procedures or techniques, chemical composition of material, or manufacturing methods, processes, or treatments, including minor modifications thereof, provided that such data: (1) are not generally known or available from other sources without obilgation concerning their confidentiality; (2) have not been made available by the owner to others without obligation concerning their confidentiality; and (3) are not already available to the Government witout obligation concerning their confidentiality. A proposer who receives a contract award shall mark the data identified as proprietary by specifying the appropriate proposal page numbers to be inserted in the Rights to Proposal Data clause of paragraph (c) below, which clause shall be included in the contract. Subject to the concurrence of the contracting officer, information unrelated to the contract may be deleted from the proposal by the contractor. The responsibliity, however, of identifying technical data as proprietary or deleting it as unrelated rests with the prospective contractor.

(c) The following clause shall be included in any contract based on a proposal. This clause is intended to apply only to technical data and not to other data such as privileged or confidential commercial or financial information.

RIGHTS TO PROPOSAL DATA

Except for technical data contained on pages
contractor's proposal dated

of the which are asserted by the contractor as being proprietary data, it is agreed that as a condition of the award of this contract, and notwithstanding the provisions of any notice appearing on the proposal, the Government shall have the right to use, duplicate, and disclose and have others do so for any purpose whatsoever, the technical data contained in the proposal upon which this contract is based.

$9-3.150-3 Handling notice.

In order that proposals may be handled in confidence consistent with the policies set forth in this section, the following notice shall be affixed to a cover sheet attached to each proposal upon receipt by ERDA.

Use of the following notice neither alters any obligation of the Government, nor diminishes any rights in the Government to use or disclose data or information.

NOTICE FOR HANDLING PROPOSALS

This proposal shall be used or duplicated only for ERDA evaluation purposes, and this notice shall be affixed to

any reproduction or abstract thereof. Disclosure of this proposal outside the Government for ERDA evaluation purposes shall not be made unless the provisions of $9-3.150-4 are followed. The restrictions contained in this notice do not apply to any data or commercial or financial information contained in this proposal if it is already generally available to the public, is already available to the Government on an unrestricted basis or is the property of the Government, or is or becomes available from any source, including the proposer, without restriction.

$9-3.150-4 Disclosure outside Government.

(a) Policy.

It is policy to have proposals evaluated by the most competent persons available in Government. In addition, ERDA frequently meets its evaluation needs by having proposals reviewed by evaluators, and contractor organizations operating or managing government owned facilities. Outside evaluations may be made provided the requirements in (b) and (c) below are met. A decision to employ outside evaluation shall take into consideration requirements for avoidance of organizational conflicts of interest set forth in $9-1.54 and the competitive relationship, if any, between the proposer and the prospective outside evaluator.

(b) Approval.

Headquarter decisions to evaluate proposals outside the Government shall be made by the senior program official, or designee(s), or by the head of the procuring activity. If the proposal under consideration expressly indicates that only Government evaluation is authorized and evaluation outside the Government is nevertheless desired, the proposer should be advised that ERDA may be unable to give full consideration to the proposal unless the proposer consents in writing to having the proposal evaluated outside the Govern-.

ment.

(c) Agreement with evaluator.

Where it is determined to evaluate a proposal outside the Government, such as, by consultants, grantees, and contractors including those who operate or manage government-owned facilities, the following agreement or an equivalent arrangement for the treatment of the proposal shall be obtained from the outside evaluator before ERDA furnishes a copy of the proposal to such person. In addition, care should be taken that the handling notice required by $9-3.150-3

is affixed to a cover sheet attached to the proposal before it is disclosed to the evaluator.

CONDITIONS FOR EVALUATING PROPOSALS

Whenever ERDA furnishes a proposal for evaluation, the recipient agrees to use the information contained in the proposal only for ERDA evaluation purposes and to treat the information obtained in confidence. This requirement does not apply to information obtained from any source, including the proposer without restriction. Any notice or restriction placed on the proposal by either ERDA or the originator of the proposal shall be conspicuously affixed to any reproduction or abstract thereof and its provisions strictly complied with. Upon completion of the evaluation, the recipient shall return all copies of the proposal and abstracts, if any, to the ERDA office which initially furnished the proposal for evaluation. Unless authorized by the ERDA initiating office, the recipient shall not contact the originator of the proposal concerning any aspect of its contents.

$9-3.150-5 Information to unsuccessful offerors.

