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SUBPART 227.71--RIGHTS IN TECHNICAL DATA

(Revised February 28, 2014)

 

 



 227.7100 Scope of subpart.
 227.7101 Definitions.
 227.7102 Commercial items, components, or processes.
 227.7102-1 Policy.
 227.7102-2 Rights in technical data.
 227.7102-3 Government right to review, verify, challenge and validate asserted restrictions.
 227.7102-4 Contract clauses.
 227.7103 Noncommercial items or processes.
 227.7103-1 Policy.
 227.7103-2 Acquisition of technical data.
 227.7103-3 Early identification of technical data to be furnished to the Government
                   with restrictions on use, reproduction ordisclosure.

 227.7103-4 License rights.
 227.7103-5 Government rights.
 227.7103-6 Contract clauses.
 227.7103-7 Use and non-disclosure agreement.
 227.7103-8 Deferred delivery and deferred ordering of technical data.
 227.7103-9 Copyright.
 227.7103-10 Contractor identification and marking of technical data to be
                    furnished with restrictive markings.

 227.7103-11 Contractor procedures and records.
 227.7103-12 Government right to establish conformity of markings.
 227.7103-13 Government right to review, verify, challenge and validate asserted restrictions.
 227.7103-14 Conformity, acceptance, and warranty of technical data.
 227.7103-15 Subcontractor rights in technical data.
 227.7103-16 Providing technical data to foreign governments,
                    foreign contractors, or international organizations.

 227.7103-17 Overseas contracts with foreign sources.
 227.7104 Contracts under the Small Business Innovation Research (SBIR) Program.
 227.7105 Contracts for the acquisition of existing works.
 227.7105-1 General.
 227.7105-2 Acquisition of existing works without modification.
 227.7105-3 Acquisition of modified existing works.
 227.7106 Contracts for special works.
 227.7107 Contracts for architect-engineer services.
 227.7107-1 Architectural designs and data clauses for architect-engineer or construction contracts.
 227.7107-2 Contracts for construction supplies and research and development work.
 227.7107-3 Approval of restricted designs.
 227.7108 Contractor data repositories.


227.7100  Scope of subpart.

This subpart—

 

      (a)  Prescribes policies and procedures for the acquisition of technical data and the rights to use, modify, reproduce, release, perform, display, or disclose technical data.  It implements requirements in the following laws and Executive Order:

 

              (1)  10 U.S.C. 2302(4).

 

              (2)  10 U.S.C. 2305 (subsection (d)(4)).

 

              (3)  10 U.S.C. 2320.

 

              (4)  10 U.S.C. 2321.

 

              (5)  10 U.S.C. 2325.

 

              (6)  10 U.S.C. 7317.

 

              (7)  17 U.S.C. 1301, et seq.

 

              (8)  Pub. L. 103-355.

 

              (9)  Executive Order 12591 (Subsection 1(b)(6)).

 

      (b)  Does not apply to—

 

              (1)  Computer software or technical data that is computer software documentation (see subpart 227.72); or

 

              (2)  Releases of technical data to litigation support contractors (see subpart 204.74).

 

227.7101  Definitions.

 

      (a)  As used in this subpart, unless otherwise specifically indicated, the terms “offeror” and “contractor” include an offeror's or contractor's subcontractors, suppliers, or potential subcontractors or suppliers at any tier.

 

      (b)  Other terms used in this subpart are defined in the clause at 252.227-7013, Rights in Technical Data–Noncommercial Items.

 

227.7102  Commercial items, components, or processes.

 

227.7102-1  Policy.

 

      (a)  DoD shall acquire only the technical data customarily provided to the public with a commercial item or process, except technical data that—

 

              (1)  Are form, fit, or function data;

 

              (2)  Are required for repair or maintenance of commercial items or processes, or for the proper installation, operating, or handling of a commercial item, either as a stand alone unit or as a part of a military system, when such data are not customarily provided to commercial users or the data provided to commercial users is not sufficient for military purposes; or

 

              (3)  Describe the modifications made at Government expense to a commercial item or process in order to meet the requirements of a Government solicitation.

 

      (b)  To encourage offerors and contractors to offer or use commercial products to satisfy military requirements, offerors and contractors shall not be required, except for the technical data described in paragraph (a) of this subsection, to—

 

              (1)  Furnish technical information related to commercial items or processes that is not customarily provided to the public; or

 

              (2)  Relinquish to, or otherwise provide, the Government rights to use, modify, reproduce, release, perform, display, or disclose technical data pertaining to commercial items or processes except for a transfer of rights mutually agreed upon.

 

      (c)  The Government's rights in a vessel design, and in any useful article embodying a vessel design, must be consistent with the Government's rights in technical data pertaining to the design (10 U.S.C. 7317; 17 U.S.C. 1301(a)(3)).

 

227.7102-2  Rights in technical data.

 

      (a)  The clause at 252.227-7015, Technical Data–Commercial Items, provides the Government specific license rights in technical data pertaining to commercial items or processes. DoD may use, modify, reproduce, release, perform, display, or disclose data only within the Government. The data may not be used to manufacture additional quantities of the commercial items and, except for emergency repair or overhaul and for covered Government support contractors, may not be released or disclosed to, or used by, third parties without the contractor's written permission. Those restrictions do not apply to the technical data described in 227.7102-1(a).

 

      (b)  If additional rights are needed, contracting activities must negotiate with the contractor to determine if there are acceptable terms for transferring such rights.  The specific additional rights granted to the Government shall be enumerated in a license agreement made part of the contract.

 

227.7102-3  Government right to review, verify, challenge and validate asserted restrictions.

Follow the procedures at 227.7103-13 and the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, regarding the validation of asserted restrictions on technical data related to commercial items.

 

227.7102-4  Contract clauses.

 

      (a)(1)  Except as provided in paragraph (b) of this subsection, use the clause at 252.227-7015, Technical Data–Commercial Items, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when the contractor will be required to deliver technical data pertaining to commercial items, components, or processes.

 

              (2)  Use the clause at 252.227-7015 with its Alternate I in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for the development or delivery of a vessel design or any useful article embodying a vessel design.

 

      (b)  In accordance with the clause prescription at 227.7103-6(a), use the clause at 252.227-7013, Rights in Technical Data–Noncommercial Items, in addition to the clause at 252.227-7015, if the Government will have paid for any portion of the development costs of a commercial item. The clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial item that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense.

 

      (c)  Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, in solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items that include the clause at 252.227-7015 or the clause at 252.227-7013.

 

227.7103  Noncommercial items or processes.

 

227.7103-1  Policy.

 

      (a)  DoD policy is to acquire only the technical data, and the rights in that data, necessary to satisfy agency needs.

 

      (b)  Solicitations and contracts shall—

 

              (1)  Specify the technical data to be delivered under a contract and delivery schedules for the data;

 

              (2)  Establish or reference procedures for determining the acceptability of technical data;

 

              (3)  Establish separate contract line items, to the extent practicable, for the technical data to be delivered under a contract and require offerors and contractors to price separately each deliverable data item; and

 

              (4)  Require offerors to identify, to the extent practicable, technical data to be furnished with restrictions on the Government's rights and require contractors to identify technical data to be delivered with such restrictions prior to delivery.

 

      (c)  Offerors shall not be required, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish to the Government any rights in technical data related to items, components or processes developed at private expense except for the data identified at 227.7103-5(a)(2) and (a)(4) through (9).

