[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Rules and Regulations]
[Pages 10499-10515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5079]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 600
48 CFR Parts 915, 927, 952, and 970
RIN 1991-AB33
Assistance Regulations; Acquisition Regulations; Revisions to
Rights in Data Regulations
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is amending its Financial
Assistance and Acquisition Regulations to effect changes to its rights
in technical data regulations to reflect a greater reliance upon the
rights in technical data coverage in the Federal Acquisition Regulation
and to recognize the requirements relating to technology transfer
activities at certain DOE laboratories.
EFFECTIVE DATE: This rule is effective April 3, 1998.
FOR FURTHER INFORMATION CONTACT:
Robert M. Webb, U.S. Department of Energy, Office of Procurement and
Assistance Management, 1000 Independence Avenue, SW., Washington, D.C.
20585, (202) 586-8264.
Judson Hightower, U.S. Department of Energy, Office of Assistant
General Counsel for Technology, Transfer and Intellectual Property,
1000 Independence Avenue, SW., Washington, D.C. 20585, (202) 586-2813.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Discussion of Comments.
III. Procedural Requirements.
A. Review Under Executive Order 12866.
B. Review Under Executive Order 12988.
C. Review Under the Regulatory Flexibility Act.
D. Review Under the Paperwork Reduction Act.
E. Review Under the National Environmental Policy Act.
F. Review Under Executive Order 12612.
G. Review Under Small Business Regulatory Enforcement Fairness
Act of 1996.
H. Review Under the Unfunded Mandate Reform Act of 1995.
I. Background
This final rule promulgates regulations published for comment on
March 31, 1997, at 62 FR 15138. These new regulations delete the
coverage of rights in technical data, including regulations,
solicitation provisions, and contract clauses currently in the
Department of Energy Acquisition Regulation (DEAR). The new coverage
relies substantially on the rights in technical data regulations,
provisions, and clauses in the Federal Acquisition Regulation (FAR),
except where other coverage is appropriate to fulfill DOE's statutory
duties to disseminate data produced in its research, development and
demonstration programs. Coverage in Subpart 970.27 of the DEAR has been
written to reflect the considerations relating to and use of two
alternate rights in technical data clauses in DOE's management and
operating contracts. Finally, these regulations relocate material on
the handling of proposal data by non-Federal evaluators and reflects
the effect on their selection of section 6002 of the Federal
Acquisition Streamlining Act of 1994 (Pub. L. 103-355).
This final rule supersedes Acquisition Letters No. 87-5, 88-1, and
91-7.
II. Discussion of Comments
Eleven commenters responded to the proposed rule. Five of the
commenters were DOE management and operating contractors; two others
were universities; two were trade associations, and the remaining two
were DOE employees. The comments have been considered and disposed of
as described below.
Material from 10 CFR Part 600 has been added at the outset of the
presentation of the regulatory changes of this final rule though those
changes were not part of the proposed rule. DOE has a practice of
inviting public comment on significant policies that are added to a
final rule that were not within scope of the notice of proposed
rulemaking. DOE has decided not to reopen the comment period in this
case, because the changes to 10 CFR Part 600 are not significant. DOE's
financial assistance policies on rights in technical data have always
followed the policies applicable to procurement. There is no reason to
think that the changes made by today's final rule should be altered for
financial assistance. These changes to 10 CFR Part 600 merely correct
references to the Rights in Data-General clause to conform to the
Department of Energy Acquisition Regulation coverage of this final rule
and call for the use of paragraph (d)(3) that appears in the DEAR in
lieu of the one that has appeared at 600.27(b)(2)(i)(C).
In the time since the publication of the proposed rule, Part 15 of
the Federal Acquisition Regulation has been rewritten and material that
had been at 15.413-2 dealing with the handling of proposal data and the
use of non-Federal evaluators was deleted. The proposed rule contained
alterations, for DOE's purposes, to paragraphs (e) and (f) of the FAR
coverage as it then existed. We believe that the FAR material that was
deleted has value to DOE contracting officers, and, as a result, this
final rule publishes the substance of the former FAR and proposed DEAR
provisions dealing with the handling of proposal data and use of non-
Federal evaluators in DOE procurements at subsection 915.207-70.
One commenter suggested that DOE should identify the employers of
non-Federal evaluators. We did not make a change. The notice of use of
non-Federal evaluators is sufficient to allow
[[Page 10500]]
potential proposers to assess any risks of compromising proprietary
data.
Another commenter suggested several additions to the nondisclosure
agreement at 915.413-2(f)(b). We did not make a change, believing the
agreement as recited in the proposed rule to be sufficient to inform
the non-Federal evaluator of his or her responsibilities to maintain
the propriety of the material being evaluated.
We have included subsections 927.402-1(b) and 927.403, though they
were not published in the proposed rule. We have made minor
modifications to these two provisions to change references that result
from the publication of this final rule, including substituting the
terms ``limited rights data'' and ``restricted computer software'' for
``confidential data'' each time the latter term appeared. This
substitution was also made throughout the remainder of the rule,
including the clauses.
Several commenters questioned the use of the phrase ``to acquire
permission [from DOE] to assert copyright in any technical data or
computer software'' or variations as used throughout this final rule.
The basis for these questions is the recognition that under current
copyright law, the drafter of the document or creator of the software
has an automatic copyright in the data. The use of this phrase
recognizes that right but controls the copyright of data first produced
in the performance of a DOE contract by requiring permission from DOE
before the contractor can assert the copyright. This phrase and the
process as used in these regulations conforms to the phrase and the
process used throughout the data regulations and clauses of the Federal
Acquisition Regulation. By oversight, this phrase was not used in the
proposed rule in paragraph (d)(3) of 927.409(a). That provision has
been altered to bring it into conformity with the remainder of the
regulations and clauses.
A commenter requested a clarification of the prohibition against a
Federal prime contractor's using economic leverage ``to inequitably
acquire rights in a subcontractor's confidential data'' stated in the
proposed rule at subsection 927.404(k)(2). We have made a change to
prohibit the use of economic leverage to acquire rights in a
subcontractor's limited rights data or restricted computer software for
the contractor's private use, and the contractor shall not acquire such
rights in standard commercial items on behalf of the Government without
the prior approval of DOE patent counsel. This same proscription has
been stated at 970.406(c)(3) with regard to DOE management and
operating contracts and has been discussed in the subcontracts
paragraphs of the clauses at 970.5204-82 and 970.5204-83.
This same provision has been added to 970.2706(c) and has been
reflected in the clauses at 970.5204-82 and 970.5204-83. In addition,
in each of those instances, a provision has been added to require the
prior approval of DOE Patent Counsel where a management and operating
contract proposes to acquire limited rights data or restricted computer
software from a subcontractor using other than Alternate II or
Alternate III, respectively, to the Rights in Data--General clause at
FAR 52.227-14 as amended in accordance with DEAR 927.409(a).
One commenter expressed concern over a possible interpretation of a
requirement for contractor licensing as discussed at paragraph
927.404(l) and Alternate VI implying a license in patents. No such
license is intended and, in fact, is expressly denied in paragraph (i)
of the Rights in Data--General clause at FAR 52.227-14.
Paragraph (a) of 927.409 has been altered to allow contracting
officers to use Alternate IV in contracts for basic and applied
research with educational institutions where software is not a
specified deliverable. Also, one commenter noticed that at 927.409(a)
we failed to include a definition for ``form, fit, and function data.''
We have added the definition, using the FAR wording.
Another commenter questioned the changing of the FAR definitions of
``data'' and ``technical data,'' relocating the exception for contract
administration data from ``data,'' as in the FAR, to ``technical
data.'' We continue to believe our proposed definitions more accurately
reflect the true meaning of the terms, but, upon study of the Rights in
Data--General clause at FAR 52.227-14, have chosen to use the FAR
definitions of these two terms both for contracts that are not
management and operating contracts and for the clauses at 970.5204-82
and 970.5204-83 for management and operating contracts.
Other commenters questioned the simplifying of the definitions for
``limited rights data'' and ``restricted computer software.'' This
simplification combines two definitions and avoids the FAR definition
where ``limited rights'' are defined but do not recite verbatim the
limited rights that appear in Alternate II or, in the case of
``restricted computer software,'' Alternate III. The revised
definitions avoid any potential for ambiguity by referencing the
applicable rights as they may appear in the clause.
A commenter noticed that the definitions recited at 927.409(a)
already include Alternate I. Therefore, we have deleted the separate
instruction to use Alternate I.
Another commenter suggested that we have altered the definition of
unlimited rights that was provided in the FAR. That commenter says
``DOE has deleted the phrase `by or on behalf of the Government.' ''
The FAR definition includes no such phrase. This rule differs from the
FAR in the definition of ``unlimited rights'' only by the addition of
``, including by electronic means,'' in recognition of the increasing
use of electronic means to disseminate data.
At subparagraph (a)(2)(vi) we have altered the instruction for use
of the clause at 970.5204-82 to require its inclusion in contracts for
the management or operation of a DOE facility or site in addition to
DOE management and operation contracts. It is critical that DOE assure
its ownership of data relating to management or operation of a facility
or site in the same manner that has historically existed for the
management and operating contracts. This same principle has been dealt
with expressly in the subcontract instructions in paragraph (d) of the
clause at 970.5204-82 and paragraph (f) of the clause at 970.5204-83,
now requiring the application of the clause at 970.5204-82 in
subcontracts for the management or operation of a DOE facility or site.
A commenter has questioned why we apparently merely repeat
paragraph (h) of FAR 27.409. That FAR citation calls for use of the
Additional Data Requirements clause at FAR 52.227-16 ``normally.'' DOE
requires the use of that clause any time the clause at FAR 52.227-14 is
used. Paragraph (h) as included in the DEAR as a result of this rule
does not include the word ``normally.''
Another commenter objected to the proposed prescription at
927.409(s) for use of the Rights in Proposal Data clause at FAR 52.227-
23. The Department chooses to take unlimited rights in proposal data as
a condition of award of its contracts, believing that effective
contract administration requires the use of the clause as proposed. The
clause provides for the offeror's identifying and thereby exempting
allegedly proprietary data included in the proposal from these
unlimited rights. Furthermore, the clause will affect only the awardee.
We have made no change.
Two commenters suggest that the paragraph at 970.2705 is misplaced
and should be moved to regulations dealing
[[Page 10501]]
with organizational conflicts of interest. We disagree. The paragraph
already was in the DEAR at 970.2705 as paragraph (c) rather than
paragraph (b). The issue dealt with is limitations on use of contract
data in proposals of the parent or affiliates of a DOE management and
operating contractor. A general recognition of controlling the flow of
data between the management and operating (M&O) contractor and its
parent is discussed at 970.0905. We have made no change.
Those same commenters object to the proposed paragraph at
970.2705(c), saying it imposes restrictions on private use of what is
otherwise data available in the public domain by DOE M&O contractors.
Paragraph (c) is intended merely to reflect the conditions for the
private use of contract data as provided in the two data rights clauses
for DOE management and operating contractors. Those contractors are
allowed to use contract data for private purposes but must respect
restrictive markings of data acquired from third parties. We have
deleted the proposed 970.2705(c), relying on the appropriate clause to
control with no need for further explanation.
We have recognized the possibility of instances in which a DOE
management and operating contractor or a contractor that manages or
operates a DOE facility or site should be required to grant a limited
license to responsible third parties or the Government in background
limited rights data or restricted computer software. In the proposed
rule this recognition was limited to contracts using the Rights in
Data-General clause at 48 CFR 52.227-14 as amended by 48 CFR 927.209(a)
with Alternate VI being prescribed for use when appropriate. We have
added a discussion at 970.2706(d)(2) to discuss this subject treatment
in the data clauses for use in DOE management and operating contracts
and contracts for the management or operation of a DOE facility or
site.
