[Federal Register Volume 60, Number 124 (Wednesday, June 28, 1995)]
[Rules and Regulations]
[Pages 33464-33507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15251]
[[Page 33463]]
_______________________________________________________________________
Part II
Department of Defense
_______________________________________________________________________
48 CFR Parts 211, 227, and 252
Defense Federal Acquisition Regulation Supplement; Rights in Technical
Data: Final Rule
Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 /
Rules and Regulations
[[Page 33464]]
DEPARTMENT OF DEFENSE
48 CFR Parts 211, 227, and 252
[Defense Acquisition Circular (DAC) 91-8]
Defense Federal Acquisition Regulation Supplement; Rights in
Technical Data
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: A proposed rule prescribing the final technical data
regulations required by 10 U.S.C. 2320, Rights in Technical Data, was
published in the Federal Register on June 20, 1994. Public comments
were solicited. This final rule amends the Defense Federal Acquisition
Regulation Supplement to prescribe those regulations. It includes
changes to the proposed rule necessitated by the Federal Acquisition
Streamlining Act of 1994 and changes made in response to public
comments.
DATES: Effective Date: This rule is effective June 30, 1995.
Applicability Date: This rule is applicable for solicitations
issued on or after September 29, 1995.
FOR FURTHER INFORMATION CONTACT:
Ms. Angelena Moy, OUSD(A&T)DDP/MPI, Room 3E144, The Pentagon,
Washington, DC 20301-3060, Telephone 703-604-5875. Please cite DAR Case
91-312.
SUPPLEMENTARY INFORMATION:
A. Background
A total of 286 comments were received from 43 commentors. Each
comment was analyzed and, in some cases, the comments are incorporated
in this final rule. Approximately 75% of the comments fell into
fourteen general topic areas. The analysis and disposition of those
comments, and a description of other changes made as a result of law or
public comment, follow (Note: The DFARS subparts numbered as 227.4 and
227.5 in the proposed rule published on June 20, 1994, have been
renumbered to 227.71 and 227.72, respectively, in this final rule):
1. Government Purpose/Government Purpose Rights
Forty comments address these topics.
(a) Government Purpose
Several commentors suggested narrowing the definition of government
purposes to U.S. Government contracts. One suggested expanding the
definition to include the acquisition of replenishment parts, repair,
and maintenance by third parties. These changes are not adopted. A more
narrow definition of government purpose ignores U.S. Government
international responsibilities and foreign government or international
organization development contributions made under cooperative
agreements. The suggested expanded definition inappropriately converts
third party commercial transactions to government purposes.
(b) Government Purpose Rights
(i) Time period. Some commentors suggested the five year
exclusivity period is too short, should be measured from contract or
subcontract payment, closure, or completion rather than award, and
there is no need for the government to obtain unlimited rights in mixed
funded data upon expiration of the exclusivity period. One commentor
suggested the final rule should require negotiations in mixed funded
situations. Those comments are not adopted. As several commentors
observed, the five year exclusivity period is not mandatory. Paragraphs
227.7103-5(b) and 227.7203-5(b) identify that period as a nominal
period and describe the circumstances under which longer periods should
be negotiated. A limited exclusivity period balances the private and
public development contributions by providing the private developer the
sole opportunity to use the data for commercial purposes for a private
developer the sole opportunity to use the data for commercial purposes
for a specified time while assuring that all persons will have the
opportunity to use the data for commercial purposes within a reasonable
time.
(ii) Extent of development contribution. Several commentors
observed that a contractor could restrict the availability of data for
commercial purposes by making a minimal development contribution. Some
suggested requiring a 50% contractor contribution as the basis for a
government purpose rights license. Conversely, one commentor observed
that an insignificant government contribution would enable the
government to obtain a government purpose rights license in an
otherwise private expense development. A commentor proposed an
incentive formula which would link the period of a government purpose
rights license to the funding contributed by the developer. These
comments are not accepted. Generally, the Government will obtain a
government purpose license when the private and government development
contributions cannot be segregated (when costs are segregable, the
developer may provide data or software developed exclusively at private
expense with appropriate restrictions). It would be unnecessarily
burdensome and extremely impracticable to attempt to measure the exact
contribution by each party when development costs cannot be segregated.
The suggested incentive formula raises similar problems. Each
government purpose rights license must display an expiration date after
which any applicable restrictions do not apply. That marking must
appear on the data or software when they are delivered. But, late
charges or other accounting corrections reported after data delivery
might change the expiration date derived by the proposed formula
resulting in copies of the same data marked with different expiration
dates.
2. Indirect Cost Treatment
Twenty-four comments addressed this topic. Several commentors
expressed concern that developers will use creative techniques,
manipulate accounting systems, or find ``loopholes'' to restrict the
Government's ability to make technical data available for reprocurement
purposes. Such cost accounting practices would be inconsistent with the
cost principles in FAR Part 31 and the cost accounting standards in FAR
Appendix B. Therefore, the proposed regulations have not been changed
to accommodate those concerns. Two commentors suggested that developers
might restrict the Government's rights in data and, consequently, the
amount of data available to the developers' potential competitors, by
charging manufacturing and production engineering costs to indirect
cost accounts. Manufacturing and production engineering costs that can
be identified with a particular final cost objective are direct costs
and cannot be allocated to indirect cost accounts. Although FAR 31.202
permits an exception for a direct cost of minor dollar amount, that
exception must be consistently applied to all final cost objectives and
produce substantially the same result as treating the cost as a direct
cost.
A commentor suggests all contracts have indirect cost allocations
and, consequently, the Government's rights in data will be affected.
The comment overlooks the fact that the definition of ``developed at
private expense'' deals only with development costs. The allocation of
officers' salaries, guard services, employee benefits, or similar
expenses will not affect the allocation of data rights.
Another commentor suggests establishing a government participation
threshold. Indirect development costs (excluding independent research
and [[Page 33465]] development and bid or proposal costs) charged in
excess of the threshold would be considered mixed funding. The
suggestion is not practicable. There is no basis for equitably
estimating the government participation threshold prior to contract
award. Burdensome accounting and audit surveillance procedures would be
required to determine which item or items, and consequently data
rights, were affected by the over threshold contribution.
3. Commercial Items
Twenty-two comments addressed this topic. A commentor suggests the
proposed ``Technical Data--Commercial Items'' clause (252.227-7015)
limits the data that DoD can acquire for commercial items and presumes
that commercial items were developed at private expense. The clause in
the proposed rule did neither but has been modified to provide that
presumption as required by the Federal Acquisition Streamlining Act of
1994.
A commentor suggests modifying the clause to permit disclosure of
commercial data to third parties so that those persons might operate or
maintain the commercial item and contends that 227.7102-1(a)(1)
prohibits DoD from acquiring technical data needed for rework and spare
parts replacement. The suggestion and comment are not adopted.
Paragraph 227.7102-1(a)(1) does not prohibit the acquisition of rework
data. Disclosure to third parties might jeopardize a contractor's
financial interest in its product and, therefore, is inconsistent with
DoD policy to encourage contractors to offer commercial products to
satisfy DoD requirements. However, DoD may negotiate to acquire the
rights to do so under 252.227-7015(c). The commentor also suggests the
definition of commercial items is too broad. The definition of
commercial items has been modified to reflect the definition contained
in the Federal Acquisition Streamlining Act of 1994. Several commentors
suggest modifying 227.7102 to clarify that the restrictions in
paragraph 227.7102-2(a) do not apply when the Government's data rights
are not restricted. They also suggest modifying 252.227-7015(b)(1) to
conform with 10 U.S.C. 2320 which does not permit a contractor to
restrict the Government's rights in data necessary for operation,
maintenance, installation, or training. The suggestions are adopted.
One commentor suggests the license rights granted the Government by
the clause at 252.227-7015 are inconsistent with those granted to
commercial customers. The suggestion is not adopted. Rights under that
clause are consistent with 10 U.S.C. 2320.
A commentor suggests substituting ``written'' for ``express'' in
227.7102-2(a) to provide a substantive record. The suggestion is
adopted. The commentor's suggestion to conform the last sentence in
227.7102-2(b) with corresponding language in the clause at 252.227-7015
is partially adopted. That commentor's suggestions to: (i) add a new
paragraph 227.7102-2(c) to require contractors subject to the clause at
252.227-7013 to use the clause at 252.227-7015 in its contracts with
subcontractors or suppliers furnishing technical data for commercial
items is partially adopted by modifying 252.227-7013(k); (ii) include
``components'' in 227.7102-3 and make editorial changes to 252.227-
7015(a)(1) and (b)(1)(i) are adopted; (iii) expand the restriction in
252.227-7015(b)(2)(i) is partially adopted; (iv) limit form, fit, and
function data to data describing the commercial end unit is
inconsistent with the commentor's suggestion to include ``components''
in 227.7102-3 and consequently not adopted; (v) require written
permission prior to a release, disclosure, or authorized use of
technical data for emergency repair or overhaul is not adopted because
it is impracticable in emergency situations; and, (vi) delete 252.227-
7015(c) is not adopted because the paragraph, which permits the parties
to negotiate suitable license rights, is consistent with commercial
practice.
4. Markings
Eighteen comments addressed this topic. Several commenters
suggested that the marking provisions at 252.227-7013 and 252.227-7014
are mandatory, overly complex, and burdensome. One commentor
recommended replacing the prescribed markings with a single, simplified
marking that would appear only on the ``first page of the technical
data or computer software.'' Other commentors also questioned the need
to mark the portions of a page of printed material containing technical
data or computer software for which restrictions are asserted.
Marking is not mandatory but contractors must mark when they desire
to restrict the Government's rights to use, modify, reproduce, release,
perform, display, or disclose data or software. Such markings are
commonly used in commercial practice to protract proprietary data or
trade secrets. The suggested simplified marking, which would be placed
only on the first page of printed material is not practicable because
it would unnecessarily restrict release or disclosure of unrestricted
information submitted with the restricted information.
A commentor suggests the clause at 252.227-7014 will require
commercial software manufacturers to place government markings on such
software and 227.7203-10(c) will result in the Government's obtaining
unlimited rights in unmarked commercial computer software. Neither the
clause at 252.227-7014 nor paragraph 227.7203-10(c) apply to commercial
computer software. However, if a contractor intends to satisfy a
government requirement for noncommercial computer software with
derivative software created by integrating commercial computer software
with computer software developed with Government funds under a contract
that contains the clause at 252.227-7014, the contractor might consider
using a marking authorized by 252.227-7014, or a marking agreed to by
the contracting officer, to protect its commercial interests in the
derivative software.
One commentor suggests the requirement to mark each page of
technical data deliverable with less than unlimited rights will reduce
the amount of useful information that might be displayed on a page.
Marking each page enhances protection of the contractor's data. That
commentor also suggests that the prohibition on marking non-commercial
computer software with legends that might interfere with or delay the
operation of the software places the contractor in an untenable
position regarding protection of its software rights. As expressed in
227.7203-10(b)(1), the prohibition was intended only for non-commercial
computer software that will or might be used in combat situations or
under conditions that simulate combat situations. Therefore, 252.227-
701(f)(1) has been modified accordingly.
Two commentors suggest the marking procedures will be unworkable in
digital environments. They also suggest that data might not be
protected adequately in a digital environment because the markings
might be extracted from the data or not seen by the user. Those
comments are not accepted. However, 252.227-7013(f)(1) and 252.227-
7014(f)(1) have been changed to clarify markings when such data are
transmitted. Extractable markings are not unique to the digital
environment and contractors have appropriate forums for redress if
their data or software are improperly used, released, or disclosed.
A suggestion to add ``subcontractor/supplier'' to each legend is
not adopted. The first sentence of 252.227-7013(f) clearly covers
subcontractors and suppliers. [[Page 33466]]
A commentor suggests changing the phrase ``correction or cancel''
in 252.227-7013(h)(1) to ``correct or strike''. That suggestion is
adopted. The commentor's suggestion to modify that paragraph by
providing the Government the unilateral right to correct or strike
nonconforming markings when it is impracticable to return technical
data to the contractor is not adopted. The Government has that right
under (h)(1) for unjustified markings and (h)(2) for nonconforming
markings.
A commentor suggests modifying 227.7103-12(a)(2) to require
contracting officers to go through the validation process before
striking a nonconforming markings. The suggestion is not adopted. The
validation procedures in 252.227-7037 are intended to resolve questions
concerning asserted restrictions. The nonconforming marking procedures
address only the proper format for a marking.
A commentor's suggested editorial changes to 227.7103-10(b)(2) and
227.7203-10(b) are considered unnecessary.
5. Competition
Sixteen comments addressed competition. Most did not comment on
specific portions of the regulations. One commentor recommended
retaining the 1988 interim rule. That recommendation is not adopted.
One commentor suggests that 227.7103-1(e) conflicts with 227.7103-
2(b)(1) and the Competition in contracting Act (CICA). The suggestion
is not adopted. The policy in 227.7103-1(e) expresses requirements
under 10 U.S.C. 2305 for major weapon systems and generally protects
private expense development. It does not conflict with either 227.7103-
2(b)(1) or CICA.
6. License Rights
Fifteen comments addressed license rights generally. A commentor
suggests including ``release'' or ``disclose'' in 227.7102-2 is
confusing because those terms were traditionally used in connection
with persons outside the government. The context in which the terms are
used is clear and changes are not necessary.
A commentor suggests requiring a written justification requiring
approval at a level above the contracting officer if the Government
wants to acquire rights not conveyed under licenses customarily
provided to the public. The suggestion is not adopted. Existing
procedures for determining the Government's needs are adequate.
A commentor suggests all technical data and computer software
should be delivered under a license that provides government purpose
rights for 5 years after which the data or software would be available
with unlimited, government purpose, limited, or restricted rights as
applicable. The suggestion is inconsistent with statutory requirements
and not adopted.
A commentor suggests the provisions permitting negotiated licenses
might preclude award without discussions, reduce opportunities to use
sealed bidding procedures, and extend acquisition lead times. The
comments are not adopted. If the Government knows it will require
nonstandard license rights it might not be in a position to use sealed
bidding procedures. When using other contracting methods, award without
discussions is not precluded if the Government's requirements are
articulated in the solicitation and responsive offers are received from
responsible offerors.
A commentor suggests the basis for allocating data rights is
acceptable if it is clear that government rights are conveyed by a
license granted by the data creator. No change is required.
A commentor suggests that, although not improper, permitting third
parties to have access to and modify noncommercial computer software
will act as a disincentive to the private development of software
intended only for the Government. The comment is not adopted. The
clause at 252.227-7014 permits the Government, in a narrow range of
circumstances and subject to considerable constraints, to have support
service contractors modify computer software delivered with restricted
rights. Two of the permitted circumstances deal with military
exigencies. The other two circumstances reflect maintenance needs when
the Government's rights are restricted in only a portion of the
deliverable software.
A commentor suggests two changes to 227.7103-5(d)(1) that are
intended to clarify the role of subcontractors when special license
rights are negotiated and a change to 227.7103-5(d)(2) to identify the
negotiation of long term reprocurement spare parts pricing agreements
as an alternative to negotiating for additional rights in limited
rights data. The clarifications are not necessary. The term
``contractor'' is defined to include subcontractors and suppliers at
any tier and 227.7103-5 and the clause at 252.227-7013 make it clear
that the prime contractor might not be the data owner or licensor. The
suggested change to 227.7103-5(d)(2) is inconsistent with the
circumstances under which negotiations for additional rights are
permitted. The commentor also suggests modifying 252.227-7013(b)(4) to
clarify the role of subcontractors when negotiating special license
rights. For the reasons discussed above, the comment is not adopted.
A commentor suggests modifying 227.7103-4(a)(1) to include the full
listing of government rights. The modification is not necessary. The
commentor also suggests expanding 227.7103-4(a)(2) to match the scope
of 252.227-7013(b)(1)(ii) and (iii). The suggestion is not adopted. The
situation covered in 252.227-7013(b)(1)(ii) is addressed in 227.7103-
4(a)(1). The example in 227.7103-4(a)(2) applies to 252.227-
7013(b)(1)(iii) only.
7. Elimination of the ``Required for Performance Criterion''
Fourteen comments addressed elimination of the required for
performance criterion. DoD's 1988 regulations grant the Government
unlimited rights in technical data pertaining to items, components, or
processes developed at private expense if development was required for
the performance of a government contract or subcontract. Seven
commentors, submitted essentially identical comments suggesting that
data resulting from development of a defense end product should not be
the property of an original equipment manufacturer. Two commentors
suggest eliminating the required for performance criterion will result
in less data available without restrictions. In a similar comment, a
commentor suggests that eliminating the ``required for performance''
criterion will reduce competition. Four comments were received from the
American Bar Association, the Council of Government Relations, the
Integrated Dual-Use Commercial companies, and a large manufacturer
supporting the policies contained in the proposed rule. The suggestions
to retain the criterion are not adopted. DoD believes that the
criterion should be eliminated to protect private expense development,
encourage developers of new technologies or products, many of whom are
small businesses, to offer their products to the Government, encourage
dual use development, and balance the interests of data users and data
developers.
8. Computer Software
Thirteen comments addressed computer software. Three commentors
suggest the definition of ``commercial computer software'' is too
broad. One also suggests that the definition's broad scope will make it
difficult to understand and interpret and contractors will be able to
restrict the [[Page 33467]] Government's rights in software developed
exclusively at Government expense by satisfying one of the criteria
that define commercial computer software. Those suggestions are not
adopted. The definition of commercial computer software has been
modified to reflect requirements in the Federal Acquisition
Streamlining Act of 1994. The Government will not lose rights obtained
in software developed at government expense if that software
subsequently qualifies as commercial computer software. That situation
is covered by 252.227-7014(b)(5) and (c).
Two commentors suggest GSA should amend its rules to permit these
regulations to apply to DoD procurements under GSA schedule contracts.
That suggestion cannot be accommodated in these DoD specific
regulations.
Two commentors suggest the criterion for determining whether
software is commercial should be the source of development funds rather
than the market for which the software was developed. That suggestion
is not consistent with the thrust of the Federal Acquisition
Streamlining Act of 1994.
A commentor suggests there may be a conflict between the definition
of commercial computer software, which might include software developed
with Government funds, and the policy in 227.7202-1(a) to acquire
commercial computer software and documentation under the licenses
customarily provided to the public. If Government funds are used to
develop software or documentation, the development contract will
determine the Government's rights in that software or documentation.
Those rights are protected if the software subsequently qualifies as
commercial software. The commentor expresses concern that when both
commercial and noncommercial software are deliverable under a contract,
the requirements in 252.227-7014 will be applied to the commercial
software. That result is not intended. The clause title, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'', clearly indicates that the clause is not applicable to
commercial software or documentation. The commentor's suggestion to
define commercial computer software documentation in terms of
development at private expense is unnecessary and not adopted. The
commentor also suggest modifying 227.7202-1(c)(1) to limit the
paragraph's scope to modifications made at Government expense. The
suggestion is partially adopted and a corresponding change made to
227.7102-1(a)(3). The commentor observes that throughout 227.7203 the
terms computer software and computer software documentation are used
without the modifier ``noncommercial.'' Generally, the modifier is not
necessary because that paragraph only applies to noncommercial software
or documentation. Where it is used, it is intended to provide
additional, specific emphasis.
Two commentors suggest it might be inappropriate for the Government
to obtain unlimited rights in all noncommercial computer software
documentation required to be delivered under a contract. Computer
software documentation is technical data. It is defined narrowly to
include only owner's manuals, user's manuals, installation
instructions, operating instructions, and similar items that explain
the capabilities of computer software or provide instructions for using
the software. Such data is necessary for operation, maintenance,
installation, or training. Consequently, under 10 U.S.C. 2320, a
contractor may not restrict the Government's rights to release or
disclose such data or to permit others to use the data.
A commentor states that the definition of restricted rights in
252.227-7014(a)(14)(i) might not provide sufficient latitude to use
software programs in military situations such as ``the engine control
aboard a fleet of aircraft.'' When the Government has a requirement to
time share a program or have the program accessed by more than one
terminal or central processing unit at a time, the requirement must be
identified in the acquisition contract to permit proper program design
and pricing. Therefore, the comment is not adopted.
A commentor suggests revising the definition of computer software
in 252.211-7012 and 252.227-7013 by substituting ``computer program''
for ``software'' in the phrase ``...and related material that would
enable the software to be reproduced, recreated, or recompiled.'' The
suggestion is not adopted. Computer programs are not the only software
that can be reproduced, recreated, or recompiled.
9. Identification of Asserted Restrictions
Tweleve comments dealt with this topic. A commentor suggests
modifying 252.227-7013(e) to make it clear that a failure to identify
data that will be delivered with restricted rights does not prevent a
contractor from asserting restrictions relevant to that data and
contracting officers should be required to add data items to the list
of data in which restrictions are asserted until the Government has
successfully challenged an assertion. Another contractor also suggested
the mandatory listing of subsequent assertions. The suggestions are not
adopted. The paragraph prevents delivery of such data but does not
affect a contractor's right to assert restrictions. The constraints in
252.227-7013(e) are intended to discourage deliberate commissions that
might affect source selection decisions.
A commentor suggests not requiring an identification of the item,
component, or process. The suggestion is not adopted because the source
of funds used to develop an item, component, or process generally
determines whether a contractor may assert restrictions on the
Government's rights in the data pertaining to the it4ems, components,
or processes.
A commentor suggests deleting the statement in 227.7103-10(a)(5)
that information provided in response to the provision at 252.227-7017
may be used in the source selection processes because it is
inconsistent with the portions of the regulation prohibiting the
Government from requiring contractors to relinquish data rights in
order to obtain a contract and modifying the solicitation provision
accordingly. Another commentor suggested modifying 252.227-7013(e)(3)
because the source selection constraint is inconsistent with 10 U.S.C.
2320(a)(2)(F). Those suggestions are not adopted. Considering data
rights during the source selection process is neither inconsistent with
the policy expressed in the regulations nor the requirements of 10
U.S.C. 2320(a).
A commentor suggested editorial changes in the format of the
Attachment including a statement that the explanatory notes need not be
repeated on the attachment. The suggestions are not adopted. Paragraph
(e)(3) requires only an identification of the technical data.
A commentor suggests modifying 252.227-7017(b) by replacing
``notification and identification'' with ``identification and
assertion.'' The suggestion is adopted. The commentor also suggests
adding the phrase ``and after request by the contracting officer''
following the word ``offer'' in 252.227-7017(e) and adding a new
paragraph at the end of 252.227-7017 that would provide for post award
assertions. The suggestions are not adopted. The addition to 252.227-
7017(e) is not necessary and post award assertions are addressed in the
clause at 252.227-7013.
[[Page 33468]]
10. Unlimited Rights
Eleven comments dealt with this topic. A commentor suggests the
Government have unlimited rights in technical data only when work was
exclusively funded with direct Government contract funds. The
suggestion is inconsistent with 10 U.S.C. 2320 and not adopted.
A commentor suggests that the term ``publicly available'' in
252.227-7014(b)(1)(iv) and 227.7203-5(a)(4) might provide the
Government unlimited rights in commercial computer software. The
suggestion is not adopted. Those portions of the regulations only apply
to non-commercial computer software.
A commentor expresses concern that 252.227-7013(b)(1)(ii) might
provide the Government unlimited rights in third party material. The
third party copyright owner is not required to grant a license.
Paragraph 252.227-7013(d) prohibits the use of third party copyrighted
data in deliverable technical data unless the contracting officer's
approval to do so has been obtained and the contractor has obtained
from the copyright owner a license of appropriate scope.
A commentor suggests expanding 227.7103-5(a)(3) to provide
unlimited rights in all data created exclusively with government funds
whether or not the contract requires development, manufacture,
construction, or production of items, components, or processes. For
technical data that pertain to items or processes, the suggestion is
inconsistent with 10 U.S.C. 2320 and, consequently, not adopted.
A commentor suggests that government purpose rights convey all
rights needed by the Government and unlimited rights should be
eliminated because they have an adverse affect on businesses, including
small businesses, that are data or software creators. The suggestion is
not adopted. When the taxpayer exclusively funds development of an item
or process, it is difficult to appreciate the suggested adverse affect
on data or software creators.
A commentor suggests that there is no affirmative guidance
encouraging contractors to commercialize technology it develops with
federal funds. The contractor also suggests that when the Government
has unlimited rights in technical data or computer software, the data
or software might be lost to foreign competition. The suggestions are
not adopted. Many other commentors observed that opportunities to
commercialize federally funded technologies are maximized when the
Government has unlimited rights in technical data. The fact that data
or software might be available, if otherwise properly releasable, to
foreign governments, foreign nationals, or international organizations
does not diminish domestic commercialization opportunities.
A commentor suggests modifying 227.7103-5(a)(2) and 252.227-
7013(b)(1)(ii) to permit the Government to obtain unlimited rights in
the identified data only when the data will be developed exclusively
with Government funds. The suggestions are not adopted. Those
paragraphs provide the Government unlimited rights in studies,
analyses, test data, or similar data produced in the performance of a
contract and specified as an element of performance. The ``produced
in'' and ``specified as'' criteria clearly indicate that the Government
intends to exclusively fund development of the data. The commenter
suggests 227.7103-5(a)(3) and 227.7103-5(b)(1)(ii) are not clear
because they convey rights based upon specific contractual situations.
The suggestion is not adopted. Except for 227.7103-5(a)(1) and
227.7103(b)(1)(i), all other circumstances in which the Government will
be granted unlimited or government purpose rights address specific
situations or types of data. The commentor also recommends deleting
227.7103-5(a)(9). The recommendation is not adopted. When restrictions
on the Government's rights have expired, the Government has unlimited
rights in the data.
A commentor recommends changing 227.7103-4(b) to permit a
contractor to assert limited rights in data that otherwise qualify for
unlimited rights. The recommendation is not adopted. It is inconsistent
with 10 U.S.C. 2320 and would result in unnecessary, burdensome, and
costly data challenges.
11. Use and Non-disclosure Agreements
Ten comments were received in this area. A commentor suggests the
indemnification liabilities under 252.227-7025 should be shifted from
the contractor who has been provided the information to the third party
who has improperly used, released, or disclosed the information. The
suggestion is not adopted. The contractor faces similar liabilities in
nongovernmental transactions.
A commentor suggests: (i) The requirement at 227.7103-5(b)(4)(i) to
provide prior notification, other than in emergency situations, of an
intended release or disclosure of its limited rights data is not
necessary; (ii) the format prescribed at 227.7103-7(c) for non-
disclosure agreements is not appropriate for foreign governments; (iii)
a contractor's permission should not be required to release or disclose
limited rights data; (iv) deleting the requirements at 227.7103-16 and
227.7203-16 for foreign governments, foreign contractors, and
international organizations to have executed a use and non-disclosure
agreement containing the provisions included in 227.7103-7(c), and the
requirements in 252.227-7013 satisfied, prior to a release or
disclosure to a foreign entity; (v) it is impossible for contractors
needing access to the major data bases to notify all persons asserting
restrictions; (vi) in 227.7103-7(c)(8), the specific ending date for
the non-disclosure agreement should be replaced with ``at such time as
the data are no longer required for the performance of work under the
contract, the contract is completed or terminated, or access is
terminated for cause.''; and, (vii) the clause at 252.227-7025 should
be expanded to require contractors to sign any non-disclosure agreement
that is required by a Government agency. The suggestions are not
adopted. The reasons are keyed to the comment number: (i) The
Government, with two exceptions, is required by 10 U.S.C. 2320 to
obtain a contractor's permission prior to releasing or disclosing the
contractor's limited rights data. Except in emergency situations, there
is no logical reason to not provide prior notification of an intended
release of limited rights data; (ii) 227.7103-16 permits the use of the
non-disclosure agreements with foreign governments, foreign
contractors, or international organizations that are not in the
prescribed format; (iii) The suggestion is inconsistent with 10 U.S.C.
2320; (iv) The suggested revisions to 227.7103-16(b) and 227.7203-16(b)
do not adequately address constraints on the recipient regarding
further release or disclosure of information in which the U.S.
Government has limited rights in data or restricted rights in software;
(v) Paragraph (a) of the prescribed non-disclosure agreement requires a
contractor to specifically identify the data it needs. If the
Government agrees to provide that data, it is listed in an attachment
to the agreement. Therefor, the notification requirements in paragraphs
(b) and (c) should not be difficult to comply with. Furthermore,
information provided to the Government with asserted restrictions
should not be included in a generally accessible database. Such data
must be protected in accordance with 252.227-7013, 252.227-7014, and
252.227-7018; (vi) The prescribed non-disclosure
[[Page 33469]] agreement is not limited to contracts but covers all
requests for data or software in which restrictions have been asserted;
and, (vii) The clause at 252.227-7025 addresses government furnished
information that will be provided to a contractor for performance of a
specific contract. These regulations should not address agency peculiar
requirements or technical data that does not pertain to items,
components, or processes developed for the U.S. Government.
A commentor suggests the requirement at 227.7103-7(c)(8) to destroy
the data covered by a non-disclosure agreement does not provide
adequate flexibility. The comment is not adopted. Destroying the data
avoids packaging and shipping costs and significantly reduces the
possibility of an inadvertent unauthorized release or disclosure.
A commentor suggests that the notification requirement in 227.7103-
7(c)(1) gives the item manufacturer a competitive advantage by making
the manufacturer aware of competitive requirements and its potential
competitor's identity. The suggestion is not adopted. The notification
requirement applies only to limited rights data. Such data cannot be
used for competitive purposes without the owner's or licensor's
permission.
A commentor suggests modifying 227.7103-7(c)(1)(b) by replacing
``Contractor'' with ``owner of the data'' and making the Government
rather than the recipient responsible for notification. The suggestions
are not adopted. The term ``owner'' does not include a licensor. As
used in the agreement, 227.7103-7(c)(1)(a), the term ``Contractor''
refers to the person whose name appears on the restrictive legend. The
recipient's notification supplements the Government's notification. It
gives the person asserting limited rights additional information that
person might need to monitor the subsequent use, release, or disclosure
of its data.