 

      (d)  Offerors and contractors shall not be prohibited or discouraged from furnishing or offering to furnish items, components, or processes developed at private expense solely because the Government's rights to use, modify, release, reproduce, perform, display, or disclose technical data pertaining to those items may be restricted.

 

      (e)  As provided in 10 U.S.C. 2305, solicitations for major systems development contracts shall not require offerors to submit proposals that would permit the Government to acquire competitively items identical to items developed at private expense unless a determination is made at a level above the contracting officer that—

 

              (1)  The offeror will not be able to satisfy program schedule or delivery requirements; or

 

              (2)  The offeror's proposal to meet mobilization requirements does not satisfy mobilization needs.

 

      (f)  For acquisitions involving major weapon systems or subsystems of major weapon systems, the acquisition plan shall address acquisition strategies that provide for technical data and the associated license rights in accordance with 207.106(S-70).

 

      (g)  The Government's rights in a vessel design, and in any useful article embodying a vessel design, must be consistent with the Government's rights in technical data pertaining to the design (10 U.S.C. 7317; 17 U.S.C. 1301(a)(3)).

 

227.7103-2  Acquisition of technical data.

 

      (a)  Contracting officers shall work closely with data managers and requirements personnel to assure that data requirements included in solicitations are consistent with the policy expressed in 227.7103-1.

 

      (b)(1)  Data managers or other requirements personnel are responsible for identifying the Government's minimum needs for technical data.  Data needs must be established giving consideration to the contractor's economic interests in data pertaining to items, components, or processes that have been developed at private expense; the Government's costs to acquire, maintain, store, retrieve, and protect the data; reprocurement needs; repair, maintenance and overhaul philosophies; spare and repair part considerations; and whether procurement of the items, components, or processes can be accomplished on a form, fit, or function basis.  When it is anticipated that the Government will obtain unlimited or government purpose rights in technical data that will be required for competitive spare or repair parts procurements, such data should be identified as deliverable data items.  Reprocurement needs may not be a sufficient reason to acquire detailed manufacturing or process data when items or components can be acquired using performance specifications, form, fit and function data, or when there are a sufficient number of alternate sources which can reasonably be expected to provide such items on a performance specification or form, fit, or function basis.

 

              (2)  When reviewing offers received in response to a solicitation or other request for data, data managers must balance the original assessment of the Government's data needs with data prices contained in the offer.

 

      (c)  Contracting officers are responsible for ensuring that, wherever practicable, solicitations and contracts—

 

              (1)  Identify the type and quantity of the technical data to be delivered under the contract and the format and media in which the data will be delivered;

 

              (2)  Establish each deliverable data item as a separate contract line item (this requirement may be satisfied by listing each deliverable data item on an exhibit to the contract);

 

              (3)  Identify the prices established for each deliverable data item under a fixed-price type contract;

 

              (4)  Include delivery schedules and acceptance criteria for each deliverable data item; and

 

              (5)  Specifically identify the place of delivery for each deliverable item of technical data.

 

227.7103-3  Early identification of technical data to be furnished to the Government with restrictions on use, reproduction or disclosure.

 

      (a)  10 U.S.C. 2320 requires, to the maximum extent practicable, an identification prior to delivery of any technical data to be delivered to the Government with restrictions on use.

 

      (b)  Use the provision at 252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions, in all solicitations that include the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items.  The provision requires offerors to identify any technical data for which restrictions, other than copyright, on use, release, or disclosure are asserted and to attach the identification and assertions to the offer.

 

      (c)  Subsequent to contract award, the clause at 252.227-7013 permits a contractor, under certain conditions, to make additional assertions of use, release, or disclosure restrictions.  The prescription for the use of that clause and its alternate is at 227.7103-6(a) and (b).

 

227.7103-4  License rights.

 

      (a)  Grant of license.  The Government obtains rights in technical data, including a copyright license, under an irrevocable license granted or obtained for the Government by the contractor.  The contractor or licensor retains all rights in the data not granted to the Government.  For technical data that pertain to items, components, or processes, the scope of the license is generally determined by the source of funds used to develop the item, component, or process.  When the technical data do not pertain to items, components, or processes, the scope of the license is determined by the source of funds used to create the data.

 

              (1)  Technical data pertaining to items, components, or processes.  Contractors or licensors may, with some exceptions (see 227.7103-5(a)(2) and (a)(4) through (9)), restrict the Government's rights to use, modify, release, reproduce, perform, display or disclose technical data pertaining to items, components, or processes developed exclusively at private expense (limited rights).  They may not restrict the Government's rights in items, components, or processes developed exclusively at Government expense (unlimited rights) without the Government's approval.  When an item, component, or process is developed with mixed funding, the Government may use, modify, release, reproduce, perform, display or disclose the data pertaining to such items, components, or processes within the Government without restriction but may release or disclose the data outside the Government only for government purposes (government purpose rights).

 

              (2)  Technical data that do not pertain to items, components, or processes.

Technical data may be created during the performance of a contract for a conceptual design or similar effort that does not require the development, manufacture, construction, or production of items, components or processes.  The Government generally obtains unlimited rights in such data when the data were created exclusively with Government funds, government purpose rights when the data were created with mixed funding, and limited rights when the data were created exclusively at private expense.

 

      (b)  Source of funds determination.  The determination of the source of development funds for technical data pertaining to items, components, or processes should be made at any practical sub-item or sub-component level or for any segregable portion of a process.  Contractors may assert limited rights in a segregable sub-item, sub-component, or portion of a process which otherwise qualifies for limited rights under the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items.

 

227.7103-5  Government rights.

The standard license rights that a licensor grants to the Government are unlimited rights, government purpose rights, or limited rights.  Those rights are defined in the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items.  In unusual situations, the standard rights may not satisfy the Government's needs or the Government may be willing to accept lesser rights in data in return for other consideration.  In those cases, a special license may be negotiated.  However, the licensor is not obligated to provide the Government greater rights and the contracting officer is not required to accept lesser rights than the rights provided in the standard grant of license.  The situations under which a particular grant of license applies are enumerated in paragraphs (a) through (d) of this subsection.

 

      (a)  Unlimited rights.  The Government obtains unlimited rights in technical data that are—

 

              (1)  Data pertaining to an item, component, or process which has been or will be developed exclusively with Government funds;

 

              (2)  Studies, analyses, test data, or similar data produced in the performance of a contract when the study, analysis, test, or similar work was specified as an element of performance;

 

              (3)  Created exclusively with Government funds in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes;

 

              (4)  Form, fit, and function data;

 

              (5)  Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);

 

              (6)  Corrections or changes to technical data furnished to the contractor by the Government;

 

              (7)  Publicly available or have been released or disclosed by the contractor or subcontractor without restrictions on further use, release or disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

 

              (8)  Data in which the Government has obtained unlimited rights under another Government contract or as a result of negotiations; or

 

              (9)  Data furnished to the Government, under a Government contract or subcontract thereunder, with—

 

                    (i)  Government purpose license rights or limited rights and the restrictive condition(s) has/have expired; or

 

                    (ii)  Government purpose rights and the contractor's exclusive right to use such data for commercial purposes has expired.

 

      (b)  Government purpose rights.

 

              (1)  The Government obtains government purpose rights in technical data—

 

                    (i)  That pertain to items, components, or processes developed with mixed funding except when the Government is entitled to unlimited rights as provided in paragraphs (a)(2) and (a)(4) through (9) of this subsection; or

 

                    (ii)  Created with mixed funding in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes.

