[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Proposed Rules]
[Pages 15138-15150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7327]


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DEPARTMENT OF ENERGY

48 CFR Parts 915, 927, 952, and 970

RIN 1991-AB33


Revisions to Rights in Data Regulations

AGENCY: Department of Energy.

ACTION: Proposed rule.

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SUMMARY: The Department of Energy (DOE) proposes to amend its 
Acquisition Regulation to effect changes to its rights in technical 
data regulations to reflect a greater reliance upon the rights in 
technical data coverage in the Federal Acquisition Regulation and the 
requirements relating to technology transfer activities at certain DOE 
laboratories.

DATES: Written comments must be submitted no later than May 30, 1997.

ADDRESSES: Comments (three copies) should be addressed to: Robert M. 
Webb, U.S. Department of Energy, Office of Procurement and Assistance 
Management, Office of Policy, HR-51, Room 8H-023, 1000 Independence 
Avenue, SW., Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT:
Robert M. Webb, U.S. Department of Energy, Office of Procurement and 
Assistance Management, 1000 Independence Avenue, SW., Washington, D.C. 
20585, (202) 586-8264

Judson Hightower, U.S. Department of Energy, Office of Assistant 
General Counsel for Technology Transfer and Intellectual Property, 1000 
Independence Avenue, SW., Washington, D.C. 20585, (202) 586-2813.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Discussion.
III. Public Comments.
    A. Consideration and Availability of Comments.
    B. Public Hearing Determination.
IV. Procedural Requirements.
    A. Review Under Executive order 12866.
    B. Review Under Executive order 12988.
    C. Review Under the Regulatory Flexibility Act.
    D. Review Under the Paperwork Reduction Act.

[[Page 15139]]

    E. Review Under the National Environmental Policy Act.
    F. Review Under Executive Order 12612.

I. Background

    The Department has in place policy, reflected in Acquisition Letter 
87-5, instructing its contracting officers to rely substantially on the 
rights in technical data coverage in the Federal Acquisition Regulation 
(FAR).
    Congress enacted the National Competitiveness Technology Transfer 
Act of 1989 (Pub. L. 101-189) which had the effect of establishing 
technology transfer missions for certain of DOE's management and 
operating contractors. Acquisition Letters 88-1 and 91-8 were issued on 
this subject, and on December 22, 1995 (60 FR 66510), the Department 
promulgated technology transfer regulations to implement that Act.
    The purpose of this proposed rule is to codify the policies in the 
acquisition letters and provide an up-to-date uniform treatment of the 
subject of rights in technical data, including provision for technology 
transfer.

II. Discussion

a. General

    This proposed rule proposes to delete the existing coverage of 
rights in technical data, including regulations, solicitation 
provisions, and contract clauses currently in the Department of Energy 
Acquisition Regulation (DEAR). The proposed coverage would rely 
substantially on the rights in technical data regulations, provisions, 
and clauses in the Federal Acquisition Regulation (FAR), except where 
additional coverage would be necessary to fulfill DOE's statutory 
duties to disseminate data produced in its research, development and 
demonstration programs. Also, the coverage in Subpart 970.27 of the 
DEAR is proposed to be rewritten to reflect the considerations relating 
to and use of proposed versions of the two alternate rights in 
technical data clauses intended for DOE's management and operating 
contracts.