A commenter questioned the proposed paragraph (e) of 970.2706 in
the context of paragraph (c) of the Rights in Data--Facilities clause
at 970.5204-82. The commenter notes that 970.2706(e) recognizes the
right to assert copyright in data first produced in performance of the
contract as a valuable tool; yet, as proposed the facilities clause
does not apparently require the M&O contractor to acquire DOE
permission to copyright software. This clause would be used in M&O
contracts that do not have technology transfer as a part of their
performance obligations while those who have a technology transfer
obligation are required under the clause at 970.5204-83 to acquire such
permission. This situation results from an oversight in the use of the
term technical data. Paragraph (c) of the clause at 970.5204-82 has
been altered to require the contractor to acquire permission from DOE
to assert copyright in technical data or computer software. In all
cases describing the DOE's license in data produced under the contract
where permission has been granted to assert copyright, we have used
``paid up'' throughout, replacing the term ``royalty free'' wherever it
appeared in both the clauses at 970.5204-82 and 970.5204-83.
One commenter suggested that the Government's unlimited rights in
paragraph (b)(1) of both data clauses for management and operating
contracts should be modified to recognize exceptions for limited rights
data and restricted computer software. We agree and have made the
change.
Another commenter requested that the term ``specifically used'' as
used in the same paragraph (b)(1) of those M&O data clauses be defined.
We disagree, believing the term to be self-defining. Additionally, it
should be noted that the FAR already uses the term in subparagraph
(b)(2)(i) of the Rights in Data--General clause at FAR 52.227-14.
Four commenters question the right of ownership of the Government
as stated in paragraph (b)(1)(i) of the clauses at 970.5204-82 and
970.5204-83. Generally, the concept of ownership is not meaningful in
the context of data. However, these clauses are intended to be included
in DOE's management and operating contracts, contracts under which the
contractors are responsible for the management and operation of large
reservations and many and varied facilities that are Government-owned
and that fall under safety and health and national security stewardship
responsibilities of DOE. The data necessary to the operation of those
facilities must be readily available in the context of continuing and
future operations, whether involving the past, current, or future
operations of the incumbent contractor or the future operations of a
successor contractor. To this end, ready access to any such data and
unlimited rights in any other data specifically used is necessary. We
understand the questions raised but have made no change in this regard.
In subparagraph (b)(1)(ii) of the clauses at 970.5204-82 and
970.5204-83, we have recognized as an exception to the reservation of
unlimited rights, limited rights data, restricted rights computer
software, data produced under a statutory program that establishes the
treatment of data, and, as appropriate, data produced in conjunction
with DOE's work for others program. In the clause at 970.5204-83 we
have also excluded data produced under a Cooperative Research and
Development Agreement where that agreement so provides.
Two commenters suggest that the copyright licenses granted the
United States in any scientific or technical works as expressed in
paragraph (d)(1) of the clause at 970.5204-83 should be repeated
verbatim in the notice stated in paragraph (d)(2). We agree and have
made the technical adjustments to bring this about.
Two commenters object to the requirement of paragraph (e)(1)(i)(C)
of the clause at 970.5204-83 that a contractor include in any request
for the right to assert copyright ``whether the data is subject to an
international treaty or agreement,'' saying that the contractor may not
have such knowledge. We have made a change recognizing that the
contractor's obligation in this regard is subject to the contractor's
best knowledge. We have recognized under paragraph (e)(1) that the
right of the contractor to assert copyright in data produced under a
Cooperative Research and Development Agreement will be controlled by
that agreement.
Two commenters express a concern with regard to the current form of
paragraph (e)(1)(i)(F) of the same clause that the requirement for the
contractor to obtain the permission of ``all other funding sources''
prior to making the request. They question whether this requires a
second permission if the contractor has in place an agreement that
provides for such permission. Where an agreement between the contractor
and any funding sources provides the necessary permission, states that
such permission is not necessary, or allows each participant to
copyright its data developed under the agreement, a special request is
not necessary, and a mere statement of the applicable situation will
satisfy the requirement as stated.
Two commenters recommend that the third sentence of the paragraph
at (e)(1)(ii) of the clause at 970.5204-83 end after the phrase
``Intellectual Property'' and that the remaining phrase ``where data
are determined to be subject to export controls'' become the
introductory phrase to a new fourth sentence that would allow the
contractor to obtain permission to copyright data subject to export
controls and assert that copyright to the extent provided by export
control statutes and regulations. We have made this change.
[[Page 10502]]
Several commenters have raised concerns about the system of the
Department's granting permission to assert copyright contained in the
clause at 970.5204-83, particularly in various subparagraphs of
paragraph (e)(3). That system provides for the contractor's request to
be for a five-year period with provision for extensions in increments
of five years where that permission leads to commercialization of the
data, generally computer software, that is the subject of the request.
Some commenters state that commercialization is less likely where the
permission is limited to a five-year period and extensions are subject
to further requests for permission. Firms interested in commercializing
such data often make their interest conditional upon periods longer
than five years. In recognition of this possibility and to remove the
potential for this process to impede commercialization of valuable
contract data, we have changed the provisions of the clause to allow
for requests for specific periods longer than five years where it can
be shown that the longer period will aid commercialization.
Additionally, where justified, extensions may also be requested for
periods longer than five years with the same showing without regard to
the length of the original permission.
We have also named in subparagraph (e)(3)(i) of the clause at
970.5204-83 the central depository for receipt of software from
contractors and dissemination of software materials to the public, the
Energy Science and Technology Software Center, to avoid any ambiguity
in contractors' responsibilities for delivery to DOE of software
developed under a DOE contract.
One commenter objected to the length of the copyright
acknowledgment prescribed at paragraph (e)(3)(v) of the clause at
970.5204-83. We have made changes to simplify and shorten the notice.
One commenter opined that the disclaimer of the notice at paragraph
(e)(4) of 970.5204-83 be capitalized. We agree and have made the
change. In addition, we have added a paragraph (e)(5) to allow
contractors to request from DOE permission to mark technical data with
a restrictive legend similar to the one authorized for computer
software, limiting their use pending disposition of a request to assert
copyright.
Two commenters made suggestions about paragraph (f) of the clause
at 970.5204-83, dealing with the treatment of rights in data in
subcontracts under management and operating contracts, involving
technology transfer. One suggests that the flowdown obligations are too
specific. We have made this change since the introductory language
allows the contracting officer to vary the subcontract obligations
where appropriate. We have made corresponding changes to paragraph (f)
of the clause at 970.5204-83 and paragraph (d) of the clause at
970.5204-82 to assure that they expressly comply with the explanatory
regulatory coverage at 970.2706(c)(1). The second suggestion was a
request that there be ``an option for the M&O contractor to acquire
ownership of copyright in software developed under a subcontract, or at
least an exclusive license,'' where a subcontract was for software
development. Nothing in the clause as drafted precludes such an
arrangement, where appropriate. In addition, the requirement for
application of the clause at 970.5204-82 in certain subcontracts
discussed earlier has been reflected in both clauses.
Two commenters object to the limited rights legend used in the
clauses at 970.5204-82 and 970.5204-83, saying that paragraph (e) of
the notice allows for the possibility that data developed at private
expense could be released ``to a foreign government, or instrumentality
thereof, as the interests of the United States Government may require,
for information or evaluation, or for emergency repair or overhaul work
by such government.'' The possibility exists but only for the purposes
enunciated in the legend. The notice, including the language that is
the subject of the comments, is the standard FAR limited rights legend
of Alternate II to the clause at FAR 52.227-14.
Finally, commenters noticed several typographical errors. We
appreciate their observations and have made the appropriate
corrections.
III. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs of the Office
of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
these regulations meet the relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
This final rule has been reviewed under the Regulatory Flexibility
Act of 1980, Pub. L. 96-354, that requires preparation of an initial
regulatory flexibility analysis for any rule that must be proposed for
public comment and that is likely to have significant economic impact
on a substantial number of small entities. The contracts to which this
rulemaking would apply are agreements that contemplate the creation of
technical data. Normally, such contracts, and any resulting
subcontracts, would be cost reimbursement type contracts. Thus, there
would not be an adverse economic impact on contractors or
subcontractors. Accordingly, DOE certifies that this final rule will
not have a significant economic impact on a substantial number of small
entities, and, therefore, no regulatory flexibility analysis has been
prepared.
D. Review Under the Paperwork Reduction Act
No additional information or record keeping requirements are
imposed by this rulemaking. Accordingly, no OMB clearance is required
under the
[[Page 10503]]
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this final rule falls into a
class of actions which would not individually or cumulatively have
significant impact on the human environment, as determined by DOE's
regulations (10 CFR part 1021, subpart D) implementing the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.).
Specifically, this final rule is categorically excluded from NEPA
review because the amendments to the DEAR would be strictly procedural
(categorical exclusion A6). Therefore, this final rule does not require
an environmental impact statement or environmental assessment pursuant
to NEPA.
F. Review Under Executive Order 12612
Executive Order 12612 (52 FR 41685, October 30, 1987) requires that
regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the Federal Government and the States, or in the
distribution of power and responsibilities among the various levels of
Government. If there are sufficient substantial direct effects, then
the Executive Order requires the preparation of a federalism assessment
to be used in all decisions involved in promulgating and implementing a
policy action. This final rule merely reflects current practice
relating to rights in technical data. States which contract with DOE
will be subject to this rule. However, DOE has determined that this
rule will not have a substantial direct effect on the institutional
interests or traditional functions of the States.
G. Review Under Small Business Regulatory Enforcement Fairness Act of
1996
As required by 5 U.S.C. 801, DOE will report to Congress
promulgation of the rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(3).
H. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a detailed assessment of costs and
benefits of any rule imposing a Federal Mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This rulemaking only affects private sector entities, and the
impact is less than $100 million.
List of Subjects
10 CFR Part 600
Administrative practice and procedure.
48 CFR Parts 915, 927, 952, and 970
Government procurement.
Issued in Washington, D.C. on February 20, 1998.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Part 600 of Title 10 and
Chapter 9 of Title 48 of the Code of Federal Regulations, respectively,
are amended as set forth below.
10 CFR
PART 600--FINANCIAL ASSISTANCE RULES
1. The authority citation for Part 600 of Title 10 continues to
read as follows:
Authority: 42 U.S.C. 7254, 7256, 13525; 31 U.S.C. 6301-6308,
unless otherwise noted.
2. In Sec. 600.27, paragraph (b)(2)(i)(C) is removed, paragraph
(b)(2)(i)(D) is redesignated as paragraph (b)(2)(i)(C), paragraph
(b)(2)(i)(B) is amended by adding after ``non-profit organizations,''
the phrase ``the clause referred to in paragraph (b)(2)(i)(A) of this
section shall be revised by deleting paragraph (d)(3) and inserting the
following paragraph (c) in lieu of paragraph (c) of that clause:'', and
paragraph (b)(2)(i)(A) is revised to read as follows:
Sec. 600.27 Patent and data provisions.
(b) * * *
(2) * * *
(i) Rights in data--General. (A) Incorporate 48 CFR 52.227-14 with
its Alternate V and with the definitional paragraph (a) and paragraph
(d)(3) of 48 CFR 927.409(a)(1). Solicitations shall also include the
Representation of Limited Rights Data and Restricted Computer Software
provision at 48 CFR 52.227-15. Contracting officers shall treat rights
in data matters in accordance with 48 CFR 927.4.
* * * * *
Title 48 of the Code of Federal Regulations
PART 915--CONTRACTING BY NEGOTIATION
3. The authority citation for Part 915 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
4. Subsection 915.207-70 is added as follows:
915.207-70 Handling of proposals during evaluation.
(a) Proposals furnished to the Government are to be used for
evaluation purposes only. Disclosure outside the Government for
evaluation is permitted only to the extent authorized by, and in
accordance with the procedures in this subsection.
(b) While the Government's limited use of proposals does not
require that the proposal bear a restrictive notice, proposers should,
if they desire to maximize protection of their trade secrets or
confidential or privileged commercial and financial information
contained in them, apply the restrictive notice prescribed in paragraph
(e) of the provision at 52.215-1 to such information. In any event,
information contained in proposals will be protected to the extent
permitted by law, but the Government assumes no liability for the use
or disclosure of information (data) not made subject to such notice in
accordance with paragraph (e) of the provision at 48 CFR 52.215-1.