 

              (2)  The period during which government purpose rights are effective is negotiable.  The clause at 252.227-7013 provides a nominal five-year period.  Either party may request a different period.  Changes to the government purpose rights period may be made at any time prior to delivery of the technical data without consideration from either party.  Longer periods should be negotiated when a five-year period does not provide sufficient time to apply the data for commercial purposes or when necessary to recognize subcontractors' interests in the data.

 

              (3)  The government purpose rights period commences upon execution of the contract, subcontract, letter contract (or similar contractual instrument), contract modification, or option exercise that required the development.  Upon expiration of the Government rights period, the Government has unlimited rights in the data including the right to authorize others to use the data for commercial purposes.

 

              (4)  During the government purpose rights period, the Government may not use, or authorize other persons to use, technical data marked with government purpose rights legends for commercial purposes.  The Government shall not release or disclose data in which it has government purpose rights to any person, or authorize others to do so, unless—

 

                    (i)  Prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at 227.7103-7; or

 

                    (ii)  The intended recipient is a Government contractor receiving access to the data for performance of a Government contract that contains the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

 

              (5)  When technical data marked with government purpose rights legends will be released or disclosed to a Government contractor performing a contract that does not include the clause at 252.227-7025, the contract may be modified, prior to release or disclosure, to include that clause in lieu of requiring the contractor to complete a use and non-disclosure agreement.

 

              (6)  Contracting activities shall establish procedures to assure that technical data marked with government purpose rights legends are released or disclosed, including a release or disclosure through a Government solicitation, only to persons subject to the use and non-disclosure restrictions.  Public announcements in the Commerce Business Daily or other publications must provide notice of the use and non-disclosure requirements.  Class use and non-disclosure agreements (e.g., agreements covering all solicitations received by the XYZ company within a reasonable period) are authorized and may be obtained at any time prior to release or disclosure of the government purpose rights data.  Documents transmitting government purpose rights data to persons under class agreements shall identify the technical data subject to government purpose rights and the class agreement under which such data are provided.

 

      (c)  Limited rights.

 

              (1)  The Government obtains limited rights in technical data—

 

                    (i)  That pertain to items, components, or processes developed exclusively at private expense except when the Government is entitled to unlimited rights as provided in paragraphs (a)(2) and (a)(4) through (9) of this subsection; or

 

                    (ii)  Created exclusively at private expense in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes.

 

              (2)  Data in which the Government has limited rights may not be used, released, or disclosed outside the Government without the permission of the contractor asserting the restriction except for a use, release, or disclosure that is—

 

                    (i)  Necessary for emergency repair and overhaul;

 

                    (ii)  To a covered Government support contractor; or

 

                    (iii)  To a foreign government, other than detailed manufacturing or process data, when use, release, or disclosure is in the interest of the United States and is required for evaluational or informational purposes.

 

              (3)  The person asserting limited rights must be notified of the Government's intent to release, disclose, or authorize others to use such data prior to release or disclosure of the data except notification of an intended release, disclosure, or use for emergency repair or overhaul which shall be made as soon as practicable.

 

              (4)  When the person asserting limited rights permits the Government to release, disclose, or have others use the data subject to restrictions on further use, release, or disclosure, or for a release under paragraph (c)(2)(i), (ii), or (iii) of this subsection, the intended recipient must complete the use and non-disclosure agreement at 227.7103-7, or receive the data for performance of a Government contract that contains the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, prior to release or disclosure of the limited rights data.

 

      (d)  Specifically negotiated license rights.

 

              (1)  Negotiate specific licenses when the parties agree to modify the standard license rights granted to the Government or when the Government wants to obtain rights in data in which it does not have rights.  When negotiating to obtain, relinquish, or increase the Government's rights in technical data, consider the acquisition strategy for the item, component, or process, including logistics support and other factors which may have relevance for a particular procurement.  The Government may accept lesser rights when it has unlimited or government purpose rights in data but may not accept less than limited rights in such data.  The negotiated license rights must stipulate what rights the Government has to release or disclose the data to other persons or to authorize others to use the data.  Identify all negotiated rights in a license agreement made part of the contract.

 

              (2)  When the Government needs additional rights in data acquired with government purpose or limited rights, the contracting officer must negotiate with the contractor to determine whether there are acceptable terms for transferring such rights.  Generally, such negotiations should be conducted only when there is a need to disclose the data outside the Government or if the additional rights are required for competitive reprocurement and the anticipated savings expected to be obtained through competition are estimated to exceed the acquisition cost of the additional rights.  Prior to negotiating for additional rights in limited rights data, consider alternatives such as—

 

                    (i)  Using performance specifications and form, fit, and function data to acquire or develop functionally equivalent items, components, or processes;

 

                    (ii)  Obtaining a contractor's contractual commitment to qualify additional sources and maintain adequate competition among the sources; or

 

                    (iii)  Reverse engineering, or providing items from Government inventories to contractors who request the items to facilitate the development of equivalent items through reverse engineering.

 

227.7103-6  Contract clauses.

 

      (a)  Use the clause at 252.227-7013, Rights in Technical Data–Noncommercial Items, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when the successful offeror(s) will be required to deliver to the Government technical data pertaining to noncommercial items, or pertaining to commercial items for which the Government will have paid for any portion of the development costs (in which case the clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial item that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense).. Do not use the clause when the only deliverable items are computer software or computer software documentation (see 227.72), commercial items developed exclusively at private expense (see 227.7102-4), existing works (see 227.7105), special works (see 227.7106), or when contracting under the Small Business Innovation Research Program (see 227.7104). Except as provided in 227.7107-2, do not use the clause in architect-engineer and construction contracts.

 

      (b)(1)  Use the clause at 252.227-7013 with its Alternate I in research solicitations and contracts , including research solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when the contracting officer determines, in consultation with counsel, that public dissemination by the contractor would be—

 

              (i)  In the interest of the Government; and

 

              (ii)  Facilitated by the Government relinquishing its right to publish the work for sale, or to have others publish the work for sale on behalf of the Government.

 

      (2)  Use the clause at 252.227-7013 with its Alternate II in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the development or delivery of a vessel design or any useful article embodying a vessel design.

 

      (c)  Use the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, in solicitations and contracts when it is anticipated that the Government will provide the contractor (other than a litigation support contractor covered by 252.204-7014), for performance of its contract, technical data marked with another contractor's restrictive legend(s).

 

      (d)  Use the provision at 252.227-7028, Technical Data or Computer Software Previously Delivered to the Government, in solicitations when the resulting contract will require the contractor to deliver technical data.  The provision requires offerors to identify any technical data specified in the solicitation as deliverable data items that are the same or substantially the same as data items the offeror has delivered or is obligated to deliver, either as a contractor or subcontractor, under any other federal agency contract.

 

      (e)  Use the following clauses in solicitations and contracts that include the clause at 252.227-7013:

 

              (1)  252.227-7016, Rights in Bid or Proposal Information;

 

              (2)  252.227-7030, Technical Data–Withholding of Payment; and

 

              (3)  252.227-7037, Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause contains information that must be included in a challenge).

 

227.7103-7  Use and non-disclosure agreement.

 

      (a)  Except as provided in paragraph (b) of this subsection, technical data or computer software delivered to the Government with restrictions on use, modification, reproduction, release, performance, display, or disclosure may not be provided to third parties unless the intended recipient completes and signs the use and non-disclosure agreement at paragraph (c) of this subsection prior to release, or disclosure of the data.

 

              (1)  The specific conditions under which an intended recipient will be authorized to use, modify, reproduce, release, perform, display, or disclose technical data subject to limited rights or computer software subject to restricted rights must be stipulated in an attachment to the use and non-disclosure agreement.

