[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14321]


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[Federal Register: June 20, 1994]


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DEPARTMENT OF DEFENSE

48 CFR Parts 211, 227, and 252

 

Defense Federal Acquisition Regulation Supplement; Rights in 
Technical Data

AGENCY: Department of Defense (DoD).

ACTION: Proposed Rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement to prescribe the technical data regulations 
required by 10 U.S.C. 2320, Rights in Technical Data. The proposed 
regulations are intended to establish a balance between the interests 
of data developers and data users, encourage creativity, encourage 
firms to offer DoD new technology, and facilitate dual use development.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before August 19, 1994 to be considered 
during formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: Deputy 
Director Major Policy Initiatives, 1200 S. Fern St., Arlington, VA 
22202-2808, ATTN: Ms. Angelena Moy, OUSD (A&T)/DDP. Please cite DAR 
Case 91-312 on all correspondence related to this proposed rule.

FOR FURTHER INFORMATION CONTACT:
Ms. Angelena Moy, (703) 604-5385/5386.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule publishes for public comment regulations that 
adopt the recommendations of the Government-Industry Technical Data 
Advisory Committee established pursuant to the National Defense 
Authorization Act for Fiscal Years 1992 and 1993 (Pub. L. 102-190).
    The Act required the Secretary of Defense to form a Government-
Industry advisory committee to develop recommended regulations to 
supersede the interim regulations which presently implement 
requirements of 10 U.S.C. 2320, Rights in Technical Data. Committee 
meetings began in July 1992 and ended in December 1993. The committee 
concluded that the existing regulations are a disincentive to companies 
that create new technology with their own funding to provide that 
technology to the Defense Department. The committee believes this 
proposed regulation establishes a balance between data developers' and 
data users' interests and will encourage creativity, encourage firms to 
offer DoD new technology, and facilitate dual use development. The 
protection of privately developed data is crucial, particularly for 
developers that have limited product lines.
    This proposed rule revises and retitles Defense FAR Supplement 
Subpart 227.4, Rights in Technical Data; adds a new Subpart 227.5, 
Rights in Computer Software and Computer Software Documentation; amends 
Subpart 211.70, Acquisition and Distribution of Commercial Products; 
and, amends Part 252, Solicitation Provisions and Contract Clauses. 
Significant differences from the exiting regulations are summarized 
below.

a. License Rights

    This proposed rule identifies any government rights in technical 
data or computer software as specific, nonexclusive, license rights the 
contractor has granted the Government. The standard license rights are 
defined in the proposed clauses at 252.227-7013, ``Rights in Technical 
Data--Noncommercial Items'' and 252.227-7014, ``Rights in Noncommercial 
Computer Software and Computer Software Documentation.'' The rule 
provides that the contractor retains all rights not granted to the 
Government.

b. Non-Standard License Rights

    This proposed rule permits the negotiation of nonstandard license 
rights whenever the parties agree that the standard rights are not 
appropriate for a particular procurement.

c. Elimination of ``Required for Performance'' Criterion

    Existing DFARS regulations permit DoD to obtain unlimited rights in 
technical data if development was ``required for the performance of a 
government contract or subcontract.'' This proposed rule eliminates 
that criterion.

d. Clarification of Indirect Cost Treatment

    10 U.S.C. 2320 requires implementing regulations to define the 
treatment of indirect costs. The existing regulations require indirect 
costs of development to be considered government funded if development 
was required for the performance of a government contract. This 
proposed rule provides for all development accomplished with costs 
charged to indirect cost pools to be considered development 
accomplished at private expense.

e. Standard Government Purpose Rights

    The existing rule gives the government unlimited rights in 
technical data that pertain to items, components, or processes 
developed with a mix of private and government funds unless the 
developer requests the exclusive right to commercialize and a license 
can be negotiated. It does not permit negotiations when the government 
anticipates the data will be needed for reprocurement. This proposed 
rule replaces those criteria with a standard license, applicable in all 
mixed funding situations, which is intended to recognize mixed funded 
development. The license allows the government to use the data for 
governmental purposes, including competition, but does not allow 
commercial use. Government purpose rights will be effective for five 
years following award of the development contract or subcontract or 
such other period as the parties negotiate. The Government has 
unlimited rights in the data upon expiration of the government purpose 
rights period.

f. Segregation of Development Costs

    This proposed rule allows private expense determinations to be made 
at the lowest practicable level when determining rights in technical 
data or computer software.

g. Commercial Items (Other Than Commercial Computer Software and 
Commercial Computer Software Documentation)

    The clause at 252.211-7015, ``Technical Data and Computer 
Software--Commercial Items is removed. This proposed regulation adds a 
clause at 252.227-7015, ``Technical Data--Commercial Items'' that 
generally requires DoD to acquire only the technical data pertaining to 
commercial items or processes that are customarily provided to the 
public.

h. Separate Treatment for Computer Software

    A new Subpart 227.5, ``Rights in Computer Software and Computer 
Software Documentation'' and a new clause, 252.227-7014, ``Rights in 
Noncommercial Computer Software and Computer Software Documentation'' 
are proposed to separate Computer software from technical data. This 
separation increases the volume of the regulations but provides greater 
flexibility to deal with new statutory requirements or technological 
advancements that affect either technical data or computer software 
only or affect both to varying degrees. The term computer software 
documentation is defined in these regulations to mean owner's manuals, 
user's manuals, installation instructions, and similar items that 
explain the capabilities of the software or provide instructions for 
use. Therefore, although computer software documentation is a form of 
technical data (10 U.S.C. 2302(4), most applicable requirements are 
contained in the software Subpart and clause.

i. Software Related Definitions

    (1) The definitions of ``computer program'', ``computer software'', 
and ``computer software documentation'' are revised. Definitions of 
``developed'' are added for computer programs, software, and 
documentation.
    (2) The definition of ``restricted rights'' is revised. The 
existing rule's right to use software with the computer for which it 
was acquired is replaced by the right to use a program with one 
computer at one time. The Government's rights to transfer programs, 
modify restricted rights software, and permit others to use or modify 
software for the Government in specific situations, are clarified.

j. Commercial Computer Software and Commercial Computer Software 
Documentation

    This proposed rule provides that the Government shall have only the 
rights specified in the license under which the commercial computer 
software or documentation is obtained. A contract clause is not 
prescribed.

k. Use and Nondisclosure Agreements

    The standard nondisclosure agreement contained in the existing rule 
is amended. The proposed agreement covers third party use and 
disclosure of all data or software in which the Government's rights are 
restricted. The proposed regulations permit the use of class 
nondisclosure agreements.

l. Contracts Under the Small Business Innovative Research Program

    Alternate 1 to the clause at 252.227-7013 of the existing rule is 
replaced by a new clause, 252.227-7018, ``Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovative 
Research Programs.'' A single clause, rather than separate technical 
data and computer software clauses each with alternate provisions, 
reduces contractual burdens on these small businesses. Data generated 
under these contracts is required to be protected for five years 
instead of the four year statutory requirement.

B. Regulatory Flexibility Act

    This proposed rule may have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This proposed rule 
modifies the circumstances under which the Government may release or 
disclose technical data or computer software to interested persons or 
permit those persons to use the technical data or computer software. An 
initial Regulatory Flexibility Analysis (IRFA), that updates the IRFA 
submitted for DAR Case 87-303 on March 29, 1988, has been prepared and 
will be provided to the Chief Counsel for Advocacy for the Small 
Business Administration. Comments are invited. Comments from small 
entities will be considered in accordance with 5 U.S.C. 610. Such 
comments must be submitted separately and cite DAR Case 91-312 in 
correspondence.

C. Paperwork Reduction Act

    This proposed rule implements information collection requirements 
under 10 U.S.C. 2321 and requires the submission of other information 
to comply with requirements in 10 U.S.C. 2320 that are within the 
meaning of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. A 
request for clearance, superseding the analysis performed for DAR Case 
87-303, will be submitted to OMB.

List of Subjects in 48 CFR Parts 211, 227, and 252

    Government procurement.
Claudia L. Naugle,
Deputy Director, Defense Acquisition Regulations Council.

    Therefore, it is proposed to amend 48 CFR parts 211, 227, and 252 
as follows:
    1. The authority citation for 48 CFR parts 211, 227, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Part 1.

PART 211--ACQUISITION AND DISTRIBUTION OF COMMERCIAL PRODUCTS


211.70  [Amended]

    2. Subpart 211.70 is amended by revising the words ``product'' to 
read ``item'' and ``products'' to read ``items'' wherever they appear, 
except in section 211.7004-1(m) where the phrase ``standard commercial 
items'' remains unchanged.
    3. Section 211.7001 is amended by removing paragraphs (c) and (d), 
by redesignating paragraphs (e) and (f) as (c) and (d), respectively, 
and by revising paragraph (a) to read as follows:


211.7001  Definitions.

* * * * *
    (a) The terms commercial products, existing or prior source and 
minor modification are defined in the provision at 252.211-7012, 
Certifications--Commercial Products--Competitive Acquisitions.
* * * * *


Sec. 211.7004-1  [Amended]

    4. Section 211.7004-1(h) is removed and reserved.
    5. Section 211.7005 is amended by removing paragraph (a)(29) and by 
redesignating paragraphs (a)(30) through (a)(33) as paragraphs (a)(29) 
through (32) respectively.
    6. Section 211.7005 is amended by removing paragraphs (b)(34) and 
(35); by redesignating paragraphs (b)(36) through (51) as paragraphs 
(b)(34) through (49), respectively; by redesignating paragraphs (b)(52) 
through (54) as paragraphs (b)(51) through (53), respectively; and by 
adding a new paragraph (b)(50) to read as follows:


Sec. 211.7005  contract clauses.

* * * * *
    (b) * * *
    (50) 252.227-7015 Technical Data--Commercial Items

Subpart 227.4--Rights in Technical Data

    7. Subpart 227.4 is revised to read as follows:
Sec.
227.4  Rights in technical data.
227.400  Scope of subpart.
227.401  Definitions.
227.402  Commercial Items or processes.
227.402-1  Policy.
227.402-2  Rights in technical data.
227.402-3  Contract clause.
227.403  Noncommercial items or processes.
227.403-1  Policy.
227.403-2  Acquisition of technical data.
227.403-3  Early identification of technical data to be furnished to 
the Government with restrictions on use, reproduction, or 
disclosure.
227.403-4  License rights.
227.403-5  Government rights.
227.403-6  Contract clauses.
227.403-7  Use and non-disclosure agreement.
227.403-8  Deferred delivery and deferred ordering of technical 
data.
227.403-9  Copyright.
227.403-10  Contractor identification and marking of technical data 
to be furnished with restrictive markings.
227.403-11  Contractor procedures and records.
227.403-12  Government right to establish conformity of markings.
227.403-13  Government right to review, verify, challenge, and 
validate asserted restrictions.
227.403-14  Conformity, acceptance, and warranty of technical data.
227.403-15  Subcontractor rights in technical data.
227.403-16  Providing technical data to foreign governments, foreign 
contractors, or international organizations.
227.403-17  Overseas contracts with foreign sources.
227.404  Contracts under the Small Business Innovative Research 
Program.
227.405  Contracts for the acquisition of existing works.
227.405-1  General.
227.405-2  Acquisition of existing works without modification.
227.405-3  Acquisition of modified existing works.
227.406  Contracts for special works.
227.407  Contracts for architect-engineer services.
227.407-1 Architectural designs and data clauses for architect-
engineer or construction contracts.
227.407-2  Contracts for construction supplies and research and 
development work.
227.407-3  Approval of restricted designs.
227.408  Contractor data repositories.


227.4  Rights in technical data.


227.400  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:

10 U.S.C. 2302(4)
10 U.S.C. 2305 (subsection (d)(4))
10 U.S.C. 2320
10 U.S.C. 2321
10 U.S.C. 2325
Executive Order 12591 (Subsection 1(b)(6)).

    (b) Does not apply to computer software or technical data that is 
computer software documentation (see 227.5).


227.401  Definitions.

    (a) As used in this subpart, unless otherwise specifically 
indicated, the terms offeror and contractor include an offeror's or 
contractor's subcontractors, suppliers, or potential subcontractors or 
suppliers at any tier.
    (b) The terms Commercial items and minor modification, as that term 
is used with commercial items, are defined in the clause at 252.227-
7015, ``Rights in Technical Data--Commercial Items.''
    (c) Other terms used in this subpart are defined in the clause at 
252.227-7013, ``Rights in Technical Data--Noncommercial Items.''


227.402  Commercial items or processes.


227.402-1  Policy.

    (a) DoD shall acquire only the technical data customarily provided 
to the public with a commercial item or process, except technical 
data--
    (1) 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 requirements; or,
    (2) That describe the modifications made 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 to--
    (1) Except for the technical data described in 227.402-1(a), 
furnish technical information related to commercial items or processes 
that is not customarily provided to the public;
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release, or disclose technical data pertaining 
to commercial items or processes except for a transfer of rights 
mutually agreed upon.


227.402-2  Rights in technical data.

    (a) The clause at 252.227-7015, ``Rights in Technical Data--
Commercial Items'' provides the Government specific license rights in 
technical data pertaining to commercial items or processes. Generally, 
DoD may use, modify, duplicate, release, or disclose such data only 
within the Government. The data may not be used to manufacture 
additional quantities of the commercial items and, except for emergency 
repair or overhaul, may not be released or disclosed to, or used by, 
third parties without the contractor's express permission.
    (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 the contract license 
agreement or an addendum thereto.


227.402-3  Contract clause.

    Use the clause at 252.227-7015, ``Rights in Technical Data--
Commercial Items'', in all solicitations and contracts when the 
contractor will be required to deliver technical data pertaining to 
commercial items or processes.


227.403  Noncommercial items or processes.


227.403-1  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;
    (4) Require offerors to identify, to the extent practicable, 
technical data to be furnished with restrictions on the Government's 
rights and require contractor's 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 227.403-5(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, release, or disclose technical data pertaining to those items may 
be restricted.
    (e) As provided in 10 U.S.C. 2305, solicitations for major systems 
development contracts shall not require offerors to submit proposals 
that would permit the Government to acquire competitively items 
identical to items developed at private expense unless a determination 
is made at a level above the contracting officer that:
    (1) The offeror will not be able to satisfy program schedule or 
delivery requirements; or,
    (2) The offeror's proposal to meet mobilization requirements does 
not satisfy mobilization needs.


227.403-2  Acquisition of technical data.

    (a) Procedures for acquiring technical data are contained in DoD 
5010.12, DoD Data Management Program. 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 227.403-1.
    (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. Reprocurement needs may not be a 
sufficient reason to acquire detailed manufacturing or process data 
when replacement items or spare parts 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 assuring that, to the 
maximum extent 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) As required by 10 U.S.C. 2320, 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 separately priced 
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.


227.403-3  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, to clause at 252.227-7013, 
``Rights in Technical Data--Noncommercial Items'', 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 227.403-6(a).


227.403-4  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 227.403-5(a)(2) 
and (a) (4) through (9)), restrict the Government's rights to use, 
release, 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, 
release, 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 was 
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.''


227.403-5  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. 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 227.403-5 (a)(2) and (a)(4) through (9); 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 227.403-7; 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 227.403-5 (a)(2) and (a)(4) through 
(9); 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; or,
    (ii) To a foreign government, other than detailed manufacturing or 
process data, when use, release, or disclosure is in the interest of 
the United States and is required for 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 227.403-5(c)(2) (i) or (ii), the intended recipient must complete 
the use and non-disclosure agreement at 227.403-7 prior to release or 
disclosure of the limited rights data.
    (d) Specifically negotiated license rights. (1) Negotiate specific 
licenses when the parties agree to modify the standard license rights 
granted to the Government or when the Government wants to obtain rights 
in data in which it does not have rights. When negotiating to obtain, 
relinquish, or increase the Government's rights in technical data, 
consider the acquisition strategy for the item, component, or process, 
including logistics support and other factors which may have relevance 
for a particular procurement. The Government may accept lesser rights 
when it has unlimited or government purpose rights in data but may not 
accept less than limited rights in such data. The negotiated license 
rights must stipulate what rights the Government has to release or 
disclose the data to other persons or to authorize others to use the 
data. Identify all negotiated rights in a license agreement made part 
of the contract.
    (2) When the Government needs additional rights in data acquired 
with government purpose or limited rights, the contracting officer must 
negotiate with the contractor to determine whether there are acceptable 
terms for transferring such rights. Generally, such negotiations should 
be conducted only when there is a need to disclose the data outside the 
Government or if the additional rights are required for competitive 
reprocurement and the anticipated savings expected to be obtained 
through competition are estimated to exceed the acquisition cost of the 
additional rights. Prior to negotiating for additional rights in 
limited rights data, consider alternatives such as--
    (i) Using performance specifications and form, fit, and function 
data to acquire or develop functionally equivalent items, components, 
or processes;
    (ii) Obtaining a contractor's contractual commitment to qualify 
additional sources and maintain adequate competition among the sources;
    (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.


Sec. 227.403-6  Contract clauses.

    (a) Use the clause at 252.227-7013, ``Rights in Technical Data--
Noncommercial Items'' in solicitations and contracts when the 
successful offeror(s) will be required to deliver technical data to the 
Government. Do not use the clause when the only deliverable items are 
computer software or computer software documentation (see 227.5), 
commercial items (see 227.402-3), existing works (see 227.405), or 
special works (see 227.406); in Architect-Engineer and construction 
contracts (see 227.407); or, when contracting under the Small Business 
Innovative Research Program (see 227.404).
    (b) Use the clause 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.
    (c) Use the clause at 252.227-7016, ``Rights in Bid or Proposal 
Data'', in solicitations and contracts when the Government anticipates 
a need to use, subsequent to contract award, technical data included in 
a bid or proposal that are not required to be delivered under the 
contract.
    (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 contractors, for performance of its 
contract, technical data marked with another contractor's government 
restrictive legends.
    (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 
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.
    (f) Use the following clauses in solicitations and contracts that 
include the clause at 252.227-7013:
    (1) 252.227-7030, ``Technical Data--Withholding of Payment'';
    (2) 252.227-7036, ``Certification of Technical Data Conformity''; 
and,
    (3) 252.227-7037, ``Validation of Asserted Restrictions'' 
(paragraph (d) of the clause contains information that must be included 
in a challenge).


