FAR 3.104-4—Disclosure, protection, and marking of contractor bid or proposal information and source selection information.
Plain-English Summary
FAR 3.104-4 explains how the Government must protect, mark, and control disclosure of contractor bid or proposal information and source selection information. It covers the basic prohibition on unauthorized disclosure, the duty to protect these materials under FAR 14.401, 15.207, applicable law, and agency procedures, and the need to consult agency officials when there is uncertainty about whether information is source selection information under FAR 2.101. It also addresses marking requirements for certain source selection information, including the required legend and the expectation to make reasonable efforts to mark all source selection information even when some categories are source selection information by definition whether or not marked. The section further sets out the process for handling allegedly improper markings on proprietary information, contractor bid or proposal information, and information marked under FAR 52.215-1(e), including notice to the contractor, an opportunity to justify the marking, and procedures for technical data marked proprietary under FAR 27.404-5. Finally, it clarifies what this section does not restrict or authorize, including contractor self-disclosure, certain post-cancellation disclosures, permitted meetings, Government use of technical data consistent with Government rights, responses to Congress and oversight bodies, GAO protest access, and the limits on post-award disclosure when another procurement is involved or when disclosure is otherwise prohibited by law.
Key Rules
No unauthorized disclosure
Contractor bid or proposal information and source selection information may not be disclosed to anyone except persons authorized by the agency head or contracting officer under applicable agency regulations or procedures. This is the core confidentiality rule for procurement-sensitive information.
Protect sensitive procurement data
These materials must be safeguarded against unauthorized disclosure in accordance with FAR 14.401, FAR 15.207, applicable law, and agency regulations. In practice, this means agencies and personnel must treat these records as restricted procurement information throughout the acquisition process.
Consult when unsure
If an individual is uncertain whether information is source selection information under FAR 2.101, they should consult agency officials. This is important because some categories are source selection information by definition even if not marked.
Mark certain source selection material
Material that may be source selection information under paragraph (10) of the FAR 2.101 definition must be marked on the cover page and each page believed to contain such information with the legend 'Source Selection Information-See FAR 2.101 and 3.104.' Reasonable efforts must also be made to mark source selection information in paragraphs (1) through (9), even though those categories are source selection information whether or not marked.
Challenge improper markings
If the contracting officer believes proprietary information, contractor bid or proposal information, or information marked under FAR 52.215-1(e) is improperly marked, the contractor must be notified in writing and given a chance to justify the marking. The contracting officer may remove the marking and release the information only after the contractor agrees, fails to respond, or the CO determines the marking is not justified and gives written notice before release.
Follow special technical data rules
If the disputed marking is on technical data marked proprietary by a contractor, the contracting officer must follow FAR 27.404-5. This creates a separate procedure for technical data and prevents use of the general marking-removal process where the technical data rules apply.
Recognize permitted disclosures
The section does not stop a contractor from disclosing its own bid or proposal information, does not bar certain meetings with offerors if no unauthorized disclosure occurs, allows disclosure of otherwise unprotected information after a procurement is canceled before award if the procurement is not being resumed, and permits Government use of technical data consistent with Government rights.
Respect statutory and oversight exceptions
The section does not authorize withholding information from Congress, committees, Federal agencies, the Comptroller General, or an Inspector General when a proper request is made, subject to law or regulation. It also does not prevent GAO access in bid protests, but any release must identify the information as protected procurement information and notify the recipient that disclosure is restricted by 41 U.S.C. chapter 21.
Limit post-award use and release
After award or cancellation, information may not be released if it pertains to another procurement, and the section does not authorize disclosure, solicitation, or receipt of bid or proposal information or source selection information after award when another law prohibits it. This preserves confidentiality beyond a single procurement action.
Responsibilities
Contracting Officer
Protect contractor bid or proposal information and source selection information from unauthorized disclosure; determine who is authorized to receive it; consult and guide staff when information may be source selection information; notify contractors in writing when markings appear improper; give contractors an opportunity to justify markings; remove markings and release information only when the regulatory conditions are met; and follow FAR 27.404-5 for technical data marked proprietary.
Agency Head
Authorize, through applicable agency regulations or procedures, who may receive contractor bid or proposal information or source selection information. The agency head’s authorization framework is the basis for lawful internal access.
Agency Officials and Procurement Staff
Handle procurement-sensitive information carefully, consult when classification as source selection information is uncertain, apply required markings, and avoid unauthorized disclosure during evaluations, meetings, and internal circulation.
Contractor
Mark source selection-related material when required, justify challenged markings when notified, and understand that it may disclose its own bid or proposal information. Contractors also must recognize that improper or unsupported markings may be removed after the required process.
