[Federal Register Volume 60, Number 124 (Wednesday, June 28, 1995)]
[Rules and Regulations]
[Pages 33464-33507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15251]




[[Page 33463]]

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Part II





Department of Defense





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48 CFR Parts 211, 227, and 252



Defense Federal Acquisition Regulation Supplement; Rights in Technical 
Data: Final Rule

  Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 / 
Rules and Regulations   
[[Page 33464]] 

DEPARTMENT OF DEFENSE

48 CFR Parts 211, 227, and 252

[Defense Acquisition Circular (DAC) 91-8]


Defense Federal Acquisition Regulation Supplement; Rights in 
Technical Data

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: A proposed rule prescribing the final technical data 
regulations required by 10 U.S.C. 2320, Rights in Technical Data, was 
published in the Federal Register on June 20, 1994. Public comments 
were solicited. This final rule amends the Defense Federal Acquisition 
Regulation Supplement to prescribe those regulations. It includes 
changes to the proposed rule necessitated by the Federal Acquisition 
Streamlining Act of 1994 and changes made in response to public 
comments.

DATES: Effective Date: This rule is effective June 30, 1995.
    Applicability Date: This rule is applicable for solicitations 
issued on or after September 29, 1995.

FOR FURTHER INFORMATION CONTACT:
Ms. Angelena Moy, OUSD(A&T)DDP/MPI, Room 3E144, The Pentagon, 
Washington, DC 20301-3060, Telephone 703-604-5875. Please cite DAR Case 
91-312.

SUPPLEMENTARY INFORMATION: 

A. Background

    A total of 286 comments were received from 43 commentors. Each 
comment was analyzed and, in some cases, the comments are incorporated 
in this final rule. Approximately 75% of the comments fell into 
fourteen general topic areas. The analysis and disposition of those 
comments, and a description of other changes made as a result of law or 
public comment, follow (Note: The DFARS subparts numbered as 227.4 and 
227.5 in the proposed rule published on June 20, 1994, have been 
renumbered to 227.71 and 227.72, respectively, in this final rule):

1. Government Purpose/Government Purpose Rights

    Forty comments address these topics.
(a) Government Purpose
    Several commentors suggested narrowing the definition of government 
purposes to U.S. Government contracts. One suggested expanding the 
definition to include the acquisition of replenishment parts, repair, 
and maintenance by third parties. These changes are not adopted. A more 
narrow definition of government purpose ignores U.S. Government 
international responsibilities and foreign government or international 
organization development contributions made under cooperative 
agreements. The suggested expanded definition inappropriately converts 
third party commercial transactions to government purposes.
(b) Government Purpose Rights
    (i) Time period. Some commentors suggested the five year 
exclusivity period is too short, should be measured from contract or 
subcontract payment, closure, or completion rather than award, and 
there is no need for the government to obtain unlimited rights in mixed 
funded data upon expiration of the exclusivity period. One commentor 
suggested the final rule should require negotiations in mixed funded 
situations. Those comments are not adopted. As several commentors 
observed, the five year exclusivity period is not mandatory. Paragraphs 
227.7103-5(b) and 227.7203-5(b) identify that period as a nominal 
period and describe the circumstances under which longer periods should 
be negotiated. A limited exclusivity period balances the private and 
public development contributions by providing the private developer the 
sole opportunity to use the data for commercial purposes for a private 
developer the sole opportunity to use the data for commercial purposes 
for a specified time while assuring that all persons will have the 
opportunity to use the data for commercial purposes within a reasonable 
time.
    (ii) Extent of development contribution. Several commentors 
observed that a contractor could restrict the availability of data for 
commercial purposes by making a minimal development contribution. Some 
suggested requiring a 50% contractor contribution as the basis for a 
government purpose rights license. Conversely, one commentor observed 
that an insignificant government contribution would enable the 
government to obtain a government purpose rights license in an 
otherwise private expense development. A commentor proposed an 
incentive formula which would link the period of a government purpose 
rights license to the funding contributed by the developer. These 
comments are not accepted. Generally, the Government will obtain a 
government purpose license when the private and government development 
contributions cannot be segregated (when costs are segregable, the 
developer may provide data or software developed exclusively at private 
expense with appropriate restrictions). It would be unnecessarily 
burdensome and extremely impracticable to attempt to measure the exact 
contribution by each party when development costs cannot be segregated. 
The suggested incentive formula raises similar problems. Each 
government purpose rights license must display an expiration date after 
which any applicable restrictions do not apply. That marking must 
appear on the data or software when they are delivered. But, late 
charges or other accounting corrections reported after data delivery 
might change the expiration date derived by the proposed formula 
resulting in copies of the same data marked with different expiration 
dates.

2. Indirect Cost Treatment

    Twenty-four comments addressed this topic. Several commentors 
expressed concern that developers will use creative techniques, 
manipulate accounting systems, or find ``loopholes'' to restrict the 
Government's ability to make technical data available for reprocurement 
purposes. Such cost accounting practices would be inconsistent with the 
cost principles in FAR Part 31 and the cost accounting standards in FAR 
Appendix B. Therefore, the proposed regulations have not been changed 
to accommodate those concerns. Two commentors suggested that developers 
might restrict the Government's rights in data and, consequently, the 
amount of data available to the developers' potential competitors, by 
charging manufacturing and production engineering costs to indirect 
cost accounts. Manufacturing and production engineering costs that can 
be identified with a particular final cost objective are direct costs 
and cannot be allocated to indirect cost accounts. Although FAR 31.202 
permits an exception for a direct cost of minor dollar amount, that 
exception must be consistently applied to all final cost objectives and 
produce substantially the same result as treating the cost as a direct 
cost.
    A commentor suggests all contracts have indirect cost allocations 
and, consequently, the Government's rights in data will be affected. 
The comment overlooks the fact that the definition of ``developed at 
private expense'' deals only with development costs. The allocation of 
officers' salaries, guard services, employee benefits, or similar 
expenses will not affect the allocation of data rights.
    Another commentor suggests establishing a government participation 
threshold. Indirect development costs (excluding independent research 
and [[Page 33465]] development and bid or proposal costs) charged in 
excess of the threshold would be considered mixed funding. The 
suggestion is not practicable. There is no basis for equitably 
estimating the government participation threshold prior to contract 
award. Burdensome accounting and audit surveillance procedures would be 
required to determine which item or items, and consequently data 
rights, were affected by the over threshold contribution.

3. Commercial Items

    Twenty-two comments addressed this topic. A commentor suggests the 
proposed ``Technical Data--Commercial Items'' clause (252.227-7015) 
limits the data that DoD can acquire for commercial items and presumes 
that commercial items were developed at private expense. The clause in 
the proposed rule did neither but has been modified to provide that 
presumption as required by the Federal Acquisition Streamlining Act of 
1994.
    A commentor suggests modifying the clause to permit disclosure of 
commercial data to third parties so that those persons might operate or 
maintain the commercial item and contends that 227.7102-1(a)(1) 
prohibits DoD from acquiring technical data needed for rework and spare 
parts replacement. The suggestion and comment are not adopted. 
Paragraph 227.7102-1(a)(1) does not prohibit the acquisition of rework 
data. Disclosure to third parties might jeopardize a contractor's 
financial interest in its product and, therefore, is inconsistent with 
DoD policy to encourage contractors to offer commercial products to 
satisfy DoD requirements. However, DoD may negotiate to acquire the 
rights to do so under 252.227-7015(c). The commentor also suggests the 
definition of commercial items is too broad. The definition of 
commercial items has been modified to reflect the definition contained 
in the Federal Acquisition Streamlining Act of 1994. Several commentors 
suggest modifying 227.7102 to clarify that the restrictions in 
paragraph 227.7102-2(a) do not apply when the Government's data rights 
are not restricted. They also suggest modifying 252.227-7015(b)(1) to 
conform with 10 U.S.C. 2320 which does not permit a contractor to 
restrict the Government's rights in data necessary for operation, 
maintenance, installation, or training. The suggestions are adopted.
    One commentor suggests the license rights granted the Government by 
the clause at 252.227-7015 are inconsistent with those granted to 
commercial customers. The suggestion is not adopted. Rights under that 
clause are consistent with 10 U.S.C. 2320.
    A commentor suggests substituting ``written'' for ``express'' in 
227.7102-2(a) to provide a substantive record. The suggestion is 
adopted. The commentor's suggestion to conform the last sentence in 
227.7102-2(b) with corresponding language in the clause at 252.227-7015 
is partially adopted. That commentor's suggestions to: (i) add a new 
paragraph 227.7102-2(c) to require contractors subject to the clause at 
252.227-7013 to use the clause at 252.227-7015 in its contracts with 
subcontractors or suppliers furnishing technical data for commercial 
items is partially adopted by modifying 252.227-7013(k); (ii) include 
``components'' in 227.7102-3 and make editorial changes to 252.227-
7015(a)(1) and (b)(1)(i) are adopted; (iii) expand the restriction in 
252.227-7015(b)(2)(i) is partially adopted; (iv) limit form, fit, and 
function data to data describing the commercial end unit is 
inconsistent with the commentor's suggestion to include ``components'' 
in 227.7102-3 and consequently not adopted; (v) require written 
permission prior to a release, disclosure, or authorized use of 
technical data for emergency repair or overhaul is not adopted because 
it is impracticable in emergency situations; and, (vi) delete 252.227-
7015(c) is not adopted because the paragraph, which permits the parties 
to negotiate suitable license rights, is consistent with commercial 
practice.

4. Markings

    Eighteen comments addressed this topic. Several commenters 
suggested that the marking provisions at 252.227-7013 and 252.227-7014 
are mandatory, overly complex, and burdensome. One commentor 
recommended replacing the prescribed markings with a single, simplified 
marking that would appear only on the ``first page of the technical 
data or computer software.'' Other commentors also questioned the need 
to mark the portions of a page of printed material containing technical 
data or computer software for which restrictions are asserted.
    Marking is not mandatory but contractors must mark when they desire 
to restrict the Government's rights to use, modify, reproduce, release, 
perform, display, or disclose data or software. Such markings are 
commonly used in commercial practice to protract proprietary data or 
trade secrets. The suggested simplified marking, which would be placed 
only on the first page of printed material is not practicable because 
it would unnecessarily restrict release or disclosure of unrestricted 
information submitted with the restricted information.
    A commentor suggests the clause at 252.227-7014 will require 
commercial software manufacturers to place government markings on such 
software and 227.7203-10(c) will result in the Government's obtaining 
unlimited rights in unmarked commercial computer software. Neither the 
clause at 252.227-7014 nor paragraph 227.7203-10(c) apply to commercial 
computer software. However, if a contractor intends to satisfy a 
government requirement for noncommercial computer software with 
derivative software created by integrating commercial computer software 
with computer software developed with Government funds under a contract 
that contains the clause at 252.227-7014, the contractor might consider 
using a marking authorized by 252.227-7014, or a marking agreed to by 
the contracting officer, to protect its commercial interests in the 
derivative software.
    One commentor suggests the requirement to mark each page of 
technical data deliverable with less than unlimited rights will reduce 
the amount of useful information that might be displayed on a page. 
Marking each page enhances protection of the contractor's data. That 
commentor also suggests that the prohibition on marking non-commercial 
computer software with legends that might interfere with or delay the 
operation of the software places the contractor in an untenable 
position regarding protection of its software rights. As expressed in 
227.7203-10(b)(1), the prohibition was intended only for non-commercial 
computer software that will or might be used in combat situations or 
under conditions that simulate combat situations. Therefore, 252.227-
701(f)(1) has been modified accordingly.
    Two commentors suggest the marking procedures will be unworkable in 
digital environments. They also suggest that data might not be 
protected adequately in a digital environment because the markings 
might be extracted from the data or not seen by the user. Those 
comments are not accepted. However, 252.227-7013(f)(1) and 252.227-
7014(f)(1) have been changed to clarify markings when such data are 
transmitted. Extractable markings are not unique to the digital 
environment and contractors have appropriate forums for redress if 
their data or software are improperly used, released, or disclosed.
    A suggestion to add ``subcontractor/supplier'' to each legend is 
not adopted. The first sentence of 252.227-7013(f) clearly covers 
subcontractors and suppliers. [[Page 33466]] 
    A commentor suggests changing the phrase ``correction or cancel'' 
in 252.227-7013(h)(1) to ``correct or strike''. That suggestion is 
adopted. The commentor's suggestion to modify that paragraph by 
providing the Government the unilateral right to correct or strike 
nonconforming markings when it is impracticable to return technical 
data to the contractor is not adopted. The Government has that right 
under (h)(1) for unjustified markings and (h)(2) for nonconforming 
markings.
    A commentor suggests modifying 227.7103-12(a)(2) to require 
contracting officers to go through the validation process before 
striking a nonconforming markings. The suggestion is not adopted. The 
validation procedures in 252.227-7037 are intended to resolve questions 
concerning asserted restrictions. The nonconforming marking procedures 
address only the proper format for a marking.
    A commentor's suggested editorial changes to 227.7103-10(b)(2) and 
227.7203-10(b) are considered unnecessary.

5. Competition

    Sixteen comments addressed competition. Most did not comment on 
specific portions of the regulations. One commentor recommended 
retaining the 1988 interim rule. That recommendation is not adopted. 
One commentor suggests that 227.7103-1(e) conflicts with 227.7103-
2(b)(1) and the Competition in contracting Act (CICA). The suggestion 
is not adopted. The policy in 227.7103-1(e) expresses requirements 
under 10 U.S.C. 2305 for major weapon systems and generally protects 
private expense development. It does not conflict with either 227.7103-
2(b)(1) or CICA.

6. License Rights

    Fifteen comments addressed license rights generally. A commentor 
suggests including ``release'' or ``disclose'' in 227.7102-2 is 
confusing because those terms were traditionally used in connection 
with persons outside the government. The context in which the terms are 
used is clear and changes are not necessary.
    A commentor suggests requiring a written justification requiring 
approval at a level above the contracting officer if the Government 
wants to acquire rights not conveyed under licenses customarily 
provided to the public. The suggestion is not adopted. Existing 
procedures for determining the Government's needs are adequate.
    A commentor suggests all technical data and computer software 
should be delivered under a license that provides government purpose 
rights for 5 years after which the data or software would be available 
with unlimited, government purpose, limited, or restricted rights as 
applicable. The suggestion is inconsistent with statutory requirements 
and not adopted.
    A commentor suggests the provisions permitting negotiated licenses 
might preclude award without discussions, reduce opportunities to use 
sealed bidding procedures, and extend acquisition lead times. The 
comments are not adopted. If the Government knows it will require 
nonstandard license rights it might not be in a position to use sealed 
bidding procedures. When using other contracting methods, award without 
discussions is not precluded if the Government's requirements are 
articulated in the solicitation and responsive offers are received from 
responsible offerors.
    A commentor suggests the basis for allocating data rights is 
acceptable if it is clear that government rights are conveyed by a 
license granted by the data creator. No change is required.
    A commentor suggests that, although not improper, permitting third 
parties to have access to and modify noncommercial computer software 
will act as a disincentive to the private development of software 
intended only for the Government. The comment is not adopted. The 
clause at 252.227-7014 permits the Government, in a narrow range of 
circumstances and subject to considerable constraints, to have support 
service contractors modify computer software delivered with restricted 
rights. Two of the permitted circumstances deal with military 
exigencies. The other two circumstances reflect maintenance needs when 
the Government's rights are restricted in only a portion of the 
deliverable software.
    A commentor suggests two changes to 227.7103-5(d)(1) that are 
intended to clarify the role of subcontractors when special license 
rights are negotiated and a change to 227.7103-5(d)(2) to identify the 
negotiation of long term reprocurement spare parts pricing agreements 
as an alternative to negotiating for additional rights in limited 
rights data. The clarifications are not necessary. The term 
``contractor'' is defined to include subcontractors and suppliers at 
any tier and 227.7103-5 and the clause at 252.227-7013 make it clear 
that the prime contractor might not be the data owner or licensor. The 
suggested change to 227.7103-5(d)(2) is inconsistent with the 
circumstances under which negotiations for additional rights are 
permitted. The commentor also suggests modifying 252.227-7013(b)(4) to 
clarify the role of subcontractors when negotiating special license 
rights. For the reasons discussed above, the comment is not adopted.
    A commentor suggests modifying 227.7103-4(a)(1) to include the full 
listing of government rights. The modification is not necessary. The 
commentor also suggests expanding 227.7103-4(a)(2) to match the scope 
of 252.227-7013(b)(1)(ii) and (iii). The suggestion is not adopted. The 
situation covered in 252.227-7013(b)(1)(ii) is addressed in 227.7103-
4(a)(1). The example in 227.7103-4(a)(2) applies to 252.227-
7013(b)(1)(iii) only.

7. Elimination of the ``Required for Performance Criterion''

    Fourteen comments addressed elimination of the required for 
performance criterion. DoD's 1988 regulations grant the Government 
unlimited rights in technical data pertaining to items, components, or 
processes developed at private expense if development was required for 
the performance of a government contract or subcontract. Seven 
commentors, submitted essentially identical comments suggesting that 
data resulting from development of a defense end product should not be 
the property of an original equipment manufacturer. Two commentors 
suggest eliminating the required for performance criterion will result 
in less data available without restrictions. In a similar comment, a 
commentor suggests that eliminating the ``required for performance'' 
criterion will reduce competition. Four comments were received from the 
American Bar Association, the Council of Government Relations, the 
Integrated Dual-Use Commercial companies, and a large manufacturer 
supporting the policies contained in the proposed rule. The suggestions 
to retain the criterion are not adopted. DoD believes that the 
criterion should be eliminated to protect private expense development, 
encourage developers of new technologies or products, many of whom are 
small businesses, to offer their products to the Government, encourage 
dual use development, and balance the interests of data users and data 
developers.

8. Computer Software

    Thirteen comments addressed computer software. Three commentors 
suggest the definition of ``commercial computer software'' is too 
broad. One also suggests that the definition's broad scope will make it 
difficult to understand and interpret and contractors will be able to 
restrict the [[Page 33467]] Government's rights in software developed 
exclusively at Government expense by satisfying one of the criteria 
that define commercial computer software. Those suggestions are not 
adopted. The definition of commercial computer software has been 
modified to reflect requirements in the Federal Acquisition 
Streamlining Act of 1994. The Government will not lose rights obtained 
in software developed at government expense if that software 
subsequently qualifies as commercial computer software. That situation 
is covered by 252.227-7014(b)(5) and (c).
    Two commentors suggest GSA should amend its rules to permit these 
regulations to apply to DoD procurements under GSA schedule contracts. 
That suggestion cannot be accommodated in these DoD specific 
regulations.
    Two commentors suggest the criterion for determining whether 
software is commercial should be the source of development funds rather 
than the market for which the software was developed. That suggestion 
is not consistent with the thrust of the Federal Acquisition 
Streamlining Act of 1994.
    A commentor suggests there may be a conflict between the definition 
of commercial computer software, which might include software developed 
with Government funds, and the policy in 227.7202-1(a) to acquire 
commercial computer software and documentation under the licenses 
customarily provided to the public. If Government funds are used to 
develop software or documentation, the development contract will 
determine the Government's rights in that software or documentation. 
Those rights are protected if the software subsequently qualifies as 
commercial software. The commentor expresses concern that when both 
commercial and noncommercial software are deliverable under a contract, 
the requirements in 252.227-7014 will be applied to the commercial 
software. That result is not intended. The clause title, ``Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation'', clearly indicates that the clause is not applicable to 
commercial software or documentation. The commentor's suggestion to 
define commercial computer software documentation in terms of 
development at private expense is unnecessary and not adopted. The 
commentor also suggest modifying 227.7202-1(c)(1) to limit the 
paragraph's scope to modifications made at Government expense. The 
suggestion is partially adopted and a corresponding change made to 
227.7102-1(a)(3). The commentor observes that throughout 227.7203 the 
terms computer software and computer software documentation are used 
without the modifier ``noncommercial.'' Generally, the modifier is not 
necessary because that paragraph only applies to noncommercial software 
or documentation. Where it is used, it is intended to provide 
additional, specific emphasis.
    Two commentors suggest it might be inappropriate for the Government 
to obtain unlimited rights in all noncommercial computer software 
documentation required to be delivered under a contract. Computer 
software documentation is technical data. It is defined narrowly to 
include only owner's manuals, user's manuals, installation 
instructions, operating instructions, and similar items that explain 
the capabilities of computer software or provide instructions for using 
the software. Such data is necessary for operation, maintenance, 
installation, or training. Consequently, under 10 U.S.C. 2320, a 
contractor may not restrict the Government's rights to release or 
disclose such data or to permit others to use the data.
    A commentor states that the definition of restricted rights in 
252.227-7014(a)(14)(i) might not provide sufficient latitude to use 
software programs in military situations such as ``the engine control 
aboard a fleet of aircraft.'' When the Government has a requirement to 
time share a program or have the program accessed by more than one 
terminal or central processing unit at a time, the requirement must be 
identified in the acquisition contract to permit proper program design 
and pricing. Therefore, the comment is not adopted.
    A commentor suggests revising the definition of computer software 
in 252.211-7012 and 252.227-7013 by substituting ``computer program'' 
for ``software'' in the phrase ``...and related material that would 
enable the software to be reproduced, recreated, or recompiled.'' The 
suggestion is not adopted. Computer programs are not the only software 
that can be reproduced, recreated, or recompiled.