 

              (2)  For an intended release, disclosure, or authorized use of technical data or computer software subject to special license rights, modify paragraph (1)(d) of the use and non-disclosure agreement to enter the conditions, consistent with the license requirements, governing the recipient's obligations regarding use, modification, reproduction, release, performance, display or disclosure of the data or software.

 

      (b)  The requirement for use and non-disclosure agreements does not apply to Government contractors which require access to a third party's data or software for the performance of a Government contract that contains the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

 

      (c)  The prescribed use and non-disclosure agreement is:

 

 

Use and Non-Disclosure Agreement

 

The undersigned, __________(Insert Name)__________, an authorized representative of the __________(Insert Company Name)__________, (which is hereinafter referred to as the “Recipient”) requests the Government to provide the Recipient with technical data or computer software (hereinafter referred to as “Data”) in which the Government's use, modification, reproduction, release, performance, display or disclosure rights are restricted.  Those Data are identified in an attachment to this Agreement.  In consideration for receiving such Data, the Recipient agrees to use the Data strictly in accordance with this Agreement:

 

      (1)  The Recipient shall—

 

              (a)  Use, modify, reproduce, release, perform, display, or disclose Data marked with government purpose rights or SBIR data rights legends only for government purposes and shall not do so for any commercial purpose.  The Recipient shall not release, perform, display, or disclose these Data, without the express written permission of the contractor whose name appears in the restrictive legend (the “Contractor”), to any person other than its subcontractors or suppliers, or prospective subcontractors or suppliers, who require these Data to submit offers for, or perform, contracts with the Recipient.  The Recipient shall require its subcontractors or suppliers, or prospective subcontractors or suppliers, to sign a use and non-disclosure agreement prior to disclosing or releasing these Data to such persons.  Such agreement must be consistent with the terms of this agreement.

 

              (b)  Use, modify, reproduce, release, perform, display, or disclose technical data marked with limited rights legends only as specified in the attachment to this Agreement.  Release, performance, display, or disclosure to other persons is not authorized unless specified in the attachment to this Agreement or expressly permitted in writing by the Contractor.  The Recipient shall promptly notify the Contractor of the execution of this Agreement and identify the Contractor's Data that has been or will be provided to the Recipient, the date and place the Data were or will be received, and the name and address of the Government office that has provided or will provide the Data.

 

              (c)  Use computer software marked with restricted rights legends only in performance of Contract Number __________(insert contract number(s))__________.  The recipient shall not, for example, enhance, decompile, disassemble, or reverse engineer the software; time share, or use a computer program with more than one computer at a time.  The recipient may not release, perform, display, or disclose such software to others unless expressly permitted in writing by the licensor whose name appears in the restrictive legend.  The Recipient shall promptly notify the software licensor of the execution of this Agreement and identify the software that has been or will be provided to the Recipient, the date and place the software were or will be received, and the name and address of the Government office that has provided or will provide the software.

 

              (d)  Use, modify, reproduce, release, perform, display, or disclose Data marked with special license rights legends (To be completed by the contracting officer.  See 227.7103-7(a)(2).  Omit if none of the Data requested is marked with special license rights legends).

 

      (2)  The Recipient agrees to adopt or establish operating procedures and physical security measures designed to protect these Data from inadvertent release or disclosure to unauthorized third parties.

 

      (3)  The Recipient agrees to accept these Data “as is” without any Government representation as to suitability for intended use or warranty whatsoever.  This disclaimer does not affect any obligation the Government may have regarding Data specified in a contract for the performance of that contract.

 

      (4)  The Recipient may enter into any agreement directly with the Contractor with respect to the use, modification, reproduction, release, performance, display, or disclosure of these Data.

 

      (5)  The Recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of Data received from the Government with restrictive legends by the Recipient or any person to whom the Recipient has released or disclosed the Data.

 

      (6)  The Recipient is executing this Agreement for the benefit of the Contractor.  The Contractor is a third party beneficiary of this Agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against the Recipient or any other person to whom the Recipient has released or disclosed the Data, to seek damages from any breach of this Agreement or to otherwise enforce this Agreement.

 

      (7)  The Recipient agrees to destroy these Data, and all copies of the Data in its possession, no later than 30 days after the date shown in paragraph (8) of this Agreement, to have all persons to whom it released the Data do so by that date, and to notify the Contractor that the Data have been destroyed.

 

      (8)  This Agreement shall be effective for the period commencing with the Recipient's execution of this Agreement and ending upon _________(Insert Date)_________.  The obligations imposed by this Agreement shall survive the expiration or termination of the Agreement.

 

 

 


Recipient's Business Name

_________________________________

 

 

By____________________________

      Authorized Representative

_________________________________

Date

 

 

Representative’s Typed Name

_________________________________

and Title

_________________________________

 

 

(End of use and non-disclosure agreement)

 

227.7103-8  Deferred delivery and deferred ordering of technical data.

 

      (a)  Deferred delivery.  Use the clause at 252.227-7026, Deferred Delivery of Technical Data or Computer Software, when it is in the Government's interests to defer the delivery of technical data.  The clause permits the contracting officer to require the delivery of technical data identified as “deferred delivery” data at any time until two years after acceptance by the Government of all items (other than technical data or computer software) under the contract or contract termination, whichever is later.  The obligation of subcontractors or suppliers to deliver such technical data expires two years after the date the prime contractor accepts the last item from the subcontractor or supplier for use in the performance of the contract.  The contract must specify which technical data is subject to deferred delivery.  The contracting officer shall notify the contractor sufficiently in advance of the desired delivery date for such data to permit timely delivery.

 

      (b)  Deferred ordering.  Use the clause at 252.227-7027, Deferred Ordering of Technical Data or Computer Software, when a firm requirement for a particular data item(s) has not been established prior to contract award but there is a potential need for the data.  Under this clause, the contracting officer may order any data that has been generated in the performance of the contract or any subcontract thereunder at any time until three years after acceptance of all items (other than technical data or computer software) under the contract or contract termination, whichever is later.  The obligation of subcontractors to deliver such data expires three years after the date the contractor accepts the last item under the subcontract.  When the data are ordered, the delivery dates shall be negotiated and the contractor compensated only for converting the data into the prescribed form, reproduction costs, and delivery costs.

 

227.7103-9  Copyright.

 

      (a)  Copyright license.

 

              (1)  The clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, requires a contractor to grant or obtain for the Government license rights which permit the Government to reproduce data, distribute copies of the data, publicly perform or display the data or, through the right to modify data, prepare derivative works.  The extent to which the Government, and others acting on its behalf, may exercise these rights varies for each of the standard data rights licenses obtained under the clause.  When non-standard license rights in technical data will be negotiated, negotiate the extent of the copyright license concurrent with negotiations for the data rights license.  Do not negotiate a copyright license that provides less rights than the standard limited rights license in technical data.

 

              (2)  The clause at 252.227-7013 does not permit a contractor to incorporate a third party's copyrighted data into a deliverable data item unless the contractor has obtained an appropriate license for the Government and, when applicable, others acting on the Government's behalf, or has obtained the contracting officer's written approval to do so.  Grant approval to use third party copyrighted data in which the Government will not receive a copyright license only when the Government's requirements cannot be satisfied without the third party material or when the use of the third party material will result in cost savings to the Government which outweigh the lack of a copyright license.