227.403-7  Use and non-disclosure agreement

    (a) Except as provided in 227.403-7(b), 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 
227.403-7(c) 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.(c) of the use and nondisclosure 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 lends 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, timeshare, 
or use of 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 restrict 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 227.403-7(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 very 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 the Agreement and ending upon 
________ (Insert Date) ________. The obligations imposed by this 
agreement shall survive the expiration or termination of this 
agreement.
________________________
Recipient's Business Name
By________________________
Authorized Representative________________________
Representative's Typed Name and Title Date:
----------------------------------------------------------------------
(End of Use and Non-disclosure Agreement)


227.403-8  Deferred delivery and deferred ordering of technical data.

    (a) Deferred delivery. Use the clause at 252.227-7026, ``Deferred 
Delivery of Technical Data and 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 data 
identified as ``deferred delivery'' data at any time until two years 
after acceptance by the Government of all items (other than technical 
data items) 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 of the data.
    (b) Deferred ordering. Use the clause at 252.227-7027, ``Deferred 
Ordering of Technical Data or Computer Software'', when a firm 
requirement technical data 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 technical 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) under the contract or contract termination, 
whichever is later. The obligation of subcontractors to deliver such 
technical 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 technical data into the prescribed form, 
reproduction costs, and delivery costs.


227.403-9  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 fewer 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 227.405 or 227.406 for copyright considerations when 
acquiring existing or special works.


227.403-10  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 227.403-13.
    (3) The restrictions asserted by a successful offeror shall be 
attached to its contract unless, in accordance with the procedures at 
227.403-13, 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. 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 227.403-13, 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 or 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 to 
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'' requires--
    (1) A contractor who 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.
    (2) The 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, 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 227.403-10(c)(2)) 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 6 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; and,
    (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 ``Rights in 
Technical Data--Non-commercial Items'' 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.


227.403-11  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 Asserted 
Restrictions'', 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.


227.403-12  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.'' 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 Asserted Restrictions''. 
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 the person who has placed the nonconforming 
marking on the technical data 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 of the nonconformity, 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 the 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 sixty (60) days following receipt of the data, the unjustified 
marking shall be corrected or stricken at that person's expense.


227.403-13  Government right to review, verify, challenge and validate 
asserted restrictions.

    (a) General. An offeror's assertion(s) of restrictions on the 
Government's rights to use, modify, reproduce, release, or disclose 
technical data do not, by themselves, determine the extent of the 
Government's rights in the technical data. Under 10 U.S.C. 2321, the 
Government has the right to challenge asserted restrictions when there 
are reasonable grounds to question the validity of the assertion and 
continued adherence to the assertion would make it impractical to later 
procure competitively the item to which the data pertain.
    (b) Pre-award considerations. The challenge procedures required by 
10 U.S.C. 2321 could significantly delay awards under competitive 
procurements. Therefore, avoid challenging asserted restrictions prior 
to a competitive contract award unless resolution of the assertion is 
essential for successful completion of the procurement.
    (c) Challenge and validation. Contracting officers must have 
reasonable grounds to challenge the current validity of an asserted 
restriction. Before issuing a challenge to an asserted restriction, 
carefully consider all available information pertaining to the 
assertion. All challenges must be made in accordance with the 
provisions of the clause at 252.227-7037, ``Validation of Asserted 
Restrictions''.
    (1) Challenge period. Asserted restrictions should be reviewed 
before acceptance of technical data deliverable under the contract. 
Assertions must be challenged within 3 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 software 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 227.403-13(c)(3), 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 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 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; or,
    (ii) There is reason to believe that the contractor will not 
respond in a timely manner to a challenge and a failure to respond 
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. Do not issue a challenge notice unless there 
are reasonable grounds to question the validity of an assertion. 
Assertions may be challenged whether or not supporting documentation 
was requested from the person asserting the restriction. Challenge 
notices must be in writing and issued to the contractor or, after 
consideration of the situations described in 227.403-13(c)(3), the 
person asserting the restriction. The challenge notice must include the 
information in paragraph (d) of the clause at 252.227-7037, 
``Validation of Asserted Restrictions.''
    (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 sixty (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, ``Validation of Asserted Restrictions.'' As provided in paragraph 
(f) 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.


227.403-14  Conformity, acceptance, and warranty of technical data.

    (a) Statutory requirements. 10 U.S.C. 2320--
    (1) Requires contractors to furnish written assurance at the time 
technical data are delivered or are made available to the Government 
that the technical data are complete, accurate, and satisfy the 
requirements of the contract concerning such data;
    (2) Provides for the establishment of remedies applicable to 
technical data found to be incomplete, inadequate, or not to satisfy 
the requirements of the contract concerning such data; and,
    (3) Authorizes agency heads to withhold payments (or exercise such 
other remedies and 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 ten 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 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 227.403-14(b)(4)), 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 227.403-12(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.


227.403-15  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 Asserted 
Restrictions'', 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, ``Validation of Asserted 
Restrictions'' 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 227.403-13(c)(3).
    (c) Require prime contractors whose contracts include the following 
clauses to include those clauses, without modification except for 
appropriate identification of the parties, in contracts with 
subcontractors or suppliers, at all tiers, who will be furnishing 
technical data in response to a government requirement.
    (1) 252.227-7013, ``Rights in Technical Data--Noncommercial 
Items'';
    (2) 252.227-7025, ``Limitations on the Use or Disclosure of 
Government Furnished Information Marked with Restrictive Legends.
    (3) 252.227-7028, ``Technical Data or Computer Software Previously 
Delivered to the Government''; and,
    (4) 252.227-7037, ``Validation of Asserted Restrictions''.
    (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.


227.403-16  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.
    (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 
227.403-7 and the requirements of the clause at 252.227-7013 governing 
use, modification, reproduction, release, performance, display, or 
disclosure of such data have been satisfied.


227.403-17  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 
227.403-17(c)) 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, release, or disclose any 
technical data to be delivered under the contract. Do not use the 
clause in contracts for Existing or Special Works.
    (b) The clause at 252.227-7032 may be modified to accommodate the 
needs of a specific overseas procurement situation, provided the 
Government obtains rights to the technical data that are not less than 
the rights the Government would have obtained under the data rights 
clause prescribed in this Part for a comparable procurement performed 
within the United States or its possessions.
    (c) Contracts for Canadian purchases shall include the appropriate 
data rights clause prescribed in this Part for a comparable procurement 
performed within the United States or its possessions.


227.404  Contracts under the Small Business Innovative Research 
Program.

    (a) Use the clause at 252.227-7018, ``Rights in Technical Data and 
Computer Software--Small Business Innovative Research Program'', when 
technical data or computer software will be generated during 
performance of contracts under the Small Business Innovative Research 
(SBIR) program.
    (b) Under that clause, the Government obtains a royalty free 
license to use technical data marked with an SBIR Data Rights legend 
only for Government purposes during the period commencing with contract 
award and ending 5 years after completion of the project under which 
the data were generated. Upon expiration of the 5 year restrictive 
license, the Government has unlimited rights in the SBIR data. During 
the license period, the Government may not release or disclose SBIR 
data to any person other than--
    (1) For evaluational purposes.
    (2) As expressly permitted by the contractor; or,
    (3) A use, release, or disclosure that is necessary for emergency 
repair or overhaul of items operated by the Government.
    (c) Do not make any release or disclosure permitted by 227.404(b) 
unless, prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227-403-7.
    (d) Use the clause 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) 252.227-7017, ``Identification and Assertion of Use, Release, 
or Disclosure Restrictions'';
    (2) 252.227-7019, ``Validation of Asserted Restrictions--Computer 
Software'';
    (3) 252.227-7030, ``Technical Data--Withholding of Payment'';
    (4) 252.227-7036, ``Certification of Technical Data Conformity''; 
and,
    (5) 252.227-7037, ``Validation of Asserted Restrictions'' 
(paragraph (d) 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 227.403-6 (c), (d), 
and (e)
    (1) 252.227-7016, ``Rights in Bid or Proposal Data'';
    (2) 252.227-7025, ``Limitations on the Use or Disclosure of 
Government Furnished Information Marked with Restrictive Legends''; and
    (3) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government.''


Sec. 227.405  Contracts for the acquisition of existing works.


Sec. 227.405-1  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 227.406 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 227.403 when the 
Government does not need to control distribution of such works or 
obtain such indemnities.


Sec. 227.405-2  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, ``Rights in Data--Existing Works'', 
provides the Government, and others acting on its behalf, a paid-up, 
non-exclusive, irrevocable, worldwide 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.


Sec. 227.405-3  Acquisition of modified existing works.

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


Sec. 227.406  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 content, performance, use, 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.
    (2) In addition to the clause at 252.227-7013, ``Rights in 
Technical Data--Noncommercial Items'' 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.


227.407  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.


227.407-1  Architectural designs and data clauses for architect-
engineer or construction contracts.

    (a) Except as provided in 227.407-1(b), 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.


227.407-2  Contracts for construction supplies and research and 
development work.

    The provisions and clauses required by 227.407-1 shall not be used 
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.


227.407-3  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.


227.408  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 227.403-7) from 
all persons to whom government purpose rights data is released or 
disclosed; and,
    (6) Indemnify the Government from any liability to data owners or 
licensors resulting from, or as a consequence, of a release or 
disclosure of technical data made by the data repository contractor or 
its officers, employees, agents, or representatives.
    (b) If the contractor is or will be the data repository manager, 
the contractor's data management and distribution responsibilities must 
be identified in the contract or the contract must reference the 
agreement between the Government and the contractor that establishes 
those responsibilities.
    (c) If the contractor is not and will not be the data repository 
manager, do not require a contractor or subcontractor to deliver 
technical data marked with limited rights legends to a data repository 
managed by another contractor unless the contractor or subcontractor 
who has asserted limited rights agrees to release the data to the 
repository or has authorized, in writing, the Government to do so.
    (d) Repository procedures may provide for the acceptance, delivery, 
and subsequent distribution of technical data in storage media other 
than paper, including direct electronic exchange of data between two 
computers. The procedures must provide for the identification of any 
portions of the data provided with restrictive legends, when 
appropriate. The acceptance criteria must be consistent with the 
authorized delivery format.

Subpart 227.5--Rights in Computer Software and Computer Software 
Documentation

    8. A new subpart 227.5 is added to read as follows:


227.5  Rights in computer software and computer software documentation

Sec.

227.500  Scope of subpart.
227.501  Definitions.
227.502  Commercial computer software and commercial computer 
software documentation.

227.502-1  Policy.
227.502-2  Obtaining commercial computer software or commercial 
computer software documentation.
227.502-3  Rights in commercial computer software or commercial 
computer software documentation.
227.502-4  Contract clause.
227.503  Noncommercial computer software and computer software 
documentation.
227.503-1  Policy.
227.503-2  Acquisition of noncommercial computer software and 
computer software documentation.
227.503-3  Early identification of computer software or computer 
software documentation to be furnished to the Government with 
restrictions on use, reproduction, or disclosure.

227.503-4  License rights.
227.503-5  Government rights.
227.503-6  Contract clauses.
227.503-7  [Reserved]
227.503-8  Deferred delivery and deferred ordering of computer 
software and computer software documentation.
227.503-9  Copyright.
227.503-10  Contractor identification and marking of computer 
software or computer software documentation to be furnished with 
restrictive markings.
227.503-11  Contractor procedures and records.
227.503-12  Government right to establish conformity of markings.
227.503-13  Government right to review, verify, challenge, and 
validate asserted restrictions.
227.503-14  Conformity, acceptance, and warranty of computer 
software and computer software documentation.
227.503-15  Subcontractor rights in computer software or computer 
software documentation.
227.503-16  Providing computer software or computer software 
documentation to foreign governments, foreign contractors, or 
international organizations.
227.503-17  Overseas contracts with foreign sources.
227.504  Contracts under the Small Business Innovative Research 
Program.
227.505  Contracts for special works.
227.506  Contracts for architect-engineer services.
227.507  Contractor data repositories.


227.5  Rights in computer software or computer software documentation.


227.500  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 disclosure 
such software or documentation. It implements requirements in the 
following laws and Executive Order:

10 U.S.C. 2302(4)
10 U.S.C. 2305 (subsection (d)(4))
10 U.S.C. 2320
10 U.S.C. 2321
10 U.S.C. 2325
Executive Order 12591 (subsection 1(b)(6))

    (b) Does not apply to computer software or computer software 
documentation acquired under GSA schedule contracts.


227.501  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 Computer Software and Computer Software 
Documentation.''


227.502  Commercial computer software and commercial computer software 
documentation.


227.502-1  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 to such software or documentation to 
meet the requirements of a DoD solicitation;
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release or disclose commercial computer 
software or commercial computer software documentation except for a 
transfer of rights mutually agreed upon.


227.502-2  Obtaining commercial computer software or commercial 
computer software documentation.

    Commercial computer software or commercial computer software 
documentation shall be acquired, to the maximum extent practicable, 
using the procedures at 211.70.


227.502-3  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.


227.502-4  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 227.502-3, the 
Governments rights to use, modify, reproduce, release, perform, 
display, or disclose computer software or computer software 
documentation shall be identified in a license agreement.


227.503  Noncommercial computer software and noncommercial computer 
software documentation.


227.503-1  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;
    (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 contractor's 
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 227.503-5(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, release, or disclose the software may be restricted.


227.503-2  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 27.503-1.
    (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 assuring that, to the 
maximum extent 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 user 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.


227.503-3  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, 
``Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation'' 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 
227.503-6(a)(1).


227.503-4  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, release, or 
disclose computer software developed exclusively or partially at 
private expense (see 227.503-5 (b) and (c)). They may not, without the 
Government's agreement (see 227.503-5(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 (eg., 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.''


227.503-5  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. 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 
this 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 at 227.503-
5(a), 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 form 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 permit or 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 227.403-7; 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 this contract that were 
developed exclusively at private expense.
    (2) Contractors are not required to provide the Government 
additional rights in computer software delivered or otherwise provided 
to the Government with restricted rights. When the Government has a 
need for additional rights, the Government must negotiate with the 
contractor to determine if there are acceptable terms for transferring 
such rights. List or describe all software in which the contractor has 
granted the Government additional rights in a license agreement made 
part of the contract (see 227.503-5(d)). 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.


Sec. 227.503-6  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 of commercial computer software 
documentation, commercial items (see 227.402-3), special works (see 
277.505), contracts under the Small Business Innovative Research 
Program (see 227.404), or in Architect-Engineer and construction 
contracts (see 227.407).
    (2) Use the clause with the 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 252.227-7019, ``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.
    (c) Use the clause at 252.227-7037, ``Validation of Asserted 
Restrictions'', 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 (d) of the clause contains information that must be included 
in a formal challenge.
    (d) Use the clause at 252.227-7016, ``Rights in Bid or Proposal 
Data'', in solicitations and contracts when the Government anticipates 
a need to use, subsequent to contract award, computer software or 
computer software documentation included in a bid or proposal that are 
not required to be delivered under the contract.
    (e) Use the clause at 252.227-7025, ``Limitations on the Use or 
Disclosure of Government Furnished Information Marked with Restrictive 
Legends'', in solicitations and contracts when it is anticipated that 
the Government will provide the contractor, for performance of its 
contract, computer software or computer software documentation marked 
with another contractor's restrictive legend(s).
    (f) 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.


227.503-7  [Reserved]


227.503-8  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 and 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.


227.503-9  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 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 227.505 for 
copyright considerations when acquiring special works.


227.503-10  Contractor identification and marking of computer software 
or computer software documentation to be furnished with restrictive 
markings.

    (a) Identification requirements. (1) The solicitation provision at 
252.227-7017, ``Identification and Assertion of Use, Release, or 
Disclosure Restrictions'', requires offerors to identify prior to 
contract award, any computer software or computer software 
documentation that an offeror asserts should be provided to the 
Government with restrictions on use, modification, reproduction, 
release or disclosure. This requirement does not apply to restrictions 
based solely on copyright. The notification and identification must be 
submitted as an attachment to the offer. If an offeror fails to submit 
the Attachment or fails to complete the Attachment in accordance with 
the requirements of the solicitation provision, such failure shall 
constitute a minor informality. Provide offerors an opportunity to 
remedy a minor informality in accordance with the procedures at FAR 
14.405 or 15.607. An offeror's failure to correct an informality within 
the time prescribed by the contracting officer shall render the offer 
ineligible for award.
    (2) The procedures for correcting minor informalities shall not be 
used to obtain information regarding asserted restrictions or an 
offeror's suggested asserted rights category. Questions regarding the 
justification for an asserted restriction or asserted rights category 
must be pursued in accordance with the procedures at 227.503-13.
    (3) The restrictions asserted by a successful offeror shall be 
attached to its contract unless, in accordance with the procedures at 
227.503-13, 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. Subsequent to 
the 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 227.503-13, 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 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'' requires--
    (1) 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.
    (2) The 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 preexisting 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 227.503-10(c)(2)) 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 6 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; and,
    (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 ``Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation'' 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.


227.503-11  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.


227.503-12  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 non-conforming markings on 
computer software documentation (technical data) is not subject to 
252.227-7037, ``Validation of Asserted Restrictions''. 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 the existence of a formal 
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 sixty (60) days following receipt of the software or 
documentation, the unjustified marking shall be corrected or stricken 
at that person's expense.


