Rights to technical data in successful proposals
Contractors must clearly identify technical data in proposals they wish to exclude from Government unlimited rights, or risk losing protection for that data.
Overview
FAR 27.407 addresses the Government's rights to technical data contained in successful proposals. Under clause 52.227-23, the Government generally acquires unlimited rights to technical data in proposals that lead to contract awards. However, prospective contractors can specifically identify pages of technical data they wish to exclude from this grant of unlimited rights. While such exclusions do not automatically guarantee protection, any excluded technical data and commercial or financial information in the proposal remain protected under FAR subparts 15.2 or 15.6, meaning they are used only for evaluation purposes. If the Government later needs access to excluded technical data during contract performance, it should consider acquiring those data with limited rights, as outlined in FAR 27.404-2(c).
Key Rules
- Unlimited Rights to Technical Data
- The Government obtains unlimited rights to technical data in successful proposals unless specifically excluded by the contractor.
- Exclusion of Technical Data
- Contractors may identify specific pages of technical data to be excluded from unlimited rights, but this does not guarantee protection.
- Protection of Excluded Data
- Excluded technical data and commercial/financial information are protected under FAR 15.2 or 15.6 and used only for evaluation.
- Acquisition of Excluded Data
- If excluded data are needed during contract performance, the Government may seek to acquire them with limited rights per FAR 27.404-2(c).
Responsibilities
- Contracting Officers: Ensure clause 52.227-23 is included, review exclusions, and protect excluded data per FAR 15.2/15.6.
- Contractors: Clearly identify excluded technical data in proposals and understand the implications for data rights.
- Agencies: Safeguard proposal information and follow procedures for acquiring additional rights if needed.
Practical Implications
- This section clarifies how technical data in proposals is handled, balancing Government needs and contractor protections.
- Contractors must be diligent in marking exclusions to protect proprietary data.
- Failure to properly identify exclusions may result in loss of data rights.