 

      (b)  Copyright considerations–acquisition of existing and special works.  See 227.7105 or 227.7106 for copyright considerations when acquiring existing or special works.

 

227.7103-10  Contractor identification and marking of technical data to be furnished with restrictive markings.

 

      (a)  Identification requirements.

 

              (1)  The solicitation provision at 252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions, requires offerors to identify to the contracting officer, prior to contract award, any technical data that the offeror asserts should be provided to the Government with restrictions on use, modification, reproduction, release or disclosure.  This requirement does not apply to restrictions based solely on copyright.  The notification and identification must be submitted as an attachment to the offer.  If an offeror fails to submit the attachment or fails to complete the attachment in accordance with the requirements of the solicitation provision, such failure shall constitute a minor informality.  Provide offerors an opportunity to remedy a minor informality in accordance with the procedures at FAR 14.405 or 15.607.  An offeror's failure to correct the informality within the time prescribed by the contracting officer shall render the offer ineligible for award.

 

              (2)  The procedures for correcting minor informalities shall not be used to obtain information regarding asserted restrictions or an offeror's suggested asserted rights category.  Questions regarding the justification for an asserted restriction or asserted rights category must be pursued in accordance with the procedures at 227.7103-13.

 

              (3)  The restrictions asserted by a successful offeror shall be attached to its contract unless, in accordance with the procedures at 227.7103-13, the parties have agreed that an asserted restriction is not justified.  The contract attachment shall provide the same information regarding identification of the technical data, the asserted rights category, the basis for the assertion, and the name of the person asserting the restrictions as required by paragraph (d) of the solicitation provision at 252.227-7017.  Subsequent to contract award, the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, permits the contractor to make additional assertions under certain conditions.  The additional assertions must be made in accordance with the procedures and in the format prescribed by that clause.

 

              (4)  Neither the pre- or post-award assertions made by the contractor, nor the fact that certain assertions are identified in the attachment to the contract, determine the respective rights of the parties.  As provided at 227.7103-13, the Government has the right to review, verify, challenge and validate restrictive markings.

 

              (5)  Information provided by offerors in response to the solicitation provision may be used in the source selection process to evaluate the impact on evaluation factors that may be created by restrictions on the Government's ability to use or disclose technical data.  However, offerors shall not be prohibited from offering products for which the offeror is entitled to provide the Government limited rights in the technical data pertaining to such products and offerors shall not be required, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish any greater rights in technical data when the offeror is entitled to provide the technical data with limited rights.

 

      (b)  Contractor marking requirements.  The clause at 252.227-7013, Rights in Technical Data—Noncommercial Items—

 

              (1)  Requires a contractor that desires to restrict the Government's rights in technical data to place restrictive markings on the data, provides instructions for the placement of the restrictive markings, and authorizes the use of certain restrictive markings; and

 

              (2)  Requires a contractor to deliver, furnish, or otherwise provide to the Government any technical data in which the Government has previously obtained rights with the Government's pre-existing rights in that data unless the parties have agreed otherwise or restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired.  When restrictions are still applicable, the contractor is permitted to mark the data with the appropriate restrictive legend for which the data qualified.

 

      (c)  Unmarked technical data.

 

              (1)  Technical data delivered or otherwise provided under a contract without restrictive markings shall be presumed to have been delivered with unlimited rights and may be released or disclosed without restriction.  To the extent practicable, if a contractor has requested permission (see paragraph (c)(2) of this subsection) to correct an inadvertent omission of markings, do not release or disclose the technical data pending evaluation of the request.

 

              (2)  A contractor may request permission to have appropriate legends placed on unmarked technical data at its expense.  The request must be received by the contracting officer within six months following the furnishing or delivery of such data, or any extension of that time approved by the contracting officer.  The person making the request must:

 

                    (i)  Identify the technical data that should have been marked;

 

                    (ii)  Demonstrate that the omission of the marking was inadvertent, the proposed marking is justified and conforms with the requirements for the marking of technical data contained in the clause at 252.227-7013; and

 

                    (iii)  Acknowledge, in writing, that the Government has no liability with respect to any disclosure, reproduction, or use of the technical data made prior to the addition of the marking or resulting from the omission of the marking.

 

              (3)  Contracting officers should grant permission to mark only if the technical data were not distributed outside the Government or were distributed outside the Government with restrictions on further use or disclosure.

 

227.7103-11  Contractor procedures and records.

 

      (a)  The clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, requires a contractor, and its subcontractors or suppliers that will deliver technical data with other than unlimited rights, to establish and follow written procedures to assure that restrictive markings are used only when authorized and to maintain records to justify the validity of asserted restrictions on delivered data.

 

      (b)  The clause at 252.227-7037, Validation of Restrictive Markings on Technical Data requires contractors and their subcontractors at any tier to maintain records sufficient to justify the validity of restrictive markings on technical data delivered or to be delivered under a Government contract.

 

227.7103-12  Government right to establish conformity of markings.

 

      (a)  Nonconforming markings.

 

              (1)  Authorized markings are identified in the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items.  All other markings are nonconforming markings.  An authorized marking that is not in the form, or differs in substance, from the marking requirements in the clause at 252.227-7013 is also a nonconforming marking.

 

              (2)  The correction of nonconforming markings on technical data is not subject to 252.227-7037, Validation of Restrictive Markings on Technical Data.  To the extent practicable, the contracting officer should return technical data bearing nonconforming markings to the person who has placed the nonconforming markings on such data to provide that person an opportunity to correct or strike the nonconforming marking at that person's expense.  If that person fails to correct the nonconformity and return the corrected data within 60 days following the person's receipt of the data, the contracting officer may correct or strike the nonconformity at that person's expense.  When it is impracticable to return technical data for correction, contracting officers may unilaterally correct any nonconforming markings at Government expense.  Prior to correction, the data may be used in accordance with the proper restrictive marking.

 

      (b)  Unjustified markings.

 

              (1)  An unjustified marking is an authorized marking that does not depict accurately restrictions applicable to the Government's use, modification, reproduction, release, performance, display, or disclosure of the marked technical data.  For example, a limited rights legend placed on technical data pertaining to items, components, or processes that were developed under a Government contract either exclusively at Government expense or with mixed funding (situations under which the Government obtains unlimited or government purpose rights) is an unjustified marking.
              (2)  Contracting officers have the right to review and challenge the validity of unjustified markings.  However, at any time during performance of a contract and notwithstanding existence of a challenge, the contracting officer and the person who has asserted a restrictive marking may agree that the restrictive marking is not justified.  Upon such agreement, the contracting officer may, at his or her election, either—

 

                    (i)  Strike or correct the unjustified marking at that person's expense; or

 

                    (ii)  Return the technical data to the person asserting the restriction for correction at that person's expense.  If the data are returned and that person fails to correct or strike the unjustified restriction and return the corrected data to the contracting officer within 60 days following receipt of the data, the unjustified marking shall be corrected or stricken at that person's expense.

 

227.7103-13  Government right to review, verify, challenge and validate asserted restrictions.

 

      (a)  General.  An offeror's assertion(s) of restrictions on the Government's rights to use, modify, reproduce, release, or disclose technical data do not, by themselves, determine the extent of the Government's rights in the technical data.  Under 10 U.S.C. 2321, the Government has the right to challenge asserted restrictions when there are reasonable grounds to question the validity of the assertion and continued adherence to the assertion would make it impractical to later procure competitively the item to which the data pertain.