227.503-13  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 227.503-
5(d) when additional license rights are needed but there is no basis to 
suspect that an asserted restriction right not be valid.
    (c) Transacting matters directly with subcontractors. The clause at 
252.227-7019 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; or,
    (2) There is reason to believe that the contractor will not respond 
in a timely manner to a challenge and an untimely response would 
jeopardize a subcontractor's or supplier's right to assert 
restrictions; or,
    (3) Requested to do so by a subcontractor or supplier.
    (d) Challenging asserted restrictions. (1) Pre-award 
considerations. The challenge procedures in the clause at 252.227-7019, 
``Validation of Asserted Restrictions--Computer Software'' 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 ``Validation 
of Asserted Restrictions'' clause, 252.227-7037, and the guidance at 
227.403-13. The procedures in that clause implement requirements 
contained in 10 U.S.C. 2321. Resolution of questions regarding the 
validity of asserted restrictions using the process described at 
227.403-12(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 3 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 227.503-12(b)(2) is 
strongly encouraged. After consideration of the situations described in 
227.503-13(c), 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 in restriction.
    (4) Extension of response time. The contracting officer, at his or 
her discretion, may extend the time for response contained in a 
challenge, as appropriate, if the contractor submits a timely written 
request showing the need for additional time to prepare a response.
    (e) Validating or denying asserted restrictions. (1) Contracting 
officers must promptly issue a final decision denying or sustaining the 
validity of each challenged assertion unless the parties have agreed on 
the disposition of the assertion. When a final decision denying the 
validity of an asserted restriction is made following a timely response 
to a challenge, the Government is obligated to continue to respect the 
asserted restrictions through final disposition of any appeal unless 
the Agency Head notifies the person asserting the restriction that 
urgent or compelling circumstances do not permit the Government to 
continue to respect the asserted restriction. See 252.227-7019(g) for 
restrictions applicable following a determination of urgent and 
compelling circumstances.
    (2) Only a contracting officer's final decision, or actions of an 
agency Board of Contract Appeals or a court of competent jurisdiction, 
that sustain the validity of an asserted restriction constitute 
validation of the restriction.
    (f) Multiple challenges to an asserted restriction. When more than 
one contracting officer challenges an asserted restriction, the 
contracting officer who made the earliest challenge is responsible for 
coordinating the Government challenges. That contracting officer shall 
consult with all other contracting officers making challenges, verify 
that all challenges apply to the same asserted restriction and, after 
consulting with the contractor, subcontractor, or supplier asserting 
the restriction, issue a schedule that provides that person a 
reasonable opportunity to respond to each challenge.


Sec. 227.503-14  Conformity, acceptance, and warranty of computer 
software and computer software documentation.

    (a) Computer software documentation. Computer software 
documentation is technical data. See 227.403-14 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 227.503-
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 246.770.
    (ii) Non-weapon systems. Approval of the chief of the contracting 
office must be obtained to use a computer software warranty other than 
a weapon system warranty. Consider the factors at FAR 46.703 in 
deciding whether to obtain a computer software warranty. When approval 
for a warranty has been obtained, the clause at 252.246-7001, 
``Warranty of Data'', and its alternates, may be appropriately modified 
for use with computer software or a procurement specific clause may be 
developed.


Sec. 227.503.15  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 is provided to prime contractors.
    (b) The clauses at 252.227-7019, ``Validation of Asserted 
Restrictions--Computer Software'' and 252.227-7037, ``Validation of 
Asserted Restrictions'', 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 227.503-
13(c) for computer software and 227.403-13(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 227.403-15(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 Computer Software and Computer 
Software Documentation'' clause contained in the contractor's contract 
with the Government.


227.503-16  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 persons 
or authorize the use of such data by those persons.
    (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 persons, or authorize the use of 
such data by those persons, unless the intended recipient is subject to 
the same provisions as included in the use and non-disclosure agreement 
at 227.403-7 and the requirements of the clause at 252.227-7014 
governing use, release, or disclosure of such data have been satisfied.


227.503-17  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 
252.503-17(c)) 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, or disclose any computer software or 
computer software documentation to be delivered under the contract. Do 
not use the clause in contracts for Special Works.
    (b) The clause at 252.227-7032 may be modified to accommodate the 
needs of a specific overseas procurement situation, provided the 
Government obtains rights to the computer software or computer software 
documentation that are not less than the rights the Government would 
have obtained under the data rights clause prescribed in this Part for 
a comparable procurement performed within the United States or its 
possessions.
    (c) Contracts for Canadian purchases shall include the appropriate 
data rights clause prescribed in this Part for a comparable procurement 
performed within the United States or its possessions.


227.504  Contracts under the Small Business Innovative Research 
Program.

    When contracting under the Small Business Innovative Research 
Program, follow the procedures at 227.404.


227.505  Contracts for special works.

    (a) Use the clause at 252.227-7020, ``Rights in Data--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 content, performance, use, 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.
    (2) In addition to 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 
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 the information contained in 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 this clause 
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.


227.506  Contracts for architect-engineer services.

    Follow 227.407 when contracting for architect-engineer services.


227.507  Contractor data repositories.

    Follow 227.408 when it is in the Government's interests to have a 
data repository include computer software or to have a separate 
computer software repository. Contractual instruments establishing the 
repository requirements must appropriately reflect the repository 
manager's software responsibilities.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    9. Sections 252.211-7000 through 252.211-7014 and sections 252.211-
7018 through 252.211-7021 are amended by revising the word ``item'' to 
read ``product'' wherever it appears.
    10. Section 252.211-7006(a) is revised to read as follows:


252.211-7006  Title and risk of loss--commercial items.

* * * * *
    (a) Except for technical data or commercial computer software, 
title to products furnished under this contract shall pass to the 
Government upon final acceptance, regardless of when or where the 
Government takes physical possession, unless this contract 
specifically provides for earlier passage of title. Title to 
technical data or commercial computer software shall remain with the 
contractor unless otherwise specified in this contract.
* * * * *
    11. Section 252.211-7012 is amended by revising paragraph (b); by 
revising paragraph (c)(1); by redesignating paragraph (c)(2) as 
paragraph (c)(4); and by adding new paragraphs (c)(2) and (c)(3) to 
read as follows:


252.211-7012  Certifications--commercial items--competitive 
acquisitions.

* * * * *
    (b) Definitions:
    As used in this provision:
    (1) The term commercial products includes commercial computer 
software, commercial computer software documentation, and other 
commercial items.
    (2) Commercial items means items, other than computer software, 
developed or regularly used for other than Government purposes 
that--
    (i) Have been sold, leased, or licensed to the public; or,
    (ii) Have been offered for sale, lease, or license to the 
public; or,
    (iii) Have 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 resulting 
contract; or,
    (iv) Satisfy a criterion expressed in (b)(2) (i), or (ii) or 
(iii) and would require only minor modification to meet the 
requirements of the procuring agency.
    (3) Commercial computer software means software developed or 
regularly used for non-governmental purposes which--
    (i) Has been sold, leased, or licensed to the public; or,
    (ii) Has been offered for sale, lease, or license to the public; 
or,
    (iii) Has not been offered, sold, leased, or licensed to the 
public, but will be available for commercial sale, lease, or license 
in time to satisfy the delivery requirements of the resulting 
contract; or,
    (iv) Satisfy a criterion expressed in (b)(2) (i), or (ii) or 
(iii) and would require only minor modification to meet the 
requirements of the procuring agency.
    (4) Computer software means computer programs, source code, 
source code listings, object code listings, design details, 
algorithms, processes, flow charts, formulae, and related material 
that would enable the software to be reproduced, recreated, or 
recomplied. Computer software does not include computer databases or 
computer software documentation.
    (5) Commercial computer software documentation means owner's 
manuals, user's manuals, installation instructions, operating 
instructions, and other similar items, regardless of storage medium, 
that explain the capabilities of the commercial computer software or 
provide instructions for using the commercial computer software.
    (6) Computer database means a collection of recorded data in a 
form capable of being processed by a computer. The term does not 
include computer software.
    (7) Computer program means a set of instructions, rules, or 
other routines, recorded in a form that is capable of causing a 
computer to perform a specific operation or series of operations.
    (8) Minor modification means:
    (i) For commercial items, a modification that does not 
significantly alter the nongovernmental function or essential 
physical characteristics of an item or component, or change the 
purpose of a process, or is of the type customarily performed in the 
commercial market place.
    (ii) For commercial computer software, a modification that does 
not significantly alter the nongovernmental function or purpose of 
the software or is of the type customarily provided in the 
commercial marker place.
    (9) Existing or prior source means entities that are furnishing 
or previously furnished items or software to the Government, in 
accordance with Government unique product descriptions, drawings, or 
specifications, that have not been sold to the public and are being 
replaced by commercial items or commercial computer software.
    (c) The offeror (insert name of offeror) hereby certifies that:
    (1) The product(s) offered are commercial items or commercial 
computer software documentation that satisfy the criteria at 
paragraph--
    ______ (b)(2)(i);
    ______ (b)(2)(ii);
    ______ (b)(2)(iii); or
    ______ (b)(2)(iv) of this provision.
    The product(s) offered are commercial computer software that 
satisfy the criteria at paragraph(s)--
    ______ (b)(3)(i);
    ______ (b)(3)(ii);
    ______ (b)(3)(iii); or
    ______ (b)(3)(iv) of this provision.
    (3) The product(s) offered in response to this solicitation is 
(are)--
    ______ Identical to the product(s) previously furnished to the 
Government; or,

    ______ A minor modification of a product(s) previously furnished 
to the Government.
* * * * *


252.211-7015  [Removed and Reserved]

    12. Section 252.211-7015 is removed and reserved.


252.211-7016  [Removed and Reserved]

    13. Section 252.211-7016 is removed and reserved.


252.211-7017  [Removed and Reserved]

    14. Section 252.211-7017 is removed and reserved.


252.222-7021  [Amended]

    15. Section 252.211-7021(b)(1) is amended by adding an additional 
clause at the end of the clause list reading ``252.227-7015 Technical 
Data--Commercial Items.''
    16. Section 252.227-7013 is revised to read as follows:


252.227-7013  Rights in technical data--Noncommercial items.

    As prescribed in 227.403-6(a), use the following clause:

RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS (XXX 1994)

    (a) Definitions. As used in this clause:
    (1) Computer data base means a collection of data recorded in a 
form capable of being processed by a computer. The term does not 
include computer software.
    (2) Computer program means a set of instructions, rules, or 
routines recorded in a form that is capable of causing a computer to 
perform a specific operation or series of operations.
    (3) Computer software means computer programs, source code, 
source code listings, object code listings, design details, 
algorithms, processes, flow charts, formulae and related material 
that would enable the software to be reproduced, recreated, or 
recompiled. Computer software does not include computer data bases 
or computer software documentation.
    (4) Computer software documentation means owner's manuals, 
user's manuals, installation instructions, operating instructions, 
and other similar items, regardless of storage medium, that explain 
the capabilities of the computer software or provide instructions 
for using the software.
    (5) Detailed manufacturing or process data means technical data 
that describe the steps, sequences, and conditions of manufacturing, 
processing or assembly used by the manufacturer to produce an item 
or component or to perform a process.
    (6) Developed means that an item, component, or process exists 
and is workable. Thus, the item or component must have been 
constructed or the process practiced. Workability is generally 
established when the item, component, or process has been analyzed 
or tested sufficiently to demonstrate to reasonable people skilled 
in the applicable art that there is a high probability that it will 
operate as intended. Whether, how much, and what type of analysis or 
testing is required to establish workability depends on the nature 
of the item, component, or process, and the state of the art. To be 
considered ``developed'', the item, component, or process need not 
be at the stage where it could be offered for sale or sold on the 
commercial market, nor must the item, component or process be 
actually reduced to practice within the meaning of Title 35 of the 
United States Code.
    (7) Development exclusively at private expense means development 
was accomplished entirely with costs charged to indirect cost pools, 
costs not allocated to a government contract, or any combination 
thereof.
    (i) Private expense determinations should be made at the lowest 
practicable level.
    (ii) Under fixed price contracts, when total costs are greater 
than the firm fixed price or ceiling price of the contract, the 
additional development costs necessary to complete development shall 
not be considered when determining whether development was at 
Government, private, or mixed expense.
    (8) Developed exclusively with government funds means 
development was not accomplished exclusively or partially at private 
expense.
    (9) Developed with mixed funding means development was 
accomplished partially with costs charged to indirect cost pools 
and/or costs not allocated to a government contract, and partially 
with costs charged directly to a government contract.
    (10) Form, fit, and function data means technical data that 
describes the required overall physical, functional, and performance 
characteristics, (along with the qualification requirements, if 
applicable) of an item, component, or process to the extent 
necessary to permit identification of physically and functionally 
interchangeable items.
    (11) Government purpose means any activity in which the United 
States Government is a party, including cooperative agreements with 
international or multi-national defense organizations, or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, 
reproduce, release, perform, display, or disclose technical data for 
commercial purposes or authorize others to do so.
    (12) Government purpose rights means the rights to--
    (i) Use, modify, reproduce, release, perform, display, or 
disclose technical data within the government without restriction; 
and,
    (ii) Release or disclose technical data outside the government 
and authorize persons to whom release or disclosure has been to use, 
modify, reproduced, release, perform, display, or disclose that data 
for United States government purposes.
    (13) Limited rights means the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data, in whole or 
in part, within the government. The Government may not, without the 
written permission of the party asserting limited rights, release or 
disclose the technical data outside the government, use the 
technical data for manufacture, or authorize the technical data to 
be used by another party, except that the Government may reproduce, 
release or disclose such data 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 evaluation or informational purposes; and,
    (iii) Subject to a prohibition on the further reproduction, 
release, disclosure, or use of the technical data; and,
    (iv) The contractor or subcontractor asserting the restriction 
is notified of such reproduction, release, disclosure, or use.
    (14) Technical data means recorded information, regardless of 
the form or method of the recording, of a scientific or technical 
nature (including computer software documentation). The term does 
not include computer software or data incidental to contract 
administration, such as financial and/or management information.
    (15) Unlimited rights means rights to use, modify, reproduce, 
perform, display, release, or disclose technical data in whole or in 
part, in any manner, and for any purpose whatsoever, and to have or 
authorize others to do so.
    (b) Rights in technical data. The contractor grants or shall 
obtain for the government the following royalty free, worldwide, 
nonexclusive, irrevocable license rights in technical data other 
than computer software documentation (see 252.227-7014 for rights in 
computer software documentation):
    (1) Unlimited rights. The Government shall have unlimited rights 
in technical data that are--
    (i) Data pertaining to an item, component, or process which has 
been or will be developed exclusively with government funds;
    (ii) Studies, analyses, test data, or similar data produced for 
this contract, when the study, analysis, test, or similar work was 
specified as an element of performance.
    (iii) Created exclusively with government funds in the 
performance of a contract that does not require the development, 
manufacture, construction, or production of items, components, or 
processes.
    (iv) Form, fit, and function data;
    (v) Necessary for installation, operation, maintenance, or 
training purposes (other than detailed manufacturing or process 
data);
    (vi) Corrections or changes to technical data furnished to the 
contractor by the Government;
    (vii) Otherwise publicly available or have been released or 
disclosed by the contractor or subcontractor without restrictions on 
further use, release or disclosure, other than a release or 
disclosure resulting from the sale, transfer, or other assignment of 
interest in the technical data to another party or the sale or 
transfer of some or all of a business entity or its assets to 
another party;
    (viii) Data in which the Government has obtained unlimited 
rights under another government contract or as a result of 
negotiations; or
    (ix) Data furnished to the government, under this or any other 
government contract or subcontract thereunder, with:
    (A) Government purpose license rights or limited rights and the 
restrictive condition(s) has/have expired; or,
    (B) Government purpose rights and the contractor's exclusive 
right to use such data for commercial purposes has expired.
    (2) Government purpose rights. (i) The Government shall have 
government purpose rights for a five year period, or such other 
period as may be negotiated, in technical data--
    (A) That pertain to items, components, or processes developed 
with mixed funding except when the Government is entitled to 
unlimited rights in such data as provided in (b)(ii) and (b)(iv) 
through (b)(ix) of this clause; or,
    (B) Created with mixed funding in the performance of a contract 
that does not require the development, manufacture, construction, or 
production of items, components, or processes.
    (ii) The five year period, or such other period as may have been 
negotiated, shall commence upon execution of the contract, 
subcontract, letter contract (or similar contractual instrument), 
contract modification, or option exercise that required development 
of the items, components, or processes or creation of the data 
described in (b)(2)(i)(B). Upon expiration of the five year or other 
negotiated period, the Government shall have unlimited rights in the 
technical data.
    (iii) The Government shall not release or disclose technical 
data in which it has government purpose rights unless--
    (A) Prior to release or disclosure, the intended recipient is 
subject to the non-disclosure agreement at 227.403-7; or,
    (B) The 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.''
    (iv) The contractor has the exclusive right, including the right 
to license others, to use technical data in which the government has 
obtained government purpose rights under this contract for any 
commercial purpose during the time period specified in the 
government purpose rights legend prescribed in paragraph (f)(2) of 
this clause.
    (3) Limited Rights. (i) Except as provided in subparagraphs 
(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix) of this clause, the 
Government shall have limited rights in technical data--
    (A) Pertaining to items, components, or processes developed 
exclusively at private expense and marked with the limited rights 
legend prescribed in paragraph (f) of this clause; or,
    (B) Created exclusively at private expense in the performance of 
a contract that does not require the development, manufacture, 
construction, or production of items, components, or processes.
    (ii) The Government shall require a recipient of limited rights 
data for emergency repair or overhaul to destroy the data and all 
copies in its possession promptly following completion of the 
emergency repair/overhaul and to notify the Contractor that the data 
have been destroyed.
    (iii) The contractor, its subcontractors, and suppliers are not 
required to provide the Government additional rights to use, modify, 
reproduce, release, or disclose technical data furnished to the 
Government with limited rights. However, if the Government desires 
to obtain additional rights in technical data in which it has 
limited rights, the contractor agrees to promptly enter into 
negotiations with the contracting officer to determine whether there 
are acceptable terms for transferring such rights. All technical 
data in which the contractor has granted the Government additional 
rights shall be listed or described in a license agreement made part 
of the contract. The license shall enumerate the additional rights 
granted the Government in such data.
    (4) Specifically negotiated license rights. The standard license 
rights granted to the Government under subparagraphs (b)(1) through 
(b)(3) of this clause, including the period during which the 
Government shall have government purpose rights in technical data, 
may be modified by mutual agreement to provide such rights as the 
parties consider appropriate but shall not provide the Government 
lesser rights than are enumerated in paragraph (a)(13) of this 
clause. Any rights so negotiated shall be identified in a license 
agreement made part of this contract.
    (5) Prior government rights. Technical data that will be 
delivered, furnished, or otherwise provided to the Government under 
this contract, in which the Government has previously obtained 
rights shall be delivered, furnished, or provided with the pre-
existing rights, unless--
    (i) The parties have agreed otherwise; or,
    (ii) Any restrictions on the Government's rights to use, modify, 
reproduce, release, perform, display, or disclose the data have 
expired or no longer apply.
    (6) Release from liability. The contractor agrees to release the 
Government from liability for any release or disclosure of technical 
data made in accordance with paragraphs (a)(13) or (b)(2)(iii) of 
this clause, in accordance with the terms of a license negotiated 
under (b)(4) of this clause, or by others to whom the recipient has 
released or disclosed the data and to seek relief solely from the 
party who has improperly used, modified, reproduced, released, 
performed, displayed, or disclosed contractor data marked with 
restrictive legends.
    (c) Contractor rights in technical data. All rights not granted 
to the government are retained by the contractor.
    (d) Third party copyrighted data. The contractor shall not, 
without the written approval of the contracting officer, incorporate 
any copyrighted data in the technical data to be delivered under 
this contract unless the contractor is the copyright owner or has 
obtained for the Government the license rights necessary to perfect 
a license or licenses in the deliverable data of the appropriate 
scope set forth in paragraph (b) of this clause, and has affixed a 
statement of the license or licenses obtained on behalf of the 
Government and other persons to the data transmittal document.
    (e) Identification and delivery of data to be furnished with 
restrictions on use, release, or disclosure. (1) This paragraph does 
not apply to restrictions based solely on copyright.
    (2) Except as provided in subparagraph (e)(3) of this clause, 
technical data that the contractor asserts should be furnished to 
the Government with restrictions on use, release, or disclosure are 
identified in an Attachment to this contract (``the Attachment''). 
The contractor shall not deliver any data with restrictive markings 
unless the data are listed on the Attachment.
    (3) In addition to the assertions made in the Attachment, other 
assertions may be identified after award when based on new 
information or inadvertent omissions unless the inadvertent 
omissions would have materially affected the source selection 
decision. Such identification and assertion shall be submitted to 
the contracting officer as soon as practicable prior to the 
scheduled date for delivery of the data, in the following format, 
and signed by an official authorized to contractually obligate the 
contractor:

