Marking Proprietary Data
Protecting proprietary data and/or information is a matter that DOE takes very seriously, but to ensure that no proprietary data is shared with the public, applicants must accurately identify all proprietary data included in the application. Data or information that is considered proprietary typically includes trade secrets or technical information, and also commercial and financial information that businesses would not want to share with others. This type of data is often included in the Project Narrative, the Commercialization Plan, financials, and at times Letters of Support as well.
Department of Energy (DOE) takes very seriously the confidentiality of all applicants and will treat information submitted in applications, as well as the identity of applicants, as confidential to the fullest extent permissible under Federal law. In order for DOE to protect confidential information, the applicant must also treat the information as confidential and properly mark it as described below. DOE will not be able to protect information that the applicant has released publicly or is in the public domain. For additional information on DOE’s Freedom of Information Act (FOIA) regulations, see 10 CFR 1004.
Applicants should not include business sensitive information (e.g., commercial or financial information that is privileged or confidential), trade secrets, proprietary, or otherwise confidential information in their application unless such information is necessary to convey an understanding of the proposed project or to comply with a requirement in the FOA. Applicants are advised to not include any critically sensitive proprietary detail.
If an application includes trade secrets or information that is commercial or financial, or information that is confidential or privileged, it is furnished to the Government in confidence with the understanding that the information shall be used or disclosed only for evaluation of the application. Such information will be withheld from public disclosure to the extent permitted by law, including the FOIA. Without assuming any liability for inadvertent disclosure, DOE will seek to limit disclosure of such information to its employees and to outside reviewers when necessary for merit review of the application or as otherwise authorized by law. This restriction does not limit the Government’s right to use the information if it is obtained from another source.
Applications and other submissions containing confidential, proprietary, or privileged information must be marked as described below. Failure to comply with these marking requirements may result in the disclosure of the unmarked information under the FOIA or otherwise. The U.S. Government is not liable for the disclosure or use of unmarked information and may use or disclose such information for any purpose.
Information contained in unsuccessful proposals will remain the property of the Applicant. The Federal Government may, however, retain copies of all proposals. Public release of information in any proposal submitted will be subject to existing statutory and regulatory requirements. If proprietary information is provided by an Applicant in a proposal, which constitutes a trade secret, commercial or financial information, it will be treated in confidence, to the extent permitted by law, provided that the proposal is clearly marked by the Applicant as follows:
(A) The following legend must appear on the title page of the proposal:
This proposal contains information that shall not be disclosed outside the Federal Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than evaluation of this proposal, unless authorized by law. The Government shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract if award is made as a result of the submission of this proposal. The information subject to these restrictions are contained on all pages of the proposal except for pages [insert page numbers or other identification of pages that contain no restricted information.]
(End of Legend); and
(B) The following legend must appear on each page of the proposal that contains
information the Applicant wishes to protect:
Use or disclosure of information contained on this sheet is subject to the restriction on the title page of this proposal.