(c) If proposals are received with more restrictive conditions than
those in paragraph (e) of the provision at 48 CFR 52.215-1, the
contracting officer or coordinating officer shall inquire whether the
submitter is willing to accept the conditions of paragraph (e). If the
submitter does not, the contracting officer or coordinating officer
shall, after consultation with counsel, either return the proposal or
accept it as marked. Contracting officers shall not exclude from
consideration any proposals merely because they contain an authorized
or agreed to notice, nor shall they be prejudiced by such notice.
(d) Release of proposal information (data) before decision as to
the award of a contract, or the transfer of valuable and sensitive
information between competing offerors during the competitive phase of
the acquisition process, would seriously disrupt the Government's
decision-making process and undermine the integrity of the competitive
acquisition process, thus adversely affecting the Government's ability
to solicit competitive proposals and award a contract which would best
meet the Government's needs and serve the public interest. Therefore,
to the extent permitted by law, none of the information (data)
contained in proposals, except as authorized in this subsection, is to
be disclosed outside the Government before the Government's decision as
to the award
[[Page 10504]]
of a contract. In the event an outside evaluation is to be obtained, it
shall be only to the extent authorized by, and in accordance with the
procedures of, this subsection.
(e)(1) In order to maintain the integrity of the procurement
process and to assure that the propriety of proposals will be
respected, contracting officers shall assure that the following notice
is affixed to each solicited proposal prior to distribution for
evaluation:
Government Notice for Handling Proposals
This proposal shall be used and disclosed for evaluation
purposes only, and a copy of this Government notice shall be applied
to any reproduction or abstract thereof. Any authorized restrictive
notices which the submitter places on this proposal shall also be
strictly complied with. Disclosure of this proposal outside the
Government for evaluation purposes shall be made only to the extent
authorized by, and in accordance with, the procedures in DEAR
subsection 915.207-70.
(End of Notice)
(2) The notice at FAR 15.609(d) for unsolicited proposals shall be
affixed to a cover sheet attached to each such proposal upon receipt by
DOE. Use of the notice neither alters any obligation of the Government,
nor diminishes any rights in the Government to use or disclose data or
information.
(f)(1) Normally, evaluations of proposals shall be performed only
by employees of the Department of Energy. As used in this section,
``proposals'' includes the offers in response to requests for
proposals, sealed bids, program opportunity announcements, program
research and development announcements, or any other method of
solicitation where the review of proposals or bids is to be performed
by other than peer review. In certain cases, in order to gain necessary
expertise, employees of other agencies may be used in instances in
which they will be available and committed during the period of
evaluation. Evaluators or advisors who are not Federal employees,
including employees of DOE management and operating contractors, may be
used where necessary. Where such non-Federal employees are used as
evaluators, they may only participate as members of technical
evaluation committees. They may not serve as members of the Source
Evaluation Board or equivalent board or committee.
(2)(i) Pursuant to section 6002 of Pub. L. 103-355, a determination
is required for every competitive procurement as to whether sufficient
DOE personnel with the necessary training and capabilities are
available to evaluate the proposals that will be received. This
determination, discussed at FAR 37.204, shall be made in the memorandum
appointing the technical evaluation committee by the Source Selection
Official, in the case of Source Evaluation Board procurements, or by
the Contracting Officer in all other procurements.
(ii) Where it is determined such qualified personnel are not
available within DOE but are available from other Federal agencies, a
determination to that effect shall be made by the same officials in the
same memorandum. Should such qualified personnel not be available, a
determination to use non-Federal evaluators or advisors must be made in
accordance with paragraph (f)(3) of this subsection.
(3) The decision to employ non-Federal evaluators or advisors,
including employees of DOE management and operating contractors, in
Source Evaluation Board procurements must be made by the Source
Selection Official with the concurrence of the Head of the Contracting
Activity. In all other procurements, the decision shall be made by the
senior program official or designee with the concurrence of the Head of
the Contracting Activity. In a case where multiple solicitations are
part of a single program and would call for the same resources for
evaluation, a class determination to use non-Federal evaluators may be
made by the DOE Procurement Executive.
(4) Where such non-Federal evaluators or advisors are to be used,
the solicitation shall contain a provision informing prospective
offerors that non-Federal personnel may be used in the evaluation of
proposals.
(5) The nondisclosure agreement as it appears in paragraph (f)(6)
of this subsection shall be signed before DOE furnishes a copy of the
proposal to non-Federal evaluators or advisors, and care should be
taken that the required handling notice described in paragraph (e) of
this subsection is affixed to a cover sheet attached to the proposal
before it is disclosed to the evaluator or advisor. In all instances,
such persons will be required to comply with nondisclosure of
information requirements and requirements involving Procurement
Integrity, see FAR 3.104; with requirements to prevent the potential
for personal conflicts of interest; or, where a non-Federal evaluator
or advisor is acquired under a contract with an entity other than the
individual, with requirements to prevent the potential for
organizational conflicts of interest.
(6) Non-Federal evaluators or advisors shall be required to sign
the following agreement prior to having access to any proposal:
Nondisclosure Agreement
Whenever DOE furnishes a proposal for evaluation, I, the
recipient, agree to use the information contained in the proposal
only for DOE evaluation purposes and to treat the information
obtained in confidence. This requirement for confidential treatment
does not apply to information obtained from any source, including
the proposer, without restriction. Any notice or restriction placed
on the proposal by either DOE or the originator of the proposal
shall be conspicuously affixed to any reproduction or abstract
thereof and its provisions strictly complied with. Upon completion
of the evaluation, it is agreed all copies of the proposal and
abstracts, if any, shall be returned to the DOE office which
initially furnished the proposal for evaluation. Unless authorized
by the Contracting Officer, I agree that I shall not contact the
originator of the proposal concerning any aspect of its elements.
Recipient:-------------------------------------------------------------
Date:------------------------------------------------------------------
(End of Agreement)
(g) The submitter of any proposal shall be provided notice adequate
to afford an opportunity to take appropriate action before release of
any information (data) contained therein pursuant to a request under
the Freedom of Information Act (5 U.S.C. 552); and, time permitting,
the submitter should be consulted to obtain assistance in determining
the eligibility of the information (data) in question as an exemption
under the Act. (See also Subpart 24.2, Freedom of Information Act.)
5. Subpart 915.3, Source Selection, is added to read as follows:
915.3 Source selection.
915.305 Proposal evaluation. (DOE coverage--paragraph (d))
(d) Personnel from DOE, other Government agencies, consultants, and
contractors, including those who manage or operate Government-owned
facilities, may be used in the evaluation process as evaluators or
advisors when their services are necessary and available. When
personnel outside the Government, including those of contractors who
operate or manage Government-owned facilities, are to be used as
evaluators or advisors, approval and nondisclosure procedures as
required by 48 CFR (DEAR) 915.207-70 shall be followed and a notice of
the use of non-Federal evaluators shall be included in the
solicitation. In all instances, such personnel will be required to
comply with DOE conflict of interest and nondisclosure requirements.
[[Page 10505]]
PART 927--PATENTS, DATA, AND COPYRIGHTS
6. The authority citation for Part 927 continues to read as
follows:
Authority: Sec. 644 of the Department of Energy Organization
Act, Pub. L. 95-91 (42 U.S.C. 7254); Sec. 148 of the Atomic Energy
Act of 1954, as amended (42 U.S.C. 2168); Federal Nonnuclear Energy
Research and Development Act of 1974, Sec. 9 (42 U.S.C. 5908);
Atomic Energy Act of 1954, as amended, Sec. 152 (42 U.S.C. 2182);
Department of Energy National Security and Military Applications of
Nuclear Energy Authorization Act of 1987, as amended, Sec. 3131(a),
(42 U.S.C. 7261a.)
927.300 [Amended]
7. Section 927.300(b) is amended by replacing the phrase ``41 CFR
9-9.109'' as it appears in the second sentence with ``10 CFR part
784.''
927.303 [Amended]
8. Subsection 927.303(b) is amended by inserting the phrase ``,
pursuant to 10 CFR part 784,'' after ``advance waiver'' in the first
sentence and after ``identified invention'' in the second sentence.
927.370 [Removed and reserved]
9. Remove and reserve section 927.370.
927.401 [Removed]
10. Section 927.401 is removed.
11. In section 927.402-1, paragraphs (c) through (g) are removed,
paragraph (h) is redesignated as paragraph (c) , and paragraph (b) is
revised to read as follows:
927.402-1 General.
* * * * *
(b) It is important to keep a clear distinction between contract
requirements for the delivery of technical data and rights in technical
data. The legal rights which the Government acquires in technical data
in DOE contracts, other than management and operating contracts (see
970.2705) and other contracts involving the production of data
necessary for the management or operation of DOE facilities or a DOE
site, are set forth in Rights in Data--General clause at 48 CFR 52.227-
14 as modified in accordance with 927.409 of this subpart. In those
contracts involving the production of data necessary for the management
or operation of DOE facilities or a DOE site, after consultation with
Patent Counsel the clause at 970.5204-82 shall be used. However, those
clauses do not obtain for the Government delivery of any data
whatsoever. Rather, known requirements for the technical data to be
delivered by the contractor shall be set forth as part of the contract.
The Additional Technical Data Requirements clause at 48 CFR 52.227-16
may be used along with the Rights in Data--General clause to enable the
contracting officer to require the contractor to furnish additional
technical data, the requirement for which was not known at the time of
contracting. There is, however, a built-in limitation on the kind of
technical data which a contractor may be required to deliver under
either the contract or the Additional Technical Data Requirements
clause. This limitation is found in the withholding provision of
paragraph (g) of the Rights in Data--General clause at 48 CFR 52.227-
14, as amended at 48 CFR 927.409(a), which provides that the Contractor
need not furnish limited rights data or restricted computer software.
Unless Alternate II or III to the Rights in Data--General clause is
used, it is specifically intended that the contractor may withhold
limited rights data or restricted computer software even though a
requirement for technical data specified in the contract or called for
delivery pursuant to the Additional Technical Data Requirements clause
would otherwise require the delivery of such data.
927.402-3 [Removed]
12. Subsection 927.402-3 is removed.
13. Section 927.403 is revised to read as follows:
927.403 Negotiations and deviations.
Contracting officers shall contact Patent Counsel assisting their
contracting activity or the Assistant General Counsel for Technology
Transfer and Intellectual Property for assistance in selecting,
negotiating, or approving appropriate data and copyright clauses in
accordance with the procedures set forth in this subpart and 48 CFR
part 27.4. In particular, contracting officers shall seek the prompt
and timely advice of Patent Counsel regarding any situation not in
conformance with this subpart and prescribed clauses, including the
inclusion or modification of alternate paragraphs of the Rights in Data
clause at 48 CFR 52.227-14, as amended at 48 CFR 927.409(a), the
exclusion of specific items from said clause, the exclusion of the
Additional Technical Data Requirements clause at 48 CFR 52.227-16, and
the inclusion of any special provisions in a particular contract.
14. Section 927.404 is added to read as follows:
927.404 Rights in Technical Data in Subcontracts. (DOE coverage--
paragraphs (g), (k), (l), and (m).)
(g)(4) Contractors are required by paragraph (d)(3) of the clause
at FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1), to
acquire permission from DOE to assert copyright in any computer
software first produced in the performance of the contract. This
requirement reflects DOE's established software distribution program,
recognized at FAR 27.404(g)(2), and the Department's statutory
dissemination obligations. When a contractor requests permission to
assert copyright in accordance with paragraph (d)(3) of the Rights in
Data--General clause as prescribed for use at 48 CFR 927.409(a)(1),
Patent Counsel shall predicate its decision on the considerations
reflected in paragraph (e) of the clause at 970.5204-82 Rights in
Data--Technology Transfer.
