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Proposed Executive Branch Position for
Recommendation I-12 of the
Report of the Commission on Government Procurement
Rendered October 31, 1973 1. Summation
a. Recommendation 1-12
submitted with proposals or other related communications. The Recommendation appears on page 130 of Volume 4 of the Report, and is in Category A.
b. Proposed Position
It is proposed that Recommendation 1-12 be adopted by the Executive branch. This Recommendation should be combined with Recommendation I-10, and an overall policy statement on technical data applicable to both of these Recommendations be developed.
The Commission found, from a review of agency policies, that there is no uniformity within the Government with respect to the treatment of data submitted with proposals or related communications. It suggests that a degree of uniformity in this area is desirable, but concludes that legislation is not the answer. It therefore recommends development and implementation of a statement of Government policy as a means of attaining uniformity.
The reason given to support the need for uniformity with respect to information submitted with proposals is that it would facilitate the flow of information to the Government. Ostensibly this increased flow would result from prospective contractors and others submitting more proposals to the Government if they were secure in the knowledge that the Government would protect their proprietary interests in the information submitted. This reasoning appears to be valid.
The corollary to the above proposition is that lack of a Government policy on data submitted with proposals results in prospective contractors, or others who may be interested in contributing to the advancement of technology, not submitting their best ideas to the Government. This might be because they do not know the policy of the agency with which they would like to deal, because they are confused by differences in policies of the different agencies, or because they are afraid to deal with an agency which has no established policy.
It is considered that all of these factors could contribute to a lack of confidence on the part of those who might otherwise submit proposals, particularly those who do not depend upon Government business.
It is concluded that development and implementation of a statement of Government policy with respect to data submitted with proposals could lead to increased confidence in dealings with the Government and have a salutary effect upon the relationship of the Government with individuals and organizations having information useful to the Government but with whom no contractual relationship exists.
Many Government agencies have established policies on how to handle data submitted with proposals and other related communications. For example, DOD provides, in the Armed Services Procurement Regulations (ASPR), a restrictive legend which may be used on proposals to limit their dissemination (Appendix A). However, such policies may not be known to all those interested in submitting proposals, especially in regard to unsolicited proposals. Only those intimately familiar with the ASPR would be aware of its provisions. The same is true of other agencies. Therefore, agencies which have established policies may not be in any better position than those without stated policies in dealing with prospective submitters of proposals. A chief advantage in having a Government policy would be that such a policy, being applicable to all Government agencies, could be given much wider publicity than separate policies of individual agencies.
When a proposal results in a Government contract, the problem of rights in data submitted with proposals becomes one of acquisition of rights in data under a contract because it is often desirable to acquire rights in the proposal (or other data developed prior to the contract) as well as in data generated under the contract. Accordingly, this Recommendation I-12 is considered to be intimately related to Recommendation 1-10, which is concerned with rights acquired under contracts.
Because of the relationship of the two statements, and the fact they would both be of interest to the same people and organizations; i.e., contractors and prospective contractors, it is felt that both statements should be part of one overall policy on rights in technical data.
It is proposed that this Recommendation be implemented together with Recommendation I-10 as part of a single coordinated statement of Government policy on rights in technical data.
VII. Dissenting Views
There were no dissenting views voiced.
3-507 Treatment of Procurement Information.
3-507.1 Restrictions on Disclosure and Use of Data in
(a) A proposal, whether solicited or unsolicited, may include data, such as a technical design or concept or financial and management plan, which the offeror does not want disclosed to the public for any purpose or used by the Government for any purpose other than evaluation of the proposal. If an offeror wishes so to restrict his proposal, he shall mark the title page with the following legend:
This data, furnished in connection with Request for Proposals No. -*, shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate the proposal; provided, that if a contract is awarded to this offeror as a result of or in connection with the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the contract. This restriction does not limit the Government's right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction is contained in Sheets
(DEC. 1966) The offeror shall mark each sheet of data which he wishes to restrict with the following legend:
Use or disclosure of proposal data is subject to the restric
tion on the Title page of this Proposal. (DEC. 1966) Contracting officers and other Government personnel shall not refuse to consider any proposal merely because it or the data submitted with it is so marked. Those portions of the proposal and data which are so marked (except for information which is also obtained from another source without restriction shall be used only to evaluate the proposal and shall not be disclosed outside the Government without the written permission of the offeror. If it is desired to duplicate, use, or disclose the data of the offeror to whom the contract is to be awarded, for purposes other than to evaluate the proposal, the contract should so provide. (See 9–201 for a description of "data" and Section IX, Part 2, in general, for
* If proposal is unsolicited (see 4-101 (c)), delete “furnished in connection with Request for Proposals No.