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SUBPART 227.72--RIGHTS IN COMPUTER SOFTWARE AND COMPUTER SOFTWARE DOCUMENTATION

(Revised February 28, 2014)

 

 



 227.7200 Scope of subpart.
 227.7201 Definitions.
 227.7202 Commercial computer software and commercial computer software documentation.
 227.7202-1 Policy.
 227.7202-2 Reserved.
 227.7202-3 Rights in commercial computer software or commercial computer software
                  documentation.

 227.7202-4 Contract clause.
 227.7203 Noncommercial computer software and noncommercial computer software
               documentation.

 227.7203-1 Policy.
 227.7203-2 Acquisition of noncommercial computer software and computer software
                   documentation.

 227.7203-3 Early identification of computer software or computer software documentation to be
                   furnished to the Government with restrictions on use, reproduction or disclosure.

 227.7203-4 License rights.
 227.7203-5 Government rights.
 227.7203-6 Contract clauses.
 227.7203-8 Deferred delivery and deferred ordering of computer software and computer software
                   documentation.

 227.7203-9 Copyright.
 227.7203-10 Contractor identification and marking of computer software or computer software
                    documentation to be furnished with restrictive markings.

 227.7203-11 Contractor procedures and records.
 227.7203-12 Government right to establish conformity of markings.
 227.7203-13 Government right to review, verify, challenge and validate asserted restrictions.
 227.7203-14 Conformity, acceptance, and warranty of computer software and computer software
                    documentation.

 227.7203-15 Subcontractor rights in computer software or computer software documentation.
 227.7203-16 Providing computer software or computer software documentation to foreign
                    governments, foreign contractors, or international organizations.

 227.7203-17 Overseas contracts with foreign sources.
 227.7204 Contracts under the Small Business Innovative Research Program.
 227.7205 Contracts for special works.
 227.7206 Contracts for architect-engineer services.
 227.7207 Contractor data repositories.


227.7200  Scope of subpart.

This subpart—

 

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

 

              (1)  10 U.S.C. 2302(4).

 

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

 

              (3)  10 U.S.C. 2320.

 

              (4)  10 U.S.C. 2321.

 

              (5)  10 U.S.C. 2325.

 

              (6)  Executive Order 12591 (subsection 1(b)(6)).

 

      (b)  Does not apply to—

 

              (1)  Computer software or computer software documentation acquired under GSA schedule contracts; or

 

              (2)  Releases of computer software or computer software documentation to litigation support contractors (see subpart 204.74).

 

227.7201  Definitions.

 

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

 

      (b)  Other terms used in this subpart are defined in the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.

 

227.7202  Commercial computer software and commercial computer software documentation.

 

227.7202-1  Policy.

 

      (a)  Commercial computer software or commercial computer software documentation shall be acquired under the licenses customarily provided to the public unless such licenses are inconsistent with Federal procurement law or do not otherwise satisfy user needs.

 

      (b)  Commercial computer software and commercial computer software documentation shall be obtained competitively, to the maximum extent practicable, using firm-fixed-price contracts or firm-fixed-priced orders under available pricing schedules.
      (c)  Offerors and contractors shall not be required to—

 

              (1)  Furnish technical information related to commercial computer software or commercial computer software documentation that is not customarily provided to the public except for information documenting the specific modifications made at Government expense to such software or documentation to meet the requirements of a Government solicitation; or

 

              (2)  Relinquish to, or otherwise provide, the Government rights to use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except for a transfer of rights mutually agreed upon.

 

227.7202-2  Reserved.

 

227.7202-3  Rights in commercial computer software or commercial computer software documentation.

 

      (a)  The Government shall have only the rights specified in the license under which the commercial computer software or commercial computer software documentation was obtained.

 

      (b)  If the Government has a need for rights not conveyed under the license customarily provided to the public, the Government must negotiate with the contractor to determine if there are acceptable terms for transferring such rights.  The specific rights granted to the Government shall be enumerated in the contract license agreement or an addendum thereto.

 

227.7202-4  Contract clause.

A specific contract clause governing the Government's rights in commercial computer software or commercial computer software documentation is not prescribed.  As required by 227.7202-3, the Government’s rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation shall be identified in a license agreement.