(k) Subcontracts. (1)(i) It is the responsibility of prime
contractors and higher tier subcontractors, in meeting their
obligations with respect to contract data, to obtain from their
subcontractor the rights in, access to, and delivery of such data on
behalf of the Government. Accordingly, subject to the policy set forth
in this subpart, and subject to the approval of the contracting
officer, where required, selection of appropriate technical data
provisions for subcontracts is the responsibility of the prime
contractors or higher-tier subcontractors. In many, but not all
instances, use of the Rights in Technical Data clause of FAR 52.227-14,
as modified pursuant to 48 CFR 927.409(a)(1), in a subcontract will
provide for sufficient Government rights in and access to technical
data. The inspection rights afforded in Alternate V of that clause
normally should be obtained only in first-tier subcontracts having as a
purpose the conduct of research, development, or demonstration work or
the furnishing of supplies for which there are substantial technical
data requirements as reflected in the prime contract.
(ii) If a subcontractor refuses to accept technical data provisions
affording rights in and access to technical data on behalf of the
Government, the contractor shall so inform the contracting officer in
writing and not proceed with the award of the subcontract without
written authorization of the contracting officer.
(iii) In prime contracts (or higher-tier subcontracts) which
contain the Additional Technical Data Requirements clause at FAR
52.227-16, it is the further responsibility of the contractor (or
higher-tier subcontractor) to determine whether inclusion of such
[[Page 10506]]
clause in a subcontract is required to satisfy technical data
requirements of the prime contract (or higher-tier subcontract).
(2) As is the case for DOE in its determination of technical data
requirements, the Additional Technical Data Requirements clause at FAR
52.227-16 should not be used at any subcontracting tier where the
technical data requirements are fully known. Normally, the clause will
be used only in subcontracts having as a purpose the conduct of
research, development, or demonstration work. Prime contractors and
higher-tier subcontractors shall not use their power to award
subcontracts as economic leverage to acquire rights in the
subcontractor's limited rights data or restricted computer software for
their private use, and they shall not acquire rights to limited rights
data or restricted computer software on behalf of the Government for
standard commercial items without the prior approval of Patent Counsel.
(l) Contractor licensing. In many contracting situations the
achievement of DOE's objectives would be frustrated if the Government,
at the time of contracting, did not obtain on behalf of responsible
third parties and itself limited license rights in and to limited
rights data or restricted computer software or both necessary for the
practice of subject inventions or data first produced or delivered in
the performance of the contract. Where the purpose of the contract is
research, development, or demonstration, contracting officers should
consult with program officials and Patent Counsel to consider whether
such rights should be acquired. No such rights should be obtained from
a small business or non-profit organization, unless similar rights in
background inventions of the small business or non-profit organization
have been authorized in accordance with 35 U.S.C. 202(f). In all cases
when the contractor has agreed to include a provision assuring
commercial availability of background patents, consideration should be
given to securing for the Government and responsible third parties at
reasonable royalties and under appropriate restrictions, co-extensive
license rights for data which are limited rights data and restricted
computer software. When such license rights are deemed necessary, the
Rights in Data-General clause at FAR 52.227-14 should be supplemented
by the addition of Alternate VI as provided at 48 CFR 952.227-14.
Alternate VI will normally be sufficient to cover limited rights data
and restricted computer software for items and processes that were used
in the contract and are necessary in order to insure widespread
commercial use or practical utilization of a subject of the contract.
The expression ``subject of the contract'' is intended to limit the
licensing required in Alternate VI to the fields of technology
specifically contemplated in the contract effort and may be replaced by
a more specific statement of the fields of technology intended to be
covered in the manner described in the patent clause at 48 CFR 952.227-
13 pertaining to ``Background Patents.'' Where, however, limited rights
data and restricted computer software cover the main purpose or basic
technology of the research, development, or demonstration effort of the
contract, rather than subcomponents, products, or processes which are
ancillary to the contract effort, the limitations set forth in
subparagraphs (k)(1) through (k)(4) of Alternate VI of 48 CFR 952.227-
14 should be modified or deleted. Paragraph (k) of 48 CFR 952.227-14
further provides that limited rights data or restricted computer
software may be specified in the contract as being excluded from or not
subject to the licensing requirements thereof. This exclusion can be
implemented by limiting the applicability of the provisions of
paragraph (k) of 48 CFR 952.227-14 to only those classes or categories
of limited rights data and restricted computer software determined as
being essential for licensing. Although contractor licensing may be
required under paragraph (k) of 48 CFR 952.227-14, the final resolution
of questions regarding the scope of such licenses and the terms
thereof, including provisions for confidentiality, and reasonable
royalties, is then left to the negotiation of the parties.
(m) Access to restricted data. In contracts involving access to
certain categories of DOE-owned Category C-24 restricted data, as set
forth in 10 CFR part 725, DOE has reserved the right to receive
reasonable compensation for the use of its inventions and discoveries,
including its related data and technology. Accordingly, in contracts
where access to such restricted data is to be provided to contractors,
Alternate VII shall be incorporated into the rights in technical data
clause of the contract. In addition, in any other types of contracting
situations in which the contractor may be given access to restricted
data, appropriate limitations on the use of such data must be
specified.
15. Subsection 927.404-70 is added to read as follows:
927.404-70 Statutory Programs.
Occasionally, Congress enacts legislation that authorizes or
requires the Department to protect from public disclosure specific data
first produced in the performance of the contract. Examples of such
programs are ``the Metals Initiative'' and section 3001(d) of the
Energy Policy Act. In such cases DOE Patent Counsel is responsible for
providing the appropriate contractual provisions for protecting the
data in accordance with the statute. Generally, such clauses will be
based upon the Rights in Data-General clause prescribed for use at 48
CFR 927.409(a) with appropriate modifications to define and protect the
``protected data'' in accordance with the applicable statute. When
contracts under such statutes are to be awarded, contracting officers
must acquire from Patent Counsel the appropriate contractual
provisions. Additionally, the contracting officer must consult with DOE
program personnel and Patent Counsel to identify data first produced in
the performance of the contract that will be recognized by the parties
as protected data and what data will be made available to the public
notwithstanding the statutory authority to withhold the data from
public dissemination.
16. Section 927.408 is added to read as follows:
927.408 Cosponsored research and development activities.
Because of the Department of Energy's statutory duties to
disseminate data first produced under its contracts for research,
development, and demonstration, the provisions of FAR 27.408 do not
apply to cosponsored or cost shared contracts.
17. Section 927.409 is added to read as follows:
927.409 Solicitation provisions and contract clauses. (DOE coverage-
paragraphs (a), (h), (s), and (t)).
(a)(1) The contracting officer shall insert the clause at FAR
52.227-14, Rights in Data-General, substituting the following paragraph
(a) and including the following paragraph (d)(3) and Alternate V in
solicitations and contracts if it is contemplated that data will be
produced, furnished, or acquired under the contract; except contracting
officers are authorized to use Alternate IV rather than paragraph
(d)(3) in contracts for basic or applied research with educational
institutions except where software is specified for delivery or except
where other special circumstances exist:
(a) Definitions.
[[Page 10507]]
(1) Computer data bases, as used in this clause, means a
collection of data in a form capable of, and for the purpose of,
being stored in, processed, and operated on by a computer. The term
does not include computer software.
(2) Computer software, as used in this clause, means (i)
computer programs which are data comprising a series of
instructions, rules, routines, or statements, regardless of the
media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising
source code listings, design details, algorithms, processes, flow
charts, formulae, and related material that would enable the
computer program to be produced, created, or compiled. The term does
not include computer data bases.
(3) Data, as used in this clause, means recorded information,
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software. For the purposes
of this clause, the term does not include data incidental to the
administration of this contract, such as financial, administrative,
cost and pricing, or management information.
(4) Form, fit, and function data, as used in this clause, means
data relating to items, components, or processes that are sufficient
to enable physical and functional interchangeability, as well as
data identifying source, size, configuration, mating, and attachment
characteristics, functional characteristics, and performance
requirements; except that for computer software it means data
identifying source, functional characteristics, and performance
requirements but specifically excludes the source code, algorithm,
process, formulae, and flow charts of the software.
(5) Limited rights data, as used in this clause, means data,
other than computer software, developed at private expense that
embody trade secrets or are commercial or financial and confidential
or privileged. The Government's rights to use, duplicate, or
disclose limited rights data are as set forth in the Limited Rights
Notice of subparagraph (g)(2) of this section if included in this
clause.
(6) Restricted computer software, as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or
privileged; or is published copyrighted computer software, including
minor modifications of any such computer software. The Government's
rights to use, duplicate, or disclose restricted computer software
are as set forth in the Restricted Rights Notice of subparagraph
(g)(3) of this section if included in this clause.
(7) Technical data, as used in this clause, means recorded data,
regardless of form or characteristic, that are of a scientific or
technical nature. Technical data does not include computer software,
but does include manuals and instructional materials and technical
data formatted as a computer data base.
(8) Unlimited rights, as used in this clause, means the rights
of the Government to use, disclose, reproduce, prepare derivative
works, distribute copies to the public, including by electronic
means, and perform publicly and display publicly, in any manner,
including by electronic means, and for any purpose whatsoever, and
to have or permit others to do so.
* * * * *
(d)(3) The Contractor agrees not to assert copyright in computer
software first produced in the performance of this contract without
prior written permission of the DOE Patent Counsel assisting the
contracting activity. When such permission is granted, the Patent
Counsel shall specify appropriate terms, conditions, and submission
requirements to assure utilization, dissemination, and
commercialization of the data. The Contractor, when requested, shall
promptly deliver to Patent Counsel a duly executed and approved
instrument fully confirmatory of all rights to which the Government
is entitled.
(2) However, rights in data in these specific situations will be
treated as described, where the contract is--
(i) For the production of special works of the type set forth in
FAR 27.405(a), but the clause at FAR 52.227-14, Rights in Data-General,
shall be included in the contract and made applicable to data other
than special works, as appropriate (See paragraph (i) of FAR 27.409);
(ii) For the acquisition of existing data works, as described in
FAR 27.405(b) (See paragraph (j) of FAR 27.409);
(iii) To be performed outside the United States, its possessions,
and Puerto Rico, in which case agencies may prescribe different clauses
(See paragraph (n) of FAR 27.409);
(iv) For architect-engineer services or construction work, in which
case contracting officers shall utilize the clause at FAR 52.227-17,
Rights in Data-Special Works;
(v) A Small Business Innovation Research contract (See paragraph
(l) of FAR 27.409);
(vi) For management and operation of a DOE facility (See 970.2705)
or other contracts involving the production of data necessary for the
management or operation of DOE facilities or a DOE site, after
consultation with Patent Counsel (See 927.402-1(b)); or
(vii) Awarded pursuant to a statute expressly providing authority
for the protection of data first produced thereunder from disclosure or
dissemination. (See 927.404-70).
(h) The contracting officer shall insert the clause at FAR 52.227-
16, Additional Data Requirements, in solicitations and contracts
involving experimental, developmental, research, or demonstration work
(other than basic or applied research to be performed solely by a
university or college where the contract amount will be $500,000 or
less) unless all the requirements for data are believed to be known at
the time of contracting and specified in the contract. See FAR
27.406(b). This clause may also be used in other contracts when
considered appropriate.
* * * * *
(s) Contracting officers shall incorporate the solicitation
provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all
requests for proposals.
(t) Contracting officers shall include the solicitation provision
at 952.227-84 in all solicitations involving research, developmental,
or demonstration work.
Subpart 927.70--[Removed and Reserved]
18. Subpart 927.70 consisting of 927.7000 through 927.7005 is
removed and reserved.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
19. The authority citation for Part 952 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
952.227-13 [Amended]
20. Subsection 952.227-13 is amended in paragraph (a) of the clause
by inserting the sentence ``See 10 CFR part 784.'' at the end of the
definition of ``DOE patent waiver regulations'' and in subparagraph
(c)(1)(ii) introductory text of the clause by inserting ``(10 CFR part
784)'' after the phrase ``patent waiver regulations''.
21. Subsection 952.227-14 of Part 952 is added to read as follows:
952.227-14 Rights in data-general. (DOE coverage-alternates VI and
VII)
Alternate VI (Feb 1998)
As prescribed at 48 CFR 927.404(l) insert Alternate VI to
require the contractor to license data regarded as limited rights
data or restricted computer software to the Government and third
parties at reasonable royalties upon request by the Department of
Energy.