9. Identification of Asserted Restrictions

    Tweleve comments dealt with this topic. A commentor suggests 
modifying 252.227-7013(e) to make it clear that a failure to identify 
data that will be delivered with restricted rights does not prevent a 
contractor from asserting restrictions relevant to that data and 
contracting officers should be required to add data items to the list 
of data in which restrictions are asserted until the Government has 
successfully challenged an assertion. Another contractor also suggested 
the mandatory listing of subsequent assertions. The suggestions are not 
adopted. The paragraph prevents delivery of such data but does not 
affect a contractor's right to assert restrictions. The constraints in 
252.227-7013(e) are intended to discourage deliberate commissions that 
might affect source selection decisions.
    A commentor suggests not requiring an identification of the item, 
component, or process. The suggestion is not adopted because the source 
of funds used to develop an item, component, or process generally 
determines whether a contractor may assert restrictions on the 
Government's rights in the data pertaining to the it4ems, components, 
or processes.
    A commentor suggests deleting the statement in 227.7103-10(a)(5) 
that information provided in response to the provision at 252.227-7017 
may be used in the source selection processes because it is 
inconsistent with the portions of the regulation prohibiting the 
Government from requiring contractors to relinquish data rights in 
order to obtain a contract and modifying the solicitation provision 
accordingly. Another commentor suggested modifying 252.227-7013(e)(3) 
because the source selection constraint is inconsistent with 10 U.S.C. 
2320(a)(2)(F). Those suggestions are not adopted. Considering data 
rights during the source selection process is neither inconsistent with 
the policy expressed in the regulations nor the requirements of 10 
U.S.C. 2320(a).
    A commentor suggested editorial changes in the format of the 
Attachment including a statement that the explanatory notes need not be 
repeated on the attachment. The suggestions are not adopted. Paragraph 
(e)(3) requires only an identification of the technical data.
    A commentor suggests modifying 252.227-7017(b) by replacing 
``notification and identification'' with ``identification and 
assertion.'' The suggestion is adopted. The commentor also suggests 
adding the phrase ``and after request by the contracting officer'' 
following the word ``offer'' in 252.227-7017(e) and adding a new 
paragraph at the end of 252.227-7017 that would provide for post award 
assertions. The suggestions are not adopted. The addition to 252.227-
7017(e) is not necessary and post award assertions are addressed in the 
clause at 252.227-7013.

[[Page 33468]]

10. Unlimited Rights

    Eleven comments dealt with this topic. A commentor suggests the 
Government have unlimited rights in technical data only when work was 
exclusively funded with direct Government contract funds. The 
suggestion is inconsistent with 10 U.S.C. 2320 and not adopted.
    A commentor suggests that the term ``publicly available'' in 
252.227-7014(b)(1)(iv) and 227.7203-5(a)(4) might provide the 
Government unlimited rights in commercial computer software. The 
suggestion is not adopted. Those portions of the regulations only apply 
to non-commercial computer software.
    A commentor expresses concern that 252.227-7013(b)(1)(ii) might 
provide the Government unlimited rights in third party material. The 
third party copyright owner is not required to grant a license. 
Paragraph 252.227-7013(d) prohibits the use of third party copyrighted 
data in deliverable technical data unless the contracting officer's 
approval to do so has been obtained and the contractor has obtained 
from the copyright owner a license of appropriate scope.
    A commentor suggests expanding 227.7103-5(a)(3) to provide 
unlimited rights in all data created exclusively with government funds 
whether or not the contract requires development, manufacture, 
construction, or production of items, components, or processes. For 
technical data that pertain to items or processes, the suggestion is 
inconsistent with 10 U.S.C. 2320 and, consequently, not adopted.
    A commentor suggests that government purpose rights convey all 
rights needed by the Government and unlimited rights should be 
eliminated because they have an adverse affect on businesses, including 
small businesses, that are data or software creators. The suggestion is 
not adopted. When the taxpayer exclusively funds development of an item 
or process, it is difficult to appreciate the suggested adverse affect 
on data or software creators.
    A commentor suggests that there is no affirmative guidance 
encouraging contractors to commercialize technology it develops with 
federal funds. The contractor also suggests that when the Government 
has unlimited rights in technical data or computer software, the data 
or software might be lost to foreign competition. The suggestions are 
not adopted. Many other commentors observed that opportunities to 
commercialize federally funded technologies are maximized when the 
Government has unlimited rights in technical data. The fact that data 
or software might be available, if otherwise properly releasable, to 
foreign governments, foreign nationals, or international organizations 
does not diminish domestic commercialization opportunities.
    A commentor suggests modifying 227.7103-5(a)(2) and 252.227-
7013(b)(1)(ii) to permit the Government to obtain unlimited rights in 
the identified data only when the data will be developed exclusively 
with Government funds. The suggestions are not adopted. Those 
paragraphs provide the Government unlimited rights in studies, 
analyses, test data, or similar data produced in the performance of a 
contract and specified as an element of performance. The ``produced 
in'' and ``specified as'' criteria clearly indicate that the Government 
intends to exclusively fund development of the data. The commenter 
suggests 227.7103-5(a)(3) and 227.7103-5(b)(1)(ii) are not clear 
because they convey rights based upon specific contractual situations. 
The suggestion is not adopted. Except for 227.7103-5(a)(1) and 
227.7103(b)(1)(i), all other circumstances in which the Government will 
be granted unlimited or government purpose rights address specific 
situations or types of data. The commentor also recommends deleting 
227.7103-5(a)(9). The recommendation is not adopted. When restrictions 
on the Government's rights have expired, the Government has unlimited 
rights in the data.
    A commentor recommends changing 227.7103-4(b) to permit a 
contractor to assert limited rights in data that otherwise qualify for 
unlimited rights. The recommendation is not adopted. It is inconsistent 
with 10 U.S.C. 2320 and would result in unnecessary, burdensome, and 
costly data challenges.

11. Use and Non-disclosure Agreements

    Ten comments were received in this area. A commentor suggests the 
indemnification liabilities under 252.227-7025 should be shifted from 
the contractor who has been provided the information to the third party 
who has improperly used, released, or disclosed the information. The 
suggestion is not adopted. The contractor faces similar liabilities in 
nongovernmental transactions.
    A commentor suggests: (i) The requirement at 227.7103-5(b)(4)(i) to 
provide prior notification, other than in emergency situations, of an 
intended release or disclosure of its limited rights data is not 
necessary; (ii) the format prescribed at 227.7103-7(c) for non-
disclosure agreements is not appropriate for foreign governments; (iii) 
a contractor's permission should not be required to release or disclose 
limited rights data; (iv) deleting the requirements at 227.7103-16 and 
227.7203-16 for foreign governments, foreign contractors, and 
international organizations to have executed a use and non-disclosure 
agreement containing the provisions included in 227.7103-7(c), and the 
requirements in 252.227-7013 satisfied, prior to a release or 
disclosure to a foreign entity; (v) it is impossible for contractors 
needing access to the major data bases to notify all persons asserting 
restrictions; (vi) in 227.7103-7(c)(8), the specific ending date for 
the non-disclosure agreement should be replaced with ``at such time as 
the data are no longer required for the performance of work under the 
contract, the contract is completed or terminated, or access is 
terminated for cause.''; and, (vii) the clause at 252.227-7025 should 
be expanded to require contractors to sign any non-disclosure agreement 
that is required by a Government agency. The suggestions are not 
adopted. The reasons are keyed to the comment number: (i) The 
Government, with two exceptions, is required by 10 U.S.C. 2320 to 
obtain a contractor's permission prior to releasing or disclosing the 
contractor's limited rights data. Except in emergency situations, there 
is no logical reason to not provide prior notification of an intended 
release of limited rights data; (ii) 227.7103-16 permits the use of the 
non-disclosure agreements with foreign governments, foreign 
contractors, or international organizations that are not in the 
prescribed format; (iii) The suggestion is inconsistent with 10 U.S.C. 
2320; (iv) The suggested revisions to 227.7103-16(b) and 227.7203-16(b) 
do not adequately address constraints on the recipient regarding 
further release or disclosure of information in which the U.S. 
Government has limited rights in data or restricted rights in software; 
(v) Paragraph (a) of the prescribed non-disclosure agreement requires a 
contractor to specifically identify the data it needs. If the 
Government agrees to provide that data, it is listed in an attachment 
to the agreement. Therefor, the notification requirements in paragraphs 
(b) and (c) should not be difficult to comply with. Furthermore, 
information provided to the Government with asserted restrictions 
should not be included in a generally accessible database. Such data 
must be protected in accordance with 252.227-7013, 252.227-7014, and 
252.227-7018; (vi) The prescribed non-disclosure 
[[Page 33469]] agreement is not limited to contracts but covers all 
requests for data or software in which restrictions have been asserted; 
and, (vii) The clause at 252.227-7025 addresses government furnished 
information that will be provided to a contractor for performance of a 
specific contract. These regulations should not address agency peculiar 
requirements or technical data that does not pertain to items, 
components, or processes developed for the U.S. Government.
    A commentor suggests the requirement at 227.7103-7(c)(8) to destroy 
the data covered by a non-disclosure agreement does not provide 
adequate flexibility. The comment is not adopted. Destroying the data 
avoids packaging and shipping costs and significantly reduces the 
possibility of an inadvertent unauthorized release or disclosure.
    A commentor suggests that the notification requirement in 227.7103-
7(c)(1) gives the item manufacturer a competitive advantage by making 
the manufacturer aware of competitive requirements and its potential 
competitor's identity. The suggestion is not adopted. The notification 
requirement applies only to limited rights data. Such data cannot be 
used for competitive purposes without the owner's or licensor's 
permission.
    A commentor suggests modifying 227.7103-7(c)(1)(b) by replacing 
``Contractor'' with ``owner of the data'' and making the Government 
rather than the recipient responsible for notification. The suggestions 
are not adopted. The term ``owner'' does not include a licensor. As 
used in the agreement, 227.7103-7(c)(1)(a), the term ``Contractor'' 
refers to the person whose name appears on the restrictive legend. The 
recipient's notification supplements the Government's notification. It 
gives the person asserting limited rights additional information that 
person might need to monitor the subsequent use, release, or disclosure 
of its data.

12. Effect on Older Systems Through Upgrades

    Eight commentors addressed this topic. Seven submitted essentially 
identical suggestions that the spare parts market might be affected 
because these regulations will apply to upgrades or enhancements of 
existing systems. One suggested that minor revisions to manufacturing 
processes charged as indirect expense would prevent alternate sources 
from competing. The suggestions are not adopted. Contractors are 
required to allocate expenses in a consistent manner. FAR 31.203(a) 
does not permit an indirect cost allocation ``* * * if other costs 
incurred for the same purpose in like circumstances have been included 
as a direct cost of that or any other final cost objective.''

13. Policy

    Nine comments addressed this topic. A commentor suggests modifying 
227.7102-1(a) to permit the acquisition of the data and rights 
necessary to satisfy agency needs. The suggestion is not adopted. The 
concept is covered in 252.227-7015(c) and 227.7102-2(b). The commentor 
also suggests modifying 227.7103-1(e) to indicate that the Government 
may request a contractor to sell data rights. The suggestion is not 
adopted. The concept is addressed in 252.227-7013(b)(3)(iii), (b)(4), 
227.7103-5, and 227.7103-5(d)(2).
    A commentor suggests modifying 227.7103-1 and 227.7203-1 to 
encourage contractors to identify more cost efficient alternatives to 
the Government's proposed data rights requirements, require 
solicitations to include as much information regarding the Government's 
needs for technical data rights as is practicable, and require 
resolution of all requirements, restrictions, and limitations prior to 
contract award. Most of the suggestions are embodied in this final 
rule. If the Government needs data rights that differ from the standard 
license rights conveyed by the contract, it must negotiate for those 
rights. But, it often is impracticable to require a resolution of all 
restrictions on the Government's right prior to contract award. Most 
items, processes, or software will not be developed at that time and, 
consequently, rights in the pertinent technical data or computer 
software are not determinable completely. The justification and 
challenge process required by 10 U.S.C. 2321 will, in many cases, 
preclude an early resolution of restrictions.
    Two commentors, in essentially identical comments, contend the 
requirement in 227.7103-1(b)(2) is vague and suggest an alternative. 
The suggestion is not adopted. The requirement is clear. But, 
procedures and specific criteria must vary to accommodate the 
particular contracting situation. Consequently, the regulations should 
not provide greater specificity.
    A commentor suggests modifying 227.7103-1(e) because it believes 
the paragraph conflicts with 227.7103-2(b)(1) and adding ``and 
associated life cycle costs'' at the end of the first sentence in 
227.7103-2(b)(1). The paragraphs do not conflict and the comment is not 
adopted. Proposals that would enable the Government to acquire 
competitively items identical to items developed at private expense 
would entail significantly more detailed information than form, fit, or 
function data. Generally, form, fit, or function data will produce 
functionally equivalent but not identical items. The suggested 
additional language is not necessary. The concept is addressed within 
the paragraph. The commentor also suggests that these regulations do 
not address the Government's ability to evaluate data rights during the 
source selection process. The suggestion is not adopted. The concept is 
addressed at 227.7103-10(a)(5).

14. Validation of Asserted Restrictions

    Eight comments addressed this topic. A commentor objects to the 
requirement to issue a contracting officer's final decision when an 
asserted restriction has been justified. Section 2321(f)(1) of Title 10 
U.S.C. requires contracting officers to issue a decision when a 
contractor fails to submit a justification for an asserted restriction. 
Section (f)(2) requires a contracting officer's decision within sixty 
days following receipt of any submitted justification.
    A commentor suggests modifying 227.7103-13(a) and 227.7203-13(a) to 
require contracting officers, when using provisioning procedures to 
acquire replenishment parts, to carefully examine during the challenge 
period the need to initiate challenge and validation procedures. The 
suggestion is not adopted. Adequate procedures are contained in 
227.7103-13(c) and 227.7203-13(d).
    A commentor's suggestions to modify 227.7103-13(c)(2)(i) by 
replacing the phrase ``determine the validity of the assertion'' with 
``ascertain the basis of the restrictive markings'' and modify 
227.7103-13(c)(2)(ii) by adding ``any other available information 
pertaining to the validity of a restrictive marking'' are adopted.

15. Typographical and Editorial Comments

    A commentor identified several typographical errors and recommended 
some minor editorial changes. The typographical errors have been 
corrected and some of the editorial recommendations adopted. The 
recommended change to 227.7103-10(a) is not adopted because there might 
be more than one successful offer. The recommendation to reverse the 
order of the second and third sentences in 227.7103-12(a)(1) is not 
adopted. The existing second sentence conveys emphasis the 
recommendation lacks. The comment regarding the reference to 227.7103-
13 within 227.7203-13(d)(2) ignores the fact that computer software 
[[Page 33470]] documentation is technical data. The reference is 
appropriate because technical data challenge and validation procedures 
are in 227.7103-13.

16. Changes Required by Statute

(a) Subpart 227.71
    The Federal Acquisition Streamlining Act of 1994 defines commercial 
items, modifies 10 U.S.C. 2320(b) to provide a presumption of 
development at private expense for commercial items, and adds a new 
subsection (f) to 10 U.S.C. 2321 that, under contracts for commercial 
items, requires a contracting officer to presume private expense 
development whether or not the contractor submits a justification in 
response to a challenge notice. The subsection also provides that 
challenges under contracts for commercial can be sustained only if 
information provided by the Department of Defense demonstrates that the 
item was not developed exclusively at private expense. The clause at 
252.227-7037 has been modified accordingly and corresponding changes 
made to 227.7102-2.
(b) Subpart 211.70
    A process action team has been formed to draft FAR implementation 
of the Federal Acquisition Streamlining Act's commercial products 
provisions. Therefore, the changes to Subpart 211.70 contemplated by 
the proposed rule, other than deletion of the DFARS 211 technical data 
provisions, will not be made.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. applies to 
this final rule and a Final Regulatory Flexibility Analysis has been 
performed. A copy of the Analysis may be obtained from Ms. Angelena 
Moy, OUSD(A&T)DDP/MPI, Room 3E144, The Pentagon, Washington, DC 20301-
3060 (telephone 703-604-5875, facsimile 703-604-6709).

C. Paperwork Reduction Act

    The Office of Management and Budget has approved the information 
collection requirements associated with Subparts 227.71 and 227.72 
through September 30, 1995 (OMB Control Number 0704-0369).
    Defense Acquisition Circular (DAC) 91-8 amends the Defense FAR 
Supplement (DFARS) 1991 edition. The amendments are summarized as 
follows:

Item I--Rights In Technical Data And Computer Software

    This final rule revises the existing DFARS guidance on rights in 
technical data, and adds new guidance on rights in computer software 
and computer software documentation. The following is a summary and 
explanation of the regulatory changes contained in this final rule.

1. Rights in Technical Data

a. General
    DFARS Subpart 227.4, Rights in Data and Copyrights, is deleted and 
replaced with Subpart 227.71, Rights in Technical Data. The 
Government's rights are identified as specific, non-exclusive license 
rights. All rights not granted the Government are retained by the 
contractor.
b. Commercial Items or Processes
    (1) Section 227.7102 provides guidance on the acquisition of 
technical data pertaining to commercial items, components, or 
processes. For data rights purposes, the term ``commercial item'' is 
defined in the clause at 252.227-7015, Technical Data--Commercial 
Items. The definition is consistent with Section 8001 of the Federal 
Acquisition Streamlining Act of 1994 (Pub. L. 103-355), but 
specifically excludes computer software. Under 10 U.S.C. 2320, 
contractors may not restrict the Government's rights in certain 
technical data pertaining to items or processes developed at private 
expense. However, 10 U.S.C. 2320 does not apply to computer software. 
The modified definition of ``commercial item'' is intended to prevent 
misapplication of the technical data provisions to computer software.
    (2) The clause at 252.227-7015 provides the Government specific 
license rights in technical data pertaining to commercial items, 
components, or processes. Generally, such data may be used, modified, 
reproduced, released, performed, displayed, or disclosed only within 
the Government, 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 third parties without the contractor's 
written permission. In accordance with 10 U.S.C. 2320, these 
restrictions do not apply to publicly available data, form, fit, or 
function data, data necessary for operation, maintenance, installation, 
or training, or changes or corrections to Government-furnished data. 
The Government must negotiate to obtain additional license rights and 
may not require contractors to relinquish or provide additional rights 
except under mutually acceptable terms.
c. Noncommercial Items or Processes
    (1) Section 227.7103 provides guidance on the acquisition of 
technical data pertaining to noncommercial items, components, or 
processes. Standard license rights (unlimited, government purpose, or 
limited rights) are based upon the source of development funds for the 
item, component, or process. When data are created during performance 
of a contract for a conceptual design or similar effort that does not 
require manufacture, construction, or production of items, components, 
or processes, the Government's license rights are determined by the 
source of funds used to create the data.
    (2) When the standard license rights are not appropriate for a 
particular procurement, the parties can negotiate non-standard license 
rights. Rights in copyrighted material are contained within the data 
rights licenses. The final rule eliminates the requirement for the 
Government to obtain unlimited rights in technical data if development 
of the data was required for the performance of a Government contract 
or subcontract. The treatment of indirect costs is revised to identify 
all indirect development costs as private expenses. Other indirect 
costs do not affect the determination that an item, component, or 
process was developed at Government, private, or mixed expense. 
Technical data provided to the Government with restrictions on use, 
modification, reproduction, release, performance, display, or 
disclosure may not be released to other persons unless, prior to 
receipt, the recipient has completed a use and non-disclosure agreement 
or 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.
2. Rights in Computer Software and Computer Software Documentation

a. General
    A new subpart is added at DFARS 227.72 to provide separate guidance 
for computer software and computer software documentation, 
notwithstanding that such documentation is considered technical data. 
The definition of ``computer software documentation'' is limited to 
manuals, instructions, and similar items. The definitions of 
``commercial computer software,'' ``computer data base,'' ``computer 
program,'' ``computer software,'' and ``computer software 
[[Page 33471]] documentation'' are substantially different from those 
previously contained in DFARS Subpart 227.4, and the definition of 
``computer'' is deleted.
b. Commercial Computer Software and Computer Software Documentation
    The guidance at 227.7202 is intended to replicate commercial 
practice. Commercial computer software and 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. In those 
situations, contracting officers may negotiate licenses of an 
appropriate scope. However, offerors and contractors are not required 
to relinquish rights to the Government or provide the Government with 
rights to use, modify, reproduce, release, or disclose commercial 
software or documentation that is not customarily provided to the 
public unless a transfer of such rights is mutually agreed upon. A 
specific contract clause is not prescribed because the Government's 
rights will be specified in a license.
c. Noncommercial Computer Software and Computer Software Documentation
    (1) The guidance at 227.7203 parallels the non-commercial technical 
data guidance at 227.7103. Any Government rights in software or 
documentation are license rights. The contractor or licensor retains 
all rights not granted to the Government. The scope of the Government's 
software license generally depends upon the source of funds used to 
develop the software. Standard license rights are unlimited rights 
(developed exclusively at Government expense), restricted rights 
(developed exclusively at private expense), and government purpose 
rights (mixed development). Computer software documentation is defined 
as manuals, operating instructions, and similar items. The Government's 
rights in such technical data may not be restricted under 10 U.S.C. 
2320 regardless of the source of development funds. Therefore, 
documentation licenses generally provide unlimited rights. When the 
standard license rights are not appropriate for a particular 
procurement, special licenses can be negotiated.
    (2) The clause at 252.227-7014 defines ``developed'' for computer 
programs, computer software, and computer software documentation; 
``minor modification''; and ``noncommercial computer software.'' The 
definition of ``restricted rights'' is substantially revised. The link 
between software and a particular computer is replaced with the common 
commercial practice of permitting a computer program to be used with 
one computer at a time. The Government is permitted to modify 
restricted rights software and, under certain conditions which include 
tactical situations and emergency repairs or overhauls, have 
contractors or subcontractors performing service contracts in support 
of a procurement use or modify the software. The third-party use and 
modification rights are intended to balance protection for privately 
developed portions of noncommercial software with the Government's need 
to use the software as a complete item for its intended purpose, 
particularly in military situations.