``Identification and Assertion of Restrictions on the Government's 
Use, Release, or Disclosure of Technical Data. The contractor 
asserts for itself, or the persons identified below, that the 
Government's rights to use, release, or disclose the following 
technical data should be restricted--

                                                                        
Technical Data to                                        Name of Person 
be furnished With      Basis for       Asserted Rights      Asserting   
  Restrictions*       Assertion**        Category***    Restrictions****
                                                                        
      (LIST)             (LIST)            (LIST)            (LIST)     
                                                                        

    *If the assertion is applicable to items, components, or 
processes developed at private expense, identify both the data and 
each such item, component, or process.
    **Generally, the development of an item, component, or process 
at private expense, either exclusively or partially, is the only 
basis for asserting restrictions on the Government's rights to use, 
release, or disclose technical data pertaining to such items, 
components, or processes. Indicate whether development was 
exclusively or partially at private expense. If development was not 
at private expense, enter the specific reason for asserting that the 
Government's rights should be restricted.
    ***Enter asserted rights category (e.g., government purpose 
license rights from a prior contract, rights in SBIR data generated 
under another contract, limited or government purpose rights under 
this or a prior contract, or specifically negotiated licenses).
    * * * * Corporation, individual, or other person, as 
appropriate.

Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature ________________''

(End of Identification and Assertion)

    (4) When requested by the contracting officer, the contractor 
shall provide sufficient information to enable the contracting 
officer to evaluate the contractor's assertions. The contracting 
officer reserves the right to add the contractor's assertions to the 
Attachment and validate any listed assertion, at a later date, in 
accordance with the procedures of the ``Validation of Restrictive 
Markings on Technical Data'' clause of this contract.
    (f) Marking requirements. The contractor, and its subcontractors 
or suppliers, may only assert restrictions on the Government's 
rights to use, modify, reproduce, release, or disclose technical 
data to be delivered under this contract by marking the deliverable 
data subject to restriction. Except as provided in paragraph (f)(5) 
of this clause, only the following legends are authorized under this 
contract: The Government purpose rights legend at subparagraph 
(f)(2); the limited rights legend at subparagraph (f)(3) of this 
clause; or, the special license rights legend at subparagraph 
(f)(4); and/or a notice of copyright as prescribed under 17 U.S.C. 
401 or 402.
    (1) General marking instructions. The contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark 
the appropriate legend on all technical data that qualify for such 
markings. The authorized legends shall be placed on the transmittal 
document or storage container and, for printed material, each page 
of the printed material containing technical data for which 
restrictions are asserted. When only portions of a page of printed 
material are subject to the asserted restrictions, such portions 
shall be identified by circling, underscoring, with a note, or other 
appropriate identifier. Reproductions of technical data or any 
portions thereof subject to asserted restrictions shall also 
reproduce the asserted restrictions.
    (2) Goverrnment purpose rights markings. Data delivered or 
otherwise furnished to the Government with Government purposes 
rights shall be marked as follows:

``GOVERNMENT PURPOSE RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
Expiration Date--------------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these technical data are restricted by 
paragraph (b)(2) of the clause at 252.227-7013 contained in the 
above identified contract. No restrictions apply after the 
expiration date shown above. Any reproduction of technical data or 
portions thereof marked with this legend must also reproduce the 
markings.''

(End of Legend)

    (3) Limited rights markings. Data delivered or otherwise 
furnished to the Government with limited rights shall be marked with 
the following legend:

``LIMITED RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these technical data are restricted by 
paragraph (b)(3) of the clause at 252.7013 contained in the above 
identified contract. Any reproduction of technical data or portions 
thereof marked with this legend must also reproduce the markings. 
Any person, other than the Government, who has been provided access 
to such data must promptly notify the above named contractor.''

(End of Legend)

    (4) Special license rights markings. (i) Data in which the 
Government's rights stem from a specifically negotiated license 
shall be marked with the following legend:

``Special License Rights

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these data are restricted by contract 
no. ______ (Insert contract number) ______, license no. ______ 
(Insert license identifier) ______. Any reproduction of technical 
data or portions thereof marked with this legend must also reproduce 
the markings.''

(End of Legend)

    (ii) For purposes of this clause, special licenses do not 
include Government purpose license rights acquired under a prior 
contract (see subparagraph (b)(5) of this clause).
    (5) Pre-existing data markings. If the terms of a prior contract 
or license permitted the contractor to restrict the Government's 
rights to use, modify, reproduce, release, perform, display, or 
disclose technical data deliverable under this contract, and those 
restrictions are still applicable, the contractor may mark such data 
with the appropriate restrictive legend for which the data qualified 
under the prior contract or license. The marking procedures in 
subparagraph (f)(1) of this clause shall be followed.
    (g) Contractor procedures and records. Throughout performance of 
this contract, the contractor and its subcontractors or suppliers 
that will deliver technical data with other than unlimited rights, 
shall--
    (1) Have, maintain, and follow written procedures sufficient to 
assure that restrictive markings are used only when authorized by 
the terms of this clause; and,
    (2) Maintain records sufficient to justify the validity of any 
restrictive markings on technical data delivered under this 
contract.
    (h) Removal of unjustified and nonconforming markings. (1) 
Unjustified technical data markings. The rights and obligations of 
the parties regarding the validation of restrictive markings on 
technical data furnished or to be furnished under this contract are 
contained in the clause at 252.227-7037, ``Validation of Restrictive 
Markings on Technical Data''. Notwithstanding any provision of this 
contract concerning inspection and acceptance, the Government may 
ignore or, at the Contractor's expense, correction or cancel a 
marking if, in accordance with the procedures at 252.227-7037, a 
restrictive marking is determined to be unjustified.
    (2) Nonconforming technical data markings. A nonconforming 
marking is a marking placed on technical data delivered or otherwise 
furnished to the Government under this contract that is not in the 
format authorized by this contract. Correction of nonconforming 
markings is not subject to 252.227-7037. If the contracting officer 
notifies the contractor of a nonconforming marking and the 
contractor fails to remove or correct the such marking within sixty 
(60) days, the Government may ignore or, at the Contractor's 
expense, remove or correct any nonconforming marking.
    (i) Relation to patents. Nothing contained in this clause shall 
imply a license to the Government under any patent or be construed 
as affecting the scope of any license or other right otherwise 
granted to the Government under any patent.
    (j) Limitation on charges for rights in technical data. (1) The 
contractor shall not charge to this contract any cost, including, 
but not limited to, license fees, royalties, or similar changes, for 
rights in technical data to be delivered under this contract when--
    (i) The Government has acquired, by any means, the same or 
greater rights in the data; or,
    (ii) The data are available to the public without restrictions.
    (2) The limitation in paragraph (j)(1)--
    (i) Includes costs charged by a subcontractor or supplier, at 
any tier, or costs incurred by the contractor to acquire rights in 
subcontractor or supplier technical data, if the subcontractor or 
supplier has been paid for such rights under any other Government 
contract or under a license conveying the rights to the Government;
    (ii) Does not include the reasonable costs of reproducing, 
handling, or mailing the documents or other media in which the 
technical data will be delivered.
    (k) Applicability to subcontractors or suppliers. (1) The 
contractor shall ensure that the rights afforded its subcontractors 
and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the 
identification, assertion, and delivery processes of paragraph (e) 
of this clause are recognized and protected.
    (2) Whenever any technical data is to be obtained from a 
subcontractor or supplier for delivery to the Government under this 
contract, the contractor shall use this same clause in the 
subcontract or other contractual instrument, and require its 
subcontractors or suppliers to do so, without alteration, except to 
identify the parties. No other clause shall be used to enlarge or 
diminish the Government's, the contractor's, or a higher tier 
subcontractor's or supplier's rights in a subcontractor's or 
supplier's technical data.
    (3) Technical data required to be delivered by a subcontractor 
or supplier shall normally be delivered to the next higher-tier 
contractor, subcontractor, or supplier. However, when there is a 
requirement in the prime contract for data which may be submitted 
with other than unlimited rights by a subcontractor or supplier, 
then said subcontractor or supplier may fulfill its requirement by 
submitting such data directly to the Government, rather than through 
a higher-tier contractor, subcontractor, or supplier.
    (4) The contractor and higher-tier subcontractors or suppliers 
will not use their power to award contracts as economic leverage to 
obtain rights in technical data from their subcontractors or 
suppliers.
    (5) In no event shall the contractor use its obligation to 
recognize and protect subcontractor or supplier rights in technical 
data as an excuse for failing to satisfy its contractual obligation 
to the Government.

(END OF CLAUSE)

ALTERNATE I (XXX 1994)

    (l) Publication for sale.
    (1) This paragraph only applies to technical data in which the 
Government has obtained unlimited rights or a license to make an 
unrestricted release of technical data.
    (2) The Government shall not publish a deliverable technical 
data item or items identified in this contract as being subject to 
paragraph (l) of this clause or authorize others to publish such 
data on its behalf if, prior to publication for sale by the 
Government and within twenty-four (24) months following the date 
specified in this contract for delivery of such data or the removal 
of any national security or export control restrictions, whichever 
is later, the Contractor publishes that item or items for sale and 
promptly notifies the contracting officer of such publication(s). 
Any such publication shall include a notice identifying the number 
of this contract and the Government's rights in the published data.
    (3) This limitation on the Government's right to publish for 
sale shall continue as long as the data are reasonably available to 
the public for purchase.

(END OF ALTERNATE I)

    17. Section 252.227-7014 is added to read as follows:


252.227-7014  Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.

    As prescribed in 227.503-6(a)(1), use the following clause:

RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER 
SOFTWARE DOCUMENTATION (XXX 1994)