b. Section-by-Section Analysis

    The proposed rule would amend subpart 915.4 of the DEAR by revising 
subsection 915.413-2 to provide for the use of non-Federal personnel in 
the evaluation of competitive proposals. That subsection would 
implement the provisions of subsection 15.413-2 of the FAR. In 
addition, that subsection would supplement the FAR coverage at 37.204, 
which implements sec. 6002 of Pub. L. 103-355, the Federal Acquisition 
Streamlining Act of 1994, to provide DOE's process for determining that 
neither sufficient DOE personnel nor personnel from other Federal 
agencies are available to evaluate proposals, leading to the use of 
non-Federal personnel for that purpose. The coverage would include a 
standard agreement to be executed by the non-Federal evaluator, stating 
his or her responsibilities in the treatment of proposal data. The 
current source of regulatory coverage on this subject, Subpart 927.70, 
would be deleted. That same subpart also contains provisions dealing 
with the Government's rights in proposal data and holding proposal data 
in confidence. The proposed rule would rely on the FAR coverage on 
these subjects.
    Subsection 915.608(d) would be added to provide a reference to the 
DEAR provision proposed to deal with the use of non-Federal evaluators. 
Subsection 927.303(b) is proposed to be amended to include reference to 
DOE's patent waiver regulations now promulgated at 10 CFR Part 784. In 
this latter regard, section 927.370 has been deleted because it is 
duplicative of those patent waiver regulations. Portions of sections 
927.401 through 927.403 have been proposed for deletion. A new section 
927.404 has been proposed to be added. It would supplement the FAR 
coverage at 27.404 by adding a paragraph (k) on the subcontract 
flowdown obligations under the rights in technical data clause at FAR 
52.227-14, adding paragraph (l) to obtain, in appropriate situations, 
the right for DOE to require the contractor to license proprietary data 
relating to the subject of an individual contract to DOE or others and 
adding (m) dealing with a modification of the FAR clause in contracts 
where access to DOE restricted data is contemplated.
    The proposed rule would add a section 927.408 to make clear that, 
as a result of DOE's statutes that require dissemination, this 
Department may not apply the provisions of FAR 27.408 to cosponsored or 
cost shared contracts. The proposed rule would also add a section 
927.409 to supplement the FAR with regard to the requirement of 
contracting officers to include the FAR rights in technical data clause 
at 52.227-14. In the Department of Energy, Alternates I and V will 
always be used. The proposed rule would substitute definitions for use 
by DOE that simplify and shorten the FAR definitions. The only change 
to the definitions worthy of note is that computer data bases would be 
considered technical data and not computer software. This reflects more 
accurately the nature of computer data bases. They are, in fact, a form 
of technical data. The accurate depiction of computer data bases 
becomes increasingly important as a result of DOE's, the Government's, 
and our society's increasing reliance on computers and computer 
software. This change has a beneficial result in that it would create 
an enhanced opportunity to prepare data bases in common languages, not 
computer program dependent. As a result more data bases created under 
DOE contracts may receive wider dissemination than when data bases are 
considered computer software. We have also proposed a minor change to 
the definition of unlimited rights, also taking into account our 
increasing dependence on computer networks, stating expressly, what is 
implicit, that unlimited rights include the right to disseminate data 
by electronic means.
    The Additional Data Requirements clause at FAR 52.227-16 would be 
required for use in all contracts for research, development, and 
demonstration except those with universities or colleges for basic or 
applied research of $500,000 or less.
    The various existing provisions and clauses from 952.227 would be 
deleted from the DEAR with the intention that DOE's Contracting 
Officers use the provisions and clauses on the same subject that appear 
in FAR Subpart 52.227.
    The proposed rule would insert into the DEAR Alternate VI, dealing 
with contractor licensing and Alternate VII, dealing with contractor 
access to DOE restricted data. Those alternates would be used in 
conjunction with the FAR Rights in Technical Data clause at 52.227-14.
    The solicitation provision at Subsection 952.227-84 would be 
amended to make references consistent with the DEAR.
    In DEAR part 970 sections 970.2705 and 970.2706 would be revised to 
describe the use of and the general content of the two rights in 
technical data clauses that would be used alternatively in DOE 
management and operating contracts.
    The proposed rule would add a new section 970.2707 to instruct the 
appropriate use of the management and operating contract rights in 
technical data clauses.
    Finally, the proposed rule would add a rights in technical data 
clause, 970.5204-XX, for DOE management and operating contracts that do 
not have a technology transfer mission and another, 970.5204-YY, for 
those management and operating contracts that do have a technology 
transfer mission.

[[Page 15140]]

III. Public Comments

A. Consideration and Availability of Comments

    Interested persons are invited to participate by submitting data, 
views, or arguments with respect to the proposed Department of Energy 
Acquisition Regulation amendments set forth in this notice. Three 
copies of written comments should be submitted to the address indicated 
in the ADDRESS section of this notice. All written comments received by 
the date indicated in the DATES section of this notice and all other 
relevant information in the record will be carefully assessed and fully 
considered prior to publication of the final rule. All comments 
received will be available for public inspection in the DOE Reading 
Room, Room 1E-190, Forrestal Building, 1000 Independence Avenue, SW., 
Washington, D.C. 20585, between the hours of 9 am and 4 pm, Monday 
through Friday, except Federal holidays. Any information considered to 
be confidential must be so identified and submitted in writing, one 
copy only. DOE reserves the right to determine the confidential status 
of the information and to treat it according to our determination (See 
10 CFR Part 1004.11).

B. Public Hearing Determination

    The Department has concluded that this proposed rule does not 
involve a substantial issue of fact or law and that the proposed rule 
should not have substantial impact on the nation's economy or a large 
number of individuals or businesses. Therefore, pursuant to Public Law 
95-91, the DOE Organization Act, and the Administrative Procedure Act 
(5 U.S.C. 553), the Department does not plan to hold a public hearing 
on this proposed rule. However, should a sufficient number of people 
request a public hearing, the Department will reconsider its 
determination.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the proposed regulations meet the relevant standards of Executive Order 
12988.

C. Review Under the Regulatory Flexibility Act

    This proposed rule has been reviewed under the Regulatory 
Flexibility Act of 1980, Public Law 96-354, that requires preparation 
of an initial regulatory flexibility analysis for any rule that is 
likely to have significant economic impact on a substantial number of 
small entities. The contracts to which this rulemaking would apply are 
agreements that contemplate the creation of technical data. Normally, 
such contracts, and any resulting subcontracts, would be cost 
reimbursement type contracts. Thus, there would not be an adverse 
economic impact on contractors or subcontractors. Accordingly, DOE 
certifies that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

    No additional information or recordkeeping requirements are 
proposed to be imposed by this rulemaking. Accordingly, no OMB 
clearance is required under the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this proposed rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
DOE's regulations (10 CFR Part 1021, Subpart D) implementing the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.). Specifically, this proposed rule is categorically excluded from 
NEPA review because the proposed amendments to the DEAR would be 
strictly procedural (categorical exclusion A6). Therefore, this 
proposed rule does not require an environmental impact statement or 
environmental assessment pursuant to NEPA.

