27.404-5 Unauthorized, omitted, or incorrect markings
Source: FAR 27.404-5 on acquisition.gov
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.
(a) Unauthorized marking of data.
(1) The Government has, in accordance with paragraph (e) of the clause at 52.227-14, the right to either return data containing unauthorized markings or to cancel or ignore the markings.
(2) Agencies shall not cancel or ignore markings without making written inquiry of the contractor and affording the contractor at least 60 days to provide a written justification substantiating the propriety of the markings.
(i) If the contractor fails to respond or fails to provide a written justification substantiating the propriety of the markings within the time afforded, the Government may cancel or ignore the markings.
(ii) If the contractor provides a written justification substantiating the propriety of the markings, the contracting officer shall consider the justification.
(A) If the contracting officer determines that the markings are authorized, the contractor will be so notified in writing.
(B) If the contracting officer determines, with concurrence of the head of the contracting activity, that the markings are not authorized, the contractor will be furnished a written determination which becomes the final agency decision regarding the appropriateness of the markings and the markings will be cancelled or ignored and the data will no longer be made subject to disclosure prohibitions, unless the contractor files suit within 90 days in a court of competent jurisdiction. The markings will not be cancelled or ignored until final resolution of the matter, either by the contracting officer's determination becoming the final agency decision or by final disposition of the matter by court decision if suit is filed.
(3) The foregoing procedures may be modified in accordance with agency regulations implementing the Freedom of Information Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim" target="_blank">5 U.S.C. 552) if necessary to respond to a request. In addition, the contractor may bring a claim, in accordance with the Disputes clause of the contract, that may arise as the result of the Government’s action to remove or ignore any markings on data, unless the action occurs as the result of a final disposition of the matter by a court of competent jurisdiction.
(b) Omitted or incorrect notices.
(1) Data delivered under a contract containing the clause without a limited rights notice or restricted rights notice, and without a copyright notice, will be presumed to have been delivered with unlimited rights, and the Government assumes no liability for the disclosure, use, or reproduction of the data. However, to the extent the data has not been disclosed without restriction outside the Government, the contractor may, within 6 months (or a longer period approved by the contracting officer for good cause shown), request permission of the contracting officer to have the omitted limited rights or restricted rights notices, as applicable, placed on qualifying data at the contractor's expense. The contracting officer may permit adding appropriate notices if the contractor-
(i) Identifies the data for which a notice is to be added;
(ii) Demonstrates that the omission of the proposed notice was inadvertent;
(iii) Establishes that use of the proposed notice is authorized; and
(iv) Acknowledges that the Government has no liability with respect to any disclosure or use of any such data made prior to the addition of the notice or resulting from the omission of the notice.
(2) The contracting officer may also-
(i) Permit correction, at the contractor’s expense, of incorrect notices if the contractor identifies the data on which correction of the notice is to be made, and demonstrates that the correct notice is authorized; or
(ii) Correct any incorrect notices.