 

227.7203  Noncommercial computer software and noncommercial computer software documentation.

 

227.7203-1  Policy.

 

      (a)  DoD policy is to acquire only the computer software and computer software documentation, and the rights in such software or documentation, necessary to satisfy agency needs.

 

      (b)  Solicitations and contracts shall—

 

              (1)  Specify the computer software or computer software documentation to be delivered under a contract and the delivery schedules for the software or documentation;

 

              (2)  Establish or reference procedures for determining the acceptability of computer software or computer software documentation;
              (3)  Establish separate contract line items, to the extent practicable, for the computer software or computer software documentation to be delivered under a contract and require offerors and contractors to price separately each deliverable data item; and

 

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

 

      (c)  Offerors shall not be required, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish to the Government any rights in computer software developed exclusively at private expense except for the software identified at 227.7203-5(a)(3) through (6).

 

      (d)  Offerors and contractors shall not be prohibited or discouraged from furnishing or offering to furnish computer software developed exclusively at private expense solely because the Government's rights to use, modify, release, reproduce, perform, display, or disclose the software may be restricted.

 

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

 

227.7203-2  Acquisition of noncommercial computer software and computer software documentation.

 

      (a)  Contracting officers shall work closely with data managers and requirements personnel to assure that computer software and computer software documentation requirements included in solicitations are consistent with the policy expressed in 227.7203-1.

 

      (b)(1)  Data managers or other requirements personnel are responsible for identifying the Government's minimum needs.  In addition to desired software performance, compatibility, or other technical considerations, needs determinations should consider such factors as multiple site or shared use requirements, whether the Government's software maintenance philosophy will require the right to modify or have third parties modify the software, and any special computer software documentation requirements.

 

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

 

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

 

              (1)  Identify the types of computer software and the quantity of computer programs and computer software documentation to be delivered, any requirements for multiple users at one site or multiple site licenses, and the format and media in which the software or documentation will be delivered;

 

              (2)  Establish each type of computer software or computer software documentation to be delivered as a separate contract line item (this requirement may be satisfied by an exhibit to the contract);

 

              (3)  Identify the prices established for each separately priced deliverable item of computer software or computer software documentation under a fixed-price type contract;

 

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

 

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

 

227.7203-3  Early identification of computer software or computer software documentation to be furnished to the Government with restrictions on use, reproduction or disclosure.

 

      (a)  Use the provision at 252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions, in all solicitations that include the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.  The provision requires offerors to identify any computer software or computer software documentation for which restrictions, other than copyright, on use, modification, reproduction, release, performance, display, or disclosure are asserted and to attach the identification and assertion to the offer.

 

      (b)  Subsequent to contract award, the clause at 252.227-7014 permits a contractor, under certain conditions, to make additional assertions of restrictions.  The prescriptions for the use of that clause and its alternates are at 227.7203-6(a).

 

227.7203-4  License rights.

 

      (a)  Grant of license.  The Government obtains rights in computer software or computer software documentation, including a copyright license, under an irrevocable license granted or obtained by the contractor which developed the software or documentation or the licensor of the software or documentation if the development contractor is not the licensor.  The contractor or licensor retains all rights in the software or documentation not granted to the Government.  The scope of a computer software license is generally determined by the source of funds used to develop the software.  Contractors or licensors may, with some exceptions, restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software developed exclusively or partially at private expense (see 227.7203-5(b) and (c)).  They may not, without the Government's agreement (see 227.7203-5(d)), restrict the Government's rights in computer software developed exclusively with Government funds or in computer software documentation required to be delivered under a contract.

 

      (b)  Source of funds determination.  The determination of the source of funds used to develop computer software should be made at the lowest practicable segregable portion of the software or documentation (e.g., a software sub-routine that performs a specific function).  Contractors may assert restricted rights in a segregable portion of computer software which otherwise qualifies for restricted rights under the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.

 

227.7203-5  Government rights.

The standard license rights in computer software that a licensor grants to the Government are unlimited rights, government purpose rights, or restricted rights.  The standard license in computer software documentation conveys unlimited rights.  Those rights are defined in the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.  In unusual situations, the standard rights may not satisfy the Government's needs or the Government may be willing to accept lesser rights in return for other consideration.  In those cases, a special license may be negotiated.  However, the licensor is not obligated to provide the Government greater rights and the contracting officer is not required to accept lesser rights than the rights provided in the standard grant of license.  The situations under which a particular grant of license applies are enumerated in paragraphs (a) through (d) of this subsection.

