FAR 15.609—Limited use of data.
Plain-English Summary
FAR 15.609 explains how agencies and offerors must handle data in unsolicited proposals when the offeror wants to limit disclosure or use. It covers the required restrictive legend on the title page, the need to mark each restricted sheet, what the agency point of contact must do if the legend is wrong or missing, the Government’s own cover-sheet notice for handling proposals, the relationship between that notice and the Freedom of Information Act, and special procedures when proposals from educational or nonprofit organizations are evaluated outside the Government or when proposals from other sources are shared with outside Government or non-Government evaluators. In practice, this section is about protecting proprietary, trade secret, commercial, financial, and confidential information while still allowing the Government to evaluate unsolicited proposals. It also makes clear that the Government may use information obtained from another source without restriction, and that if a contract is awarded, the contract terms—not the proposal legend—control future disclosure and use. For contractors, the rule is mainly about properly marking and limiting sensitive data; for agencies, it is about screening, routing, and controlling access so the proposal can be evaluated without creating unnecessary disclosure risk or FOIA confusion.
Key Rules
Use the required legend
If the offeror wants to restrict data in an unsolicited proposal, the title page must carry the exact legend prescribed by FAR 15.609(a). The legend limits disclosure and use to evaluation purposes unless a resulting contract provides otherwise.
Mark each restricted sheet
The offeror must identify the specific sheets containing restricted data and place the required sheet-level legend on each of those pages. This helps the Government know exactly what information is claimed as restricted.
Wrong legend means return
If the proposal is marked with a legend different from the one required, the agency point of contact must return it and explain that it cannot be considered because the Government cannot comply with the legend as submitted. The offeror may resubmit with the proper legend.
Agency must add a cover notice
Unless the offeror states in writing that no restrictions apply, the agency point of contact must place the Government’s unsolicited-proposal cover sheet or equivalent notice on the submission. That notice warns personnel to protect the data and states that the contract terms will control if an award results.
FOIA is not overridden
The Government notice may be used only to manage unsolicited proposals consistently with the subpart; it cannot be used to withhold records or deny public access when FOIA requires disclosure. Offerors should separately identify trade secrets and confidential commercial or financial information.
Special rules for educational and nonprofit sources
If an educational or nonprofit proposal has no restrictive legend and outside evaluation is needed, the agency must use the modified cover sheet, change the notice to include non-Government personnel, and obtain a written nondisclosure agreement from each non-Government evaluator.
Special rules for other sources
For proposals from non-educational, non-nonprofit sources, if evaluation by outside Government personnel or outside experts is needed, the agency must obtain the offeror’s written permission before release and secure a written nondisclosure agreement from each non-Government evaluator.
Government may use unrestricted sources
The restriction does not prevent the Government from using information that it obtains from another source without restriction. The legend only applies to the data actually covered by the proposal and the stated restriction.
Responsibilities
Offeror
If it wants to restrict use or disclosure, it must place the exact required legend on the title page, identify the sheets containing restricted data, and mark each restricted sheet with the required sheet-level legend. It should also clearly identify trade secrets, commercial or financial information, and other confidential or privileged material, and state in writing if no restrictions are intended.
Agency Point of Contact
It must review the proposal for proper marking, return proposals with incorrect legends, place the Government cover sheet or equivalent notice on proposals that are to be handled under this section, and control release of proposals for outside evaluation. It must also obtain required written permissions and nondisclosure agreements before sharing proposals with non-Government evaluators or, in some cases, evaluators outside the agency.
Government Personnel
They must exercise extreme care not to disclose, duplicate, use, or share restricted proposal data except for evaluation purposes and only with authorized persons. They must also recognize that the Government notice does not itself create liability or override FOIA obligations.
Non-Government Evaluator
If allowed to review the proposal, the evaluator must sign a written agreement not to disclose proposal data to persons outside the Government. The evaluator may use the data only for the authorized evaluation purpose.
Agency
It must ensure its proposal-handling procedures are compatible with the unsolicited-proposal rules, protect restricted data during evaluation, and avoid using the Government notice as a basis to improperly withhold records from the public under FOIA.