(k) Contractor Licensing. Except as may be otherwise specified
in this contract as data not subject to this paragraph, the
contractor agrees that upon written application by DOE, it will
grant to the Government and responsible third parties, for purposes
of practicing a subject of this contract, a nonexclusive license in
any limited rights data or restricted computer software on terms and
conditions reasonable under the circumstances including appropriate
provisions for confidentiality; provided, however, the contractor
shall not be obliged to license any such data if the contractor
[[Page 10508]]
demonstrates to the satisfaction of the Secretary of Energy or
designee that:
(1) Such data are not essential to the manufacture or practice
of hardware designed or fabricated, or processes developed, under
this contract;
(2) Such data, in the form of results obtained by their use,
have a commercially competitive alternate available or readily
introducible from one or more other sources;
(3) Such data, in the form of results obtained by their use, are
being supplied by the contractor or its licensees in sufficient
quantity and at reasonable prices to satisfy market needs, or the
contractor or its licensees have taken effective steps or within a
reasonable time are expected to take effective steps to so supply
such data in the form of results obtained by their use; or
(4) Such data, in the form of results obtained by their use, can
be furnished by another firm skilled in the art of manufacturing
items or performing processes of the same general type and character
necessary to achieve the contract results.
(End of Alternate)
Alternate VII (Feb 1998)
As prescribed in 48 CFR 927.404(m) make the change described in
Alternate VII to limit the contractor's use of DOE restricted data.
Insert the parenthetical phrase ``(except Restricted Data in
category C-24, 10 CFR part 725, in which DOE has reserved the right
to receive reasonable compensation for the use of its inventions and
discoveries, including related data and technology).'' after the
phrase ``data first produced or specifically used by the Contractor
in the performance of this contract'' in paragraph (b)(2)(i) of the
clause at FAR 52.227-14.
(End of Alternate)
952.227-73 through 952.227-83 [Removed]
22. In Part 952, subsections 952.227-73, 952.227-75, 952.227-76,
952.227-77, 952.227-78, 952.227-79, and 952.227-83 are removed.
23. Subsection 952.227-84 is revised to read as follows:
952.227-84 Notice of right to request patent waiver.
Include this provision in all appropriate solicitations in
accordance with 48 CFR 927.409(t).
Right to Request Patent Waiver (Feb 1998)
Offerors have the right to request a waiver of all or any part
of the rights of the United States in inventions conceived or first
actually reduced to practice in performance of the contract that may
be awarded as a result of this solicitation, in advance of or within
30 days after the effective date of contracting. Even where such
advance waiver is not requested or the request is denied, the
contractor will have a continuing right under the contract to
request a waiver of the rights of the United States in identified
inventions, i.e., individual inventions conceived or first actually
reduced to practice in performance of the contract. Domestic small
businesses and domestic nonprofit organizations normally will
receive the patent rights clause at DEAR 952.227-11 which permits
the contractor to retain title to such inventions, except under
contracts for management or operation of a Government-owned research
and development facility or under contracts involving exceptional
circumstances or intelligence activities. Therefore, small
businesses and nonprofit organizations normally need not request a
waiver. See the patent rights clause in the draft contract in this
solicitation. See DOE's patent waiver regulations at 10 CFR part
784.
(End of Provision)
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
24. The authority citation for Part 970 continues to read:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub.
L. 95-91 (42 U.S.C. 7254).
25. Section 970.2705 is revised to read as follows:
970.2705 Rights in data--general.
(a) Rights in data relating to the performance of the contract and
to all facilities are significant in assuring continuity of the
management and operation of DOE facilities. It is crucial in assuring
DOE's continuing ability to perform its statutory missions that DOE
obtain rights to all data produced or specifically used by its
management and operating contractors and appropriate subcontractors. In
order to obtain the necessary rights in technical data, DOE contracting
officers shall assure that management and operating contracts contain
either the Rights in Data clause at 48 CFR 970.5204-82 or the clause at
48 CFR 970.5204-83. Selection of the appropriate clause is dependent
upon whether technology transfer is a mission of the management and
operating contract pursuant to the National Competitiveness Technology
Transfer Act of 1989 (Pub. L. 101-189, as amended). If technology
transfer is not a mission of the management and operating contractor,
the clause at 48 CFR 970.5204-82 will be used. In those instances in
which technology transfer is a mission, the clause at 48 CFR 970.5204-
83 will be used.
(b) Employees of the management and operating contractor may not be
used to assist in the preparation of a proposal or bid for the
performance of services, which are similar or related to those being
performed under the contract, by the contractor or its parent or
affiliate organization for commercial customers unless the employee has
been separated from work under the DOE contract for such period as the
Head of the Contracting Activity or designee shall have directed.
26. Revise Section 970.2706 as follows:
970.2706 Rights in technical data--procedures.
(a) The clauses at 48 CFR 970.5204-82 and 48 CFR 970.5204-83 both
provide generally for Government ownership and for unlimited rights in
the Government for all data first produced in the performance of the
contract and unlimited rights in data specifically used in the
performance of the contract. Both clauses provide that, subject to
patent, security, and other provisions of the contract, the contractor
may use contract data for its private purposes. The contractor, under
either clause, must treat any data furnished by DOE or acquired from
other Government agencies or private entities in the performance of
their contracts in accordance with any restrictive legends contained
therein.
(b) Since both clauses secure access to and, if requested, delivery
of technical data used in the performance of the contract, there is
generally no need to use the Additional Technical Data Requirements
clause at FAR 52.227-16 in the management and operating contract.
(c)(1) Paragraph (d) of the clause at 48 CFR 970.5204-82 and
paragraph (f) of the clause at 48 CFR 970.5204-83 provide for the
inclusion in subcontracts of the Rights in Technical Data--General
clause at FAR 52.227-14, with Alternate V, and modified in accordance
with DEAR 927.409. Those clauses also provide for the inclusion in
appropriate subcontracts Alternates II, III, and IV to the clause at
FAR 52.227-14 with DOE's prior approval and the inclusion of the
Additional Technical Data Requirements clause at FAR 52.227-16 in all
subcontracts for research, development, or demonstration and all other
subcontracts having special requirements for the production or delivery
of data. In subcontracts, including subcontracts for related support
services, involving the design or operation of any plants or facilities
or specially designed equipment for such plants or facilities that are
managed or operated by the contractor under its contract with DOE, the
management and operating contractor shall use the Rights in Data--
Facilities clause at 48 CFR 970.5204-82.
(2) Where, however, a subcontract is to be awarded by the
management and operating contractor in connection with a program, as
discussed at 927.404-70,
[[Page 10509]]
which provides statutory authority to protect from public disclosure,
data first produced under contracts awarded pursuant to the program,
contracting officers shall ensure that the M&O contractor includes in
that subcontract the rights in data clause provided by DOE Patent
Counsel, consistent with any accompanying guidance.
(3) Management and operating contractors and higher-tier
subcontractors shall not use their power to award subcontracts as
economic leverage to acquire rights in a subcontractor's limited rights
data or restricted computer software for their private use, nor may
they acquire rights in a subcontractor's limited rights data or
restricted computer software except through the use of Alternate II or
III to the clause at FAR 52.227-14, respectively, without the prior
approval of DOE Patent Counsel.
(d)(1) Paragraphs (e) and (f) of the clause at 48 CFR 970.5204-82
and paragraphs (g) and (h) of the clause at 48 CFR 970.5204-83 provide
for the contractor's granting a nonexclusive license in any limited
rights data and restricted computer software specifically used in
performance of the contract.
(2) In certain instances the objectives of DOE would be frustrated
if the Government did not obtain, at the time of contracting, limited
license rights on behalf of responsible third parties and the
Government in and to limited rights data or restricted computer
software or both necessary for the practice of subject inventions or
data first produced or delivered in the performance of the contract.
This situation may arise in the performance of management and operating
contracts and contracts for the management or operation of a DOE
facility or site. Contracting officers should consult with program
officials and Patent Counsel. No such rights should be obtained from a
small business or non-profit organization, unless similar rights in
background inventions of the small business or non-profit organization
have been authorized in accordance with 35 U.S.C. 202(f). Where such a
background license is in DOE's interest, a provision that provides
substantially as Alternate VI at 48 CFR 952.227-14 should be added to
the appropriate clause, 48 CFR 970.5204-82 or 48 CFR 970.5204-83.
(e) The Rights in Data-Technology Transfer clause at 48 CFR
970.5204-83 differs from the clause at 48 CFR 970.5204-82 in the
context of its more detailed treatment of copyright. In management and
operating contracts that have technology transfer as a mission, the
right to assert copyright in data first produced under the contract
will be a valuable right, and commercialization of such data, including
computer software, will assist the M&O contractor in advancing the
technology transfer mission of the contract. The clause at 48 CFR
970.5204-83 provides for DOE approval of DOE's taking a limited
copyright license for a period of five years, and, in certain rare
cases, specified longer periods in order to contribute to
commercialization of the data.
(f) Contracting officers should consult with Patent Counsel to
assure that requirements regarding royalties and conflicts of interest
associated with asserting copyright in data first produced under the
contract are appropriately addressed in the Technology Transfer Mission
clause of the management and operating contract. Where it is not
otherwise clear which DOE program funded the development of a computer
software package, such as where the development was funded out of a
contractor's overhead account, the DOE program which was the primary
source of funding for the entire contract is deemed to have
administrative responsibility. This issue may arise, among others, in
the decision whether to grant the contractor permission to assert
copyright. See paragraph (e) of the Rights in Data-Technology Transfer
clause at 970.5204-83.
(g) In management and operating contracts involving access to DOE-
owned Category C-24 restricted data, as set forth in 10 CFR part 725,
DOE has reserved the right to receive reasonable compensation for the
use of its inventions and discoveries, including its related restricted
data and technology. Alternate I to each clause shall be used where
access to Category C-24 restricted data is contemplated in the
performance of a contract.
27. Section 970.2707 is added to read as follows:
970.2707 Rights in data clauses.
(a) Contracting officers shall insert the clause at 48 CFR
970.5204-82, Rights in Data-Facilities, in management and operating
contracts which do not contain the clause at 48 CFR 970.5204-40,
Technology Transfer Mission.
(b) Contracting officers shall insert the clause at 970.5204-83,
Rights in Data-Technology Transfer, in management and operating
contracts which contain the clause at 970.5204-40, Technology Transfer
Mission.
(c) In accordance with 48 CFR 970.2706(g), in contracts where
access to Category C-24 restricted data, as set forth in 10 CFR part
725, is to be provided to contractors, Contracting Officers shall
incorporate Alternate I of the appropriate rights in data clause
prescribed in paragraph (a) or (b) of this section.
28. Subsection 970.5204-82 is added to read as follows:
970.5204-82 Rights in data--facilities.
Insert the following clause in the management and operating
contracts in accordance with 48 CFR 970.2707.
Rights in Data--Facilities (Feb 1998)
(a) Definitions.
(1) Computer data bases, as used in this clause, means a
collection of data in a form capable of, and for the purpose of,
being stored in, processed, and operated on by a computer. The term
does not include computer software.
(2) Computer software, as used in this clause, means (i)
computer programs which are data comprising a series of
instructions, rules, routines, or statements, regardless of the
media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising
source code listings, design details, algorithms, processes, flow
charts, formulae, and related material that would enable the
computer program to be produced, created, or compiled. The term does
not include computer data bases.
(3) Data, as used in this clause, means recorded information,
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software. The term
``data'' does not include data incidental to the administration of
this contract, such as financial, administrative, cost and pricing,
or management information.
(4) Limited rights data, as used in this clause, means data,
other than computer software, developed at private expense that
embody trade secrets or are commercial or financial and confidential
or privileged. The Government's rights to use, duplicate, or
disclose limited rights data are as set forth in the Limited Rights
Notice of subparagraph (e) of this clause.
(5) Restricted computer software, as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or
privileged; or is published copyrighted computer software, including
minor modifications of any such computer software. The Government's
rights to use, duplicate, or disclose restricted computer software
are as set forth in the Restricted Rights Notice of paragraph (f) of
this clause.