12. Effect on Older Systems Through Upgrades
Eight commentors addressed this topic. Seven submitted essentially
identical suggestions that the spare parts market might be affected
because these regulations will apply to upgrades or enhancements of
existing systems. One suggested that minor revisions to manufacturing
processes charged as indirect expense would prevent alternate sources
from competing. The suggestions are not adopted. Contractors are
required to allocate expenses in a consistent manner. FAR 31.203(a)
does not permit an indirect cost allocation ``* * * if other costs
incurred for the same purpose in like circumstances have been included
as a direct cost of that or any other final cost objective.''
13. Policy
Nine comments addressed this topic. A commentor suggests modifying
227.7102-1(a) to permit the acquisition of the data and rights
necessary to satisfy agency needs. The suggestion is not adopted. The
concept is covered in 252.227-7015(c) and 227.7102-2(b). The commentor
also suggests modifying 227.7103-1(e) to indicate that the Government
may request a contractor to sell data rights. The suggestion is not
adopted. The concept is addressed in 252.227-7013(b)(3)(iii), (b)(4),
227.7103-5, and 227.7103-5(d)(2).
A commentor suggests modifying 227.7103-1 and 227.7203-1 to
encourage contractors to identify more cost efficient alternatives to
the Government's proposed data rights requirements, require
solicitations to include as much information regarding the Government's
needs for technical data rights as is practicable, and require
resolution of all requirements, restrictions, and limitations prior to
contract award. Most of the suggestions are embodied in this final
rule. If the Government needs data rights that differ from the standard
license rights conveyed by the contract, it must negotiate for those
rights. But, it often is impracticable to require a resolution of all
restrictions on the Government's right prior to contract award. Most
items, processes, or software will not be developed at that time and,
consequently, rights in the pertinent technical data or computer
software are not determinable completely. The justification and
challenge process required by 10 U.S.C. 2321 will, in many cases,
preclude an early resolution of restrictions.
Two commentors, in essentially identical comments, contend the
requirement in 227.7103-1(b)(2) is vague and suggest an alternative.
The suggestion is not adopted. The requirement is clear. But,
procedures and specific criteria must vary to accommodate the
particular contracting situation. Consequently, the regulations should
not provide greater specificity.
A commentor suggests modifying 227.7103-1(e) because it believes
the paragraph conflicts with 227.7103-2(b)(1) and adding ``and
associated life cycle costs'' at the end of the first sentence in
227.7103-2(b)(1). The paragraphs do not conflict and the comment is not
adopted. Proposals that would enable the Government to acquire
competitively items identical to items developed at private expense
would entail significantly more detailed information than form, fit, or
function data. Generally, form, fit, or function data will produce
functionally equivalent but not identical items. The suggested
additional language is not necessary. The concept is addressed within
the paragraph. The commentor also suggests that these regulations do
not address the Government's ability to evaluate data rights during the
source selection process. The suggestion is not adopted. The concept is
addressed at 227.7103-10(a)(5).
14. Validation of Asserted Restrictions
Eight comments addressed this topic. A commentor objects to the
requirement to issue a contracting officer's final decision when an
asserted restriction has been justified. Section 2321(f)(1) of Title 10
U.S.C. requires contracting officers to issue a decision when a
contractor fails to submit a justification for an asserted restriction.
Section (f)(2) requires a contracting officer's decision within sixty
days following receipt of any submitted justification.
A commentor suggests modifying 227.7103-13(a) and 227.7203-13(a) to
require contracting officers, when using provisioning procedures to
acquire replenishment parts, to carefully examine during the challenge
period the need to initiate challenge and validation procedures. The
suggestion is not adopted. Adequate procedures are contained in
227.7103-13(c) and 227.7203-13(d).
A commentor's suggestions to modify 227.7103-13(c)(2)(i) by
replacing the phrase ``determine the validity of the assertion'' with
``ascertain the basis of the restrictive markings'' and modify
227.7103-13(c)(2)(ii) by adding ``any other available information
pertaining to the validity of a restrictive marking'' are adopted.
15. Typographical and Editorial Comments
A commentor identified several typographical errors and recommended
some minor editorial changes. The typographical errors have been
corrected and some of the editorial recommendations adopted. The
recommended change to 227.7103-10(a) is not adopted because there might
be more than one successful offer. The recommendation to reverse the
order of the second and third sentences in 227.7103-12(a)(1) is not
adopted. The existing second sentence conveys emphasis the
recommendation lacks. The comment regarding the reference to 227.7103-
13 within 227.7203-13(d)(2) ignores the fact that computer software
[[Page 33470]] documentation is technical data. The reference is
appropriate because technical data challenge and validation procedures
are in 227.7103-13.
16. Changes Required by Statute
(a) Subpart 227.71
The Federal Acquisition Streamlining Act of 1994 defines commercial
items, modifies 10 U.S.C. 2320(b) to provide a presumption of
development at private expense for commercial items, and adds a new
subsection (f) to 10 U.S.C. 2321 that, under contracts for commercial
items, requires a contracting officer to presume private expense
development whether or not the contractor submits a justification in
response to a challenge notice. The subsection also provides that
challenges under contracts for commercial can be sustained only if
information provided by the Department of Defense demonstrates that the
item was not developed exclusively at private expense. The clause at
252.227-7037 has been modified accordingly and corresponding changes
made to 227.7102-2.
(b) Subpart 211.70
A process action team has been formed to draft FAR implementation
of the Federal Acquisition Streamlining Act's commercial products
provisions. Therefore, the changes to Subpart 211.70 contemplated by
the proposed rule, other than deletion of the DFARS 211 technical data
provisions, will not be made.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. applies to
this final rule and a Final Regulatory Flexibility Analysis has been
performed. A copy of the Analysis may be obtained from Ms. Angelena
Moy, OUSD(A&T)DDP/MPI, Room 3E144, The Pentagon, Washington, DC 20301-
3060 (telephone 703-604-5875, facsimile 703-604-6709).
C. Paperwork Reduction Act
The Office of Management and Budget has approved the information
collection requirements associated with Subparts 227.71 and 227.72
through September 30, 1995 (OMB Control Number 0704-0369).
Defense Acquisition Circular (DAC) 91-8 amends the Defense FAR
Supplement (DFARS) 1991 edition. The amendments are summarized as
follows:
Item I--Rights In Technical Data And Computer Software
This final rule revises the existing DFARS guidance on rights in
technical data, and adds new guidance on rights in computer software
and computer software documentation. The following is a summary and
explanation of the regulatory changes contained in this final rule.
1. Rights in Technical Data
a. General
DFARS Subpart 227.4, Rights in Data and Copyrights, is deleted and
replaced with Subpart 227.71, Rights in Technical Data. The
Government's rights are identified as specific, non-exclusive license
rights. All rights not granted the Government are retained by the
contractor.
b. Commercial Items or Processes
(1) Section 227.7102 provides guidance on the acquisition of
technical data pertaining to commercial items, components, or
processes. For data rights purposes, the term ``commercial item'' is
defined in the clause at 252.227-7015, Technical Data--Commercial
Items. The definition is consistent with Section 8001 of the Federal
Acquisition Streamlining Act of 1994 (Pub. L. 103-355), but
specifically excludes computer software. Under 10 U.S.C. 2320,
contractors may not restrict the Government's rights in certain
technical data pertaining to items or processes developed at private
expense. However, 10 U.S.C. 2320 does not apply to computer software.
The modified definition of ``commercial item'' is intended to prevent
misapplication of the technical data provisions to computer software.
(2) The clause at 252.227-7015 provides the Government specific
license rights in technical data pertaining to commercial items,
components, or processes. Generally, such data may be used, modified,
reproduced, released, performed, displayed, or disclosed only within
the Government, may not be used to manufacture additional quantities of
the commercial items, and, except for emergency repair or overhaul, may
not be released or disclosed to third parties without the contractor's
written permission. In accordance with 10 U.S.C. 2320, these
restrictions do not apply to publicly available data, form, fit, or
function data, data necessary for operation, maintenance, installation,
or training, or changes or corrections to Government-furnished data.
The Government must negotiate to obtain additional license rights and
may not require contractors to relinquish or provide additional rights
except under mutually acceptable terms.
c. Noncommercial Items or Processes
(1) Section 227.7103 provides guidance on the acquisition of
technical data pertaining to noncommercial items, components, or
processes. Standard license rights (unlimited, government purpose, or
limited rights) are based upon the source of development funds for the
item, component, or process. When data are created during performance
of a contract for a conceptual design or similar effort that does not
require manufacture, construction, or production of items, components,
or processes, the Government's license rights are determined by the
source of funds used to create the data.
(2) When the standard license rights are not appropriate for a
particular procurement, the parties can negotiate non-standard license
rights. Rights in copyrighted material are contained within the data
rights licenses. The final rule eliminates the requirement for the
Government to obtain unlimited rights in technical data if development
of the data was required for the performance of a Government contract
or subcontract. The treatment of indirect costs is revised to identify
all indirect development costs as private expenses. Other indirect
costs do not affect the determination that an item, component, or
process was developed at Government, private, or mixed expense.
Technical data provided to the Government with restrictions on use,
modification, reproduction, release, performance, display, or
disclosure may not be released to other persons unless, prior to
receipt, the recipient has completed a use and non-disclosure agreement
or is a Government contractor receiving access to the data for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
2. Rights in Computer Software and Computer Software Documentation
a. General
A new subpart is added at DFARS 227.72 to provide separate guidance
for computer software and computer software documentation,
notwithstanding that such documentation is considered technical data.
The definition of ``computer software documentation'' is limited to
manuals, instructions, and similar items. The definitions of
``commercial computer software,'' ``computer data base,'' ``computer
program,'' ``computer software,'' and ``computer software
[[Page 33471]] documentation'' are substantially different from those
previously contained in DFARS Subpart 227.4, and the definition of
``computer'' is deleted.
b. Commercial Computer Software and Computer Software Documentation
The guidance at 227.7202 is intended to replicate commercial
practice. Commercial computer software and commercial computer software
documentation shall be acquired under the licenses customarily provided
to the public unless such licenses are inconsistent with Federal
procurement law or do not otherwise satisfy user needs. In those
situations, contracting officers may negotiate licenses of an
appropriate scope. However, offerors and contractors are not required
to relinquish rights to the Government or provide the Government with
rights to use, modify, reproduce, release, or disclose commercial
software or documentation that is not customarily provided to the
public unless a transfer of such rights is mutually agreed upon. A
specific contract clause is not prescribed because the Government's
rights will be specified in a license.
c. Noncommercial Computer Software and Computer Software Documentation
(1) The guidance at 227.7203 parallels the non-commercial technical
data guidance at 227.7103. Any Government rights in software or
documentation are license rights. The contractor or licensor retains
all rights not granted to the Government. The scope of the Government's
software license generally depends upon the source of funds used to
develop the software. Standard license rights are unlimited rights
(developed exclusively at Government expense), restricted rights
(developed exclusively at private expense), and government purpose
rights (mixed development). Computer software documentation is defined
as manuals, operating instructions, and similar items. The Government's
rights in such technical data may not be restricted under 10 U.S.C.
2320 regardless of the source of development funds. Therefore,
documentation licenses generally provide unlimited rights. When the
standard license rights are not appropriate for a particular
procurement, special licenses can be negotiated.
(2) The clause at 252.227-7014 defines ``developed'' for computer
programs, computer software, and computer software documentation;
``minor modification''; and ``noncommercial computer software.'' The
definition of ``restricted rights'' is substantially revised. The link
between software and a particular computer is replaced with the common
commercial practice of permitting a computer program to be used with
one computer at a time. The Government is permitted to modify
restricted rights software and, under certain conditions which include
tactical situations and emergency repairs or overhauls, have
contractors or subcontractors performing service contracts in support
of a procurement use or modify the software. The third-party use and
modification rights are intended to balance protection for privately
developed portions of noncommercial software with the Government's need
to use the software as a complete item for its intended purpose,
particularly in military situations.
3. Contracting for Commercial Items
DFARS Subpart 211.70 is amended for consistency with the technical
data requirements in Subparts 227.71 and 227.72.
4. Solicitation Provisions and Contract Clauses
New provisions/clauses are added at 252.227-7014, 252.227-7015,
252.227-7016, 252.227-7017, and 252.227-7025. Revisions are made in the
provisions/clauses at 252.211-7021, 252.227-7013, 252.227-7018,
252.227-7019, 252.227-7020, 252.227-7028, and 252.227-7037. The
following clauses are deleted: 252.211-7015, 252.211-7016, 252.211-
7017, 252.227-7029, and 252.227-7031.
List of Subjects in 48 CFR Parts 211, 227 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Amendments to 48 CFR Chapter 2 (Defense FAR Supplement)
48 CFR Chapter 2 (the Defense FAR Supplement) is amended as set
forth below.
1. The authority citation for 48 CFR Parts 211, 227, 252 is revised
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 211--ACQUISITION AND DISTRIBUTION OF COMMERCIAL PRODUCTS
211.7004-1 [Amended]
2. Section 211.7004-1 is amended by removing and reserving
paragraph (h); and by revising in paragraph (p)(2)(ii) in the title in
the clause list under the clause number FAR 52.223-1 the word ``Clear''
to read ``Clean.''
211.7004-6 [Amended]
3. Section 211.7004-6(a)(3) is amended to revise the word ``parts''
to read ``part.''
211.7005 [Amended]
4. Section 211.7005 is amended by removing paragraph (a)(29) and by
redesignating paragraphs (a)(30) through (a)(33) as paragraphs (a)(29)
through (32), respectively; by revising in paragraph (b)(18) the name
``Healy'' to read ``Healey;'' by removing paragraphs (b)(34 and (35);
by redesignating paragraphs (b)(36) through (51) as paragraphs (b)34)
through (49), respectively; by redesignating paragraphs (b)(52) through
(54) as paragraphs (b)(51) through (53), respectively; by adding a new
paragraph (b)(50); and by revising in paragraph (c)(6) the name
``Healy'' to read ``Healey;'' and by revising in paragraph (c)(10) the
word ``Clear'' to read ``Clean'' to read as follows:
211.7005 Contract clauses
(a) * * *
(b) * * *
(50) 252.227-7015 Technical Data--Commercial Items.
* * * * *
PART 227--PATENTS, DATA, AND COPYRIGHTS
5. Subpart 227.4 is revised to read as follows:
Subpart 227.4--Rights in Data and Copyrights
227.400 Scope of subpart.
DoD activities shall use the guidance in subparts 227.71 and 227.72
instead of the guidance in FAR subpart 27.4.
6. Subpart 227.71 is added to read as follows:
Subpart 227.71--Rights in Technical Data
Sec.
227.7100 Scope of subpart.
227.7101 Definitions.
227.7102 Commercial items, components, or processes.
227.7102-1 Policy.
227.7102-2 Rights in technical data.
227.7102-3 Contract clause.
227.7103 Noncommercial items or processes.
227.7103-1 Policy.
227.7103-2 Acquisition of technical data.
227.7103-3 Early identification of technical data to be furnished
to the Government with restrictions on use, reproduction or
disclosure.
227.7103-4 License rights.
227.7103-5 Government rights.
227.7103-6 Contract clauses.
227.7103-7 Use and non-disclosure agreement.
227.7103-8 Deferred delivery and deferred ordering of technical
data.
[[Page 33472]]
227.7103-9 Copyright.
227.7103-10 Contractor identification and marking of technical data
to be furnished with restrictive markings.
227.7103-11 Contractor procedures and records.
227.7103-12 Government right to establish conformity of markings.
227.7103-13 Government right to review, verify, challenge and
validate asserted restrictions.
227.7103-14 Conformity, acceptance, and warranty of technical data.
227.7103-15 Subcontractor rights in technical data.
227.7103-16 Providing technical data to foreign governments,
foreign contractors, or international organizations.
227.7103-17 Overseas contracts with foreign sources.
227.7104 Contracts under the Small Business Innovative Research
(SBIR) Program.
227.7105 Contracts for the acquisition of existing works.
227.7105-1 General.
227.7105-2 Acquisition of existing works without modification.
227.7105-3 Acquisition of modified existing works.
227.7106 Contracts for special works.
227.7107 Contracts for architect-engineer services.
227.7107-1 Architectural designs and data clauses for architect-
engineer or construction contracts.
227.7107-2 Contracts for construction supplies and research and
development work.
227.7107-3 Approval of restricted designs.
227.7108 Contractor data repositories.
Subpart 227.71--Rights in Technical Data
227.7100 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures for the acquisition of
technical data and the rights to use, modify, reproduce, release,
perform, display, or disclose technical data. It implements
requirements in the following laws and Executive Order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305 (subsection (d)(4)).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 2325.
(6) Pub. L. 103-355.
(7) Executive Order 12591 (Subsection 1(b)(6)).
(b) Does not apply to computer software or technical data that is
computer software documentation (see subpart 227.72).
227.7101 Definitions.
(a) As used in this subpart, unless otherwise specifically
indicated, the terms ``offeror'' and ``contractor'' include an
offeror's or contractor's subcontractors, suppliers, or potential
subcontractors or suppliers at any tier.
(b) The terms ``commercial items'' and ``minor modification,'' as
those terms are used with commercial items, are defined in the clause
at 252.227-7015, Technical Data--Commercial Items.
(c) Other terms used in this subpart are defined in the clause at
252.227-7013, Rights in Technical Data--Noncommercial Items.
227.7102 Commercial items, components, or processes.
Section 2320(b)(1) of Title 10 U.S.C. establishes a presumption
that commercial items are developed at private expense whether or not a
contractor submits a justification in response to a challenge notice.
Therefore, do not challenge a contractor's assertion that a commercial
item, component, or process was developed at private expense unless the
Government can demonstrate that it contributed to development of the
item, component or process. Follow the procedures in 227.7103-13 and
the clause at 252.227-7037, Validation of Restrictive Markings on
Technical Data, when information provided by the Department of Defense
demonstrates that an item, component, or process was not developed
exclusively at private expense. However, when a challenge is warranted,
a contractor's or subcontractor's failure to respond to the challenge
notice cannot be the sole basis for issuing a final decision denying
the validity of an asserted restriction.
227.7102-1 Policy.
(a) DoD shall acquire only the technical data customarily provided
to the public with a commercial item or process, except technical data
that--
(1) Are form, fit, or function data;
(2) Are required for repair or maintenance of commercial items or
processes, or for the proper installation, operating, or handling of a
commercial item, either as a stand alone unit or as a part of a
military system, when such data are not customarily provided to
commercial users or the data provided to commercial users is not
sufficient for military purposes; or
(3) Describe the modifications made at Government expense to a
commercial item or process in order to meet the requirements of a
Government solicitation.
(b) To encourage offerors and contractors to offer or use
commercial products to satisfy military requirements, offerors, and
contractors shall not be required, except for the technical data
described in paragraph (a) of this subsection, to--
(1) Furnish technical information related to commercial items or
processes that is not customarily provided to the public; or
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release, perform, display, or disclose
technical data pertaining to commercial items or processes except for a
transfer of rights mutually agreed upon.
227.7102-2 Rights in technical data.
(a) The clause at 252.227-7015, Technical Data--Commercial Items,
provides the Government specific license rights in technical data
pertaining to commercial items or processes. DoD may use, modify,
reproduce, release, perform, display, or disclose data only within the
Government. The data may not be used to manufacture additional
quantities of the commercial items and, except for emergency repair or
overhaul, may not be released or disclosed to, or used by, third
parties without the contractor's written permission. Those restrictions
do not apply to the technical data described in 227.7102-1(a).
(b) If additional rights are needed, contracting activities must
negotiate with the contractor to determine if there are acceptable
terms for transferring such rights. The specific additional rights
granted to the Government shall be enumerated in a license agreement
made part of the contract.
227.7102-3 Contract clause.
(a) Except as provided in paragraph (b) of this subsection, use the
clause at 252.227-7015, Technical Data--Commercial Items, in all
solicitations and contracts when the contractor will be required to
deliver technical data pertaining to commercial items, components, or
processes.
(b) Use the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in lieu of the clause at 252.227-7015 if the
Government will pay any portion of the development costs.
(c) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, in all solicitations and contracts for
commercial items that include the clause at 252.227-7015 or the clause
at 252.227-7013.
227.7103 Noncommercial items or processes.
227.7103-1 Policy.
(a) DoD policy is to acquire only the technical data, and the
rights in that data, necessary to satisfy agency needs.
(b) Solicitations and contracts shall--
(1) Specify the technical data to be delivered under a contract and
delivery schedules for the data; [[Page 33473]]
(2) Establish or reference procedures for determining the
acceptability of technical data;
(3) Establish separate contract line items, to the extent
practicable, for the technical data to be delivered under a contract
and require offerors and contractors to price separately each
deliverable data item; and
(4) Require offerors to identify, to the extent practicable,
technical data to be furnished with restrictions on the Government's
rights and require contractors to identify technical data to be
delivered with such restrictions prior to delivery.
(c) Offerors shall not be required, either as a condition of being
responsive to a solicitation or as a condition for award, to sell or
otherwise relinquish to the Government any rights in technical data
related to items, components or processes developed at private expense
except for the data identified at 227.7103-5(a)(2) and (a)(4) through
(9).
(d) Offerors and contractors shall not be prohibited or discouraged
from furnishing or offering to furnish items, components, or processes
developed at private expense solely because the Government's rights to
use, modify, release, reproduce, perform, display, or disclose
technical data pertaining to those items may be restricted.
(e) As provided in 10 U.S.C. 2305, solicitations for major systems
development contracts shall not require offerors to submit proposals
that would permit the Government to acquire competitively items
identical to items developed at private expense unless a determination
is made at a level above the contracting officer that--
(1) The offeror will not be able to satisfy program schedule or
delivery requirements; or (2) The offeror's proposal to meet
mobilization requirements does not satisfy mobilization needs.
227.7103-2 Acquisition of technical data.
(a) Contracting officers shall work closely with data managers and
requirements personnel to assure that data requirements included in
solicitations are consistent with the policy expressed in 227.7103-1.
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's minimum needs for
technical data. Data needs must be established giving consideration to
the contractor's economic interests in data pertaining to items,
components, or processes that have been developed at private expense;
the Government's costs to acquire, maintain, store, retrieve, and
protect the data; reprocurement needs; repair, maintenance and overhaul
philosophies; spare and repair part considerations; and whether
procurement of the items, components, or processes can be accomplished
on a form, fit, or function basis. When it is anticipated that the
Government will obtain unlimited or government purpose rights in
technical data that will be required for competitive spare or repair
parts procurements, such data should be identified as deliverable data
items. Reprocurement needs may not be a sufficient reason to acquire
detailed manufacturing or process data when items or components can be
acquired using performance specifications, form, fit and function data,
or when there are a sufficient number of alternate sources which can
reasonably be expected to provide such items on a performance
specification or form, fit, or function basis.
(2) When reviewing offers received in response to a solicitation or
other request for data, data managers must balance the original
assessment of the Government's data needs with data prices contained in
the offer.
(c) Contracting officers are responsible for ensuring that,
wherever practicable, solicitations and contracts--
(1) Identify the type and quantity of the technical data to be
delivered under the contract and the format and media in which the data
will be delivered;
(2) Establish each deliverable data item as a separate contract
line item (this requirement may be satisfied by listing each
deliverable data item on an exhibit to the contract);
(3) Identify the prices established for each deliverable data item
under a fixed-price type contract;
(4) Include delivery schedules and acceptance criteria for each
deliverable data item; and
(5) Specifically identify the place of delivery for each
deliverable item of technical data.
227.7103-3 Early identification of technical data to be furnished to
the Government with restrictions on use, reproduction or disclosure.
(a) 10 U.S.C. 2320 requires, to the maximum extent practicable, an
identification prior to delivery of any technical data to be delivered
to the Government with restrictions on use.
(b) Use the provision at 252.227-7017, Identification and Assertion
of Use, Release, or Disclosure Restrictions, in all solicitations that
include the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items. The provision requires offerors to identify any
technical data for which restrictions, other than copyright, on use,
release, or disclosure are asserted and to attach the identification
and assertions to the offer.
(c) Subsequent to contract award, the clause at 252.277-7013
permits a contractor, under certain conditions, to make additional
assertions of use, release, or disclosure restrictions. The
prescription for the use of that clause and its alternate is at
227.7103-6 (a) and (b).
227.7103-4 License rights.
(a) Grant of license. The Government obtains rights in technical
data, including a copyright license, under and irrevocable license
granted or obtained for the Government by the contractor. The
contractor or licensor retains all rights in the data not granted to
the Government. For technical data that pertain to items, components,
or processes, the scope of the license is generally determined by the
source of funds used to develop the item, component, or process. When
the technical data do not pertain to items, components, or processes,
the scope of the license is determined by the source of funds used to
create the data.
(1) Techical data pertaining to items, components, or processes.
Contractors or licensors may, with some exceptions (see 227.7103-
5(a)(2) and (a)(4) through (9)), restrict the Government's rights to
use, modify, release, reproduce, perform, display or disclose technical
data pertaining to items, components, or processes developed
exclusively at private expense (limited rights). They may not restrict
the Government's rights in items, components, or processes developed
exclusively at Government expense (unlimited rights) without the
Government's approval. When an item, component, or process is developed
with mixed funding, the Government may use, modify, release, reproduce,
perform, display or disclose the data pertaining to such items,
components, or processes within the Government without restriction but
may release or disclose the data outside the Government only for
government purposes (government purpose rights).
(2) Technical data that do not pertain to items, components, or
processes. Technical data may be created during the performance of a
contract for a conceptual design or similar effort that does not
require the development, manufacture, construction, or production of
items, components or processes. The Government generally obtains
unlimited rights in such data when the data were created exclusively
with Government funds, government purpose rights when the data were
created with mixed funding, and limited [[Page 33474]] rights when the
data were created exclusively at private expense.
(b) Source of funds determination. The determination of the source
of development funds for technical data pertaining to items,
components, or processes should be made at any practical sub-item or
subcomponent level or for any segregable portion of a process.
Contractors may assert limited rights in a segregable sub-item, sub-
component, or portion of a process which otherwise qualifies for
limited rights under the clause at 252.227-7013, Rights in Technical
Data--Noncommercial Items.
227.7103-5 Government rights.
The standard license rights that a licensor grants to the
Government are unlimited rights, government purpose rights, or limited
rights. Those rights are defined in the clause at 252.227-7013, Rights
in Technical Data--Noncommercial Items. In unusual situations, the
standards rights may not satisfy the Government's needs or the
Government may be willing to accept lesser rights in data in return for
other consideration. In those cases, a special license may be
negotiated. However, the licensor is not obligated to provide the
Government greater rights and the contracting officer is not required
to accept lesser rights than the rights provided in the standard grant
of license. The situations under which a particular grant of license
applies are enumerated in paragraphs (a) through (d) of this
subsection.
(a) Unlimited rights. The Government obtains unlimited rights in
technical data that are--
(1) Data pertaining to an item, component, or process which has
been or will be developed exclusively with Government funds;
(2) Studies, analyses, test data, or similar data produced in the
performance of a contract when the study, analysis, test, or similar
work was specified as an element of performance;
(3) Created exclusively with Government funds in the performance of
a contract that does not require the development, manufacture,
construction, or production of items, components, or processes;
(4) Form, fit, and function data;
(5) Necessary for installation, operation, maintenance, or training
purposes (other than detailed manufacturing or process data);
(6) Corrections or changes to technical data furnished to the
contractor by the Government;
(7) Publicly available or have been released or disclosed by the
contractor or subcontractor without restrictions on further use,
release or disclosure other than a release or disclosure resulting from
the sale, transfer, or other assignment of interest in the software to
another party or the sale or transfer of some or all of a business
entity or its assets to another party;
(8) Data in which the Government has obtained unlimited rights
under another Government contract or as a result of negotiations; or
(9) Data furnished to the Government, under a Government contract
or subcontract thereunder, with--
(i) Government purpose license rights or limited rights and the
restrictive condition(s) has/have expired; or
(ii) Government purpose rights and the contractor's exclusive right
to use such data for commercial purposes has expired.
(b) Government purpose rights. (1) The Government obtains
government purpose rights in technical data--
(i) That pertain to items, components, or processes developed with
mixed funding except when the Government is entitled to unlimited
rights as provided in paragraphs (a)(2) and (a)(4) through (9) of this
subsection; or
(ii) Created with mixed funding in the performance of a contract
that does not require the development, manufacture, construction, or
production of items, components, or processes.
(2) The period during which government purpose rights are effective
is negotiable. The clause at 252.227-7013 provides a nominal five-year
period. Either party may request a different period. Changes to the
government purpose rights period may be made at any time prior to
delivery of the technical data without consideration from either party.
Longer periods should be negotiated when a five-year period does not
provide sufficient time to apply the data for commercial purposes or
when necessary to recognize subcontractors' interests in the data.
(3) The government purpose rights period commences upon execution
of the contract, subcontract, letter contract (or similar contractual
instrument), contract modification, or option exercise that required
the development. Upon expiration of the Government rights period, the
Government has unlimited rights in the data including the right to
authorize others to use the data for commercial purposes.
(4) During the government purpose rights period, the government may
not use, or authorize other persons to use, technical data marked with
government purpose rights legends for commercial purposes. The
Government shall not release or disclose data in which it has
government purpose rights to any person, or authorize others to do so,
unless--
(i) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227.7103-7; or
(ii) The intended recipient is a Government contractor receiving
access to the data for performance of a Government contract that
contains the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information Marked with Restrictive
Legends.
(5) When technical data marked with government purpose rights
legends will be released or disclosed to a Government contractor
performing a contract that does not include the clause at 252-227-7025,
the contract may be modified, prior to release or disclosure, to
include that clause in lieu of requiring the contractor to complete a
use and non-disclosure agreement.