 

      (a)  Unlimited rights.  The Government obtains an unlimited rights license in—

 

              (1)  Computer software developed exclusively with Government funds;

 

              (2)  Computer software documentation required to be delivered under a Government contract;

 

              (3)  Corrections or changes to computer software or computer software documentation furnished to the contractor by the Government;

 

              (4)  Computer software or computer software documentation that is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restrictions on further use, release or disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

 

              (5)  Computer software or computer software documentation obtained with unlimited rights under another Government contract or as a result of negotiations; or

 

              (6)  Computer software or computer software documentation furnished to the Government, under a Government contract or subcontract with—

 

                    (i)  Restricted rights in computer software, limited rights in technical data, or government purpose license rights and the restrictive conditions have expired; or

 

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

 

      (b)  Government purpose rights.

 

              (1)  Except as provided in paragraph (a) of this subsection, the Government obtains government purpose rights in computer software developed with mixed funding.

 

              (2)  The period during which government purpose rights are effective is negotiable.  The clause at 252.227-7014 provides a nominal five-year period.  Either party may request a different period.  Changes to the government purpose rights period may be made at any time prior to delivery of the software without consideration from either party.  Longer periods should be negotiated when a five-year period does not provide sufficient time to commercialize the software or, for software developed by subcontractors, when necessary to recognize the subcontractors' interests in the software.

 

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

 

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

 

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

 

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

 

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

 

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

 

      (c)  Restricted rights.

 

              (1)  The Government obtains restricted rights in noncommercial computer software, required to be delivered or otherwise provided to the Government under a contract, that was developed exclusively at private expense.

 

              (2)  Contractors are not required to provide the Government additional rights in computer software delivered or otherwise provided to the Government with restricted rights.  When the Government has a need for additional rights, the Government must negotiate with the contractor to determine if there are acceptable terms for transferring such rights.  List or describe all software in which the contractor has granted the Government additional rights in a license agreement made part of the contract (see paragraph (d) of this subsection).  The license shall enumerate the specific additional rights granted to the Government.

 

      (d)  Specifically negotiated license rights.  Negotiate specific licenses when the parties agree to modify the standard license rights granted to the Government or when the Government wants to obtain rights in computer software in which it does not have rights.  When negotiating to obtain, relinquish, or increase the Government's rights in computer software, consider the planned software maintenance philosophy, anticipated time or user sharing requirements, and other factors which may have relevance for a particular procurement.  If negotiating to relinquish rights in computer software documentation, consider the administrative burden associated with protecting documentation subject to restrictions from unauthorized release or disclosure.  The negotiated license rights must stipulate the rights granted the Government to use, modify, reproduce, release, perform, display, or disclose the software or documentation and the extent to which the Government may authorize others to do so.  Identify all negotiated rights in a license agreement made part of the contract.

 

      (e)  Rights in derivative computer software or computer software documentation.  The clause at 252.227-7014 protects the Government's rights in computer software, computer software documentation, or portions thereof that the contractor subsequently uses to prepare derivative software or subsequently embeds or includes in other software or documentation.  The Government retains the rights it obtained under the development contract in the unmodified portions of the derivative software or documentation.

 

227.7203-6  Contract clauses.

 

      (a)(1)  Use the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, in solicitations and contracts when the successful offeror(s) will be required to deliver computer software or computer software documentation.  Do not use the clause when the only deliverable items are technical data (other than computer software documentation), commercial computer software or commercial computer software documentation, commercial items (see 227.7102-3), special works (see 227.7205), or contracts under the Small Business Innovation Research Program (see 227.7104).  Except as provided in 227.7107-2, do not use the clause in architect-engineer and construction contracts.

 

              (2)  Use the clause at 252.227-7014 with its Alternate I in research contracts when the contracting officer determines, in consultation with counsel, that public dissemination by the contractor would be—

 

                    (i)  In the interest of the Government; and

 

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

 

      (b)  Use the clause at 252.227-7016, Rights in Bid or Proposal Information, in solicitations and contracts that include the clause at 252.227-7014.

