government liability for prior disclosures.
Responsibilities
- Contracting Officers: Must follow due process before cancelling or ignoring markings, review contractor justifications, and notify contractors of decisions. May allow addition or correction of notices if justified.
- Contractors: Must respond to Government inquiries about markings within 60 days, provide written justification, and request corrections or additions to notices within specified timeframes.
- Agencies: Must ensure compliance with FOIA and provide oversight on marking disputes.
Practical Implications
- This section protects both Government and contractor interests in data rights by establishing clear procedures for resolving marking disputes. Contractors risk losing data protections if they fail to mark data properly or respond to inquiries. Timely and accurate marking, as well as prompt response to Government communications, are critical to maintaining data rights.