(6) Contracting activities shall establish procedures to assure
that technical data marked with government purpose rights legends are
released or disclosed, including a release or disclosure through a
Government solicitation, only to persons subject to the use and non-
disclosure restrictions. Public announcements in the Commerce Business
Daily or other publications must provide notice of the use and non-
disclosure requirements. Class use and non-disclosure agreements (e.g.,
agreements covering all solicitations received by the XYZ company
within a reasonable period) are authorized and may be obtained at any
time prior to release or disclosure of the government purpose rights
data. Documents transmitting government purpose rights data to persons
under class agreements shall identify the technical data subject to
government purpose rights and the class agreement under which such data
are provided.
(c) Limited rights. (1) The Government obtains limited rights in
technical data--
(i) That pertain to items, components, or processes developed
exclusively at private expense except when the Government is entitled
to unlimited rights as provided in paragraphs (a)(2) and (a)(4) through
(9) of this subsection; or
(ii) Created exclusively at private expense in the performance of a
contract that does not require the development, manufacture,
construction, or production of items, components, or processes.
(2) Data in which the Government has limited rights may not be
used, released, or disclosed outside the Government without the
permission of the contractor [[Page 33475]] asserting the restriction
except for a use, release or disclosure that is--
(i) Necessary for emergency repair and overhaul; or
(ii) To a foreign government, other than detailed manufacturing or
process data, when use, release, or disclosure is in the interest of
the United States and is required for evaluation or informational
purposes.
(3) The person asserting limited rights must be notified of the
Government's intent to release, disclose, or authorize others to use
such data prior to release or disclosure of the data except
notification of an intended release, disclosure, or use for emergency
repair or overhaul which shall be made as soon as practicable.
(4) When the person asserting limited rights permits the Government
to release, disclose, or have others use the data subject to
restrictions on further use, release, or disclosure, or for a release
under paragraph (c)(2)(i) or (ii) of this subsection, the intended
recipient must complete the use and non-disclosure agreement at
227.7103-7 prior to release or disclosure of the limited rights data.
(d) Specifically negotiated license rights. (1) Negotiate specific
licenses when the parties agree to modify the standard license rights
granted to the government or when the government wants to obtain rights
in data in which it does not have rights. When negotiating to obtain,
relinquish, or increase the Government's rights in technical data,
consider the acquisition strategy for the item, component, or process,
including logistics support and other factors which may have relevance
for a particular procurement. The Government may accept lesser rights
when it has unlimited or government purpose rights in data but may not
accept less than limited rights in such data. The negotiated license
rights must stipulate what rights the Government has to release or
disclose the data to other persons or to authorize others to use the
data. Identify all negotiated rights in a license agreement made part
of the contract.
(2) When the Government needs additional rights in data acquired
with government purpose or limited rights, the contracting officer must
negotiate with the contractor to determine whether there are acceptable
terms for transferring such rights. Generally, such negotiations should
be conducted only when there is a need to disclose the data outside the
Government or if the additional rights are required for competitive
reprocurement and the anticipated savings expected to be obtained
through competition are estimated to exceed the acquisition cost of the
additional rights. Prior to negotiating for additional rights in
limited rights data, consider alternatives such as--
(i) Using performance specifications and form, fit, and function
data to acquire or develop functionally equivalent items, components,
or processes;
(ii) Obtaining a contractor's contractual commitment to qualify
additional sources and maintain adequate competition among the sources;
or
(iii) Reverse engineering, or providing items from Government
inventories to contractors who request the items to facilitate the
development of equivalent items through reverse engineering.
227.7103-6 Contract clauses.
(a) Use the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in solicitations and contracts when the successful
offeror(s) will be required to deliver technical data to the
Government. Do not use the clause when the only deliverable items are
computer software or computer software documentation (see 227.72),
commercial items (see 227.7102-3), existing works (see 227.7105),
special works (see 227.7106), or when contracting under the Small
Business Innovative Research Program (see 227.7104). Except as provided
in 227.7107-2, do not use the clause in architect-engineer and
construction contracts.
(b) Use the clause at 252.227-7013 with its Alternate I in research
contracts when the contracting officer determines, in consultation with
counsel, that public dissemination by the contractor would be--
(1) In the interest of the government; and
(2) Facilitated by the Government; and
Facilitated by the Government relinquishing its right to publish
the work for sale, or to have others publish the work for sale on
behalf of the Government.
(c) Use the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government Furnished Information Marked with Restrictive
Legends, in solicitations and contracts when it is anticipated that the
Government will provide the contractor, for performance of its
contract, technical data marked with another contractor's restrictive
legend(s).
(d) Use the provision at 252.227-7028, Technical Data or Computer
Software Previously Delivered to the Government, in solicitations when
the resulting contract will require the contractor to deliver technical
data. The provision requires offerors to identify any technical data
specified in the solicitations as deliverable data items that are the
same or substantially the same as data items the offeror has delivered
or is obligated to deliver, either as a contractor or subcontractor,
under any other federal agency contract.
(e) Use the following clauses in solicitations and contracts that
include the clause at 252.227-7013:
(1) 252.227-7016, Rights in Bid or Proposal Information;
(2) 252.227-7030, Technical Data--Withholding of Payment;
(3) 252.227-7036, Certification of Technical Data Conformity; and
(4) 252.227-7037, Validation of Restrictive Markings on Technical
Data (paragraph (e) of the clause contains information that must be
included in a challenge).
227.7103-7 Use and non-disclosure agreement.
(a) Except as provided in paragraph (b) of this subsection,
technical data or computer software delivered to the Government with
restrictions on use, modification, reproduction, release, performance,
display, or disclosure may not be provided to third parties unless the
intended recipient completes and signs the use and non-disclosure
agreement at paragraph (c) of this subsection prior to release, or
disclosure of the data.
(1) The specific conditions under which an intended recipient will
be authorized to use, modify, reproduce, release, perform, display, or
disclose technical data subject to limited rights or computer software
subject to restricted rights must be stipulated in an attachment to the
use and non-disclosure agreement.
(2) For an intended release, disclosure, or authorized use of
technical data or computer software subject to special license rights,
modify paragraph (1)(d) of the use and non-disclosure agreement to
enter the conditions, consistent with the license requirements,
governing the recipient's obligations regarding use, modification,
reproduction, release, performance, display or disclosure of the data
or software.
(b) The requirement for use and non-disclosure agreements does not
apply to Government contractors which require access to a third party's
data or software for the performance of a Government contract that
contains the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished [[Page 33476]] Information Marked
with Restrictive Legends.
(c) The prescribed use and non-disclosure agreement is:
Use and Non-Disclosure Agreement
The undersigned, ________________ (Insert Name)
________________, an authorized representative of the
________________ (Insert Company Name) ________________, (which is
hereinafter referred to as the ``Recipient'') requests the
Government to provide the Recipient with technical data or computer
software (hereinafter referred to as ``Data'') in which the
Government's use, modification, reproduction, release, performance,
display or disclosure rights are restricted. Those Data are
identified in an attachment to this Agreement. In consideration for
receiving such Data, the Recipient agrees to use the Data strictly
in accordance with this Agreement:
(1) The Recipient shall--
(a) Use, modify, reproduce, release, perform, display, or
disclose Data marked with government purpose rights or SBIR data
rights legends only for government purposes and shall not do so for
any commercial purpose. The Recipient shall not release, perform,
display, or disclose these Data, without the express written
permission of the contractor whose name appears in the restrictive
legend (the ``Contractor''), to any person other than its
subcontractors or suppliers, or prospective subcontractors or
suppliers, who require these Data to submit offers for, or perform,
contracts with the Recipient. The Recipient shall require its
subcontractors or suppliers, or prospective subcontractors or
suppliers, to sign a use and non-disclosure agreement prior to
disclosing or releasing these Data to such persons. Such agreement
must be consistent with the terms of this agreement.
(b) Use, modify, reproduce, release, perform, display, or
disclose technical data marked with limited rights legends only as
specified in the attachment to this Agreement. Release, performance,
display, or disclosure to other persons is not authorized unless
specified in the attachment to this Agreement or expressly permitted
in writing by the Contractor. The Recipient shall promptly notify
the Contractor of the execution of this Agreement and identify the
Contractor's Data that has been or will be provided to the
Recipient, the date and place the Data were or will be received, and
the name and address of the Government office that has provided or
will provide the Data.
(c) Use computer software marked with restricted rights legends
only in performance of Contract Number ________________ (insert
contract number(s)) ________________. The recipient shall not, for
example, enhance, decompile, disassemble, or reverse engineer the
software; time share, or use a computer program with more than one
computer at a time. The recipient may not release, perform, display,
or disclose such software to others unless expressly permitted in
writing by the licensor whose name appears in the restrictive
legend. The Recipient shall promptly notify the software licensor of
the execution of this Agreement and identify the software that has
been or will be provided to the Recipient, the date and place the
software were or will be received, and the name and address of the
Government office that has provided or will provide the software.
(d) Use, modify, reproduce, release, perform, display, or
disclose Data marked with special license rights legends (To be
completed by the contracting officer. See 227.7103-7(a)(2). Omit if
none of the Data requested is marked with special license rights
legends).
(2) The Recipient agrees to adopt or establish operating
procedures and physical security measures designed to protect these
Data from inadvertent release or disclosure to unauthorized third
parties.
(3) The Recipient agrees to accept these Data ``as is'' without
any Government representation as to suitability for intended use or
warranty whatsoever. This disclaimer does not affect any obligation
the Government may have regarding Data specified in a contract for
the performance of that contract.
(4) The Recipient may enter into any agreement directly with the
Contractor with respect to the use, modification, reproduction,
release, performance, display, or disclosure of these Data.
(5) The Recipient agrees to indemnify and hold harmless the
Government, its agents, and employees from every claim or liability,
including attorneys fees, court costs, and expenses arising out of,
or in any way related to, the misuse or unauthorized modification,
reproduction, release, performance, display, or disclosure of Data
received from the Government with restrictive legends by the
Recipient or any person to whom the Recipient has released or
disclosed the Data.
(6) The Recipient is executing this Agreement for the benefit of
the Contractor. The Contractor is a third party beneficiary of this
Agreement who, in addition to any other rights it may have, is
intended to have the rights of direct action against the Recipient
or any other person to whom the Recipient has released or disclosed
the Data, to seek damages from any breach of this Agreement or to
otherwise enforce this Agreement.
(7) The Recipient agrees to destroy these Data, and all copies
of the Data in its possession, no later than 30 days after the date
shown in paragraph (8) of this Agreement, to have all persons to
whom it released the Data do so by that date, and to notify the
Contractor that the Data have been destroyed.
(8) This Agreement shall be effective for the period commencing
with the Recipient's execution of this Agreement and ending upon
________ (Insert Date) ________. The obligations imposed by this
Agreement shall survive the expiration or termination of the
Agreement.
Recipient's Business Name --------------------------------------------
By -------------------------------------------------------------------
Authorized Representative
----------------------------------------------------------------------
Date
Representative's Typed Name ------------------------------------------
and Title ------------------------------------------------------------
(End of use and non-disclosure agreement)
227.7103-8 Deferred delivery and deferred ordering of technical data.
(a) Deferred delivery. Use the clause at 252.227-7026, Deferred
Delivery of Technical Data or Computer Software, when it is in the
Government's interests to defer the delivery of technical data. The
clause permits the contracting officer to require the delivery of
technical data identified as ``deferred delivery'' data at any time
until two years after acceptance by the Government of all items (other
than technical data or computer software) under the contract or
contract termination, whichever is later. The obligation of
subcontractors or suppliers to deliver such technical data expires two
years after the date the prime contractor accepts the last item from
the subcontractor or supplier for use in the performance of the
contract. The contract must specify which technical data is subject to
deferred delivery. The contracting officer shall notify the contractor
sufficiently in advance of the desired delivery date for such data to
permit timely delivery.
(b) Deferred ordering. Use the clause at 252.227-7027, Deferred
Ordering of Technical Data or Computer Software, when a firm
requirement for a particular data item(s) has not been established
prior to contract award but there is a potential need for the data.
Under this clause, the contracting officer may order any data that has
been generated in the performance of the contract or any subcontract
thereunder at any time until three years after acceptance of all items
(other than technical data or computer software) under the contract or
contract termination, whichever is later. The obligation of
subcontractors to deliver such data expires three years after the date
the contractor accepts the last item under the subcontract. When the
data are ordered, the delivery dates shall be negotiated and the
contractor compensated only for converting the data into the prescribed
form, reproduction costs, and delivery costs.
227.7103-9 Copyright.
(a) Copyright license. (1) The clause at 252.227-7013, Rights in
Technical Data--Noncommercial Items, requires a contractor to grant or
obtain for the Government license rights which permit the Government to
reproduce data, distribute copies of the data, publicly perform or
display the data or, through the right to modify data, prepare
derivative works. The extent to which the Government, and others acting
on its behalf, may exercise these rights varies for each of the
standard data rights licenses obtained under the clause. When non-
standard license rights in [[Page 33477]] technical data will be
negotiated, negotiate the extent of the copyright license concurrent
with negotiations for the data rights license. Do not negotiate a
copyright license that provides less rights than the standard limited
rights license in technical data.
(2) The clause at 252.227-7013 does not permit a contractor to
incorporate a third party's copyrighted data into a deliverable data
item unless the contractor has obtained an appropriate license for the
Government and, when applicable, others acting on the Government's
behalf, or has obtained the contracting officer's written approval to
do so. Grant approval to use third party copyrighted data in which the
Government will not receive a copyright license only when the
Government's requirements cannot be satisfied without the third party
material or when the use of the third party material will result in
cost savings to the Government which outweigh the lack of a copyright
license.
(b) Copyright considerations--acquisition of existing and special
works. See 227.7105 or 227.7106 for copyright considerations when
acquiring existing or special works.
227.7103-10 Contractor identification and marking of technical data to
be furnished with restrictive markings.
(a) Identification requirements. (1) The solicitation provision at
252.227-7017, Identification and Assertion of Use, Release, or
Disclosure Restrictions, requires offerors to identify to the
contracting officer, prior to contract award, any technical data that
the offeror asserts should be provided to the Government with
restrictions on use, modification, reproduction, release or disclosure.
This requirement does not apply to restrictions based solely on
copyright. The notification and identification must be submitted as an
attachment to the offer. If an offeror fails to submit the attachment
or fails to complete the attachment in accordance with the requirements
of the solicitation provision, such failure shall constitute a minor
informality. Provide offerors an opportunity to remedy a minor
informality in accordance with the procedures at FAR 14.405 or 15.607.
An offeror's failure to correct the informality within the time
prescribed by the contracting officer shall render the offer ineligible
for award.
(2) The procedures for correcting minor informalities shall not be
used to obtain information regarding asserted restrictions or an
offeror's suggested asserted rights category. Questions regarding the
justification for an asserted restriction or asserted rights category
must be pursued in accordance with the procedures at 227.7103-13.
(3) The restrictions asserted by a successful offeror shall be
attached to its contract unless, in accordance with the procedures at
227.7103-13, the parties have agreed that an asserted restriction is
not justified. The contract attachment shall provide the same
information regarding identification of the technical data, the
asserted rights category, the basis for the assertion, and the name of
the person asserting the restrictions as required by paragraph (d) of
the solicitation provision at 252.227-7017. Subsequent to contract
award, the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, permits the contractor to make additional
assertions under certain conditions. The additional assertions must be
made in accordance with the procedures and in the format prescribed by
that clause.
(4) Neither the pre- or post-award assertions made by the
contractor, nor the fact that certain assertions are identified in the
attachment to the contract, determine the respective rights of the
parties. As provided at 227.7103-13, the Government has the right to
review, verify, challenge and validate restrictive markings.
(5) Information provided by offerors in response to the
solicitation provision may be used in the source selection process to
evaluate the impact on evaluation factors that may be created by
restrictions on the Government's ability to use or disclose technical
data. However, offerors shall not be prohibited from offering products
for which the offeror is entitled to provide the Government limited
rights in the technical data pertaining to such products and offerors
shall not be required, either as a condition of being responsive to a
solicitation or as a condition for award, to sell or otherwise
relinquish any greater rights in technical data when the offeror is
entitled to provide the technical data with limited rights.
(b) Contractor marking requirements. The clause at 252.227-7013,
Rights in Technical Data--Noncommercial Items--
(1) Requires a contractor that desires to restrict the Government's
rights in technical data to place restrictive markings on the data,
provides instructions for the placement of the restrictive markings,
and authorizes the use of certain restrictive markings; and
(2) Requires a contractor to deliver, furnish, or otherwise provide
to the Government any technical data in which the Government has
previously obtained rights with the Government's pre-existing rights in
that data unless the parties have agreed otherwise or restrictions on
the Government's rights to use, modify, reproduce, release, perform,
display, or disclose the data have expired. When restrictions are still
applicable, the contractor is permitted to mark the data with the
appropriate restrictive legend for which the data qualified.
(c) Unmarked technical data. (1) Technical data delivered or
otherwise provided under a contract without restrictive markings shall
be presumed to have been delivered with unlimited rights and may be
released or disclosed without restriction. To the extent practicable,
if a contractor has requested permission (see paragraph (c)(2) of this
subsection) to correct an inadvertent omission of markings, do not
release or disclose the technical data pending evaluation of the
request.
(2) A contractor may request permission to have appropriate legends
placed on unmarked technical data at its expense. The request must be
received by the contracting officer within six months following the
furnishing or delivery of such data, or any extension of that time
approved by the contracting officer. The person making the request
must:
(i) Identify the technical data that should have been marked;
(ii) Demonstrate that the omission of the marking was inadvertent,
the proposed marking is justified and conforms with the requirements
for the marking of technical data contained in the clause at 252.227-
7013; and
(iii) Acknowledge, in writing, that the Government has no liability
with respect to any disclosure, reproduction, or use of the technical
data made prior to the addition of the marking or resulting from the
omission of the marking.
(3) Contracting officers should grant permission to mark only if
the technical data were not distributed outside the Government or were
distributed outside the Government with restrictions on further use or
disclosure.
227.7103-11 Contractor procedures and records.
(a) The clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, requires a contractor, and its subcontractors or
suppliers that will deliver technical data with other than unlimited
rights, to establish and follow written procedures to assure that
restrictive markings are used only when authorized and to maintain
records to justify the validity of asserted restrictions on delivered
data. [[Page 33478]]
(b) The clause at 252.227-7037, Validation of Restrictive Markings
on Technical Data requires contractors and their subcontractors at any
tier to maintain records sufficient to justify the validity of
restrictive markings on technical data delivered or to be delivered
under a Government contract.
227.7103-12 Government right to establish conformity of markings.
(a) Nonconforming markings. (1) Authorized markings are identified
in the clause at 252.227-7013, Rights in Technical Data--Noncommercial
Items. All other markings are nonconforming markings. An authorized
marking that is not in the form, or differs in substance, from the
marking requirements in the clause at 252.227-7013 is also a
nonconforming marking.
(2) The correction of nonconforming markings on technical data is
not subject to 252.227-7037, Validation of Restrictive Markings on
Technical Data. To the extent practicable, the contracting officer
should return technical data bearing nonconforming markings to the
person who has placed the nonconforming markings on such data to
provide that person an opportunity to correct or strike the
nonconforming marking at that person's expense. If that person fails to
correct the nonconformity and return the corrected data within 60 days
following the person's receipt of the data, the contracting officer may
correct or strike the nonconformity at that person's expense. When it
is impracticable to return technical data for correction, contracting
officers may unilaterally correct any nonconforming markings at
Government expense. Prior to correction, the data may be used in
accordance with the proper restrictive marking.
(b) Unjustified markings. (1) An unjustified marking is an
authorized marking that does not depict accurately restrictions
applicable to the Government's use, modification, reproduction,
release, performance, display, or disclosure of the marked technical
data. For example, a limited rights legend placed on technical data
pertaining to items, components, or processes that were developed under
a Government contract either exclusively at Government expense or with
mixed funding (situations under which the Government obtains unlimited
or government purpose rights) is an unjustified marking.
(2) Contracting officers have the right to review and challenge the
validity of unjustified markings. However, at any time during
performance of a contract and notwithstanding existence of a challenge,
the contracting officer 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,
either--
(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 correction at that person's expense. If the data are
returned and that person fails to correct or strike the unjustified
restriction 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.
227.7103-13 Government right to review, verify, challenge and validate
asserted restrictions.
(a) General. An offeror's assertion(s) of restrictions on the
Government's rights to use, modify, reproduce, release, or disclose
technical data do not, by themselves, determine the extent of the
Government's rights in the technical data. Under 10 U.S.C. 2321, the
Government has the right to challenge asserted restrictions when there
are reasonable grounds to question the validity of the assertion and
continued adherence to the assertion would make it impractical to later
procure competitively the item to which the data pertain.
(b) Pre-award considerations. The challenge procedures required by
10 U.S.C. 2321 could significantly delay awards under competitive
procurements. Therefore, avoid challenging asserted restrictions prior
to a competitive contract award unless resolution of the assertion is
essential for successful completion of the procurement.
(c) Challenge and validation. Contracting officers must have
reasonable grounds to challenge the current validity of an asserted
restriction. Before issuing a challenge to an asserted restriction,
carefully consider all available information pertaining to the
assertion. All challenges must be made in accordance with the
provisions of the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data.
(1) Challenge period. Asserted restrictions should be reviewed
before acceptance of technical data deliverable under the contract.
Assertions must be challenged within three years after final payment
under the contract or three years after delivery of the data, whichever
is later. However, restrictive markings may be challenged at any time
if the technical data--
(i) Are publicly available without restrictions;
(ii) Have been provided to the United States without restriction;
or
(iii) Have been otherwise made available without restriction other
than a release or disclosure resulting from the sale, transfer, or
other assignment of interest in the technical data to another party or
the sale or transfer of some or all of a business entity or its assets
to another party.
(2) Pre-challenge requests for information. (i) After consideration
of the situation described in paragraph (c)(3) of this subsection,
contracting officers may request the person asserting a restriction to
furnish a written explanation of the facts and supporting documentation
for the assertion in sufficient detail to enable the contracting
officer to ascertain the basis of the restrictive markings. Additional
supporting documentation may be requested when the explanation provided
by the person making the assertion does not, in the contracting
officer's opinion, establish the validity of the assertion.
(ii) If the person asserting the restriction fails to respond to
the contracting officer's request for information or additional
supporting documentation, or if the information submitted or any other
available information pertaining to the validity of a restrictive
marking does not justify the asserted restriction, a challenge should
be considered.
(3)Transacting matters directly with subcontracts. The clause at
252.227-7037 obtains the contractor's agreement that the Government may
transact matters under the clause directly with a subcontractor, at any
tier, without creating or implying privity of contract. Contracting
officers should permit a subcontractor or supplier to transact
challenge and validation matters directly with the Government when--
(i) A subcontractor's or supplier's business interests in its
technical data would be compromised if the data were disclosed to a
higher tier contractor;
(ii) There is reason to believe that the contractor will not
respond in a timely manner to a challenge and an untimely response
would jeopardize a subcontractor's or suppliers right to assert
restrictions; or
(iii) Requested to do so by a subcontractor or supplier.
(4) Challenge notice. Do not issue a challenge notice unless there
are reasonable grounds to question the validity of an assertion.
Assertions may be challenged whether or not supporting documentation
was requested from the person asserting the restriction.
[[Page 33479]] Challenge notices must be in writing and issued to the
contractor or, after consideration of the situations described in
paragraph (c)(3) of this subsection, the person asserting the
restriction. The challenge notice must include the information in
paragraph (e) of the clause at 252.227-7037.
(5) Extension of response time. The contracting officer, at his or
her discretion, may extend the time for response contained in a
challenge notice, as appropriate, if the contractor submits a timely
written request showing the need for additional time to prepare a
response.
(6) Contracting officer's final decision. Contracting officers must
issue a final decision for each challenged assertion, whether or not
the assertion has been justified.
(i) A contracting officer's final decision that an assertion is not
justified must be issued a soon as practicable following the failure of
the person asserting the restriction to respond to the contracting
officer's challenge within 60 days, or any extension to that time
granted by the contracting officer.
(ii) A contracting officer who, following a challenge and response
by the person asserting the restriction, determines that an asserted
restriction is justified, shall issue a final decision sustaining the
validity of the asserted restriction. If the asserted restriction was
made subsequent to submission of the contractor's offer, add the
asserted restriction to the contract attachment.
(iii) A contracting officer who determine that the validity of an
asserted restriction has not been justified shall issue a contracting
officer's final decision within the time frames prescribed in 252.227-
7037. As provided in paragraph (g) of that clause, the Government is
obligated to continue to respect the asserted restrictions through
final disposition of any appeal unless the agency head notifies the
person asserting the restriction that urgent or compelling
circumstances do not permit the Government to continue to respect the
asserted restriction.
(7) Multiple challenges to an asserted restriction. When more than
one contracting officer challenges an asserted restriction, the
contracting officer who made the earliest challenge is responsible for
coordinating the Government challenges. That contracting officer shall
consult with all other contracting officers making challenges, verify
that all challenges apply to the same asserted restriction and, after
consulting with the contractor, subcontractor, or supplier asserting
the restriction, issue a schedule that provides that person a
reasonable opportunity to respond to each challenge.
(8) Validation. Only a contracting officer's final decision, or
actions of an agency board of contract appeals or a court of competent
jurisdiction, that sustain the validity of an asserted restriction
constitute validation of the asserted restriction.
227.7103-14 Conformity, acceptance, and warranty of technical data.
(a) Statutory requirements. 10 U.S.C. 2320--
(1) Requires contractors to furnish written assurance, at the time
technical data are delivered or are made available to the Government,
that the technical data are complete, accurate, and satisfy the
requirements of the contract concerning such data;
(2) Provides for the establishment of remedies applicable to
technical data found to be incomplete, inadequate, or not to satisfy
the requirements of the contract concerning such data; and
(3) Authorizes agency heads to withhold payments (or exercise such
other remedies an agency head considers appropriate) during any period
if the contractor does not meet the requirements of the contract
pertaining to the delivery of technical data.
(b) Conformity and acceptance. (1) Solicitations and contracts
requiring the delivery of technical data shall specify the requirements
the data must satisfy to be acceptable. Contracting officers, or their
authorized representatives, are responsible for determining whether
technical data tendered for acceptance conform to the contractual
requirements.
(2) The clause at 252.227-7030, Technical Data--Withholding of
Payment, provides for withholding up to 10 percent of the contract
price pending correction or replacement of the nonconforming technical
data or negotiation of an equitable reduction in contract price. The
amount subject to withholding may be expressed as a fixed dollar amount
or as a percentage of the contract price. In either case, the amount
shall be determined giving consideration to the relative value and
importance of the data. For example--
(i) When the sole purpose of a contract is to produce the data, the
relative value of that data may be considerably higher than the value
of data produced under a contract where the production of the data is a
secondary objective; or
(ii) When the Government will maintain or repair items, repair and
maintenance data may have a considerably higher relative value than
data that merely describe the item or provide performance
characteristics.
(3) Do not accept technical data that do not conform to the
contractual requirements in all respects. Except for nonconforming
restrictive markings (see paragraph (b)(4) of this subsection),
correction or replacement of nonconforming data or an equitable
reduction in contract price when correction or replacement of the
nonconforming data is not practicable or is not in the Government's
interests, shall be accomplished in accordance with--
(i) The provisions of a contract clause providing for inspection
and acceptance of deliverables and remedies for nonconforming
deliverables; or
(ii) The procedures at FAR 46.407(c) through (g), if the contract
does not contain an inspection clause providing remedies for
nonconforming deliverables.
(4) Follow the procedures at 227.7103-12(a)(2) if nonconforming
markings are the sole reason technical data fail to conform to
contractual requirements. The clause at 252.227-7030 may be used to
withhold an amount for payment, consistent with the terms of the
clause, pending correction of the nonconforming markings.
(c) Warranty. (1) The intended use of the technical data and the
cost, if any, to obtain the warranty should be considered before
deciding to obtain a data warranty (see FAR 46.703). The fact that a
particular item, component, or process is or is not warranted is not a
consideration in determining whether or not to obtain a warranty for
the technical data that pertain to the item, component, or process. For
example, a data warranty should be considered if the Government intends
to repair or maintain an item and defective repair or maintenance data
would impair the Government's effective use of the item or result in
increased costs to the Government.
(2) As prescribed in 246.710, use the clause at 252.246-7001,
Warranty of Data, and its alternates, or a substantially similar clause
when the Government needs a specific warranty of technical data.
227.7103-15 Subcontractor rights in technical data.
(a) 10 U.S.C. 2320 provides subcontractors at all tiers the same
protection for their rights in data as is provided to prime
contractors. The clauses at 252.227-7013, Rights in Technical Data--
Noncommercial Items, and 252.227-7037, Validation of Restrictive
Markings on Technical Data, implement the statutory requirements.
[[Page 33480]]
(b) 10 U.S.C. 2321 permits a subcontractor to transact directly
with the Government matters relating to the validation of its asserted
restrictions on the Government's rights to use or disclose technical
data. The clause at 252.227-7037 obtains a contractor's agreement that
the direct transaction of validation or challenge matters with
subcontractors at any tier does not establish or imply privity of
contract. When a subcontractor or supplier exercise its right to
transact validation matters directly with the Government, contracting
officers shall deal directly with such persons, as provided at
227.7103-13(c)(3).
(c) Require prime contractors whose contracts include the following
clauses to include those clauses, without modification except for
appropriate identification of the parties, in contracts with
subcontractors or suppliers, at all tiers, who will be furnishing
technical data in response to a Government requirement:
(1) 252.227-7013, Rights in Technical Data--Noncommercial Items;
(2) 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends;
(3) 252.227-7028, Technical Data or Computer Software Previously
Delivered to the Government; and
(4) 252.227-7037, Validation of Restrictive Markings on Technical
Data.
(d) Do not require contractors to have their subcontractors or
suppliers at any tier relinquish rights in technical data to the
contractor, a higher tier subcontractor, or to the Government, as a
condition for award of any contract, subcontract, purchase order, or
similar instrument except for the rights obtained by the Government
under the Rights in Technical Data--Noncommercial Items clause
contained in the contractor's contract with the Government.
