3.104-4
Disclosure, protection, and marking of contractor bid or proposal information and source selection information
Protecting and properly marking contractor bid/proposal and source selection information is essential to maintain procurement integrity and avoid unauthorized disclosures.
Overview
FAR 3.104-4 establishes strict rules for the disclosure, protection, and marking of contractor bid or proposal information and source selection information. Its primary purpose is to prevent unauthorized access or release of sensitive procurement data, ensuring the integrity of the federal acquisition process. The regulation outlines who may access such information, how it must be protected and marked, and the procedures for addressing improper markings or disclosures. It also clarifies exceptions and limitations to these rules, including when information may be disclosed and to whom.
Key Rules
- Disclosure Restrictions
- Only authorized individuals may access or disclose contractor bid/proposal or source selection information.
- Protection and Marking
- Such information must be protected from unauthorized disclosure and clearly marked as required, referencing FAR 2.101 and 3.104.
- Handling Uncertain Information
- When unsure if information qualifies as source selection information, individuals must consult agency officials and err on the side of marking.
- Improper Marking Procedures
- Contracting officers must notify contractors of inappropriate markings and allow justification before removing marks or releasing information.
- Exceptions
- Certain disclosures are permitted, such as a contractor revealing its own information, or agency release of price information in reverse auctions.
- Limitations
- The rule does not authorize withholding information from Congress or oversight bodies, nor does it allow prohibited disclosures after award or cancellation.
Responsibilities
- Contracting Officers: Ensure proper protection, marking, and handling of sensitive information; follow procedures for improper markings; notify contractors as required.
- Contractors: Properly mark proprietary and bid/proposal information; justify markings if challenged; avoid unauthorized disclosures.
- Agencies: Implement procedures, provide oversight, and ensure compliance with marking and disclosure requirements.
Practical Implications
- This regulation safeguards the fairness and confidentiality of the procurement process, reducing the risk of bid protests and legal violations. Contractors and agency personnel must be vigilant in marking, handling, and disclosing sensitive information, as improper actions can lead to serious consequences, including removal of protections or legal penalties. Common pitfalls include failing to mark documents correctly or disclosing information to unauthorized parties.