FAR 27.404-5—Unauthorized, omitted, or incorrect markings.
Plain-English Summary
FAR 27.404-5 addresses what happens when data delivered under a government contract is marked incorrectly, marked without authorization, or delivered without required notices. It covers two related problem areas: unauthorized markings on data and omitted or incorrect limited rights, restricted rights, or copyright notices. The section explains the Government’s options to return data, ignore or cancel improper markings, and the required process before doing so, including written inquiry, a 60-day response period, contracting officer review, and possible appeal to court. It also explains how omitted or incorrect notices are handled, including the presumption of unlimited rights when required notices are missing, the contractor’s limited opportunity to request correction within six months, and the contractor’s burden to show the omission was inadvertent and the notice is authorized. In practice, this section protects the Government from improper restrictions on data while giving contractors a fair chance to justify or correct markings that were made in error. It is especially important in technical data and software-related procurements where rights markings can affect disclosure, reuse, competition, and FOIA responses.
Key Rules
Unauthorized markings may be ignored
If data contains markings that are not authorized, the Government may return the data or cancel/ignore the markings under the clause at 52.227-14. The Government cannot simply disregard the markings immediately; it must first follow the required notice-and-response process unless a FOIA response procedure applies.
Written inquiry and 60-day response
Before canceling or ignoring unauthorized markings, the agency must make a written inquiry to the contractor and give at least 60 days for a written justification. If the contractor does not respond or fails to substantiate the markings, the Government may cancel or ignore them.
Contracting officer must review justification
If the contractor provides a justification, the contracting officer must consider it. If the markings are found authorized, the contractor must be notified in writing; if not authorized, the contracting officer may issue a written determination, with HCA concurrence, that becomes the final agency decision unless the contractor sues within 90 days.
Markings stay in place during dispute
The Government may not cancel or ignore the markings until the matter is finally resolved, either by the final agency decision or by a court decision if the contractor files suit. This preserves the status quo while the dispute is pending.
FOIA procedures may alter the process
The standard marking-dispute procedures may be modified by agency FOIA regulations when needed to respond to a Freedom of Information Act request. Even then, the contractor may still pursue a claim under the Disputes clause unless the removal of markings results from a final court decision.
Missing notices create unlimited-rights presumption
If data is delivered without a required limited rights notice, restricted rights notice, or copyright notice, the data is presumed to have been delivered with unlimited rights. The Government assumes no liability for disclosure, use, or reproduction of the data in that situation.
Late correction of omitted notices is limited
If the data has not yet been disclosed outside the Government without restriction, the contractor may request permission within 6 months, or longer for good cause, to add the missing notice at its own expense. The contractor must identify the data, show the omission was inadvertent, prove the notice is authorized, and acknowledge the Government has no liability for prior disclosures or uses.
Incorrect notices may be corrected
The contracting officer may allow correction of incorrect notices at the contractor’s expense if the contractor identifies the affected data and shows the correct notice is authorized. The contracting officer may also correct incorrect notices directly.
Responsibilities
Agency
Follow the required process before canceling or ignoring unauthorized markings, including written inquiry and a minimum 60-day response period. Apply FOIA-related modifications only as permitted by agency regulations and preserve the contractor’s rights to pursue a claim where applicable.
Contracting Officer
Review contractor justifications for challenged markings, determine whether markings are authorized, issue written notifications or determinations, obtain HCA concurrence when concluding markings are unauthorized, and decide whether to permit correction of omitted or incorrect notices.
Head of the Contracting Activity
Concur in a contracting officer’s determination that markings are not authorized before the determination becomes the final agency decision.
Contractor
Respond in writing to inquiries about unauthorized markings within the time allowed, substantiate the propriety of the markings, and if seeking correction of omitted or incorrect notices, identify the data, show the omission or error was inadvertent, prove the notice is authorized, and accept that prior Government use or disclosure is not the Government’s liability.
Court of Competent Jurisdiction
Resolve disputes if the contractor files suit within 90 days after the contracting officer’s adverse final agency decision on unauthorized markings.
Practical Implications
Contractors should treat data markings as a compliance issue, not an afterthought; unsupported or overbroad markings can be removed, weakening confidentiality claims.
If a contractor receives a challenge to markings, the 60-day response window is critical. Failing to respond or failing to justify the marking can result in the Government ignoring the restriction.
Missing required notices are risky because the default presumption is unlimited rights. Contractors should have internal review controls before delivery to avoid losing rights by omission.
Even when correction is allowed, it is usually at the contractor’s expense and does not undo prior Government disclosures or uses made before the correction.
Contracting officers should document the inquiry, response period, justification review, and final determination carefully, because the process can lead to disputes, FOIA complications, or litigation.
Official Regulatory Text
(a) Unauthorized marking of data. (1) The Government has, in accordance with paragraph (e) of the clause at 52.227-14 , the right to either return data containing unauthorized markings or to cancel or ignore the markings. (2) Agencies shall not cancel or ignore markings without making written inquiry of the contractor and affording the contractor at least 60 days to provide a written justification substantiating the propriety of the markings. (i) If the contractor fails to respond or fails to provide a written justification substantiating the propriety of the markings within the time afforded, the Government may cancel or ignore the markings. (ii) If the contractor provides a written justification substantiating the propriety of the markings, the contracting officer shall consider the justification. (A) If the contracting officer determines that the markings are authorized, the contractor will be so notified in writing. (B) If the contracting officer determines, with concurrence of the head of the contracting activity, that the markings are not authorized, the contractor will be furnished a written determination which becomes the final agency decision regarding the appropriateness of the markings and the markings will be cancelled or ignored and the data will no longer be made subject to disclosure prohibitions, unless the contractor files suit within 90 days in a court of competent jurisdiction. The markings will not be cancelled or ignored until final resolution of the matter, either by the contracting officer's determination becoming the final agency decision or by final disposition of the matter by court decision if suit is filed. (3) The foregoing procedures may be modified in accordance with agency regulations implementing the Freedom of Information Act ( 5 U.S.C. 552 ) if necessary to respond to a request. In addition, the contractor may bring a claim, in accordance with the Disputes clause of the contract, that may arise as the result of the Government’s action to remove or ignore any markings on data, unless the action occurs as the result of a final disposition of the matter by a court of competent jurisdiction. (b) Omitted or incorrect notices. (1) Data delivered under a contract containing the clause without a limited rights notice or restricted rights notice, and without a copyright notice, will be presumed to have been delivered with unlimited rights, and the Government assumes no liability for the disclosure, use, or reproduction of the data. However, to the extent the data has not been disclosed without restriction outside the Government, the contractor may, within 6 months (or a longer period approved by the contracting officer for good cause shown), request permission of the contracting officer to have the omitted limited rights or restricted rights notices, as applicable, placed on qualifying data at the contractor's expense. The contracting officer may permit adding appropriate notices if the contractor- (i) Identifies the data for which a notice is to be added; (ii) Demonstrates that the omission of the proposed notice was inadvertent; (iii) Establishes that use of the proposed notice is authorized; and (iv) Acknowledges that the Government has no liability with respect to any disclosure or use of any such data made prior to the addition of the notice or resulting from the omission of the notice. (2) The contracting officer may also- (i) Permit correction, at the contractor’s expense, of incorrect notices if the contractor identifies the data on which correction of the notice is to be made, and demonstrates that the correct notice is authorized; or (ii) Correct any incorrect notices.