227.7103-16 Providing technical data to foreign governments, foreign
contractors, or international organizations.
Technical data may be released or disclosed to foreign governments,
foreign contractors, or international organizations only if release or
disclosure is otherwise permitted both by Federal export controls and
other national security laws or regulations. Subject to such laws and
regulations, the Department of Defense--
(a) May release or disclose technical data in which it has obtained
unlimited rights to such foreign entities or authorize the use of such
data by those entities; and
(b) Shall not release or disclose technical data for which
restrictions on use, release, or disclosure have been asserted to
foreign entities, or authorize the use of technical data by those
entities, unless the intended recipient is subject to the same
provisions as included in the use and non-disclosure agreement at
227.7103-7 and the requirements of the clause at 252.227-7103, Rights
in Technical Data--Noncommercial Items, governing use, modification,
reproduction, release, performance, display, or disclosure of such data
have been satisfied.
227.7103-17 Overseas contracts with foreign sources.
(a) The clause at 252.227-7032, Rights in Technical Data and
Computer Software (Foreign), may be used in contracts with foreign
contractors to be performed overseas, except Canadian purchases (see
paragraph (c) of this subsection), in lieu of the clause at 252.227-
7013, Rights in Technical Data--Noncommercial Items, when the
Government requires the unrestricted right to use, modify, reproduce,
perform, display, release or disclose all technical data to be
delivered under the contract. Do not use the clause in contracts for
existing or special works.
(b) When the Government does not require unlimited rights, the
clause at 252.227-7032 may be modified to accommodate the needs of a
specific overseas procurement situation. The Government should obtain
rights in the technical data that are not less than the rights the
Government would have obtained under the data rights clause(s)
prescribed in this part for a comparable procurement performed within
the United States or its possessions.
(c) Contracts for Canadian purchases shall include the appropriate
data rights clause prescribed in this part for a comparable procurement
performed within the United States or its possessions.
227.7104 Contracts under the Small Business Innovative Research (SBIR)
Program.
(a) Use the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovative
Research (SBIR) Program, when technical data or computer software will
be generated during performance of contracts under the SBIR program.
(b) Under the clause at 252.227-7018, the Government obtains a
royalty-free license to use technical data marked with an SBIR data
rights legend only for government purposes during the period commencing
with contract award and ending five years after completion of the
project under which the data were generated. Upon expiration of the
five-year restrictive license, the Government has unlimited rights in
the SBIR data. During the license period, the Government may not
release or disclose SBIR data to any person other than its support
services contractors except--
(1) For evaluational purposes;
(2) As expressly permitted by the contractor; or
(3) A use, release, or disclosure that is necessary for emergency
repair or overhaul of items operated by the Government.
(c) Do not make any release or disclosure permitted by paragraph
(b) of this section unless, prior to release or disclosure, the
intended recipient is subject to the use and nondisclosure agreement at
227.7103-7.
(d) Use the clause at 252.227-7018 with its Alternate I in research
contracts when the contracting officer determines, in consultation with
counsel, that public dissemination by the contractor would be--
(1) In the interest of the Government; and
(2) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(e) Use the following provision and clauses in SBIR solicitations
and contracts that include the clause at 252.227-7018:
(1) 252.227-7016, Rights in Bid or Proposal Information;
(2) 252.227-7017, Identification and Assertion of Use, Release, or
Disclosure Restrictions;
(3) 252.227-7019, Validation of Asserted Restrictions--Computer
Software;
(4) 252.227-7030, Technical Data--Withholding of Payment;
(5) 252.227-7036, Certification of Technical Data Conformity; and
(6) 252.227-7037, Validation of Restrictive Markings on Technical
Data (paragraph (e) of the clause contains information that must be
included in a challenge).
(f) Use the following clauses and provision in SBIR solicitations
and contracts in accordance with the guidance at 227.7103-6 (c) and
(d):
(1) 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends; and
(2) 252.227-7028, Technical Data or Computer Software Previously
Delivered to the Government. [[Page 33481]]
227.7105 Contracts for the acquisition of existing works.
227.7105-1 General.
(a) Existing works include motion pictures, television recordings,
video recordings, and other audiovisual works in any medium; sound
recordings in any medium; musical, dramatic, and literary works;
pantomimes and choreographic works; pictorial, graphic, and sculptural
works; and works of a similar nature. Usually, these or similar works
were not first created, developed, generated, originated, prepared, or
produced under a Government contract. Therefore, the Government must
obtain a license in the work if it intends to reproduce the work,
distribute copies of the work, prepare derivative works, or perform or
display the work publicly. When the Government is not responsible for
the content of an existing work, it should require the copyright owner
to indemnify the Government for liabilities that may arise out of the
content, performance, use, or disclosure of such data.
(b) Follow the procedures at 227.7106 for works which will be first
created, developed, generated, originated, prepared, or produced under
a Government contract and the Government needs to control distribution
of the work or has a specific need to obtain indemnity for liabilities
that may arise out of the creation, content, performance, use, or
disclosure of the work or from libelous or other unlawful material
contained in the work. Follow the procedures at 227.7103 when the
Government does not need to control distribution of such works or
obtain such indemnities.
227.7105-2 Acquisition of existing works without modification
(a) Use the clause at 252.227-7021, Rights in Data--Existing Works,
in lieu of the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in solicitations and contracts exclusively for
existing works when--
(1) The existing works will be acquired without modification; and
(2) The Government requires the right to reproduce, prepare
derivative works, or publicly perform or display the existing works; or
(3) The Government has a specific need to obtain indemnity for
liabilities that may arise out of the content, performance, use, or
disclosure of such data.
(b) The clause at 252.227-7021 provides the Government, and others
acting on its behalf, a paid-up, non-exclusive, irrevocable, world-wide
license to reproduce, prepare derivative works and publicly perform or
display the works called for by a contract and to authorize others to
do so for government purposes.
(c) A contract clause is not required to acquire existing works
such as books, magazines and periodicals, in any storage or retrieval
medium, when the Government will not reproduce the books, magazines or
periodicals, or prepare derivative works.
227.7105-3 Acquisition of modified existing works.
Use the clause at 252.227-7020, Rights in Special Works, in
solicitations and contracts for modified existing works in lieu of the
clause at 252.227-7021, Rights in Data--Existing Works.
227.7106 Contracts for special works.
(a) Use the clause at 252.227-7020, Rights in Special Works, in
solicitations and contracts where the Government has a specific need to
control the distribution of works first produced, created, or generated
in the performance of a contract and required to be delivered under
that contract, including controlling distribution by obtaining an
assignment of copyright, or a specific need to obtain indemnity for
liabilities that may arise out of the creation, delivery, use,
modification, reproduction, release, performance, display, or
disclosure of such works. Use the clause--
(1) In lieu of the clause at 252.227-7013, Rights in Technical
Data--Noncommercial Items, when the Government must own or control
copyright in all works first produced, created, or generated and
required to be delivered under a contract; or
(2) In addition to the clause at 252.227-7013 when the Government
must own or control copyright in a portion of a work first produced,
created, or generated and required to be delivered under a contract.
The specific portion in which the Government must own or control
copyright must be identified in a special contract requirement.
(b) Although the Government obtains an assignment of copyright and
unlimited rights in a special work under the clause at 252.227-7020,
the contractor retains use and disclosure rights in that work. If the
Government needs to restrict a contractor's rights to use or disclose a
special work, it must also negotiate a special license which
specifically restricts the contractor's use or disclosure rights.
(c) The clause at 252.227-7020 does not permit a contractor to
incorporate into a special work any works copyrighted by others unless
the contractor obtains the contracting officer's permission to do so
and obtains for the Government a non-exclusive, paid up, world-wide
license to make and distribute copies of that work, to prepare
derivative works, to perform or display publicly any portion of the
work, and to permit others to do so for government purposes. Grant
permission only when the Government's requirements cannot be satisfied
unless the third party work is included in the deliverable work.
(d) Examples of works which may be procured under the Rights in
Special Works clause include, but are not limited, to audiovisual
works, computer data bases, computer software documentation, scripts,
soundtracks, musical compositions, and adaptations; histories of
departments, agencies, services or units thereof; surveys of Government
establishments; instructional works or guidance to Government officers
and employees on the discharge of their official duties; reports,
books, studies, surveys or similar documents; collections of data
containing information pertaining to individuals that, if disclosed,
would violate the right of privacy or publicity of the individuals to
whom the information relates; or investigative reports.
227.7101 Contracts for architect-engineer services.
This section sets forth policies and procedures, pertaining to
data, copyrights, and restricted designs unique to the acquisition of
construction and architect-engineer services.
227.7101-1 Architectural designs and data clauses for architect-
engineer or construction contracts.
(a) Except as provided in paragraph (b) of this subsection and in
227.7107-2, use the clause at 252.227-7022, Government Rights
(Unlimited), in solicitations and contracts for architect-engineer
services and for construction involving architect-engineer services.
(b) When the purpose of a contract for architect-engineer services,
or for construction involving architect-engineer services, is to obtain
a unique architectural design of a building, a monument, or
construction of similar nature, which for artistic, aesthetic or other
special reasons the Government does not want duplicated, the Government
may acquire exclusive control of the data pertaining to the design by
including the clause at 252.227-7023, Drawings and Other Data to Become
Property of Government, in solicitations and contracts. [[Page 33482]]
(c) The Government shall obtain unlimited rights in shop drawings
for construction. In solicitations and contracts calling for delivery
of shop drawings, include the clause at 252.227-7033, Rights in Shop
Drawings.
227.7102-2 Contracts for construction supplies and research and
development work.
Use the provisions and clauses required by 227-7103-6 and 227.7203-
6 when the acquisition is limited to--
(a) Construction supplies or materials;
(b) Experimental, developmental, or research work, or test and
evaluation studies of structures, equipment, processes, or materials
for use in construction; or
(c) Both.
227.7107-3 Approval of restricted designs.
The clause at 252.227-7024, Notice and Approval of Restricted
Designs, may be included in architect-engineer contracts to permit the
Government to make informed decisions concerning noncompetitive aspects
of the design.
227.7108 Contractor data repositories.
(a) Contractor data repositories may be established when permitted
by agency procedures. The contractual instrument establishing the data
repository must require, as a minimum, the data repository management
contractor to--
(1) Establish and maintain adequate procedures for protecting
technical data delivered to or stored at the repository from
unauthorized release or disclosure;
(2) Establish and maintain adequate procedures for controlling the
release or disclosure of technical data from the repository to third
parties consistent with the Government's rights in such data;
(3) When required by the contracting officer, deliver data to the
Government on paper or in other specified media;
(4) Be responsible for maintaining the currency of data delivered
directly by Government contractors or subcontractors to the repository;
(5) Obtain use and non-disclosure agreements (see 227.7103-7) from
all persons to whom government purpose rights data is released or
disclosed; and
(6) Indemnify the Government from any liability to data owners or
licensors resulting from, or as a consequence of, a release or
disclosure of technical data made by the data repository contractor or
its officers, employees, agents, or representatives.
(b) If the contractor is or will be the data repository manager,
the contractor's data management and distribution responsibilities must
be identified in the contract or the contract must reference the
agreement between the Government and the contractor that establishes
those responsibilities.
(c) If the contractor is not and will not be the data repository
manager, do not require a contractor or subcontractor to deliver
technical data marked with limited rights legends to a data repository
managed by another contractor unless the contractor or subcontractor
who has asserted limited rights agrees to release the data to the
repository or has authorized, in writing, the Government to do so.
(d) Repository procedures may provide for the acceptance, delivery,
and subsequent distribution of technical data in storage media other
than paper, including direct electronic exchange of data between two
computers. The procedures must provide for the identification of any
portions of the data provided with restrictive legends, when
appropriate. The acceptance criteria must be consistent with the
authorized delivery format.
Subpart 227.72--Rights in Computer Software and Computer Software
Documentation
7. A new subpart 227.72 is added to read as follows:
Subpart 227.72--Rights in Computer Software and Computer Software
Documentation
Sec.
227.7200 Scope of subpart.
227.7201 Definitions.
227.7202 Commercial computer software and commercial computer
software documentation.
227.7202-1 Policy.
227.7202-2 Obtaining commercial computer software or commercial
computer software documentation.
227.7202-3 Rights in commercial computer software or commercial
computer software documentation.
227.7202-4 Contract clause.
227.7203 Noncommercial computer software and noncommercial computer
software documentation.
227.7203-1 Policy.
227.7203-2 Acquisition of noncommercial computer software and
computer software documentation.
227.7203-3 Early identification of computer software or computer
software documentation to be furnished to the Government with
restrictions on use, reproduction or disclosure.
227.7203-4 License rights.
227.7203-5 Government rights.
227.7203-6 Contract clauses.
227.7203-7 Reserved.
227.7203-8 Deferred delivery and deferred ordering or computer
software and computer software documentation.
227.7203-9 Copyright.
227.7203-10 Contractor identification and marking of computer
software or computer software documentation to be furnished with
restrictive markings.
227.7203-11 Contractor procedures and records.
227.7203-12 Government right to establish conformity of markings.
227.7203-13 Government right to review, verify, challenge and
validate asserted restrictions.
227.7203-14 Conformity, acceptance, and warranty of computer
software and computer software documentation.
227.7203-15 Subcontractor rights in computer software or computer
software documentation.
227.7203-16 Providing computer software or computer software
documentation to foreign governments, foreign contractors, or
international organizations.
227.7203-17 Overseas contracts with foreign sources.
227.7204 Contracts under the Small Business Innovative Research
Program.
227.7205 Contracts for special works.
227.7206 Contracts for architect-engineer services.
227.7207 Contractor data repositories.
Subpart 227.72--Rights in Computer Software and Computer Software
Documentation
227.7200 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures for the acquisition of
computer software and computer software documentation, and the rights
to use, modify, reproduce, release, perform, display, or disclose such
software or documentation. It implements requirements in the following
laws and Executive Order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305 (subsection (d)(4)).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 2325.
(6) Executive Order 12591 (subsection 1(b)(6)).
(b) Does not apply to computer software or computer software
documentation acquired under GSA schedule contracts.
227.7201 Definitions.
(a) As used in this subpart, unless otherwise specifically
indicated, the terms ``offeror'' and ``contractor'' include an
offeror's or contractor's subcontractors, suppliers, or potential
subcontractors or suppliers at any tier.
(b) Other terms used in this subpart are defined in the clause at
252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation. [[Page 33483]]
227.7202 Commercial computer software and commercial computer software
documentation.
227.7202-1 Policy.
(a) Commercial computer software or commercial computer software
documentation shall be acquired under the licenses customarily provided
to the public unless such licenses are inconsistent with Federal
procurement law or do not otherwise satisfy user needs.
(b) Commercial computer software and commercial computer software
documentation shall be obtained competitively, to the maximum extent
practicable, using firm-fixed-price contracts or firm-fixed-priced
orders under available pricing schedules.
(c) Offerors and contractors shall not be required to--
(1) Furnish technical information related to commercial computer
software or commercial computer software documentation that is not
customarily provided to the public except for information documenting
the specific modifications made at Government expense to such software
or documentation to meet the requirements of a Government solicitation;
or
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release, perform, display, or disclose
commercial computer software or commercial computer software
documentation except for a transfer of rights mutually agreed upon.
227.7202-2 Obtaining commercial computer software or commercial
computer software documentation.
Commercial computer software or commercial computer software
documentation shall be acquired, to the maximum extent practicable,
using the procedures in subpart 211.70.
227.7202-3 Rights in commercial computer software or commercial
computer software documentation.
(a) The Government shall have only the rights specified in the
license under which the commercial computer software or commercial
computer software documentation was obtained.
(b) If the Government has a need for rights not conveyed under the
license customarily provided to the public, the Government must
negotiate with the contractor to determine if there are acceptable
terms for transferring such rights. The specific rights granted to the
Government shall be enumerated in the contract license agreement or an
addendum thereto.
227.7202-4 Contract clause.
A specific contract clause governing the Government's rights in
commercial computer software or commercial computer software
documentation is not prescribed. As required by 227.7202-3, the
Government's rights to use, modify, reproduce, release, perform,
display, or disclose computer software or computer software
documentation shall be identified in a license agreement.
227.7203 Noncommercial computer software and noncommercial computer
software documentation.
227.7203-1 Policy.
(a) DoD policy is to acquire only the computer software and
computer software documentation, and the rights in such software or
documentation, necessary to satisfy agency needs.
(b) Solicitations and contracts shall--
(1) Specify the computer software or computer software
documentation to be delivered under a contract and the delivery
schedules for the software or documentation;
(2) Establish or reference procedures for determining the
acceptability of computer software or computer software documentation;
(3) Establish separate contract line items, to the extent
practicable, for the computer software or computer software
documentation to be delivered under a contract and require offerors and
contractors to price separately each deliverable data item; and
(4) Require offerors to identify, to the extent practicable,
computer software or computer software documentation to be furnished
with restrictions on the Government's rights and require contractors to
identify computer software or computer software documentation to be
delivered with such restrictions prior to delivery.
(c) Offerors shall not be required, either as a condition of being
responsive to a solicitation or as a condition for award, to sell or
otherwise relinquish to the Government any rights in computer software
developed exclusively at private expense except for the software
identified at 227.7203-5(a) (3) through (6).
(d) Offerors and contractors shall not be prohibited or discouraged
from furnishing or offering to furnish computer software developed
exclusively at private expense solely because the Government's rights
to use, modify, release, reproduce, perform, display, or disclose the
software may be restricted.
227.7203-2 Acquisition of noncommercial computer software and computer
software documentation.
(a) Contracting officers shall work closely with data managers and
requirements personnel to assure that computer software and computer
software documentation requirements included in solicitations are
consistent with the policy expressed in 227.7203-1.
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's minimum needs. In addition
to desired software performance, compatibility, or other technical
considerations, needs determinations should consider such factors as
multiple site or shared use requirements, whether the Government's
software maintenance philosophy will require the right to modify or
have third parties modify the software, and any special computer
software documentation requirements.
(2) When reviewing offers received in response to a solicitation or
other request for computer software or computer software documentation,
data managers must balance the original assessment of the Government's
needs with prices offered.
(c) Contracting officers are responsible for ensuring that,
wherever practicable, solicitations and contracts--
(1) Identify the types of computer software and the quantity of
computer programs and computer software documentation to be delivered,
any requirements for multiple users at one site or multiple site
licenses, and the format and media in which the software or
documentation will be delivered;
(2) Establish each type of computer software or computer software
documentation to be delivered as a separate contract line item (this
requirement may be satisfied by an exhibit to the contract);
(3) Identify the prices established for each separately priced
deliverable item of computer software or computer software
documentation under a fixed-price type contract;
(4) Include delivery schedules and acceptance criteria for each
deliverable item; and
(5) Specifically identify the place of delivery for each
deliverable item.
227.7203-3 Early identification of computer software or computer
software documentation to be furnished to the Government with
restrictions on use, reproduction or disclosure.
(a) Use the provision at 252.227-7017, Identification and Assertion
of Use, Release, or Disclosure Restrictions, in all solicitation that
include the clause at [[Page 33484]] 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation. The provision requires offerors to identify any computer
software or computer software documentation for which restrictions,
other than copyright, on use, modification, reproduction, release,
performance, display, or disclosure are asserted and to attach the
identification and assertion to the offer.
(b) Subsequent to contract award, the clause at 252.227-7014
permits a contractor, under certain conditions, to make additional
assertions of restrictions. The prescriptions for the use of that
clause and its alternates are at 227.7203-6(a).
227.7203-4 License rights.
(a) Grant of license. The Government obtains rights in computer
software or computer software documentation, including a copyright
license, under an irrevocable license granted or obtained by the
contractor which developed the software or documentation or the
licensor of the software or documentation if the development contractor
is not the licensor. The contractor or licensor retains all rights in
the software or documentation not granted to the Government. The scope
of a computer software license is generally determined by the source of
funds used to develop the software. Contractors or licensors may, with
some exceptions, restrict the Government's rights to use, modify,
reproduce, release, perform, display, or disclose computer software
developed exclusively or partially at private expense (see 227.7203-5
(b) and (c)). They may not, without the Government's agreement (see
227.7203-5(d)), restrict the Government's rights in computer software
developed exclusively with Government funds or in computer software
documentation required to be delivered under a contract.
(b) Source of funds determination. The determination of the source
of funds used to develop computer software should be made at the lowest
practicable segregable portion of the software or documentation (e.g.,
a software sub-routine that performs a specific function). Contractors
may assert restricted rights in a segregable portion of computer
software which otherwise qualifies for restricted rights under the
clause at 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
227.7203-5 Government rights.
The standard license rights in computer software that a licensor
grants to the Government are unlimited rights, government purpose
rights, or restricted rights. The standard license in computer software
documentation conveys unlimited rights. Those rights are defined in the
clause at 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation. In unusual situations,
the standard rights may not satisfy the Government's needs or the
Government may be willing to accept lesser rights in return for other
consideration. In those cases, a special license may be negotiated.
However, the licensor is not obligated to provide the Government
greater rights and the contracting officer is not required to accept
lesser rights than the rights provided in the standard grant of
license. The situations under which a particular grant of license
applies are enumerated in paragraphs (a) through (d) of this
subsection.
(a) Unlimited rights. The Government obtains an unlimited rights
license in--
(1) Computer software developed exclusively with Government funds;
(2) Computer software documentation required to be delivered under
a Government contract;
(3) Corrections or changes to computer software or computer
software documentation furnished to the contractor by the Government;
(4) Computer software or computer software documentation that is
otherwise publicly available or has been released or disclosed by the
contractor or subcontractor without restrictions on further use,
release or disclosure other than a release or disclosure resulting from
the sale, transfer, or other assignment of interest in the software to
another party or the sale or transfer of some or all of a business
entity or it assets to another party;
(5) Computer software or computer software documentation obtained
with unlimited rights under another Government contract or as a result
of negotiations; or
(6) Computer software or computer software documentation furnished
to the Government, under a Government contract or subcontract with--
(i) Restricted rights in computer software, limited rights in
technical data, or government purpose license rights and the
restrictive conditions have expired; or
(ii) Government purpose rights and the contractor's exclusive right
to use such software or documentation for commercial purposes has
expired.
(b) Government purpose rights. (1) Except as provided in paragraph
(a) of this subsection, the Government obtains government purpose
rights in computer software developed with mixed funding.
(2) The period during which government purpose rights are effective
is negotiable. The clause at 252.227-7014 provides a nominal five-year
period. Either party may request a different period. Changes to the
government purpose rights period may be made at any time prior to
delivery of the software without consideration from either party.
Longer periods should be negotiated when a five-year period does not
provide sufficient time to commercialize the software or, for software
developed by subcontractors, when necessary to recognize the
subcontractors' interests in the software.
(3) The government purpose rights period commences upon execution
of the contract, subcontract, letter contract (or similar contractual
instrument), contract modification, or option exercise that required
development of the computer software. Upon expiration of the government
purpose rights period, the Government has unlimited rights in the
software including the right to authorize others to use data for
commercial purposes.
(4) During the government purpose rights period, the Government may
not use, or authorize other persons to use, computer software marked
with government purpose rights legends for commercial purposes. The
Government shall not release or disclose, or authorize others to
release or disclose, computer software in which it has government
purpose rights to any person unless--
(i) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227.7103-7; or
(ii) The intended recipient is a Government contractor receiving
access to the software for performance of a Government contract that
contains the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information Marked with Restrictive
Legends.
(5) When computer software marked with government purpose rights
legends will be released or disclosed to a Government contractor
performing a contract that does not include the clause at 252.227-7025,
the contract may be modified, prior to release or disclosure, to
include such clause in lieu of requiring the contractor to complete a
use and non-disclosure agreement.
(6) Contracting activities shall establish procedures to assure
that computer software or computer software documentation marked with
government purpose rights legends are released or disclosed, including
a [[Page 33485]] release or disclosure through a Government
solicitation, only to persons subject to the use and non-disclosure
restrictions. Public announcements in the Commerce Business Daily or
other publications must provide notice of the use and non-disclosure
requirements. Class use and non-disclosure agreements (e.g., agreements
covering all solicitations received by the XYZ company within a
reasonable period) are authorized and may be obtained at any time prior
to release or disclosure of the government purpose rights software or
documentation. Documents transmitting government purpose rights
software or documentation to persons under class agreements shall
identify the specific software or documentation subject to government
purpose rights and the class agreement under which such software or
documentation are provided.
(c) Restricted rights. (1) The Government obtains restricted rights
in noncommercial computer software required to be delivered or
otherwise provided to the Government under a contract that were
developed exclusively at private expense.
(2) Contractors are not required to provide the Government
additional rights in computer software delivered or otherwise provided
to the Government with restricted rights. When the Government has a
need for additional rights, the Government must negotiate with the
contractor to determine if there are acceptable terms for transferring
such rights. List or describe all software in which the contractor has
granted the Government additional rights in a license agreement made
part of the contract (see paragraph (d) of this subsection). The
license shall enumerate the specific additional rights granted to the
Government.
(d) Specifically negotiated license rights. Negotiate specific
licenses when the parties agree to modify the standard license rights
granted to the Government or when the Government wants to obtain rights
in computer software in which it does not have rights. When negotiating
to obtain, relinquish, or increase the Government's rights in computer
software, consider the planned software maintenance philosophy,
anticipated time or user sharing requirements, and other factors which
may have relevance for a particular procurement. If negotiating to
relinquish rights in computer software documentation, consider the
administrative burden associated with protecting documentation subject
to restrictions from unauthorized release or disclosure. The negotiated
license rights must stipulate the rights granted the Government to use,
modify, reproduce, release, perform, display, or disclose the software
or documentation and the extent to which the Government may authorize
others to do so. Identify all negotiated rights in a license agreement
made part of the contract.
(e) Rights in derivative computer software or computer software
documentation. The clause at 252.227-7014 protects the Government's
rights in computer software, computer software documentation, or
portions thereof that the contractor subsequently uses to prepare
derivative software or subsequently embeds or includes in other
software or documentation. The Government retains the rights it
obtained under the development contract in the unmodified portions of
the derivative software or documentation.
227.7203-6 Contract clauses.
(a)(1) use the clause at 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation, in
solicitations and contracts when the successful offeror(s) will be
required to deliver computer software or computer software
documentation. Do not use the clause when the only deliverable items
are technical data (other than computer software documentation),
commercial computer software or commercial computer software
documentation, commercial items (see 227.7102-3), special works (see
227.7205), or contracts under the Small Business Innovative Research
Program (see 227.7104), Except as provided in 227.7107-2, do not use
the clause in architect-engineer and construction contracts..
(2) Use the clause at 252.227-7014 with its Alternate I in research
contracts when the contracting officer determines, in consultation with
counsel, that public dissemination by the contractor would be--
(i) In the interest of the Government; and
(ii) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(b) Use the clause at 252.227-7016, Rights in Bid or Proposal
Information, in solicitations and contracts that include the clause at
252.227-7014.
(c) Use the clause at 252.227-7019, Validation of Asserted
Restrictions--Computer Software, in solicitations and contracts that
include the clause at 252.227-7014. The clause provides procedures for
the validation of asserted restrictions on the Government's rights to
use, release, or disclose computer software.
(d) Use the provision at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information Marked with Restrictive
Legends, in solicitations and contracts when it is anticipated that the
Government will provide the contractor, for performance of its
contract, computer software or computer software documentation marked
with another contractor's restrictive legend(s).
(e) Use the provision at 252.227-7028, Technical Data or Computer
Software Previously Delivered to the Government, in solicitations when
the resulting contract will require the contractor to deliver computer
software or computer software documentation. The provision requires
offerors to identify any software or documentation specified in the
solicitation as deliverable items that are the same or substantially
the same as software or documentation which the offeror has delivered
or is obligated to deliver, either as a contractor or subcontractor,
under any other federal agency contract.
(f) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, in solicitations and contracts that include
the clause at 252.227-7014 when the contractor will be required to
deliver noncommercial computer software documentation (technical data).
The clause implements statutory requirements under 10 U.S.C. 2321.
Paragraph (e) of the clause contains information that must be included
in a formal challenge.
227.7203-7 [Reserved]
227.7203-8 Deferred delivery and deferred ordering of computer
software and computer software documentation.
(a) Deferred delivery. Use the clause at 252.227-7026, Deferred
Delivery of Technical Data or Computer Software, when it is in the
Government's interests to defer the delivery of computer software or
computer software documentation. The clause permits the contracting
officer to require the delivery of data identified as ``deferred
delivery'' data or computer software at any time until two years after
acceptance by the Government of all items (other than technical data or
computer software) under the contract or contract termination,
whichever is later. The obligation of subcontractors or suppliers to
deliver such data expires two years after the date the prime contractor
accepts the last item from the subcontractor or supplier for use in the
performance of the contract. The contract must specify the computer
[[Page 33486]] software or computer software documentation that is
subject to deferred delivery. The contracting officer shall notify the
contractor sufficiently in advance of the desired delivery date for
such software or documentation to permit timely delivery.
(b) Deferred ordering. Use the clause at 252.227-7027, Deferred
Ordering of Technical Data or Computer Software, when a firm
requirement for software or documentation has not been established
prior to contract award but there is a potential need for computer
software or computer software documentation. Under this clause the
contracting officer may order any computer software or computer
software documentation generated in the performance of the contract or
any subcontract thereunder at any time until three years after
acceptance of all items (other than technical data or computer
software) under the contract or contract termination, whichever is
later. The obligation of subcontractors to deliver such technical data
or computer software expires three years after the date the contractor
accepts the last item under the subcontract. When the software or
documentation are ordered, the delivery dates shall be negotiated and
the contractor compensated only for converting the software or
documentation into the prescribed form, reproduction costs, and
delivery costs.
227.7203-9 Copyright.