 

      (c)  Use the clause at 252.227-7019, Validation of Asserted Restrictions--Computer Software, in solicitations and contracts that include the clause at 252.227-7014.  The clause provides procedures for the validation of asserted restrictions on the Government's rights to use, release, or disclose computer software.

 

      (d)  Use the 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, computer software or computer software documentation marked with another contractor's restrictive legend(s).

 

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

 

      (f)  Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, in solicitations and contracts that include the clause at 252.227-7014 when the contractor will be required to deliver noncommercial computer software documentation (technical data).  The clause implements statutory requirements under 10 U.S.C. 2321.  Paragraph (e) of the clause contains information that must be included in a formal challenge.

 

227.7203-8  Deferred delivery and deferred ordering of computer software and computer software documentation.

 

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

 

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

 

227.7203-9  Copyright.

 

      (a)  Copyright license.

 

              (1)  The clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, requires a contractor to grant, or obtain for the Government license rights which permit the Government to reproduce the software or documentation, distribute copies, perform or display the software or documentation and, through the right to modify data, prepare derivative works.  The extent to which the Government, and others acting on its behalf, may exercise these rights varies for each of the standard data rights licenses obtained under the clause.  When non-standard license rights in computer software or computer software documentation will be negotiated, negotiate the extent of the copyright license concurrent with negotiations for the data rights license.  Do not negotiate copyright licenses for computer software that provide less rights than the standard restricted rights in computer software license.  For computer software documentation, do not negotiate a copyright license that provides less rights than the standard limited rights in technical data license.

 

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

 

      (b)  Copyright considerations--special works.  See 227.7205 for copyright considerations when acquiring special works.

 

227.7203-10  Contractor identification and marking of computer software or computer software documentation to be furnished with restrictive markings.

 

      (a)  Identification requirements.

 

              (1)  The solicitation provision at 252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions, requires offerors to identify, prior to contract award, any computer software or computer software documentation that an offeror asserts should be provided to the Government with restrictions on use, modification, reproduction, release, or disclosure.  This requirement does not apply to restrictions based solely on copyright.  The notification and identification must be submitted as an attachment to the offer.  If an offeror fails to submit the attachment or fails to complete the attachment in accordance with the requirements of the solicitation provision, such failure shall constitute a minor informality.  Provide offerors an opportunity to remedy a minor informality in accordance with the procedures at FAR 14.405 or 15.306(a).  An offeror's failure to correct an informality within the time prescribed by the contracting officer shall render the offer ineligible for award.

 

              (2)  The procedures for correcting minor informalities shall not be used to obtain information regarding asserted restrictions or an offeror's suggested asserted rights category.  Questions regarding the justification for an asserted restriction or asserted rights category must be pursued in accordance with the procedures at 227.7203-13.

 

              (3)  The restrictions asserted by a successful offeror shall be attached to its contract unless, in accordance with the procedures at 227.7203-13, the parties have agreed that an asserted restriction is not justified.  The contract attachment shall provide the same information regarding identification of the computer software or computer software documentation, the asserted rights category, the basis for the assertion, and the name of the person asserting the restrictions as required by paragraph (d) of the solicitation provision at 252.227-7017.  Subsequent to contract award, the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, permits a contractor to make additional assertions under certain conditions.  The additional assertions must be made in accordance with the procedures and in the format prescribed by that clause.

 

              (4)  Neither the pre- or post-award assertions made by the contractor nor the fact that certain assertions are identified in the attachment to the contract, determine the respective rights of the parties.  As provided at 227.7203-13, the Government has the right to review, verify, challenge and validate restrictive markings.

 

              (5)  Information provided by offerors in response to the solicitation provision at 252.227-7017 may be used in the source selection process to evaluate the impact on evaluation factors that may be created by restrictions on the Government's ability to use or disclose computer software or computer software documentation.

 

      (b)  Contractor marking requirements.  The clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation—

 

              (1)  Requires a contractor who desires to restrict the Government's rights in computer software or computer software documentation to place restrictive markings on the software or documentation, provides instructions for the placement of the restrictive markings, and authorizes the use of certain restrictive markings.  When it is anticipated that the software will or may be used in combat or situations which simulate combat conditions, do not permit contractors to insert instructions into computer programs that interfere with or delay operation of the software to display a restrictive rights legend or other license notice; and

 

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

 

      (c)  Unmarked computer software or computer software documentation.