 

      (b)  Pre-award considerations.  The challenge procedures required by 10 U.S.C. 2321 could significantly delay awards under competitive procurements.  Therefore, avoid challenging asserted restrictions prior to a competitive contract award unless resolution of the assertion is essential for successful completion of the procurement.

 

      (c)  Challenge considerations and presumption..

 

              (1)  Requirements to initiate a challenge.  Contracting officers shall have reasonable grounds to challenge the validity of an asserted restriction. Before issuing a challenge to an asserted restriction, carefully consider all available information pertaining to the assertion. The contracting officer shall not challenge a contractor's assertion that a commercial item, component, or process was developed exclusively at private expense unless the Government can demonstrate that it contributed to development of the item, component or process.

 

              (2)  Presumption regarding development exclusively at private expense.  10 U.S.C. 2320(b)(1) and 2321(f) establish a presumption and procedures regarding validation of asserted restrictions for technical data related to commercial items, and to major systems, on the basis of development exclusively at private expense.

 

                    (i)  Commercial items.  For commercially available off-the-shelf items (defined at 41 U.S.C. 104 in all cases, and for all other commercial items except as provided in paragraph (c)(2)(ii) of this subsection, contracting officers shall presume that the items were developed exclusively at private expense whether or not a contractor submits a justification in response to a challenge notice. When a challenge is warranted, a contractor's or subcontractor's failure to respond to the challenge notice cannot be the sole basis for issuing a final decision denying the validity of an asserted restriction.

 

                    (ii)  Major systems.  The presumption of development exclusively at private expense does not apply to major systems or subsystems or components thereof, except for commercially available off-the-shelf items (which are governed by paragraph (c)(2)(i)) of this subsection. When the contracting officer challenges an asserted restriction regarding technical data for a major system or a subsystem or component thereof on the basis that the technology was not developed exclusively at private expense, the contracting officer shall sustain the challenge unless information provided by the contractor or subcontractor demonstrates that the item was developed exclusively at private expense.

 

      (d)  Challenge and validation.  All challenges must be made in accordance with the provisions of the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data.

 

              (1)  Challenge period.  Asserted restrictions should be reviewed before acceptance of technical data deliverable under the contract.  Assertions must be challenged within three years after final payment under the contract or three years after delivery of the data, whichever is later.  However, restrictive markings may be challenged at any time if the technical data—

 

                    (i)  Are publicly available without restrictions;

 

                    (ii)  Have been provided to the United States without restriction; or

 

                    (iii)  Have been otherwise made available without restriction other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party.

 

              (2)  Pre-challenge requests for information.

 

                    (i)  After consideration of the situations described in paragraph (d)(3) of this subsection, contracting officers may request the person asserting a restriction to furnish a written explanation of the facts and supporting documentation for the assertion in sufficient detail to enable the contracting officer to ascertain the basis of the restrictive markings.  Additional supporting documentation may be requested when the explanation provided by the person making the assertion does not, in the contracting officer's opinion, establish the validity of the assertion.

 

                    (ii)  If the person asserting the restriction fails to respond to the contracting officer's request for information or additional supporting documentation, or if the information submitted or any other available information pertaining to the validity of a restrictive marking does not justify the asserted restriction, a challenge should be considered.

 

              (3)  Transacting matters directly with subcontractors.  The clause at 252.227-7037 obtains the contractor's agreement that the Government may transact matters under the clause directly with a subcontractor, at any tier, without creating or implying privity of contract.  Contracting officers should permit a subcontractor or supplier to transact challenge and validation matters directly with the Government when—

 

                    (i)  A subcontractor's or supplier's business interests in its technical data would be compromised if the data were disclosed to a higher tier contractor;

 

                    (ii)  There is reason to believe that the contractor will not respond in a timely manner to a challenge and an untimely response would jeopardize a subcontractor's or supplier's right to assert restrictions; or

 

                    (iii)  Requested to do so by a subcontractor or supplier.

 

              (4)  Challenge notice.  The contracting officer shall not issue a challenge notice unless there are reasonable grounds to question the validity of an assertion.  The contracting officer may challenge an assertion whether or not supporting documentation was requested under paragraph (d)(2) of this subsection.  Challenge notices must be in writing and issued to the contractor or, after consideration of the situations described in paragraph (d)(3) of this subsection, the person asserting the restriction.  The challenge notice must include the information in paragraph (e) of the clause at 252.227-7037.

 

              (5)  Extension of response time.  The contracting officer, at his or her discretion, may extend the time for response contained in a challenge notice, as appropriate, if the contractor submits a timely written request showing the need for additional time to prepare a response.

 

              (6)  Contracting officer's final decision.  Contracting officers must issue a final decision for each challenged assertion, whether or not the assertion has been justified.

 

                    (i)  A contracting officer's final decision that an assertion is not justified must be issued as soon as practicable following the failure of the person asserting the restriction to respond to the contracting officer's challenge within 60 days, or any extension to that time granted by the contracting officer.
                    (ii)  A contracting officer who, following a challenge and response by the person asserting the restriction, determines that an asserted restriction is justified, shall issue a final decision sustaining the validity of the asserted restriction.  If the asserted restriction was made subsequent to submission of the contractor's offer, add the asserted restriction to the contract attachment.

 

                    (iii)  A contracting officer who determines that the validity of an asserted restriction has not been justified shall issue a contracting officer's final decision within the time frames prescribed in 252.227-7037.  As provided in paragraph (g) of that clause, the Government is obligated to continue to respect the asserted restrictions through final disposition of any appeal unless the agency head notifies the person asserting the restriction that urgent or compelling circumstances do not permit the Government to continue to respect the asserted restriction.

 

              (7)  Multiple challenges to an asserted restriction.  When more than one contracting officer challenges an asserted restriction, the contracting officer who made the earliest challenge is responsible for coordinating the Government challenges.  That contracting officer shall consult with all other contracting officers making challenges, verify that all challenges apply to the same asserted restriction and, after consulting with the contractor, subcontractor, or supplier asserting the restriction, issue a schedule that provides that person a reasonable opportunity to respond to each challenge.

 

              (8)  Validation.  Only a contracting officer's final decision, or actions of an agency board of contract appeals or a court of competent jurisdiction, that sustain the validity of an asserted restriction constitute validation of the asserted restriction.

 

227.7103-14  Conformity, acceptance, and warranty of technical data.

 

      (a)  Statutory requirements.  10 U.S.C. 2320—

 

              (1)  Provides for the establishment of remedies applicable to technical data found to be incomplete, inadequate, or not to satisfy the requirements of the contract concerning such data; and

 

              (2)  Authorizes agency heads to withhold payments (or exercise such other remedies an agency head considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data.

 

      (b)  Conformity and acceptance.

 

              (1)  Solicitations and contracts requiring the delivery of technical data shall specify the requirements the data must satisfy to be acceptable.  Contracting officers, or their authorized representatives, are responsible for determining whether technical data tendered for acceptance conform to the contractual requirements.

 

              (2)  The clause at 252.227-7030, Technical Data—Withholding of Payment, provides for withholding up to 10 percent of the contract price pending correction or replacement of the nonconforming technical data or negotiation of an equitable reduction in contract price.  The amount subject to withholding may be expressed as a fixed dollar amount or as a percentage of the contract price.  In either case, the amount shall be determined giving consideration to the relative value and importance of the data.  For example—

 

                    (i)  When the sole purpose of a contract is to produce the data, the relative value of that data may be considerably higher than the value of data produced under a contract where the production of the data is a secondary objective; or

 

                    (ii)  When the Government will maintain or repair items, repair and maintenance data may have a considerably higher relative value than data that merely describe the item or provide performance characteristics.