3. Contracting for Commercial Items

    DFARS Subpart 211.70 is amended for consistency with the technical 
data requirements in Subparts 227.71 and 227.72.

4. Solicitation Provisions and Contract Clauses

    New provisions/clauses are added at 252.227-7014, 252.227-7015, 
252.227-7016, 252.227-7017, and 252.227-7025. Revisions are made in the 
provisions/clauses at 252.211-7021, 252.227-7013, 252.227-7018, 
252.227-7019, 252.227-7020, 252.227-7028, and 252.227-7037. The 
following clauses are deleted: 252.211-7015, 252.211-7016, 252.211-
7017, 252.227-7029, and 252.227-7031.

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

    Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

Amendments to 48 CFR Chapter 2 (Defense FAR Supplement)

    48 CFR Chapter 2 (the Defense FAR Supplement) is amended as set 
forth below.
    1. The authority citation for 48 CFR Parts 211, 227, 252 is revised 
to read as follows:

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

PART 211--ACQUISITION AND DISTRIBUTION OF COMMERCIAL PRODUCTS


211.7004-1   [Amended]

    2. Section 211.7004-1 is amended by removing and reserving 
paragraph (h); and by revising in paragraph (p)(2)(ii) in the title in 
the clause list under the clause number FAR 52.223-1 the word ``Clear'' 
to read ``Clean.''


211.7004-6   [Amended]

    3. Section 211.7004-6(a)(3) is amended to revise the word ``parts'' 
to read ``part.''


211.7005   [Amended]

    4. 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; by revising in paragraph (b)(18) the name 
``Healy'' to read ``Healey;'' 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; by adding a new 
paragraph (b)(50); and by revising in paragraph (c)(6) the name 
``Healy'' to read ``Healey;'' and by revising in paragraph (c)(10) the 
word ``Clear'' to read ``Clean'' to read as follows:


211.7005   Contract clauses

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

PART 227--PATENTS, DATA, AND COPYRIGHTS

    5. Subpart 227.4 is revised to read as follows:

Subpart 227.4--Rights in Data and Copyrights

227.400  Scope of subpart.

    DoD activities shall use the guidance in subparts 227.71 and 227.72 
instead of the guidance in FAR subpart 27.4.
    6. Subpart 227.71 is added to read as follows:

Subpart 227.71--Rights in Technical Data

Sec.
227.7100  Scope of subpart.
227.7101  Definitions.
227.7102  Commercial items, components, or processes.
227.7102-1  Policy.
227.7102-2  Rights in technical data.
227.7102-3  Contract clause.
227.7103  Noncommercial items or processes.
227.7103-1  Policy.
227.7103-2  Acquisition of technical data.
227.7103-3  Early identification of technical data to be furnished 
to the Government with restrictions on use, reproduction or 
disclosure.
227.7103-4  License rights.
227.7103-5  Government rights.
227.7103-6  Contract clauses.
227.7103-7  Use and non-disclosure agreement.
227.7103-8  Deferred delivery and deferred ordering of technical 
data.

[[Page 33472]]

227.7103-9  Copyright.
227.7103-10  Contractor identification and marking of technical data 
to be furnished with restrictive markings.
227.7103-11  Contractor procedures and records.
227.7103-12  Government right to establish conformity of markings.
227.7103-13  Government right to review, verify, challenge and 
validate asserted restrictions.
227.7103-14  Conformity, acceptance, and warranty of technical data.
227.7103-15  Subcontractor rights in technical data.
227.7103-16  Providing technical data to foreign governments, 
foreign contractors, or international organizations.
227.7103-17  Overseas contracts with foreign sources.
227.7104  Contracts under the Small Business Innovative Research 
(SBIR) Program.
227.7105  Contracts for the acquisition of existing works.
227.7105-1  General.
227.7105-2  Acquisition of existing works without modification.
227.7105-3  Acquisition of modified existing works.
227.7106  Contracts for special works.
227.7107  Contracts for architect-engineer services.
227.7107-1  Architectural designs and data clauses for architect-
engineer or construction contracts.
227.7107-2  Contracts for construction supplies and research and 
development work.
227.7107-3  Approval of restricted designs.
227.7108  Contractor data repositories.

Subpart 227.71--Rights in Technical Data


227.7100  Scope of subpart.

    This subpart--
    (a) Prescribes policies and procedures for the acquisition of 
technical data and the rights to use, modify, reproduce, release, 
perform, display, or disclose technical data. It implements 
requirements in the following laws and Executive Order:
    (1) 10 U.S.C. 2302(4).
    (2) 10 U.S.C. 2305 (subsection (d)(4)).
    (3) 10 U.S.C. 2320.
    (4) 10 U.S.C. 2321.
    (5) 10 U.S.C. 2325.
    (6) Pub. L. 103-355.
    (7) Executive Order 12591 (Subsection 1(b)(6)).
    (b) Does not apply to computer software or technical data that is 
computer software documentation (see subpart 227.72).


227.7101  Definitions.

    (a) As used in this subpart, unless otherwise specifically 
indicated, the terms ``offeror'' and ``contractor'' include an 
offeror's or contractor's subcontractors, suppliers, or potential 
subcontractors or suppliers at any tier.
    (b) The terms ``commercial items'' and ``minor modification,'' as 
those terms are used with commercial items, are defined in the clause 
at 252.227-7015, 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.


227.7102  Commercial items, components, or processes.

    Section 2320(b)(1) of Title 10 U.S.C. establishes a presumption 
that commercial items are developed at private expense whether or not a 
contractor submits a justification in response to a challenge notice. 
Therefore, do not challenge a contractor's assertion that a commercial 
item, component, or process was developed at private expense unless the 
Government can demonstrate that it contributed to development of the 
item, component or process. Follow the procedures in 227.7103-13 and 
the clause at 252.227-7037, Validation of Restrictive Markings on 
Technical Data, when information provided by the Department of Defense 
demonstrates that an item, component, or process was not developed 
exclusively at private expense. However, when a challenge is warranted, 
a contractor's or subcontractor's failure to respond to the challenge 
notice cannot be the sole basis for issuing a final decision denying 
the validity of an asserted restriction.


227.7102-1  Policy.

    (a) DoD shall acquire only the technical data customarily provided 
to the public with a commercial item or process, except technical data 
that--
    (1) Are form, fit, or function data;
    (2) Are required for repair or maintenance of commercial items or 
processes, or for the proper installation, operating, or handling of a 
commercial item, either as a stand alone unit or as a part of a 
military system, when such data are not customarily provided to 
commercial users or the data provided to commercial users is not 
sufficient for military purposes; or
    (3) Describe the modifications made at Government expense to a 
commercial item or process in order to meet the requirements of a 
Government solicitation.
    (b) To encourage offerors and contractors to offer or use 
commercial products to satisfy military requirements, offerors, and 
contractors shall not be required, except for the technical data 
described in paragraph (a) of this subsection, to--
    (1) Furnish technical information related to commercial items or 
processes that is not customarily provided to the public; or
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release, perform, display, or disclose 
technical data pertaining to commercial items or processes except for a 
transfer of rights mutually agreed upon.


227.7102-2  Rights in technical data.

    (a) The clause at 252.227-7015, Technical Data--Commercial Items, 
provides the Government specific license rights in technical data 
pertaining to commercial items or processes. DoD may use, modify, 
reproduce, release, perform, display, or disclose data only within the 
Government. The data may not be used to manufacture additional 
quantities of the commercial items and, except for emergency repair or 
overhaul, may not be released or disclosed to, or used by, third 
parties without the contractor's written permission. Those restrictions 
do not apply to the technical data described in 227.7102-1(a).
    (b) If additional rights are needed, contracting activities must 
negotiate with the contractor to determine if there are acceptable 
terms for transferring such rights. The specific additional rights 
granted to the Government shall be enumerated in a license agreement 
made part of the contract.


227.7102-3  Contract clause.

    (a) Except as provided in paragraph (b) of this subsection, use the 
clause at 252.227-7015, Technical Data--Commercial Items, in all 
solicitations and contracts when the contractor will be required to 
deliver technical data pertaining to commercial items, components, or 
processes.
    (b) Use the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in lieu of the clause at 252.227-7015 if the 
Government will pay any portion of the development costs.
    (c) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, in all solicitations and contracts for 
commercial items that include the clause at 252.227-7015 or the clause 
at 252.227-7013.


227.7103  Noncommercial items or processes.


227.7103-1  Policy.

    (a) DoD policy is to acquire only the technical data, and the 
rights in that data, necessary to satisfy agency needs.
    (b) Solicitations and contracts shall--
    (1) Specify the technical data to be delivered under a contract and 
delivery schedules for the data; [[Page 33473]] 
    (2) Establish or reference procedures for determining the 
acceptability of technical data;
    (3) Establish separate contract line items, to the extent 
practicable, for the technical data to be delivered under a contract 
and require offerors and contractors to price separately each 
deliverable data item; and
    (4) Require offerors to identify, to the extent practicable, 
technical data to be furnished with restrictions on the Government's 
rights and require contractors to identify technical data to be 
delivered with such restrictions prior to delivery.
    (c) Offerors shall not be required, either as a condition of being 
responsive to a solicitation or as a condition for award, to sell or 
otherwise relinquish to the Government any rights in technical data 
related to items, components or processes developed at private expense 
except for the data identified at 227.7103-5(a)(2) and (a)(4) through 
(9).
    (d) Offerors and contractors shall not be prohibited or discouraged 
from furnishing or offering to furnish items, components, or processes 
developed at private expense solely because the Government's rights to 
use, modify, release, reproduce, perform, display, or disclose 
technical data pertaining to those items may be restricted.
    (e) As provided in 10 U.S.C. 2305, solicitations for major systems 
development contracts shall not require offerors to submit proposals 
that would permit the Government to acquire competitively items 
identical to items developed at private expense unless a determination 
is made at a level above the contracting officer that--
    (1) The offeror will not be able to satisfy program schedule or 
delivery requirements; or (2) The offeror's proposal to meet 
mobilization requirements does not satisfy mobilization needs.


227.7103-2  Acquisition of technical data.

    (a) Contracting officers shall work closely with data managers and 
requirements personnel to assure that data requirements included in 
solicitations are consistent with the policy expressed in 227.7103-1.
    (b)(1) Data managers or other requirements personnel are 
responsible for identifying the Government's minimum needs for 
technical data. Data needs must be established giving consideration to 
the contractor's economic interests in data pertaining to items, 
components, or processes that have been developed at private expense; 
the Government's costs to acquire, maintain, store, retrieve, and 
protect the data; reprocurement needs; repair, maintenance and overhaul 
philosophies; spare and repair part considerations; and whether 
procurement of the items, components, or processes can be accomplished 
on a form, fit, or function basis. When it is anticipated that the 
Government will obtain unlimited or government purpose rights in 
technical data that will be required for competitive spare or repair 
parts procurements, such data should be identified as deliverable data 
items. Reprocurement needs may not be a sufficient reason to acquire 
detailed manufacturing or process data when items or components can be 
acquired using performance specifications, form, fit and function data, 
or when there are a sufficient number of alternate sources which can 
reasonably be expected to provide such items on a performance 
specification or form, fit, or function basis.
    (2) When reviewing offers received in response to a solicitation or 
other request for data, data managers must balance the original 
assessment of the Government's data needs with data prices contained in 
the offer.
    (c) Contracting officers are responsible for ensuring that, 
wherever practicable, solicitations and contracts--
    (1) Identify the type and quantity of the technical data to be 
delivered under the contract and the format and media in which the data 
will be delivered;
    (2) Establish each deliverable data item as a separate contract 
line item (this requirement may be satisfied by listing each 
deliverable data item on an exhibit to the contract);
    (3) Identify the prices established for each deliverable data item 
under a fixed-price type contract;
    (4) Include delivery schedules and acceptance criteria for each 
deliverable data item; and
    (5) Specifically identify the place of delivery for each 
deliverable item of technical data.


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

    (a) 10 U.S.C. 2320 requires, to the maximum extent practicable, an 
identification prior to delivery of any technical data to be delivered 
to the Government with restrictions on use.
    (b) Use the provision at 252.227-7017, Identification and Assertion 
of Use, Release, or Disclosure Restrictions, in all solicitations that 
include the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items. The provision requires offerors to identify any 
technical data for which restrictions, other than copyright, on use, 
release, or disclosure are asserted and to attach the identification 
and assertions to the offer.
    (c) Subsequent to contract award, the clause at 252.277-7013 
permits a contractor, under certain conditions, to make additional 
assertions of use, release, or disclosure restrictions. The 
prescription for the use of that clause and its alternate is at 
227.7103-6 (a) and (b).


227.7103-4  License rights.

    (a) Grant of license. The Government obtains rights in technical 
data, including a copyright license, under and 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) Techical data pertaining to items, components, or processes. 
Contractors or licensors may, with some exceptions (see 227.7103-
5(a)(2) and (a)(4) through (9)), restrict the Government's rights to 
use, modify, release, reproduce, perform, display or disclose technical 
data pertaining to items, components, or processes developed 
exclusively at private expense (limited rights). They may not restrict 
the Government's rights in items, components, or processes developed 
exclusively at Government expense (unlimited rights) without the 
Government's approval. When an item, component, or process is developed 
with mixed funding, the Government may use, modify, release, reproduce, 
perform, display or disclose the data pertaining to such items, 
components, or processes within the Government without restriction but 
may release or disclose the data outside the Government only for 
government purposes (government purpose rights).
    (2) Technical data that do not pertain to items, components, or 
processes. Technical data may be created during the performance of a 
contract for a conceptual design or similar effort that does not 
require the development, manufacture, construction, or production of 
items, components or processes. The Government generally obtains 
unlimited rights in such data when the data were created exclusively 
with Government funds, government purpose rights when the data were 
created with mixed funding, and limited [[Page 33474]] rights when the 
data were created exclusively at private expense.
    (b) Source of funds determination. The determination of the source 
of development funds for technical data pertaining to items, 
components, or processes should be made at any practical sub-item or 
subcomponent level or for any segregable portion of a process. 
Contractors may assert limited rights in a segregable sub-item, sub-
component, or portion of a process which otherwise qualifies for 
limited rights under the clause at 252.227-7013, Rights in Technical 
Data--Noncommercial Items.


227.7103-5  Government rights.

    The standard license rights that a licensor grants to the 
Government are unlimited rights, government purpose rights, or limited 
rights. Those rights are defined in the clause at 252.227-7013, Rights 
in Technical Data--Noncommercial Items. In unusual situations, the 
standards rights may not satisfy the Government's needs or the 
Government may be willing to accept lesser rights in data in return for 
other consideration. In those cases, a special license may be 
negotiated. However, the licensor is not obligated to provide the 
Government greater rights and the contracting officer is not required 
to accept lesser rights than the rights provided in the standard grant 
of license. The situations under which a particular grant of license 
applies are enumerated in paragraphs (a) through (d) of this 
subsection.
    (a) Unlimited rights. The Government obtains unlimited rights in 
technical data that are--
    (1) Data pertaining to an item, component, or process which has 
been or will be developed exclusively with Government funds;
    (2) Studies, analyses, test data, or similar data produced in the 
performance of a contract when the study, analysis, test, or similar 
work was specified as an element of performance;
    (3) Created exclusively with Government funds in the performance of 
a contract that does not require the development, manufacture, 
construction, or production of items, components, or processes;
    (4) Form, fit, and function data;
    (5) Necessary for installation, operation, maintenance, or training 
purposes (other than detailed manufacturing or process data);
    (6) Corrections or changes to technical data furnished to the 
contractor by the Government;
    (7) Publicly available or have been released or disclosed by the 
contractor or subcontractor without restrictions on further use, 
release or disclosure other than a release or disclosure resulting from 
the sale, transfer, or other assignment of interest in the software to 
another party or the sale or transfer of some or all of a business 
entity or its assets to another party;
    (8) Data in which the Government has obtained unlimited rights 
under another Government contract or as a result of negotiations; or
    (9) Data furnished to the Government, under a Government contract 
or subcontract thereunder, with--
    (i) Government purpose license rights or limited rights and the 
restrictive condition(s) has/have expired; or
    (ii) Government purpose rights and the contractor's exclusive right 
to use such data for commercial purposes has expired.
    (b) Government purpose rights. (1) The Government obtains 
government purpose rights in technical data--
    (i) That pertain to items, components, or processes developed with 
mixed funding except when the Government is entitled to unlimited 
rights as provided in paragraphs (a)(2) and (a)(4) through (9) of this 
subsection; or
    (ii) Created with mixed funding in the performance of a contract 
that does not require the development, manufacture, construction, or 
production of items, components, or processes.
    (2) The period during which government purpose rights are effective 
is negotiable. The clause at 252.227-7013 provides a nominal five-year 
period. Either party may request a different period. Changes to the 
government purpose rights period may be made at any time prior to 
delivery of the technical data without consideration from either party. 
Longer periods should be negotiated when a five-year period does not 
provide sufficient time to apply the data for commercial purposes or 
when necessary to recognize subcontractors' interests in the data.
    (3) The government purpose rights period commences upon execution 
of the contract, subcontract, letter contract (or similar contractual 
instrument), contract modification, or option exercise that required 
the development. Upon expiration of the Government rights period, the 
Government has unlimited rights in the data including the right to 
authorize others to use the data for commercial purposes.
    (4) During the government purpose rights period, the government may 
not use, or authorize other persons to use, technical data marked with 
government purpose rights legends for commercial purposes. The 
Government shall not release or disclose data in which it has 
government purpose rights to any person, or authorize others to do so, 
unless--
    (i) Prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.7103-7; or
    (ii) The intended recipient is a Government contractor receiving 
access to the data for performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends.
    (5) When technical data marked with government purpose rights 
legends will be released or disclosed to a Government contractor 
performing a contract that does not include the clause at 252-227-7025, 
the contract may be modified, prior to release or disclosure, to 
include that clause in lieu of requiring the contractor to complete a 
use and non-disclosure agreement.
    (6) Contracting activities shall establish procedures to assure 
that technical data marked with government purpose rights legends are 
released or disclosed, including a release or disclosure through a 
Government solicitation, only to persons subject to the use and non-
disclosure restrictions. Public announcements in the Commerce Business 
Daily or other publications must provide notice of the use and non-
disclosure requirements. Class use and non-disclosure agreements (e.g., 
agreements covering all solicitations received by the XYZ company 
within a reasonable period) are authorized and may be obtained at any 
time prior to release or disclosure of the government purpose rights 
data. Documents transmitting government purpose rights data to persons 
under class agreements shall identify the technical data subject to 
government purpose rights and the class agreement under which such data 
are provided.
    (c) Limited rights. (1) The Government obtains limited rights in 
technical data--
    (i) That pertain to items, components, or processes developed 
exclusively at private expense except when the Government is entitled 
to unlimited rights as provided in paragraphs (a)(2) and (a)(4) through 
(9) of this subsection; or
    (ii) Created exclusively at private expense in the performance of a 
contract that does not require the development, manufacture, 
construction, or production of items, components, or processes.
    (2) Data in which the Government has limited rights may not be 
used, released, or disclosed outside the Government without the 
permission of the contractor [[Page 33475]] 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 evaluation or informational 
purposes.
    (3) The person asserting limited rights must be notified of the 
Government's intent to release, disclose, or authorize others to use 
such data prior to release or disclosure of the data except 
notification of an intended release, disclosure, or use for emergency 
repair or overhaul which shall be made as soon as practicable.
    (4) When the person asserting limited rights permits the Government 
to release, disclose, or have others use the data subject to 
restrictions on further use, release, or disclosure, or for a release 
under paragraph (c)(2)(i) or (ii) of this subsection, the intended 
recipient must complete the use and non-disclosure agreement at 
227.7103-7 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; 
or
    (iii) Reverse engineering, or providing items from Government 
inventories to contractors who request the items to facilitate the 
development of equivalent items through reverse engineering.


227.7103-6  Contract clauses.

    (a) Use the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in solicitations and contracts 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 227.72), 
commercial items (see 227.7102-3), existing works (see 227.7105), 
special works (see 227.7106), or when contracting under the Small 
Business Innovative Research Program (see 227.7104). Except as provided 
in 227.7107-2, do not use the clause in architect-engineer and 
construction contracts.
    (b) Use the clause at 252.227-7013 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; and
    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 252.227-7025, 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, technical data marked with another contractor's restrictive 
legend(s).
    (d) Use the provision at 252.227-7028, Technical Data or Computer 
Software Previously Delivered to the Government, in solicitations when 
the resulting contract will require the contractor to deliver technical 
data. The provision requires offerors to identify any technical data 
specified in the solicitations as deliverable data items that are the 
same or substantially the same as data items the offeror has delivered 
or is obligated to deliver, either as a contractor or subcontractor, 
under any other federal agency contract.
    (e) Use the following clauses in solicitations and contracts that 
include the clause at 252.227-7013:
    (1) 252.227-7016, Rights in Bid or Proposal Information;
    (2) 252.227-7030, Technical Data--Withholding of Payment;
    (3) 252.227-7036, Certification of Technical Data Conformity; and
    (4) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (paragraph (e) of the clause contains information that must be 
included in a challenge).


227.7103-7  Use and non-disclosure agreement.