(a) Copyright license. (1) The clause at 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation, requires a contractor to grant, or obtain for the
Government license rights which permit the Government to reproduce the
software or documentation, distribute copies, perform or display the
software or documentation and, through the right to modify data,
prepare derivative works. The extent to which the Government, and
others acting on its behalf, may exercise these rights varies for each
of the standard data rights licenses obtained under the clause. When
non-standard license rights in computer software or computer software
documentation will be negotiated, negotiate the extent of the copyright
license concurrent with negotiations for the data rights license. Do
not negotiate copyright licenses for computer software that provide
less rights than the standard restricted rights in computer software
license. For computer software documentation, do not negotiate a
copyright license that provides less rights than the standard limited
rights in technical data license.
(2) The clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, does not permit a contractor to incorporate a
third party's copyrighted software into a deliverable software item
unless the contractor has obtained an appropriate license for the
Government and, when applicable, others acting on the Government's
behalf, or has obtained the contracting officer's written approval to
do so. Grant approval to use third party copyrighted software in which
the Government will not receive a copyright license only when the
Government's requirements cannot be satisfied without the third party
material or when the use of the third party material will result in
cost savings to the Government which outweigh the lack of a copyright
license.
(b) Copyright considerations--special works. See 227.7205 for
copyright considerations when acquiring special works.
227.7203-10 Contractor identification and marking of computer software
or computer software documentation to be furnished with restrictive
markings.
(a) Identification requirements: (1) The solicitation provision at
252.227-7017, Identification and Assertion of Use, Release, or
Disclosure Restrictions, requires offerors to identify, prior to
contract award, any computer software or computer software
documentation that an offeror asserts should be provided to the
Government with restrictions on use, modification, reproduction,
release or disclosure. This requirement does not apply to restrictions
based solely on copyright. The notification and identification must be
submitted as an attachment to the offer. If an offeror fails to submit
the attachment or fails to complete the attachment in accordance with
the requirements of the solicitation provision, such failure shall
constitute a minor informality. Provide offerors an opportunity to
remedy a minor informality in accordance with the procedures at FAR
14.405 or 15.607. An offeror's failure to correct an informality within
the time prescribed by the contracting officer shall render the offer
ineligible for award.
(2) The procedures for correcting minor informalities shall not be
used to obtain information regarding asserted restrictions or an
offeror's suggested asserted rights category. Questions regarding the
justification for an asserted restriction or asserted rights category
must be pursued in accordance with the procedures at 227.7203-13.
(3) The restrictions asserted by a successful offeror shall be
attached to its contract unless, in accordance with the procedures at
227.7203-13, the parties have agreed that an asserted restriction is
not justified. The contract attachment shall provide the same
information regarding identification of the computer software or
computer software documentation, the asserted rights category, the
basis for the assertion, and the name of the person asserting the
restrictions as required by paragraph (d) of the solicitation provision
at 252.227-7017. Subsequent to contract award, the clause at 252.227-
7014, Rights in Noncommercial Computer Software and Noncommercial
Computer Software Documentation, permits a contractor to make
additional assertions under certain conditions. The additional
assertions must be made in accordance with the procedures and in the
format prescribed by that clause.
(4) Neither the pre- or post-award assertions made by the
contractor nor the fact that certain assertions are identified in the
attachment to the contract, determine the respective rights of the
parties. As provided at 227.7203-13, the Government has the right to
review, verify, challenge and validate restrictive markings.
(5) Information provided by offerors in response to the
solicitation provision at 252.227-7017 may be used in the source
selection process to evaluate the impact on evaluation factors that may
be created by restrictions on the Government's ability to use or
disclose computer software or computer software documentation.
(b) Contractor marking requirements. The clause at 252.227-7014,
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation--
(1) Requires a contractor who desires to restrict the Government's
rights in computer software or computer software documentation to place
restrictive markings on the software or documentation, provides
instructions for the placement of the restrictive markings, and
authorizes the use of certain restrictive markings. When it is
anticipated that the software will or may be used in combat or
situations which simulate combat conditions, do not permit contractors
to insert instructions into computer programs that interfere with or
delay operation of the software to display a restrictive rights legend
or other license notice; and
(2) Requires a contractor to deliver, furnish, or otherwise provide
to the Government any computer software or computer software
documentation in which the Government has previously obtained rights
with the Government's pre-existing rights in that software or
documentation unless the parties have [[Page 33487]] agreed otherwise
or restrictions on the Government's rights to use, modify, produce,
release, or disclose the software or documentation have expired. When
restrictions are still applicable, the contractor is permitted to mark
the software or documentation with the appropriate restrictive legend.
(c) Unmarked computer software or computer software documentation.
(1) Computer software or computer software documentation delivered or
otherwise provided under a contract without restrictive markings shall
be presumed to have been delivered with unlimited rights and may be
released or disclosed without restriction. To the extent practicable,
if a contractor has requested permission (see paragraph (c)(2) of this
subsection) to correct an inadvertent omission of markings, do not
release or disclose the software or documentation pending evaluation of
the request.
(2) A contractor may request permission to have appropriate legends
placed on unmarked computer software or computer software documentation
at its expense. The request must be received by the contracting officer
within six months following the furnishing or delivery of such software
or documentation, or any extension of that time approved by the
contracting officer. The person making the request must--
(i) Identify the software or documentation that should have been
marked;
(ii) Demonstrate that the omission of the marking was inadvertent,
the proposed marking is justified and conforms with the requirements
for the marking of computer software or computer software documentation
contained in the clause at 252.227-7014; and
(iii) Acknowledge, in writing, that the Government has no liability
with respect to any disclosure, reproduction, or use of the software or
documentation made prior to the addition of the marking or resulting
from the omission of the marking.
(3) Contracting officers should grant permission to mark only if
the software or documentation were not distributed outside the
Government or were distributed outside the Government with restrictions
on further use or disclosure.
227.7203-11 Contractor procedures and records.
(a) The clause at 252.227-7014, Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation, requires a
contractor, and its subcontractors or suppliers that will deliver
computer software or computer software documentation with other than
unlimited rights, to establish and follow written procedures to assure
that restrictive markings are used only when authorized and to maintain
records to justify the validity of restrictive markings.
(b) The clause at 252.227-7019, Validation of Asserted
Restrictions--Computer Software, requires contractors and their
subcontractors or suppliers at any tier to maintain records sufficient
to justify the validity of markings that assert restrictions on the
use, modification, reproduction, release, performance, display, or
disclosure of computer software.
227.7203-12 Government right to establish conformity of markings.
(a) Nonconforming markings. (1) Authorized markings are identified
in the clause at 252.227-7014, Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation. All other
markings are nonconforming markings. An authorized marking that is not
in the form, or differs in substance, from the marking requirements in
the clause at 252.227-7014 is also a nonconforming marking.
(2) The correction of nonconforming markings on computer software
is not subject to 252.227-7019, Validation of Asserted Restrictions--
Computer Software, and the correction of nonconforming markings on
computer software documentation (technical data) is not subject to
252.227-7037, Validation of Restrictive Markings on Technical Data. To
the extent practicable, the contracting officer should return computer
software or computer software documentation bearing nonconforming
markings to the person who has placed the nonconforming markings on the
software or documentation to provide that person an opportunity to
correct or strike the nonconforming markings at that person's expense.
If that person fails to correct the nonconformity and return the
corrected software or documentation within 60 days following the
person's receipt of the software or documentation, the contracting
officer may correct or strike the nonconformity at the person's
expense. When it is impracticable to return computer software or
computer software documentation for correction, contracting officers
may unilaterally correct any nonconforming markings at Government
expense. Prior to correction, the software or documentation may be used
in accordance with the proper restrictive marking.
(b) Unjustified markings. (1) An unjustified marking is an
authorized marking that does not depict accurately restrictions
applicable to the Government's use, modification, reproduction,
release, or disclosure of the marked computer software or computer
software documentation. For example, a restricted rights legend placed
on computer software developed under a Government contract either
exclusively at Government expense or with mixed funding (situations
under which the Government obtains unlimited or government purpose
rights) is an unjustified marking.
(2) Contracting officers have the right to review and challenge the
validity of unjustified markings. However, at any time during
performance of a contract and notwithstanding existence of a challenge,
the contracting officer 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,
either----
(i) Strike or correct the unjustified marking at that person's
expense; or
(ii) Return the computer software or computer software
documentation to the person asserting the restriction for correction at
that person's expense. If the software or documentation are returned
and that person fails to correct or strike the unjustified restriction
and return the corrected software or documentation to the contracting
officer within 60 days following receipt of the software or
documentation, the unjustified marking shall be corrected or stricken
at that person's expense.
227.7203-13 Government right to review, verify, challenge and validate
asserted restrictions.
(a) General. An offeror's or contractor's assertion(s) of
restrictions on the Government's rights to use, modify, reproduce,
release, or disclose computer software or computer software
documentation do not, by themselves, determine the extent of the
Government's rights in such software or documentation. The Government
may require an offeror or contractor to submit sufficient information
to permit an evaluation of a particular asserted restriction and may
challenge asserted restrictions when there are reasonable grounds to
believe that an assertion is not valid.
(b) Requests for information. Contracting officers should have a
reason to suspect that an asserted restriction might not be correct
prior to requesting information. When [[Page 33488]] requesting
information, provide the offeror or contractor the reason(s) for
suspecting that an asserted restriction might not be correct. A need
for additional license rights is not, by itself, a sufficient basis for
requesting information concerning an asserted restriction. Follow the
procedures at 227.7203-5(d) when additional license rights are needed
but there is no basis to suspect that an asserted restriction might not
be valid.
(c) Transacting matters directly with subcontractors. The clause at
252.227-7019, Validation of Asserted Restrictions--Computer Software,
obtains the contractor's agreement that the Government may transact
matters under the clause directly with a subcontractor or supplier, at
any tier, without creating or implying privity of contract. Contracting
officers should permit a subcontractor or supplier to transact
challenge and validation matters directly with the Government when--
(1) A subcontractor's or supplier's business interests in its
technical data would be compromised if the data were disclosed to a
higher tier contractor.
(2) There is reason to believe that the contractor will not respond
in a timely manner to a challenge and an untimely response would
jeopardize a subcontractor's or supplier's right to assert
restrictions; or
(3) Requested to do so by a subcontractor or supplier.
(d) Challenging asserted restrictions. (1) Pre-award
considerations. The challenge procedures in the clause at 252.227-7019
could significantly delay competitive procurements. Therefore, avoid
challenging asserted restrictions prior to a competitive contract award
unless resolution of the assertion is essential for successful
completion of the procurement.
(2) Computer software documentation. Computer software
documentation is technical data. Challenges to asserted restrictions on
the Government's rights to use, modify, reproduce, release, perform,
display, or disclose computer software documentation must be made in
accordance with the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, and the guidance at 227.7103-13. The
procedures in the clause at 252.227-7037 implement requirements
contained in 10 U.S.C. 2321. Resolution of questions regarding the
validity of asserted restrictions using the process described at
227.7103-12(b)(2) is strongly encouraged.
(3) Computer software. (i) Asserted restrictions should be reviewed
before acceptance of the computer software deliverable under a
contract. The Government's right to challenge an assertion expires
three years after final payment under the contract or three years after
delivery of the software, whichever is later. Those limitations on the
Government's challenge rights do not apply to software that is publicly
available, has been furnished to the Government without restrictions,
or has been otherwise made available without restrictions.
(ii) Contracting officers must have reasonable grounds to challenge
the current validity of an asserted restriction. Before challenging an
asserted restriction, carefully consider all available information
pertaining to the asserted restrictions. Resolution of questions
regarding the validity of asserted restrictions using the process
described at 227.7203-12(b)(2) is strongly encouraged. After
consideration of the situations described in paragraph (c) of this
subsection, contracting officers may request the person asserting a
restriction to furnish a written explanation of the facts and
supporting documentation for the assertion in sufficient detail to
enable the contracting officer to determine the validity of the
assertion. Additional supporting documentation may be requested when
the explanation provided by that person does not, in the contracting
officer's opinion, establish the validity of the assertion.
(iii) Assertions may be challenged whether or not supporting
documentation was requested. Challenges must be in writing and issued
to the person asserting the restriction.
(4) Extension of response time. The contracting officer, at his or
her discretion, may extend the time for response contained in a
challenge, as appropriate, if the contractor submits a timely written
request showing the need for additional time to prepare a response.
(e) Validating or denying asserted restrictions. (1) Contracting
officers must promptly issue a final decision denying or sustaining the
validity of each challenged assertion unless the parties have agreed on
the disposition of the assertion. When a final decision denying the
validity of an asserted restriction is made following a timely response
to a challenge, the Government is obligated to continue to respect the
asserted restrictions through final disposition of any appeal unless
the agency head notifies the person asserting the restriction that
urgent or compelling circumstances do not permit the Government to
continue to respect the asserted restriction. See 252.227-7019(g) for
restrictions applicable following a determination of urgent and
compelling circumstances.
(2) Only a contracting officer's final decision, or actions of an
agency Board of Contract Appeals or a court of competent jurisdiction,
that sustain the validity of an asserted restriction constitute
validation of the restriction.
(f) Multiple challenges to an asserted restriction. When more than
one contracting officer challenges an asserted restriction, the
contracting officer who made the earliest challenge is responsible for
coordinating the Government challenges. That contracting officer shall
consult with all other contracting officers making challenges, verify
that all challenges apply to the same asserted restriction and, after
consulting with the contractor, subcontractor, or supplier asserting
the restriction, issue a schedule that provides that person a
reasonable opportunity to respond to each challenge.
227.7203-14 Conformity, acceptance, and warranty of computer software
and computer software documentation.
(a) Computer software documentation. Computer software
documentation is technical data. See 227.7103-14 for appropriate
guidance and statutory requirements.
(b) Computer software. (1) Conformity and acceptance. Solicitations
and contracts requiring the delivery of computer software shall specify
the requirements the software must satisfy to be acceptable.
Contracting officers, or their authorized representatives, are
responsible for determining whether computer software tendered for
acceptance conforms to the contractual requirements. Except for
nonconforming restrictive markings (follow the procedures at 227.7203-
12(a) if nonconforming markings are the sole reason computer software
tendered for acceptance fails to conform to contractual requirements),
do not accept software that does not conform in all respects to
applicable contractual requirements. Correction or replacement of
nonconforming software, or an equitable reduction in contract price
when correction or replacement of the nonconforming data is not
practicable or is not in the Government's interests, shall be
accomplished in accordance with--
(i) The provisions of a contract clause providing for inspection
and acceptance of deliverables and remedies for nonconforming
deliverables; or
(ii) The procedures at FAR 46.407(c) through (g), if the contract
does not contain an inspection clause providing [[Page 33489]] remedies
for nonconforming deliverables.
(2) Warranties. (i) Weapon systems. Computer software that is a
component of a weapon system or major subsystem should be warranted as
part of the weapon system warranty. Follow the procedures at 246.770.
(ii) Non-weapon systems. Approval of the chief of the contracting
office must be obtained to use a computer software warranty other than
a weapon system warranty. Consider the factors at FAR 46.703 in
deciding whether to obtain a computer software warranty. When approval
for a warranty has been obtained, the clause at 252.246-7001, Warranty
of Data, and its alternates, may be appropriately modified for use with
computer software or a procurement specific clause may be developed.
227.7203-15 Subcontractor rights in computer software or computer
software documentation.
(a) Subcontractors and suppliers at all tiers should be provided
the same protection for their rights in computer software or computer
software documentation as are provided to prime contractors.
(b) The clauses at 252.227-7019, Validation of Asserted
Restrictions--Computer Software, and 252.227-7037, Validation of
Restrictive Markings on Technical Data, obtain a contractor's agreement
that the Government's transaction of validation or challenge matters
directly with subcontractors at any tier does not establish or imply
privity of contract. When a subcontractor or supplier exercises its
right to transact validation matters directly with the Government,
contracting officers shall deal directly with such persons, as provided
at 227.7203-13(c) for computer software and 227.7103-13(c)(3) for
computer software documentation (technical data).
(c) Require prime contractors whose contracts include the following
clauses to include those clauses, without modification except for
appropriate identification of the parties, in contracts with
subcontractors or suppliers who will be furnishing computer software in
response to a Government requirement (see 227.7103-15(c) for clauses
required when subcontractors or suppliers will be furnishing computer
software documentation (technical data)):
(1) 252.227.7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation;
(2) 252.227.7019, Validation of Asserted Restrictions--Computer
Software;
(3) 252.227.7025, Limitations on the Use or Disclosure of
Government Furnished Information Marked with Restrictive Legends; and
(4) 252.227.7028, Technical Data or Computer Software Previously
Delivered to the Government.
(d) Do not require contractors to have their subcontractors or
suppliers at any tier relinquish rights in technical data to the
contractor, a higher tier subcontractor, or to the Government, as a
condition for award of any contract, subcontract, purchase order, or
similar instrument except for the rights obtained by the Government
under the provisions of the Rights in Noncommercial Computer Software
and Noncommercial Computer Software Documentation clause contained in
the contractor's contract with the Government.
227.7203-16 Providing computer software or computer software
documentation to foreign governments, foreign contractors, or
international organizations.
Computer software or computer software documentation may be
released or disclosed to foreign governments, foreign contractors, or
international organizations only if release or disclosure is otherwise
permitted both by Federal export controls and other national security
laws or regulations. Subject to such laws and regulations, the
Department of Defense--
(a) May release or disclose computer software or computer software
documentation in which it has obtained unlimited rights to such foreign
entities or authorize the use of such data by those entities; and
(b) Shall not release or disclose computer software or computer
software documentation for which restrictions on use, release, or
disclosure have been asserted to such foreign entities or authorize the
use of such data by those entities, unless the intended recipient is
subject to the same provisions as included in the use and non-
disclosure agreement at 227.7103-7 and the requirements of the clause
at 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation, governing use,
modification, reproduction, release, performance, display, or
disclosure of such data have been satisfied.
227.7203-17 Overseas contracts with foreign sources.
(a) The clause at 252.227-7032, Rights in Technical Data and
Computer Software (Foreign), may be used in contracts with foreign
contractors to be performed overseas, except Canadian purchases (see
paragraph (c) of this subsection) in lieu of the clause at 252.227-
7014, Rights in Noncommercial Computer Software and Noncommercial
Computer Software Documentation, when the Government requires the
unrestricted right to use, modify, reproduce, release, perform,
display, or disclose all computer software or computer software
documentation to be delivered under the contract. Do not use the clause
in contracts for special works.
(b) When the Government does not require unlimited rights, the
clause at 252.227-7032 may be modified to accommodate the needs of a
specific overseas procurement situation. The Government should obtain
rights to the computer software or computer software documentation that
are not less than the rights the Government would have obtained under
the software rights clause(s) prescribed in this part for a comparable
procurement performed within the United States or its possessions.
(c) Contracts for Canadian purchases shall include the appropriate
software rights clause prescribed in this part for a comparable
procurement performed within the United States or its possessions.
227.7204 Contracts under the Small Business Innovative Research
Program.
When contracting under the Small Business Innovative Research
Program, follow the procedures at 227-7104.
227.7205 Contracts for special works.
(a) Use the clause at 252.227-7020, Rights in Special Works, in
solicitations and contracts where the Government has a specific need to
control the distribution of computer software or computer software
documentation first produced, created, or generated in the performance
of a contract and required to be delivered under that contract,
including controlling distribution by obtaining an assignment of
copyright, or a specific need to obtain indemnity for liabilities that
may arise out of the creation, delivery, use, modification,
reproduction, release, performance, display, or disclosure of such
software or documentation. Use the clause--
(1) In lieu of the clause at 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
when the Government must own or control copyright in all computer
software or computer software documentation first produced, created, or
generated and required to be delivered under a contract;
or [[Page 33490]]
(2) In addition to the clause at 252.227-7014 when the Government
must own or control copyright in some of the computer software or
computer software documentation first produced, created, or generated
and required to be delivered under a contract. The specific software or
documentation in which the Government must own or control copyright
must be identified in a special contract requirement.
(b) Although the Government obtains an assignment of copyright and
unlimited rights in the computer software or computer software
documentation delivered as a special work under the clause at 252.227-
7020, the contractor retains use and disclosure rights in that software
or documentation. If the Government needs to restrict a contractor's
rights to use or disclose a special work, it must also negotiate a
special license which specifically restricts the contractor's use or
disclosure rights.
(c) The clause at 252.227-7020 does not permit a contractor to
incorporate into a special work any work copyrighted by others unless
the contractor obtains the contracting officer's permission to do so
and obtains for the Government a non-exclusive, paid up, world-wide
license to make and distribute copies of that work, to prepare
derivative works, to perform or display any portion of that work, and
to permit others to do so for government purposes. Grant permission
only when the Government's requirements cannot be satisfied unless the
third party work is included in the deliverable work.
(d) Examples of other works which may be procured under the clause
at 252.227-7020 include, but are not limited to, audiovisual works,
scripts, soundtracks, musical compositions, and adaptations; histories
of departments, agencies, services or units thereof; surveys of
Government establishments; instructional works or guidance to
Government officers and employees on the discharge of their official
duties; reports, books, studies, surveys or similar documents;
collections of data containing information pertaining to individuals
that, if disclosed, would violate the right of privacy or publicity of
the individuals to whom the information relates; or investigative
reports.
227.7206 Contracts for architect-engineer services.
Follow 227.7107 when contracting for architect-engineer services.
227.7207 Contractor data repositories.
Follow 227.7108 when it is in the Government's interests to have a
data repository include computer software or to have a separate
computer software repository. Contractual instruments establishing the
repository requirements must appropriately reflect the repository
manager's software responsibilities.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.211-7015 [Removed and Reserved]
8. Section 252.211-7015 is removed and reserved.
252.211-7016 [Removed and Reserved]
9. Section 252.211-7016 is removed and reserved.
252.211-7017 [Removed and Reserved]
10. Section 252.211-7017 is removed and reserved.
252.211-7021 [Amended]
11. Section 252.211-7021 is amended by revising the clause date to
read ``(JUN 1995)'' in lieu of ``(MAY 1991); by revising in paragraph
(b)(1) in the title in the clause list under the clause number 252.225-
7001 the word ``Payment'' to read ``Payments;'' by adding in paragraph
(b)(1) an additional clause at the end of the clause list to read
``252.227-7015 Technical Data--Commercial Items;'' and by revising in
paragraph (b)(2) in the title in the clause list under the clause
number FAR 52.223-1 the word ``Clear'' to read ``Clean;''
12. Section 252.227-7013 is revised to read as follows:
252.227-7013 Rights in technical data--Noncommercial items.
As prescribed in 227.7103-6(a), use the following clause:
Rights in Technical Data--Noncommercial Items (June 1995)
(a) Definitions. As used in this clause:
(1) Computer data base means a collection of data recorded in a
form capable of being processed by a computer. The term does not
include computer software.
(2) Computer program means a set of instructions, rules, or
routines recorded in a form that is capable of causing a computer to
perform a specific operation or series of operations.
(3) Computer software means computer programs, source code,
source code listings, object code listings, design details,
algorithms, processes, flow charts, formulae and related material
that would enable the software to be reproduced, recreated, or
recompiled. Computer software does not include computer data bases
or computer software documentation.
(4) Computer software documentation means owner's manuals,
user's manuals, installation instructions, operating instructions,
and other similar items, regardless of storage medium, that explain
the capabilities of the computer software or provide instructions
for using the software.
(5) Detailed manufacturing or process data means technical data
that describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item
or component or to perform a process.
(6) Developed means that an item, component, or process exists
and is workable. Thus, the item or component must have been
constructed or the process practiced. Workability is generally
established when the item, component, or process has been analyzed
or tested sufficiently to demonstrate to reasonable people skilled
in the applicable art that there is a high probability that it will
operate as intended. Whether, how much, and what type of analysis or
testing is required to establish workability depends on the nature
of the item, component, or process, and the state of the art. To be
considered ``developed,'' the item, component, or process need not
be at the stage where it could be offered for sale or sold on the
commercial market, nor must the item, component, or process be
actually reduced to practice within the meaning of Title 35 of the
United States Code.
(7) Developed exclusively at private expense means development
was accomplished entirely with costs charged to indirect cost pools,
costs not allocated to a government contract, or any combination
thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm-fixed-price or ceiling price of the contract, the
additional development costs necessary to complete development shall
not be considered when determining whether development was at
government, private, or mixed expense.
(8) Developed exclusively with government funds means
development was not accomplished exclusively or partially at private
expense.
(9) Developed with mixed funding means development was
accomplished partially with costs charged to indirect cost pools
and/or costs not allocated to a government contract, and partially
with costs charged directly to a government contract.
(10) Form, fit, and function data means technical data that
describes the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item, component, or process to the extent
necessary to permit identification of physically and functionally
interchangeable items.
(11) Government purpose means any activity in which the United
States Government is a party, including cooperative agreements with
international or multi-national defense organizations, or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify,
reproduce, release, perform, display, or disclose technical data for
commercial purposes or authorize others to do so. [[Page 33491]]
(12) Government purpose rights means the rights to--
(i) Use, modify, reproduce, release, perform, display, or
disclose technical data within the Government without restriction;
and
(ii) Release or disclose technical data outside the Government
and authorize persons to whom release or disclosure has been made to
use, modify, reproduce, release, perform, display, or disclose that
data for United States government purposes.
(13) Limited rights means the rights to use, modify, reproduce,
release, perform, display, or disclose technical data, in whole or
in part, within the Government. The Government may not, without the
written permission of the party asserting limited rights, release or
disclose the technical data outside the Government, use the
technical data for manufacture, or authorize the technical data to
be used by another party, except that the Government may reproduce,
release or disclose such data or authorize the use or reproduction
of the data by persons outside the Government if reproduction,
release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or use of such data by,
a foreign government that is in the interest of the Government and
is required for evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction,
release, disclosure, or use of the technical data; and
(iv) The contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, or use.
(14) Technical data means recorded information, regardless of
the form or method of the recording, of a scientific or technical
nature (including computer software documentation). The term does
not include computer software or data incidental to contract
administration, such as financial and/or management information.
(15) Unlimited rights means rights to use, modify, reproduce,
perform, display, release, or disclose technical data in whole or in
part, in any manner, and for any purpose whatsoever, and to have or
authorize others to do so.
(b) Rights in technical data. The Contractor grants or shall
obtain for the Government the following royalty free, world-wide,
nonexclusive, irrevocable license rights in technical data other
than computer software documentation (see the Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation clause of this contract for rights in computer
software documentation):
(1) Unlimited rights.
The Government shall have unlimited rights in technical data
that are--
(i) Data pertaining to an item, component, or process which has
been or will be developed exclusively with Government funds;
(ii) Studies, analyses, test data, or similar data produced for
this contract, when the study, analysis, test, or similar work was
specified as an element of performance;
(iii) Created exclusively with Government funds in the
performance of a contract that does not require the development,
manufacture, construction, or production of items, components, or
processes;
(iv) Form, fit, and function data;
(v) Necessary for installation, operation, maintenance, or
training purposes (other than detailed manufacturing or process
data);
(vi) Corrections or changes to technical data furnished to the
Contractor by the Government;
(vii) Otherwise publicly available or have been released or
disclosed by the Contractor or subcontractor without restrictions on
further use, release or disclosure, other than a release or
disclosure resulting from the sale, transfer, or other assignment of
interest in the technical data to another party or the sale or
transfer of some or all of a business entity or its assets to
another party;
(viii) Data in which the Government has obtained unlimited
rights under another Government contract or as a result of
negotiations; or
(ix) Data furnished to the Government, under this or any other
Government contract or subcontract thereunder, with--
(A) Government purpose license rights or limited rights and the
restrictive condition(s) has/have expired; or
(B) Government purpose rights and the Contractor's exclusive
right to use such data for commercial purposes has expired.
(2) Government purpose rights.
(i) The Government shall have government purpose rights for a
five-year period, or such other period as may be negotiated, in
technical data--
(A) That pertain to items, components, or processes developed
with mixed funding except when the Government is entitled to
unlimited rights in such data as provided in paragraphs (b)(ii) and
(b)(iv) through (b)(ix) of this clause; or
(B) Created with mixed funding in the performance of a contract
that does not require the development, manufacture, construction, or
production of items, components, or processes.
(ii) The five-year period, or such other period as may have been
negotiated, shall commence upon execution of the contract,
subcontract, letter contract (or similar contractual instrument),
contract modification, or option exercise that required development
of the items, components, or processes or creation of the data
described in paragraph (b)(2)(i)(B) of this clause. Upon expiration
of the five-year or other negotiated period, the Government shall
have unlimited rights in the technical data.
(iii) The Government shall not release or disclose technical
data in which it has government purpose rights unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the non-disclosure agreement at 227.7103-7 of the Defense
Federal Acquisition Regulation Supplement (DFARS); or
(B) The recipient is a Government contractor receiving access to
the data for performance of a Government contract that contains the
clause at DFARS 252.227-7025, Limitations on the Use or Disclosure
of Government-Furnished Information Marked with Restrictive Legends.
(iv) The Contractor has the exclusive right, including the right
to license others, to use technical data in which the Government has
obtained government purpose rights under this contract for any
commercial purpose during the time period specified in the
government purpose rights legend prescribed in paragraph (f)(2) of
this clause.
(3) Limited rights.
(i) Except as provided in paragraphs (b)(1)(ii) and (b)(1)(iv)
through (b)(1)(ix) of this clause, the Government shall have limited
rights in technical data--
(A) Pertaining to items, components, or processes developed
exclusively at private expense and marked with the limited rights
legend prescribed in paragraph (f) of this clause; or
(B) Created exclusively at private expense in the performance of
a contract that does not require the development, manufacture,
construction, or production of items, components, or processes.
(ii) The Government shall require a recipient of limited rights
data for emergency repair or overhaul to destroy the data and all
copies in its possession promptly following completion of the
emergency repair/overhaul and to notify the Contractor that the data
have been destroyed.
