3.104-4 Disclosure, protection, and marking of contractor bid or proposal information and source selection information
Source: FAR 3.104-4 on acquisition.gov
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.
(a) Except as specifically provided for in this subsection, no person or other entity may disclose contractor bid or proposal information or source selection information to any person other than a person authorized, in accordance with applicable agency regulations or procedures, by the agency head or the contracting officer to receive such information.
(b) Contractor bid or proposal information and source selection information must be protected from unauthorized disclosure in accordance with 14.401, 15.207, applicable law, and agency regulations.
(c) Individuals unsure if particular information is source selection information, as defined in 2.101, should consult with agency officials as necessary. Individuals responsible for preparing material that may be source selection information as described at paragraph (10) of the "source selection information" definition in 2.101 must mark the cover page and each page that the individual believes contains source selection information with the legend "Source Selection Information-See FAR 2.101 and 3.104." Although the information in paragraphs (1) through (9) of the definition in 2.101 is considered to be source selection information whether or not marked, all reasonable efforts must be made to mark such material with the same legend.
(d) Except as provided in paragraph (d)(3) of this subsection, the contracting officer must notify the contractor in writing if the contracting officer believes that proprietary information, contractor bid or proposal information, or information marked in accordance with 52.215-1(e) has been inappropriately marked. The contractor that has affixed the marking must be given an opportunity to justify the marking.
(1) If the contractor agrees that the marking is not justified, or does not respond within the time specified in the notice, the contracting officer may remove the marking and release the information.
(2) If, after reviewing the contractor’s justification, the contracting officer determines that the marking is not justified, the contracting officer must notify the contractor in writing before releasing the information.
(3) For technical data marked as proprietary by a contractor, the contracting officer must follow the procedures in 27.404-5.
(e) This section does not restrict or prohibit-
(1) A contractor from disclosing its own bid or proposal information or the recipient from receiving that information. During reverse auctions, agencies may reveal to all offerors the offered price(s), but shall not reveal any offeror's identity except for the awardee's identity subsequent to an award resulting from the auction (see subpart 17.8);
(2) The disclosure or receipt of information, not otherwise protected, relating to a Federal agency procurement after it has been canceled by the Federal agency, before contract award, unless the Federal agency plans to resume the procurement;
(3) Individual meetings between a Federal agency official and an offeror or potential offeror for, or a recipient of, a contract or subcontract under a Federal agency procurement, provided that unauthorized disclosure or receipt of contractor bid or proposal information or source selection information does not occur; or
(4) The Government’s use of technical data in a manner consistent with the Government’s rights in the data.
(f) This section does not authorize-
(1) The withholding of any information pursuant to a proper request from the Congress, any committee or subcommittee thereof, a Federal agency, the Comptroller General, or an Inspector General of a Federal agency, except as otherwise authorized by law or regulation. Any release containing contractor bid or proposal information or source selection information must clearly identify the information as contractor bid or proposal information or source selection information related to the conduct of a Federal agency procurement and notify the recipient that the disclosure of the information is restricted by http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title41-chapter21&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU0MC1jaGFwdGVyMzctZnJvbnQ%3D%7C%7C%7C0%7Cfalse%7Cprelim&edition=prelim" target="_blank">41 U.S.C. chapter 21;
(2) The withholding of information from, or restricting its receipt by, the Comptroller General in the course of a protest against the award or proposed award of a Federal agency procurement contract;
(3) The release of information after award of a contract or cancellation of a procurement if such information is contractor bid or proposal information or source selection information that pertains to another procurement; or
(4) The disclosure, solicitation, or receipt of bid or proposal information or source selection information after award if disclosure, solicitation, or receipt is prohibited by law. (See 3.104-2(b)(5) and subpart 24.2.)