Recipients Authorized by the Agency
Receive protected information only when authorized under agency regulations or procedures and maintain the confidentiality restrictions that apply to the information.
Congress, Committees, Comptroller General, Inspectors General, and Federal Agencies
May request and receive information as permitted by law or regulation; the Government must respond to proper requests, but any release must identify the information as protected procurement information and note the statutory restriction on disclosure.
Practical Implications
This section is a front-line confidentiality rule for source selection and proposal data, so mishandling can compromise competition, trigger protests, and create legal exposure. Contracting teams should treat evaluation materials, proposals, and related procurement records as restricted from the moment they are created or received.
Marking matters, but it is not the whole story: some source selection information is protected even if unmarked. Personnel should not rely on the absence of a legend as permission to share information.
Improper markings are common in proposals and technical submissions. Contracting officers need a disciplined process for notice, contractor response, and written determination before removing markings or releasing information.
The exceptions are narrow and easy to misuse. For example, meetings with offerors are allowed only if no unauthorized disclosure occurs, and post-cancellation disclosure is limited if the procurement may resume or if the information relates to another procurement.
Oversight and protest access are preserved, but releases must still be carefully labeled and handled. Agencies should coordinate with legal and procurement officials before responding to Congress, GAO, or an Inspector General to ensure the disclosure is proper and appropriately identified.
Official Regulatory Text
(a) Except as specifically provided for in this subsection, no person or other entity may disclose contractor bid or proposal information or source selection information to any person other than a person authorized, in accordance with applicable agency regulations or procedures, by the agency head or the contracting officer to receive such information. (b) Contractor bid or proposal information and source selection information must be protected from unauthorized disclosure in accordance with 14.401 , 15.207 , applicable law, and agency regulations. (c) Individuals unsure if particular information is source selection information, as defined in 2.101 , should consult with agency officials as necessary. Individuals responsible for preparing material that may be source selection information as described at paragraph (10) of the "source selection information" definition in 2.101 must mark the cover page and each page that the individual believes contains source selection information with the legend "Source Selection Information-See FAR 2.101 and 3.104 ." Although the information in paragraphs (1) through (9) of the definition in 2.101 is considered to be source selection information whether or not marked, all reasonable efforts must be made to mark such material with the same legend. (d) Except as provided in paragraph (d)(3) of this subsection, the contracting officer must notify the contractor in writing if the contracting officer believes that proprietary information, contractor bid or proposal information, or information marked in accordance with 52.215-1 (e) has been inappropriately marked. The contractor that has affixed the marking must be given an opportunity to justify the marking. (1) If the contractor agrees that the marking is not justified, or does not respond within the time specified in the notice, the contracting officer may remove the marking and release the information. (2) If, after reviewing the contractor’s justification, the contracting officer determines that the marking is not justified, the contracting officer must notify the contractor in writing before releasing the information. (3) For technical data marked as proprietary by a contractor, the contracting officer must follow the procedures in 27.404-5 . (e) This section does not restrict or prohibit- (1) A contractor from disclosing its own bid or proposal information or the recipient from receiving that information. During reverse auctions, agencies may reveal to all offerors the offered price(s), but shall not reveal any offeror's identity except for the awardee's identity subsequent to an award resulting from the auction (see subpart 17.8 ); (2) The disclosure or receipt of information, not otherwise protected, relating to a Federal agency procurement after it has been canceled by the Federal agency, before contract award, unless the Federal agency plans to resume the procurement; (3) Individual meetings between a Federal agency official and an offeror or potential offeror for, or a recipient of, a contract or subcontract under a Federal agency procurement, provided that unauthorized disclosure or receipt of contractor bid or proposal information or source selection information does not occur; or (4) The Government’s use of technical data in a manner consistent with the Government’s rights in the data. (f) This section does not authorize- (1) The withholding of any information pursuant to a proper request from the Congress, any committee or subcommittee thereof, a Federal agency, the Comptroller General, or an Inspector General of a Federal agency, except as otherwise authorized by law or regulation. Any release containing contractor bid or proposal information or source selection information must clearly identify the information as contractor bid or proposal information or source selection information related to the conduct of a Federal agency procurement and notify the recipient that the disclosure of the information is restricted by 41 U.S.C. chapter 21 ; (2) The withholding of information from, or restricting its receipt by, the Comptroller General in the course of a protest against the award or proposed award of a Federal agency procurement contract; (3) The release of information after award of a contract or cancellation of a procurement if such information is contractor bid or proposal information or source selection information that pertains to another procurement; or (4) The disclosure, solicitation, or receipt of bid or proposal information or source selection information after award if disclosure, solicitation, or receipt is prohibited by law. (See 3.104-2 (b)(5) and subpart 24.2 .)