 

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

 

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

 

                    (i)  Identify the software or documentation that should have been marked;

 

                    (ii)  Demonstrate that the omission of the marking was inadvertent, the proposed marking is justified and conforms with the requirements for the marking of computer software or computer software documentation contained in the clause at 252.227-7014; and

 

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

 

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

 

227.7203-11  Contractor procedures and records.

 

      (a)  The clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, requires a contractor, and its subcontractors or suppliers that will deliver computer software or computer software documentation with other than unlimited rights, to establish and follow written procedures to assure that restrictive markings are used only when authorized and to maintain records to justify the validity of restrictive markings.

 

      (b)  The clause at 252.227-7019, Validation of Asserted Restrictions--Computer Software, requires contractors and their subcontractors or suppliers at any tier to maintain records sufficient to justify the validity of markings that assert restrictions on the use, modification, reproduction, release, performance, display, or disclosure of computer software.

 

227.7203-12  Government right to establish conformity of markings.

 

      (a)  Nonconforming markings.

 

              (1)  Authorized markings are identified in the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.  All other markings are nonconforming markings.  An authorized marking that is not in the form, or differs in substance, from the marking requirements in the clause at 252.227-7014 is also a nonconforming marking.

 

              (2)  The correction of nonconforming markings on computer software is not subject to 252.227-7019, Validation of Asserted Restrictions--Computer Software, and the correction of nonconforming markings on computer software documentation (technical data) is not subject to 252.227-7037, Validation of Restrictive Markings on Technical Data.  To the extent practicable, the contracting officer should return computer software or computer software documentation bearing nonconforming markings to the person who has placed the nonconforming markings on the software or documentation to provide that person an opportunity to correct or strike the nonconforming markings at that person's expense.  If that person fails to correct the nonconformity and return the corrected software or documentation within 60 days following the person's receipt of the software or documentation, the contracting officer may correct or strike the nonconformity at that person's expense.  When it is impracticable to return computer software or computer software documentation for correction, contracting officers may unilaterally correct any nonconforming markings at Government expense.  Prior to correction, the software or documentation may be used in accordance with the proper restrictive marking.

 

      (b)  Unjustified markings.

 

              (1)  An unjustified marking is an authorized marking that does not depict accurately restrictions applicable to the Government's use, modification, reproduction, release, or disclosure of the marked computer software or computer software documentation.  For example, a restricted rights legend placed on computer software developed under a Government contract either exclusively at Government expense or with mixed funding (situations under which the Government obtains unlimited or government purpose rights) is an unjustified marking.

 

              (2)  Contracting officers have the right to review and challenge the validity of unjustified markings.  However, at any time during performance of a contract and notwithstanding existence of a challenge, the contracting officer and the person who has asserted a restrictive marking may agree that the restrictive marking is not justified.  Upon such agreement, the contracting officer may, at his or her election, either—

 

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

 

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

 

227.7203-13  Government right to review, verify, challenge and validate asserted restrictions.

 

      (a)  General.  An offeror's or contractor's assertion(s) of restrictions on the Government's rights to use, modify, reproduce, release, or disclose computer software or computer software documentation do not, by themselves, determine the extent of the Government's rights in such software or documentation.  The Government may require an offeror or contractor to submit sufficient information to permit an evaluation of a particular asserted restriction and may challenge asserted restrictions when there are reasonable grounds to believe that an assertion is not valid.

 

      (b)  Requests for information.  Contracting officers should have a reason to suspect that an asserted restriction might not be correct prior to requesting information.  When requesting information, provide the offeror or contractor the reason(s) for suspecting that an asserted restriction might not be correct.  A need for additional license rights is not, by itself, a sufficient basis for requesting information concerning an asserted restriction.  Follow the procedures at 227.7203-5(d) when additional license rights are needed but there is no basis to suspect that an asserted restriction might not be valid.