(iii) The Contractor, its subcontractors, and suppliers are not
required to provide the Government additional rights to use, modify,
reproduce, release, perform, display, or disclose technical data
furnished to the Government with limited rights. However, if the
Government desires to obtain additional rights in technical data in
which it has limited rights, the Contractor agrees to promptly enter
into negotiations with the Contracting Officer to determine whether
there are acceptable terms for transferring such rights. All
technical data in which the Contractor has granted the Government
additional rights shall be listed or described in a license
agreement made part of the contract. The license shall enumerate the
additional rights granted the Government in such data.
(4) Specifically negotiated license rights.
The standard license rights granted to the Government under
paragraphs (b)(1) through (b)(3) of this clause, including the
period during which the Government shall have government purpose
rights in technical data, may be modified by mutual agreement to
provide such rights as the parties consider appropriate but shall
not provide the Government lesser rights than are enumerated in
paragraph (a)(13) of this clause. Any rights so negotiated shall be
identified in a license agreement made part of this contract.
(5) Prior government rights.
Technical data that will be delivered, furnished, or otherwise
provided to the Government under this contract, in which the
Government has previously obtained rights shall be delivered,
furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose the data have
expired or no longer apply. [[Page 33492]]
(6) Release from liability.
The Contractor agrees to release the Government from liability
for any release or disclosure of technical data made in accordance
with paragraph (a)(13) or (b)(2)(iii) of this clause, in accordance
with the terms of a license negotiated under paragraph (b)(4) of
this clause, or by others to whom the recipient has released or
disclosed the data and to seek relief solely from the party who has
improperly used, modified, reproduced, released, performed,
displayed, or disclosed Contractor data marked with restrictive
legends.
(c) Contractor rights in technical data. All rights not granted
to the Government are retained by the Contractor.
(d) Third party copyrighted data. The Contractor shall not,
without the written approval of the Contracting Officer, incorporate
any copyrighted data in the technical data to be delivered under
this contract unless the Contractor is the copyright owner or has
obtained for the Government the license rights necessary to perfect
a license or licenses in the deliverable data of the appropriate
scope set forth in paragraph (b) of this clause, and has affixed a
statement of the license or licenses obtained on behalf of the
Government and other persons to the data transmittal document.
(e) Identification and delivery of data to be furnished with
restrictions on use, release, or disclosure. (1) This paragraph does
not apply to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause,
technical data that the Contractor asserts should be furnished to
the Government with restrictions on use, release, or disclosure are
identified in an attachment to this contract (the Attachment). The
Contractor shall not deliver any data with restrictive markings
unless the data are listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new
information or inadvertent omissions unless the inadvertent
omissions would have materially affected the source selection
decision. Such identification and assertion shall be submitted to
the Contracting Officer as soon as practicable prior to the
scheduled date for delivery of the data, in the following format,
and signed by an official authorized to contractually obligate the
Contractor: Identification and Assertion of Restrictions on the
Government's Use, Release, or Disclosure of Technical Data.
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following technical data should be restricted--
------------------------------------------------------------------------
Technical data to be Asserted Name of person
furnished with restrictions Basis for rights asserting
\1\ assertion category \3\ restrictions
----------------------------------\2\--------------------------\4\------
(LIST)..................... (LIST)...... (LIST)...... (LIST)
------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components or processes
developed at private expense, identify both the data and each such
item, component, or process.
\2\ Generally, the development of an item, component, or process at
private expense, either exclusively or partially, is the only basis
for asserting restrictions on the Government's rights to use, release,
or disclose technical data pertaining to such items, components, or
processes. Indicate whether development was exclusively or partially
at private expense. If development was not at private expense, enter
the specific reason for asserting that the Government's rights should
be restricted.
\3\ Enter asserted rights category (e.g., government purpose license
rights from a prior contract, rights in SBIR data generated under
another contract, limited or government purpose rights under this or a
prior contract, or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor
shall provide sufficient information to enable the Contracting
Officer to evaluate the Contractor's assertions. The Contracting
Officer reserves the right to add the Contractor's assertions to the
Attachment and validate any listed assertion, at a later date, in
accordance with the procedures of the Validation of Restrictive
Markings on Technical Data clause of this contract.
(f) Marking requirements. The Contractor, and its subcontractors
or suppliers, may only assert restrictions on the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data to be delivered under this contract by
marking the deliverable data subject to restriction. Except as
provided in paragraph (f)(5) of this clause, only the following
legends are authorized under this contract: the government purpose
rights legend at paragraph (f)(2) of this clause; the limited rights
legend at paragraph (f)(3) of this clause; or the special license
rights legend at paragraph (f)(4) of this clause; and/or a notice of
copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate legend on all technical data that qualify for such
markings. The authorized legends shall be placed on the transmittal
document or storage container and, for printed material, each page
of the printed material containing technical data for which
restrictions are asserted. When only portions of a page of printed
material are subject to the asserted restrictions, such portions
shall be identified by circling, underscoring, with a note, or other
appropriate identifier. Technical data transmitted directly from one
computer or computer terminal to another shall contain a notice of
asserted restrictions. Reproductions of technical data or any
portions thereof subject to asserted restrictions shall also
reproduce the asserted restrictions.
(2) Government purpose rights markings. Data delivered or
otherwise furnished to the Government purpose rights shall be marked
as follows:
Government Purpose Rights
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (b)(2) of the Rights in Technical Data--Noncommercial
Items clause contained in the above identified contract. No
restrictions apply after the expiration date shown above. Any
reproduction of technical data or portions thereof marked with this
legend must also reproduce the markings.
(End of legend)
(3) Limited rights markings. Data delivered or otherwise
furnished to the Government with limited rights shall be marked with
the following legend:
Limited Rights
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (b)(3) of the Rights in Technical Data--Noncommercial
Items clause contained in the above identified contract. Any
reproduction of technical data or portions thereof marked with this
legend must also reproduce the markings. Any person, other than the
Government, who has been provided access to such data must promptly
notify the above named Contractor.
(End of legend)
(4) Special license rights markings. (i) Data in which the
Government's rights stem from a specifically negotiated license
shall be marked with the following legend:
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these data are restricted by Contract
No. ________________ (Insert contract number) ________________,
License No. ________________ (Insert license identifier)
________________. Any reproduction of technical data or portions
thereof marked with this legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (b)(5) of this clause). [[Page 33493]]
(5) Pre-existing data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data deliverable under this contract, and those
restrictions are still applicable, the Contractor may mark such data
with the appropriate restrictive legend for which the data qualified
under the prior contract or license. The marking procedures in
paragraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the Contractor and its subcontractors or suppliers
that will deliver technical data with other than unlimited rights,
shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by
the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data delivered under this
contract.
(h) Removal of unjustified and nonconforming markings. (1)
Unjustified technical data markings. The rights and obligations of
the parties regarding the validation of restrictive markings on
technical data furnished or to be furnished under this contract are
contained in the Validation of Restrictive Markings on Technical
Data clause of this contract. Notwithstanding any provision of this
contract concerning inspection and acceptance, the Government may
ignore or, at the Contractor's expense, correct or strike a marking
if, in accordance with the procedures in the Validation of
Restrictive Markings on Technical Data clause of this contract, a
restrictive marking is determined to be unjustified.
(2) Nonconforming technical data markings. A nonconforming
marking is a marking placed on technical data delivered or otherwise
furnished to the Government under this contract that is not in the
format authorized by this contract. Correction of nonconforming
markings is not subject to the Validation of Restrictive Markings on
Technical Data clause of this contract. If the Contracting Officer
notifies the Contractor of a nonconforming marking and the
Contractor fails to remove or correct such marking within sixty (60)
days, the Government may ignore or, at the Contractor's expense,
remove or correct any nonconforming marking.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(j) Limitation on charges for rights in technical data. (1) The
Contractor shall not charge to this contract any cost, including,
but not limited to, license fees, royalties, or similar charges, for
rights in technical data to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or
greater rights in the data; or
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at
any tier, or costs incurred by the Contractor to acquire rights in
subcontractor or supplier technical data, if the subcontractor or
supplier has been paid for such rights under any other Government
contract or under a license conveying the rights to the Government;
and
(ii) Does not include the reasonable costs of reproducing,
handling, or mailing the documents or other media in which the
technical data will be delivered.
(k) Applicability to subcontractors or suppliers. (1) The
Contractor shall ensure that the rights afforded its subcontractors
and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the
identification, assertion, and delivery processes of paragraph (e)
of this clause are recognized and protected.
(2) Whenever any noncommercial technical data is to be obtained
from a subcontractor or supplier for delivery to the Government
under this contract, the Contractor shall use this same clause in
the subcontract or other contractual instrument, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties. The Contractor shall use the Technical Data--
Commercial Items clause of this contract to obtain technical data
pertaining to commercial items, components, or processes. No other
clause shall be used to enlarge or diminish the Government's, the
Contractor's, or a higher-tier subcontractor's or supplier's rights
in a subcontractor's or supplier's technical data.
(3) Technical data required to be delivered by a subcontractor
or supplier shall normally be delivered to the next higher-tier
contractor, subcontractor, or supplier. However, when there is a
requirement in the prime contract for data which may be submitted
with other than unlimited rights by a subcontractor or supplier,
then said subcontractor or supplier may fulfill its requirement by
submitting such data directly to the Government, rather than through
a higher-tier contractor, subcontractor, or supplier.
(4) The Contractor and higher-tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in technical data from their subcontractors or
suppliers.
(5) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in technical
data as an excuse for failing to satisfy its contractual obligations
to the Government.
(End of clause)
Alternate I (June 1995)
As prescribed in 227.7103-6(b), add the following paragraph (l)
to the basic clause:
(l) Publication for sale.
(1) This paragraph only applies to technical data in which the
Government has obtained unlimited rights or a license to make an
unrestricted release of technical data.
(2) The Government shall not publish a deliverable technical
data item or items identified in this contract as being subject to
paragraph (l) of this clause or authorize others to publish such
data on its behalf if, prior to publication for sale by the
Government and within twenty-four (24) months following the date
specified in this contract for delivery of such data or the removal
of any national security or export control restrictions, whichever
is later, the Contractor publishes that item or items for sale and
promptly notifies the Contracting Officer of such publication(s).
Any such publication shall include a notice identifying the number
of this contract and the Government's rights in the published data.
(3) This limitation on the Government's right to publish for
sale shall continue as long as the data are reasonably available to
the public for purchase.
13. Section 252.227-7014 is added to read as follows:
252.227-7014 Rights in noncommercial computer software and
noncommercial computer software documentation.
As prescribed in 227.7203-6(a)(1), use the following clause.
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation (June 1995)
(a) Definitions. As used in this clause:
(1) Commercial computer software means software developed or
regularly used for nongovernmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) Has not been offered, sold, leased, or licensed to the
public but will be available for commercial sale, lease, or license
in time to satisfy the delivery requirements of this contract; or
(iv) Satisfies a criterion expressed in paragraph (a)(1) (i),
(ii), or (iii) of this clause and would require only minor
modification to meet the requirements of this contract.
(2) Computer database means a collection of recorded data in a
form capable of being processed by a computer. The term does not
include computer software.
(3) Computer program means a set of instructions, rules, or
routines, recorded in a form that is capable of causing a computer
to perform a specific operation or series of operations.
(4) Computer software means computer programs, source code,
source code listings, object code listings, design details,
algorithms, processes, flow charts, formulae, and related material
that would enable the software to be reproduced, recreated, or
recompiled. Computer software does not include computer databases or
computer software documentation.
(5) Computer software documentation means owner's manuals,
user's manuals, installation instructions, operating instructions,
and other similar items, regardless of storage medium, that explain
the capabilities of the computer software or provide instructions
for using the software.
(6) Developed means that--
(i) A computer program has been successfully operated in a
computer and tested to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the program can
reasonably be expected to perform its intended
purpose; [[Page 33494]]
(ii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the software can
reasonably be expected to perform its intended purpose; or
(iii) Computer software documentation required to be delivered
under a contract has been written, in any medium, in sufficient
detail to comply with requirements under that contract.
(7) Developed exclusively at private expense means development
was accomplished entirely with costs charged to indirect cost pools,
costs not allocated to a government contract, or any combination
thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm-fixed-price or ceiling price of the contract, the
additional development costs necessary to complete development shall
not be considered when determining whether development was at
government, private, or mixed expense.
(8) Developed exclusively with government funds means
development was not accomplished exclusively or partially at private
expense.
(9) Developed with mixed funding means development was
accomplished partially with costs charged to indirect cost pools
and/or costs not allocated to a government contract, and partially
with costs charged directly to a government contract.
(10) Government purpose means any activity in which the United
States Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify,
reproduce, release, perform, display, or disclose computer software
or computer software documentation for commercial purposes or
authorize others to do so.
(11) Government purpose rights means the rights to--
(i) Use, modify, reproduce, release, perform, display, or
disclose computer software or computer software documentation within
the Government without restriction; and
(ii) Release or disclose computer software or computer software
documentation outside the Government and authorize persons to whom
release or disclosure has been made to use, modify, reproduce,
release, perform, display, or disclose the software or documentation
for United States government purposes.
(12) Minor modification means a modification that does not
significantly alter the nongovernmental function or purpose of the
software or is of the type customarily provided in the commercial
marketplace.
(13) Noncommercial computer software means software that does
not qualify as commercial computer software under paragraph (a)(1)
of this clause.
(14) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(ii) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of
this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs
(a)(14) (i) and (iii) of this clause; and
(B) Not release or disclose the modified software except as
provided in paragraphs (a)(14) (ii), (v) and (vi) of this clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors are subject to the use
and non-disclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement (DFARS) or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(14)(iv) of this clause, for any other
purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(14)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient is subject to the use and non-
disclosure agreement at DFARS 227.7103-7 or is a Government
contractor receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends; and
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(14)(iv) of this clause, for any other
purpose.
(15) Unlimited rights means rights to use, modify, reproduce,
release, perform, display, or disclose computer software or computer
software documentation in whole or in part, in any manner and for
any purpose whatsoever, and to have or authorize others to do so.
(b) Rights in computer software or computer software
documentation. The Contractor grants or shall obtain for the
Government the following royalty free, world-wide, nonexclusive,
irrevocable license rights in noncommercial computer software or
computer software documentation. All rights not granted to the
Government are retained by the Contractor.
(1) Unlimited rights. The Government shall have unlimited rights
in--
(i) Computer software developed exclusively with Government
funds;
(ii) Computer software documentation required to be delivered
under this contract;
(iii) Corrections or changes to computer software or computer
software documentation furnished to the Contractor by the
Government;
(iv) Computer software or computer software documentation that
is otherwise publicly available or has been released or disclosed by
the Contractor or subcontractor without restriction on further use,
release or disclosure, other than a release or disclosure resulting
from the sale, transfer, or other assignment of interest in the
software to another party or the sale or transfer of some or all of
a business entity or its assets to another party;
(v) Computer software or computer software documentation
obtained with unlimited rights under another Government contract or
as a result of negotiations; or
(vi) Computer software or computer software documentation
furnished to the Government, under this or any other Government
contract or subcontract thereunder with--
(A) Restricted rights in computer software, limited rights in
technical data, or government purpose license rights and the
restrictive conditions have expired; or
(B) Government purpose rights and the Contractor's exclusive
right to use such software or documentation for commercial purposes
has expired.
(2) Government purpose rights. (i) Except as provided in
paragraph (b)(1) of this clause, the Government shall have
government purpose rights in computer software development with
mixed funding.
(ii) Government purpose rights shall remain in effect for a
period of five years unless a different period has been negotiated.
Upon expiration of the five-year or other negotiated period, the
Government shall have unlimited rights in the computer software or
computer software documentation. The government purpose rights
period shall commence upon execution of the contract, subcontract,
letter contract (or similar [[Page 33495]] contractual instrument),
contract modification, or option exercise that required development
of the computer software.
(iii) The Government shall not release or disclose computer
software in which it has government purpose rights to any other
person unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at DFARS 227.7103-7;
or
(B) The recipient is a Government contractor receiving access to
the software or documentation for performance of a Government
contract that contains the clause at DFARS 252.227-7025, Limitations
on the Use or Disclosure of Government Furnished Information Marked
with Restrictive Legends.
(3) Restricted rights. (i) The Government shall have restricted
rights in noncommercial computer software required to be delivered
or otherwise provided to the Government under this contract that
were developed exclusively at private expense.
(ii) The Contractor, its subcontractors, or suppliers are not
required to provide the Government additional rights in
noncommercial computer software delivered or otherwise provided to
the Government with restricted rights. However, if the Government
desires to obtain additional rights in such software, the Contractor
agrees to promptly enter into negotiations with the Contracting
Officer to determine whether there are acceptable terms for
transferring such rights. All noncommercial computer software in
which the Contractor has granted the Government additional rights
shall be listed or described in a license agreement made part of the
contract (see paragraph (b)(4) of this clause). The license shall
enumerate the additional rights granted the Government.
(4) Specifically negotiated license rights. (i) The standard
license rights granted to the Government under paragraphs (b)(1)
through (b)(3) of this clause, including the period during which the
Government shall have government purpose rights in computer
software, may be modified by mutual agreement to provide such rights
as the parties consider appropriate but shall not provide the
Government lesser rights in computer software than are enumerated in
paragraph (a)(14) of this clause or lesser rights in computer
software documentation than are enumerated in paragraph (a)(13) of
the Rights in Technical Data--Noncommercial Items clause of this
contract.
(ii) Any rights so negotiated shall be identified in a license
agreement made part of this contract.
(5) Prior government rights. Computer software or computer
software documentation that will be delivered, furnished, or
otherwise provided to the Government under this contract, in which
the Government has previously obtained rights shall be delivered,
furnished, or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose the data have
expired or no longer apply.
(6) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of computer
software made in accordance with paragraph (a)(14) or (b)(2)(iii) of
this clause, in accordance with the terms of a license negotiated
under paragraph (b)(4) of this clause, or by others to whom the
recipient has released or disclosed the software, and to seek relief
solely from the party who has improperly used, modified, reproduced,
released, performed, displayed, or disclosed Contractor software
marked with restrictive legends.
(c) Rights in derivative computer software or computer software
documentation. The Government shall retain its rights in the
unchanged portions of any computer software or computer software
documentation delivered under this contract that the Contractor uses
to prepare, or includes in, derivative computer software or computer
software documentation.
(d) Third party copyrighted computer software or computer
software documentation. The Contractor shall not, without the
written approval of the Contracting Officer, incorporate any
copyrighted computer software or computer software documentation in
the software or documentation to be delivered under this contract
unless the Contractor is the copyright owner or has obtained for the
Government the license rights necessary to perfect a license or
licenses in the deliverable software or documentation of the
appropriate scope set forth in paragraph (b) of this clause, and
prior to delivery of such--
(1) Computer software, has provided a statement of the license
rights obtained in a form acceptable to the Contracting Officer; or
(2) Computer software documentation, has affixed to the
transmittal document a statement of the license rights obtained.
(e) Identification and delivery of computer software and
computer software documentation to be furnished with restrictions on
use, release, or disclosure. (1) This paragraph does not apply to
restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause,
computer software that the Contractor asserts should be furnished to
the Government with restrictions on use, release, or disclosure is
identified in an attachment to this contract (the Attachment). The
Contractor shall not deliver any software with restrictive markings
unless the software is listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new
information or inadvertent omissions unless the inadvertent
omissions would have materially affected the source selection
decision. Such identification and assertion shall be submitted to
the Contracting Officer as soon as practicable prior to the
scheduled data for delivery of the software, in the following
format, and signed by an official authorized to contractually
obligate the Contractor: Identification and Assertion of
Restrictions on the Government's Use, Release, or Disclosure of
Computer Software.
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following computer software should be restricted:
------------------------------------------------------------------------
Computer Software
to be Furnished Basis for Asserted Rights Name of Person
With Assertion** Category*** Asserting
Restrictions* Restrictions****
------------------------------------------------------------------------
(LIST) (LIST) (LIST) (LIST)
------------------------------------------------------------------------
*Generally, development at private expense, either exclusively or
partially, is the only basis for asserting restrictions on the
Government's rights to use, release, or disclose computer software.
**Indicate whether development was exclusively or partially at private
expense. If development was not at private expense, enter the specific
reason for asserting that the Government's rights should be
restricted.
***Enter asserted rights category (e.g., restricted or government
purpose rights in computer software, government purpose license rights
from a prior contract, rights in SBIR software generated under another
contract, or specifically negotiated licenses).
****Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor
shall provide sufficient information to enable the Contracting
Officer to evaluate the Contractor's assertions. The Contracting
Officer reserves the right to add the Contractor's assertions to the
Attachment and validate any listed assertion, at a later date, in
accordance with the procedures of the Validation of Asserted
Restrictions--Computer Software clause of this contract.
(f) Marking requirements. The Contractor, and its subcontractors
or suppliers, may only assert restrictions on the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose computer software by marking the deliverable software or
documentation subject to restriction. Except as provided in
paragraph (f)(5) of this clause, only the following legends are
authorized under this contract; the government purpose rights legend
at paragraph (f)(2) of this clause; the restricted rights legend at
[[Page 33496]] paragraph (f)(3) of this clause; or the special
license rights legend at paragraph (f)(4) of this clause; and/or a
notice of copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate legend on all computer software that qualify for
such markings. The authorized legends shall be placed on the
transmitted document or software storage container and each page, or
portions thereof, of printed material containing computer software
for which restrictions are asserted. Computer software transmitted
directly from one computer or computer terminal to another shall
contain a notice of asserted restrictions. However, instructions
that interfere with or delay the operation of computer software in
order to display a restrictive rights legend or other license
statement at any time prior to or during use of the computer
software, or otherwise cause such interference or delay, shall not
be inserted in software that will or might be used in combat or
situations that simulate combat conditions, unless the Contracting
Officer's written permission to deliver such software has been
obtained prior to delivery. Reproductions of computer software or
any portions thereof subject to asserted restrictions, shall also
reproduce the asserted restrictions.
(2) Government purpose rights markings. Computer software
delivered or otherwise furnished to the Government with government
purpose rights shall be marked as follows:
GOVERNMENT PURPOSE RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (b)(2) of the Rights in Noncommercial Computer Software
and Noncommercial Computer Software Documentation clause contained
in the above identified contract. No restrictions apply after the
expiration date shown above. Any reproduction of the software or
portions thereof marked with this legend must also reproduce the
markings.
(End of legend)
(3) Restricted rights markings. Software delivered or otherwise
furnished to the Government with restricted rights shall be marked
with the following legend:
RESTRICTED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (b)(3) of the Rights in Noncommercial Computer Software
and Noncommercial Computer Software Documentation clause contained
in the above identified contract. Any reproduction of computer
software or portions thereof marked with this legend must also
reproduce the markings. Any person, other than the Government, who
has been provided access to such software must promptly notify the
above named Contractor.
(End of legend)
(4) Special license rights markings. (i) Computer software or
computer documentation in which the Government's rights stem from a
specifically negotiated license shall be marked with the following
legend:
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
Contract No. ________(Insert contract number)________, License
No.________(Insert license identifier)________. Any reproduction of
computer software, computer software documentation, or portions
thereof marked with this legend must also reproduce the markings.
(End of legend)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (b)(5) of this clause).
(5) Pre-existing markings. If the terms of a prior contract or
license permitted the Contractor to restrict the Government's rights
to use, modify, release, perform, display, or disclose computer
software or computer software documentation and those restrictions
are still applicable, the Contractor may mark such software or
documentation with the appropriate restrictive legend for which the
software qualified under the prior contract or license. The marking
procedures in paragraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the Contractor and its subcontractors or suppliers
that will deliver computer software or computer software
documentation with other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by
the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on computer software or computer software
documentation delivered under this contract.
(h) Removal of unjustified and nonconforming markings. (1)
Unjustified computer software or computer software documentation
markings. The rights and obligations of the parties regarding the
validation of restrictive markings on computer software or computer
software documentation furnished or to be furnished under this
contract are contained in the Validation of Asserted Restrictions--
Computer Software and the Validation of Restrictive Markings on
Technical Data clauses of this contract, respectively.
Notwithstanding any provision of this contract concerning inspection
and acceptance, the Government may ignore or, at the Contractor's
expense, correct or strike a marking if, in accordance with the
procedures of those clauses, a restrictive marking is determined to
be unjustified.
(2) Nonconforming computer software or computer software
documentation markings. A nonconforming marking is a marking placed
on computer software or computer software documentation delivered or
otherwise furnished to the Government under this contract that is
not in the format authorized by this contract. Correction of
nonconforming markings is not subject to the Validation of Asserted
Restrictions--Computer Software or the Validation of Restrictive
Markings on Technical Data clause of this contract. If the
Contracting Officer notifies the Contractor of a nonconforming
marking or markings and the Contractor fails to remove or correct
such markings within sixty (60) days, the Government may ignore or,
at the Contractor's expense, remove or correct any nonconforming
markings.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(j) Limitation on charges for rights in computer software or
computer software documentation. (1) The Contractor shall not charge
to this contract any cost, including but not limited to license
fees, royalties, or similar charges, for rights in computer software
or computer software documentation to be delivered under this
contract when--
(i) The Government has acquired, by any means, the same or
greater rights in the software or documentation; or
(ii) The software or documentation are available to the public
without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at
any tier, or costs incurred by the Contractor to acquire rights in
subcontractor or supplier computer software or computer software
documentation, if the subcontractor or supplier has been paid for
such rights under any other Government contract or under a license
conveying the rights to the Government; and
(ii) Does not include the reasonable costs of reproducing,
handling, or mailing the documents or other media in which the
software or documentation will be delivered.
(k) Applicability to subcontractors or suppliers. (1) Whenever
any noncommercial computer software or computer software
documentation is to be obtained from a subcontractor or supplier for
delivery to the Government under this contract, the Contractor shall
use this same clause in its subcontracts or other contractual
instruments, and require its subcontractors or suppliers to do so,
without alteration, except to identify the parties. No other clause
shall be used to enlarge or diminish the Government's, the
Contractor's, or a higher tier subcontractor's or supplier's rights
in a subcontractor's or supplier's computer software or computer
software documentation. [[Page 33497]]
(2) The Contractor and higher tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in computer software or computer software
documentation from their subcontractors or suppliers.
(3) The Contractor shall ensure that subcontractor or supplier
rights are recognized and protected in the identification,
assertion, and delivery processes required by paragraph (e) of this
clause.
(4) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in computer
software or computer software documentation as an excuse for failing
to satisfy its contractual obligation to the Government.
(End of clause)
ALTERNATE I (JUN 1995)
As prescribed in 227.7203-6(a)(2), add the following paragraph
(l) to the basic clause:
(l) Publication for sale.
(1) This paragraph only applies to computer software or computer
software documentation in which the Government has obtained
unlimited rights or a license to make an unrestricted release of the
software or documentation.
(2) The Government shall not publish a deliverable item or items
of computer software or computer software documentation identified
in this contract as being subject to paragraph (l) of this clause or
authorize others to publish such software or documentation on its
behalf if, prior to publication for sale by the Government and
within twenty-four (24) months following the date specified in this
contract for delivery of such software or documentation, or the
removal of any national security or export control restrictions,
whichever is later, the Contractor publishes that item or items for
sale and promptly notifies the Contracting Officer of such
publication(s). Any such publication shall include a notice
identifying the number of this contract and the Government's rights
in the published software or documentation.
(3) This limitation on the Government's rights to publish for
sale shall continue as long as the software or documentation are
reasonably available to the public for purchase.
14. Section 252.227-7015 is added to read as follows:
252.227-7015 Technical Data--Commercial Items.
As prescribed in 227.7102-3, use the following clause:
TECHNICAL DATA--COMMERCIAL ITEMS (JUN 1995)
(a) Definitions. As used in this clause:
(1) Commercial item means--
(i) Any item, other than real property or computer software,
that customarily is used by the public for nongovernmental purposes
and that--
(A) Has been sold, leased, or licensed to the public; or
(B) Has been offered for sale, lease, or license to the public;
(ii) Any item that evolved from an item described in paragraph
(a)(1)(i) of this clause through advances in technology or
performance and will be available in the commercial marketplace in
time to satisfy the delivery requirements specified in this
contract;
(iii) Any item that would satisfy a criterion expressed in
paragraph (a)(1)(i) or (ii) of this clause, but for--
(A) Modifications of a type customarily available in the
commercial marketplace; or
(B) Minor modifications made to meet Federal Government
requirements;
(iv) Any combination of items meeting the requirements of
paragraph (a)(1)(i), (ii), (iii), or (v) of this clause that are of
a type customarily combined and sold in combination to the public;
(v) Installation services, maintenance services, repair
services, training services, and other services if such services are
procured for support of an item referred to in paragraph (a)(1)(i),
(ii), (iii), or (iv) of this clause, and the source of such
services--
(A) Offers such services to the public and the Federal
Government contemporaneously and under similar terms and conditions;
and
(B) Offers to use the same work force for providing the Federal
Government with such services as the source uses for providing such
services to the general public;
(vi) Services, offered and sold competitively, in substantial
quantities, in the commercial marketplace based on established
catalog prices for specific tasks performed under standard
commercial terms and conditions;
(vii) Any item, combination of items, or service referred to in
paragraphs (a)(1) (i) through (vi) of this clause notwithstanding
the fact that the item, combination of items, or service is
transferred between or among separate divisions, subsidiaries, or
affiliates of a contractor; or
(viii) Other nondevelopmental items, if the Contracting Officer
determines that the item was developed exclusively at private
expense and has been sold in substantial quantities, on a
competitive basis, to multiple state and local governments.
(2) Component means any item supplied to the government as part
of an end item or of another component.
(3) Contractor includes the Contractor's subcontractors and
suppliers at any tier.
(4) Form, fit, and function data means technical data that
describes the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item, component, or process to the extent
necessary to permit identification of physically and functionally
interchangeable items.
(5) The term item includes components or processes.
(6) Minor modification means a modification that does not
significantly alter the nongovernmental function or essential
physical characteristics of an item or component, or change the
purpose of a process.