    (a) Except as provided in paragraph (b) of this subsection, 
technical data or computer software delivered to the Government with 
restrictions on use, modification, reproduction, release, performance, 
display, or disclosure may not be provided to third parties unless the 
intended recipient completes and signs the use and non-disclosure 
agreement at paragraph (c) of this subsection prior to release, or 
disclosure of the data.
    (1) The specific conditions under which an intended recipient will 
be authorized to use, modify, reproduce, release, perform, display, or 
disclose technical data subject to limited rights or computer software 
subject to restricted rights must be stipulated in an attachment to the 
use and non-disclosure agreement.
    (2) For an intended release, disclosure, or authorized use of 
technical data or computer software subject to special license rights, 
modify paragraph (1)(d) of the use and non-disclosure agreement to 
enter the conditions, consistent with the license requirements, 
governing the recipient's obligations regarding use, modification, 
reproduction, release, performance, display or disclosure of the data 
or software.
    (b) The requirement for use and non-disclosure agreements does not 
apply to Government contractors which require access to a third party's 
data or software for the performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished [[Page 33476]] Information Marked 
with Restrictive Legends.
    (c) The prescribed use and non-disclosure agreement is:

Use and Non-Disclosure Agreement

    The undersigned, ________________ (Insert Name) 
________________, an authorized representative of the 
________________ (Insert Company Name) ________________, (which is 
hereinafter referred to as the ``Recipient'') requests the 
Government to provide the Recipient with technical data or computer 
software (hereinafter referred to as ``Data'') in which the 
Government's use, modification, reproduction, release, performance, 
display or disclosure rights are restricted. Those Data are 
identified in an attachment to this Agreement. In consideration for 
receiving such Data, the Recipient agrees to use the Data strictly 
in accordance with this Agreement:
    (1) The Recipient shall--
    (a) Use, modify, reproduce, release, perform, display, or 
disclose Data marked with government purpose rights or SBIR data 
rights legends only for government purposes and shall not do so for 
any commercial purpose. The Recipient shall not release, perform, 
display, or disclose these Data, without the express written 
permission of the contractor whose name appears in the restrictive 
legend (the ``Contractor''), to any person other than its 
subcontractors or suppliers, or prospective subcontractors or 
suppliers, who require these Data to submit offers for, or perform, 
contracts with the Recipient. The Recipient shall require its 
subcontractors or suppliers, or prospective subcontractors or 
suppliers, to sign a use and non-disclosure agreement prior to 
disclosing or releasing these Data to such persons. Such agreement 
must be consistent with the terms of this agreement.
    (b) Use, modify, reproduce, release, perform, display, or 
disclose technical data marked with limited rights legends only as 
specified in the attachment to this Agreement. Release, performance, 
display, or disclosure to other persons is not authorized unless 
specified in the attachment to this Agreement or expressly permitted 
in writing by the Contractor. The Recipient shall promptly notify 
the Contractor of the execution of this Agreement and identify the 
Contractor's Data that has been or will be provided to the 
Recipient, the date and place the Data were or will be received, and 
the name and address of the Government office that has provided or 
will provide the Data.
    (c) Use computer software marked with restricted rights legends 
only in performance of Contract Number ________________ (insert 
contract number(s)) ________________. The recipient shall not, for 
example, enhance, decompile, disassemble, or reverse engineer the 
software; time share, or use a computer program with more than one 
computer at a time. The recipient may not release, perform, display, 
or disclose such software to others unless expressly permitted in 
writing by the licensor whose name appears in the restrictive 
legend. The Recipient shall promptly notify the software licensor of 
the execution of this Agreement and identify the software that has 
been or will be provided to the Recipient, the date and place the 
software were or will be received, and the name and address of the 
Government office that has provided or will provide the software.
    (d) Use, modify, reproduce, release, perform, display, or 
disclose Data marked with special license rights legends (To be 
completed by the contracting officer. See 227.7103-7(a)(2). Omit if 
none of the Data requested is marked with special license rights 
legends).
    (2) The Recipient agrees to adopt or establish operating 
procedures and physical security measures designed to protect these 
Data from inadvertent release or disclosure to unauthorized third 
parties.
    (3) The Recipient agrees to accept these Data ``as is'' without 
any Government representation as to suitability for intended use or 
warranty whatsoever. This disclaimer does not affect any obligation 
the Government may have regarding Data specified in a contract for 
the performance of that contract.
    (4) The Recipient may enter into any agreement directly with the 
Contractor with respect to the use, modification, reproduction, 
release, performance, display, or disclosure of these Data.
    (5) The Recipient agrees to indemnify and hold harmless the 
Government, its agents, and employees from every claim or liability, 
including attorneys fees, court costs, and expenses arising out of, 
or in any way related to, the misuse or unauthorized modification, 
reproduction, release, performance, display, or disclosure of Data 
received from the Government with restrictive legends by the 
Recipient or any person to whom the Recipient has released or 
disclosed the Data.
    (6) The Recipient is executing this Agreement for the benefit of 
the Contractor. The Contractor is a third party beneficiary of this 
Agreement who, in addition to any other rights it may have, is 
intended to have the rights of direct action against the Recipient 
or any other person to whom the Recipient has released or disclosed 
the Data, to seek damages from any breach of this Agreement or to 
otherwise enforce this Agreement.
    (7) The Recipient agrees to destroy these Data, and all copies 
of the Data in its possession, no later than 30 days after the date 
shown in paragraph (8) of this Agreement, to have all persons to 
whom it released the Data do so by that date, and to notify the 
Contractor that the Data have been destroyed.
    (8) This Agreement shall be effective for the period commencing 
with the Recipient's execution of this Agreement and ending upon 
________ (Insert Date) ________. The obligations imposed by this 
Agreement shall survive the expiration or termination of the 
Agreement.
Recipient's Business Name --------------------------------------------
By -------------------------------------------------------------------
Authorized Representative

----------------------------------------------------------------------
Date

Representative's Typed Name ------------------------------------------
and Title ------------------------------------------------------------

(End of use and non-disclosure agreement)


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

    (a) Deferred delivery. Use the clause at 252.227-7026, Deferred 
Delivery of Technical Data or Computer Software, when it is in the 
Government's interests to defer the delivery of technical data. The 
clause permits the contracting officer to require the delivery of 
technical data identified as ``deferred delivery'' data at any time 
until two years after acceptance by the Government of all items (other 
than technical data or computer software) under the contract or 
contract termination, whichever is later. The obligation of 
subcontractors or suppliers to deliver such technical data expires two 
years after the date the prime contractor accepts the last item from 
the subcontractor or supplier for use in the performance of the 
contract. The contract must specify which technical data is subject to 
deferred delivery. The contracting officer shall notify the contractor 
sufficiently in advance of the desired delivery date for such data to 
permit timely delivery.
    (b) Deferred ordering. Use the clause at 252.227-7027, Deferred 
Ordering of Technical Data or Computer Software, when a firm 
requirement for a particular data item(s) has not been established 
prior to contract award but there is a potential need for the data. 
Under this clause, the contracting officer may order any data that has 
been generated in the performance of the contract or any subcontract 
thereunder at any time until three years after acceptance of all items 
(other than technical data or computer software) under the contract or 
contract termination, whichever is later. The obligation of 
subcontractors to deliver such data expires three years after the date 
the contractor accepts the last item under the subcontract. When the 
data are ordered, the delivery dates shall be negotiated and the 
contractor compensated only for converting the data into the prescribed 
form, reproduction costs, and delivery costs.


227.7103-9  Copyright.

    (a) Copyright license. (1) The clause at 252.227-7013, Rights in 
Technical Data--Noncommercial Items, requires a contractor to grant or 
obtain for the Government license rights which permit the Government to 
reproduce data, distribute copies of the data, publicly perform or 
display the data or, through the right to modify data, prepare 
derivative works. The extent to which the Government, and others acting 
on its behalf, may exercise these rights varies for each of the 
standard data rights licenses obtained under the clause. When non-
standard license rights in [[Page 33477]] technical data will be 
negotiated, negotiate the extent of the copyright license concurrent 
with negotiations for the data rights license. Do not negotiate a 
copyright license that provides less rights than the standard limited 
rights license in technical data.
    (2) The clause at 252.227-7013 does not permit a contractor to 
incorporate a third party's copyrighted data into a deliverable data 
item unless the contractor has obtained an appropriate license for the 
Government and, when applicable, others acting on the Government's 
behalf, or has obtained the contracting officer's written approval to 
do so. Grant approval to use third party copyrighted data in which the 
Government will not receive a copyright license only when the 
Government's requirements cannot be satisfied without the third party 
material or when the use of the third party material will result in 
cost savings to the Government which outweigh the lack of a copyright 
license.
    (b) Copyright considerations--acquisition of existing and special 
works. See 227.7105 or 227.7106 for copyright considerations when 
acquiring existing or special works.


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

    (a) Identification requirements. (1) The solicitation provision at 
252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions, requires offerors to identify to the 
contracting officer, prior to contract award, any technical data that 
the offeror asserts should be provided to the Government with 
restrictions on use, modification, reproduction, release or disclosure. 
This requirement does not apply to restrictions based solely on 
copyright. The notification and identification must be submitted as an 
attachment to the offer. If an offeror fails to submit the attachment 
or fails to complete the attachment in accordance with the requirements 
of the solicitation provision, such failure shall constitute a minor 
informality. Provide offerors an opportunity to remedy a minor 
informality in accordance with the procedures at FAR 14.405 or 15.607. 
An offeror's failure to correct the informality within the time 
prescribed by the contracting officer shall render the offer ineligible 
for award.
    (2) The procedures for correcting minor informalities shall not be 
used to obtain information regarding asserted restrictions or an 
offeror's suggested asserted rights category. Questions regarding the 
justification for an asserted restriction or asserted rights category 
must be pursued in accordance with the procedures at 227.7103-13.
    (3) The restrictions asserted by a successful offeror shall be 
attached to its contract unless, in accordance with the procedures at 
227.7103-13, the parties have agreed that an asserted restriction is 
not justified. The contract attachment shall provide the same 
information regarding identification of the technical data, the 
asserted rights category, the basis for the assertion, and the name of 
the person asserting the restrictions as required by paragraph (d) of 
the solicitation provision at 252.227-7017. Subsequent to contract 
award, the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, permits the contractor to make additional 
assertions under certain conditions. The additional assertions must be 
made in accordance with the procedures and in the format prescribed by 
that clause.
    (4) Neither the pre- or post-award assertions made by the 
contractor, nor the fact that certain assertions are identified in the 
attachment to the contract, determine the respective rights of the 
parties. As provided at 227.7103-13, the Government has the right to 
review, verify, challenge and validate restrictive markings.
    (5) Information provided by offerors in response to the 
solicitation provision may be used in the source selection process to 
evaluate the impact on evaluation factors that may be created by 
restrictions on the Government's ability to use or disclose technical 
data. However, offerors shall not be prohibited from offering products 
for which the offeror is entitled to provide the Government limited 
rights in the technical data pertaining to such products and offerors 
shall not be required, either as a condition of being responsive to a 
solicitation or as a condition for award, to sell or otherwise 
relinquish any greater rights in technical data when the offeror is 
entitled to provide the technical data with limited rights.
    (b) Contractor marking requirements. The clause at 252.227-7013, 
Rights in Technical Data--Noncommercial Items--
    (1) Requires a contractor that desires to restrict the Government's 
rights in technical data to place restrictive markings on the data, 
provides instructions for the placement of the restrictive markings, 
and authorizes the use of certain restrictive markings; and
    (2) Requires a contractor to deliver, furnish, or otherwise provide 
to the Government any technical data in which the Government has 
previously obtained rights with the Government's pre-existing rights in 
that data unless the parties have agreed otherwise or restrictions on 
the Government's rights to use, modify, reproduce, release, perform, 
display, or disclose the data have expired. When restrictions are still 
applicable, the contractor is permitted to mark the data with the 
appropriate restrictive legend for which the data qualified.
    (c) Unmarked technical data. (1) Technical data delivered or 
otherwise provided under a contract without restrictive markings shall 
be presumed to have been delivered with unlimited rights and may be 
released or disclosed without restriction. To the extent practicable, 
if a contractor has requested permission (see paragraph (c)(2) of this 
subsection) to correct an inadvertent omission of markings, do not 
release or disclose the technical data pending evaluation of the 
request.
    (2) A contractor may request permission to have appropriate legends 
placed on unmarked technical data at its expense. The request must be 
received by the contracting officer within six months following the 
furnishing or delivery of such data, or any extension of that time 
approved by the contracting officer. The person making the request 
must:
    (i) Identify the technical data that should have been marked;
    (ii) Demonstrate that the omission of the marking was inadvertent, 
the proposed marking is justified and conforms with the requirements 
for the marking of technical data contained in the clause at 252.227-
7013; and
    (iii) Acknowledge, in writing, that the Government has no liability 
with respect to any disclosure, reproduction, or use of the technical 
data made prior to the addition of the marking or resulting from the 
omission of the marking.
    (3) Contracting officers should grant permission to mark only if 
the technical data were not distributed outside the Government or were 
distributed outside the Government with restrictions on further use or 
disclosure.


227.7103-11  Contractor procedures and records.

    (a) The clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, requires a contractor, and its subcontractors or 
suppliers that will deliver technical data with other than unlimited 
rights, to establish and follow written procedures to assure that 
restrictive markings are used only when authorized and to maintain 
records to justify the validity of asserted restrictions on delivered 
data. [[Page 33478]] 
    (b) The clause at 252.227-7037, Validation of Restrictive Markings 
on Technical Data requires contractors and their subcontractors at any 
tier to maintain records sufficient to justify the validity of 
restrictive markings on technical data delivered or to be delivered 
under a Government contract.


227.7103-12  Government right to establish conformity of markings.

    (a) Nonconforming markings. (1) Authorized markings are identified 
in the clause at 252.227-7013, Rights in Technical Data--Noncommercial 
Items. All other markings are nonconforming markings. An authorized 
marking that is not in the form, or differs in substance, from the 
marking requirements in the clause at 252.227-7013 is also a 
nonconforming marking.
    (2) The correction of nonconforming markings on technical data is 
not subject to 252.227-7037, Validation of Restrictive Markings on 
Technical Data. To the extent practicable, the contracting officer 
should return technical data bearing nonconforming markings to the 
person who has placed the nonconforming markings on such data to 
provide that person an opportunity to correct or strike the 
nonconforming marking at that person's expense. If that person fails to 
correct the nonconformity and return the corrected data within 60 days 
following the person's receipt of the data, the contracting officer may 
correct or strike the nonconformity at that person's expense. When it 
is impracticable to return technical data for correction, contracting 
officers may unilaterally correct any nonconforming markings at 
Government expense. Prior to correction, the data may be used in 
accordance with the proper restrictive marking.
    (b) Unjustified markings. (1) An unjustified marking is an 
authorized marking that does not depict accurately restrictions 
applicable to the Government's use, modification, reproduction, 
release, performance, display, or disclosure of the marked technical 
data. For example, a limited rights legend placed on technical data 
pertaining to items, components, or processes that were developed under 
a Government contract either exclusively at Government expense or with 
mixed funding (situations under which the Government obtains unlimited 
or government purpose rights) is an unjustified marking.
    (2) Contracting officers have the right to review and challenge the 
validity of unjustified markings. However, at any time during 
performance of a contract and notwithstanding existence of a challenge, 
the contracting officer and the person who has asserted a restrictive 
marking may agree that the restrictive marking is not justified. Upon 
such agreement, the contracting officer may, at his or her election, 
either--
    (i) Strike or correct the unjustified marking at that person's 
expense; or
    (ii) Return the technical data to the person asserting the 
restriction for correction at that person's expense. If the data are 
returned and that person fails to correct or strike the unjustified 
restriction and return the corrected data to the contracting officer 
within 60 days following receipt of the data, the unjustified marking 
shall be corrected or stricken at that person's expense.


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

    (a) General. An offeror's assertion(s) of restrictions on the 
Government's rights to use, modify, reproduce, release, or disclose 
technical data do not, by themselves, determine the extent of the 
Government's rights in the technical data. Under 10 U.S.C. 2321, the 
Government has the right to challenge asserted restrictions when there 
are reasonable grounds to question the validity of the assertion and 
continued adherence to the assertion would make it impractical to later 
procure competitively the item to which the data pertain.
    (b) Pre-award considerations. The challenge procedures required by 
10 U.S.C. 2321 could significantly delay awards under competitive 
procurements. Therefore, avoid challenging asserted restrictions prior 
to a competitive contract award unless resolution of the assertion is 
essential for successful completion of the procurement.
    (c) Challenge 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 Restrictive 
Markings on Technical Data.
    (1) Challenge period. Asserted restrictions should be reviewed 
before acceptance of technical data deliverable under the contract. 
Assertions must be challenged within three years after final payment 
under the contract or three years after delivery of the data, whichever 
is later. However, restrictive markings may be challenged at any time 
if the technical data--
    (i) Are publicly available without restrictions;
    (ii) Have been provided to the United States without restriction; 
or
    (iii) Have been otherwise made available without restriction other 
than a release or disclosure resulting from the sale, transfer, or 
other assignment of interest in the technical data to another party or 
the sale or transfer of some or all of a business entity or its assets 
to another party.
    (2) Pre-challenge requests for information. (i) After consideration 
of the situation described in paragraph (c)(3) of this subsection, 
contracting officers may request the person asserting a restriction to 
furnish a written explanation of the facts and supporting documentation 
for the assertion in sufficient detail to enable the contracting 
officer to ascertain the basis of the restrictive markings. Additional 
supporting documentation may be requested when the explanation provided 
by the person making the assertion does not, in the contracting 
officer's opinion, establish the validity of the assertion.
    (ii) If the person asserting the restriction fails to respond to 
the contracting officer's request for information or additional 
supporting documentation, or if the information submitted or any other 
available information pertaining to the validity of a restrictive 
marking does not justify the asserted restriction, a challenge should 
be considered.
    (3)Transacting matters directly with subcontracts. The clause at 
252.227-7037 obtains the contractor's agreement that the Government may 
transact matters under the clause directly with a subcontractor, at any 
tier, without creating or implying privity of contract. Contracting 
officers should permit a subcontractor or supplier to transact 
challenge and validation matters directly with the Government when--
    (i) A subcontractor's or supplier's business interests in its 
technical data would be compromised if the data were disclosed to a 
higher tier contractor;
    (ii) There is reason to believe that the contractor will not 
respond in a timely manner to a challenge and an untimely response 
would jeopardize a subcontractor's or suppliers 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. 
[[Page 33479]] Challenge notices must be in writing and issued to the 
contractor or, after consideration of the situations described in 
paragraph (c)(3) of this subsection, the person asserting the 
restriction. The challenge notice must include the information in 
paragraph (e) of the clause at 252.227-7037.
    (5) Extension of response time. The contracting officer, at his or 
her discretion, may extend the time for response contained in a 
challenge notice, as appropriate, if the contractor submits a timely 
written request showing the need for additional time to prepare a 
response.
    (6) Contracting officer's final decision. Contracting officers must 
issue a final decision for each challenged assertion, whether or not 
the assertion has been justified.
    (i) A contracting officer's final decision that an assertion is not 
justified must be issued a soon as practicable following the failure of 
the person asserting the restriction to respond to the contracting 
officer's challenge within 60 days, or any extension to that time 
granted by the contracting officer.
    (ii) A contracting officer who, following a challenge and response 
by the person asserting the restriction, determines that an asserted 
restriction is justified, shall issue a final decision sustaining the 
validity of the asserted restriction. If the asserted restriction was 
made subsequent to submission of the contractor's offer, add the 
asserted restriction to the contract attachment.
    (iii) A contracting officer who determine that the validity of an 
asserted restriction has not been justified shall issue a contracting 
officer's final decision within the time frames prescribed in 252.227-
7037. As provided in paragraph (g) of that clause, the Government is 
obligated to continue to respect the asserted restrictions through 
final disposition of any appeal unless the agency head notifies the 
person asserting the restriction that urgent or compelling 
circumstances do not permit the Government to continue to respect the 
asserted restriction.
    (7) Multiple challenges to an asserted restriction. When more than 
one contracting officer challenges an asserted restriction, the 
contracting officer who made the earliest challenge is responsible for 
coordinating the Government challenges. That contracting officer shall 
consult with all other contracting officers making challenges, verify 
that all challenges apply to the same asserted restriction and, after 
consulting with the contractor, subcontractor, or supplier asserting 
the restriction, issue a schedule that provides that person a 
reasonable opportunity to respond to each challenge.
    (8) Validation. Only a contracting officer's final decision, or 
actions of an agency board of contract appeals or a court of competent 
jurisdiction, that sustain the validity of an asserted restriction 
constitute validation of the asserted restriction.
227.7103-14  Conformity, acceptance, and warranty of technical data.

