SBIR Rights in Technical Data and Computer Software
The Clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7018—Rights in Noncommercial Technical Data and Computer Software--Small Business Innovation Research (SBIR) Program—will be included in all DoD SBIR Phase I, Phase II, and Phase III contracts. In accordance with subparagraph 8 (b)(4) of the Small Business Administration (SBA) SBIR Policy Directive, this inclusion is non-negotiable. Such data rights shall not be the subject of negotiation pertaining to the award of an SBIR Phase III award, or diminished or removed during award administration. An agency shall not, in any way, make issuance of an SBIR Phase III award conditional on data rights. This clause contains guidance, which includes, among other things, definitions, marking requirements, maintenance of records sufficient to justify the validity of any restrictive markings, and applicability to subcontractors. The clause is very complex. A Patent Attorney should be contacted to help resolve significant problems. For convenience in reading, and to help answer recurring questions about SBIR data rights, some information has been pulled from applicable DFARS Clauses and provided below:
- The Government shall have "SBIR data rights" in all technical data or computer software generated under an SBIR contract during the period commencing with the contract award and ending upon the date five years after completion of the project from which such data were generated. The Government may not release or disclose SBIR data to any person, other than its support services contractors, except— (a) As expressly permitted by the Contractor; (b) For evaluational purposes; or (c) A release, disclosure, or use that is necessary for emergency repair or overhaul of items operated by the Government. Even in those circumstances where SBIR data rights are released to someone outside the government (e.g. support services contractors, emergency/evaluational purposes, etc), the receiver of the data is subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data and must sign a use and non-disclosure agreement. Instructions for marking SBIR data rights are at subparagraph (f) (4) of the clause at DFARS 252.227-7018.
- The Government shall have "limited rights" in technical data that were not generated under the SBIR contract that pertain to items, components or processes developed exclusively at private expense, and are marked, in accordance with the marking instructions in subparagraph (f) (2) of the clause at DFARS 252 227-7018. "Limited rights" means the rights to use, modify, reproduce, release, perform, display or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or permit technical data to be used by another party, except that the Government may reproduce, release or disclose such data or permit the use of or reproduction of the data by persons outside the Government if reproduction, release, disclosure, or use is-- (i) Necessary for emergency repair and overhaul; or (ii) A release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the Government and is required for evaluational or informational purposes; (iii) Subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and (iv) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.
- The Government shall have restricted rights in noncommercial computer software required to be delivered or otherwise furnished to the Government under this contract that were developed exclusively at private expense and were not generated under this contract. Marking instructions for computer software delivered or otherwise furnished to the Government with restricted rights are at subparagraph (f) (3) of the clause at DFARS 252.227-7018.
- Removal of unjustified and nonconforming markings.
- Unjustified markings. The rights and obligations of the parties regarding the validation of restrictive markings on technical data or computer software furnished under the contract are contained in the Validation of Restrictive Markings on Technical Data and the Validation of Asserted Restrictions—Computer Software clauses of the contract (DFARS 252.227-7037 and DFARS 252.227-7019). Notwithstanding any provision of the contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the applicable procedures of those clauses, a restrictive marking is determined to be unjustified.
- Nonconforming markings. A nonconforming marking is a marking placed on technical data or computer software delivered or otherwise furnished to the Government under this contract that is not in the proper format. If the Contracting Officer informs the Contractor of a nonconforming marking and the Contractor fails to remove or correct such marking within sixty (60) days, the Government may ignore the marking or correct the marking at the Contractor's expense.
- Contractor procedures and records. Throughout performance of the SBIR contract, the Contractor, and its subcontractors or suppliers that will deliver technical data or computer software with other than unlimited rights, shall— (a) Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of the clause; and (2) Maintain records sufficient to justify the validity of any restrictive markings on technical data or computer software delivered under the contract. (Per subparagraph (g) of DFARS Clause 252.227-7018).
- Whenever any noncommercial technical data or computer software is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use the clause at DFARS 252.227-7018 in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration except to identify the parties. The Contractor shall use the Technical Data--Commercial Items clause (DFARS 252.227-7015) of this contract to obtain technical data pertaining to commercial items, components, or processes. No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data or computer software. (Per subparagraph (k) (2) of the clause at DFARS 252.227-7018).
- "Technical data" means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information. (Per subparagraph (a) (19) of clause at DFARS 252.227-7018).
- Commercial computer software, as defined at subparagraph (a)(1) of the clause at DFARS 252.227-7018, means software developed or regularly used for nongovernmental purposes which—
- Has been sold, leased, or licensed to the public;
- Has been offered for sale, lease, or license to the public;
- Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of the contract; or d. Satisfies the above and would require only minor modification to meet the requirements of the clause at DFARS 252.227-7018.
- "Noncommercial computer software" means software that does not qualify as commercial computer software, per subparagraph (a)(16) of the clause at DFARS 252.227-7018.
If you have any suggestions or comments regarding this Desk Reference, please send them via the SBIR/STTR Help Desk or phone 1-800-348-0787.
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