F. Review Under Executive Order 12612

    Executive Order 12612, (52 FR 41685, October 30, 1987), requires 
that regulations, rules, legislation, and any other policy actions be 
reviewed for any substantial direct effects on States, on the 
relationship between the Federal government and the States, or in the 
distribution of power and responsibilities among the various levels of 
Government. If there are sufficient substantial direct effects, then 
the Executive Order requires the preparation of a federalism assessment 
to be used in all decisions involved in promulgating and implementing a 
policy action. This proposed rule, when finalized, would merely reflect 
current practice relating to rights in technical data. States which 
contract with DOE will be subject to this rule. However, DOE has 
determined that this rule will not have a substantial direct effect on 
the institutional interests or traditional functions of the States.

List of Subjects in 48 CFR Parts 915, 927, 952, and 970

    Government Procurement.

    Issued in Washington, D.C. on March 18, 1997.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, Chapter 9 of Title 48 of 
the

[[Page 15141]]

Code of Federal Regulations is proposed to be amended as set forth 
below.

PART 915--CONTRACTING BY NEGOTIATION

    1. The authority citation for Part 915 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

    2. Subsection 915.413-2 is revised to read as follows:


915.413-2  Evaluation of Proposals. (DOE coverage-paragraphs (e) and 
(f))

    (e) In order to maintain the integrity of the procurement process 
and to assure that the propriety of proposals will be respected, the 
notice at FAR 15.413-2(e) for solicited proposals and FAR 15.509(d) for 
unsolicited proposals shall be affixed to a cover sheet attached to 
each proposal upon receipt by DOE. Use of the notice neither alters any 
obligation of the Government, nor diminishes any rights in the 
Government to use or disclose data or information.
    (f)(1) Normally, evaluations of proposals shall be performed only 
by employees of the Department of Energy. As used in this section, 
``proposals'' includes the offers in response to requests for 
proposals, sealed bids, program opportunity announcements, program 
research and development announcements, or any other method of 
solicitation where the review of proposals or bids is to be performed 
by other than peer review. In certain cases, in order to gain necessary 
expertise, employees of other agencies may be used in instances in 
which they will be available and committed during the period of 
evaluation. Evaluators or advisors who are not Federal employees, 
including employees of DOE management and operating contractors may be 
used where necessary. Where such non-Federal employees are used as 
evaluators, they may only participate as members of technical 
evaluation committees. They may not serve as members of the Source 
Evaluation Board or equivalent board or committee.
    (2)(i) Pursuant to section 6002 of Public Law 103-355, a 
determination is required for every competitive procurement as to 
whether sufficient DOE personnel with the necessary training and 
capabilities are available to evaluate the proposals that will be 
received. This determination, discussed at FAR 37.204, shall be made in 
the memorandum appointing the technical evaluation committee by the 
Source Selection Official, in the case of Source Evaluation Board 
procurements, or by the Contracting Officer in all other procurements.
    (ii) Where it is determined such qualified personnel are not 
available within DOE but are available from other Federal agencies, a 
determination to that effect shall be made by the same officials in the 
same memorandum. Should such qualified personnel not be available, a 
determination to use non-Federal evaluators or advisors must be made in 
accordance with paragraph (f)(3) of this subsection.
    (3) The decision to employ non-Federal evaluators or advisors, 
including employees of DOE management and operating contractors, in 
Source Evaluation Board procurements must be made by the Source 
Selection Official with the concurrence of the Head of the Contracting 
Activity. In all other procurements, the decision shall be made by the 
senior program official or designee with the concurrence of the Head of 
the Contracting Activity. In a case where multiple solicitations are 
part of a single program and would call for the same resources for 
evaluation, a class determination to use non-Federal evaluators may be 
made by the DOE Procurement Executive.
    (4) Where such non-Federal evaluators or advisors are to be used, 
the solicitation shall contain a provision informing prospective 
offerors that non-Federal personnel may be used in the evaluation of 
proposals.
    (5) The nondisclosure agreement as it appears in paragraph (f)(6) 
of this subsection shall be signed before DOE furnishes a copy of the 
proposal to non-Federal evaluators or advisors, and care should be 
taken that the required handling notice described in paragraph (e) of 
this subsection is affixed to a cover sheet attached to the proposal 
before it is disclosed to the participant. In all instances, such 
persons will be required to comply with nondisclosure of information 
requirements and requirements involving Procurement Integrity, see FAR 
3.104; with requirements to prevent the potential for personal 
conflicts of interest; or, where a non-Federal evaluator or advisor are 
acquired under a contract with an entity other than the individual, 
with requirements to prevent the potential for organizational conflicts 
of interest.
    (6) Non-Federal evaluators or advisors shall be required to sign 
the following agreement prior to having access to any proposal:

Nondisclosure Agreement

    Whenever DOE furnishes a proposal for evaluation, I, the 
recipient, agree to use the information contained in the proposal 
only for DOE evaluation purposes and to treat the information 
obtained in confidence. This requirement for confidential treatment 
does not apply to information obtained from any source, including 
the proposer, without restriction. Any notice or restriction placed 
on the proposal by either DOE or the originator of the proposal 
shall be conspicuously affixed to any reproduction or abstract 
thereof and its provisions strictly complied with. Upon completion 
of the evaluation, it is agreed all copies of the proposal and 
abstracts, if any, shall be returned to the DOE office which 
initially furnished the proposal for evaluation. Unless authorized 
by the contracting officer, I agree that I shall not contact the 
originator of the proposal concerning any aspect of its elements.