    (a) Statutory requirements. 10 U.S.C. 2320--
    (1) 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 an agency head considers appropriate) during any period 
if the contractor does not meet the requirements of the contract 
pertaining to the delivery of technical data.
    (b) Conformity and acceptance. (1) Solicitations and contracts 
requiring the delivery of technical data shall specify the requirements 
the data must satisfy to be acceptable. Contracting officers, or their 
authorized representatives, are responsible for determining whether 
technical data tendered for acceptance conform to the contractual 
requirements.
    (2) The clause at 252.227-7030, Technical Data--Withholding of 
Payment, provides for withholding up to 10 percent of the contract 
price pending correction or replacement of the nonconforming technical 
data or negotiation of an equitable reduction in contract price. The 
amount subject to withholding may be expressed as a fixed dollar amount 
or as a percentage of the contract price. In either case, the amount 
shall be determined giving consideration to the relative value and 
importance of the data. For example--
    (i) When the sole purpose of a contract is to produce the data, the 
relative value of that data may be considerably higher than the value 
of data produced under a contract where the production of the data is a 
secondary objective; or
    (ii) When the Government will maintain or repair items, repair and 
maintenance data may have a considerably higher relative value than 
data that merely describe the item or provide performance 
characteristics.
    (3) Do not accept technical data that do not conform to the 
contractual requirements in all respects. Except for nonconforming 
restrictive markings (see paragraph (b)(4) of this subsection), 
correction or replacement of nonconforming data or an equitable 
reduction in contract price when correction or replacement of the 
nonconforming data is not practicable or is not in the Government's 
interests, shall be accomplished in accordance with--
    (i) The provisions of a contract clause providing for inspection 
and acceptance of deliverables and remedies for nonconforming 
deliverables; or
    (ii) The procedures at FAR 46.407(c) through (g), if the contract 
does not contain an inspection clause providing remedies for 
nonconforming deliverables.
    (4) Follow the procedures at 227.7103-12(a)(2) if nonconforming 
markings are the sole reason technical data fail to conform to 
contractual requirements. The clause at 252.227-7030 may be used to 
withhold an amount for payment, consistent with the terms of the 
clause, pending correction of the nonconforming markings.
    (c) Warranty. (1) The intended use of the technical data and the 
cost, if any, to obtain the warranty should be considered before 
deciding to obtain a data warranty (see FAR 46.703). The fact that a 
particular item, component, or process is or is not warranted is not a 
consideration in determining whether or not to obtain a warranty for 
the technical data that pertain to the item, component, or process. For 
example, a data warranty should be considered if the Government intends 
to repair or maintain an item and defective repair or maintenance data 
would impair the Government's effective use of the item or result in 
increased costs to the Government.
    (2) As prescribed in 246.710, use the clause at 252.246-7001, 
Warranty of Data, and its alternates, or a substantially similar clause 
when the Government needs a specific warranty of technical data.


227.7103-15  Subcontractor rights in technical data.

    (a) 10 U.S.C. 2320 provides subcontractors at all tiers the same 
protection for their rights in data as is provided to prime 
contractors. The clauses at 252.227-7013, Rights in Technical Data--
Noncommercial Items, and 252.227-7037, Validation of Restrictive 
Markings on Technical Data, implement the statutory requirements. 
[[Page 33480]] 
    (b) 10 U.S.C. 2321 permits a subcontractor to transact directly 
with the Government matters relating to the validation of its asserted 
restrictions on the Government's rights to use or disclose technical 
data. The clause at 252.227-7037 obtains a contractor's agreement that 
the direct transaction of validation or challenge matters with 
subcontractors at any tier does not establish or imply privity of 
contract. When a subcontractor or supplier exercise its right to 
transact validation matters directly with the Government, contracting 
officers shall deal directly with such persons, as provided at 
227.7103-13(c)(3).
    (c) Require prime contractors whose contracts include the following 
clauses to include those clauses, without modification except for 
appropriate identification of the parties, in contracts with 
subcontractors or suppliers, at all tiers, who will be furnishing 
technical data in response to a Government requirement:
    (1) 252.227-7013, Rights in Technical Data--Noncommercial Items;
    (2) 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends;
    (3) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government; and
    (4) 252.227-7037, Validation of Restrictive Markings on Technical 
Data.
    (d) Do not require contractors to have their subcontractors or 
suppliers at any tier relinquish rights in technical data to the 
contractor, a higher tier subcontractor, or to the Government, as a 
condition for award of any contract, subcontract, purchase order, or 
similar instrument except for the rights obtained by the Government 
under the Rights in Technical Data--Noncommercial Items clause 
contained in the contractor's contract with the Government.


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

    Technical data may be released or disclosed to foreign governments, 
foreign contractors, or international organizations only if release or 
disclosure is otherwise permitted both by Federal export controls and 
other national security laws or regulations. Subject to such laws and 
regulations, the Department of Defense--
    (a) May release or disclose technical data in which it has obtained 
unlimited rights to such foreign entities or authorize the use of such 
data by those entities; and
    (b) Shall not release or disclose technical data for which 
restrictions on use, release, or disclosure have been asserted to 
foreign entities, or authorize the use of technical data by those 
entities, unless the intended recipient is subject to the same 
provisions as included in the use and non-disclosure agreement at 
227.7103-7 and the requirements of the clause at 252.227-7103, Rights 
in Technical Data--Noncommercial Items, governing use, modification, 
reproduction, release, performance, display, or disclosure of such data 
have been satisfied.


227.7103-17  Overseas contracts with foreign sources.

    (a) The clause at 252.227-7032, Rights in Technical Data and 
Computer Software (Foreign), may be used in contracts with foreign 
contractors to be performed overseas, except Canadian purchases (see 
paragraph (c) of this subsection), in lieu of the clause at 252.227-
7013, Rights in Technical Data--Noncommercial Items, when the 
Government requires the unrestricted right to use, modify, reproduce, 
perform, display, release or disclose all technical data to be 
delivered under the contract. Do not use the clause in contracts for 
existing or special works.
    (b) When the Government does not require unlimited rights, the 
clause at 252.227-7032 may be modified to accommodate the needs of a 
specific overseas procurement situation. The Government should obtain 
rights in the technical data that are not less than the rights the 
Government would have obtained under the data rights clause(s) 
prescribed in this part for a comparable procurement performed within 
the United States or its 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.


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

    (a) Use the clause at 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovative 
Research (SBIR) Program, when technical data or computer software will 
be generated during performance of contracts under the SBIR program.
    (b) Under the clause at 252.227-7018, the Government obtains 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 five years after completion of the 
project under which the data were generated. Upon expiration of the 
five-year restrictive license, the Government has unlimited rights in 
the SBIR data. During the license period, the Government may not 
release or disclose SBIR data to any person other than its support 
services contractors except--
    (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 paragraph 
(b) of this section unless, prior to release or disclosure, the 
intended recipient is subject to the use and nondisclosure agreement at 
227.7103-7.
    (d) Use the clause at 252.227-7018 with its Alternate I in research 
contracts when the contracting officer determines, in consultation with 
counsel, that public dissemination by the contractor would be--
    (1) In the interest of the Government; and
    (2) Facilitated by the Government relinquishing its right to 
publish the work for sale, or to have others publish the work for sale 
on behalf of the Government.
    (e) Use the following provision and clauses in SBIR solicitations 
and contracts that include the clause at 252.227-7018:
    (1) 252.227-7016, Rights in Bid or Proposal Information;
    (2) 252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions;
    (3) 252.227-7019, Validation of Asserted Restrictions--Computer 
Software;
    (4) 252.227-7030, Technical Data--Withholding of Payment;
    (5) 252.227-7036, Certification of Technical Data Conformity; and
    (6) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (paragraph (e) of the clause contains information that must be 
included in a challenge).
    (f) Use the following clauses and provision in SBIR solicitations 
and contracts in accordance with the guidance at 227.7103-6 (c) and 
(d):
    (1) 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends; and
    (2) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government. [[Page 33481]] 


227.7105  Contracts for the acquisition of existing works.


227.7105-1  General.

    (a) Existing works include motion pictures, television recordings, 
video recordings, and other audiovisual works in any medium; sound 
recordings in any medium; musical, dramatic, and literary works; 
pantomimes and choreographic works; pictorial, graphic, and sculptural 
works; and works of a similar nature. Usually, these or similar works 
were not first created, developed, generated, originated, prepared, or 
produced under a Government contract. Therefore, the Government must 
obtain a license in the work if it intends to reproduce the work, 
distribute copies of the work, prepare derivative works, or perform or 
display the work publicly. When the Government is not responsible for 
the content of an existing work, it should require the copyright owner 
to indemnify the Government for liabilities that may arise out of the 
content, performance, use, or disclosure of such data.
    (b) Follow the procedures at 227.7106 for works which will be first 
created, developed, generated, originated, prepared, or produced under 
a Government contract and the Government needs to control distribution 
of the work or has a specific need to obtain indemnity for liabilities 
that may arise out of the creation, content, performance, use, or 
disclosure of the work or from libelous or other unlawful material 
contained in the work. Follow the procedures at 227.7103 when the 
Government does not need to control distribution of such works or 
obtain such indemnities.


227.7105-2  Acquisition of existing works without modification

    (a) Use the clause at 252.227-7021, Rights in Data--Existing Works, 
in lieu of the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, in solicitations and contracts exclusively for 
existing works when--
    (1) The existing works will be acquired without modification; and
    (2) The Government requires the right to reproduce, prepare 
derivative works, or publicly perform or display the existing works; or
    (3) The Government has a specific need to obtain indemnity for 
liabilities that may arise out of the content, performance, use, or 
disclosure of such data.
    (b) The clause at 252.227-7021 provides the Government, and others 
acting on its behalf, a paid-up, non-exclusive, irrevocable, world-wide 
license to reproduce, prepare derivative works and publicly perform or 
display the works called for by a contract and to authorize others to 
do so for government purposes.
    (c) A contract clause is not required to acquire existing works 
such as books, magazines and periodicals, in any storage or retrieval 
medium, when the Government will not reproduce the books, magazines or 
periodicals, or prepare derivative works.


227.7105-3  Acquisition of modified existing works.

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


227.7106  Contracts for special works.

    (a) Use the clause at 252.227-7020, Rights in Special Works, in 
solicitations and contracts where the Government has a specific need to 
control the distribution of works first produced, created, or generated 
in the performance of a contract and required to be delivered under 
that contract, including controlling distribution by obtaining an 
assignment of copyright, or a specific need to obtain indemnity for 
liabilities that may arise out of the creation, delivery, use, 
modification, reproduction, release, performance, display, or 
disclosure of such works. Use the clause--
    (1) In lieu of the clause at 252.227-7013, Rights in Technical 
Data--Noncommercial Items, when the Government must own or control 
copyright in all works first produced, created, or generated and 
required to be delivered under a contract; or
    (2) In addition to the clause at 252.227-7013 when the Government 
must own or control copyright in a portion of a work first produced, 
created, or generated and required to be delivered under a contract. 
The specific portion in which the Government must own or control 
copyright must be identified in a special contract requirement.
    (b) Although the Government obtains an assignment of copyright and 
unlimited rights in a special work under the clause at 252.227-7020, 
the contractor retains use and disclosure rights in that work. If the 
Government needs to restrict a contractor's rights to use or disclose a 
special work, it must also negotiate a special license which 
specifically restricts the contractor's use or disclosure rights.
    (c) The clause at 252.227-7020 does not permit a contractor to 
incorporate into a special work any works copyrighted by others unless 
the contractor obtains the contracting officer's permission to do so 
and obtains for the Government a non-exclusive, paid up, world-wide 
license to make and distribute copies of that work, to prepare 
derivative works, to perform or display publicly any portion of the 
work, and to permit others to do so for government purposes. Grant 
permission only when the Government's requirements cannot be satisfied 
unless the third party work is included in the deliverable work.
    (d) Examples of works which may be procured under the Rights in 
Special Works clause include, but are not limited, to audiovisual 
works, computer data bases, computer software documentation, scripts, 
soundtracks, musical compositions, and adaptations; histories of 
departments, agencies, services or units thereof; surveys of Government 
establishments; instructional works or guidance to Government officers 
and employees on the discharge of their official duties; reports, 
books, studies, surveys or similar documents; collections of data 
containing information pertaining to individuals that, if disclosed, 
would violate the right of privacy or publicity of the individuals to 
whom the information relates; or investigative reports.


227.7101  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.


227.7101-1  Architectural designs and data clauses for architect-
engineer or construction contracts.

    (a) Except as provided in paragraph (b) of this subsection and in 
227.7107-2, use the clause at 252.227-7022, Government Rights 
(Unlimited), in solicitations and contracts for architect-engineer 
services and for construction involving architect-engineer services.
    (b) When the purpose of a contract for architect-engineer services, 
or for construction involving architect-engineer services, is to obtain 
a unique architectural design of a building, a monument, or 
construction of similar nature, which for artistic, aesthetic or other 
special reasons the Government does not want duplicated, the Government 
may acquire exclusive control of the data pertaining to the design by 
including the clause at 252.227-7023, Drawings and Other Data to Become 
Property of Government, in solicitations and contracts. [[Page 33482]] 
    (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.


227.7102-2  Contracts for construction supplies and research and 
development work.

    Use the provisions and clauses required by 227-7103-6 and 227.7203-
6 when the acquisition is limited to--
    (a) Construction supplies or materials;
    (b) Experimental, developmental, or research work, or test and 
evaluation studies of structures, equipment, processes, or materials 
for use in construction; or
    (c) Both.


227.7107-3  Approval of restricted designs.

    The clause at 252.227-7024, Notice and Approval of Restricted 
Designs, may be included in architect-engineer contracts to permit the 
Government to make informed decisions concerning noncompetitive aspects 
of the design.
227.7108  Contractor data repositories.

    (a) Contractor data repositories may be established when permitted 
by agency procedures. The contractual instrument establishing the data 
repository must require, as a minimum, the data repository management 
contractor to--
    (1) Establish and maintain adequate procedures for protecting 
technical data delivered to or stored at the repository from 
unauthorized release or disclosure;
    (2) Establish and maintain adequate procedures for controlling the 
release or disclosure of technical data from the repository to third 
parties consistent with the Government's rights in such data;
    (3) When required by the contracting officer, deliver data to the 
Government on paper or in other specified media;
    (4) Be responsible for maintaining the currency of data delivered 
directly by Government contractors or subcontractors to the repository;
    (5) Obtain use and non-disclosure agreements (see 227.7103-7) from 
all persons to whom government purpose rights data is released or 
disclosed; and
    (6) Indemnify the Government from any liability to data owners or 
licensors resulting from, or as a consequence of, a release or 
disclosure of technical data made by the data repository contractor or 
its officers, employees, agents, or representatives.
    (b) If the contractor is or will be the data repository manager, 
the contractor's data management and distribution responsibilities must 
be identified in the contract or the contract must reference the 
agreement between the Government and the contractor that establishes 
those responsibilities.
    (c) If the contractor is not and will not be the data repository 
manager, do not require a contractor or subcontractor to deliver 
technical data marked with limited rights legends to a data repository 
managed by another contractor unless the contractor or subcontractor 
who has asserted limited rights agrees to release the data to the 
repository or has authorized, in writing, the Government to do so.
    (d) Repository procedures may provide for the acceptance, delivery, 
and subsequent distribution of technical data in storage media other 
than paper, including direct electronic exchange of data between two 
computers. The procedures must provide for the identification of any 
portions of the data provided with restrictive legends, when 
appropriate. The acceptance criteria must be consistent with the 
authorized delivery format.

Subpart 227.72--Rights in Computer Software and Computer Software 
Documentation

    7. A new subpart 227.72 is added to read as follows:
Subpart 227.72--Rights in Computer Software and Computer Software 
Documentation
Sec.
227.7200  Scope of subpart.
227.7201  Definitions.
227.7202  Commercial computer software and commercial computer 
software documentation.
227.7202-1  Policy.
227.7202-2  Obtaining commercial computer software or commercial 
computer software documentation.
227.7202-3  Rights in commercial computer software or commercial 
computer software documentation.
227.7202-4  Contract clause.
227.7203  Noncommercial computer software and noncommercial computer 
software documentation.
227.7203-1  Policy.
227.7203-2  Acquisition of noncommercial computer software and 
computer software documentation.
227.7203-3  Early identification of computer software or computer 
software documentation to be furnished to the Government with 
restrictions on use, reproduction or disclosure.
227.7203-4  License rights.
227.7203-5  Government rights.
227.7203-6  Contract clauses.
227.7203-7  Reserved.
227.7203-8  Deferred delivery and deferred ordering or computer 
software and computer software documentation.
227.7203-9  Copyright.
227.7203-10  Contractor identification and marking of computer 
software or computer software documentation to be furnished with 
restrictive markings.
227.7203-11  Contractor procedures and records.
227.7203-12  Government right to establish conformity of markings.
227.7203-13  Government right to review, verify, challenge and 
validate asserted restrictions.
227.7203-14  Conformity, acceptance, and warranty of computer 
software and computer software documentation.
227.7203-15  Subcontractor rights in computer software or computer 
software documentation.
227.7203-16  Providing computer software or computer software 
documentation to foreign governments, foreign contractors, or 
international organizations.
227.7203-17  Overseas contracts with foreign sources.
227.7204  Contracts under the Small Business Innovative Research 
Program.
227.7205  Contracts for special works.
227.7206  Contracts for architect-engineer services.
227.7207  Contractor data repositories.

Subpart 227.72--Rights in Computer Software and Computer Software 
Documentation


227.7200  Scope of subpart.

    This subpart--
    (a) Prescribes policies and procedures for the acquisition of 
computer software and computer software documentation, and the rights 
to use, modify, reproduce, release, perform, display, or disclose such 
software or documentation. It implements requirements in the following 
laws and Executive Order:
    (1) 10 U.S.C. 2302(4).
    (2) 10 U.S.C. 2305 (subsection (d)(4)).
    (3) 10 U.S.C. 2320.
    (4) 10 U.S.C. 2321.
    (5) 10 U.S.C. 2325.
    (6) Executive Order 12591 (subsection 1(b)(6)).
    (b) Does not apply to computer software or computer software 
documentation acquired under GSA schedule contracts.


227.7201  Definitions.

    (a) As used in this subpart, unless otherwise specifically 
indicated, the terms ``offeror'' and ``contractor'' include an 
offeror's or contractor's subcontractors, suppliers, or potential 
subcontractors or suppliers at any tier.
    (b) Other terms used in this subpart are defined in the clause at 
252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation. [[Page 33483]] 


227.7202  Commercial computer software and commercial computer software 
documentation.


227.7202-1  Policy.

    (a) Commercial computer software or commercial computer software 
documentation shall be acquired under the licenses customarily provided 
to the public unless such licenses are inconsistent with Federal 
procurement law or do not otherwise satisfy user needs.
    (b) Commercial computer software and commercial computer software 
documentation shall be obtained competitively, to the maximum extent 
practicable, using firm-fixed-price contracts or firm-fixed-priced 
orders under available pricing schedules.
    (c) Offerors and contractors shall not be required to--
    (1) Furnish technical information related to commercial computer 
software or commercial computer software documentation that is not 
customarily provided to the public except for information documenting 
the specific modifications made at Government expense to such software 
or documentation to meet the requirements of a Government solicitation; 
or
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release, perform, display, or disclose 
commercial computer software or commercial computer software 
documentation except for a transfer of rights mutually agreed upon.


227.7202-2  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 in subpart 211.70.


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

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


227.7202-4  Contract clause.

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


227.7203  Noncommercial computer software and noncommercial computer 
software documentation.


227.7203-1  Policy.

    (a) DoD policy is to acquire only the computer software and 
computer software documentation, and the rights in such software or 
documentation, necessary to satisfy agency needs.
    (b) Solicitations and contracts shall--
    (1) Specify the computer software or computer software 
documentation to be delivered under a contract and the delivery 
schedules for the software or documentation;
    (2) Establish or reference procedures for determining the 
acceptability of computer software or computer software documentation;
    (3) Establish separate contract line items, to the extent 
practicable, for the computer software or computer software 
documentation to be delivered under a contract and require offerors and 
contractors to price separately each deliverable data item; and
    (4) Require offerors to identify, to the extent practicable, 
computer software or computer software documentation to be furnished 
with restrictions on the Government's rights and require contractors to 
identify computer software or computer software documentation to be 
delivered with such restrictions prior to delivery.
    (c) Offerors shall not be required, either as a condition of being 
responsive to a solicitation or as a condition for award, to sell or 
otherwise relinquish to the Government any rights in computer software 
developed exclusively at private expense except for the software 
identified at 227.7203-5(a) (3) through (6).
    (d) Offerors and contractors shall not be prohibited or discouraged 
from furnishing or offering to furnish computer software developed 
exclusively at private expense solely because the Government's rights 
to use, modify, release, reproduce, perform, display, or disclose the 
software may be restricted.


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

    (a) Contracting officers shall work closely with data managers and 
requirements personnel to assure that computer software and computer 
software documentation requirements included in solicitations are 
consistent with the policy expressed in 227.7203-1.
    (b)(1) Data managers or other requirements personnel are 
responsible for identifying the Government's minimum needs. In addition 
to desired software performance, compatibility, or other technical 
considerations, needs determinations should consider such factors as 
multiple site or shared use requirements, whether the Government's 
software maintenance philosophy will require the right to modify or 
have third parties modify the software, and any special computer 
software documentation requirements.
    (2) When reviewing offers received in response to a solicitation or 
other request for computer software or computer software documentation, 
data managers must balance the original assessment of the Government's 
needs with prices offered.
    (c) Contracting officers are responsible for ensuring that, 
wherever practicable, solicitations and contracts--
    (1) Identify the types of computer software and the quantity of 
computer programs and computer software documentation to be delivered, 
any requirements for multiple users at one site or multiple site 
licenses, and the format and media in which the software or 
documentation will be delivered;
    (2) Establish each type of computer software or computer software 
documentation to be delivered as a separate contract line item (this 
requirement may be satisfied by an exhibit to the contract);
    (3) Identify the prices established for each separately priced 
deliverable item of computer software or computer software 
documentation under a fixed-price type contract;
    (4) Include delivery schedules and acceptance criteria for each 
deliverable item; and
    (5) Specifically identify the place of delivery for each 
deliverable item.