 

      (c)  Transacting matters directly with subcontractors.  The clause at 252.227-7019, Validation of Asserted Restrictions--Computer Software, obtains the contractor's agreement that the Government may transact matters under the clause directly with a subcontractor or supplier, at any tier, without creating or implying privity of contract.  Contracting officers should permit a subcontractor or supplier to transact challenge and validation matters directly with the Government when—

 

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

 

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

 

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

 

      (d)  Major systems.  When the contracting officer challenges an asserted restriction regarding noncommercial computer software for a major system or a subsystem or component thereof on the basis that the computer software 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 computer software was developed exclusively at private expense.

 

      (e)  Challenging asserted restrictions.

 

              (1)  Pre-award considerations.  The challenge procedures in the clause at 252.227-7019 could significantly delay competitive procurements.  Therefore, avoid challenging asserted restrictions prior to a competitive contract award unless resolution of the assertion is essential for successful completion of the procurement.

 

              (2)  Computer software documentation.  Computer software documentation is technical data.  Challenges to asserted restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software documentation must be made in accordance with the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, and the guidance at 227.7103-13.  The procedures in the clause at 252.227-7037 implement requirements contained in 10 U.S.C. 2321.  Resolution of questions regarding the validity of asserted restrictions using the process described at 227.7103-12(b)(2) is strongly encouraged.

 

              (3)  Computer software.

 

                    (i)  Asserted restrictions should be reviewed before acceptance of the computer software deliverable under a contract.  The Government's right to challenge an assertion expires three years after final payment under the contract or three years after delivery of the software, whichever is later.  Those limitations on the Government's challenge rights do not apply to software that is publicly available, has been furnished to the Government without restrictions, or has been otherwise made available without restrictions.

 

                    (ii)  Contracting officers must have reasonable grounds to challenge the current validity of an asserted restriction.  Before challenging an asserted restriction, carefully consider all available information pertaining to the asserted restrictions.  Resolution of questions regarding the validity of asserted restrictions using the process described at 227.7203-12(b)(2) is strongly encouraged.  After consideration of the situations described in paragraph (c) of this subsection, contracting officers may request the person asserting a restriction to furnish a written explanation of the facts and supporting documentation for the assertion in sufficient detail to enable the contracting officer to determine the validity of the assertion.  Additional supporting documentation may be requested when the explanation provided by that person does not, in the contracting officer's opinion, establish the validity of the assertion.

 

                    (iii)  Assertions may be challenged whether or not supporting documentation was requested.  Challenges must be in writing and issued to the person asserting the restriction.

 

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

 

      (f)  Validating or denying asserted restrictions.

 

              (1)  Contracting officers must promptly issue a final decision denying or sustaining the validity of each challenged assertion unless the parties have agreed on the disposition of the assertion.  When a final decision denying the validity of an asserted restriction is made following a timely response to a challenge, the Government is obligated to continue to respect the asserted restrictions through final disposition of any appeal unless the agency head notifies the person asserting the restriction that urgent or compelling circumstances do not permit the Government to continue to respect the asserted restriction.  See 252.227-7019(g) for restrictions applicable following a determination of urgent and compelling circumstances.

 

              (2)  Only a contracting officer's final decision, or actions of an agency Board of Contract Appeals or a court of competent jurisdiction, that sustain the validity of an asserted restriction constitute validation of the restriction.

 

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

 

227.7203-14  Conformity, acceptance, and warranty of computer software and computer software documentation.

 

      (a)  Computer software documentation.  Computer software documentation is technical data.  See 227.7103-14 for appropriate guidance and statutory requirements.

 

      (b)  Computer software.

 

              (1)  Conformity and acceptance.  Solicitations and contracts requiring the delivery of computer software shall specify the requirements the software must satisfy to be acceptable.  Contracting officers, or their authorized representatives, are responsible for determining whether computer software tendered for acceptance conforms to the contractual requirements.  Except for nonconforming restrictive markings (follow the procedures at 227.7203-12(a) if nonconforming markings are the sole reason computer software tendered for acceptance fails to conform to contractual requirements), do not accept software that does not conform in all respects to applicable contractual requirements.  Correction or replacement of nonconforming software, or an equitable reduction in contract price when correction or replacement of the nonconforming data is not practicable or is not in the Government's interests, shall be accomplished in accordance with—

 

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

 

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

 

              (2)  Warranties.

 

                    (i)  Weapon systems.  Computer software that is a component of a weapon system or major subsystem should be warranted as part of the weapon system warranty.  Follow the procedures at 246.7.