 

              (3)  Do not accept technical data that do not conform to the contractual requirements in all respects.  Except for nonconforming restrictive markings (see paragraph (b)(4) of this subsection), correction or replacement of nonconforming data, or an equitable reduction in contract price when correction or replacement of the nonconforming data is not practicable or is not in the Government's interests, shall be accomplished in accordance with—

 

                    (i)  The provisions of a contract clause providing for inspection and acceptance of deliverables and remedies for nonconforming deliverables; or

 

                    (ii)  The procedures at FAR 46.407(c) through (g), if the contract does not contain an inspection clause providing remedies for nonconforming deliverables.

 

              (4)  Follow the procedures at 227.7103-12(a)(2) if nonconforming markings are the sole reason technical data fail to conform to contractual requirements.  The clause at 252.227-7030 may be used to withhold an amount from payment, consistent with the terms of the clause, pending correction of the nonconforming markings.

 

      (c)  Warranty.

 

              (1)  The intended use of the technical data and the cost, if any, to obtain the warranty should be considered before deciding to obtain a data warranty (see FAR 46.703).  The fact that a particular item, component, or process is or is not warranted is not a consideration in determining whether or not to obtain a warranty for the technical data that pertain to the item, component, or process.  For example, a data warranty should be considered if the Government intends to repair or maintain an item and defective repair or maintenance data would impair the Government's effective use of the item or result in increased costs to the Government.

 

              (2)  As prescribed in 246.710, use the clause at 252.246-7001, Warranty of Data, and its alternates, or a substantially similar clause when the Government needs a specific warranty of technical data.

 

227.7103-15  Subcontractor rights in technical data.

 

      (a)  10 U.S.C. 2320 provides subcontractors at all tiers the same protection for their rights in data as is provided to prime contractors.  The clauses at 252.227-7013, Rights in Technical Data—Noncommercial Items, and 252.227-7037, Validation of Restrictive Markings on Technical Data, implement the statutory requirements.

 

      (b)  10 U.S.C. 2321 permits a subcontractor to transact directly with the Government matters relating to the validation of its asserted restrictions on the Government's rights to use or disclose technical data.  The clause at 252.227-7037 obtains a contractor's agreement that the direct transaction of validation or challenge matters with subcontractors at any tier does not establish or imply privity of contract.  When a subcontractor or supplier exercises its right to transact validation matters directly with the Government, contracting officers shall deal directly with such persons, as provided at 227.7103-13(c)(3).

 

      (c)  Require prime contractors whose contracts include the following clauses to include those clauses, without modification except for appropriate identification of the parties, in contracts with subcontractors or suppliers, at all tiers, who will be furnishing technical data for non-commercial items in response to a Government requirement:

 

              (1)  252.227-7013, Rights in Technical Data—Noncommercial Items;

 

              (2)  252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

 

              (3)  252.227-7028, Technical Data or Computer Software Previously Delivered to the Government; and

 

              (4)  252.227-7037, Validation of Restrictive Markings on Technical Data.

 

      (d)  Do not require contractors to have their subcontractors or suppliers at any tier relinquish rights in technical data to the contractor, a higher tier subcontractor, or to the Government, as a condition for award of any contract, subcontract, purchase order, or similar instrument except for the rights obtained by the Government under the Rights in Technical Data—Noncommercial Items clause contained in the contractor's contract with the Government.

 

227.7103-16  Providing technical data to foreign governments, foreign contractors, or international organizations.

 

Technical data may be released or disclosed to foreign governments, foreign contractors, or international organizations only if release or disclosure is otherwise permitted both by Federal export controls and other national security laws or regulations.  Subject to such laws and regulations, the Department of Defense—

 

      (a)  May release or disclose technical data in which it has obtained unlimited rights to such foreign entities or authorize the use of such data by those entities; and

 

      (b)  Shall not release or disclose technical data for which restrictions on use, release, or disclosure have been asserted to foreign entities, or authorize the use of technical data by those entities, unless the intended recipient is subject to the same provisions as included in the use and non-disclosure agreement at 227.7103-7 and the requirements of the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, governing use, modification, reproduction, release, performance, display, or disclosure of such data have been satisfied.

 

227.7103-17  Overseas contracts with foreign sources.

 

      (a)  The clause at 252.227-7032, Rights in Technical Data and Computer Software (Foreign), may be used in contracts with foreign contractors to be performed overseas, except Canadian purchases (see paragraph (c) of this subsection), in lieu of the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, when the Government requires the unrestricted right to use, modify, reproduce, perform, display, release or disclose all technical data to be delivered under the contract.  Do not use the clause in contracts for existing or special works.

 

      (b)  When the Government does not require unlimited rights, the clause at 252.227-7032 may be modified to accommodate the needs of a specific overseas procurement situation.  The Government should obtain rights in the technical data that are not less than the rights the Government would have obtained under the data rights clause(s) prescribed in this part for a comparable procurement performed within the United States or its outlying areas.

 

      (c)  Contracts for Canadian purchases shall include the appropriate data rights clause prescribed in this part for a comparable procurement performed within the United States or its outlying areas.

 

227.7104  Contracts under the Small Business Innovation Research (SBIR) Program.

 

      (a)  Use the clause at 252.227-7018, Rights in Noncommercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program, when technical data or computer software will be generated during performance of contracts under the SBIR program.

 

      (b)  Under the clause at 252.227-7018, the Government obtains SBIR data rights in technical data and computer software generated under the contract and marked with the SBIR data rights legend. SBIR data rights provide the Government limited rights in such technical data and restricted rights in such computer software during the SBIR data protection period commencing with contract award and ending five years after completion of the project under which the data were generated. Upon expiration of the five-year restrictive license, the Government has unlimited rights in the SBIR technical data and computer software.

 

      (c)  During the SBIR data protection period, the Government may not release or disclose SBIR technical data or computer software to any person except as authorized for limited rights technical data or restricted rights computer software, respectively.

 

      (d)  Use the clause at 252.227-7018 with its Alternate I in research contracts when the contracting officer determines, in consultation with counsel, that public dissemination by the contractor would be—

 

              (1)  In the interest of the Government; and

 

              (2)  Facilitated by the Government relinquishing its right to publish the work for sale, or to have others publish the work for sale on behalf of the Government.

 

      (e)  Use the following provision and clauses in SBIR solicitations and contracts that include the clause at 252.227-7018:

 

              (1)  252.227-7016, Rights in Bid or Proposal Information;

 

              (2)  252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions;

 

              (3)  252.227-7019, Validation of Asserted Restrictions—Computer Software;

 

              (4)  252.227-7030, Technical Data—Withholding of Payment; and

 

              (5)  252.227-7037, Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause contains information that must be included in a challenge).

     

      (f)  Use the following clauses and provision in SBIR solicitations and contracts in accordance with the guidance at 227.7103-6(c) and (d):

 

              (1)  252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends; and

 

              (2)  252.227-7028, Technical Data or Computer Software Previously Delivered to the Government.

 

227.7105  Contracts for the acquisition of existing works.

 

227.7105-1  General.

 

      (a)  Existing works include motion pictures, television recordings, video recordings, and other audiovisual works in any medium; sound recordings in any medium; musical, dramatic, and literary works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; and works of a similar nature.  Usually, these or similar works were not first created, developed, generated, originated, prepared, or produced under a Government contract.  Therefore, the Government must obtain a license in the work if it intends to reproduce the work, distribute copies of the work, prepare derivative works, or perform or display the work publicly.  When the Government is not responsible for the content of an existing work, it should require the copyright owner to indemnify the Government for liabilities that may arise out of the content, performance, use, or disclosure of such data.