Practical Implications
The biggest day-to-day issue is proper marking. If the title-page legend is wrong or missing, the agency may have to return the proposal, delaying or derailing consideration.
Contractors should not assume a general confidentiality statement is enough; FAR 15.609 requires a specific legend and sheet-by-sheet identification of restricted data.
Agencies must be careful when routing proposals to technical experts, consultants, or other outside reviewers. Written permission and nondisclosure agreements may be required before any release.
The Government’s cover sheet is a handling tool, not a FOIA shield. Agencies still need to process records requests under FOIA and cannot rely on the notice to withhold information that must be released.
If a contract is later awarded, the contract language controls disclosure and use. Offerors should not rely solely on the proposal legend to protect data after award.
Official Regulatory Text
(a) An unsolicited proposal may include data that the offeror does not want disclosed to the public for any purpose or used by the Government except for evaluation purposes. If the offeror wishes to restrict the data, the title page must be marked with the following legend: Use and Disclosure of Data This proposal includes data that 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 this proposal. However, if a contract is awarded to this offeror as a result of-or in connection with-the submission of these data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit the Government's right to use information contained in these data if they are obtained from another source without restriction. The data subject to this restriction are contained in Sheets [ insert numbers or other identification of sheets ]. (b) The offeror shall also mark each sheet of data it wishes to restrict with the following legend: Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal. (c) The agency point of contact shall return to the offeror any unsolicited proposal marked with a legend different from that provided in paragraph (a) of this section. The return letter will state that the proposal cannot be considered because it is impracticable for the Government to comply with the legend and that the agency will consider the proposal if it is resubmitted with the proper legend. (d) The agency point of contact shall place a cover sheet on the proposal or clearly mark it as follows, unless the offeror clearly states in writing that no restrictions are imposed on the disclosure or use of the data contained in the proposal: Unsolicited Proposal-Use of Data Limited All Government personnel must exercise extreme care to ensure that the information in this proposal is not disclosed to an individual who has not been authorized access to such data in accordance with FAR 3.104 , and is not duplicated, used, or disclosed in whole or in part for any purpose other than evaluation of the proposal, without the written permission of the offeror. If a contract is awarded on the basis of this proposal, the terms of the contract shall control disclosure and use. This notice does not limit the Government's right to use information contained in the proposal if it is obtainable from another source without restriction. This is a Government notice, and shall not by itself be construed to impose any liability upon the Government or Government personnel for disclosure or use of data contained in this proposal. (e) Use the notice in paragraph (d) of this section solely as a manner of handling unsolicited proposals that will be compatible with this subpart. However, do not use this notice to justify withholding of a record, or to improperly deny the public access to a record, where an obligation is imposed by the Freedom of Information Act ( 5 U.S.C. 552 ). An offeror should identify trade secrets, commercial or financial information, and privileged or confidential information to the Government (see paragraph (a) of this section). (f) When an agency receives an unsolicited proposal without any restrictive legend from an educational or nonprofit organization or institution, and an evaluation outside the Government is necessary, the agency point of contact shall- (1) Attach a cover sheet clearly marked with the legend in paragraph (d) of this section; (2) Change the beginning of this legend to read "All Government and non-Government personnel * * *"; and (3) Require any non-Government evaluator to agree in writing that data in the proposal will not be disclosed to others outside the Government. (g) If the proposal is received with the restrictive legend (see paragraph (a) of this section), the modified cover sheet shall also be used and permission shall be obtained from the offeror before release of the proposal for evaluation by non-Government personnel. (h) When an agency receives an unsolicited proposal with or without a restrictive legend from other than an educational or nonprofit organization or institution, and evaluation by Government personnel outside the agency or by experts outside of the Government is necessary, written permission must be obtained from the offeror before release of the proposal for evaluation. The agency point of contact shall- (1) Clearly mark the cover sheet with the legend in paragraph (d) or as modified in paragraph (f) of this section; and (2) Obtain a written agreement from any non-Government evaluator stating that data in the proposal will not be disclosed to persons outside the Government.