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

    (a) Use the provision at 252.227-7017, Identification and Assertion 
of Use, Release, or Disclosure Restrictions, in all solicitation that 
include the clause at [[Page 33484]] 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation. The provision requires offerors to identify any computer 
software or computer software documentation for which restrictions, 
other than copyright, on use, modification, reproduction, release, 
performance, display, or disclosure are asserted and to attach the 
identification and assertion to the offer.
    (b) Subsequent to contract award, the clause at 252.227-7014 
permits a contractor, under certain conditions, to make additional 
assertions of restrictions. The prescriptions for the use of that 
clause and its alternates are at 227.7203-6(a).


227.7203-4  License rights.

    (a) Grant of license. The Government obtains rights in computer 
software or computer software documentation, including a copyright 
license, under an irrevocable license granted or obtained by the 
contractor which developed the software or documentation or the 
licensor of the software or documentation if the development contractor 
is not the licensor. The contractor or licensor retains all rights in 
the software or documentation not granted to the Government. The scope 
of a computer software license is generally determined by the source of 
funds used to develop the software. Contractors or licensors may, with 
some exceptions, restrict the Government's rights to use, modify, 
reproduce, release, perform, display, or disclose computer software 
developed exclusively or partially at private expense (see 227.7203-5 
(b) and (c)). They may not, without the Government's agreement (see 
227.7203-5(d)), restrict the Government's rights in computer software 
developed exclusively with Government funds or in computer software 
documentation required to be delivered under a contract.
    (b) Source of funds determination. The determination of the source 
of funds used to develop computer software should be made at the lowest 
practicable segregable portion of the software or documentation (e.g., 
a software sub-routine that performs a specific function). Contractors 
may assert restricted rights in a segregable portion of computer 
software which otherwise qualifies for restricted rights under the 
clause at 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.


227.7203-5  Government rights.

    The standard license rights in computer software that a licensor 
grants to the Government are unlimited rights, government purpose 
rights, or restricted rights. The standard license in computer software 
documentation conveys unlimited rights. Those rights are defined in the 
clause at 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation. In unusual situations, 
the standard rights may not satisfy the Government's needs or the 
Government may be willing to accept lesser rights in return for other 
consideration. In those cases, a special license may be negotiated. 
However, the licensor is not obligated to provide the Government 
greater rights and the contracting officer is not required to accept 
lesser rights than the rights provided in the standard grant of 
license. The situations under which a particular grant of license 
applies are enumerated in paragraphs (a) through (d) of this 
subsection.
    (a) Unlimited rights. The Government obtains an unlimited rights 
license in--
    (1) Computer software developed exclusively with Government funds;
    (2) Computer software documentation required to be delivered under 
a Government contract;
    (3) Corrections or changes to computer software or computer 
software documentation furnished to the contractor by the Government;
    (4) Computer software or computer software documentation that is 
otherwise publicly available or has been released or disclosed by the 
contractor or subcontractor without restrictions on further use, 
release or disclosure other than a release or disclosure resulting from 
the sale, transfer, or other assignment of interest in the software to 
another party or the sale or transfer of some or all of a business 
entity or it assets to another party;
    (5) Computer software or computer software documentation obtained 
with unlimited rights under another Government contract or as a result 
of negotiations; or
    (6) Computer software or computer software documentation furnished 
to the Government, under a Government contract or subcontract with--
    (i) Restricted rights in computer software, limited rights in 
technical data, or government purpose license rights and the 
restrictive conditions have expired; or
    (ii) Government purpose rights and the contractor's exclusive right 
to use such software or documentation for commercial purposes has 
expired.
    (b) Government purpose rights. (1) Except as provided in paragraph 
(a) of this subsection, the Government obtains government purpose 
rights in computer software developed with mixed funding.
    (2) The period during which government purpose rights are effective 
is negotiable. The clause at 252.227-7014 provides a nominal five-year 
period. Either party may request a different period. Changes to the 
government purpose rights period may be made at any time prior to 
delivery of the software without consideration from either party. 
Longer periods should be negotiated when a five-year period does not 
provide sufficient time to commercialize the software or, for software 
developed by subcontractors, when necessary to recognize the 
subcontractors' interests in the software.
    (3) The government purpose rights period commences upon execution 
of the contract, subcontract, letter contract (or similar contractual 
instrument), contract modification, or option exercise that required 
development of the computer software. Upon expiration of the government 
purpose rights period, the Government has unlimited rights in the 
software including the right to authorize others to use data for 
commercial purposes.
    (4) During the government purpose rights period, the Government may 
not use, or authorize other persons to use, computer software marked 
with government purpose rights legends for commercial purposes. The 
Government shall not release or disclose, or authorize others to 
release or disclose, computer software in which it has government 
purpose rights to any person unless--
    (i) Prior to release or disclosure, the intended recipient is 
subject to the use and non-disclosure agreement at 227.7103-7; or
    (ii) The intended recipient is a Government contractor receiving 
access to the software for performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends.
    (5) When computer software marked with government purpose rights 
legends will be released or disclosed to a Government contractor 
performing a contract that does not include the clause at 252.227-7025, 
the contract may be modified, prior to release or disclosure, to 
include such clause in lieu of requiring the contractor to complete a 
use and non-disclosure agreement.
    (6) Contracting activities shall establish procedures to assure 
that computer software or computer software documentation marked with 
government purpose rights legends are released or disclosed, including 
a [[Page 33485]] release or disclosure through a Government 
solicitation, only to persons subject to the use and non-disclosure 
restrictions. Public announcements in the Commerce Business Daily or 
other publications must provide notice of the use and non-disclosure 
requirements. Class use and non-disclosure agreements (e.g., agreements 
covering all solicitations received by the XYZ company within a 
reasonable period) are authorized and may be obtained at any time prior 
to release or disclosure of the government purpose rights software or 
documentation. Documents transmitting government purpose rights 
software or documentation to persons under class agreements shall 
identify the specific software or documentation subject to government 
purpose rights and the class agreement under which such software or 
documentation are provided.
    (c) Restricted rights. (1) The Government obtains restricted rights 
in noncommercial computer software required to be delivered or 
otherwise provided to the Government under a contract that 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 paragraph (d) of this subsection). The 
license shall enumerate the specific additional rights granted to the 
Government.
    (d) Specifically negotiated license rights. Negotiate specific 
licenses when the parties agree to modify the standard license rights 
granted to the Government or when the Government wants to obtain rights 
in computer software in which it does not have rights. When negotiating 
to obtain, relinquish, or increase the Government's rights in computer 
software, consider the planned software maintenance philosophy, 
anticipated time or user sharing requirements, and other factors which 
may have relevance for a particular procurement. If negotiating to 
relinquish rights in computer software documentation, consider the 
administrative burden associated with protecting documentation subject 
to restrictions from unauthorized release or disclosure. The negotiated 
license rights must stipulate the rights granted the Government to use, 
modify, reproduce, release, perform, display, or disclose the software 
or documentation and the extent to which the Government may authorize 
others to do so. Identify all negotiated rights in a license agreement 
made part of the contract.
    (e) Rights in derivative computer software or computer software 
documentation. The clause at 252.227-7014 protects the Government's 
rights in computer software, computer software documentation, or 
portions thereof that the contractor subsequently uses to prepare 
derivative software or subsequently embeds or includes in other 
software or documentation. The Government retains the rights it 
obtained under the development contract in the unmodified portions of 
the derivative software or documentation.


227.7203-6  Contract clauses.

    (a)(1) use the clause at 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, in 
solicitations and contracts when the successful offeror(s) will be 
required to deliver computer software or computer software 
documentation. Do not use the clause when the only deliverable items 
are technical data (other than computer software documentation), 
commercial computer software or commercial computer software 
documentation, commercial items (see 227.7102-3), special works (see 
227.7205), or contracts under the Small Business Innovative Research 
Program (see 227.7104), Except as provided in 227.7107-2, do not use 
the clause in architect-engineer and construction contracts..
    (2) Use the clause at 252.227-7014 with its Alternate I in research 
contracts when the contracting officer determines, in consultation with 
counsel, that public dissemination by the contractor would be--
    (i) In the interest of the Government; and
    (ii) Facilitated by the Government relinquishing its right to 
publish the work for sale, or to have others publish the work for sale 
on behalf of the Government.
    (b) Use the clause at 252.227-7016, Rights in Bid or Proposal 
Information, in solicitations and contracts that include the clause at 
252.227-7014.
    (c) Use the clause at 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, in solicitations and contracts that 
include the clause at 252.227-7014. The clause provides procedures for 
the validation of asserted restrictions on the Government's rights to 
use, release, or disclose computer software.
    (d) Use the provision 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).
    (e) Use the provision at 252.227-7028, Technical Data or Computer 
Software Previously Delivered to the Government, in solicitations when 
the resulting contract will require the contractor to deliver computer 
software or computer software documentation. The provision requires 
offerors to identify any software or documentation specified in the 
solicitation as deliverable items that are the same or substantially 
the same as software or documentation which the offeror has delivered 
or is obligated to deliver, either as a contractor or subcontractor, 
under any other federal agency contract.
    (f) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, in solicitations and contracts that include 
the clause at 252.227-7014 when the contractor will be required to 
deliver noncommercial computer software documentation (technical data). 
The clause implements statutory requirements under 10 U.S.C. 2321. 
Paragraph (e) of the clause contains information that must be included 
in a formal challenge.


227.7203-7  [Reserved]


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

    (a) Deferred delivery. Use the clause at 252.227-7026, Deferred 
Delivery of Technical Data or Computer Software, when it is in the 
Government's interests to defer the delivery of computer software or 
computer software documentation. The clause permits the contracting 
officer to require the delivery of data identified as ``deferred 
delivery'' data or computer software at any time until two years after 
acceptance by the Government of all items (other than technical data or 
computer software) under the contract or contract termination, 
whichever is later. The obligation of subcontractors or suppliers to 
deliver such data expires two years after the date the prime contractor 
accepts the last item from the subcontractor or supplier for use in the 
performance of the contract. The contract must specify the computer 
[[Page 33486]] software or computer software documentation that is 
subject to deferred delivery. The contracting officer shall notify the 
contractor sufficiently in advance of the desired delivery date for 
such software or documentation to permit timely delivery.
    (b) Deferred ordering. Use the clause at 252.227-7027, Deferred 
Ordering of Technical Data or Computer Software, when a firm 
requirement for software or documentation has not been established 
prior to contract award but there is a potential need for computer 
software or computer software documentation. Under this clause the 
contracting officer may order any computer software or computer 
software documentation generated in the performance of the contract or 
any subcontract thereunder at any time until three years after 
acceptance of all items (other than technical data or computer 
software) under the contract or contract termination, whichever is 
later. The obligation of subcontractors to deliver such technical data 
or computer software expires three years after the date the contractor 
accepts the last item under the subcontract. When the software or 
documentation are ordered, the delivery dates shall be negotiated and 
the contractor compensated only for converting the software or 
documentation into the prescribed form, reproduction costs, and 
delivery costs.


227.7203-9  Copyright.

    (a) Copyright license. (1) The clause at 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation, requires a contractor to grant, or obtain for the 
Government license rights which permit the Government to reproduce the 
software or documentation, distribute copies, perform or display the 
software or documentation and, through the right to modify data, 
prepare derivative works. The extent to which the Government, and 
others acting on its behalf, may exercise these rights varies for each 
of the standard data rights licenses obtained under the clause. When 
non-standard license rights in computer software or computer software 
documentation will be negotiated, negotiate the extent of the copyright 
license concurrent with negotiations for the data rights license. Do 
not negotiate copyright licenses for computer software that provide 
less rights than the standard restricted rights in computer software 
license. For computer software documentation, do not negotiate a 
copyright license that provides less rights than the standard limited 
rights in technical data license.
    (2) The clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, does not permit a contractor to incorporate a 
third party's copyrighted software into a deliverable software item 
unless the contractor has obtained an appropriate license for the 
Government and, when applicable, others acting on the Government's 
behalf, or has obtained the contracting officer's written approval to 
do so. Grant approval to use third party copyrighted software in which 
the Government will not receive a copyright license only when the 
Government's requirements cannot be satisfied without the third party 
material or when the use of the third party material will result in 
cost savings to the Government which outweigh the lack of a copyright 
license.
    (b) Copyright considerations--special works. See 227.7205 for 
copyright considerations when acquiring special works.
227.7203-10  Contractor identification and marking of computer software 
or computer software documentation to be furnished with restrictive 
markings.

    (a) Identification requirements: (1) The solicitation provision at 
252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions, requires offerors to identify, prior to 
contract award, any computer software or computer software 
documentation that an offeror asserts should be provided to the 
Government with restrictions on use, modification, reproduction, 
release or disclosure. This requirement does not apply to restrictions 
based solely on copyright. The notification and identification must be 
submitted as an attachment to the offer. If an offeror fails to submit 
the attachment or fails to complete the attachment in accordance with 
the requirements of the solicitation provision, such failure shall 
constitute a minor informality. Provide offerors an opportunity to 
remedy a minor informality in accordance with the procedures at FAR 
14.405 or 15.607. 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 227.7203-13.
    (3) The restrictions asserted by a successful offeror shall be 
attached to its contract unless, in accordance with the procedures at 
227.7203-13, the parties have agreed that an asserted restriction is 
not justified. The contract attachment shall provide the same 
information regarding identification of the computer software or 
computer software documentation, the asserted rights category, the 
basis for the assertion, and the name of the person asserting the 
restrictions as required by paragraph (d) of the solicitation provision 
at 252.227-7017. Subsequent to contract award, the clause at 252.227-
7014, Rights in Noncommercial Computer Software and Noncommercial 
Computer Software Documentation, permits a contractor to make 
additional assertions under certain conditions. The additional 
assertions must be made in accordance with the procedures and in the 
format prescribed by that clause.
    (4) Neither the pre- or post-award assertions made by the 
contractor nor the fact that certain assertions are identified in the 
attachment to the contract, determine the respective rights of the 
parties. As provided at 227.7203-13, the Government has the right to 
review, verify, challenge and validate restrictive markings.
    (5) Information provided by offerors in response to the 
solicitation provision at 252.227-7017 may be used in the source 
selection process to evaluate the impact on evaluation factors that may 
be created by restrictions on the Government's ability to use or 
disclose computer software or computer software documentation.
    (b) Contractor marking requirements. The clause at 252.227-7014, 
Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation--
    (1) Requires a contractor who desires to restrict the Government's 
rights in computer software or computer software documentation to place 
restrictive markings on the software or documentation, provides 
instructions for the placement of the restrictive markings, and 
authorizes the use of certain restrictive markings. When it is 
anticipated that the software will or may be used in combat or 
situations which simulate combat conditions, do not permit contractors 
to insert instructions into computer programs that interfere with or 
delay operation of the software to display a restrictive rights legend 
or other license notice; and
    (2) Requires a contractor to deliver, furnish, or otherwise provide 
to the Government any computer software or computer software 
documentation in which the Government has previously obtained rights 
with the Government's pre-existing rights in that software or 
documentation unless the parties have [[Page 33487]] agreed otherwise 
or restrictions on the Government's rights to use, modify, produce, 
release, or disclose the software or documentation have expired. When 
restrictions are still applicable, the contractor is permitted to mark 
the software or documentation with the appropriate restrictive legend.
    (c) Unmarked computer software or computer software documentation. 
(1) Computer software or computer software documentation delivered or 
otherwise provided under a contract without restrictive markings shall 
be presumed to have been delivered with unlimited rights and may be 
released or disclosed without restriction. To the extent practicable, 
if a contractor has requested permission (see paragraph (c)(2) of this 
subsection) to correct an inadvertent omission of markings, do not 
release or disclose the software or documentation pending evaluation of 
the request.
    (2) A contractor may request permission to have appropriate legends 
placed on unmarked computer software or computer software documentation 
at its expense. The request must be received by the contracting officer 
within six months following the furnishing or delivery of such software 
or documentation, or any extension of that time approved by the 
contracting officer. The person making the request must--
    (i) Identify the software or documentation that should have been 
marked;
    (ii) Demonstrate that the omission of the marking was inadvertent, 
the proposed marking is justified and conforms with the requirements 
for the marking of computer software or computer software documentation 
contained in the clause at 252.227-7014; and
    (iii) Acknowledge, in writing, that the Government has no liability 
with respect to any disclosure, reproduction, or use of the software or 
documentation made prior to the addition of the marking or resulting 
from the omission of the marking.
    (3) Contracting officers should grant permission to mark only if 
the software or documentation were not distributed outside the 
Government or were distributed outside the Government with restrictions 
on further use or disclosure.


227.7203-11  Contractor procedures and records.

    (a) The clause at 252.227-7014, Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation, requires a 
contractor, and its subcontractors or suppliers that will deliver 
computer software or computer software documentation with other than 
unlimited rights, to establish and follow written procedures to assure 
that restrictive markings are used only when authorized and to maintain 
records to justify the validity of restrictive markings.
    (b) The clause at 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, requires contractors and their 
subcontractors or suppliers at any tier to maintain records sufficient 
to justify the validity of markings that assert restrictions on the 
use, modification, reproduction, release, performance, display, or 
disclosure of computer software.


227.7203-12  Government right to establish conformity of markings.

    (a) Nonconforming markings. (1) Authorized markings are identified 
in the clause at 252.227-7014, Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation. All other 
markings are nonconforming markings. An authorized marking that is not 
in the form, or differs in substance, from the marking requirements in 
the clause at 252.227-7014 is also a nonconforming marking.
    (2) The correction of nonconforming markings on computer software 
is not subject to 252.227-7019, Validation of Asserted Restrictions--
Computer Software, and the correction of nonconforming markings on 
computer software documentation (technical data) is not subject to 
252.227-7037, Validation of Restrictive Markings on Technical Data. To 
the extent practicable, the contracting officer should return computer 
software or computer software documentation bearing nonconforming 
markings to the person who has placed the nonconforming markings on the 
software or documentation to provide that person an opportunity to 
correct or strike the nonconforming markings at that person's expense. 
If that person fails to correct the nonconformity and return the 
corrected software or documentation within 60 days following the 
person's receipt of the software or documentation, the contracting 
officer may correct or strike the nonconformity at the person's 
expense. When it is impracticable to return computer software or 
computer software documentation for correction, contracting officers 
may unilaterally correct any nonconforming markings at Government 
expense. Prior to correction, the software or documentation may be used 
in accordance with the proper restrictive marking.
    (b) Unjustified markings. (1) An unjustified marking is an 
authorized marking that does not depict accurately restrictions 
applicable to the Government's use, modification, reproduction, 
release, or disclosure of the marked computer software or computer 
software documentation. For example, a restricted rights legend placed 
on computer software developed under a Government contract either 
exclusively at Government expense or with mixed funding (situations 
under which the Government obtains unlimited or government purpose 
rights) is an unjustified marking.
    (2) Contracting officers have the right to review and challenge the 
validity of unjustified markings. However, at any time during 
performance of a contract and notwithstanding existence of a challenge, 
the contracting officer and the person who has asserted a restrictive 
marking may agree that the restrictive marking is not justified. Upon 
such agreement, the contracting officer may, at his or her election, 
either----
    (i) Strike or correct the unjustified marking at that person's 
expense; or
    (ii) Return the computer software or computer software 
documentation to the person asserting the restriction for correction at 
that person's expense. If the software or documentation are returned 
and that person fails to correct or strike the unjustified restriction 
and return the corrected software or documentation to the contracting 
officer within 60 days following receipt of the software or 
documentation, the unjustified marking shall be corrected or stricken 
at that person's expense.


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

    (a) General. An offeror's or contractor's assertion(s) of 
restrictions on the Government's rights to use, modify, reproduce, 
release, or disclose computer software or computer software 
documentation do not, by themselves, determine the extent of the 
Government's rights in such software or documentation. The Government 
may require an offeror or contractor to submit sufficient information 
to permit an evaluation of a particular asserted restriction and may 
challenge asserted restrictions when there are reasonable grounds to 
believe that an assertion is not valid.
    (b) Requests for information. Contracting officers should have a 
reason to suspect that an asserted restriction might not be correct 
prior to requesting information. When [[Page 33488]] requesting 
information, provide the offeror or contractor the reason(s) for 
suspecting that an asserted restriction might not be correct. A need 
for additional license rights is not, by itself, a sufficient basis for 
requesting information concerning an asserted restriction. Follow the 
procedures at 227.7203-5(d) when additional license rights are needed 
but there is no basis to suspect that an asserted restriction might not 
be valid.
    (c) Transacting matters directly with subcontractors. The clause at 
252.227-7019, Validation of Asserted Restrictions--Computer Software, 
obtains the contractor's agreement that the Government may transact 
matters under the clause directly with a subcontractor or supplier, at 
any tier, without creating or implying privity of contract. Contracting 
officers should permit a subcontractor or supplier to transact 
challenge and validation matters directly with the Government when--
    (1) A subcontractor's or supplier's business interests in its 
technical data would be compromised if the data were disclosed to a 
higher tier contractor.
    (2) There is reason to believe that the contractor will not respond 
in a timely manner to a challenge and an untimely response would 
jeopardize a subcontractor's or supplier's right to assert 
restrictions; or
    (3) Requested to do so by a subcontractor or supplier.
    (d) Challenging asserted restrictions. (1) Pre-award 
considerations. The challenge procedures in the clause at 252.227-7019 
could significantly delay competitive procurements. Therefore, avoid 
challenging asserted restrictions prior to a competitive contract award 
unless resolution of the assertion is essential for successful 
completion of the procurement.
    (2) Computer software documentation. Computer software 
documentation is technical data. Challenges to asserted restrictions on 
the Government's rights to use, modify, reproduce, release, perform, 
display, or disclose computer software documentation must be made in 
accordance with the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, and the guidance at 227.7103-13. The 
procedures in the clause at 252.227-7037 implement requirements 
contained in 10 U.S.C. 2321. Resolution of questions regarding the 
validity of asserted restrictions using the process described at 
227.7103-12(b)(2) is strongly encouraged.
    (3) Computer software. (i) Asserted restrictions should be reviewed 
before acceptance of the computer software deliverable under a 
contract. The Government's right to challenge an assertion expires 
three years after final payment under the contract or three years after 
delivery of the software, whichever is later. Those limitations on the 
Government's challenge rights do not apply to software that is publicly 
available, has been furnished to the Government without restrictions, 
or has been otherwise made available without restrictions.
    (ii) Contracting officers must have reasonable grounds to challenge 
the current validity of an asserted restriction. Before challenging an 
asserted restriction, carefully consider all available information 
pertaining to the asserted restrictions. Resolution of questions 
regarding the validity of asserted restrictions using the process 
described at 227.7203-12(b)(2) is strongly encouraged. After 
consideration of the situations described in paragraph (c) of this 
subsection, contracting officers may request the person asserting a 
restriction to furnish a written explanation of the facts and 
supporting documentation for the assertion in sufficient detail to 
enable the contracting officer to determine the validity of the 
assertion. Additional supporting documentation may be requested when 
the explanation provided by that person does not, in the contracting 
officer's opinion, establish the validity of the assertion.
    (iii) Assertions may be challenged whether or not supporting 
documentation was requested. Challenges must be in writing and issued 
to the person asserting the restriction.
    (4) Extension of response time. The contracting officer, at his or 
her discretion, may extend the time for response contained in a 
challenge, as appropriate, if the contractor submits a timely written 
request showing the need for additional time to prepare a response.
    (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.