(6) Technical data, as used in this clause, means recorded data,
regardless of form or characteristic, that are of a scientific or
technical nature. Technical data does not include computer software,
but does include manuals and instructional materials and technical
data formatted as a computer data base.
(7) Unlimited rights, as used in this clause, means the rights
of the Government to use, disclose, reproduce, prepare derivative
works, distribute copies to the public, including by electronic
means, and perform publicly and display publicly, in any manner,
including by electronic means, and
[[Page 10510]]
for any purpose whatsoever, and to have or permit others to do so.
(b) Allocation of Rights.
(1) The Government shall have:
(i) Ownership of all technical data and computer software first
produced in the performance of this Contract;
(ii) Unlimited rights in technical data and computer software
specifically used in the performance of this Contract, except as
provided herein regarding copyright, limited rights data, or
restricted computer software, or except for other data specifically
protected by statute for a period of time or, where, approved by
DOE, appropriate instances of the DOE Work for Others Program;
(iii) The right to inspect technical data and computer software
first produced or specifically used in the performance of this
Contract at all reasonable times. The Contractor shall make
available all necessary facilities to allow DOE personnel to perform
such inspection;
(iv) The right to have all technical data and computer software
first produced or specifically used in the performance of this
Contract delivered to the Government or otherwise disposed of by the
Contractor, either as the Contracting Officer may from time to time
direct during the progress of the work or in any event as the
Contracting Officer shall direct upon completion or termination of
this Contract. The Contractor agrees to leave a copy of such data at
the facility or plant to which such data relate, and to make
available for access or to deliver to the Government such data upon
request by the Contracting Officer. If such data are limited rights
data or restricted computer software, the rights of the Government
in such data shall be governed solely by the provisions of paragraph
(e) of this clause (``Rights in Limited Rights Data'') or paragraph
(f) of this clause (``Rights in Restricted Computer Software''); and
(v) The right to remove, cancel, correct, or ignore any markings
not authorized by the terms of this Contract on any data furnished
hereunder if, in response to a written inquiry by DOE concerning the
propriety of the markings, the Contractor fails to respond thereto
within 60 days or fails to substantiate the propriety of the
markings. In either case DOE will notify the Contractor of the
action taken.
(2) The Contractor shall have:
(i) The right to withhold limited rights data and restricted
computer software unless otherwise provided in accordance with the
provisions of this clause; and
(ii) The right to use for its private purposes, subject to
patent, security or other provisions of this Contract, data it first
produces in the performance of this Contract, except for data in
DOE's Uranium Enrichment Technology, including diffusion,
centrifuge, and atomic vapor laser isotope separation, provided the
data requirements of this Contract have been met as of the date of
the private use of such data.
(3) The Contractor agrees that for limited rights data or
restricted computer software or other technical, business or
financial data in the form of recorded information which it receives
from, or is given access to by, DOE or a third party, including a
DOE Contractor or subcontractor, and for technical data or computer
software it first produces under this Contract which is authorized
to be marked by DOE, the Contractor shall treat such data in
accordance with any restrictive legend contained thereon.
(c) Copyrighted Material.
(1) The Contractor shall not, without prior written
authorization of the Patent Counsel, assert copyright in any
technical data or computer software first produced in the
performance of this contract. To the extent such authorization is
granted, the Government reserves for itself and others acting on its
behalf, a nonexclusive, paid-up, irrevocable, world-wide license for
Governmental purposes to publish, distribute, translate, duplicate,
exhibit, and perform any such data copyrighted by the Contractor.
(2) The Contractor agrees not to include in the technical data
or computer software delivered under the contract any material
copyrighted by the Contractor and not to knowingly include any
material copyrighted by others without first granting or obtaining
at no cost a license therein for the benefit of the Government of
the same scope as set forth in paragraph (c)(1) of this clause. If
the Contractor believes that such copyrighted material for which the
license cannot be obtained must be included in the technical data or
computer software to be delivered, rather than merely incorporated
therein by reference, the Contractor shall obtain the written
authorization of the Contracting Officer to include such material in
the technical data or computer software prior to its delivery.
(d) Subcontracting.
(1) Unless otherwise directed by the Contracting Officer, the
Contractor agrees to use in subcontracts in which technical data or
computer software is expected to be produced or in subcontracts for
supplies that contain a requirement for production or delivery of
data in accordance with the policy and procedures of 48 CFR (FAR)
Subpart 27.4 as supplemented by 48 CFR (DEAR) 927.401 through
927.409, the clause entitled ``Rights in Data-General'' at 48 CFR
52.227-14 modified in accordance with 927.409(a) and including
Alternate V. Alternates II through IV of that clause may be included
as appropriate with the prior approval of DOE Patent Counsel, and
the Contractor shall not acquire rights in a subcontractor's limited
rights data or restricted computer software, except through the use
of Alternates II or III, respectively, without the prior approval of
DOE Patent Counsel. The clause at FAR 52.227-16, Additional Data
Requirements, shall be included in subcontracts in accordance with
DEAR 927.409(h). The contractor shall use instead the Rights in
Data-Facilities clause at DEAR 970.5204-82 in subcontracts,
including subcontracts for related support services, involving the
design or operation of any plants or facilities or specially
designed equipment for such plants or facilities that are managed or
operated under its contract with DOE.
(2) It is the responsibility of the Contractor to obtain from
its subcontractors technical data and computer software and rights
therein, on behalf of the Government, necessary to fulfill the
Contractor's obligations to the Government with respect to such
data. In the event of refusal by a subcontractor to accept a clause
affording the Government such rights, the Contractor shall:
(i) Promptly submit written notice to the Contracting Officer
setting forth reasons or the subcontractor's refusal and other
pertinent information which may expedite disposition of the matter,
and
(ii) Not proceed with the subcontract without the written
authorization of the Contracting Officer.
(3) Neither the Contractor nor higher-tier subcontractors shall
use their power to award subcontracts as economic leverage to
acquire rights in a subcontractor's limited rights data or
restricted computer software for their private use.
(e) Rights in Limited Rights Data.
Except as may be otherwise specified in this Contract as data
which are not subject to this paragraph, the Contractor agrees to
and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up license by or for the Government, in any
limited rights data of the Contractor specifically used in the
performance of this Contract, provided, however, that to the extent
that any limited rights data when furnished or delivered is
specifically identified by the Contractor at the time of initial
delivery to the Government or a representative of the Government,
such data shall not be used within or outside the Government except
as provided in the ``Limited Rights Notice'' set forth. All such
limited rights data shall be marked with the following ``Limited
Rights Notice'':
Limited Rights Notice
These data contain ``limited rights data,'' furnished under
Contract No. ______________ with the United States Department of
Energy which may be duplicated and used by the Government with the
express limitations that the ``limited rights data'' may not be
disclosed outside the Government or be used for purposes of
manufacture without prior permission of the Contractor, except that
further disclosure or use may be made solely for the following
purposes:
(a) Use (except for manufacture) by support services contractors
within the scope of their contracts;
(b) This ``limited rights data'' may be disclosed for evaluation
purposes under the restriction that the ``limited rights data'' be
retained in confidence and not be further disclosed;
(c) This ``limited rights data'' may be disclosed to other
contractors participating in the Government's program of which this
Contract is a part for information or use (except for manufacture)
in connection with the work performed under their contracts and
under the restriction that the ``limited rights data'' be retained
in confidence and not be further disclosed;
(d) This ``limited rights data'' may be used by the Government
or others on its behalf for emergency repair or overhaul work under
the restriction that the ``limited rights data'' be retained in
confidence and not be further disclosed; and
(e) Release to a foreign government, or instrumentality thereof,
as the interests of the
[[Page 10511]]
United States Government may require, for information or evaluation,
or for emergency repair or overhaul work by such government.
This Notice shall be marked on any reproduction of this data in
whole or in part.
(End of Notice)
(f) Rights in Restricted Computer Software.
(1) Except as may be otherwise specified in this Contract as
data which are not subject to this paragraph, the Contractor agrees
to and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up, license by or for the Government, in any
restricted computer software of the Contractor specifically used in
the performance of this Contract, provided, however, that to the
extent that any restricted computer software when furnished or
delivered is specifically identified by the Contractor at the time
of initial delivery to the Government or a representative of the
Government, such data shall not be used within or outside the
Government except as provided in the ``Restricted Rights Notice''
set forth below. All such restricted computer software shall be
marked with the following ``Restricted Rights Notice'':
Restricted Rights Notice-Long Form
(a) This computer software is submitted with restricted rights
under Department of Energy Contract No. ______________ . It may not
be used, reproduced, or disclosed by the Government except as
provided in paragraph (b) of this notice.
(b) This computer software may be:
(1) Used or copied for use in or with the computer or computers
for which it was acquired, including use at any Government
installation to which such computer or computers may be transferred;
(2) Used, copied for use, in a backup or replacement computer if
any computer for which it was acquired is inoperative or is
replaced;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software,
provided that only the portions of the derivative software
consisting of the restricted computer software are to be made
subject to the same restricted rights; and
(5) Disclosed to and reproduced for use by contractors under a
service contract (of the type defined in FAR 37.101) in accordance
with subparagraphs (b)(1) through (4) of this Notice, provided the
Government makes such disclosure or reproduction subject to these
restricted rights.
(c) Notwithstanding the foregoing, if this computer software has
been published under copyright, it is licensed to the Government,
without disclosure prohibitions, with the rights set forth in the
restricted rights notice above.
(d) This Notice shall be marked on any reproduction of this
computer software, in whole or in part.
(End of Notice)
(2) Where it is impractical to include the Restricted Rights
Notice on restricted computer software, the following short-form
Notice may be used in lieu thereof:
Restricted Rights Notice--Short Form
Use, reproduction, or disclosure is subject to restrictions set
forth in the Long Form Notice of DOE Contract No. ______________
with (name of Contractor ).
(End of Notice)
(3) If the software is embedded, or if it is commercially
impractical to mark it with human readable text, then the symbol R
and the clause date (mo/yr), in brackets or a box, a [R-mo/yr], may
be used. This will be read to mean restricted computer software,
subject to the rights of the Government as described in the Long
Form Notice, in effect as of the date indicated next to the symbol.
The symbol shall not be used to mark human readable material. In the
event this Contract contains any variation to the rights in the Long
Form Notice, then the contract number must also be cited.
(4) If restricted computer software is delivered with the
copyright notice of 17 U.S.C. 401, the software will be presumed to
be published copyrighted computer software licensed to the
Government without disclosure prohibitions and with unlimited
rights, unless the Contractor includes the following statement with
such copyright notice ``Unpublished-rights reserved under the
Copyright Laws of the United States.''
(g) Relationship to patents. Nothing contained in this clause
creates or is intended to imply a license to the Government in any
patent or is intended to be construed as affecting the scope of any
licenses or other rights otherwise granted to the Government under
any patent.
(End of Clause)
Alternate I (Feb 1998): In accordance with 970.2706(g), insert
the phrase ``and except Restricted Data in category C-24, 10 CFR
part 725, in which DOE has reserved the right to receive reasonable
compensation for the use of its inventions and discoveries,
including related data and technology'' after ``laser isotope
separation'' and before the comma in paragraph (b)(2)(ii) of the
clause at 970.5204-83, as appropriate.
(End of Alternate)
29. Subsection 970.5204-83 is added to read as follows:
970.5204-83 Rights in Data-Technology Transfer.
Insert the following clause in management and operating contracts
in accordance with 48 CFR 970.2707.
Rights in Data-Technology Transfer (Feb 1998)
(a) Definitions.
(1) Computer data bases, as used in this clause, means a
collection of data in a form capable of, and for the purpose of,
being stored in, processed, and operated on by a computer. The term
does not include computer software.
(2) Computer software, as used in this clause, means (i)
computer programs which are data comprising a series of
instructions, rules, routines, or statements, regardless of the
media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising
source code listings, design details, algorithms, processes, flow
charts, formulae, and related material that would enable the
computer program to be produced, created, or compiled. The term does
not include computer data bases.