Recipient:-------------------------------------------------------------

Date:------------------------------------------------------------------

(End of Agreement)

    3. Subpart 915.6, Source Selection, is added to read as follows:

Subpart 915.6--Source Selection


915.608  Proposal evaluation. (DOE coverage-paragraph (d))

    (d) Personnel from DOE, other Government agencies, consultants, and 
contractors, including those who manage or operate Government-owned 
facilities, may be used in the evaluation process as advisors when 
their services are necessary and available. When personnel outside the 
Government, including those of contractors who operate or manage 
Government-owned facilities, are to be used as advisors or as 
evaluators, approval and nondisclosure procedures as required by 48 CFR 
(DEAR) 915.413-2 shall be followed and a notice of the use of non-
Federal evaluators shall be included in the solicitation. In all 
instances, such personnel will be required to comply with DOE conflict 
of interest and nondisclosure requirements.

PART 927--PATENTS, DATA, AND COPYRIGHTS

    4. The authority citation for Part 927 continues to read as 
follows:

    Authority: Sec. 644 of the Department of Energy Organization 
Act, Pub. L. 95-91 (42 U.S.C. 7254); Sec. 148 of the Atomic Energy 
Act of 1954, as amended (42 U.S.C. 2168); Federal Nonnuclear Energy 
Research and Development Act of 1974, Sec. 9, (42 U.S.C. 5908); 
Atomic Energy Act of 1954, as amended, Sec. 152, (42 U.S.C. 2182); 
Department of Energy National Security and Military Applications of 
Nuclear Energy Authorization Act of 1987, as amended, Sec. 3131(a), 
(42 U.S.C. 7261a.)


927.300 [Amended]

    5. Section 927.300(b) is amended by replacing the phrase ``41 CFR 
9-9.109''

[[Page 15142]]

as it appears in the second sentence with ``10 CFR part 784.''


927.303  [Amended]

    6. Section 927.303(b) is amended by inserting the phrase ``, 
pursuant to 10 CFR part 784,'' after ``advance waiver'' in the first 
sentence and after ``identified invention'' in the second sentence.


927.370  [Removed and reserved]

    7. Remove and reserve section 927.370.


927.401  [Removed]

    8. Section 927.401 is removed.


927.402-1  [Amended]

    9. In section 927.402-1, paragraphs (c) through (g) are removed, 
and paragraph (h) is redesignated as paragraph (c).


927.402-3  [Removed]

    10. Section 927.402-3 is removed.
    11. Section 927.404 is added to read as follows:


927.404  Rights in Technical Data in Subcontracts. (DOE coverage--
paragraphs (g), (k), (l), and (m))

    (g)(4) Contractors are required by paragraph (d)(3) of the clause 
at FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1) to 
acquire permission from DOE to assert copyright in any computer 
software first produced in the performance of the contract. This 
requirement reflects DOE's established software distribution program, 
recognized at FAR 27.404(g)(2), and the Department's statutory 
dissemination obligations. When a contractor requests permission to 
assert copyright in accordance with paragraph (d)(3) of the Rights in 
Data-General clause as prescribed for use at 48 CFR 927.409(a)(1), 
patent counsel shall predicate its decision on the policy and 
procedures reflected in paragraph (e) of the clause at 48 CFR 970.5204-
YY Rights in Data-Technology Transfer.
    (k) Subcontracts. (1)(i) It is the responsibility of prime 
contractors and higher tier subcontractors, in meeting their 
obligations with respect to contract data, to obtain from their 
subcontractor the rights in, access to, and delivery of such data on 
behalf of the Government. Accordingly, subject to the policy set forth 
in this section, and subject to the approval of the contracting 
officer, where required, selection of appropriate technical data 
provisions for subcontracts is the responsibility of the prime 
contractors or higher-tier subcontractors. In many but not all 
instances, use of the Rights in Technical Data clause of FAR 52.227-14 
in a subcontract will provide for sufficient Government rights in and 
access to technical data. The inspection rights afforded in Alternate V 
of that clause normally should be obtained only in first-tier 
subcontracts having as a purpose the conduct of research, development, 
or demonstration work or the furnishing of supplies for which there are 
substantial technical data requirements as reflected in the prime 
contract.
    (ii) If a subcontractor refuses to accept technical data provisions 
affording rights in and access to technical data on behalf of the 
Government, the contractor shall so inform the Contracting Officer in 
writing and not proceed with the award of the subcontract without 
written authorization of the Contracting Officer.
    (iii) In prime contracts (or higher-tier subcontracts) which 
contain the Additional Technical Data Requirements clause at FAR 
52.227-16, it is the further responsibility of the contractor (or 
higher-tier subcontractor) to determine whether inclusion of such 
clause in a subcontract is required to satisfy technical data 
requirements of the prime contract (or higher-tier subcontract).
    (2) As is the case for DOE in its determination of technical data 
requirements, the Additional Technical Data Requirements clause at FAR 
52.227-16 should not be used at any subcontracting tier where the 
technical data requirements are fully known. Normally the clause will 
be used only in subcontracts having as a purpose the conduct of 
research, development, or demonstration work. Prime contractors and 
higher-tier subcontractors shall not use their power to award 
subcontracts as economic leverage to inequitably acquire rights in the 
subcontractor's confidential data developed at private expense for 
their private use, and they shall not acquire rights to confidential 
data developed at private expense on behalf of the Government for 
standard commercial items unless required by the prime contract.
    (l) Contractor licensing. In many contracting situations the 
achievement of DOE's objectives would be frustrated if the Government, 
at the time of contracting, did not obtain on behalf of responsible 
third parties and itself limited license rights in and to confidential 
data developed at private expense necessary to the practice of subject 
inventions or data first produced or delivered in the performance of 
the contract. Where the purpose of the contract is research, 
development, or demonstration, contracting officers should consult with 
program officials and patent counsel to consider whether such rights 
should be acquired. No such rights should be obtained from a small 
business or non-profit organization, unless similar rights in 
background inventions of the small business or non-profit organization 
have been authorized. In all cases when the contractor has agreed to 
include a provision assuring commercial availability of background 
patents, consideration should be given to securing for the Government 
and responsible third parties at reasonable royalties and under 
appropriate restrictions, co-extensive license rights for data which 
are proprietary data. When such a license right is deemed necessary, 
the Rights in Data-General clause at FAR 52.227-14 should be 
supplemented by the addition of Alternate VI as provided at 48 CFR 
952.227-14. Alternate VI will normally be sufficient to cover 
proprietary contract data for items and processes that were used in the 
contract and are necessary in order to insure widespread commercial use 
or practical utilization of a subject of the contract. The expression 
``subject of the contract'' is intended to limit the licensing required 
in Alternate VI to the fields of technology specifically contemplated 
in the contract effort and may be replaced by a more specific statement 
of the fields of technology intended to be covered in the manner 
described in the patent clause at 48 CFR 952.227-13 pertaining to 
``Background Patents.'' Where, however, proprietary contract data cover 
the main purpose or basic technology of the research, development, or 
demonstration effort of the contract, rather than subcomponents, 
products, or processes which are ancillary to the contract effort, the 
limitations set forth in paragraphs (j)(1) through (j)(4) of Alternate 
VI of 48 CFR 952.227-14 should be modified or deleted. Paragraph (j) of 
48 CFR 952.227-14 further provides that technical data may be specified 
in the contract as being excluded from or not subject to the licensing 
requirements thereof. This exclusion can be implemented by limiting the 
applicability of the provisions of paragraph (j) of 48 CFR 952.227-14 
to only those classes or categories of proprietary data determined as 
being essential for licensing. Although contractor licensing may be 
required under paragraph (j) of FAR 52.227-14, the final resolution of 
questions regarding the scope of such licenses the terms thereof, 
including provisions for confidentiality, and reasonable royalties, is 
then left to the negotiation of the parties.