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

    (a) Computer software documentation. Computer software 
documentation is technical data. See 227.7103-14 for appropriate 
guidance and statutory requirements.
    (b) Computer software. (1) Conformity and acceptance. Solicitations 
and contracts requiring the delivery of computer software shall specify 
the requirements the software must satisfy to be acceptable. 
Contracting officers, or their authorized representatives, are 
responsible for determining whether computer software tendered for 
acceptance conforms to the contractual requirements. Except for 
nonconforming restrictive markings (follow the procedures at 227.7203-
12(a) if nonconforming markings are the sole reason computer software 
tendered for acceptance fails to conform to contractual requirements), 
do not accept software that does not conform in all respects to 
applicable contractual requirements. Correction or replacement of 
nonconforming software, or an equitable reduction in contract price 
when correction or replacement of the nonconforming data is not 
practicable or is not in the Government's interests, shall be 
accomplished in accordance with--
    (i) The provisions of a contract clause providing for inspection 
and acceptance of deliverables and remedies for nonconforming 
deliverables; or
    (ii) The procedures at FAR 46.407(c) through (g), if the contract 
does not contain an inspection clause providing [[Page 33489]] 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.


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

    (a) Subcontractors and suppliers at all tiers should be provided 
the same protection for their rights in computer software or computer 
software documentation as are provided to prime contractors.
    (b) The clauses at 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, and 252.227-7037, Validation of 
Restrictive Markings on Technical Data, obtain a contractor's agreement 
that the Government's transaction of validation or challenge matters 
directly with subcontractors at any tier does not establish or imply 
privity of contract. When a subcontractor or supplier exercises its 
right to transact validation matters directly with the Government, 
contracting officers shall deal directly with such persons, as provided 
at 227.7203-13(c) for computer software and 227.7103-13(c)(3) for 
computer software documentation (technical data).
    (c) Require prime contractors whose contracts include the following 
clauses to include those clauses, without modification except for 
appropriate identification of the parties, in contracts with 
subcontractors or suppliers who will be furnishing computer software in 
response to a Government requirement (see 227.7103-15(c) for clauses 
required when subcontractors or suppliers will be furnishing computer 
software documentation (technical data)):
    (1) 252.227.7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation;
    (2) 252.227.7019, Validation of Asserted Restrictions--Computer 
Software;
    (3) 252.227.7025, Limitations on the Use or Disclosure of 
Government Furnished Information Marked with Restrictive Legends; and
    (4) 252.227.7028, Technical Data or Computer Software Previously 
Delivered to the Government.
    (d) Do not require contractors to have their subcontractors or 
suppliers at any tier relinquish rights in technical data to the 
contractor, a higher tier subcontractor, or to the Government, as a 
condition for award of any contract, subcontract, purchase order, or 
similar instrument except for the rights obtained by the Government 
under the provisions of the Rights in Noncommercial Computer Software 
and Noncommercial Computer Software Documentation clause contained in 
the contractor's contract with the Government.


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

    Computer software or computer software documentation may be 
released or disclosed to foreign governments, foreign contractors, or 
international organizations only if release or disclosure is otherwise 
permitted both by Federal export controls and other national security 
laws or regulations. Subject to such laws and regulations, the 
Department of Defense--
    (a) May release or disclose computer software or computer software 
documentation in which it has obtained unlimited rights to such foreign 
entities or authorize the use of such data by those entities; and
    (b) Shall not release or disclose computer software or computer 
software documentation for which restrictions on use, release, or 
disclosure have been asserted to such foreign entities or authorize the 
use of such data by those entities, unless the intended recipient is 
subject to the same provisions as included in the use and non-
disclosure agreement at 227.7103-7 and the requirements of the clause 
at 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation, governing use, 
modification, reproduction, release, performance, display, or 
disclosure of such data have been satisfied.


227.7203-17  Overseas contracts with foreign sources.

    (a) The clause at 252.227-7032, Rights in Technical Data and 
Computer Software (Foreign), may be used in contracts with foreign 
contractors to be performed overseas, except Canadian purchases (see 
paragraph (c) of this subsection) in lieu of the clause at 252.227-
7014, Rights in Noncommercial Computer Software and Noncommercial 
Computer Software Documentation, when the Government requires the 
unrestricted right to use, modify, reproduce, release, perform, 
display, or disclose all computer software or computer software 
documentation to be delivered under the contract. Do not use the clause 
in contracts for special works.
    (b) When the Government does not require unlimited rights, the 
clause at 252.227-7032 may be modified to accommodate the needs of a 
specific overseas procurement situation. The Government should obtain 
rights to the computer software or computer software documentation that 
are not less than the rights the Government would have obtained under 
the software rights clause(s) prescribed in this part for a comparable 
procurement performed within the United States or its possessions.
    (c) Contracts for Canadian purchases shall include the appropriate 
software rights clause prescribed in this part for a comparable 
procurement performed within the United States or its possessions.


227.7204  Contracts under the Small Business Innovative Research 
Program.

    When contracting under the Small Business Innovative Research 
Program, follow the procedures at 227-7104.


227.7205  Contracts for special works.

    (a) Use the clause at 252.227-7020, Rights in Special Works, in 
solicitations and contracts where the Government has a specific need to 
control the distribution of computer software or computer software 
documentation first produced, created, or generated in the performance 
of a contract and required to be delivered under that contract, 
including controlling distribution by obtaining an assignment of 
copyright, or a specific need to obtain indemnity for liabilities that 
may arise out of the creation, delivery, use, modification, 
reproduction, release, performance, display, or disclosure of such 
software or documentation. Use the clause--
    (1) In lieu of the clause at 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
when the Government must own or control copyright in all computer 
software or computer software documentation first produced, created, or 
generated and required to be delivered under a contract; 
or [[Page 33490]] 
    (2) In addition to the clause at 252.227-7014 when the Government 
must own or control copyright in some of the computer software or 
computer software documentation first produced, created, or generated 
and required to be delivered under a contract. The specific software or 
documentation in which the Government must own or control copyright 
must be identified in a special contract requirement.
    (b) Although the Government obtains an assignment of copyright and 
unlimited rights in the computer software or computer software 
documentation delivered as a special work under the clause at 252.227-
7020, the contractor retains use and disclosure rights in that software 
or documentation. If the Government needs to restrict a contractor's 
rights to use or disclose a special work, it must also negotiate a 
special license which specifically restricts the contractor's use or 
disclosure rights.
    (c) The clause at 252.227-7020 does not permit a contractor to 
incorporate into a special work any work copyrighted by others unless 
the contractor obtains the contracting officer's permission to do so 
and obtains for the Government a non-exclusive, paid up, world-wide 
license to make and distribute copies of that work, to prepare 
derivative works, to perform or display any portion of that work, and 
to permit others to do so for government purposes. Grant permission 
only when the Government's requirements cannot be satisfied unless the 
third party work is included in the deliverable work.
    (d) Examples of other works which may be procured under the clause 
at 252.227-7020 include, but are not limited to, audiovisual works, 
scripts, soundtracks, musical compositions, and adaptations; histories 
of departments, agencies, services or units thereof; surveys of 
Government establishments; instructional works or guidance to 
Government officers and employees on the discharge of their official 
duties; reports, books, studies, surveys or similar documents; 
collections of data containing information pertaining to individuals 
that, if disclosed, would violate the right of privacy or publicity of 
the individuals to whom the information relates; or investigative 
reports.


227.7206  Contracts for architect-engineer services.

    Follow 227.7107 when contracting for architect-engineer services.


227.7207  Contractor data repositories.

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

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.211-7015  [Removed and Reserved]

    8. Section 252.211-7015 is removed and reserved.


252.211-7016  [Removed and Reserved]

    9. Section 252.211-7016 is removed and reserved.


252.211-7017  [Removed and Reserved]

    10. Section 252.211-7017 is removed and reserved.


252.211-7021  [Amended]

    11. Section 252.211-7021 is amended by revising the clause date to 
read ``(JUN 1995)'' in lieu of ``(MAY 1991); by revising in paragraph 
(b)(1) in the title in the clause list under the clause number 252.225-
7001 the word ``Payment'' to read ``Payments;'' by adding in paragraph 
(b)(1) an additional clause at the end of the clause list to read 
``252.227-7015 Technical Data--Commercial Items;'' and by revising in 
paragraph (b)(2) in the title in the clause list under the clause 
number FAR 52.223-1 the word ``Clear'' to read ``Clean;''
    12. Section 252.227-7013 is revised to read as follows:


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

    As prescribed in 227.7103-6(a), use the following clause:

Rights in Technical Data--Noncommercial Items (June 1995)

    (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) 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) 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. [[Page 33491]] 
    (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 made to 
use, modify, reproduce, 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 or authorize 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;
    (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, world-wide, 
nonexclusive, irrevocable license rights in technical data other 
than computer software documentation (see the Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation clause of this contract 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 paragraphs (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 paragraph (b)(2)(i)(B) of this clause. 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 227.7103-7 of the Defense 
Federal Acquisition Regulation Supplement (DFARS); or
    (B) The recipient is a Government contractor receiving access to 
the data for performance of a Government contract that contains the 
clause at DFARS 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 paragraphs (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, perform, display, 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 
paragraphs (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. [[Page 33492]] 
    (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 paragraph (a)(13) or (b)(2)(iii) of this clause, in accordance 
with the terms of a license negotiated under paragraph (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 paragraph (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 be                     Asserted     Name of person
furnished with restrictions    Basis for      rights        asserting   
            \1\                assertion   category \3\    restrictions 
----------------------------------\2\--------------------------\4\------
(LIST).....................  (LIST)......  (LIST)......  (LIST)         
------------------------------------------------------------------------
\1\ 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.                                          
\2\ 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.                                                        
\3\ 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).                 
\4\ 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, perform, display, 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 paragraph (f)(2) of this clause; the limited rights 
legend at paragraph (f)(3) of this clause; or the special license 
rights legend at paragraph (f)(4) of this clause; 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. Technical data transmitted directly from one 
computer or computer terminal to another shall contain a notice of 
asserted restrictions. Reproductions of technical data or any 
portions thereof subject to asserted restrictions shall also 
reproduce the asserted restrictions.
    (2) Government purpose rights markings. Data delivered or 
otherwise furnished to the 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 these technical data are restricted by 
paragraph (b)(2) of the Rights in Technical Data--Noncommercial 
Items clause 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 Rights in Technical Data--Noncommercial 
Items clause 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 paragraph (b)(5) of this clause). [[Page 33493]] 
    (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 
paragraph (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 Validation of Restrictive Markings on Technical 
Data clause of this contract. Notwithstanding any provision of this 
contract concerning inspection and acceptance, the Government may 
ignore or, at the Contractor's expense, correct or strike a marking 
if, in accordance with the procedures in the Validation of 
Restrictive Markings on Technical Data clause of this contract, 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 the Validation of Restrictive Markings on 
Technical Data clause of this contract. If the Contracting Officer 
notifies the Contractor of a nonconforming marking and the 
Contractor fails to remove or correct 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 charges, 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) of this clause--
    (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; 
and
    (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 noncommercial 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. The Contractor shall use the Technical Data--
Commercial Items clause of this contract to obtain technical data 
pertaining to commercial items, components, or processes. No other 
clause shall be used to enlarge or diminish the Government's, the 
Contractor's, or a higher-tier subcontractor's or supplier's rights 
in a subcontractor's or supplier's technical data.
    (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 
shall 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 obligations 
to the Government.

(End of clause)

Alternate I (June 1995)

    As prescribed in 227.7103-6(b), add the following paragraph (l) 
to the basic clause:
    (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.

    13. 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 227.7203-6(a)(1), use the following clause.

Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation (June 1995)

    (a) Definitions. As used in this clause:
    (1) Commercial computer software means software developed or 
regularly used for nongovernmental 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 paragraph (a)(1) (i), 
(ii), or (iii) of this clause 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; [[Page 33494]] 
    (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 paragraph (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 paragraphs 
(a)(14) (i) and (iii) of this clause; and
    (B) Not release or disclose the modified software except as 
provided in paragraphs (a)(14) (ii), (v) and (vi) of this clause;
    (v) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) 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 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement (DFARS) or are Government 
contractors receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 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 paragraph (a)(14)(iv) of this clause, for any other 
purpose; and
    (D) Such use is subject to the limitation in paragraph 
(a)(14)(i) of this clause; and
    (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 DFARS 227.7103-7 or is a Government 
contractor receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 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 paragraph (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, world-wide, 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 development 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 [[Page 33495]] 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 DFARS 227.7103-7; 
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 DFARS 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 paragraphs (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 Rights in Technical Data--Noncommercial Items clause of this 
contract.
    (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 paragraph (a)(14) or (b)(2)(iii) of 
this clause, in accordance with the terms of a license negotiated 
under paragraph (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 paragraph (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 data 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    Name 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, perform, display, 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 paragraph (f)(2) of this clause; the restricted rights legend at 
[[Page 33496]] paragraph (f)(3) of this clause; or the special 
license rights legend at paragraph (f)(4) of this clause; 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 
transmitted document or software storage container and each page, or 
portions thereof, of printed material containing computer software 
for which restrictions are asserted. Computer software transmitted 
directly from one computer or computer terminal to another shall 
contain a notice of asserted restrictions. However, 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, or otherwise cause such interference or delay, shall not 
be inserted in software that will or might be used in combat or 
situations that simulate combat conditions, 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 Rights in Noncommercial Computer Software 
and Noncommercial Computer Software Documentation clause 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 Rights in Noncommercial Computer Software 
and Noncommercial Computer Software Documentation clause 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 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 paragraph (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 paragraph (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 or computer 
software documentation furnished or to be furnished under this 
contract are contained in the Validation of Asserted Restrictions--
Computer Software and the Validation of Restrictive Markings on 
Technical Data clauses of this contract, respectively. 
Notwithstanding any provision of this contract concerning inspection 
and acceptance, the Government may ignore or, at the Contractor's 
expense, correct or strike a marking if, in accordance with the 
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 the Validation of Asserted 
Restrictions--Computer Software or the Validation of Restrictive 
Markings on Technical Data clause of this contract. 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) of this clause--
    (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; and
    (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 noncommercial 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. [[Page 33497]] 
    (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 (JUN 1995)

    As prescribed in 227.7203-6(a)(2), add the following paragraph 
(l) to the basic clause:
    (l) 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 rights to publish for 
sale shall continue as long as the software or documentation are 
reasonably available to the public for purchase.
    14. Section 252.227-7015 is added to read as follows:


252.227-7015  Technical Data--Commercial Items.

    As prescribed in 227.7102-3, use the following clause:

TECHNICAL DATA--COMMERCIAL ITEMS (JUN 1995)

    (a) Definitions. As used in this clause:
    (1) Commercial item means--
    (i) Any item, other than real property or computer software, 
that customarily is used by the public for nongovernmental purposes 
and that--
    (A) Has been sold, leased, or licensed to the public; or
    (B) Has been offered for sale, lease, or license to the public;
    (ii) Any item that evolved from an item described in paragraph 
(a)(1)(i) of this clause through advances in technology or 
performance and will be available in the commercial marketplace in 
time to satisfy the delivery requirements specified in this 
contract;
    (iii) Any item that would satisfy a criterion expressed in 
paragraph (a)(1)(i) or (ii) of this clause, but for--
    (A) Modifications of a type customarily available in the 
commercial marketplace; or
    (B) Minor modifications made to meet Federal Government 
requirements;
    (iv) Any combination of items meeting the requirements of 
paragraph (a)(1)(i), (ii), (iii), or (v) of this clause that are of 
a type customarily combined and sold in combination to the public;
    (v) Installation services, maintenance services, repair 
services, training services, and other services if such services are 
procured for support of an item referred to in paragraph (a)(1)(i), 
(ii), (iii), or (iv) of this clause, and the source of such 
services--
    (A) Offers such services to the public and the Federal 
Government contemporaneously and under similar terms and conditions; 
and
    (B) Offers to use the same work force for providing the Federal 
Government with such services as the source uses for providing such 
services to the general public;
    (vi) Services, offered and sold competitively, in substantial 
quantities, in the commercial marketplace based on established 
catalog prices for specific tasks performed under standard 
commercial terms and conditions;
    (vii) Any item, combination of items, or service referred to in 
paragraphs (a)(1) (i) through (vi) of this clause notwithstanding 
the fact that the item, combination of items, or service is 
transferred between or among separate divisions, subsidiaries, or 
affiliates of a contractor; or
    (viii) Other nondevelopmental items, if the Contracting Officer 
determines that the item was developed exclusively at private 
expense and has been sold in substantial quantities, on a 
competitive basis, to multiple state and local governments.
    (2) Component means any item supplied to the government as part 
of an end item or of another component.
    (3) Contractor includes the Contractor's subcontractors and 
suppliers at any tier.
    (4) 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.
    (5) The term item includes components or processes.
    (6) 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.
    (7) 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, perform, display, 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 technical 
data 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;
    (iv) Are necessary for operation, maintenance, installation, or 
training (other than detailed manufacturing or process data); or
    (v) 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, perform, display, or 
disclose the data without restrictions.
    (2) Except as provided in paragraph (b)(1) of this clause, the 
Government may use, modify, reproduce, release, perform, display, 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, perform, display, disclose, or authorize use of 
the technical data outside the Government without the Contractor's 
written 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, 
perform, display, 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 this 
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 [[Page 33498]] licensed data subject to 
use, modification, reproduction, release, performance, display, or 
disclosure restrictions.

(End of clause)

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


252.227-7016  Rights in bid or proposal information.

    As prescribed in 227.7103-6(e)(1), 227.7104(e)(1), or 227.7203-
6(b), use the following clause:

RIGHTS IN BID OR PROPOSAL INFORMATION (JUN 1995)

    (a) Definitions.
    (1) For contracts that require the delivery of technical data, 
the terms ``technical data'' and ``computer software'' are defined 
in the Rights in Technical Data--Noncommercial Item clause of this 
contract or, if this is a contract awarded under the Small Business 
Innovative Research Program, the Rights in Noncommercial Technical 
Data and Computer Software--Small Business Innovative Research 
(SBIR) Program clause of this contract.
    (2) For contracts that do not require the delivery of technical 
data, the term ``computer software'' is defined in the Rights in 
Noncommercial Computer and Noncommercial Computer Software 
Documentation clause of this contract or, if this is a contract 
awarded under the Small Business Innovative Research Program, the 
Rights in Noncommercial Technical Data and Computer Software--Small 
Business Innovative Research (SBIR) Program clause of this contract.
    (b) Government rights to contract award. By submission of its 
offer, the Offeror agrees that the Government--
    (1) 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, shall 
use information contained in the bid or proposal only for 
evaluational purposes and shall 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) Government rights subsequent to contract award--The 
Contractor agrees--
    (1) Except as provided in paragraphs (c)((2), (d), and (e) 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 
information outside the Government without the Contractor's written 
permission.
    (2) The Government's right to use, modify, reproduce, release, 
perform, display, or disclose information that is technical data or 
computer software 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 (SBIR) 
Program clause(s) of this contract.
    (d) Government-furnished information. The Government's rights 
with respect to technical data or computer software 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 or software.
    (e) Information available without restrictions. The Government's 
rights to use, modify, reproduce, release, perform, display, or, 
disclose information contained in a bid or proposal, including 
technical data or computer software, and to permit others to do so, 
shall not be restricted in any manner if such information has been 
released or disclosed to the Government or to other persons without 
restrictions other than a release or disclosure resulting from the 
sale, transfer, or other assignment of interest in the information 
to another party or the sale or transfer of some or all of a 
business entity or its assets to another party.
    (f) Flowdown. 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)

    16. 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 227.7103-3(b), 227.7104(e)(2), or 227.7203-3(a), 
use the following provision:

IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE 
RESTRICTIONS (JUN 1995)

    (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 Rights in Technical Data--Noncommercial Items 
clause, or, if this solicitation contemplates a contract under the 
Small Business Innovative Research Program, the Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovative Research (SBIR) Program clause.
    (2) If a successful offeror will not be required to deliver 
technical data, the Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation clause, or, if this 
solicitation contemplates a contract under the Small Business 
Innovative Research Program, the Rights in Noncommercial Technical 
Data and Computer Software--Small Business Innovative Research 
(SBIR) Program clause.
    (b) The identification and assertion requirements in this 
provision apply only to technical data, including computer software 
documents, 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 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 to                                                                 Name of Person Asserting  
   be Furnished With        Basis for Assertion**      Asserted Rights 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 items, 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.                                                                    
[[Page 33499]]
                                                                                                                
***Enter asserted rights 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 
provision 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)
    17. 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 (SBIR) Program.