 

                    (ii)  Non-weapon systems.  Approval of the chief of the contracting office must be obtained to use a computer software warranty other than a weapon system warranty.  Consider the factors at FAR 46.703 in deciding whether to obtain a computer software warranty.  When approval for a warranty has been obtained, the clause at 252.246-7001, Warranty of Data, and its alternates, may be appropriately modified for use with computer software or a procurement specific clause may be developed.

 

227.7203-15  Subcontractor rights in computer software or computer software documentation.

 

      (a)  Subcontractors and suppliers at all tiers should be provided the same protection for their rights in computer software or computer software documentation as are provided to prime contractors.

 

      (b)  The clauses at 252.227-7019, Validation of Asserted Restrictions--Computer Software, and 252.227-7037, Validation of Restrictive Markings on Technical Data, obtain a contractor's agreement that the Government's transaction of validation or challenge matters directly with subcontractors at any tier does not establish or imply privity of contract.  When a subcontractor or supplier exercises its right to transact validation matters directly with the Government, contracting officers shall deal directly with such persons, as provided at 227.7203-13(c) for computer software and 227.7103-13(c)(3) for computer software documentation (technical data).

 

      (c)  Require prime contractors whose contracts include the following clauses to include those clauses, without modification except for appropriate identification of the parties, in contracts with subcontractors or suppliers who will be furnishing computer software in response to a Government requirement (see 227.7103-15(c) for clauses required when subcontractors or suppliers will be furnishing computer software documentation (technical data)):

 

              (1)  252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation;

 

              (2)  252.227-7019, Validation of Asserted Restrictions–Computer Software;

 

              (3)  252.227-7025, Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends; and

 

              (4)  252.227-7028, Technical Data or Computer Software Previously Delivered to the Government.

 

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

 

227.7203-16  Providing computer software or computer software documentation to foreign governments, foreign contractors, or international organizations.

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

 

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

 

      (b)  Shall not release or disclose computer software or computer software documentation for which restrictions on use, release, or disclosure have been asserted to such foreign entities or authorize the use of such data by those entities, unless the intended recipient is subject to the same provisions as included in the use and non-disclosure agreement at 227.7103-7 and the requirements of the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, governing use, modification, reproduction, release, performance, display, or disclosure of such data have been satisfied.

 

227.7203-17  Overseas contracts with foreign sources.

 

      (a)  The clause at 252.227-7032, Rights in Technical Data and Computer Software (Foreign), may be used in contracts with foreign contractors to be performed overseas, except Canadian purchases (see paragraph (c) of this subsection) in lieu of the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, when the Government requires the unrestricted right to use, modify, reproduce, release, perform, display, or disclose all computer software or computer software documentation to be delivered under the contract.  Do not use the clause in contracts for special works.

 

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

 

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

 

227.7204  Contracts under the Small Business Innovation Research Program.

When contracting under the Small Business Innovation Research Program, follow the procedures at 227.7104.

 

227.7205  Contracts for special works.

 

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

 

              (1)  In lieu of the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, when the Government must own or control copyright in all computer software or computer software documentation first produced, created, or generated and required to be delivered under a contract; or

 

              (2)  In addition to the clause at 252.227-7014 when the Government must own or control copyright in some of the computer software or computer software documentation first produced, created, or generated and required to be delivered under a contract.  The specific software or documentation in which the Government must own or control copyright must be identified in a special contract requirement.

 

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

 

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

 

      (d)  Examples of other works which may be procured under the clause at

252.227-7020 include, but are not limited to, audiovisual works, scripts, soundtracks, musical compositions, and adaptations; histories of departments, agencies, services or units thereof; surveys of Government establishments; instructional works or guidance to Government officers and employees on the discharge of their official duties; reports, books, studies, surveys or similar documents; collections of data containing information pertaining to individuals that, if disclosed, would violate the right of privacy or publicity of the individuals to whom the information relates; or investigative reports.

 

227.7206  Contracts for architect-engineer services.

Follow 227.7107 when contracting for architect-engineer services.

 

227.7207  Contractor data repositories.

Follow 227.7108 when it is in the Government's interests to have a data repository include computer software or to have a separate computer software repository.  Contractual instruments establishing the repository requirements must appropriately reflect the repository manager's software responsibilities.

 

 

 


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