(3) Data, as used in this clause, means recorded information,
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software. The term
``data'' does not include data incidental to the administration of
this contract, such as financial, administrative, cost and pricing,
or management information.
(4) Limited rights data, as used in this clause, means data,
other than computer software, developed at private expense that
embody trade secrets or are commercial or financial and confidential
or privileged. The Government's rights to use, duplicate, or
disclose limited rights data are as set forth in the Limited Rights
Notice of paragraph (g) of this clause.
(5) Restricted computer software, as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or
privileged; or is published copyrighted computer software, including
minor modifications of any such computer software. The Government's
rights to use, duplicate, or disclose restricted computer software
are as set forth in the Restricted Rights Notice of subparagraph (h)
of this clause.
(6) Technical data, as used in this clause, means recorded data,
regardless of form or characteristic, that are of a scientific or
technical nature. Technical data does not include computer software,
but does include manuals and instructional materials and technical
data formatted as a computer data base.
(7) Unlimited rights, as used in this clause, means the rights
of the Government to use, disclose, reproduce, prepare derivative
works, distribute copies to the public, including by electronic
means, and perform publicly and display publicly, in any manner,
including by electronic means, and for any purpose whatsoever, and
to have or permit others to do so.
(b) Allocation of Rights.
(1) The Government shall have:
(i) Ownership of all technical data and computer software first
produced in the performance of this Contract;
(ii) Unlimited rights in technical data and computer software
specifically used in the performance of this Contract, except as
provided herein regarding copyright, limited rights data, or
restricted computer software, and except for data subject to the
withholding provisions for protected Cooperative Research and
Development Agreement (CRADA) information in accordance with
Technology Transfer actions under this Contract, or other data
specifically protected by statute for a period of time or, where,
approved by DOE, appropriate instances of the DOE Work for Others
Program;
(iii) The right to inspect technical data and computer software
first produced or specifically used in the performance of this
Contract at all reasonable times. The
[[Page 10512]]
Contractor shall make available all necessary facilities to allow
DOE personnel to perform such inspection;
(iv) The right to have all technical data and computer software
first produced or specifically used in the performance of this
Contract delivered to the Government or otherwise disposed of by the
Contractor, either as the Contracting Officer may from time to time
direct during the progress of the work or in any event as the
Contracting Officer shall direct upon completion or termination of
this Contract. The Contractor agrees to leave a copy of such data at
the facility or plant to which such data relate, and to make
available for access or to deliver to the Government such data upon
request by the Contracting Officer. If such data are limited rights
data or restricted computer software. the rights of the Government
in such data shall be governed solely by the provisions of paragraph
(g) of this clause (``Rights in Limited Rights Data'') or paragraph
(h) of this clause (``Rights in Restricted Computer Software''); and
(v) The right to remove, cancel, correct, or ignore any markings
not authorized by the terms of this Contract on any data furnished
hereunder if, in response to a written inquiry by DOE concerning the
propriety of the markings, the Contractor fails to respond thereto
within 60 days or fails to substantiate the propriety of the
markings. In either case DOE will notify the Contractor of the
action taken.
(2) The Contractor shall have:
(i) The right to withhold limited rights data and restricted
computer software unless otherwise provided in provisions of this
clause;
(ii) The right to use for its private purposes, subject to
patent, security or other provisions of this Contract, data it first
produces in the performance of this Contract, except for data in
DOE's Uranium Enrichment Technology, including diffusion,
centrifuge, and atomic vapor laser isotope separation, provided the
data requirements of this Contract have been met as of the date of
the private use of such data; and
(iii) The right to assert copyright subsisting in scientific and
technical articles as provided in paragraph (d) of this clause and
the right to request permission to assert copyright subsisting in
works other than scientific and technical articles as provided in
paragraph (e) of this clause.
(3) The Contractor agrees that for limited rights data or
restricted computer software or other technical business or
financial data in the form of recorded information which it receives
from, or is given access to by DOE or a third party, including a DOE
contractor or subcontractor, and for technical data or computer
software it first produces under this Contract which is authorized
to be marked by DOE, the Contractor shall treat such data in
accordance with any restrictive legend contained thereon.
(c) Copyright (General).
(1) The Contractor agrees not to mark, register, or otherwise
assert copyright in any data in a published or unpublished work,
other than as set forth in paragraphs (d) and (e) of this clause.
(2) Except for material to which the Contractor has obtained the
right to assert copyright in accordance with either paragraph (d) or
(e) of this clause, the Contractor agrees not to include in the data
delivered under this Contract any material copyrighted by the
Contractor and not to knowingly include any material copyrighted by
others without first granting or obtaining at no cost a license
therein for the benefit of the Government of the same scope as set
forth in paragraph (d) of this clause. If the Contractor believes
that such copyrighted material for which the license cannot be
obtained must be included in the data to be delivered, rather than
merely incorporated therein by reference, the Contractor shall
obtain the written authorization of the Contracting Officer to
include such material in the data prior to its delivery.
(d) Copyrighted works (scientific and technical articles).
(1) The Contractor shall have the right to assert, without prior
approval of the Contracting Officer, copyright subsisting in
scientific and technical articles composed under this contract or
based on or containing data first produced in the performance of
this Contract, and published in academic, technical or professional
journals, symposia, proceedings, or similar works. When assertion of
copyright is made, the Contractor shall affix the applicable
copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of
Government sponsorship (including contract number) on the data when
such data are delivered to the Government as well as when the data
are published or deposited for registration as a published work in
the U.S. Copyright Office. The Contractor grants to the Government,
and others acting on its behalf, a nonexclusive, paid-up,
irrevocable, world-wide license in such copyrighted data to
reproduce, prepare derivative works, distribute copies to the
public, and perform publicly and display publicly, by or on behalf
of the Government.
(2) The contractor shall mark each scientific or technical
article first produced or composed under this Contract and submitted
for journal publication or similar means of dissemination with a
notice, similar in all material respects to the following, on the
front reflecting the Government's non-exclusive, paid-up,
irrevocable, world-wide license in the copyright.
Notice: This manuscript has been authored by [insert the name of
the Contractor] under Contract No. [insert the contract number] with
the U.S. Department of Energy. The United States Government retains
and the publisher, by accepting the article for publication,
acknowledges that the United States Government retains a non-
exclusive, paid-up, irrevocable, world-wide license to publish or
reproduce the published form of this manuscript, or allow others to
do so, for United States Government purposes.
(End of Notice)
(3) The title to the copyright of the original of unclassified
graduate theses and the original of related unclassified scientific
papers shall vest in the author thereof, subject to the right of DOE
to retain duplicates of such documents and to use such documents for
any purpose whatsoever without any claim on the part of the author
or the contractor for additional compensation.
(e) Copyrighted works (other than scientific and technical
articles and data produced under a CRADA). The Contractor may obtain
permission to assert copyright subsisting in technical data and
computer software first produced by the Contractor in performance of
this Contract, where the Contractor can show that commercialization
would be enhanced by such copyright protection, subject to the
following:
(1) Contractor Request to Assert Copyright.
(i) For data other than scientific and technical articles and
data produced under a CRADA, the Contractor shall submit in writing
to Patent Counsel its request to assert copyright in data first
produced in the performance of this Contract pursuant to this
clause. The right of the Contractor to copyright data first produced
under a CRADA is as described in the individual CRADA. Each request
by the Contractor must include:
(A) The identity of the data (including any computer program)
for which the Contractor requests permission to assert copyright, as
well as an abstract which is descriptive of the data and is suitable
for dissemination purposes,
(B) The program under which it was funded,
(C) Whether, to the best knowledge of the Contractor, the data
is subject to an international treaty or agreement,
(D) Whether the data is subject to export control,
(E) A statement that the Contractor plans to commercialize the
data in compliance with the clause of this contract entitled
``Technology Transfer Mission,'' within five (5) years after
obtaining permission to assert copyright or, on a case-by-case
basis, a specified longer period where the Contractor can
demonstrate that the ability to commercialize effectively is
dependent upon such longer period, and
(F) For data other than computer software, a statement
explaining why the assertion of copyright is necessary to enhance
commercialization and is consistent with DOE's dissemination
responsibilities.
(ii) For data that is developed using other funding sources in
addition to DOE funding, the permission to assert copyright in
accordance with this clause must also be obtained by the Contractor
from all other funding sources prior to the Contractor's request to
Patent Counsel. The request shall include the Contractor's
certification or other documentation acceptable to Patent Counsel
demonstrating such permission has been obtained.
(iii) Permission for the Contractor to assert copyright in
excepted categories of data as determined by DOE will be expressly
withheld. Such excepted categories include data whose release (A)
would be detrimental to national security, i.e., involve classified
information or data or sensitive information under Section 148 of
the Atomic Energy Act of 1954, as amended, or are subject to export
control for nonproliferation and other nuclear-related national
security purposes, (B) would not enhance the appropriate transfer or
dissemination and commercialization of such data, (C) would have a
negative impact on U.S. industrial
[[Page 10513]]
competitiveness, (D) would prevent DOE from meeting its obligations
under treaties and international agreements, or (E) would be
detrimental to one or more of DOE's programs. Additional excepted
categories may be added by the Assistant General Counsel for
Technology Transfer and Intellectual Property. Where data are
determined to be under export control restriction, the Contractor
may obtain permission to assert copyright subject to the provisions
of this clause for purposes of limited commercialization in a manner
that complies with export control statutes and applicable
regulations. In addition, notwithstanding any other provision of
this Contract, all data developed with Naval Reactors' funding and
those data that are classified fall within excepted categories. The
rights of the Contractor in data are subject to the disposition of
data rights in the treaties and international agreements identified
under this Contract as well as those additional treaties and
international agreements which DOE may from time to time identify by
unilateral amendment to the Contract; such amendment listing added
treaties and international agreements is effective only for data
which is developed after the date such treaty or international
agreement is added to this Contract. Also, the Contractor will not
be permitted to assert copyright in data in the form of various
technical reports generated by the Contractor under the Contract
without first obtaining the advanced written permission of the
Contracting Officer.
(2) DOE Review and Response to Contractor's Request. The Patent
Counsel shall use its best efforts to respond in writing within 90
days of receipt of a complete request by the Contractor to assert
copyright in technical data and computer software pursuant to this
clause. Such response shall either give or withhold DOE's permission
for the Contractor to assert copyright or advise the Contractor that
DOE needs additional time to respond and the reasons therefor.
(3) Permission for Contractor to Assert Copyright.
(i) For computer software, the Contractor shall furnish to the
DOE designated, centralized software distribution and control point,
the Energy Science and Technology Software Center, at the time
permission to assert copyright is given under paragraph (e)(2) of
this clause: (A) an abstract describing the software suitable for
publication, (B) the source code for each software program, and (C)
the object code and at least the minimum support documentation
needed by a technically competent user to understand and use the
software. The Patent Counsel, for good cause shown by the
Contractor, may allow the minimum support documentation to be
delivered within 60 days after permission to assert copyright is
given or at such time the minimum support documentation becomes
available. The Contractor acknowledges that the DOE designated
software distribution and control point may provide a technical
description of the software in an announcement identifying its
availability from the copyright holder.
(ii) Unless otherwise directed by the Contracting Officer, for
data other than computer software to which the Contractor has
received permission to assert copyright under paragraph (e)(2) of
this clause above, the Contractor shall within sixty (60) days of
obtaining such permission furnish to DOE's Office of Scientific and
Technical Information (OSTI) a copy of such data as well as an
abstract of the data suitable for dissemination purposes. The
Contractor acknowledges that OSTI may provide an abstract of the
data in an announcement to DOE, its contractors and to the public
identifying its availability from the copyright holder.
(iii) For a five year period or such other specified period as
specifically approved by Patent Counsel beginning on the date the
Contractor is given permission to assert copyright in data, the
Contractor grants to the Government, and others acting on its
behalf, a paid-up, nonexclusive, irrevocable worldwide license in
such copyrighted data to reproduce, prepare derivative works and
perform publicly and display publicly, by or on behalf of the
Government. Upon request, the initial period may be extended after
DOE approval. The DOE approval will be based on the standard that
the work is still commercially available and the market demand is
being met.