    As prescribed in 227.7104(a), use the following clause:

RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE--SMALL 
BUSINESS INNOVATIVE RESEARCH (SBIR) PROGRAM (JUN 1995)

    (a) Definitions. As used in this clause:
    (1) Commercial computer software means software developed or 
regularly used for nongovernmental 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 paragraph (a)(1)(i), 
(ii), or (iii) of this clause 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, re-created, 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--
    (i) (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 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;
    (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; or
    (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 
development 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 others 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;
    (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 [[Page 33500]] commercial computer software under 
paragraph (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 paragraphs 
(a)(17) (i) and (iii) of this clause; and
    (B) Not release or disclose the modified software except as 
provided in paragraphs (a)(17) (ii), (v) and (vi) of this clause;
    (v) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) 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 agreement at 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement (DFARS or are Government 
contractors receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 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 paragraph (a)(17)(iv) of this clause, for any other 
purpose; and
    (D) Such use is subject to the limitation in paragraph 
(a)(17)(i) of this clause; and
    (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 DFARS 227.7103-7 or is a Government contractor 
receiving access to the software for performance of a Government 
contract that contains the clause at DFARS 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 paragraph (a)(17)(iv) of this clause, for any other 
purpose.
    (18) SBIR data rights means 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, world-wide, nonexclusive, irrevocable license rights 
in technical data or noncommercial 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 
paragraph (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 evaluation 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 
paragraph (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 DFARS 227.7103-7 or is a 
Government contractor receiving access to the technical data or 
software for performance of a Government contract that contains the 
clause at DFARS 252.227-7025, Limitations on the Use of 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. [[Page 33501]] 
    (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 paragraph (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 paragraph (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 rights to use, release, or disclose the 
following technical data or computer software should be restricted:

------------------------------------------------------------------------
 Technical data or computer                  Asserted     Name of person
  software to be furnished     Basis for      rights        asserting   
   with restrictions \1\       assertion   category \3\    restrictions 
----------------------------------\2\--------------------------\4\------
(LIST).....................  (LIST)......  (LIST)......  (LIST)         
------------------------------------------------------------------------
\1\ 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.                                
\2\ 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.                                          
\3\ 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).                                 
\4\ 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 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, perform, display, 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 paragraph (f)(2) of this clause; the 
restricted rights legend at paragraph (f)(3) of this clause, the 
SBIR data rights legend at paragraph (f)(4) of this clause, or the 
special license rights legend at paragraphs (f)(5) of this clause; 
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. Technical data or computer software 
transmitted directly from one computer or computer terminal to 
another shall contain a notice of asserted restrictions. However, 
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, or otherwise cause such interference or delay, shall not 
be inserted in software that will or might be used in combat or 
situations that simulate combat conditions, unless the Contracting 
Officer's written permission to deliver such software has been 
obtained prior to delivery. Reproductions 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 rights to use, modify, reproduce, release, perform, 
display, or disclose these technical data are restricted by 
paragraph (b)(2) of the Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovative Research (SBIR) Program 
clause 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)
    (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-----------------------------------------------------

[[Page 33502]] -------------------------------------------------------

The Government's rights to use, modify, reproduce, release, perform, 
display, or disclose this software are restricted by paragraph 
(b)(3) of the Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovative Research (SBIR) Program clause 
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 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 paragraph (b)(1) of this clause, or negotiated special 
license rights as provided in paragraph (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 rights 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 Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovative Research (SBIR) Program 
clause contained in the above identified contract. 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 paragraph (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 paragraph (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 Validation of Restrictive 
Markings on Technical Data and the Validation of Asserted 
Restrictions--Computer Software clauses of this contract, 
respectively. Notwithstanding any provision of this contract 
concerning inspection and acceptance, the Government may ignore or, 
at the Contractor's expense, correct or strike a marking if, in 
accordance with the applicable procedures of those clauses, a 
restrictive marking is determined to be unjustified.
    (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 the Validation of Restrictive Markings on 
Technical Data or the Validation of Asserted Restrictions--Computer 
Software clause of this contract. 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 
(6)) 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) of this clause--
    (i) Includes costs charged by a subcontractor or supplier, at 
any tier, or costs incurred by the Contractor to acquire rights in 
subcontractor of 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; and
    (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 noncommercial technical data or computer 
software is to be obtained from a subcontractor or supplier for 
delivery to the Government under this contract, the Contractor shall 
use 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. The Contractor 
shall use the Technical Data--Commercial Items clause of this 
contract to obtain technical data pertaining to commercial items, 
components, or processes. No other clause shall be used to enlarge 
or diminish the Government's, the Contractor's, or a higher tier 
subcontractor's or supplier's rights in a subcontractor's or 
supplier's technical data or computer software.
    (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 (June 1995)

    As prescribed in 227.7104(d), add the following paragraph (l) 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. [[Page 33503]] 
    (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.

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


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

    As prescribed in 227.7104(e)(3) or 227.7203-6(c), use the following 
clause:

Validation of Asserted Restrictions--Computer Software (June 1995)
    (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 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 restrictions and return the 
corrected software to the Contracting Officer within sixty (60) days 
following receipt of the software, the Contracting Officer may 
correct the strike the markings at the Contractor's expense.
    (ii) Contracting Officer concludes that the asserted restriction 
is appropriate for this contract, the Contracting Officer 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 the Contracting Officer's 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 
paragraph (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 paragraph (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; or
    (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, [[Page 33504]] 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 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 suit 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;
    (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 nondelegable 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 paragraph (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 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement (DFARS), or is a Government 
contractor receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 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)

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


252.227-7020  Rights in special works.

    As prescribed in 227.7105-3, 227.7106(a) or 227.7205(a), use the 
following clause:

Rights in Special Works (June 1995)

    (a) Applicability. This 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 so.
    (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) When a work is first produced, created, or generated under 
this contract, and such work is required to be delivered under this 
contract, the Contractor shall assign copyright in those works to 
the Government. 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 ``'' markings shall be replaced 
by a ``P''.
    (3) The Contractor grants to the Government a royalty-free, 
world-wide, 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, and its officers, agents and employees 
acting for 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]

    20. Section 252.227-7021 is amended by revising the introductory 
text to read ``As prescribed at 227.7105-2(a), use the following 
clause:''.


252.227-7022  [Amended]

    21. Section 252.227-7022 is amended by revising the introductory 
text to read [[Page 33505]] ``As prescribed at 227.7107-1(a), use the 
following clause:''.


252.227-7023  [Amended]

    22. Section 252.227-7023 is amended by revising the introductory 
text to read ``As prescribed at 227.7107-1(b), use the following 
clause:''.


252.227-7024  [Amended]

    23. Section 252.227-7024 is amended by revising the introductory 
text to read ``As prescribed at 227.7107-3, use the following 
clause:''.
    24. 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 227.7103-6(c), 227.7104(f)(1), or 227.7203-6(d), 
use the following clause:

Limitations on the Use or Disclosure of Government-Furnished 
Information Marked With Restrictive Legends (June 1995)

    (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 
of this contract.
    (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 of 
this contract.
    (3) For Small Business Innovative Research program contracts, 
the terms ``limited rights'' and ``restricted rights'' are defined 
in the Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovative Research (SBIR) Program clause 
of this contract.
    (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 227.7103-7 of 
the Defense Federal Acquisition Regulation Supplement (DFARS).
    (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 DFARS 227.7103-7. The Contractor 
shall modify paragraph (1)(c) of the non-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; and
    (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]

    25. Section 252.227-7026 is amended by revising the introductory 
text to read ``As prescribed at 227.7103-8(a), use the following 
clause:''.


252.227-7027  [Amended]

    26. Section 252.227-7027 is amended by revising the introductory 
text to read ``As prescribed at 227.7103-8(b), use the following 
clause:''.
    27. 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 227.7103-6(d), 227.7104(f)(2), of 227.7203-6(e), 
use the following provision:

Technical Data or Computer Software Previously Delivered to the 
Government (June 1995)

    The Offeror shall attach to its offer an identification of all 
documents or other 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 and Reserved]

    28. Section 252.227-7029 is removed and reserved.


252.227-7030  [Amended]

    29. Section 252.227-7030 is amended by revising the introductory 
text to read ``As prescribed at 227.7103-6(f)(2) or 227.7104(e)(4), 
used the following clause:''.


252.227-7031  [Removed and Reserved]

    30. Section 252.227-7031 is removed and reserved.


252.227-7032  [Amended]

    31. Section 252.227-7032 is amended by revising the introductory 
text to read ``As prescribed in 227.7103-17, use the following 
clause:''.


252.227-7033  [Amended]

    32. Section 252.227-7033 is amended by revising the introductory 
text to read ``As prescribed in 227.7107-1(c), use the following 
clause:''.


252.227-7036  [Amended]

    33. Section 252.227-7036 is amended by revising the introductory 
text to read ``As prescribed in 227.7103-6(e)(3) or 227.7104(e)(5), use 
the following clause:''.
    34. Section 252.227-7037 is revised to read as follows:


252.227-7037  Validation of restrictive markings on technical data.

    As prescribed in 227.7102-3(c), 227.7103(e)(4), 227.7104(e)(6), or 
227.7203-6(f), use the following clause:

Validation of Restrictive Markings on Technical Data (June 1995)
    (a) Definitions. The terms used in this clause are defined in 
the Rights in Technical Data--Noncommercial Items clause of this 
contract. [[Page 33506]] 
    (b) Contracts for commercial items--presumption of development 
at private expense. Under a contract for a commercial item, 
component, or process, the Department of Defense shall presume that 
a Contractor's asserted use or release restrictions are justified on 
the basis that the item, component, or process was developed 
exclusively at private expense. The Department shall not challenge 
such assertions unless information the Department demonstrates that 
the item, component, or process was not developed exclusively at 
private expense.
    (c) Justification. The Contractor or subcontractor at any tier 
is responsible for maintaining records sufficient to justify the 
validity of its markings that impose restrictions on the Government 
and others to use, duplicate, or disclose technical data delivered 
or required to be delivered under the contract or subcontract. 
Except under contracts for commercial items, the Contractor or 
subcontractor shall be prepared to furnish to the Contracting 
Officer a written justification for such restrictive markings in 
response to a challenge under paragraph (e) of this clause.
    (d) Prechallenge request for information. (1) The Contracting 
Officer may request the Contractor or subcontractor to furnish a 
written explanation for any restriction asserted by the Contractor 
or subcontractor on the right of the United States or others to use 
technical data. If, upon review of the explanation submitted, the 
Contracting Officer remains unable to ascertain the basis of the 
restrictive marking, the Contracting Officer may further request the 
Contractor or subcontractor to furnish additional information in the 
records of, or otherwise in the possession of or reasonably 
available to, the Contractor or subcontractor to justify the 
validity of any restrictive marking on technical data delivered or 
to be delivered under the contract or subcontract (e.g., a statement 
of facts accompanied with supporting documentation). The Contractor 
or subcontractor shall submit such written data as requested by the 
Contracting Officer within the time required or such longer period 
as may be mutually agreed.
    (2) If the Contracting Officer, after reviewing the written data 
furnished pursuant to paragraph (d)(1) of this clause, or any other 
available information pertaining to the validity of a restrictive 
marking, determines that reasonable grounds exist to question the 
current validity of the marking and that continued adherence to the 
marking would make impracticable the subsequent competitive 
acquisition of the item, component, or process to which the 
technical data relates, the Contracting Officer shall follow the 
procedures in paragraph (e) of this clause.
    (3) If the Contractor or subcontractor fails to respond to the 
Contracting Officer's request for information under paragraph (d)(1) 
of this clause, and the Contracting Officer determines that 
continued adherence to the marking would make impracticable the 
subsequent competitive acquisition of the item, component, or 
process to which the technical data relates, the Contracting Officer 
may challenge the validity of the marking as described in paragraph 
(e) of this clause.
    (e) Challenge. (1) Notwithstanding any provision of this 
contract concerning inspection and acceptance, if the Contracting 
Officer determines that a challenge to the restrictive marking is 
warranted, the Contracting Officer shall send a written challenge 
notice to the Contractor or subcontractor asserting the restrictive 
markings. Such challenge shall--
    (i) State the specific grounds for challenging the asserted 
restriction;
    (ii) Require a response within sixty (60) days justifying and 
providing sufficient evidence as to the current validity of the 
asserted restriction;
    (iii) State that a DoD Contracting Officer's final decision, 
issued pursuant to paragraph (g) of this clause, sustaining the 
validity of a restrictive marking identical to the asserted 
restriction, within the three-year period preceding the challenge, 
shall serve as justification for the asserted restriction if the 
validated restriction was asserted by the same Contractor or 
subcontractor (or any licensee of such Contractor or subcontractor) 
to which such notice is being provided; and
    (iv) State that failure to respond to the challenge notice may 
result in issuance of a final decision pursuant to paragraph (f) of 
this clause.
    (2) The Contracting Officer shall extend the time for response 
as appropriate if the Contractor or subcontractor submits a written 
request showing the need for additional time to prepare a response.
    (3) The Contractor's or subcontractor's written response shall 
be considered a claim within the meaning of the Contract Disputes 
Act of 1978 (41 U.S.C. 601, et seq.), and shall be certified in the 
form prescribed at 33.207 of the Federal Acquisition Regulation, 
regardless of dollar amount.
    (4) A Contractor or subcontractor receiving challenges to the 
same restrictive markings from more than one Contracting Officer 
shall notify each Contracting Officer of the existence of more than 
one challenge. The notice shall also state which Contracting Officer 
initiated the first in time unanswered challenge. The Contracting 
Officer initiating the first in time unanswered challenge after 
consultation with the Contractor or subcontractor and the other 
Contracting Officers, shall formulate and distribute a schedule for 
responding to each of the challenge notices to all interested 
parties. The schedule shall afford the Contractor or subcontractor 
an opportunity to respond to each challenge notice. All parties will 
be bound by this schedule.
    (f) Final decision when Contractor or subcontractor fails to 
respond. Upon a failure of a Contractor or subcontractor to submit 
any response to the challenge notice, other than a failure to 
respond under a contract for commercial items, the Contracting 
Officer will issue a final decision to the Contractor or 
subcontractor in accordance with the Disputes clause of this 
contract pertaining to the validity of the asserted restriction. 
This final decision shall be issued as soon as possible after the 
expiration of the time period of paragraph (e)(1)(ii) or (e)(2) of 
this clause. Following issuance of the final decision, the 
Contracting Officer will comply with the procedures in paragraphs 
(g)(2) (ii) through (iv) of this clause.
    (g) Final decision when Contractor or subcontractor responds. 
(1) if the Contracting Officer determines that the Contractor or 
subcontractor has justified the validity of the restrictive marking, 
the Contracting Officer shall issue a final decision to the 
Contractor or subcontractor sustaining the validity of the 
restrictive marking, and stating that the Government will continue 
to be bound by the restrictive marking. This final decision shall be 
issued within sixty (60) days after receipt of the Contractor's or 
subcontractor's response to the challenge notice, or within such 
longer period that the Contracting Officer has notified the 
Contractor or subcontractor that the Government will require. The 
notification of a longer period for issuance of a final decision 
will be made within sixty (60) days after receipt of the response to 
the challenge notice.
    (2)(i) If the Contracting Officer determines that the validity 
of the restrictive marking is not justified, the Contracting Officer 
shall issue a final decision to the Contractor or subcontractor in 
accordance with the Disputes clause of this contract. 
Notwithstanding paragraph (e) of the Disputes clause, the final 
decision shall be issued within sixty (60) days after receipt of the 
Contractor's or subcontractor's response to the challenge notice, or 
within such longer period that the Contracting Officer has notified 
the Contractor or subcontractor of the longer period that the 
Government will require. The notification of a longer period for 
issuance of a final decision will be made within sixty (60) days 
after receipt of the response to the challenge notice.
    (ii) The Government agrees that it will continue to be bound by 
the restrictive marking of a period of ninety (90) days from the 
issuance of the Contracting Officer's final decision under paragraph 
(g)(2)(i) of this clause. The Contractor or subcontractor agrees 
that, if it intends to file suit in the United States Claims Court 
it will provide a notice of intent to file suit to the Contracting 
Officer within ninety (90) days from the issuance of the Contracting 
Officer's final decision under paragraph (g)(2)(i) of this clause. 
If the Contractor or subcontractor fails to appeal, file suit, or 
provide a notice of intent to file suit to the Contracting Officer 
within the ninety (90)-day period, the Government may cancel or 
ignore the restrictive markings, and the failure of the Contractor 
or subcontractor to take the required action constitutes agreement 
with such Government action.
    (iii) The Government agrees that it will continue to be bound by 
the restrictive marking where a notice of intent to file suit in the 
United States Claims Court is provided to the Contracting Officer 
within ninety (90) days from the issuance of the final decision 
under paragraph (g)(2)(i) of this clause. The Government will no 
longer be bound, and the Contractor or subcontractor agrees that the 
Government may strike or ignore the restrictive markings, if the 
Contractor or subcontractor fails to file its suit within one (1) 
year after issuance of the final decision. Notwithstanding the 
foregoing, where the head of an agency determines, on a nondelegable 
basis, that urgent or compelling circumstances will not permit 
waiting for the [[Page 33507]] filing of a suit in the United States 
Claims Court, the Contractor or subcontractor agrees that the agency 
may, following notice to the Contractor or subcontractor, authorize 
release or disclosure of the technical data. Such agency 
determination may be made at any time after issuance of the final 
decision and will not affect the Contractor's or subcontractor's 
right to damages against the United States where its restrictive 
markings are ultimately upheld or to pursue other relief, if any, as 
may be provided by law.
    (iv) The Government agrees that it will be bound by the 
restrictive marking where an appeal or suit is filed pursuant to the 
Contract Disputes Act until final disposition by an agency Board of 
Contract Appeals or the United States Claims Court. Notwithstanding 
the foregoing, where the head of an agency determines, on a 
nondelegable basis, following notice to the Contractor that urgent 
or compelling circumstances will not permit awaiting the decision by 
such Board of Contract Appeals or the United States Claims Court, 
the Contractor or subcontractor agrees that the agency may authorize 
release or disclosure of the technical data. Such agency 
determination may be made at any time after issuance of the final 
decision and will not affect the Contractor's or subcontractor's 
right to damages against the United States where its restrictive 
markings are ultimately upheld or to pursue other relief, if any, as 
may be provided by law.
    (h) Final disposition of appeal or suit. (1) If the Contractor 
or subcontractor appeals or files suit and if, upon final 
disposition of the appeal or suit, the Contracting Officer's 
decision is sustained--
    (i) The restrictive marking on the technical data shall be 
cancelled, corrected or ignored; and
    (ii) If the restrictive marking is found not to be substantially 
justified, the Contractor or subcontractor, as appropriate, shall be 
liable to the Government for payment of the cost to the Government 
of reviewing the restrictive marking and the fees and other expenses 
(as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government 
in challenging the marking, unless special circumstances would make 
such payment unjust.
    (2) If the Contractor or subcontractor appeals or files suit and 
if, upon final disposition of the appeal or suit, the Contracting 
Officer's decision is not sustained--
    (i) The Government shall continue to be bound by the restrictive 
marking; and
    (ii) The Government shall be liable to the Contractor or 
subcontractor for payment of fees and other expenses (as defined in 
28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor or subcontractor 
in defending the marking, if the challenge by the Government is 
found not to have been made in good faith.
    (i) Duration of right to challenge. The Government may review 
the validity of any restriction on technical data, delivered or to 
be delivered under a contract, asserted by the Contractor or 
subcontractor. During the period within three (3) years of final 
payment on a contract or within three (3) years of delivery of the 
technical data to the Government, whichever is later, the 
Contracting Officer may review and make a written determination to 
challenge the restriction. The Government may, however, challenge a 
restriction on the release, disclosure or use of technical data at 
any time if such technical data--
    (1) Is publicly available;
    (2) Has been furnished to the United States without restriction; 
or
    (3) Has been otherwise made available without restriction. Only 
the Contracting Officer's final decision resolving a formal 
challenge by sustaining the validity of a restrictive marking 
constitutes ``validation'' as addressed in 10 U.S.C. 2321.
    (j) Decision not to challenge. A decision by the Government, or 
a determination by the Contracting Officer, to not challenge the 
restrictive marking or asserted restriction shall not constitute 
``validation.''
    (k) Privity of contract. The Contractor or subcontractor agrees 
that the Contracting Officer may transact matters under this clause 
directly with subcontractors at any tier that assert restrictive 
markings. However, this clause neither creates nor implies privity 
of contract between the Government and subcontractors.
    (l) Flowdown. The Contractor or subcontractor agrees to insert 
this clause in contractual instruments with its subcontractors or 
suppliers at any tier requiring the delivery of technical data.

(End of clause)

[FR Doc. 95-15251 Filed 6-27-95; 8:45 am]
BILLING CODE 5000-04-M