Common use of Unjustified markings Clause in Contracts

Unjustified markings. (1) An un- justified marking is an authorized marking that does not depict accu- rately restrictions applicable to the Government’s use, modification, repro- duction, release, performance, display, or disclosure of the marked technical data. For example, a limited rights leg- end placed on technical data pertaining to items, components, or processes that were developed under a Govern- ment contract either exclusively at Government expense or with mixed funding (situations under which the Government obtains unlimited or gov- ernment purpose rights) is an unjusti- fied marking. (2) Contracting officers have the right to review and challenge the valid- ity of unjustified markings. However, at any time during performance of a contract and notwithstanding exist- ence of a challenge, the contracting of- ficer and the person who has asserted a restrictive marking may agree that the restrictive marking is not justified. Upon such agreement, the contracting officer may, at his or her election, ei- ther— (i) Strike or correct the unjustified marking at that person’s expense; or (ii) Return the technical data to the person asserting the restriction for cor- rection at that person’s expense. If the data are returned and that person fails to correct or strike the unjustified re- striction and return the corrected data to the contracting officer within 60 days following receipt of the data, the unjustified marking shall be corrected or stricken at that person’s expense.