(7) Technical data means recorded information, regardless of the
form or method of recording, of a scientific or technical nature
(including computer software documentation). The term does not
include computer software or data incidental to contract
administration, such as financial and/or management information.
(b) License. (1) The Government shall have the unrestricted
right to use, modify, reproduce, release, perform, display, or
disclose technical data, and to permit others to do so, that--
(i) Have been provided to the Government or others without
restrictions on use, modification, reproduction, release, or further
disclosure other than a release or disclosure resulting from the
sale, transfer, or other assignment of interest in the technical
data to another party or the sale or transfer of some or all of a
business entity or its assets to another party;
(ii) Are form, fit, and function data;
(iii) Are a correction or change to technical data furnished to
the Contractor by the Government;
(iv) Are necessary for operation, maintenance, installation, or
training (other than detailed manufacturing or process data); or
(v) Have been provided to the Government under a prior contract
or licensing agreement through which the Government has acquired the
rights to use, modify, reproduce, release, perform, display, or
disclose the data without restrictions.
(2) Except as provided in paragraph (b)(1) of this clause, the
Government may use, modify, reproduce, release, perform, display, or
disclose technical data within the Government only. The Government
shall not--
(i) Use the technical data to manufacture additional quantities
of the commercial items; or
(ii) Release, perform, display, disclose, or authorize use of
the technical data outside the Government without the Contractor's
written permission unless a release, disclosure or permitted use is
necessary for emergency repair or overhaul of the commercial items
furnished under this contract.
(c) Additional license rights. The Contractor, its
subcontractors, and suppliers are not required to provide the
Government additional rights to use, modify, reproduce, release,
perform, display, or disclose technical data. However, if the
Government desires to obtain additional rights in technical data,
the Contractor agrees to promptly enter into negotiations with the
Contracting Officer to determine whether there are acceptable terms
for transferring such rights. All technical data in which the
Contractor has granted the Government additional rights shall be
listed or described in a special license agreement made part of this
contract. The license shall enumerate the additional rights granted
the Government in such data.
(d) Release from liability. The Contractor agrees that the
Government, and other persons to whom the Government may have
released or disclosed technical data delivered or otherwise
furnished under this contract, shall have no liability for any
release or disclosure of technical data that are not marked to
indicate that such data are [[Page 33498]] licensed data subject to
use, modification, reproduction, release, performance, display, or
disclosure restrictions.
(End of clause)
15. Section 252.227-7016 is added to read as follows:
252.227-7016 Rights in bid or proposal information.
As prescribed in 227.7103-6(e)(1), 227.7104(e)(1), or 227.7203-
6(b), use the following clause:
RIGHTS IN BID OR PROPOSAL INFORMATION (JUN 1995)
(a) Definitions.
(1) For contracts that require the delivery of technical data,
the terms ``technical data'' and ``computer software'' are defined
in the Rights in Technical Data--Noncommercial Item clause of this
contract or, if this is a contract awarded under the Small Business
Innovative Research Program, the Rights in Noncommercial Technical
Data and Computer Software--Small Business Innovative Research
(SBIR) Program clause of this contract.
(2) For contracts that do not require the delivery of technical
data, the term ``computer software'' is defined in the Rights in
Noncommercial Computer and Noncommercial Computer Software
Documentation clause of this contract or, if this is a contract
awarded under the Small Business Innovative Research Program, the
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovative Research (SBIR) Program clause of this contract.
(b) Government rights to contract award. By submission of its
offer, the Offeror agrees that the Government--
(1) May reproduce the bid or proposal, or any portions thereof,
to the extent necessary to evaluate the offer.
(2) Except as provided in paragraph (d) of this clause, shall
use information contained in the bid or proposal only for
evaluational purposes and shall not disclose, directly or
indirectly, such information to any person including potential
evaluators, unless that person has been authorized by the head of
the agency, his or her designee, or the Contracting Officer to
receive such information.
(c) Government rights subsequent to contract award--The
Contractor agrees--
(1) Except as provided in paragraphs (c)((2), (d), and (e) of
this clause, the Government shall have the rights to use, modify,
reproduce, release, perform, display, or disclose information
contained in the Contractor's bid or proposal within the Government.
The Government shall not release, perform, display, or disclose such
information outside the Government without the Contractor's written
permission.
(2) The Government's right to use, modify, reproduce, release,
perform, display, or disclose information that is technical data or
computer software required to be delivered under this contract are
determined by the Rights in Technical Data--Noncommercial Items,
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation, or Rights in Noncommercial Technical Data
and Computer Software--Small Business Innovative Research (SBIR)
Program clause(s) of this contract.
(d) Government-furnished information. The Government's rights
with respect to technical data or computer software contained in the
Contractor's bid or proposal that were provided to the Contractor by
the Government are subject only to restrictions on use,
modification, reproduction, release, performance, display, or
disclosure, if any, imposed by the developer or licensor of such
data or software.
(e) Information available without restrictions. The Government's
rights to use, modify, reproduce, release, perform, display, or,
disclose information contained in a bid or proposal, including
technical data or computer software, and to permit others to do so,
shall not be restricted in any manner if such information has been
released or disclosed to the Government or to other persons without
restrictions other than a release or disclosure resulting from the
sale, transfer, or other assignment of interest in the information
to another party or the sale or transfer of some or all of a
business entity or its assets to another party.
(f) Flowdown. Contractor shall include this clause in all
subcontracts or similar contractual instruments and require its
subcontractors or suppliers to do so without alteration, except to
identify the parties.
(End of clause)
16. Section 252.227-7017 is added to read as follows:
252.227-7017 Identification and assertion of use, release, or
disclosure restrictions.
As prescribed in 227.7103-3(b), 227.7104(e)(2), or 227.7203-3(a),
use the following provision:
IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE
RESTRICTIONS (JUN 1995)
(a) The terms used in this provision are defined in following
clause or clauses contained in this solicitation--
(1) If a successful offeror will be required to deliver
technical data, the Rights in Technical Data--Noncommercial Items
clause, or, if this solicitation contemplates a contract under the
Small Business Innovative Research Program, the Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovative Research (SBIR) Program clause.
(2) If a successful offeror will not be required to deliver
technical data, the Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation clause, or, if this
solicitation contemplates a contract under the Small Business
Innovative Research Program, the Rights in Noncommercial Technical
Data and Computer Software--Small Business Innovative Research
(SBIR) Program clause.
(b) The identification and assertion requirements in this
provision apply only to technical data, including computer software
documents, or computer software to be delivered with other than
unlimited rights. For contracts to be awarded under the Small
Business Innovative Research Program, the notification requirements
do not apply to technical data or computer software that will be
generated under the resulting contract. Notification and
identification is not required for restrictions based solely on
copyright.
(c) Offers submitted in response to this solicitation shall
identify, to the extent known at the time an offer is submitted to
the Government, the technical data or computer software that the
Offeror, its subcontractors or suppliers, or potential
subcontractors or suppliers, assert should be furnished to the
Government with restrictions on use, release, or disclosure.
(d) The Offeror's assertions, including the assertions of its
subcontractors or suppliers or potential subcontractors or suppliers
shall be submitted as an attachment to its offer in the following
format, dated and signed by an official authorized to contractually
obligate the Offeror:
Identification and Assertion of Restrictions on the Government's
Use, Release, or Disclosure of Technical Data or Computer Software.
The Offeror asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the
following technical data or computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Technical Data or
Computer Software to Name of Person Asserting
be Furnished With Basis for Assertion** Asserted Rights Category*** Restrictions****
Restrictions*
----------------------------------------------------------------------------------------------------------------
(LIST)***** (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
*For technical data (other than computer software documentation) pertaining to items, components, or processes
developed at private expense, identify both the deliverable technical data and each such items, component, or
process. For computer software or computer software documentation identify the software or documentation.
**Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions. For technical data, other than computer software documentation, development refers to
development of the item, component, or process to which the data pertain. The Government's rights in computer
software documentation generally may not be restricted. For computer software, development refers to the
software. Indicate whether development was accomplished exclusively or partially at private expense. If
development was not accomplished at private expense, or for computer software documentation, enter the
specific basis for asserting restrictions.
[[Page 33499]]
***Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR
data generated under another contract, limited, restricted, or government purpose rights under this or a prior
contract, or specially negotiated licenses).
****Corporation, individual, or other person, as appropriate.
*****Enter ``none'' when all data or software will be submitted without restrictions.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
(e) An offeror's failure to submit, complete, or sign the
notification and identification required by paragraph (d) of this
provision with its offer may render the offer ineligible for award.
(f) If the Offeror is awarded a contract, the assertions
identified in paragraph (d) of this provision shall be listed in an
attachment to that contract. Upon request by the Contracting
Officer, the Offeror shall provide sufficient information to enable
the Contracting Officer to evaluate any listed assertion.
(End of provision)
17. Section 252.227-7018 is revised to read as follows:
252.227-7018 Rights in noncommercial technical data and computer
software--Small Business Innovative Research (SBIR) Program.
As prescribed in 227.7104(a), use the following clause:
RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE--SMALL
BUSINESS INNOVATIVE RESEARCH (SBIR) PROGRAM (JUN 1995)
(a) Definitions. As used in this clause:
(1) Commercial computer software means software developed or
regularly used for nongovernmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) Has not been offered, sold, leased, or licensed to the
public but will be available for commercial sale, lease, or license
in time to satisfy the delivery requirements of this contract; or
(iv) Satisfies a criterion expressed in paragraph (a)(1)(i),
(ii), or (iii) of this clause and would require only minor
modification to meet the requirements of this contract.
(2) Computer database means a collection of recorded data in a
form capable of being processed by a computer. The term does not
include computer software.
(3) Computer program means a set of instructions, rules, or
routines, recorded in a form that is capable of causing a computer
to perform a specific operation or series of operations.
(4) Computer software means computer programs, source code,
source code listings, object code listings, design details,
algorithms, processes, flow charts, formulae, and related material
that would enable the software to be reproduced, re-created, or
recompiled. Computer software does not include computer databases or
computer software documentation.
(5) Computer software documentation means owner's manuals,
user's manuals, installation instructions, operating instructions,
and other similar items, regardless of storage medium, that explain
the capabilities of the computer software or provide instructions
for using the software.
(6) Detailed manufacturing or process data means technical data
that describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item
or component or to perform a process.
(7) Developed means--
(i) (Applicable to technical data other than computer software
documentation.) An item, component, or process, exists and is
workable. Thus, the item or component must have been constructed or
the process practiced. Workability is generally established when the
item, component, or process has been analyzed or tested sufficiently
to demonstrate to reasonable people skilled in the applicable art
that there is a high probability that it will operate as intended.
Whether, how much, and what type of analysis or testing is required
to establish workability depends on the nature of the item,
component, or process, and the state of the art. To be considered
``developed,'' the item, component, or process need not be at the
stage where it could be offered for sale or sold on the commercial
market, nor must the item, component or process be actually reduced
to practice within the meaning of Title 35 of the United States
Code;
(ii) A computer program has been successfully operated in a
computer and tested to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the program can
reasonably be expected to perform its intended purpose;
(iii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the software can
reasonably be expected to perform its intended purpose; or
(iv) Computer software documentation required to be delivered
under a contract has been written, in any medium, in sufficient
detail to comply with requirements under that contract.
(8) Developed exclusively at private expense means development
was accomplished entirely with costs charged to indirect cost pools,
costs not allocated to a government contract, or any combination
thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm-fixed-price or ceiling price of the contract, the
additional development costs necessary to complete development shall
not be considered when determining whether development was at
government, private, or mixed expense.
(9) Developed exclusively with government funds means
development was not accomplished exclusively or partially at private
expense.
(10) Developed with mixed funding means development was
accomplished partially with costs charged to indirect cost pools
and/or costs not allocated to a government contract, and partially
with costs charged directly to a government contract.
(11) Form, fit, and function data means technical data that
describe the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item, component, or process to the extent
necessary to permit identification of physically and functionally
interchangeable items.
(12) Generated means technical data or computer software first
created in the performance of this contract.
(13) Government purpose means any activity in which the United
States Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify,
reproduce, release, perform, display, or disclose technical data or
computer software for commercial purposes or authorize others to do
so.
(14) Limited rights means the rights to use, modify, reproduce,
release, perform, display, or disclose technical data, in whole or
in part, within the Government. The Government may not, without the
written permission of the party asserting limited rights, release or
disclose the technical data outside the Government, use the
technical data for manufacture, or permit the technical data to be
used by another party, except that the Government may reproduce,
release or disclose such data or permit the use or reproduction of
the data by persons outside the Government if reproduction, release,
disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or use of such data by,
a foreign government that is in the interest of the Government and
is required for evaluational or informational purposes;
(iii) Subject to a prohibition on the further reproduction,
release disclosure, or use of the technical data; and
(iv) The Contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, or use.
(15) Minor modification means a modification that does not
significantly alter the nongovernmental function or purpose of
computer software or is of the type customarily provided in the
commercial marketplace.
(16) Noncommercial computer software means software that does
not qualify as [[Page 33500]] commercial computer software under
paragraph (a)(1) of this clause.
(17) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(ii) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of
this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs
(a)(17) (i) and (iii) of this clause; and
(B) Not release or disclose the modified software except as
provided in paragraphs (a)(17) (ii), (v) and (vi) of this clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors are subject to the non-
disclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement (DFARS or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends;
(C) The Government shall not permit the recipient to decompile
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(17)(iv) of this clause, for any other
purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(17)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items, procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient is subject to the non-disclosure
agreement at DFARS 227.7103-7 or is a Government contractor
receiving access to the software for performance of a Government
contract that contains the clause at DFARS 252.227-7025, Limitations
on the Use or Disclosure of Government Furnished Information Marked
with Restrictive Legends; and
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(17)(iv) of this clause, for any other
purpose.
(18) SBIR data rights means a royalty-free license for the
Government, including its support service contractors, to use,
modify, reproduce, release, perform, display, or disclose technical
data or computer software generated and delivered under this
contract for any United States Government purpose.
(19) Technical data means recorded information, regardless of
the form or method of the recording, of a scientific or technical
nature (including computer software documentation). The term does
not include computer software or data incidental to contract
administration, such as financial and/or management information.
(20) Unlimited rights means rights to use, modify, reproduce,
release, perform, display, or disclose, technical data or computer
software in whole or in part, in any manner and for any purpose
whatsoever, and to have or authorize others to do so.
(b) Rights in technical data and computer software. The
Contractor grants or shall obtain for the Government the following
royalty-free, world-wide, nonexclusive, irrevocable license rights
in technical data or noncommercial computer software. All rights not
granted to the Government are retained by the Contractor.
(1) Unlimited rights. The Government shall have unlimited
rights in technical data, including computer software documentation,
or computer software generated under this contract that are--
(i) Form, fit, and function data;
(ii) Necessary for installation, operation, maintenance, or
training purposes (other than detailed manufacturing or process
data);
(iii) Corrections or changes to Government-furnished technical
data or computer software;
(iv) Otherwise publicly available or have been released or
disclosed by the Contractor or a subcontractor without restrictions
on further use, release or disclosure other than a release or
disclosure resulting from the sale, transfer, or other assignment of
interest in the technical data or computer software to another party
or the sale or transfer of some or all of a business entity or its
assets to another party;
(v) Data or software in which the Government has acquired
previously unlimited rights under another Government contract or
through a specific license; and
(vi) SBIR data upon expiration of the SBIR data rights period.
(2) Limited rights. The Government shall have limited rights in
technical data, that were not generated under this contract, pertain
to items, components or processes developed exclusively at private
expense, and are marked, in accordance with the marking instructions
in paragraph (f)(1) of this clause, with the legend prescribed in
paragraph (f)(2) of this clause.
(3) Restricted rights in computer software. The Government shall
have restricted rights in noncommercial computer software required
to be delivered or otherwise furnished to the Government under this
contract that were developed exclusively at private expense and were
not generated under this contract.
(4) SBIR data rights. (i) Except for technical data, including
computer software documentation, or computer software in which the
Government has unlimited rights under paragraph (b)(1) of this
clause, the Government shall have SBIR data rights in all technical
data or computer software generated under this contract during the
period commencing with contract award and ending upon the date five
years after completion of the project from which such data were
generated.
(ii) The Government may not release or disclose SBIR data to any
person, other than its support services contractors, except--
(A) As expressly permitted by the Contractor;
(B) For evaluation purposes; or
(C) A release, disclosure, or use that is necessary for
emergency repair or overhaul of items operated by the Government.
(iii) A release or disclosure of SBIR data to the Government's
support services contractors, or a release or disclosure under
paragraph (b)(4)(ii)(B) or (C) of this clause, may be made only if,
prior to release or disclosure, the intended recipient is subject to
the use and non-disclosure agreement at DFARS 227.7103-7 or is a
Government contractor receiving access to the technical data or
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, Limitations on the Use of Disclosure
of Government-Furnished Information Marked with Restrictive Legends.
(5) Specifically negotiated license rights. The standard license
rights granted to the Government under paragraphs (b)(1) through
(b)(4) of this clause may be modified by mutual agreement to provide
such rights as the parties consider appropriate but shall not
provide the Government lesser rights in technical data, including
computer software documentation, than are enumerated in paragraph
(a)(14) of this clause or lesser rights in computer software than
are enumerated in paragraph (a)(17) of this clause. Any rights so
negotiated shall be identified in a license agreement made part of
this contract.
(6) Prior government rights. Technical data, including computer
software documentation, or computer software that will be delivered,
furnished, or otherwise provided to the Government under this
contract, in which the Government has previously obtained rights
shall be delivered, furnished, or provided with the pre-existing
rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
release, perform, display, or disclose the technical data or
computer software have expired or no longer apply. [[Page 33501]]
(7) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of technical
data, computer software, or computer software documentation made in
accordance with paragraph (a)(14), (a)(17), or (b)(4) of this
clause, or in accordance with the terms of a license negotiated
under paragraph (b)(5) of this clause, or by others to whom the
recipient has released or disclosed the data, software, or
documentation and to seek relief solely from the party who has
improperly used, modified, reproduced, released, performed,
displayed, or disclosed Contractor data or software marked with
restrictive legends.
(c) Rights in derivative computer software or computer software
documentation. The Government shall retain its rights in the
unchanged portions of any computer software or computer software
documentation delivered under this contract that the Contractor uses
to prepare, or includes in, derivative software or documentation.
(d) Third party copyrighted technical data and computer
software. The Contractor shall not, without the written approval of
the Contracting Officer, incorporate any copyrighted technical data,
including computer software documentation, or computer software in
the data or software to be delivered under this contract unless the
Contractor is the copyright owner or has obtained for the Government
the license rights necessary to perfect a license or licenses in the
deliverable data or software of the appropriate scope set forth in
paragraph (b) of this clause and, prior to delivery of such--
(1) Technical data, has affixed to the transmittal document a
statement of the license rights obtained; or
(2) Computer software, has provided a statement of the license
rights obtained in a form acceptable to the Contracting Officer.
(e) Identification and delivery of technical data or computer
software to be furnished with restrictions on use, release, or
disclosure. (1) This paragraph does not apply to technical data or
computer software that were or will be generated under this contract
or to restrictions based solely on copyright.
(2) Except as provided in paragraph (e)(3) of this clause,
technical data or computer software that the Contractor asserts
should be furnished to the Government with restrictions on use,
release, or disclosure is identified in an attachment to this
contract (the Attachment). The Contractor shall not deliver any
technical data or computer software with restrictive markings unless
the technical data or computer software are listed on the
Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new
information or inadvertent omissions unless the inadvertent
omissions would have materially affected the source selection
decision. Such identification and assertion shall be submitted to
the Contracting Officer as soon as practicable prior to the
scheduled date for delivery of the technical data or computer
software, in the following format, and signed by an official
authorized to contractually obligate the Contractor:
Identification and Assertion of Restrictions on the Government's
Use, Release, or Disclosure of Technical Data or Computer Software.
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following technical data or computer software should be restricted:
------------------------------------------------------------------------
Technical data or computer Asserted Name of person
software to be furnished Basis for rights asserting
with restrictions \1\ assertion category \3\ restrictions
----------------------------------\2\--------------------------\4\------
(LIST)..................... (LIST)...... (LIST)...... (LIST)
------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components, or processes
developed at private expense, identify both the technical data and
each such item, component, or process.
\2\ Generally, development at private expense, either exclusively or
partially, is the only basis for asserting restrictions on the
Government's rights to use, release, or disclose technical data or
computer software. Indicate whether development was exclusively or
partially at private expense. If development was not at private
expense, enter the specific reason for asserting that the Government's
rights should be restricted.
\3\ Enter asserted rights category (e.g., limited rights, restricted
rights, government purpose rights, or government purpose license
rights from a prior contract, SBIR data rights under another contract,
or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
(4) When requested by the Contracting Officer, the Contractor
shall provide sufficient information to enable the Contracting
Officer to evaluate the Contractor's assertions. The Contracting
Officer reserves the right to add the Contractor's assertions to the
Attachment and validate any listed assertions, at a later date, in
accordance with the procedures of the Validation of Asserted
Restrictions--Computer Software and/or Validation of Restrictive
Markings on Technical Data clauses of this contract.
(f) Marking requirements. The Contractor, and its subcontractors
or suppliers, may only assert restrictions on the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data or computer software to be delivered under
this contract by marking the deliverable data or software subject to
restriction. Except as provided in paragraph (f)(6) of this clause,
only the following markings are authorized under this contract: the
limited rights legend at paragraph (f)(2) of this clause; the
restricted rights legend at paragraph (f)(3) of this clause, the
SBIR data rights legend at paragraph (f)(4) of this clause, or the
special license rights legend at paragraphs (f)(5) of this clause;
and/or a notice of copyright as prescribed under 17 U.S.C. 401 or
402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate legend to all technical data and computer software
that qualify for such markings. The authorized legends shall be
placed on the transmittal document or storage container and, for
printed material, each page of the printed material containing
technical data or computer software for which restrictions are
asserted. When only portions of a page of printed material are
subject to the asserted restrictions, such portions shall be
identified by circling, underscoring, with a note, or other
appropriate identifier. Technical data or computer software
transmitted directly from one computer or computer terminal to
another shall contain a notice of asserted restrictions. However,
instructions that interfere with or delay the operation of computer
software in order to display a restrictive rights legend or other
license statement at any time prior to or during use of the computer
software, or otherwise cause such interference or delay, shall not
be inserted in software that will or might be used in combat or
situations that simulate combat conditions, unless the Contracting
Officer's written permission to deliver such software has been
obtained prior to delivery. Reproductions of technical data,
computer software, or any portions thereof subject to asserted
restrictions shall also reproduce the asserted restrictions.
(2) Limited rights markings. Technical data not generated under
this contract that pertain to items, components, or processes
developed exclusively at private expense and delivered or otherwise
furnished with limited rights shall be marked with the following
legend:
Limited Rights
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose these technical data are restricted by
paragraph (b)(2) of the Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research (SBIR) Program
clause contained in the above identified contract. Any reproduction
of technical data or portions thereof marked with this legend must
also reproduce the markings. Any person, other than the Government,
who has been provided access to such data must promptly notify the
above named Contractor.
(End of legend)
(3) Restricted rights markings. Computer software delivered or
otherwise furnished to the Government with restricted rights shall
be marked with the following legend:
Restricted Rights
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
[[Page 33502]] -------------------------------------------------------
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose this software are restricted by paragraph
(b)(3) of the Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovative Research (SBIR) Program clause
contained in the above identified contract. Any reproduction of
computer software or portions thereof marked with this legend must
also reproduce the markings. Any person, other than the Government,
who has been provided access to such data must promptly notify the
above named Contractor.
(End of legend)
(4) SBIR data rights markings: Except for technical data or
computer software in which the Government has acquired unlimited
rights under paragraph (b)(1) of this clause, or negotiated special
license rights as provided in paragraph (b)(5) of this clause,
technical data or computer software generated under this contract
shall be marked with the following legend. The Contractor shall
enter the expiration date for the SBIR data rights period on the
legend:
SBIR Data Rights
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Address----------------------------------------------------------------
----------------------------------------------------------------------
Expiration of SBIR Data Rights Period----------------------------------
The Government's rights to use, modify, reproduce, release, perform,
display, or disclose technical data or computer software marked with
this legend are restricted during the period shown as provided in
paragraph (b)(4) of the Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research (SBIR) Program
clause contained in the above identified contract. No restrictions
apply after the expiration date shown above. Any reproduction of
technical data, computer software, or portions thereof marked with
this legend must also reproduce the markings.
(End of legend)
(5) Special license rights markings. (i) Technical data or
computer software in which the Government's rights stem from a
specifically negotiated license shall be marked with the following
legend:
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this technical data or computer
software are restricted by Contract No. ________________ (Insert
contract number) ________________, License No. ________________
(Insert license identifier) ________________. Any reproduction of
technical data, computer software, or portions thereof marked with
this legend must also reproduce the markings.
(end of legend)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (b)(6) of this clause).
(6) Pre-existing data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data or computer software, and those restrictions
are still applicable, the Contractor may mark such data or software
with the appropriate restrictive legend for which the data or
software qualified under the prior contract or license. The marking
procedures in paragraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the Contractor, and its subcontractors or suppliers
that will deliver technical data or computer software with other
than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by
the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data or computer software
delivered under this contract.
(h) Removal of unjustified and nonconforming markings.
(1) Unjustified markings. The rights and obligations of the
parties regarding the validation of restrictive markings on
technical data or computer software furnished or to be furnished
under this contract are contained in the Validation of Restrictive
Markings on Technical Data and the Validation of Asserted
Restrictions--Computer Software clauses of this contract,
respectively. Notwithstanding any provision of this contract
concerning inspection and acceptance, the Government may ignore or,
at the Contractor's expense, correct or strike a marking if, in
accordance with the applicable procedures of those clauses, a
restrictive marking is determined to be unjustified.
(2) Nonconforming markings. A nonconforming marking is a marking
placed on technical data or computer software delivered or otherwise
furnished to the Government under this contract that is not in the
format authorized by this contract. Correction of nonconforming
markings is not subject to the Validation of Restrictive Markings on
Technical Data or the Validation of Asserted Restrictions--Computer
Software clause of this contract. If the Contracting Officer
notifies the Contractor of a nonconforming marking or markings and
the Contractor fails to remove or correct such markings within sixty
(6)) days, the Government may ignore or, at the Contractor's
expense, remove or correct any nonconforming markings.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(j) Limitation on charges for rights in technical data or
computer software. (1) The Contractor shall not charge to this
contract any cost, including but not limited to, license fees,
royalties, or similar charges, for rights in technical data or
computer software to be delivered under this contract when--
(i) the Government has acquired, by any means, the same or
greater rights in the data or software; or
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1) of this clause--
(i) Includes costs charged by a subcontractor or supplier, at
any tier, or costs incurred by the Contractor to acquire rights in
subcontractor of supplier technical data or computer software, if
the subcontractor or supplier has been paid for such rights under
any other Government contract or under a license conveying the
rights to the Government; and
(ii) does not include the reasonable costs of reproducing,
handling, or mailing the documents or other media in which the
technical data or computer software will be delivered.
(k) Applicability to subcontractors or suppliers. (1) the
Contractor shall assure that the rights afforded its subcontractors
and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the
identification, assertion, and delivery processes required by
paragraph (e) of this clause are recognized and protected.
(2) Whenever any noncommercial technical data or computer
software is to be obtained from a subcontractor or supplier for
delivery to the Government under this contract, the Contractor shall
use this same clause in the subcontract or other contractual
instrument, and require its subcontractors or suppliers to do so,
without alteration, except to identify the parties. The Contractor
shall use the Technical Data--Commercial Items clause of this
contract to obtain technical data pertaining to commercial items,
components, or processes. No other clause shall be used to enlarge
or diminish the Government's, the Contractor's, or a higher tier
subcontractor's or supplier's rights in a subcontractor's or
supplier's technical data or computer software.
(3) Technical data required to be delivered by a subcontractor
or supplier shall normally be delivered to the next higher tier
contractor, subcontractor, or supplier. However, when there is a
requirement in the prime contract for technical data which may be
submitted with other than unlimited rights by a subcontractor or
supplier, then said subcontractor or supplier may fulfill its
requirement by submitting such technical data directly to the
Government, rather than through a higher tier contractor,
subcontractor, or supplier.
(4) The Contractor and higher tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in technical data or computer software from their
subcontractors or suppliers.
(5) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in technical
data or computer software as an excuse for failing to satisfy its
contractual obligation to the Government.
(End of clause)
Alternate I (June 1995)
As prescribed in 227.7104(d), add the following paragraph (l) to
the basic clause:
(l) Publication for sale. (1) This paragraph applies only to
technical data or computer software delivered to the Government with
SBIR data rights. [[Page 33503]]
(2) Upon expiration of the SBIR data rights period, the
Government will not exercise its right to publish or authorize
others to publish an item of technical data or computer software
identified in this contract as being subject to paragraph (l) of
this clause if the Contractor, prior to the expiration of the SBIR
data rights period, or within two years following delivery of the
data or software item, or within twenty-four months following the
removal of any national security or export control restrictions,
whichever is later, publishes such data or software item(s) and
promptly notifies the Contracting Officer of such publication(s).
Any such publication(s) shall include a notice identifying the
number of this contract and the Government's rights in the published
data.
(3) This limitation on the Government's right to publish for
sale shall continue as long as the technical data or computer
software are reasonably available to the public for purchase.
18. Section 252.227-7019 is revised to read as follows:
252.227-7019 Validation of asserted restrictions--Computer software.
As prescribed in 227.7104(e)(3) or 227.7203-6(c), use the following
clause:
Validation of Asserted Restrictions--Computer Software (June 1995)
(a) Definitions. (1) As used in this clause, unless otherwise
specifically indicated, the term ``Contractor'' means the Contractor
and its subcontractors or suppliers.
(2) Other terms used in this clause are defined in the Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation clause of this contract.