    (a) Definitions. As used in this clause:
    (1) Commercial computer software means software developed or 
regularly used for non-governmental purposes which--
    (i) Has been sold, leased, or licensed to the public;
    (ii) Has been offered for sale, lease, or license to the public;
    (iii) Has not been offered, sold, leased, or licensed to the 
public but will be available for commercial sale, lease, or license 
in time to satisfy the delivery requirements of this contract; or,
    (iv) Satisfies a criterion expressed in (a)(1) (i), (ii), or 
(iii) and would require only minor modification to meet the 
requirements of this contract.
    (2) Computer database means a collection of recorded data in a 
form capable of being processed by a computer. The term does not 
include computer software.
    (3) Computer program means a set of instructions, rules, or 
routines, recorded in a form that is capable of causing a computer 
to perform a specific operation or series of operations.
    (4) Computer software means computer programs, source code, 
source code listings, object code listings, design details, 
algorithms, processes, flow charts, formulae, and related material 
that would enable the software to be reproduced, recreated, or 
recompiled. Computer software does not include computer databases or 
computer software documentation.
    (5) Computer software documentation means owner's manuals, 
user's manuals, installation instructions, operating instructions, 
and other similar items, regardless of storage medium, that explain 
the capabilities of the computer software or provide instructions 
for using the software.
    (6) Developed means that--
    (i) A computer program has been successfully operated in a 
computer and tested to the extent sufficient to demonstrate to 
reasonable persons skilled in the art that the program can 
reasonably be expected to perform its intended purpose;
    (ii) Computer software, other than computer programs, has been 
tested or analyzed to the extent sufficient to demonstrate to 
reasonable persons skilled in the art that the software can 
reasonably be expected to perform its intended purpose; or,
    (iii) Computer software documentation required to be delivered 
under a contract has been written, in any medium, in sufficient 
detail to comply with requirements under that contract.
    (7) Developed exclusively at private expense means development 
was accomplished entirely with costs charged to indirect cost pools, 
costs not allocated to a government contract, or any combination 
thereof.
    (i) Private expense determinations should be made at the lowest 
practicable level.
    (ii) Under fixed price contracts, when total costs are greater 
than the firm fixed price or ceiling price of the contract, the 
additional development costs necessary to complete development shall 
not be considered when determining whether development was at 
government, private, or mixed expense.
    (8) Developed exclusively with government funds means 
development was not accomplished exclusively or partially at private 
expense.
    (9) Developed with mixed funding means development was 
accomplished partially with costs charged to indirect cost pools 
and/or costs not allocated to a government contract, and partially 
with costs charged directly to a government contract.
    (10) Government purpose means any activity in which the United 
States Government is a party, including cooperative agreements with 
international or multi-national defense organizations or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, 
reproduce, release, perform, display, or disclose computer software 
or computer software documentation for commercial purposes or 
authorize others to do so.
    (11) Government purpose rights means the rights to--
    (i) Use, modify, reproduce, release, perform, display, or 
disclose computer software or computer software documentation within 
the government without restriction; and,
    (ii) Release or disclose computer software or computer software 
documentation outside the government and authorize persons to whom 
release or disclosure has been made to use, modify, reproduce, 
release, perform, display, or disclose the software or documentation 
for United States government purposes.
    (12) Minor modification means a modification that does not 
significantly alter the nongovernmental function or purpose of the 
software or is of the type customarily provided in the commercial 
marketplace.
    (13) Noncommercial computer software means software that does 
not qualify as commercial computer software under (a)(1) of this 
clause.
    (14) Restricted rights apply only to noncommercial computer 
software and mean the Government's rights to--
    (i) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (ii) Transfer a computer program to another Government agency 
without the further permission of the contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of 
this clause.
    (iii) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification 
purposes;
    (iv) Modify computer software provided that the Government may--
    (A) Use the modified software only as provided in subparagraphs 
(a)(14)(i) and (iii) of this clause;
    (B) Not release or disclose the modified software except as 
provided in subparagraphs (a)(14)(ii), (v) and (vi) of this clause.
    (v) Permit contractors or subcontractors performing service 
contracts (see FAR 37.101) in support of this or a related contract 
to use computer software to diagnose and correct deficiencies in a 
computer program, to modify computer software to enable a computer 
program to be combined with, adapted to, or merged with other 
computer programs or when necessary to respond to urgent tactical 
situations, provided that--
    (A) the government notifies the party which has granted 
restricted rights that a release or disclosure to particular 
contractors or subcontractors was made;
    (B) Such contractors or subcontractors are subject to the use 
and non-disclosure agreement at 227.403-7 or are government 
contractors 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'';
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the government 
pursuant to subparagraph (a)(14)(iv) of this clause, for any other 
purpose; and,
    (D) Such use is subject to the limitation in subparagraph 
(a)(14)(i) of this clause.
    (vi) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under 
this or a related contract to use the computer software when 
necessary to perform the repairs or overhaul, or to modify the 
computer software to reflect the repairs or overhaul made, provided 
that--
    (A) The intended recipient is subject to the use and non-
disclosure agreement at 227.403-7 or 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''; and
    (B) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the government 
pursuant to subparagraph (a)(14)(iv) of this clause, for any other 
purpose.
    (15) Unlimited rights, means rights to use, modify, reproduce, 
release, perform, display, or disclose, computer software or 
computer software documentation in whole or in part, in any manner 
and for any purpose whatsoever, and to have or authorize others to 
do so.
    (b) Rights in computer software or computer software 
documentation. The contractor grants or shall obtain for the 
government the following royalty free, worldwide, nonexclusive, 
irrevocable license rights in noncommercial computer software or 
computer software documentation. All rights not granted to the 
government are retained by the contractor.
    (1) Unlimited rights. The government shall have unlimited rights 
in:
    (i) Computer software developed exclusively with government 
funds;
    (ii) Computer software documentation required to be delivered 
under this contract;
    (iii) Corrections or changes to computer software or computer 
software documentation furnished to the contractor by the 
government;
    (iv) Computer software or computer software documentation that 
is otherwise publicly available or has been released or disclosed by 
the contractor or subcontractor without restriction on further use, 
release or disclosure, other than a release or disclosure resulting 
from the sale, transfer, or other assignment of interest in the 
software to another party or the sale or transfer of some or all of 
a business entity or its assets to another party;
    (v) Computer software or computer software documentation 
obtained with unlimited rights under another government contract or 
as a result of negotiations; or,
    (vi) Computer software or computer software documentation 
furnished to the government, under this or any other government 
contract or subcontract thereunder with--
    (A) Restricted rights in computer software, limited rights in 
technical data, or government purpose license rights and the 
restrictive conditions have expired; or,
    (B) Government purpose rights and the contractor's exclusive 
right to use such software or documentation for commercial purposes 
has expired.
    (2) Government purpose rights.
    (i) Except as provided in paragraph (b)(1) of this clause, the 
government shall have government purpose rights in computer software 
developed with mixed funding.
    (ii) Government purpose rights shall remain in effect for a 
period of five years unless a different period has been negotiated. 
Upon expiration of the five year or other negotiated period, the 
government shall have unlimited rights in the computer software or 
computer software documentation. The government purpose rights 
period shall commence upon execution of the contract, subcontract, 
letter contract (or similar contractual instrument), contract 
modification, or option exercise that required development of the 
computer software.
    (iii) The government shall not release or disclose computer 
software in which it has government purpose rights to any other 
person unless:
    (A) Prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.403-7; or,
    (B) The recipient is a government contractor receiving access to 
the software or documentation for performance of a government 
contract that contains the clause at 252.227-7025, ``Limitations on 
the Use or Disclosure of Government Furnished Information Marked 
with Restrictive Legends.''
    (3) Restricted rights. (i) The government shall have restricted 
rights in noncommercial computer software required to be delivered 
or otherwise provided to the government under this contract that 
were developed exclusively at private expense.
    (ii) The contractor, its subcontractors, or suppliers are not 
required to provide the government additional rights in 
noncommercial computer software delivered or otherwise provided to 
the government with restricted rights. However, if the government 
desires to obtain additional rights in such software, the contractor 
agrees to promptly enter into negotiations with the contracting 
officer to determine whether there are acceptable terms for 
transferring such rights. All noncommercial computer software in 
which the contractor has granted the government additional rights 
shall be listed or described in a license agreement made part of the 
contract (see paragraph (b)(4) of this clause). The license shall 
enumerate the additional rights granted the government.
    (4) Specifically negotiated license rights. (i) The standard 
license rights granted to the government under subparagraphs (b)(1) 
through (b)(3) of this clause, including the period during which the 
government shall have government purpose rights in computer 
software, may be modified by mutual agreement to provide such rights 
as the parties consider appropriate but shall not provide the 
Government lesser rights in computer software than are enumerated in 
paragraph (a)(14) of this clause or lesser rights in computer 
software documentation than are enumerated in paragraph (a)(13) of 
the clause at 252.227-7013, Rights in Technical Data--Noncommercial 
Items.
    (ii) Any rights so negotiated shall be identified in a license 
agreement made part of this contract.
    (5) Prior government rights. Computer software or computer 
software documentation that will be delivered, furnished, or 
otherwise provided to the Government under this contract, in which 
the Government has previously obtained rights shall be delivered, 
furnished, or provided with the pre-existing rights, unless--
    (i) The parties have agreed otherwise; or,
    (ii) Any restrictions on the Government's rights to use, modify, 
reproduce, release, perform, display, or disclose the data have 
expired or no longer apply.
    (6) Release from liability. The contractor agrees to release the 
government from liability for any release or disclosure of computer 
software made in accordance with subparagraphs (a)(14), or 
(b)(2)(iii) of this clause, in accordance with the terms of a 
license negotiated under (b)(4) of this clause, or by others to whom 
the recipient has released or disclosed the software, and to seek 
relief solely from the party who has improperly used, modified, 
reproduced, released, performed, displayed, or disclosed contractor 
software marked with restrictive legends.
    (c) Rights in derivative computer software or computer software 
documentation. The Government shall retain its rights in the 
unchanged portions of any computer software or computer software 
documentation delivered under this contract that the contractor uses 
to prepare, or includes in, derivative computer software or computer 
software documentation.
    (d) Third party copyrighted computer software or computer 
software documentation. The contractor shall not, without the 
written approval of the contracting officer, incorporate any 
copyrighted computer software or computer software documentation in 
the software or documentation to be delivered under this contract 
unless the contractor is the copyright owner or has obtained for the 
Government the license rights necessary to perfect a license or 
licenses in the deliverable software or documentation of the 
appropriate scope set forth in paragraph (b) of this clause, and 
prior to delivery of such--
    (1) Computer software, has provided a statement of the license 
rights obtained in a form acceptable to the contracting officer; or,
    (2) Computer software documentation, has affixed to the 
transmittal document a statement of the license rights obtained.
    (e) Identification and delivery of computer software and 
computer software documentation to be furnished with restrictions on 
use, release, or disclosure.
    (1) This paragraph does not apply to restrictions based solely 
on copyright.
    (2) Except as provided in subparagraph (e)(3) of this clause, 
computer software that the contractor asserts should be furnished to 
the government with restrictions on use, release, or disclosure is 
identified in an Attachment to this contract (``the Attachment''). 
The contractor shall not deliver any software with restrictive 
markings unless the software is listed on the Attachment.
    (3) In addition to the assertions made in the Attachment, other 
assertions may be identified after award when based on new 
information or inadvertent omissions unless the inadvertent 
omissions would have materially affected the source selection 
decision. Such identification and assertion shall be submitted to 
the contracting officer as soon as practicable prior to the 
scheduled date for delivery of the software, in the following 
format, and signed by an official authorized to contractually 
obligate the contractor:

``Identification and Assertion of Restrictions on the Government's 
Use, Release, or Disclosure of Computer Software. The contractor 
asserts for itself, or the persons identified below, that the 
Government's rights to use, release, or disclose the following 
computer software should be restricted--

                                                                        
Computer Software                                                       
 to be Furnished       Basis for       Asserted Rights   Names of Person
       With           Assertion**        Category***        Asserting   
  Restrictions*                                         Restrictions****
                                                                        
      (LIST)             (LIST)            (LIST)            (LIST)     
                                                                        

    *Generally, development at private expense, either exclusively 
or partially, is the only basis for asserting restrictions on the 
Government's rights to use, release, or disclose computer software.
    **Indicate whether development was exclusively or partially at 
private expense. If development was not at private expense, enter 
the specific reason for asserting that the government's rights 
should be restricted.
    ***Enter asserted rights category (e.g., restricted or 
government purpose rights in computer software, government purpose 
license rights from a prior contract, rights in SBIR software 
generated under another contract, or specifically negotiated 
licenses).
    ****Corporation, individual, or other person, as appropriate.

Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature ________________''

(End of Identification and Assertion)

    (4) When requested by the contracting officer, the contractor 
shall provide sufficient information to enable the contracting 
officer to evaluate the contractor's assertions. The contracting 
officer reserves the right to add the contractor's assertions to the 
Attachment and validate any listed assertion, at a later date, in 
accordance with the procedures of the ``Validation of Asserted 
Restrictions--Computer Software'' clause of this contract.
    (f) Marking requirements. The contractor, and its subcontractors 
or suppliers, may only assert restrictions on the government's 
rights to use, modify, reproduce, release, or disclose computer 
software by marking the deliverable software or documentation 
subject to restriction. Except as provided in paragraph (f)(5) of 
this clause, only the following legends are authorized under this 
contract: the government purpose rights legend at subparagraph 
(f)(2); the restricted rights legend at subparagraph (f)(3) of this 
clause; or, the special license rights legend at subparagraph 
(f)(4); and/or a notice of copyright as prescribed under 17 U.S.C. 
401 or 402.
    (1) General marking instructions. The contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark 
the appropriate legend on all computer software that qualify for 
such markings. The authorized legends shall be placed on the storage 
container or the software and each page, or portions thereof, of 
printed materials containing computer software for which 
restrictions are asserted. Instructions that interfere with or delay 
the operation of computer software in order to display a restrictive 
rights legend or other license statement at any time prior to or 
during use of the computer software shall not be inserted in the 
software, or otherwise cause such interference or delay, unless the 
contracting officer's written permission to deliver such software 
has been obtained prior to delivery. Reproductions of computer 
software or any portions thereof subject to asserted restrictions, 
shall also reproduce the asserted restrictions.
    (2) Government purpose rights markings. Computer software 
delivered or otherwise furnished to the government with government 
purpose rights shall be marked as follows:

``GOVERNMENT PURPOSE RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
Expiration Date--------------------------------------------------------
    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
paragraph (b)(2) of the clause at 252.227-7014 contained in the 
above identified contract. No restrictions apply after the 
expiration date shown above. Any reproduction of the software or 
portions thereof marked with this legend must also reproduce the 
markings.''

(End of Legend)

    (3) Restricted rights markings. Software delivered or otherwise 
furnished to the Government with restricted rights shall be marked 
with the following legend:

``RESTRICTED RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
paragraph (b)(3) of the clause at 252.277-7014 contained in the 
above identified contract. Any reproduction of computer software or 
portions thereof marked with this legend must also reproduce the 
markings. Any person, other than the Government, who has been 
provided access to such software must promptly notify the above 
named contractor.''

(End of Legend)

    (4) Special license rights markings. (i) Computer software or 
computer software documentation in which the government's rights 
stem from a specifically negotiated license shall be marked with the 
following legend:

``Special License Rights

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
contract no. ______ (Insert contract number) ______, license no. 
______ (Insert license identifier) ______. Any reproduction of 
computer software, computer software documentation, or portions 
thereof marked with this legend must also reproduce the markings.''

(End of Legend)

    (ii) For purposes of this clause, special licenses do not 
include government purpose license rights acquired under a prior 
contract (see subparagraph (b)(5) of this clause).
    (5) Pre-existing markings. If the terms of a prior contract or 
license permitted the contractor to restrict the government's rights 
to use, modify, release, perform, display, or disclose computer 
software or computer software documentation and those restrictions 
are still applicable, the contractor may mark such software or 
documentation with the appropriate restrictive legend for which the 
software qualified under the prior contract or license. The marking 
procedures in subparagraph (f)(1) of this clause shall be followed.
    (g) Contractor procedures and records. Throughout performance of 
this contract, the contractor and its subcontractors or suppliers 
that will deliver computer software or computer software 
documentation with other than unlimited rights, shall--
    (1) Have, maintain, and follow written procedures sufficient to 
assure that restrictive markings are used only when authorized by 
the terms of this clause; and
    (2) Maintain records sufficient to justify the validity of any 
restrictive markings on computer software or computer software 
documentation delivered under this contract.
    (h) Removal of unjustified and nonconforming markings. (1) 
Unjustified computer software or computer software documentation 
markings. The rights and obligations of the parties regarding the 
validation of restrictive markings on computer software of computer 
software documentation furnished or to be furnished under this 
contract are contained in the clauses at 252.227-7019, ``Validation 
of Asserted Restrictions--Computer Software'' or 252.227-7037, 
``Validation of Restrictive Markings on Technical Data'', 
respectively. Notwithstanding any provision of this contract 
concerning inspection and acceptance, the Government may ignore or, 
at the Contractor's expense, correct or cancel a marking if, in 
accordance with the procedures of those clauses, a restrictive 
marking is determined to be unjustified.
    (2) Nonconforming computer software or computer software 
documentation markings. A nonconforming marking is a marking placed 
on computer software or computer software documentation delivered or 
otherwise furnished to the Government under this contract that is 
not in the format authorized by this contract. Correction of 
nonconforming markings is not subject to 252.227-7019 or 252.227-
7037. If the contracting officer notifies the contractor of a 
nonconforming marking or markings and the contractor fails to remove 
or correct such markings within sixty (60) days, the Government may 
ignore or, at the Contractor's expense, remove or correct any 
nonconforming markings.
    (i) Relation to patents. Nothing contained in this clause shall 
imply a license to the Government under any patent or be construed 
as affecting the scope of any license or other right otherwise 
granted to the Government under any patent.
    (j) Limitation on charges for rights in computer software or 
computer software documentation. (1) The contractor shall not charge 
to this contract any cost, including but not limited to license 
fees, royalties, or similar charges, for rights in computer software 
or computer software documentation to be delivered under this 
contract when--
    (i) The Government has acquired, by any means, the same or 
greater rights in the software or documentation; or,
    (ii) The software or documentation are available to the public 
without restrictions.
    (2) The limitation in paragraph (j)(1)--
    (i) Includes costs charged by a subcontractor or supplier, at 
any tier, or costs incurred by the contractor to acquire rights in 
subcontractor or supplier computer software or computer software 
documentation, if the subcontractor or supplier has been paid for 
such rights under any other Government contract or under a license 
conveying the rights to the Government;
    (ii) Does not include the reasonable costs of reproducing, 
handling, or mailing the documents or other media in which the 
software or documentation will be delivered.
    (k) Applicability to subcontractors or suppliers. (1) Whenever 
any computer software or computer software documentation is to be 
obtained from a subcontractor or supplier for delivery to the 
government under this contract, the contractor shall use this same 
clause in its subcontracts or other contractual instruments, and 
require its subcontractors or suppliers to do so, without 
alteration, except to identify the parties. No other clause shall be 
used to enlarge or diminish the government's, the contractor's, or a 
higher tier subcontractor's or supplier's rights in a 
subcontractor's or supplier's computer software or computer software 
documentation.
    (2) The contractor and higher-tier subcontractors or suppliers 
shall not use their power to award contracts as economic leverage to 
obtain rights in computer software or computer software 
documentation from their subcontractors or suppliers.
    (3) The contractor shall ensure that subcontractor or supplier 
rights are recognized and protected in the identification, 
assertion, and delivery processes required by paragraph (e) of this 
clause.
    (4) In no event shall the contractor use its obligation to 
recognize and protect subcontractor or supplier rights in computer 
software or computer software documentation as an excuse for failing 
to satisfy its contractual obligation to the government.

(End of clause)

ALTERNATE I (XXX 1994)

    As prescribed in 227.503-6(a)(2), add the following paragraph to 
the basic clause:
    (1) Publication for sale.
    (1) This paragraph only applies to computer software or computer 
software documentation in which the government has obtained 
unlimited rights or a license to make an unrestricted release of the 
software or documentation.
    (2) The government shall not publish a deliverable item or items 
of computer software or computer software documentation identified 
in this contract as being subject to paragraph (l) of this clause or 
authorize others to publish such software or documentation on its 
behalf if, prior to publication for sale by the government and 
within twenty-four (24) months following the date specified in this 
contract for delivery of such software or documentation, or the 
removal of any national security or export control restrictions, 
whichever is later, the Contractor publishes that item or items for 
sale and promptly notifies the contracting officer of such 
publication(s). Any such publication shall include a notice 
identifying the number of this contract and the government's rights 
in the published software or documentation.
    (3) This limitation on the government's right to publish for 
sale shall continue as long as the software or documentation are 
reasonably available to the public for purchase.

(END OF ALTERNATE I)

    18. Section 252.227-7015 is added to read as follows:


252.227-7015  Technical data--commercial items.