(iv) After the period approved by Patent Counsel for application
of the limited Government license described in paragraph (e)(3)(iii)
of this clause, or if, prior to the end of such period(s), the
Contractor abandons commercialization activities pertaining to the
data to which the Contractor has been given permission to assert
copyright, the Contractor grants to the Government, and others
acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide
license in such copyrighted data to reproduce, distribute copies to
the public, prepare derivative works, perform publicly and display
publicly, and to permit others to do so.
(v) Whenever the Contractor asserts copyright in data pursuant
to this paragraph (e), the Contractor shall affix the applicable
copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and
also an acknowledgment of the Government sponsorship and license
rights of paragraphs (e)(3) (iii) and (iv) of this clause. Such
action shall be taken when the data are delivered to the Government,
published, licensed or deposited for registration as a published
work in the U.S. Copyright Office. The acknowledgment of Government
sponsorship and license rights shall be as follows:
Notice: These data were produced by (insert name of Contractor)
under Contract No. ______________ with the Department of Energy. For
(period approved by DOE Patent Counsel) from (date permission to
assert copyright was obtained), the Government is granted for itself
and others acting on its behalf a nonexclusive, paid-up, irrevocable
worldwide license in this data to reproduce, prepare derivative
works, and perform publicly and display publicly, by or on behalf of
the Government. There is provision for the possible extension of the
term of this license. Subsequent to that period or any extension
granted, the Government is granted for itself and others acting on
its behalf a nonexclusive, paid-up, irrevocable worldwide license in
this data to reproduce, prepare derivative works, distribute copies
to the public, perform publicly and display publicly, and to permit
others to do so. The specific term of the license can be identified
by inquiry made to Contractor or DOE. Neither the United States nor
the United States Department of Energy, nor any of their employees,
makes any warranty, express or implied, or assumes any legal
liability or responsibility for the accuracy, completeness, or
usefulness of any data , apparatus, product, or process disclosed,
or represents that its use would not infringe privately owned
rights.
(End of Notice)
(vi) With respect to any data to which the Contractor has
received permission to assert copyright, the DOE has the right,
during the five (5) year or specified longer period approved by
Patent Counsel as provided for in paragraph (e) of this clause, to
request the Contractor to grant a nonexclusive, partially exclusive
or exclusive license in any field of use to a responsible
applicant(s) upon terms that are reasonable under the circumstances,
and if the Contractor refuses such request, to grant such license
itself, if the DOE determines that the Contractor has not made a
satisfactory demonstration that either it or its licensee(s) is
actively pursuing commercialization of the data as set forth in
subparagraph (e)(1)(A) of this clause. Before licensing under this
subparagraph (vi), DOE shall furnish the Contractor a written
request for the Contractor to grant the stated license, and the
Contractor shall be allowed thirty (30) days (or such longer period
as may be authorized by the Contracting Officer for good cause shown
in writing by the Contractor) after such notice to show cause why
the license should not be granted. The Contractor shall have the
right to appeal the decision of the DOE to grant the stated license
to the Invention Licensing Appeal Board as set forth in 10 CFR
781.65--``Appeals''.
(vii) No costs shall be allowable for maintenance of copyrighted
data, primarily for the benefit of the Contractor and/or a licensee
which exceeds DOE Program needs, except as expressly provided in
writing by the Contracting Officer. The Contractor may use its net
royalty income to effect such maintenance costs.
(viii) At any time the Contractor abandons commercialization
activities for data for which the Contractor has received permission
to assert copyright in accordance with this clause, it shall advise
OSTI and Patent Counsel and upon request assign the copyright to the
Government so that the Government can distribute the data to the
public.
(4) The following notice may be placed on computer software
prior to any publication and prior to the Contractor's obtaining
permission from the Department of Energy to assert copyright in the
computer software pursuant to paragraph (c)(3) of this section.
Notice: This computer software was prepared by [insert the
Contractor's name and the individual author], hereinafter the
Contractor, under Contract [insert the Contract Number] with the
Department of Energy (DOE). All rights in the computer
[[Page 10514]]
software are reserved by DOE on behalf of the United States
Government and the Contractor as provided in the Contract. You are
authorized to use this computer software for Governmental purposes
but it is not to be released or distributed to the public. NEITHER
THE GOVERNMENT NOR THE CONTRACTOR MAKES ANY WARRANTY, EXPRESS OR
IMPLIED, OR ASSUMES ANY LIABILITY FOR THE USE OF THIS SOFTWARE. This
notice including this sentence must appear on any copies of this
computer software.
(End of Notice)
(5) a similar notice can be used for data, other than computer
software, upon approval of DOE Patent Counsel.
(f) Subcontracting.
(1) Unless otherwise directed by the Contracting Officer, the
Contractor agrees to use in subcontracts in which technical data or
computer software is expected to be produced or in subcontracts for
supplies that contain a requirement for production or delivery of
data in accordance with the policy and procedures of 48 CFR (FAR)
Subpart 27.4 as supplemented by 48 CFR (DEAR) 927.401 through
927.409, the clause entitled ``Rights in Data-General'' at 48 CFR
52.227-14 modified in accordance with 927.409(a) and including
Alternate V. Alternates II through IV of that clause may be included
as appropriate with the prior approval of DOE Patent Counsel, and
the Contractor shall not acquire rights in a subcontractor's limited
rights data or restricted computer software, except through the use
of Alternates II or III, respectively, without the prior approval of
DOE Patent Counsel. The clause at FAR 52.227-16, Additional Data
Requirements, shall be included in subcontracts in accordance with
DEAR 927.409(h). The Contractor shall use instead the Rights in
Data--Facilities clause at DEAR 970.5204-82 in subcontracts,
including subcontracts for related support services, involving the
design or operation of any plants or facilities or specially
designed equipment for such plants or facilities that are managed or
operated under its contract with DOE.
(2) It is the responsibility of the Contractor to obtain from
its subcontractors technical data and computer software and rights
therein, on behalf of the Government, necessary to fulfill the
Contractor's obligations to the Government with respect to such
data. In the event of refusal by a subcontractor to accept a clause
affording the Government such rights, the Contractor shall:
(i) Promptly submit written notice to the Contracting Officer
setting forth reasons or the subcontractor's refusal and other
pertinent information which may expedite disposition of the matter,
and
(ii) Not proceed with the subcontract without the written
authorization of the Contracting Officer.
(3) Neither the Contractor nor higher-tier subcontractors shall
use their power to award subcontracts as economic leverage to
acquire rights in a subcontractor's limited rights data and
restricted computer software for their private use.
(g) Rights in Limited Rights Data.
Except as may be otherwise specified in this Contract as data
which are not subject to this paragraph, the Contractor agrees to
and does hereby grant to the Government an irrevocable nonexclusive,
paid-up license by or for the Government, in any limited rights data
of the Contractor specifically used in the performance of this
Contract, provided, however, that to the extent that any limited
rights data when furnished or delivered is specifically identified
by the Contractor at the time of initial delivery to the Government
or a representative of the Government, such data shall not be used
within or outside the Government except as provided in the ``Limited
Rights Notice'' set forth below. All such limited rights data shall
be marked with the following ``Limited Rights Notice:''
Limited Rights Notice
These data contain ``limited rights data,'' furnished under
Contract No. ______________ with the United States Department of
Energy which may be duplicated and used by the Government with the
express limitations that the ``limited rights data'' may not be
disclosed outside the Government or be used for purposes of
manufacture without prior permission of the Contractor, except that
further disclosure or use may be made solely for the following
purposes:
(a) Use (except for manufacture) by support services contractors
within the scope of their contracts;
(b) This ``limited rights data'' may be disclosed for evaluation
purposes under the restriction that the ``limited rights data'' be
retained in confidence and not be further disclosed;
(c) This ``limited rights data'' may be disclosed to other
contractors participating in the Government's program of which this
Contract is a part for information or use (except for manufacture)
in connection with the work performed under their contracts and
under the restriction that the ``limited rights data'' be retained
in confidence and not be further disclosed;
(d) This ``limited rights data'' may be used by the Government
or others on its behalf for emergency repair or overhaul work under
the restriction that the ``limited rights data'' be retained in
confidence and not be further disclosed; and
(e) Release to a foreign government, or instrumentality thereof,
as the interests of the United States Government may require, for
information or evaluation, or for emergency repair or overhaul work
by such government.
This Notice shall be marked on any reproduction of this data in
whole or in part.
(End of Notice)
(h) Rights in Restricted Computer Software.
(1) Except as may be otherwise specified in this Contract as
data which are not subject to this paragraph, the Contractor agrees
to and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up, license by or for the Government, in any
restricted computer software of the Contractor specifically used in
the performance of this Contract; provided, however, that to the
extent that any restricted computer software when furnished or
delivered is specifically identified by the Contractor at the time
of initial delivery to the Government or a representative of the
Government, such data shall not be used within or outside the
Government except as provided in the ``Restricted Rights Notice''
set forth below. All such restricted computer software shall be
marked with the following ``Restricted Rights Notice:''
Restricted Rights Notice--Long Form
(a) This computer software is submitted with restricted rights
under Department of Energy Contract No. ______________ . It may not
be used, reproduced, or disclosed by the Government except as
provided in paragraph (b) of this notice.
(b) This computer software may be:
(1) Used or copied for use in or with the computer or computers
for which it was acquired, including use at any Government
installation to which such computer or computers may be transferred;
(2) Used, copied for use, in a backup or replacement computer if
any computer for which it was acquired is inoperative or is
replaced;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software,
provided that only the portions of the derivative software
consisting of the restricted computer software are to be made
subject to the same restricted rights; and
(5) Disclosed to and reproduced for use by contractors under a
service contract (of the type defined in FAR 37.101) in accordance
with subparagraphs (b)(1) through (4) of this Notice, provided the
Government makes such disclosure or reproduction subject to these
restricted rights.
(c) Notwithstanding the foregoing, if this computer software has
been published under copyright, it is licensed to the Government,
without disclosure prohibitions, with the rights set forth in the
restricted rights notice above.
(d) This Notice shall be marked on any reproduction of this
computer software, in whole or in part.
(End of Notice)
(2) Where it is impractical to include the Restricted Rights
Notice on restricted computer software, the following short-form
Notice may be used in lieu thereof:
Restricted Rights Notice--Short Form
Use, reproduction, or disclosure is subject to restrictions set
forth in the Long Form Notice of DOE Contract No. ______________
with (name of Contractor).
(End of Notice)
(3) If the software is embedded, or if it is commercially
impractical to mark it with human readable text, then the symbol R
and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may
be used. This will be read to mean restricted computer software,
subject to the rights of the Government as described in the Long
Form Notice, in effect as of the date indicated next to the symbol.
The symbol shall not be used to mark human readable material. In the
event this Contract contains any variation to the rights in the Long
Form Notice, then the contract number must also be cited.
(4) If restricted computer software is delivered with the
copyright notice of 17 U.S.C. 401, the software will be presumed to
[[Page 10515]]
be published copyrighted computer software licensed to the
Government without disclosure prohibitions and with unlimited
rights, unless the Contractor includes the following statement with
such copyright notice ``Unpublished-rights reserved under the
Copyright Laws of the United States.''
(i) Relationship to patents.
Nothing contained in this clause creates or is intended to imply
a license to the Government in any patent or is intended to be
construed as affecting the scope of any licenses or other rights
otherwise granted to the Government under any patent.
(End of Clause)
Alternate I (Feb. 1998): In accordance with 970.2706(g), insert
the phrase ``and except Restricted Data in category C-24, 10 CFR
part 725, in which DOE has reserved the right to receive reasonable
compensation for the use of its inventions and discoveries,
including related data and technology'' after ``laser isotope
separation'' and before the comma in paragraph (b)(2)(ii) of the
clause at 970.5204-83, as appropriate.
(End of Alternate)
[FR Doc. 98-5079 Filed 3-4-98; 8:45 am]
BILLING CODE 6450-01-P