[[Page 15143]]

    (m) Access to restricted data. In contracts involving access to 
certain categories of DOE-owned Category C-24 restricted data, as set 
forth in 10 CFR part 725, DOE has reserved the right to receive 
reasonable compensation for the use of its inventions and discoveries, 
including its related data and technology. Accordingly, in contracts 
where access to such restricted data is to be provided to contractors, 
Alternate VII shall be incorporated into the appropriate rights in 
technical data clause of the contract in accordance with the 
instructions at 48 CFR 952.227-14. In addition, in any other types of 
contracting situations in which the contractor may be given access to 
restricted data, appropriate limitations on the use of such data must 
be specified.
    12. Subsection 927.404-70 is added to read as follows:


927.404-70  Statutory Programs.

    Occasionally Congress enacts legislation that authorizes or 
requires the Department to protect from public disclosure specific data 
first produced in the performance of the contract. Examples of such 
programs are ``the Metals Initiative'' and section 3001(d) of the 
Energy Policy Act. In such cases DOE Patent Counsel is responsible for 
providing the appropriate contractual provisions for protecting the 
data in accordance with the statute. Generally, such clauses will be 
based upon the Rights in Data-General clause prescribed for use at 48 
CFR 927.409(a) with appropriate modifications to define and protect the 
``protected data'' in accordance with the applicable statute. When 
contracts under such statutes are to be awarded, contracting officers 
must acquire from patent counsel the appropriate contractual 
provisions. Additionally, the Contracting Officer must consult with DOE 
program personnel and patent counsel to identify data first produced in 
the performance of the contract that will be recognized by the parties 
as protected data and what protected data will be made available to the 
public notwithstanding the statutory authority to withhold the data 
from public dissemination.
    13. Section 927.408 is added to read as follows:


927.408  Cosponsored research and development activities.

    Because of the Department of Energy's statutory duties to 
disseminate data first produced under its contracts for research, 
development, and demonstration, the provisions of FAR 27.408 do not 
apply to cosponsored or cost shared contracts.
    14. Section 927.409 is added to read as follows:


927.409  Solicitation provisions and contract clauses. (DOE coverage--
paragraphs (a), (h), (s), and (t)).

    (a)(1) The contracting officer shall insert the clause at FAR 
52.227-14, Rights in Data-General, substituting the following paragraph 
(a) and including the following paragraph (d)(3), Alternate I, and 
Alternate V in solicitations and contracts if it is contemplated that 
data will be produced, furnished, or acquired under the contract:

    (a) Definitions.
    (1) Computer data bases, as used in this clause, means a 
collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term 
does not include computer software.
    (2) Computer software, as used in this clause, means (i) 
computer programs which are data comprising a series of 
instructions, rules, routines, or statements, regardless of the 
media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations and (ii) data comprising 
source code listings, design details, algorithms, processes, flow 
charts, formulae, and related material that would enable the 
computer program to be produced, created, or compiled. The term does 
not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The 
term includes technical data and computer software.
    (4) Limited rights data, as used in this clause, means data, 
other than computer software, developed at private expense that 
embody trade secrets or are commercial or financial and confidential 
or privileged. The Government's rights to use, duplicate, or 
disclose limited rights data are as set forth in the Limited Rights 
Notice of paragraph (g)(2) if included in this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or 
privileged; or is published copyrighted computer software, including 
minor modifications of any such computer software. The Government's 
rights to use, duplicate, or disclose Restricted Computer Software 
are as set forth in the Restricted Rights Notice of subparagraph 
(g)(3) if included in this clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, 
but does include manuals and instructional materials and technical 
data formatted as a computer data base. Technical data does not 
include data incidental to the administration of this contract, such 
as financial, administrative, cost and pricing, or management 
information.
    (7) Unlimited rights, as used in this clause, means the rights 
of the Government to use, disclose, reproduce, prepare derivative 
works, distribute copies to the public, including by electronic 
means, and perform publicly and display publicly, in any manner, 
including by electronic means, and for any purpose whatsoever, and 
to have or permit others to do so.
* * * * *
    (d)(3) The Contractor agrees not to establish claim to copyright 
in computer software first produced in the performance of this 
contract without prior written permission of the patent counsel 
assisting the contracting activity. When such permission is granted, 
the patent counsel shall specify appropriate terms, conditions, and 
submission requirements to assure utilization, dissemination, and 
commercialization of the data. The Contractor, when requested, shall 
promptly deliver to patent counsel a duly executed and approved 
instrument fully confirmatory of all rights to which the Government 
is entitled.

    (2) However, rights in data in these specific situations will be 
treated as described, where the contract is--
    (i) For the production of special works of the type set forth in 
FAR 27.405(a), but the clause at FAR 52.227-14, Rights in Data-General, 
shall be included in the contract and made applicable to data other 
than special works, as appropriate (See paragraph (i) of FAR 27.409);
    (ii) For the acquisition of existing data works, as described in 
FAR 27.405(b) (See paragraph (j) of FAR 27.409);
    (iii) To be performed outside the United States, its possessions, 
and Puerto Rico, in which case agencies may prescribe different clauses 
(See paragraph (n) of FAR 27.409);
    (iv) For architect-engineer services or construction work, in which 
case contracting officers shall utilize the clause at FAR 52.227-17, 
Rights in Data-Special Works;
    (v) A Small Business Innovation Research contract (See paragraph 
(l) of FAR 27.409);
    (vi) For management and operating of a DOE facility or the 
production of data necessary for the management or operation of a DOE 
facility (See 970.2705); or
    (vii) Awarded pursuant to a statute expressly providing authority 
for the protection of data first produced thereunder from disclosure or 
dissemination. (See 927.404-70).
    (h) The contracting officer shall insert the clause at FAR 52.227-
16, Additional Data Requirements, in solicitations and contracts 
involving experimental, developmental, research, or demonstration work 
(other than basic or applied research to be performed solely by a 
university or college where the contract amount will be $500,000 or 
less) unless all the requirements for data are believed to be known at 
the time of contracting and specified in the

[[Page 15144]]

contract. See FAR 27.406(b). This clause may also be used in other 
contracts when considered appropriate.
* * * * *
    (s) Contracting officers shall incorporate the solicitation 
provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all 
requests for proposals.
    (t) Contracting officers shall include the solicitation provision 
at 952.227-84 in all solicitations involving research, development, or 
demonstration work.


Subpart 927.70  [Removed and Reserved]

    15. Subpart 927.70 (Secs. 927.7000 through 927.7005) is removed and 
reserved.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    16. The authority citation for Part 952 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).


Sec. 952.227-13  [Amended]

    17. Subsection 952.227-13 is amended in paragraph (a) of the clause 
by inserting the sentence ``See 10 CFR part 784.'' at the end of the 
definition of ``DOE patent waiver regulations'' and in paragraph 
(c)(1)(ii) of the clause by inserting ``(10 CFR part 784)'' after the 
phrase ``patent waiver regulations''.
    18. Subsection 952.227-14 of part 952 is added to read as follows:


952.227-14  Rights in data--general. (DOE coverage alternates VI and 
VII)

Alternate VI (XXX 1997)

    As prescribed at 48 CFR 927.404(l) insert Alternate VI to 
require the contractor to license data regarded as limited rights 
data or restricted computer software to DOE and third parties at 
reasonable royalties upon request by the Department of Energy.
    (j) Contractor Licensing. Except as may be otherwise specified 
in this contract as data not subject to this paragraph, the 
contractor agrees that upon written application by DOE, it will 
grant to the Government and responsible third parties, for purposes 
of practicing a subject of this contract, a nonexclusive license in 
any limited rights data or restricted rights software on terms and 
conditions reasonable under the circumstances including appropriate 
provisions for confidentiality; provided, however, the contractor 
shall not be obliged to license any such data if the contractor 
demonstrates to the satisfaction of the Secretary of Energy or 
designee that:
    (1) Such data are not essential to the manufacture or practice 
of hardware designed or fabricated, or processes developed, under 
this contract;
    (2) Such data, in the form of results obtained by their use, 
have a commercially competitive alternate available or readily 
introducible from one or more other sources;
    (3) Such data, in the form of results obtained by their use, are 
being supplied by the contractor or its licensees in sufficient 
quantity and at reasonable prices to satisfy market needs, or the 
contractor or its licensees have taken effective steps or within a 
reasonable time are expected to take effective steps to so supply 
such data in the form of results obtained by their use; or
    (4) Such data, in the form of results obtained by their use, can 
be furnished by another firm skilled in the art of manufacturing 
items or performing processes of the same general type and character 
necessary to achieve the contract results.