    As prescribed in 227.402-3, use the following clause:

TECHNICAL DATA--COMMERCIAL ITEMS (XXX 1994)

    (a) Definitions. As used in this clause:
    (1) Commercial items means items, other than computer software, 
developed or regularly used for other than governmental purposes 
that--
    (i) Have been sold, leased, or licensed to the public; or,
    (ii) Have been offered for sale, lease, or license to the 
public; or,
    (iii) Have not been offered, sold, leased, or licensed to the 
public but will be available for commercial sale or license in time 
to satisfy the delivery requirements of this contract; or,
    (iv) Satisfy a criterion expressed in (b) (1), (2), or (3) and 
would require only minor modification to meet the requirements of 
the procuring agency.
    (2) Contrator includes the contractor's subcontractors and 
suppliers at any tier.
    (3) Form, fit, and function data means technical data that 
describes the required overall physical, functional and performance 
characteristics, (along with the qualification requirements, if 
applicable) of an item, component, or process to the extent 
necessary to permit identification of physically and functionally 
interchangeable items.
    (4) Minor modification means a modification that does not 
significantly alter the nongovernmental function or essential 
physical characteristics of an item or component, or change the 
purpose of a process, or is of the type customarily performed in the 
commercial market place.
    (5) Technical data means recorded information, regardless of the 
form or method of recording, of a scientific or technical nature 
(including computer software documentation). The term does not 
include computer software or data incidental to contract 
administration, such as financial and/or management information.
    (b) License. (1) The Government shall have the unrestricted 
right to use, modify, reproduce, release, or disclose technical 
data, and to permit others to do so, that--
    (i) Have been provided to the Government or others without 
restrictions on use, modification, reproduction, release, or further 
disclosure other than a release or disclosure resulting from the 
sale, transfer, or other assignment of interest in the software to 
another party or the sale or transfer of some or all of a business 
entity or its assets to another party;
    (ii) Are form, fit, and function data;
    (iii) Are a correction or change to technical data furnished to 
the contractor by the Government; or,
    (iv) Have been provided to the Government under a prior contract 
or licensing agreement through which the Government has acquired the 
rights to use, modify, reproduce, release, or disclose the data 
without restrictions.
    (2) Except as provided in paragraph (b)(1) of this clause, the 
Government may use, modify, reproduce, release, or disclose 
technical data within the Government only. The Government shall 
not--
    (i) Use the technical data to manufacture additional quantities 
of the commercial items; or,
    (ii) Release, disclose, or authorize use of the technical data 
outside the Government without the contractor's express permission 
unless a release, disclosure or permitted use is necessary for 
emergency repair or overhaul of the commercial items furnished under 
this contract.
    (c) Additional license rights. The contractor, its 
subcontractors, and suppliers are not required to provide the 
Government additional rights to use, modify, reproduce, release, or 
disclose technical data. However, if the Government desires to 
obtain additional rights in technical data, the contractor agrees to 
promptly enter into negotiations with the contracting officer to 
determine whether there are acceptable terms for transferring such 
rights. All technical data in which the contractor has granted the 
Government additional rights shall be listed or described in a 
special license agreement made part of the contract. The license 
shall enumerate the additional rights granted the Government in such 
data.
    (d) Release from liability. The contractor agrees that the 
Government, and other persons to whom the Government may have 
released or disclosed technical data delivered or otherwise 
furnished under this contract, shall have no liability for any 
release or disclosure of technical data that are not marked to 
indicate that such data are licensed data subject to use, 
modification, reproduction, release, performance, display, or 
disclosure restrictions.

(End of Clause)

    19. Section 252.227-7016 is added to read as follows:


252.227-7016  Rights in bid or proposal data

    As prescribed in 227.403-6(c), 227.404(f), or 227.503-6(d), use the 
following clause:

RIGHTS IN BID OR PROPOSAL DATA (XXX 1994)

    (a) Definitions.
    (1) As used in this clause the term data means technical data or 
computer software.
    (2) For contracts that require the delivery of technical data, 
the terms technical data and computer software are defined in the 
clause at 252.227-7013, ``Rights in Technical Data--Noncommercial 
Items'' or, if this is a contract awarded under the under Small 
business Innovative Research Program, the clause at 252.227-7018, 
``Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovative Research Programs''.
    (3) For contracts that do not require the delivery of technical 
data, the term computer software is defined in the clause at 
252.227-7014, ``Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation'' or, if this is a 
contract awarded under the under the Small business Innovative 
Research Program, the clause at 252.227-7018, ``Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovative Research Programs''.
    (b) Prior to contract award--
    (1) The offeror agrees that the Government may reproduce the bid 
or proposal, or any portions thereof, to the extent necessary to 
evaluate the offer.
    (2) Except as provided in paragraph (d) of this clause, the 
Government shall use information contained in the bid or proposal 
only for evaluational purposes and may not disclose, directly or 
indirectly, such information to any person including potential 
evaluators, unless that person has been authorized by the Head of 
the Agency, his or her designee, or the contracting officer to 
receive such information.
    (c) Subsequent to contract award--
    (1) Except as provided in paragraphs (c)(2) and (d) of this 
clause, the Government shall have the rights to use, modify, 
reproduce, release, perform, display, or disclose information 
contained in the contractor's bid or proposal within the Government. 
The Government shall not release, perform, display, or disclose such 
data outside the Government without the contractor's written 
permission.
    (2) The Government's rights in Data that are required to be 
delivered under this contract are determined by the ``Rights in 
Technical Data--Noncommercial Items'', ``Rights in Noncommercial 
Computer Software and Noncommercial Computer Software 
Documentation'', or ``Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovative Research Programs'' 
clause(s) of this contract.
    (d)(1) The Government's rights with respect to Data contained in 
the contractor's bid or proposal that were provided to the 
contractor by the Government are subject only to restrictions on 
use, modification, reproduction, release, performance, display, or 
disclosure, if any, imposed by the developer or licensor of such 
Data.
    (2) The Government's rights, including the right to permit 
others to use, modify, reproduce, release, perform, display, or, 
disclose bid or proposal Data, shall not be restricted in any manner 
if such Data has been otherwise provided to the Government or to 
other persons without restrictions on further 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 the business entity 
or its assets to another party.
    (e) The contractor shall include this clause in all subcontracts 
or similar contractual instruments and require its subcontractors or 
suppliers to do so without alteration, except to identify the 
parties.

(END OF CLAUSE)

    20. Section 252.227-7017 is added to read as follows:


252.227-7017  Identification and Assertion of Use, Release, or 
Disclosure Restrictions.

    As prescribed in 227.403-3(b), 227.404(e), or 227.503-3(a), use the 
following provision:

IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE 
RESTRICTIONS (XXX 1994)

    (a) The terms used in this provision are defined in following 
clause or clauses contained in this solicitation--
    (1) If a successful offeror will be required to deliver 
technical data, the clause at 252.227-7013, ``Rights in Technical 
Data--Noncommercial Items'' or, if this solicitation contemplates a 
contract under the Small Business Innovative Research Program, the 
clause at 252.227-7018, ``Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovative Research Programs''.
    (2) If a successful offeror will not be required to deliver 
technical data, the clause at 252.227-7014, ``Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation'' or, if this solicitation contemplates a contract 
under the Small Business Innovative Research Program, the clause at 
252.227-7018, ``Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovative Research Programs''.
    (b) The notification and identification requirements in this 
provision apply only to technical data, including computer software 
documentation, or computer software to be delivered with other than 
unlimited rights. For contracts to be awarded under the Small 
Business Innovative Research Program, the notification and 
identification requirements do not apply to technical data or 
computer software that will be generated under the resulting 
contract. Notification and identification is not required for 
restrictions based solely on copyright.
    (c) Offers submitted in response to this solicitation shall 
identify, to the extent known at the time an offer is submitted to 
the Government, the technical data or computer software that the 
offeror, its subcontractors or suppliers, or potential 
subcontractors or suppliers, assert should be furnished to the 
Government with restrictions on use, release, or disclosure.
    (d) The offeror's assertions, including the assertions of its 
subcontractors or suppliers or potential subcontractors or 
suppliers, shall be submitted as an attachment to its offer in the 
following format, dated and signed by an official authorized to 
contractually obligate the offeror.
    ``Identification and Assertion of Restrictions on the 
Government's Use, Release, or Disclosure of Technical Data or 
Computer Software.
    The offeror asserts for itself, or the persons identified below, 
that the Government's rights to use, release, or disclose the 
following technical data or computer software should be restricted:

                                                                        
Technical Data or                                                       
Computer Software                                        Name of Person 
 to be Furnished       Basis for       Asserted Rights      Asserting   
       With           Assertion**        Category***    Restrictions****
  Restrictions*                                                         
                                                                        
   (LIST)*****           (LIST)            (LIST)            (LIST)     
                                                                        

    *For technical data (other than computer software documentation) 
pertaining to items, components, or processes developed at private 
expense, identify both the deliverable technical data and each such 
item, component, or process. For computer software or computer 
software documentation identify the software or documentation.
    **Generally, development at private expense, either exclusively 
or partially, is the only basis for asserting restrictions. For 
technical data, other than computer software documentation, 
development refers to development of the item, component, or process 
to which the data pertain. The Government's rights in computer 
software documentation, generally may not be restricted. For 
computer software, development refers to the software. Indicate 
whether development was accomplished exclusively or partially at 
private expense. If development was not accomplished at private 
expense, or for computer software documentation, enter the specific 
basis for asserting restrictions.
    ***Enter asserted right category (e.g., Government purpose 
license rights from a prior contract, rights in SBIR data generated 
under another contract, limited, restricted, or government purpose 
rights under this or a prior contract, or specially negotiated 
licenses).
    ****Corporation, individual, or other person, as appropriate.
    *****Enter ``none'' when all data or software will be submitted 
without restrictions.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature __________________''

(End of Identification and Assertion)

    (e) An offeror's failure to submit, complete, or sign the 
notification and identification required by paragraph (d) of this 
clause with its offer may render the offer ineligible for award.
    (f) If the offeror is awarded a contract, the assertions 
identified in paragraph (d) of this provision shall be listed in an 
attachment to that contract. Upon request by the contracting 
officer, the offeror shall provide sufficient information to enable 
the contracting officer to evaluate any listed assertion.

(END OF PROVISION)

    21. Section 252.227-7018 is revised to read as follows:


252.227-7018  Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovative Research Program.

    As prescribed in 227.404(a), use the following clause:

RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE--SMALL 
BUSINESS INNOVATIVE RESEARCH PROGRAM (XXX 1994)

    (a) Definitions. As used in this clause:
    (1) Commercial computer software means software developed or 
regularly used for non-governmental purposes which--
    (i) Has been sold, leased, or licensed to the public;
    (ii) Has been offered for sale, lease, or license to the public;
    (iii) Has not been offered, sold, leased, or licensed to the 
public but will be available for commercial sale, lease, or license 
in time to satisfy the delivery requirements of this contract; or,
    (iv) Satisfies a criterion expressed in (a)(1) (i), (ii), or 
(iii) and would require only minor modification to meet the 
requirements of this contract.
    (2) Computer database means a collection of recorded data in a 
form capable of being processed by a computer. The term does not 
include computer software.
    (3) Computer program means a set of instructions, rules, or 
routines, recorded in a form that is capable of causing a computer 
to perform a specific operation or series of operations.
    (4) Computer software means computer programs, source code, 
source code listings, object code listings, design details, 
algorithms, processes, flow charts, formulae, and related material 
that would enable the software to be reproduced, recreated, or 
recompiled. Computer software does not include computer databases or 
computer software documentation.
    (5) Computer software documentation means owner's manuals, 
user's manuals, installation instructions, operating instructions, 
and other similar items, regardless of storage medium, that explain 
the capabilities of the computer software or provide instructions 
for using the software.
    (6) Detailed manufacturing or process data means technical data 
that describe the steps, sequences, and conditions of manufacturing, 
processing or assembly used by the manufacturer to produce an item 
or component or to perform a process.
    (7) Developed means--
    (1) (applicable to technical data other than computer software 
documentation) an item, component, or process, exists and is 
workable. Thus, the item or component must have been constructed or 
the process practiced. Workability is generally established when the 
item, component, or process has been analyzed or tested sufficiently 
to demonstrate to reasonable people skilled in the applicable art 
that there is a high probability that it will operate as intended. 
Whether, how much, and what type of analysis or testing is required 
to establish workability depends on the nature of the item, 
component, or process, and the state where it could be offered for 
sale or sold on the commercial market, nor must the item, component 
or process be actually reduced to practice within the meeting of 
Title 35 of the United States Code.
    (ii) A computer program has been successfully operated in a 
computer and tested to the extent sufficient to demonstrate to 
reasonable persons skilled in the art that the program can 
reasonably be expected to perform its intended purpose.
    (iii) Computer software, other than computer programs, has been 
tested or analyzed to the extent sufficient to demonstrate to 
reasonable persons skilled in the art that the software can 
reasonably be expected to perform its intended purpose.
    (iv) Computer software documentation required to be delivered 
under a contract has been written, in any medium, in sufficient 
detail to comply with requirements under that contract.
    (8) Developed exclusively at private expense means development 
was accomplished entirely with costs charged to indirect cost pools, 
costs not allocated to a government contract, or any combination 
thereof.
    (i) Private expense determinations should be made at the lowest 
practicable level.
    (ii) Under fixed price contracts, when total costs are greater 
than the firm fixed price or ceiling price of the contract, the 
additional development costs necessary to complete development shall 
not be considered when determining whether development was at 
Government, private, or mixed expense.
    (9) Developed exclusively with Government funds means develop 
was not accomplished exclusively or partially at private expense.
    (10) Developed with mixed funding means development was 
accomplished partially with costs charged to indirect cost pools 
and/or costs not allocated to a government contract, and partially 
with costs charged directly to a government contract.
    (11) Form, fit, and function data means technical data that 
describe the required overall physical, functional, and performance 
characteristics, (along with the qualification requirements, if 
applicable) of an item, component, or process to the extent 
necessary to permit identification of physically and functionally 
interchangeable items.
    (12) Generated means technical data or computer software first 
created in the performance of this contract.
    (13) Government purpose means any activity in which the United 
States Government is a party, including cooperative agreements with 
international or multi-national defense organizations or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, 
reproduce, release, perform, display, or disclose technical data or 
computer software for commercial purposes or authorize other to do 
so.
    (14) Limited rights means the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data, in whole or 
in part, within the Government. The Government may not, without the 
written permission of the party asserting limited rights, release or 
disclose the technical data outside the Government, use the 
technical data for manufacture, or permit the technical data to be 
used by another party, except that the Government may reproduce, 
release or disclose such data or permit the use or reproduction of 
the data by persons outside the Government if reproduction, release, 
disclosure, or use is--
    (i) Necessary for emergency repair and overhaul; or,
    (ii) A release or disclosure of technical data (other than 
detailed manufacturing or process data) to, or use of such data by, 
a foreign government that is in the interest of the Government and 
is required for evaluational or informational purposes; and,
    (iii) Subject to a prohibition on the further reproduction, 
release, disclosure, or use of the technical data; and,
    (iv) The contractor or subcontractor asserting the restriction 
is notified of such reproduction, release, disclosure, or use.
    (15) Minor modification means a modification that does not 
significantly alter the nongovernmental function or purpose of 
computer software or is of the type customarily provided in the 
commercial marketplace.
    (16) Noncommercial computer software means software that does 
not qualify as commercial computer software under (a)(1) of this 
clause.
    (17) Restricted rights apply only to noncommercial computer 
software and mean the Government's rights to--
    (i) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (ii) Transfer a computer program to another Government agency 
without the further permission of the contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of 
this clause.
    (iii) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification 
purposes;
    (iv) Modify computer software provided that the Government may--
    (A) Use the modified software only as provided in subparagraphs 
(a)(17) (i) and (iii) of this clause;
    (B) Not release or disclose the modified software except as 
provided in subparagraphs (a)(17)(ii), (v) and (vi) of this clause.
    (v) Permit contractors or subcontractors performing service 
contracts (see FAR 37.101) in support of this or a related contract 
to use computer software to diagnose and correct deficiencies in a 
computer program, to modify computer software to enable a computer 
program to be combined with, adapted to, or merged with other 
computer programs or when necessary to respond to urgent tactical 
situations, provided that--
    (A) The Government notifies the party which has granted 
restricted rights that a release or disclosure to particular 
contractors or subcontractors was made.
    (B) Such contractors or subcontractors are subject to the non-
disclosure agreements at 227.403-7 or are Government contractors 
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'';
    (C) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to subparagraph (a)(17)(iv) of this clause, for any other 
purpose; and,
    (D) Such use is subject to the limitation in subparagraph 
(a)(17)(i) of this clause.
    (vi) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under 
this or a related contract to use the computer software when 
necessary to perform the repairs or overhaul, or to modify the 
computer software to reflect the repairs or overhaul made, provided 
that--
    (A) The intended recipient is subject to the non-disclosure 
agreement at 227.403-7 or 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''; and,
    (B) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to subparagraph (a)(17)(iv) of this clause, for any other 
purpose.
    (18) SBIR data rights mean a royalty free license for the 
Government, including its support service contractors, to use, 
modify, reproduce, release, perform, display, or disclose technical 
data or computer software generated and delivered under this 
contract for any United States government purpose.
    (19) Technical data means recorded information, regardless of 
the form or method of the recording, of a scientific or technical 
nature (including computer software documentation). The term does 
not include computer software or data incidental to contract 
administration, such as financial and/or management information.
    (20) Unlimited rights, means rights to use, modify, reproduce, 
release, perform, display, or disclose, technical data or computer 
software in whole or in part, in any manner and for any purpose 
whatsoever, and to have or authorize others to do so.
    (b) Rights in technical data and computer software. The 
contractor grants or shall obtain for the government the following 
royalty free, worldwide, nonexclusive, irrevocable license rights in 
technical data or non-commercial computer software. All rights not 
granted to the Government are retained by the contractor.
    (1) Unlimited rights. The Government shall have unlimited rights 
in technical data, including computer software documentation, or 
computer software generated under this contract that are--
    (i) Form, fit, and function data;
    (ii) Necessary for installation, operation, maintenance, or 
training purposes (other than detailed manufacturing or process 
data);
    (iii) Corrections or changes to government-furnished technical 
data or computer software;
    (iv) Otherwise publicly available or have been released or 
disclosed by the contractor or a subcontractor without restrictions 
on further use, release or disclosure other than a release or 
disclosure resulting from the sale, transfer, or other assignment of 
interest in the technical data or computer software to another party 
or the sale or transfer of some or all of a business entity or its 
assets to another party;
    (v) Data or software in which the Government has acquired 
previously unlimited rights under another government contract or 
through a specific license; and
    (vi) SBIR data upon expiration of the SBIR data rights period.
    (2) Limited rights. The Government shall have limited rights in 
technical data, that were not generated under this contract, pertain 
to items, components or processes developed exclusively at private 
expense, and are marked, in accordance with the marking instructions 
in paragraph (f)(1) of this clause, with the legend prescribed in 
subparagraph (f)(2) of this clause.
    (3) Restricted rights in computer software. The government shall 
have restricted rights in noncommercial computer software required 
to be delivered or otherwise furnished to the Government under this 
contract that were developed exclusively at private expense and were 
not generated under this contract.
    (4) SBIR data rights. (i) Except for technical data, including 
computer software documentation, or computer software in which the 
Government has unlimited rights under paragraph (b)(1) of this 
clause, the Government shall have SBIR data rights in all technical 
data or computer software generated under this contract during the 
period commencing with contract award and ending upon the date five 
years after completion of the project from which such data were 
generated.
    (ii) The Government may not release or disclose SBIR data to any 
person, other than its support services contractors, except--
    (A) As expressly permitted by the contractor;
    (B) For evaluational purposes; or,
    (C) A release, disclosure, or use that is necessary for 
emergency repair or overhaul of items operated by the Government.
    (iii) A release or disclosure of SBIR data to the Government's 
support services contractors, or a release or disclosure under 
paragraphs (b)(4)(ii)(B) or (c) of this clause, may be made only if, 
prior to release or disclosure, the intended recipient is subject to 
the use and non-disclosure agreement at 227.403-7 or is a Government 
contractor receiving access to the technical data or software for 
performance of a Government contract that contains the clause at 
252.227-7025, ``Limitations on the Use or Disclosure of Government 
Furnished Information Marked with Restrictive Legends.''
    (5) Specifically negotiated license rights. The standard license 
rights granted to the government under paragraphs (b)(1) through 
(b)(4) of this clause may be modified by mutual agreement to provide 
such rights as the parties consider appropriate but shall not 
provide the Government lesser rights in technical data, including 
computer software documentation, than are enumerated in paragraph 
(a)(14) of this clause or lesser rights in computer software than 
are enumerated in paragraph (a)(17) of this clause. Any rights so 
negotiated shall be identified in a license agreement made part of 
this contract.
    (6) Prior Government rights. Technical data, including computer 
software documentation, or computer software that will be delivered, 
furnished, or otherwise provided to the government under this 
contract, in which the government has previously obtained rights 
shall be delivered, furnished, or provided with the pre-existing 
rights, unless--
    (i) The parties have agreed otherwise; or,
    (ii) Any restrictions on the government's rights to use, modify, 
release, perform, display, or disclose the technical data or 
computer software have expired or no longer apply.
    (7) Release from liability. The contractor agrees to release the 
Government from liability for any release or disclosure of technical 
data, computer software, or computer software documentation made in 
accordance with paragraphs (a)(14), (a)(17), or (b)(4) of this 
clause, or in accordance with the terms of a license negotiated 
under paragraph (b)(5) of this clause, or by others to whom the 
recipient has released or disclosed the data, software, or 
documentation and to seek relief solely from the party who has 
improperly used, modified, reproduced, released, performed, 
displayed, or disclosed contractor data or software marked with 
restrictive legends.
    (c) Rights in derivative computer software or computer software 
documentation. The government shall retain its rights in the 
unchanged portions of any computer software or computer software 
documentation delivered under this contract that the contractor uses 
to prepare, or includes in, derivative software or documentation.
    (d) Third party copyrighted technical data and computer 
software. The contractor shall not, without the written approval of 
the contracting officer, incorporate any copyrighted technical data, 
including computer software documentation, or computer software in 
the data or software to be delivered under this contract unless the 
contractor is the copyright owner or has obtained for the Government 
the license rights necessary to perfect a license or licenses in the 
deliverable data or software of the appropriate scope set forth in 
paragraph (b) of this clause and, prior to delivery of such--
    (1) Technical data, has affixed to the transmittal document a 
statement of the license rights obtained; or,
    (2) Computer software, has provided a statement of the license 
rights obtained in a form acceptable to the contracting officer.
    (e) Identification and delivery of technical data or computer 
software to be furnished with restrictions on use, release, or 
disclosure. (1) This paragraph does not apply to technical data or 
computer software that were or will be generated under this contract 
or to restrictions based solely on copyright.
    (2) Except as provided in subparagraph (e)(3) of this clause, 
technical data or computer software that the contractor asserts 
should be furnished to the Government with restrictions on use, 
release, or disclosure is identified in an Attachment to this 
contract (``the Attachment''). The contractor shall not deliver any 
technical data or computer software with restrictive markings unless 
the technical data or computer software are listed on the 
Attachment.
    (3) In addition to the assertions made in the Attachment, other 
assertions may be identified after award when based on new 
information or inadvertent omissions unless the inadvertent 
omissions would have materially affected the source selection 
decision. Such identification and assertion shall be submitted to 
the contracting officer as soon as practicable prior to the 
scheduled date for delivery of the technical data or computer 
software, in the following format, and signed by an official 
authorized to contractually obligate the contractor:
    ``Identification and Assertion of Restrictions on the 
Government's Use, Release, or Disclosure of Technical Data or 
Computer Software.
    The contractor asserts for itself, or the persons identified 
below, that the Government's right to use, release, or disclose the 
following technical data or computer software should be restricted--