Upon written request, unsuccessful offerors, those eliminated from competition ať earlier stages, as well as those in contention up to the final selection will be accorded formal debriefings. Such debriefings must be requested within 10 working days of receipt of notification of elimination from consideration or announcement of selection. Debriefings will be provided at the earliest feasible time which normally shall be after announcement of the selection decision and prior to award of the contract. However, when the exigency of the situation will not permit delaying the award in order to debrief unsuccessful offerors, such debriefing may be conducted after award.

$9-3.151

$9-3.151-1

Identification of proprietary data in proposals.

Solicited proposals (including PONs and PRDAs)

Even though the statement of work contained in a solicitation sets forth the known requirements for technical data, i.e., technical data which will be specified to be delivered, there is no assurance that the contractor will deliver all of this data because paragraph (e) of the Rights in Technical Data (long form) clause of §9-9.202-3 (e) (2) permits the contractor to withhold proprietary data from delivery. In order to ascertain the technical data each proposer intends to actually withhold as proprietary data, and as an aid in determining whether to include the provision for limited rights in

proprietary data set forth in optional paragraph (g) of the Rights in Technical Data (long form) clause, the provision set forth in $9-3.151-2 shall be included in the solicitation. This provision explains that solicitations will include ERDA's known requirements for technical data, and that the proposer must submit a list identifying to the best of its knowledge which of this data will be withheld as proprietary data, or state that no technical data will be withheld. The submission of such list does not constitute a stipulation or determination by the Government that the data identified therein are in fact proprietary. In addition, the provision to be included in the solicitation refers to the Additional Technical Data Requirements clause, $9-9. 202-3(c), as being included in the proposed contract where, due to programmatic considerations, it is contemplated that all of the requirements for technical data will not be known at the time of contracting. When a proposer specifically identifies the proprietary data to be withheld, the contracting officer shall, as advised by the appropriate program manager, determine whether: (1) the Government needs limited rights in the proprietary data, in which case the optional paragraph (g) will be included in the Rights in Technical Data (long form) clause, (2) the Government needs the right to require the contractor to license proprietary data to the Government and responsible third parties, in which case optional paragraph (h) will be included in the Rights in Technical Data (long form) clause, and (3) the Government needs unlimited rights in the proprietary data, in which case negotiations may be held to purchase or obtain a suitable license in the proprietary data.

$9-3.151-2 Solicitations.

The following provision shall normally be included in solicitations which may result in contracts calling for research, development, or demonstration work or contracts for supplies in which delivery of required technical data are contemplated.

The section of this solicitation which describes the work to be performed also sets forth ERDA's known requirements for technical data. The Additional Technical Data Requirements clause, if included in this solicitation, provides the Government with the option to order additional technical data, the requirements for which are not known at the time of contracting. There is, however, a built-in limitation on the kind of technical data which may be required. This limitation clause provides that the contractor may withhold delivery of proprietary data.

Accordingly, it is necessary that your proposal state that the work to be performed and the known requirements for technical data as set forth in the solicitation have

$9-3.151-3

been reviewed, and either state that to the best of your knowledge, no data will be withheld, or submit a list identifying the proprietary data which to the best of your knowlege will likely be used in the contract performance and will be withheld.

Unsolicited proposals.

shall

The contracting officer, during contract negotiations, identify technical data which will be required to be furnished under the contract. In such instance the proposer shall be required to submit a list identifying to the best of his knowledge which of this data will be withheld as proprietary under paragraph (e) of the Rights in Technical Data (long form) clause, or state that no technical data will be withheld. The contracting officer shall then make the determinations, in the same manner as set forth in §9-3.151-1 above for solicited proposals, pertaining to the proprietary data identified to be withheld.

$9-3.152 Required notice of right to request patent waiver.

As set forth in §9-9.107-4(a))(6), offerors and prospective contractors are to be provided with notice of and the right to request, in advance of or within 30 days after the effective date of contracting, a waiver of all or any part of the rights of the United States with respect to subject inventions. In no event will the fact. that an offeror has requested such a waiver be a consideraton in the evaluation of his offer or the determination of his acceptability. Accordingly, the following notice will be given to all prospective contractors and will be inserted in all solicitations which may result in contracts calling for research, development, or demonstration

work:

Offerors and prospective contractors in accordance withapplicable statutes and ERDA Procurement Regulations have the right to request in advance of or within 30 days after the effective date of contracting a waiver of all or any part of the rights of the United States in subject inventions. --;

Subpart 9-3.2 Circumstances Permitting Negotiation.

$9-3.200 Scope of subpart.

(a) Section 302(c) of the Federal Property and Administrative Services Act of 1949, as amended, authorizes the negotiation of contracts, and is applicable to AEC (now ERDA) procurement. Section