 

      (b)  Follow the procedures at 227.7106 for works which will be first created, developed, generated, originated, prepared, or produced under a Government contract and the Government needs to control distribution of the work or has a specific need to obtain indemnity for liabilities that may arise out of the creation, content, performance, use, or disclosure of the work or from libelous or other unlawful material contained in the work.  Follow the procedures at 227.7103 when the Government does not need to control distribution of such works or obtain such indemnities.

 

227.7105-2  Acquisition of existing works without modification.

 

      (a)  Use the clause at 252.227-7021, Rights in Data—Existing Works, in lieu of the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, in solicitations and contracts exclusively for existing works when—

 

              (1)  The existing works will be acquired without modification; and

 

              (2)  The Government requires the right to reproduce, prepare derivative works, or publicly perform or display the existing works; or

 

              (3)  The Government has a specific need to obtain indemnity for liabilities that may arise out of the content, performance, use, or disclosure of such data.

 

      (b)  The clause at 252.227-7021 provides the Government, and others acting on its behalf, a paid-up, non-exclusive, irrevocable, world-wide license to reproduce, prepare derivative works and publicly perform or display the works called for by a contract and to authorize others to do so for government purposes.

 

      (c)  A contract clause is not required to acquire existing works such as books, magazines and periodicals, in any storage or retrieval medium, when the Government will not reproduce the books, magazines or periodicals, or prepare derivative works.

 

227.7105-3  Acquisition of modified existing works.

Use the clause at 252.227-7020, Rights in Special Works, in solicitations and contracts for modified existing works in lieu of the clause at 252.227-7021, Rights in Data—Existing Works.

 

227.7106  Contracts for special works.

 

      (a)  Use the clause at 252.227-7020, Rights in Special Works, in solicitations and contracts where the Government has a specific need to control the distribution of works first produced, created, or generated in the performance of a contract and required to be delivered under that contract, including controlling distribution by obtaining an assignment of copyright, or a specific need to obtain indemnity for liabilities that may arise out of the creation, delivery, use, modification, reproduction, release, performance, display, or disclosure of such works.  Use the clause—

 

              (1)  In lieu of the clause at 252.227-7013, Rights in Technical Data—Noncommercial Items, when the Government must own or control copyright in all works first produced, created, or generated and required to be delivered under a contract; or

 

              (2)  In addition to the clause at 252.227-7013 when the Government must own or control copyright in a portion of a work first produced, created, or generated and required to be delivered under a contract.  The specific portion in which the Government must own or control copyright must be identified in a special contract requirement.

 

      (b)  Although the Government obtains an assignment of copyright and unlimited rights in a special work under the clause at 252.227-7020, the contractor retains use and disclosure rights in that work.  If the Government needs to restrict a contractor's rights to use or disclose a special work, it must also negotiate a special license which specifically restricts the contractor's use or disclosure rights.

 

      (c)  The clause at 252.227-7020 does not permit a contractor to incorporate into a special work any works copyrighted by others unless the contractor obtains the contracting officer's permission to do so and obtains for the Government a non-exclusive, paid up, world-wide license to make and distribute copies of that work, to prepare derivative works, to perform or display publicly any portion of the work, and to permit others to do so for government purposes.  Grant permission only when the Government's requirements cannot be satisfied unless the third party work is included in the deliverable work.

 

      (d)  Examples of works which may be procured under the Rights in Special Works clause include, but are not limited, to audiovisual works, computer data bases, computer software documentation, scripts, soundtracks, musical compositions, and adaptations; histories of departments, agencies, services or units thereof; surveys of Government establishments; instructional works or guidance to Government officers and employees on the discharge of their official duties; reports, books, studies, surveys or similar documents; collections of data containing information pertaining to individuals that, if disclosed, would violate the right of privacy or publicity of the individuals to whom the information relates; or investigative reports.

 

227.7107  Contracts for architect-engineer services.

This section sets forth policies and procedures, pertaining to data, copyrights, and restricted designs unique to the acquisition of construction and architect‑engineer services.

 

227.7107-1  Architectural designs and data clauses for architect-engineer or construction contracts.

 

      (a)  Except as provided in paragraph (b) of this subsection and in 227.7107-2, use the clause at 252.227-7022, Government Rights (Unlimited), in solicitations and contracts for architect-engineer services and for construction involving architect‑engineer services.

 

      (b)  When the purpose of a contract for architect-engineer services, or for construction involving architect-engineer services, is to obtain a unique architectural design of a building, a monument, or construction of similar nature, which for artistic, aesthetic or other special reasons the Government does not want duplicated, the Government may acquire exclusive control of the data pertaining to the design by including the clause at 252.227-7023, Drawings and Other Data to Become Property of Government, in solicitations and contracts.

 

      (c)  The Government shall obtain unlimited rights in shop drawings for construction.  In solicitations and contracts calling for delivery of shop drawings, include the clause at 252.227-7033, Rights in Shop Drawings.

 

227.7107-2  Contracts for construction supplies and research and development work.

Use the provisions and clauses required by 227.7103-6 and 227.7203-6 when the acquisition is limited to—

 

      (a)  Construction supplies or materials;

 

      (b)  Experimental, developmental, or research work, or test and evaluation studies of structures, equipment, processes, or materials for use in construction; or

 

      (c)  Both.

 

227.7107-3  Approval of restricted designs.

The clause at 252.227-7024, Notice and Approval of Restricted Designs, may be included in architect-engineer contracts to permit the Government to make informed decisions concerning noncompetitive aspects of the design.

 

227.7108  Contractor data repositories.

 

      (a)  Contractor data repositories may be established when permitted by agency procedures.  The contractual instrument establishing the data repository must require, as a minimum, the data repository management contractor to—

 

              (1)  Establish and maintain adequate procedures for protecting technical data delivered to or stored at the repository from unauthorized release or disclosure;

 

              (2)  Establish and maintain adequate procedures for controlling the release or disclosure of technical data from the repository to third parties consistent with the Government's rights in such data;

 

              (3)  When required by the contracting officer, deliver data to the Government on paper or in other specified media;

 

              (4)  Be responsible for maintaining the currency of data delivered directly by Government contractors or subcontractors to the repository;

 

              (5)  Obtain use and non-disclosure agreements (see 227.7103-7) from all persons to whom government purpose rights data is released or disclosed; and

 

              (6)  Indemnify the Government from any liability to data owners or licensors resulting from, or as a consequence of, a release or disclosure of technical data made by the data repository contractor or its officers, employees, agents, or representatives.

 

      (b)  If the contractor is or will be the data repository manager, the contractor's data management and distribution responsibilities must be identified in the contract or the contract must reference the agreement between the Government and the contractor that establishes those responsibilities.

 

      (c)  If the contractor is not and will not be the data repository manager, do not require a contractor or subcontractor to deliver technical data marked with limited rights legends to a data repository managed by another contractor unless the contractor or subcontractor who has asserted limited rights agrees to release the data to the repository or has authorized, in writing, the Government to do so.

 

      (d)  Repository procedures may provide for the acceptance, delivery, and subsequent distribution of technical data in storage media other than paper, including direct electronic exchange of data between two computers.  The procedures must provide for the identification of any portions of the data provided with restrictive legends, when appropriate.  The acceptance criteria must be consistent with the authorized delivery format.

 

 

 


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