                                                                        
Technical data or                                                       
computer software                                        Name of Person 
 to be Furnished       Basis for       Asserted Rights      Asserting   
       With           Assertion**        Category***    Restrictions****
  Restrictions*                                                         
                                                                        
      (LIST)             (LIST)            (LIST)            (LIST)     
                                                                        

    *If the assertion is applicable to items, components, or 
processes developed at private expense, identify both the technical 
data and each such item, component, or process.
    **Generally, development at private expense, either exclusively 
or partially, is the only basis for asserting restrictions on the 
Government's rights to use, release, or disclose technical data or 
computer software. Indicate whether development was exclusively or 
partially at private expense. If development was not at private 
expense, enter the specific reason for asserting that the 
Government's rights should be restricted.
    ***Enter asserted rights category (e.g., limited rights, 
restricted rights, government purpose rights, or government purpose 
license rights from a prior contract, SBIR data rights under another 
contract, or specifically negotiated licenses).
    ****Corporation, individual, or other person, as appropriate.

Date-------------------------------------------------------------------
Printed Name and Trade-------------------------------------------------
Signature ________________

(End of Identification and Assertion)

    (4) When requested by the contracting officer, the contractor 
shall provide sufficient information to enable the contracting 
officer to evaluate the contractor's assertions. The contracting 
officer reserves the right to add the contractor's assertions to the 
Attachment and validate any listed assertions, at a later date, in 
accordance with the procedures of the ``Validation of Asserted 
Restrictions--Computer Software, and/or ``Validation of Restrictive 
Markings on Technical Data'' clauses of this contract.
    (f) Marking requirements. The contractor, and its subcontractors 
or suppliers, may only assert restrictions on the Government's 
rights to use, modify, reproduce, release, or disclose technical 
data or computer software to be delivered under this contract by 
marking the deliverable data or software subject to restriction. 
Except as provided in paragraph (f) (6) of this clause, only the 
following markings are authorized under this contract: the limited 
rights legend at subparagraph (f) (2) of this clause; the restricted 
rights legend at subparagraph (f)(3), the SBIR data rights legend at 
subparagraph (f)(4), or, the special license rights legend at 
subparagraph (f)(5); and/or a notice of copyright as prescribed 
under 17 U.S.C. 401 or 402.
    (1) General marking instructions. The contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark 
the appropriate legend to all technical data and computer software 
that qualify for such markings. The authorized legends shall be 
placed on the transmittal document or storage container and, for 
printed material, each page of the printed material containing 
technical data or computer software for which restrictions are 
asserted. When only portions of a page of printed material are 
subject to the asserted restrictions, such portions shall be 
identified by circling, underscoring, with a note, or other 
appropriate identifier. Instructions that interfere with or delay 
the operation of computer software in order to display a restrictive 
legend or other license statement at any time prior to or during use 
of the computer software shall not be inserted in the software, or 
otherwise cause such interference or delay, unless the contracting 
officer's written permission to deliver such software has been 
obtained prior to delivery. Reproduction of technical data, computer 
software, or any portions thereof subject to asserted restrictions 
shall also reproduce the asserted restrictions.
    (2) Limited rights markings. Technical data not generated under 
this contract that pertain to items, components, or processes 
developed exclusively at private expense and delivered or otherwise 
furnished with limited rights shall be marked with the following 
legend:

``LIMITED RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
    The Government's right to use, modify, reproduce, release, 
perform, display, or disclose these technical data are restricted by 
paragraph (b)(2) of the clause at 252.227-7018. Any reproduction of 
technical data or portions thereof marked with this legend must also 
produce the markings. Any person, other than the Government, who has 
been provided access to such data must promptly notify the above 
named contractor.''

(End of Legend)

    (3) Restricted rights markings. Computer software delivered or 
otherwise furnished to the Government with restricted rights shall 
be marked with the following legend:

``RESTRICTED RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
    The Government's right to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
paragraph (b)(3) of the clause at 252.227-7018. Any reproduction of 
computer software or portions thereof marked with this legend must 
also produce the markings. Any person, other than the Government, 
who has been provided access to such data must promptly notify the 
above named contractor.''

(End of Legend)

    (4) SBIR data rights markings. Except for technical data or 
computer software in which the Government has acquired unlimited 
rights under subparagraph (b)(1) of this clause, or negotiated 
special license rights as provided in subparagraph (b)(5) of this 
clause, technical data or computer software generated under this 
contract shall be marked with the following legend. The contractor 
shall enter the expiration date for the SBIR data rights period on 
the legend:

``SBIR DATA RIGHTS

Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Address----------------------------------------------------------------
----------------------------------------------------------------------
Expiration of SBIR Data Rights
Period-----------------------------------------------------------------
    The Government's right to use, modify, reproduce, release, 
perform, display, or disclose technical data or computer software 
marked with this legend are restricted during the period shown as 
provided in paragraph (b)(4) of the contract identified above. No 
restrictions apply after the expiration date shown above. Any 
reproduction of technical data, computer software, or portions 
thereof marked with this legend must also reproduce the markings.''

(End of Legend)

    (5) Special license rights markings. (i) Technical data or 
computer software in which the Government's rights stem from a 
specifically negotiated license shall be marked with the following 
legend:

``Special License Rights

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this technical data or computer 
software are restricted by contract no. ______ (Insert contract 
number) ______, license no. ______, (Insert license identifier) 
______. Any reproduction of technical data, computer software, or 
portions thereof marked with this legend must also reproduce the 
markings.''

(End of Legend)

    (ii) For purposes of this clause, special licenses do not 
include government Purpose License Rights acquired under a prior 
contract (see subparagraph (b)(6) of this clause).
    (6) Pre-existing data markings. If the terms of a prior contract 
or license permitted the contractor to restrict the government's 
rights to use, modify, reproduce, release, perform, display, or 
disclose technical data or computer software, and those restrictions 
are still applicable, the contractor may mark such data or software 
with the appropriate restrictive legend for which the data or 
software qualified under the prior contract or license. The marking 
procedures in subparagraph (f)(1) of this clause shall be followed.
    (g) Contractor procedures and records. Throughout performance of 
this contract, the contractor, and its subcontractors or suppliers 
that will deliver technical data or computer software with other 
than unlimited rights, shall--
    (1) Have, maintain, and follow written procedures sufficient to 
assure that restrictive markings are used only when authorized by 
the terms of this clause; and
    (2) Maintain records sufficient to justify the validity of any 
restrictive markings on technical data or computer software 
delivered under this contract.
    (h) Removal of unjustified and nonconforming markings. (1) 
Unjustified markings. The rights and obligations of the parties 
regarding the validation of restrictive markings on technical data 
or computer software furnished or to be furnished under this 
contract are contained in the clauses at ``252.227-7037, 
``Validation of Restrictive Markings on Technical Data'' or 252.227-
7019, ``Validation of Asserted Restrictions--Computer Software'', 
respectively. Notwithstanding any provision of this contract 
concerning inspection and acceptance, the Government may ignore or, 
at the Contractor's expense, correct or cancel a marking if, in 
accordance with the applicable procedures of those clauses, a 
restrictive marking is determined to be unjustified.
    (2) Nonconforming markings. A nonconforming marking is a marking 
placed on technical data or computer software delivered or otherwise 
furnished to the Government under this contract that is not in the 
format authorized by this contract. Correction of nonconforming 
markings is not subject to 252.227-7019 or 252.227-7037. If the 
contracting officer notifies the contractor of a nonconforming 
marking or markings and the contractor fails to remove or correct 
such markings within sixty (60) days, the Government may ignore or, 
at the Contractor's expense, remove or correct any nonconforming 
markings.
    (i) Relation to patents. Nothing contained in this clause shall 
imply a license to the Government under any patent or be construed 
as affecting the scope of any license or other right otherwise 
granted to the Government under any patent.
    (j) Limitation on charges for rights in technical data or 
computer software. (1) The contractor shall not charge to this 
contract any cost, including but not limited to, license fees, 
royalties, or similar charges, for rights in technical data or 
computer software to be delivered under this contract when--
    (i) The Government has acquired, by any means, the same or 
greater rights in the data or software; or,
    (ii) The data are available to the public without restrictions.
    (2) The limitation in paragraph (j)(1)--
    (i) Includes costs charged by a subcontractor or supplier, at 
any tier, or costs incurred by the contractor to acquire rights in 
subcontractor or supplier technical data or computer software, if 
the subcontractor or supplier has been paid for such rights under 
any other Government contract or under a license conveying the 
rights to the Government;
    (ii) Does not include the reasonable costs of reproducing, 
handling, or mailing the documents or other media in which the 
technical data or computer software will be delivered.
    (k) Applicability to subcontractors or suppliers. (1) The 
contractor shall assure that the rights afforded its subcontractors 
and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the 
identification, assertion, and delivery processes required by 
paragraph (e) of this clause are recognized and protected.
    (2) Whenever any technical data or computer software is to be 
obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the contractor shall use this same 
clause in the subcontract or other contractual instrument, and 
require its subcontractors or suppliers to do so, without 
alteration, except to identify the parties. No other clause shall be 
used to enlarge or diminish the Government's, the contractor's, or a 
higher tier subcontractor's or supplier's rights in a 
subcontractor's or supplier's technical data or computer software.
    (3) Technical data required to be delivered by a subcontractor 
or supplier shall normally be delivered to the next higher-tier 
contractor, subcontractor, or supplier. However, when there is a 
requirement in the prime contract for technical data which may be 
submitted with other than unlimited rights by a subcontractor or 
supplier, then said subcontractor or supplier may fulfill its 
requirement by submitting such technical data directly to the 
Government, rather than through a higher-tier contractor, 
subcontractor, or supplier.
    (4) The contractor and higher-tier subcontractors or suppliers 
shall not use their power to award contracts as economic leverage to 
obtain rights in technical data or computer software from their 
subcontractors or suppliers.
    (5) In no event shall the contractor use its obligation to 
recognize and protect subcontractor or supplier rights in technical 
data or computer software as an excuse for failing to satisfy its 
contractual obligation to the Government.

(End of clause)

ALTERNATE I (XXX 1994)

    As prescribed in 227.404(c) or 227.504(c), add the following 
paragraph to the basic clause:
    (l) Publication for sale. (1) This paragraph applies only to 
technical data or computer software delivered to the Government with 
SBIR data rights.
    (2) Upon expiration of the SBIR data rights period, the 
Government will not exercise its right to publish or authorize 
others to publish an item of technical data or computer software 
identified in this contract as being subject to paragraph (l) of 
this clause if the contractor, prior to the expiration of the SBIR 
data rights period, or within two years following delivery of the 
data or software item, or within twenty-four months following the 
removal of any national security or export control restrictions, 
whichever is later, publishes such data or software item(s) and 
promptly notifies the contracting officer of such publication(s). 
Any such publication(s) shall include a notice identifying the 
number of this contract and the Government's rights in the published 
data.
    (3) This limitation on the Government's right to publish for 
sale shall continue as long as the technical data or computer 
software are reasonably available to the public for purchase.

(END OF ALTERNATE I)

    22. Section 252.227-7019 is revised to read as follows:


252.227-7019  Validation of asserted restrictions--computer software.