(End of Alternate)

Alternate VII (XXX 1997)

    As prescribed in 48 CFR 927.404(m) insert Alternate VII to limit 
the contractor's use of DOE restricted data.
    Insert the parenthetical phrase ``(except Restricted Data in 
category C-24, 10 CFR 725, in which DOE has reserved the right to 
receive reasonable compensation for the use of its inventions and 
discoveries, including related data and technology).'' after the 
phrase ``data first produced or specifically used by the Contractor 
in the performance of this contract'' in paragraph (b)(2)(i) of the 
clause at FAR 52.227-14.

(End of Alternate)


952.227-73 through 952.227-83  [Removed]

    19. In part 952, subsections 952.227-73, 952.227-75, 952.227-76, 
952.227-77, 952.227-78, 952.227-79, 952.227-80, 952.227-81, 952.227-82, 
and 952.227-83 are removed.
    20. Subsection 952.227-84 is revised to read as follows:


952.227-84  Notice of right to request patent waiver.

    Include this provision in all appropriate solicitations in 
accordance with 48 CFR 927.409(t).

Right To Request Patent Waiver (XXX 1997)

    Offerors have the right to request a waiver of all or any part 
of the rights of the United States in inventions conceived or first 
actually reduced to practice in performance of the contract that may 
be awarded as a result of this solicitation, in advance of or within 
30 days after the effective date of contracting. Even where such 
advance waiver is not requested or the request is denied, the 
contractor will have a continuing right under the contract to 
request a waiver of the rights of the United States in identified 
inventions, i.e., individual inventions conceived or first actually 
reduced to practice in performance of the contract. Domestic small 
businesses and domestic nonprofit organizations normally will 
receive the patent rights clause at 952.227-13 which permits the 
contractor to retain title to such inventions, except under 
contracts for management or operation of a Government-owned research 
and development facility or under contracts involving exceptional 
circumstances or intelligence activities. Therefore, small 
businesses and nonprofit organizations normally need not request a 
waiver. See the patent rights clause in the draft contract in this 
solicitation. See DOE's patent waiver regulations at 10 CFR part 
784.

(End of Provision)

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    21. The authority citation for Part 970 continues to read:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act, Pub. 
L. 95-91 (42 U.S.C. 7254).

    22. Section 970.2705 is revised to read as follows:


970.2705  Rights in Data--General.

    (a) Rights in data relating to the performance of the contract and 
to all facilities are significant in assuring continuity of the 
management and operation of DOE facilities. It is crucial in assuring 
DOE's continuing ability to perform its statutory missions that DOE 
obtain rights to all data produced or specifically used by its 
management and operating contractors and their subcontractors. In order 
to obtain the necessary rights in technical data, DOE contracting 
officers shall assure that management and operating contracts contain 
either the Rights in Data clause at 48 CFR 970.5204-XX or the clause at 
48 CFR 970.5204-YY. Selection of the appropriate clause is dependent 
upon whether technology transfer is a mission of the management and 
operating contract. If technology transfer is not a mission of the 
management and operating contractor, the clause at 48 CFR 970.5204-XX 
will be used. In those instances in which technology transfer is a 
mission, the clause at 48 CFR 970.5204-YY will be used.
    (b) Employees of the management and operating contractor may not be 
used to assist in the preparation of a proposal or bid for the 
performance of services, which are similar or related to those being 
performed under the contract, by the contractor or its parent or 
affiliate organization for commercial customers unless the employee has 
been separated from work under the DOE contract for such period as the 
Head of the Contracting Activity or designee shall have directed.
    (c) Management and operating contractors shall not use data 
acquired from other Government agencies or private entities in the 
performance of their contracts for the private purposes of the 
contractor unless the agency or entity authorizes such use.
    23. Revise Section 970.2706 as follows:

[[Page 15145]]