(b) Justification. The Contractor shall maintain records
sufficient to justify the validity of any markings that assert
restrictions on the Government's rights to use, modify, reproduce,
perform, display, release, or disclose computer software delivered
or required to be delivered under this contract and shall be
prepared to furnish to the Contracting Officer a written
justification for such restrictive markings in response to a request
for information under paragraph (d) or a challenge under paragraph
(f) of this clause.
(c) Direct contact with subcontractors or suppliers. The
Contractor agrees that the Contracting Officer may transact matters
under this clause directly with subcontractors or suppliers at any
tier who assert restrictions on the Government's right to use,
modify, reproduce, release, perform, display, or disclose computer
software. Neither this clause, nor any action taken by the
Government under this clause, creates or implies privity of contract
between the Government and the Contractor's subcontractors or
suppliers.
(d) Requests for information. (1) The Contracting Officer may
request the Contractor to provide sufficient information to enable
the Contracting Officer to evaluate the Contractor's asserted
restrictions. Such information shall be based upon the records
required by this clause or other information reasonably available to
the Contractor.
(2) Based upon the information provided, if the--
(i) Contractor agrees that an asserted restriction is not valid,
the Contracting Officer may--
(A) Strike or correct the unjustified marking at the
Contractor's expense; or
(B) Return the computer software to the Contractor for
correction at the Contractor's expense. If the Contractor fails to
correct or strike the unjustified restrictions and return the
corrected software to the Contracting Officer within sixty (60) days
following receipt of the software, the Contracting Officer may
correct the strike the markings at the Contractor's expense.
(ii) Contracting Officer concludes that the asserted restriction
is appropriate for this contract, the Contracting Officer shall so
notify the Contractor in writing.
(3) The Contractor's failure to provide a timely response to a
Contracting Officer's request for information or failure to provide
sufficient information to enable the Contracting Officer to evaluate
an asserted restriction shall constitute reasonable grounds for
questioning the validity of an asserted restriction.
(e) Government right to challenge and validate asserted
restrictions. (1) The Government, when there are reasonable grounds
to do so, has the right to review and challenge the validity of any
restrictions asserted by the Contractor on the Government's rights
to use, modify, reproduce, release, perform, display, or disclose
computer software delivered, to be delivered under this contract, or
otherwise provided to the Government in the performance of this
contract. Except for software that is publicly available, has been
furnished to the Government without restrictions, or has been
otherwise made available without restrictions, the Government may
exercise this right only within three years after the date(s) the
software is delivered or otherwise furnished to the Government, or
three years following final payment under this contract, whichever
is later.
(2) The absence of a challenge to an asserted restriction shall
not constitute validation under this clause. Only a Contracting
Officer's final decision or actions of an agency Board of Contract
Appeals or a court of competent jurisdiction that sustain the
validity of an asserted restriction constitute validation of the
restriction.
(f) Challenge procedures. (1) A challenge must be in writing and
shall--
(i) State the specific grounds for challenging the asserted
restriction;
(ii) Require the Contractor to respond within sixty (60) days;
(iii) Require the Contractor to provide justification for the
assertion based upon records kept in accordance with paragraph (b)
of this clause and such other documentation that are reasonably
available to the Contractor, in sufficient detail to enable the
Contracting Officer to determine the validity of the asserted
restrictions; and
(iv) State that a Contracting Officer's final decision, during
the three-year period preceding this challenge, or action of a court
of competent jurisdiction or Board of Contract Appeals that
sustained the validity of an identical assertion made by the
Contractor (or a licensee) shall serve as justification for the
asserted restriction.
(2) The Contracting Officer shall extend the time for response
if the Contractor submits a written request showing the need for
additional time to prepare a response.
(3) The Contracting Officer may request additional supporting
documentation if, in the Contracting Officer's opinion, the
Contractor's explanation does not provide sufficient evidence to
justify the validity of the asserted restrictions. The Contractor
agrees to promptly respond to the Contracting Officer's request for
additional supporting documentation.
(4) Notwithstanding challenge by the Contracting Officer, the
parties may agree on the disposition of an asserted restriction at
any time prior to a Contracting Officer's final decision or, if the
Contractor has appealed that decision, filed suit, or provided
notice of an intent to file suit, at any time prior to a decision by
a court of competent jurisdiction or Board of Contract Appeals.
(5) If the Contractor fails to respond to the Contracting
Officer's request for information or additional information under
paragraph (f)(1) of this clause, the Contracting Officer shall issue
a final decision, in accordance with the Disputes clause of this
contract, pertaining to the validity of the asserted restriction.
(6) If the Contracting Officer, after reviewing the written
explanation furnished pursuant to paragraph (f)(1) of this clause,
or any other available information pertaining to the validity of an
asserted restriction, determines that the asserted restriction has--
(i) Not been justified, the Contracting Officer shall issue
promptly a final decision, in accordance with the Disputes clause of
this contract, denying the validity of the asserted restriction; or
(ii) Been justified, the Contracting Officer shall issue
promptly a final decision, in accordance with the Disputes clause of
this contract, validating the asserted restriction.
(7) A Contractor receiving challenges to the same asserted
restriction(s) from more than one Contracting Officer shall notify
each Contracting Officer of the other challenges. The notice shall
also state which Contracting Officer initiated the first in time
unanswered challenge. The Contracting Officer who initiated the
first in time unanswered challenge, after consultation with the
other Contracting Officers who have challenged the restrictions and
the Contractor, shall formulate and distribute a schedule that
provides the contractor a reasonable opportunity for responding to
each challenge.
(g) Contractor appeal--Government obligation. (1) The Government
agrees that, notwithstanding a Contracting Officer's final decision
denying the validity of an asserted restriction and except as
provided in paragraph (g)(3) of this clause, it will honor the
asserted restriction--
(i) For a period of ninety (90) days from the date of the
Contracting Officer's final decision to allow the Contractor to
appeal to the appropriate Board of Contract Appeals or to file suit
in an appropriate court;
(ii) For a period of one year from the date of the Contracting
Officer's final decision if, [[Page 33504]] within the first ninety
(90) days following the Contracting Officer's final decision, the
Contractor has provided notice of an intent to file suit in an
appropriate court; or
(iii) Until final disposition by the appropriate Board of
Contract Appeals or court of competent jurisdiction, if the
Contractor has: (A) appealed to the Board of Contract Appeals or
filed suit an appropriate court within ninety (90) days; or (B)
submitted, within ninety (90) days, a notice of intent to file suit
in an appropriate court and filed suit within one year.
(2) The Contractor agrees that the Government may strike,
correct, or ignore the restrictive markings if the Contractor fails
to--
(i) Appeal to a Board of Contract Appeals within ninety (90)
days from the date of the Contracting Officer's final decision;
(ii) File suit in an appropriate court within ninety (90) days
from such date; or
(iii) File suit within one year after the date of the
Contracting Officer's final decision if the Contractor had provided
notice of intent to file suit within ninety (90) days following the
date of the Contracting Officer's final decision.
(3) The agency head, on a nondelegable basis, may determine that
urgent or compelling circumstances do not permit awaiting the filing
of suit in an appropriate court, or the rendering of a decision by a
court of competent jurisdiction or Board of Contract Appeals. In
that event, the agency head shall notify the Contractor of the
urgent or compelling circumstances. Notwithstanding paragraph (g)(1)
of this clause, the Contractor agrees that the agency may use,
modify, reproduce, release, perform, display, or disclose computer
software marked with (i) government purpose legends for any purpose,
and authorize others to do so; or (ii) restricted or special license
rights for government purposes only. The Government agrees not to
release or disclose such software unless, prior to release or
disclosure, the intended recipient is subject to the use and non-
disclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement (DFARS), or is a Government
contractor receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends. The agency head's
determination may be made at any time after the date of the
Contracting Officer's final decision and shall not affect the
Contractor's right to damages against the United States, or other
relief provided by law, if its asserted restrictions are ultimately
upheld.
(h) Final disposition of appeal or suit. If the Contractor
appeals or files suit and if, upon final disposition of the appeal
or suit, the Contracting Officer's decision is:
(1) Sustained--
(i) Any restrictive marking on such computer software shall be
struck or corrected at the contractor's expense or ignored; and
(ii) If the asserted restriction is found not to be
substantially justified, the Contractor shall be liable to the
Government for payment of the cost to the Government of reviewing
the asserted restriction and the fees and other expenses (as defined
in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in
challenging the restriction, unless special circumstances would make
such payment unjust.
(2) Not sustained--
(i) The Government shall be bound by the asserted restriction;
and
(ii) If the challenge by the Government is found not to have
been made in good faith, the Government shall be liable to the
Contractor for payment of fees and other expenses (as defined in 28
U.S.C. 2412(d)(2)(A)) incurred by the Contractor in defending the
restriction.
(i) Flowdown. The Contractor shall insert this clause in all
contracts, purchase orders, and other similar instruments with its
subcontractors or suppliers, at any tier, who will be furnishing
computer software to the Government in the performance of this
contract. The clause may not be altered other than to identify the
appropriate parties.
(End of clause)
19. Section 252.227-7020 is revised to read as follows:
252.227-7020 Rights in special works.
As prescribed in 227.7105-3, 227.7106(a) or 227.7205(a), use the
following clause:
Rights in Special Works (June 1995)
(a) Applicability. This clause applies to works first created,
generated, or produced and required to be delivered under this
contract.
(b) Definitions. As used in this clause:
(1) ``Computer data base'' means a collection of data recorded
in a form capable of being processed by a computer. The term does
not include computer software.
(2) ``Computer program'' means a set of instructions, rules, or
routines recorded in a form that is capable of causing a computer to
perform a specific operation or series of operations.
(3) ``Computer software'' means computer programs, source code,
source code listings, object code listings, design details,
algorithms, processes, flow charts, formulae and related material
that would enable the software to be reproduced, recreated, or
recompiled. Computer software does not include computer data bases
or computer software documentation.
(4) ``Computer software documentation'' means owner's manuals,
user's manuals, installation instructions, operating instructions,
and other similar items, regardless of storage medium, that explain
the capabilities of the computer software or provide instructions
for using the software.
(5) ``Unlimited rights'' means the rights to use, modify,
reproduce, perform, display, release, or disclose a work in whole or
in part, in any manner, and for any purpose whatsoever, and to have
or authorize others to do so.
(6) The term ``works'' includes computer data bases, computer
software, or computer software documentation; literary, musical,
choreographic, or dramatic compositions; pantomimes; pictorial,
graphic, or sculptural compositions; motion pictures and other
audiovisual compositions; sound recordings in any medium; or, items
of similar nature.
(c) License rights. (1) The Government shall have unlimited
rights in works first produced, created, or generated and required
to be delivered under this contract.
(2) When a work is first produced, created, or generated under
this contract, and such work is required to be delivered under this
contract, the Contractor shall assign copyright in those works to
the Government. The Contractor, unless directed to the contrary by
the Contracting Officer, shall place the following notice on such
works: `` (Year date of delivery) United States
Government, as represented by the Secretary of (department). All
rights reserved.''
For phonorecords, the ``'' markings shall be replaced
by a ``P''.
(3) The Contractor grants to the Government a royalty-free,
world-wide, nonexclusive, irrevocable license to reproduce, prepare
derivative works from, distribute, perform, or display, and to have
or authorize others to do so, the Contractor's copyrighted works not
first produced, created, or generated under this contract that have
been incorporated into the works deliverable under this contract.
(d) Third party copyrighted data. The Contractor shall not
incorporate, without the written approval of the Contracting
Officer, any copyrighted works in the works to be delivered under
this contract unless the Contractor is the copyright owner or has
obtained for the Government the license rights necessary to perfect
a license of the scope identified in paragraph (c)(3) of this clause
and, prior to delivery of such works--
(1) Has affixed to the transmittal document a statement of the
license rights obtained; or
(2) For computer software, has provided a statement of the
license rights obtained in a form acceptable to the Contracting
Officer.
(e) Indemnification. The Contractor shall indemnify and save and
hold harmless the Government, and its officers, agents and employees
acting for the Government, against any liability, including costs
and expenses, (1) for violation of proprietary rights, copyrights,
or rights of privacy or publicity, arising out of the creation,
delivery, use, modification, reproduction, release, performance,
display, or disclosure of any works furnished under this contract,
or (2) based upon any libelous or other unlawful matter contained in
such works.
(f) Government-furnished information. Paragraphs (d) and (e) of
this clause are not applicable to information furnished to the
Contractor by the Government and incorporated in the works delivered
under this contract.
(End of clause)
252.227-7021 [Amended]
20. Section 252.227-7021 is amended by revising the introductory
text to read ``As prescribed at 227.7105-2(a), use the following
clause:''.
252.227-7022 [Amended]
21. Section 252.227-7022 is amended by revising the introductory
text to read [[Page 33505]] ``As prescribed at 227.7107-1(a), use the
following clause:''.
252.227-7023 [Amended]
22. Section 252.227-7023 is amended by revising the introductory
text to read ``As prescribed at 227.7107-1(b), use the following
clause:''.
252.227-7024 [Amended]
23. Section 252.227-7024 is amended by revising the introductory
text to read ``As prescribed at 227.7107-3, use the following
clause:''.
24. Section 252.227-7025 is added to read as follows:
252.227-7025 Limitations on the use or disclosure of government-
furnished information marked with restrictive legends.
As prescribed in 227.7103-6(c), 227.7104(f)(1), or 227.7203-6(d),
use the following clause:
Limitations on the Use or Disclosure of Government-Furnished
Information Marked With Restrictive Legends (June 1995)
(a)(1) For contracts requiring the delivery of technical data,
the terms ``limited rights'' and ``Government purpose rights'' are
defined in the Rights in Technical Data--Noncommercial Items clause
of this contract.
(2) For contracts that do not require the delivery of technical
data, the terms ``government purpose rights'' and ``restricted
rights'' are defined in the Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation clause of
this contract.
(3) For Small Business Innovative Research program contracts,
the terms ``limited rights'' and ``restricted rights'' are defined
in the Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovative Research (SBIR) Program clause
of this contract.
(b) Technical data or computer software provided to the
Contractor as Government furnished information (GFI) under this
contract may be subject to restrictions on use, modification,
reproduction, release, performance, display, or further disclosure.
(1) GFI marked with limited or restricted rights legends. The
Contractor shall use, modify, reproduce, perform, or display
technical data received from the Government with limited rights
legends or computer software received with restricted rights legends
only in the performance of this contract. The Contractor shall not,
without the express written permission of the party whose name
appears in the legend, release or disclose such data or software to
any person.
(2) GFI marked with government purpose rights legends. The
Contractor shall use technical data or computer software received
from the Government with government purpose rights legends for
government purposes only. The Contractor shall not, without the
express written permission of the party whose name appears in the
restrictive legend, use, modify, reproduce, release, perform, or
display such data or software for any commercial purpose or disclose
such data or software to a person other than its subcontractors,
suppliers, or prospective subcontractors or suppliers, who require
the data or software to submit offers for, or perform, contracts
under this contract. Prior to disclosing the data or software, the
Contractor shall require the persons to whom disclosure will be made
to complete and sign the non-disclosure agreement at 227.7103-7 of
the Defense Federal Acquisition Regulation Supplement (DFARS).
(3) GFI marked with specially negotiated license rights legends.
The Contractor shall use, modify, reproduce, release, perform, or
display technical data or computer software received from the
Government with specially negotiated license legends only as
permitted in the license. Such data or software may not be released
or disclosed to other persons unless permitted by the license and,
prior to release or disclosure, the intended recipient has completed
the non-disclosure agreement at DFARS 227.7103-7. The Contractor
shall modify paragraph (1)(c) of the non-disclosure agreement to
reflect the recipient's obligations regarding use, modification,
reproduction, release, performance, display, and disclosure of the
data or software.
(c) Indemnification and creation of third party beneficiary
rights. The Contractor agrees--
(1) To indemnify and hold harmless the Government, its agents,
and employees from every claim or liability, including attorneys
fees, court costs, and expenses, arising out of, or in any way
related to, the misuse or unauthorized modification, reproduction,
release, performance, display, or disclosure of technical data or
computer software received from the Government with restrictive
legends by the Contractor or any person to whom the Contractor has
released or disclosed such data or software; and
(2) That the party whose name appears on the restrictive legend,
in addition to any other rights it may have, is a third party
beneficiary who has the right of direct action against the
Contractor, or any person to whom the Contractor has released or
disclosed such data or software, for the unauthorized duplication,
release, or disclosure of technical data or computer software
subject to restrictive legends.
(End of clause)
252.227-7026 [Amended]
25. Section 252.227-7026 is amended by revising the introductory
text to read ``As prescribed at 227.7103-8(a), use the following
clause:''.
252.227-7027 [Amended]
26. Section 252.227-7027 is amended by revising the introductory
text to read ``As prescribed at 227.7103-8(b), use the following
clause:''.
27. Section 252.227-7028 is revised to read as follows:
252.227-7028 Technical data or computer software previously delivered
to the government.
As prescribed in 227.7103-6(d), 227.7104(f)(2), of 227.7203-6(e),
use the following provision:
Technical Data or Computer Software Previously Delivered to the
Government (June 1995)
The Offeror shall attach to its offer an identification of all
documents or other media incorporating technical data or computer
software it intends to deliver under this contract with other than
unlimited rights that are identical or substantially similar to
documents or other media that the Offeror has produced for,
delivered to, or is obligated to deliver to the Government under any
contract or subcontract. The attachment shall identify--
(a) The contract number under which the data or software were
produced;
(b) The contract number under which, and the name and address of
the organization to whom, the data or software were most recently
delivered or will be delivered; and
(c) Any limitations on the Government's rights to use or
disclose the data or software, including, when applicable,
identification of the earliest date the limitations expire.
(End of provision)
252.227-7029 [Removed and Reserved]
28. Section 252.227-7029 is removed and reserved.
252.227-7030 [Amended]
29. Section 252.227-7030 is amended by revising the introductory
text to read ``As prescribed at 227.7103-6(f)(2) or 227.7104(e)(4),
used the following clause:''.
252.227-7031 [Removed and Reserved]
30. Section 252.227-7031 is removed and reserved.
252.227-7032 [Amended]
31. Section 252.227-7032 is amended by revising the introductory
text to read ``As prescribed in 227.7103-17, use the following
clause:''.
252.227-7033 [Amended]
32. Section 252.227-7033 is amended by revising the introductory
text to read ``As prescribed in 227.7107-1(c), use the following
clause:''.
252.227-7036 [Amended]
33. Section 252.227-7036 is amended by revising the introductory
text to read ``As prescribed in 227.7103-6(e)(3) or 227.7104(e)(5), use
the following clause:''.
34. Section 252.227-7037 is revised to read as follows:
252.227-7037 Validation of restrictive markings on technical data.
As prescribed in 227.7102-3(c), 227.7103(e)(4), 227.7104(e)(6), or
227.7203-6(f), use the following clause:
Validation of Restrictive Markings on Technical Data (June 1995)
(a) Definitions. The terms used in this clause are defined in
the Rights in Technical Data--Noncommercial Items clause of this
contract. [[Page 33506]]
(b) Contracts for commercial items--presumption of development
at private expense. Under a contract for a commercial item,
component, or process, the Department of Defense shall presume that
a Contractor's asserted use or release restrictions are justified on
the basis that the item, component, or process was developed
exclusively at private expense. The Department shall not challenge
such assertions unless information the Department demonstrates that
the item, component, or process was not developed exclusively at
private expense.
(c) Justification. The Contractor or subcontractor at any tier
is responsible for maintaining records sufficient to justify the
validity of its markings that impose restrictions on the Government
and others to use, duplicate, or disclose technical data delivered
or required to be delivered under the contract or subcontract.
Except under contracts for commercial items, the Contractor or
subcontractor shall be prepared to furnish to the Contracting
Officer a written justification for such restrictive markings in
response to a challenge under paragraph (e) of this clause.
(d) Prechallenge request for information. (1) The Contracting
Officer may request the Contractor or subcontractor to furnish a
written explanation for any restriction asserted by the Contractor
or subcontractor on the right of the United States or others to use
technical data. If, upon review of the explanation submitted, the
Contracting Officer remains unable to ascertain the basis of the
restrictive marking, the Contracting Officer may further request the
Contractor or subcontractor to furnish additional information in the
records of, or otherwise in the possession of or reasonably
available to, the Contractor or subcontractor to justify the
validity of any restrictive marking on technical data delivered or
to be delivered under the contract or subcontract (e.g., a statement
of facts accompanied with supporting documentation). The Contractor
or subcontractor shall submit such written data as requested by the
Contracting Officer within the time required or such longer period
as may be mutually agreed.
(2) If the Contracting Officer, after reviewing the written data
furnished pursuant to paragraph (d)(1) of this clause, or any other
available information pertaining to the validity of a restrictive
marking, determines that reasonable grounds exist to question the
current validity of the marking and that continued adherence to the
marking would make impracticable the subsequent competitive
acquisition of the item, component, or process to which the
technical data relates, the Contracting Officer shall follow the
procedures in paragraph (e) of this clause.
(3) If the Contractor or subcontractor fails to respond to the
Contracting Officer's request for information under paragraph (d)(1)
of this clause, and the Contracting Officer determines that
continued adherence to the marking would make impracticable the
subsequent competitive acquisition of the item, component, or
process to which the technical data relates, the Contracting Officer
may challenge the validity of the marking as described in paragraph
(e) of this clause.
(e) Challenge. (1) Notwithstanding any provision of this
contract concerning inspection and acceptance, if the Contracting
Officer determines that a challenge to the restrictive marking is
warranted, the Contracting Officer shall send a written challenge
notice to the Contractor or subcontractor asserting the restrictive
markings. Such challenge shall--
(i) State the specific grounds for challenging the asserted
restriction;
(ii) Require a response within sixty (60) days justifying and
providing sufficient evidence as to the current validity of the
asserted restriction;
(iii) State that a DoD Contracting Officer's final decision,
issued pursuant to paragraph (g) of this clause, sustaining the
validity of a restrictive marking identical to the asserted
restriction, within the three-year period preceding the challenge,
shall serve as justification for the asserted restriction if the
validated restriction was asserted by the same Contractor or
subcontractor (or any licensee of such Contractor or subcontractor)
to which such notice is being provided; and
(iv) State that failure to respond to the challenge notice may
result in issuance of a final decision pursuant to paragraph (f) of
this clause.
(2) The Contracting Officer shall extend the time for response
as appropriate if the Contractor or subcontractor submits a written
request showing the need for additional time to prepare a response.
(3) The Contractor's or subcontractor's written response shall
be considered a claim within the meaning of the Contract Disputes
Act of 1978 (41 U.S.C. 601, et seq.), and shall be certified in the
form prescribed at 33.207 of the Federal Acquisition Regulation,
regardless of dollar amount.
(4) A Contractor or subcontractor receiving challenges to the
same restrictive markings from more than one Contracting Officer
shall notify each Contracting Officer of the existence of more than
one challenge. The notice shall also state which Contracting Officer
initiated the first in time unanswered challenge. The Contracting
Officer initiating the first in time unanswered challenge after
consultation with the Contractor or subcontractor and the other
Contracting Officers, shall formulate and distribute a schedule for
responding to each of the challenge notices to all interested
parties. The schedule shall afford the Contractor or subcontractor
an opportunity to respond to each challenge notice. All parties will
be bound by this schedule.
(f) Final decision when Contractor or subcontractor fails to
respond. Upon a failure of a Contractor or subcontractor to submit
any response to the challenge notice, other than a failure to
respond under a contract for commercial items, the Contracting
Officer will issue a final decision to the Contractor or
subcontractor in accordance with the Disputes clause of this
contract pertaining to the validity of the asserted restriction.
This final decision shall be issued as soon as possible after the
expiration of the time period of paragraph (e)(1)(ii) or (e)(2) of
this clause. Following issuance of the final decision, the
Contracting Officer will comply with the procedures in paragraphs
(g)(2) (ii) through (iv) of this clause.
(g) Final decision when Contractor or subcontractor responds.
(1) if the Contracting Officer determines that the Contractor or
subcontractor has justified the validity of the restrictive marking,
the Contracting Officer shall issue a final decision to the
Contractor or subcontractor sustaining the validity of the
restrictive marking, and stating that the Government will continue
to be bound by the restrictive marking. This final decision shall be
issued within sixty (60) days after receipt of the Contractor's or
subcontractor's response to the challenge notice, or within such
longer period that the Contracting Officer has notified the
Contractor or subcontractor that the Government will require. The
notification of a longer period for issuance of a final decision
will be made within sixty (60) days after receipt of the response to
the challenge notice.
(2)(i) If the Contracting Officer determines that the validity
of the restrictive marking is not justified, the Contracting Officer
shall issue a final decision to the Contractor or subcontractor in
accordance with the Disputes clause of this contract.
Notwithstanding paragraph (e) of the Disputes clause, the final
decision shall be issued within sixty (60) days after receipt of the
Contractor's or subcontractor's response to the challenge notice, or
within such longer period that the Contracting Officer has notified
the Contractor or subcontractor of the longer period that the
Government will require. The notification of a longer period for
issuance of a final decision will be made within sixty (60) days
after receipt of the response to the challenge notice.
(ii) The Government agrees that it will continue to be bound by
the restrictive marking of a period of ninety (90) days from the
issuance of the Contracting Officer's final decision under paragraph
(g)(2)(i) of this clause. The Contractor or subcontractor agrees
that, if it intends to file suit in the United States Claims Court
it will provide a notice of intent to file suit to the Contracting
Officer within ninety (90) days from the issuance of the Contracting
Officer's final decision under paragraph (g)(2)(i) of this clause.
If the Contractor or subcontractor fails to appeal, file suit, or
provide a notice of intent to file suit to the Contracting Officer
within the ninety (90)-day period, the Government may cancel or
ignore the restrictive markings, and the failure of the Contractor
or subcontractor to take the required action constitutes agreement
with such Government action.
(iii) The Government agrees that it will continue to be bound by
the restrictive marking where a notice of intent to file suit in the
United States Claims Court is provided to the Contracting Officer
within ninety (90) days from the issuance of the final decision
under paragraph (g)(2)(i) of this clause. The Government will no
longer be bound, and the Contractor or subcontractor agrees that the
Government may strike or ignore the restrictive markings, if the
Contractor or subcontractor fails to file its suit within one (1)
year after issuance of the final decision. Notwithstanding the
foregoing, where the head of an agency determines, on a nondelegable
basis, that urgent or compelling circumstances will not permit
waiting for the [[Page 33507]] filing of a suit in the United States
Claims Court, the Contractor or subcontractor agrees that the agency
may, following notice to the Contractor or subcontractor, authorize
release or disclosure of the technical data. Such agency
determination may be made at any time after issuance of the final
decision and will not affect the Contractor's or subcontractor's
right to damages against the United States where its restrictive
markings are ultimately upheld or to pursue other relief, if any, as
may be provided by law.
(iv) The Government agrees that it will be bound by the
restrictive marking where an appeal or suit is filed pursuant to the
Contract Disputes Act until final disposition by an agency Board of
Contract Appeals or the United States Claims Court. Notwithstanding
the foregoing, where the head of an agency determines, on a
nondelegable basis, following notice to the Contractor that urgent
or compelling circumstances will not permit awaiting the decision by
such Board of Contract Appeals or the United States Claims Court,
the Contractor or subcontractor agrees that the agency may authorize
release or disclosure of the technical data. Such agency
determination may be made at any time after issuance of the final
decision and will not affect the Contractor's or subcontractor's
right to damages against the United States where its restrictive
markings are ultimately upheld or to pursue other relief, if any, as
may be provided by law.
(h) Final disposition of appeal or suit. (1) If the Contractor
or subcontractor appeals or files suit and if, upon final
disposition of the appeal or suit, the Contracting Officer's
decision is sustained--
(i) The restrictive marking on the technical data shall be
cancelled, corrected or ignored; and
(ii) If the restrictive marking is found not to be substantially
justified, the Contractor or subcontractor, as appropriate, shall be
liable to the Government for payment of the cost to the Government
of reviewing the restrictive marking and the fees and other expenses
(as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government
in challenging the marking, unless special circumstances would make
such payment unjust.
(2) If the Contractor or subcontractor appeals or files suit and
if, upon final disposition of the appeal or suit, the Contracting
Officer's decision is not sustained--
(i) The Government shall continue to be bound by the restrictive
marking; and
(ii) The Government shall be liable to the Contractor or
subcontractor for payment of fees and other expenses (as defined in
28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor or subcontractor
in defending the marking, if the challenge by the Government is
found not to have been made in good faith.
(i) Duration of right to challenge. The Government may review
the validity of any restriction on technical data, delivered or to
be delivered under a contract, asserted by the Contractor or
subcontractor. During the period within three (3) years of final
payment on a contract or within three (3) years of delivery of the
technical data to the Government, whichever is later, the
Contracting Officer may review and make a written determination to
challenge the restriction. The Government may, however, challenge a
restriction on the release, disclosure or use of technical data at
any time if such technical data--
(1) Is publicly available;
(2) Has been furnished to the United States without restriction;
or
(3) Has been otherwise made available without restriction. Only
the Contracting Officer's final decision resolving a formal
challenge by sustaining the validity of a restrictive marking
constitutes ``validation'' as addressed in 10 U.S.C. 2321.
(j) Decision not to challenge. A decision by the Government, or
a determination by the Contracting Officer, to not challenge the
restrictive marking or asserted restriction shall not constitute
``validation.''
(k) Privity of contract. The Contractor or subcontractor agrees
that the Contracting Officer may transact matters under this clause
directly with subcontractors at any tier that assert restrictive
markings. However, this clause neither creates nor implies privity
of contract between the Government and subcontractors.
(l) Flowdown. The Contractor or subcontractor agrees to insert
this clause in contractual instruments with its subcontractors or
suppliers at any tier requiring the delivery of technical data.
(End of clause)
[FR Doc. 95-15251 Filed 6-27-95; 8:45 am]
BILLING CODE 5000-04-M