    As prescribed in 227.503-6(b), use the following clause:

VALIDATION OF ASSERTED RESTRICTIONS--COMPUTER SOFTWARE (XXX 1994)

    (a) Definitions. (1) As used in this clause, unless otherwise 
specifically indicated, the term Contractor means the contractor and 
its subcontractors or suppliers.
    (2) Other terms used in this clause are defined in the ``Rights 
in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation'' clause, 252.227-7014, of this contract.
    (b) Justification. The Contractor shall maintain records 
sufficient to justify the validity of any markings that assert 
restrictions on the Government's rights to use, modify, reproduce, 
perform, display, release, or disclose computer software delivered 
or required to be delivered under this contract and shall be 
prepared to furnish to the contracting officer a written 
justification for such restrictive markings in response to a request 
for information under paragraph (d) or a challenge under paragraph 
(f) of this clause.
    (c) Direct contact with subcontractors or suppliers. The 
Contractor agrees that the contracting officer may transact matters 
under this clause directly with subcontractors or suppliers at any 
tier who assert restrictions on the Government's right to use, 
modify, reproduce, release, perform, display, or disclose computer 
software. Neither this clause, nor any action taken by the 
Government under this clause, creates or implies privity of contract 
between the Government and the Contractor's subcontractors or 
suppliers.
    (d) Requests for information. (1) The contracting officer may 
request the Contractor to provide sufficient information to enable 
the contracting officer to evaluate the Contractor's asserted 
restrictions. Such information shall be based upon the records 
required by this clause or other information reasonably available to 
the Contractor.
    (2) Based upon the information provided, if the--
    (i) Contractor agrees that an asserted restriction is not valid, 
the contracting officer may--
    (A) Strike or correct the unjustified marking at the 
Contractor's expense; or,
    (B) Return the computer software to the Contractor for 
correction at the Contractor's expense. If the Contractor fails to 
correct or strike the unjustified restriction and return the 
corrected software to the contracting officer within sixty (60) days 
following receipt of the software the contracting officer may 
correct or strike the markings at that Contractor's expense.
    (ii) Contracting officer concludes that the asserted restriction 
is appropriate for this contract, he or she shall so notify the 
Contractor in writing.
    (3) The Contractor's failure to provide a timely response to a 
contracting officer's request for information or failure to provide 
sufficient information to enable the contracting officer to evaluate 
an asserted restriction shall constitute reasonable grounds for 
questioning the validity of an asserted restriction.
    (e) Government right to challenge and validate asserted 
restrictions. (1) The Government, when there are reasonable grounds 
to do so, has the right to review and challenge the validity of any 
restrictions asserted by the Contractor on the Government's rights 
to use, modify, reproduce, release, perform, display, or disclose 
computer software delivered, to be delivered under this contract, or 
otherwise provided to the Government in the performance of this 
contract. Except for software that is publicly available, has been 
furnished to the Government without restrictions, or has been 
otherwise made available without restrictions, the Government may 
exercise this right only within three years after the date(s) the 
software is delivered or otherwise furnished to the Government, or 
three years following final payment under this contract, whichever 
is later.
    (2) The absence of a challenge to an asserted restriction shall 
not constitute validation under this clause. Only a contracting 
officer's final decision or actions of an agency Board of Contract 
Appeals or a court of competent jurisdiction that sustain the 
validity of an asserted restriction constitute validation of the 
restriction.
    (f) Challenge procedures. (1) A challenge must be in writing and 
shall--
    (i) State the specific grounds for challenging the asserted 
restriction;
    (ii) Require the Contractor to respond within sixty (60) days;
    (iii) Require the Contractor to provide justification for the 
assertion based upon records kept in accordance with paragraph (b) 
of this clause and such other documentation that are reasonably 
available to the Contractor, in sufficient detail to enable the 
contracting officer to determine the validity of the asserted 
restrictions; and,
    (iv) State that a contracting officer's final decision, during 
the three year period preceding this challenge, or action of a court 
of competent jurisdiction or Board of Contract Appeals that 
sustained the validity of an identical assertion made by the 
Contractor (or a licensee) shall serve as justification for the 
asserted restriction.
    (2) The contracting officer shall extend the time for response 
if the Contractor submits a written request showing the need for 
additional time to prepare a response.
    (3) The contracting officer may request additional supporting 
documentation if, in his or her opinion, the Contractor's 
explanation does not provide sufficient evidence to justify the 
validity of the asserted restrictions. The Contractor agrees to 
promptly respond to the contracting officer's request for additional 
supporting documentation.
    (4) Notwithstanding challenge by the contracting officer, the 
parties may agree on the disposition of an asserted restriction at 
any time prior to a contracting officer's final decision or, if the 
Contractor has appealed that decision, filed suit, or provided 
notice of an intent to file suit, at any time prior to a decision by 
a court of competent jurisdiction or Board of Contract Appeals.
    (5) If the Contractor fails to respond to the contracting 
officer's request for information or additional information under 
subparagraph (f)(1) of this clause, the contracting officer shall 
issue a final decision, in accordance with the ``Disputes'' clause 
of this contract, pertaining to the validity of the asserted 
restriction.
    (6) If the contracting officer, after reviewing the written 
explanation furnished pursuant to subparagraph (f)(1) of this 
clause, or any other available information pertaining to the 
validity of an asserted restriction, determines that the asserted 
restriction has--
    (i) Not been justified, the contracting officer shall issue 
promptly a final decision, in accordance with the ``Disputes'' 
clause of this contract, denying the validity of the asserted 
restriction.
    (ii) Been justified, the contracting officer shall issue 
promptly a final decision, in accordance with the ``Disputes'' 
clause of this contract, validating the asserted restriction.
    (7) A contractor receiving challenges to the same asserted 
restriction(s) from more than one contracting officer shall notify 
each contracting officer of the other challenges. The notice shall 
also state which contracting officer initiated the first in time 
unanswered challenge. The contracting officer who initiated the 
first in time unanswered challenge, after consultation with the 
other contracting officers who have challenged the restrictions and 
the contractor, shall formulate and distribute a schedule that 
provides the contractor a reasonable opportunity for responding to 
each challenge.
    (g) Contractor appeal--Government obligation. (1) The Government 
agrees that, notwithstanding a contracting officer's final decision 
denying the validity of an asserted restriction and except as 
provided in paragraph (g)(3) of this clause, it will honor the 
asserted restriction--
    (i) For a period of ninety (90) days from the date of the 
contracting officer's final decision to allow the Contractor to 
appeal to the appropriate Board of Contract Appeals or to file suit 
in an appropriate court;
    (ii) For a period of one year from the date of the contracting 
officer's final decision if, within the first ninety (90) days 
following the contracting officer's final decision, the Contractor 
has provided notice of an intent to file suit in an appropriate 
court; or,
    (iii) Until final disposition by the appropriate Board of 
Contract Appeals or court of competent jurisdiction, if the 
Contractor has: (A) appealed to the Board of Contract Appeals or 
filed suit in an appropriate court within ninety (90) days; or, (B) 
submitted, within ninety (90) days, a notice of intent to file suit 
in an appropriate court and filed suite within one year.
    (2) The Contractor agrees that the Government may strike, 
correct, or ignore the restrictive markings if the Contractor fails 
to--
    (i) Appeal to a Board of Contract Appeals within ninety (90) 
days from the date of the contracting officer's final decision; or,
    (ii) File suit in an appropriate court within ninety (90) days 
from such date; or,
    (iii) File suit within one year after the date of the 
contracting officer's final decision if the Contractor had provided 
notice of intent to file suit within ninety (90) days following the 
date of the contracting officer's final decision.
    (3) The agency head, on a non-delegable basis, may determine 
that urgent or compelling circumstances do not permit awaiting the 
filing of suit in an appropriate court, or the rendering of a 
decision by a court of competent jurisdiction or Board of Contract 
Appeals. In that event, the agency head shall notify the Contractor 
of the urgent or compelling circumstances. Notwithstanding 
subparagraph (g)(1) of this clause, the Contractor agrees that the 
agency may use, modify, reproduce, release, perform, display, or 
disclose computer software marked with (i) government purpose 
legends for any purpose, and authorize others to do so; or, (ii) 
restricted or special license rights for government purposes only. 
The Government agrees not to release or disclose such software 
unless prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.403-7; or, 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.'' The agency 
head's determination may be made at any time after the date of the 
contracting officer's final decision and shall not affect the 
Contractor's right to damages against the United States, or other 
relief provided by law, if its asserted restrictions are ultimately 
upheld.
    (h) Final disposition of appeal or suit. If the Contractor 
appeals or files suit and if, upon final disposition of the appeal 
or suit, the contracting officer's decision is--
    (1) Sustained--:
    (i) Any restrictive marking on such computer software shall be 
struck or corrected at the Contractor's expense or ignored; and,
    (ii) If the asserted restriction is found not to be 
substantially justified, the Contractor shall be liable to the 
Government for payment of the cost to the Government of reviewing 
the asserted restriction and the fees and other expenses (as defined 
in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in 
challenging the restriction, unless special circumstances would make 
such payment unjust.
    (2) Not sustained--
    (i) The Government shall be bound by the asserted restriction; 
and,
    (ii) If the challenge by the Government is found not to have 
been made in good faith, the Government shall be liable to the 
Contractor for payment of fees and other expenses (as defined in 28 
U.S.C. 2412(d)(2)(A) incurred by the Contractor in defending the 
restriction.
    (i) Flowdown. The contractor shall insert this clause in all 
contracts, purchase orders, and other similar instruments with its 
subcontractors or suppliers, at any tier, who will be furnishing 
computer software to the Government in the performance of this 
contract. The clause may not be altered other than to identify the 
appropriate parties.

(End of clause)

    23. Section 252.227-7020 is revised to read as follows:


Sec. 252.227-7020  Rights in special works.

    As prescribed in 227.405-3, 227.406(a) and 227.505(a), use the 
following clause:

RIGHTS IN SPECIAL WORKS (XXX 1994)

    (a) Applicability. The clause applies to works first created, 
generated, or produced and required to be delivered under this 
contract.
    (b) Definitions. As used in this clause:
    (1) Computer data base means a collection of data recorded in a 
form capable of being processed by a computer. The term does not 
include computer software.
    (2) Computer program means a set of instructions, rules, or 
routines recorded in a form that is capable of causing a computer to 
perform a specific operation or series of operations.
    (3) Computer software means computer programs, source code, 
source code listings, object code listings, design details, 
algorithms, processes, flow charts, formulae and related material 
that would enable the software to be reproduced, recreated, or 
recompiled. Computer software does not include computer data bases 
or computer software documentation.
    (4) Computer software documentation means owner's manuals, 
user's manuals, installation instructions, operating instructions, 
and other similar items, regardless of storage medium, that explain 
the capabilities of the computer software or provide instructions 
for using the software.
    (5) Unlimited rights means the rights to use, modify, reproduce, 
perform, display, release, or disclose a work in whole or in part, 
in any manner, and for any purpose whatsoever, and to have or 
authorize others to do to.
    (6) The term works includes computer data bases, computer 
software, or computer software documentation; literary, musical, 
choreographic, or dramatic compositions; pantomimes; pictorial, 
graphic, or sculptural compositions; motion pictures and other 
audiovisual compositions; sound recordings in any medium; or, items 
of similar nature.
    (c) License rights. (1) The Government shall have unlimited 
rights in works first produced, created, or generated and required 
to be delivered under this contract.
    (2) The contractor shall assign to the Government copyright in 
all works first produced, created, or generated and required to be 
delivered under this contract. The contractor, unless directed to 
the contrary by the contracting officer, shall place the following 
notice on such works:

``> (Year date of delivery) United States Government, as 
represented by the Secretary of (department). All rights reserved.''

For phonorecords, the ``>'' marking shall be replaced by 
a ``P''.

    (3) The contractor grants to the Government a royalty free, 
worldwide, nonexclusive, irrevocable license to reproduce, prepare 
derivative works from, distribute, perform, or display, and to have 
or authorize others to do so, the contractor's copyrighted works not 
first produced created, or generated under this contract that have 
been incorporated into the works deliverable under this contract.
    (d) Third party copyrighted data. The contractor shall not 
incorporate, without the written approval of the contracting 
officer, any copyrighted works in the works to be delivered under 
this contract unless the contractor is the copyright owner or has 
obtained for the Government the license rights necessary to perfect 
a license of the scope identified in paragraph (c)(3) of this clause 
and, prior to delivery of such works--
    (1) Has affixed to the transmittal document a statement of the 
license rights obtained; or,
    (2) For computer software, has provided a statement of the 
license rights obtained in a form acceptable to the contracting 
officer.
    (e) Indemnification. The contractor shall indemnify and save and 
hold harmless the government, against any liability, including costs 
and expenses, (1) for violation of proprietary rights, copyrights, 
or rights of privacy or publicity, arising out of the creation, 
delivery, use, modification, reproduction, release, performance, 
display, or disclosure of any works furnished under this contract, 
or (2) based upon any libelous or other unlawful matter contained in 
such works.
    (f) Government furnished information. Paragraphs (d) and (e) of 
this clause are not applicable to information furnished to the 
contractor by the Government and incorporated in the works delivered 
under this contract.

(End of clause)


252.227-7021  [Amended]

    24. Section 252.227-7021 is amended by revising the introductory 
text to read ``As prescribed in 227.405-2(a), use the following 
clause:''.


252.227-7022  [Amended]

    25. Section 252.227-7022 is amended by revising the introductory 
text to read ``As prescribed in 227.407-1(a), use the following 
clause:''.


252.227-7023  [Amended]

    26. Section 252.227-7023 is amended by revising the introductory 
text to read ``As prescribed in 227.407-1(b), use the following 
clause:''.


252.227-7024  [Amended]

    27. Section 252.227-7024 is amended by revising the introductory 
text to read ``As prescribed in 227.407-3, use the following clause:''.
    28. Section 252.227-7025 is added to read as follows:


252.227-7025  Limitations on the use or disclosure of Government 
furnished information marked with restrictive legends.

    As prescribed in 227-403-6(d) or 227.503-6(e), use the following 
clause:

LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT FURNISHED 
INFORMATION MARKED WITH RESTRICTIVE LEGENDS (XXX 1994)

    (a)(1) For contracts requiring the delivery of technical data, 
the terms limited rights and government purpose rights are defined 
in the ``Rights in Technical Data--Noncommercial Items'' clause, 
252.227-7013.
    (2) For contracts that do not require the delivery of technical 
data, the terms government purpose rights and restricted rights are 
defined in the ``Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation'' clause, 252.227-
7014.
    (3) For Small Business Innovative Research program contracts, 
the terms limited rights and restricted rights are defined in the 
clause at 252.227-7018, ``Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovative Research Programs.''
    (b) Technical data or computer software provided to the 
contractor as Government furnished information (GFI) under this 
contract may be subject to restrictions on use, modification, 
reproduction, release, performance, display, or further disclosure.
    (1) GFI marked with limited or restricted rights legends. The 
contractor shall use, modify, reproduce, perform, or display 
technical data received from the Government with limited rights 
legends or computer software received with restricted rights legends 
only in the performance of this contract. The contractor shall not, 
without the express written permission of the party whose name 
appears in the legend, release or disclose such data or software to 
any person.
    (2) GFI marked with Government purpose rights legends. The 
contractor shall use technical data or computer software received 
from the Government with Government purpose rights legends for 
Government purposes only. The contractor shall not, without the 
express written permission of the party whose name appears in the 
restrictive legend, use, modify, reproduce, release, perform, or 
display such data or software for any commercial purpose or disclose 
such data or software to a person other than its subcontractors, 
suppliers, or prospective subcontractors or suppliers, who require 
the data or software to submit offers for, or perform, contracts 
under this contract. Prior to disclosing the data or software, the 
contractor shall require the persons to whom disclosure will be made 
to complete and sign the non-disclosure agreement at DFARS 227.403-
7.
    (3) GFI marked with specially negotiated license rights legends. 
The contractor shall use, modify, reproduce, release, perform, or 
display technical data or computer software received from the 
Government with specially negotiated license legends only as 
permitted in the license. Such data or software may not be released 
or disclosed to other persons unless permitted by the license and, 
prior to release or disclosure, the intended recipient has completed 
the non-disclosure agreement at 227.403-7. The contractor shall 
modify paragraph 1.(c) of the disclosure agreement to reflect the 
recipient's obligations regarding use, modification, reproduction, 
release, performance, display, and disclosure of the data or 
software.
    (c) Indemnification and creation of third party beneficiary 
rights. The contractor agrees:
    (1) To indemnify and hold harmless the Government, its agents, 
and employees from every claim or liability, including attorneys 
fees, court costs, and expenses, arising out of, or in any way 
related to, the misuse or unauthorized modification, reproduction, 
release, performance, display, or disclosure of technical data or 
computer software received from the Government with restrictive 
legends by the contractor or any person to whom the contractor has 
released or disclosed such data or software.
    (2) That the party whose name appears on the restrictive legend, 
in addition to any other rights it may have, is a third party 
beneficiary who has the right of direct action against the 
contractor, or any person to whom the contractor has released or 
disclosed such data or software, for the unauthorized duplication, 
release, or disclosure of technical data or computer software 
subject to restrictive legends.

(END OF CLAUSE)


252.227-7026  [Amended]

    29. Section 252.227-7026 is amended by revising the introductory 
text to read ``As prescribed in 227.403-8(a), use the following 
clause:''.


252.227-7027  [Amended]

    30. Section 252.227-7027 is amended by revising the introductory 
text to read ``As prescribed in 227.403-8(b), use the following 
clause:''.
    31. Section 252.227-7028 is revised to read as follows:


252.227-7028  Technical data or computer software previously delivered 
to the Government.

    As prescribed in 227.403-6(e) or 227.503-6(f), use the following 
provision:

TECHNICAL DATA OR COMPUTER SOFTWARE PREVIOUSLY DELIVERED TO THE 
GOVERNMENT (XXX 1994)

    The offeror shall attach to its offer an identification of all 
documents or others media incorporating technical data or computer 
software it intends to deliver under this contract with other than 
unlimited rights that are identical or substantially similar to 
documents or other media that the offeror has produced for, 
delivered to, or is obligated to deliver to the Government under any 
contract or subcontract. The attachment shall identify--
    (a) The contract number under which the data or software were 
produced;
    (b) The contract number under which, and the name and address of 
the organization to whom, the data or software were most recently 
delivered or will be delivered; and
    (c) Any limitations on the Government's rights to use or 
disclose the data or software, including, when applicable, 
identification of the earliest date the limitations expire.

(End of Provision)


252.227-7029  [Removed]

    32. Section 252.227-7029 is removed and reserved.


252.227-7030  [Amended]

    33. Section 252.227-7030 is amended by revising the introductory 
text to read ``As prescribed in 227.403-6(f)(1), use the following 
clause:''.


252.227-7031  [Removed and Reserved]

    34. Section 252.227-7031 is removed and reserved.


252.227-7032  [Removed and Reserved]

    35. Section 252.227-7032 is removed and reserved.


252.227-7033  [Amended]

    36. Section 252.227-7033 is amended by revising the introductory 
text to read ``As prescribed in 227.407(c), use the following 
clause:''.

252.227-7036  [Amended]

    37. Section 252.227-7036 is amended by revising the introductory 
text to read ``As prescribed in 227.403-6(f)(2), use the following 
clause:''.


252.227-7037  [Amended]

    38. Section 252.227-7037 is amended by revising the introductory 
text to read ``As prescribed in 227.403]6(f)(3), use the following 
clause:''.

[FR Doc. 94-14321 Filed 6-17-94; 8:45 am]
BILLING CODE 3810-01-M