Contractor is submitting CDRL deliverables with contractor proprietary markings. The Clause at 252.227-7013 does not apply because the CDRL deliverables are not technical data. Is it lawful for a contractor to use proprietary markings on CDRL deliverables that are non-technical in nature?
Yes, it is lawful for a contractor to mark information with contractor proprietary markings. Such markings provide notice to the government that they consider the information as confidential and that it needs to be properly safeguarded. The parts of the FAR that address ‘data’ and ‘technical data’ include information on the markings and the ability of the Contracting Officer to question the applicability of the markings and whether they unduly burden the government. In a negotiation the marking requirements should be discussed and an agreement reached on the applicability
The definition of data found in several locations within the FAR does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information. See FAR 27.401 Definitions “Data” and FAR 2.101 “Technical data.”
If there is additional information being provided, the FAR and DFARS do not directly address the issue, however, there is guidance in FAR 3.104-2(b)(5). It reminds us that the release of information, both before and after award, may be prohibited by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18 U.S.C. 1905) and other laws. Personal information, escalation lists, processes, work flow diagrams and project plans would fit into this category.
Trade Secrets Act - 18 USC § 1905. Disclosure of confidential information generally
Whoever, being an officer or employee of the United States or of any department or agency thereof, . . . publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.