970.2706  Rights in Technical Data--Procedures.

    (a) The clauses at 48 CFR 970.5204-XX and 48 CFR 970.5204-YY both 
provide generally for Government ownership and for unlimited rights in 
the Government for all data first produced in the performance of the 
contract and unlimited rights in data specifically used in the 
performance of the contract. Both clauses provide that, subject to 
patent, security, and other provisions of the contract, the contractor 
may use contract data for its private purposes. The contractor, under 
either clause, must treat any data furnished by DOE or third parties in 
accordance with any restrictive legends contained therein.
    (b) Since both clauses secure access to and, if requested, delivery 
of technical data used in the performance of the contract, there is 
generally no need to use the Additional Technical Data Requirements 
clause at FAR 52.227-16 in the management and operating contract.
    (c)(1) Paragraph (d) of the clause at 48 CFR 970.5204-XX and 
paragraph (f) of the clause at 48 CFR 970.5204-YY provide for the 
inclusion of the Rights in Technical Data-General clause at FAR 52.227-
14, with Alternates I and V, and, as appropriate and with DOE's prior 
approval, Alternates II, III, and IV, and the Additional Technical Data 
Requirements clause at FAR 52.227-16 in all subcontracts for research, 
development, or demonstration and all other subcontracts having special 
requirements for the production or delivery of data, except in those 
subcontracts, including subcontracts for related support services, 
involving the design or operation of any plants or facilities or 
specially designed equipment for such plants or facilities that are 
managed or operated by the contractor under its contract with DOE. In 
those latter subcontracts, the management and operating contractor 
shall include the Rights in Data-Facilities clause at 48 CFR 970.5204-
XX.
    (2) Where, however, a subcontract is to be awarded by the 
management and operating contractor in connection with a program, as 
discussed at 927.404-70, which provides statutory authority to protect 
from public disclosure, data first produced under contracts awarded 
pursuant to the program, contracting officers shall ensure that the M&O 
contractor includes in that subcontract the rights in data clause 
provided by DOE Patent Counsel, consistent with any accompanying 
guidance.
    (d) Paragraphs (e) and (f) of the clause at 48 CFR 970.5204-XX and 
paragraphs (g) and (h) of the clause at 48 CFR 970.5204-YY provide for 
the contractor's granting a nonexclusive license in any limited rights 
data and restricted computer software specifically used in performance 
of the contract.
    (e) The Rights in Data-Technology Transfer clause at 48 CFR 
970.5204-YY differs from the clause at 48 CFR 970.5204-XX in the 
context of its more detailed treatment of copyright. In management and 
operating contracts that have technology transfer as a mission, the 
right to assert copyright in data first produced under the contract 
will be a valuable right, and commercialization of such data, including 
computer software, will assist the M&O contractor in advancing the 
technology transfer mission of the contract.
    (f) Contracting officers should consult with patent counsel to 
assure that requirements regarding royalties and conflicts of interest 
associated with asserting copyright in data first produced under the 
contract are appropriately addressed in the Technology Transfer Mission 
clause of the management and operating contract. Where it is not 
otherwise clear which DOE contractor funded the development of a 
computer software package, such as where the development was funded out 
of a contractor's overhead account, the DOE program which was the 
primary source of funding for the entire contract is deemed to have 
administrative responsibility. This issue may arise, among others, in 
the decision whether to grant the contractor permission to assert 
copyright. See paragraph (e) of the Rights in Data-Technology Transfer 
clause at 970.5204-YY.
    (g) In management and operating contracts involving access to DOE-
owned Category C-24 restricted data, as set forth in 10 CFR part 725, 
DOE has reserved the right to receive reasonable compensation for the 
use of its inventions and discoveries, including its related restricted 
data and technology. Alternate I to each clause shall be used where 
access to Category C-24 restricted data is contemplated in the 
performance of a contract.
    24. Section 970.2707 is added to read as follows:


970.2707  Rights in Data Clauses.

    (a) Contracting officers shall insert the clause at 48 CFR 
970.5204-XX, Rights in Data-Facilities, in management and operating 
contracts which do not contain the clause at 48 CFR 970.5204-40, 
Technology Transfer Mission.
    (b) Contracting officers shall insert the clause at 970.5204-YY, 
Rights in Data-Technology Transfer, in management and operating 
contracts which contain the clause at 970.5204-40, Technology Transfer 
Mission.
    (c) In accordance with 48 CFR 970.2706(f), in contracts where 
access to Category C-24 restricted data, as set forth in 10 CFR part 
725, is to be provided to contractors, Contracting Officers shall 
incorporate Alternate I of the appropriate rights in data clause 
prescribed in paragraph (a) or (b) of this section.
    22. Subsection 970.5204-XX is added to read as follows:


970.5204-XX  Rights in Data-Facilities.

    Insert the following clause in the management and operating 
contracts in accordance with 48 CFR 970.2707.

Rights in Data-Facilities (XXX 1997)

    (a) Definitions.
    (1) Computer data bases, as used in this clause, means a 
collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term 
does not include computer software.
    (2) Computer software, as used in this clause, means (i) 
computer programs which are data comprising a series of 
instructions, rules, routines, or statements, regardless of the 
media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations and (ii) data comprising 
source code listings, design details, algorithms, processes, flow 
charts, formulae, and related material that would enable the 
computer program to be produced, created, or compiled. The term does 
not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The 
term includes technical data and computer software.
    (4) Limited rights data, as used in this clause, means data, 
other than computer software, developed at private expense that 
embody trade secrets or are commercial or financial and confidential 
or privileged. The Government's rights to use, duplicate, or 
disclose limited rights data are as set forth in the Limited Rights 
Notice of subparagraph (e) of this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or 
privileged; or is published copyrighted computer software, including 
minor modifications of any such computer software. The Government's 
rights to use, duplicate, or disclose Restricted Computer Software 
are as set forth in the Restricted Rights Notice of paragraph (f) of 
this clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, 
but does include manuals and instructional materials and technical 
data formatted as a computer data

[[Page 15146]]

base. Technical data does not include data incidental to the 
administration of this contract, such as financial, administrative, 
cost and pricing, or management information.
    (7) Unlimited rights, as used in this clause, means the rights 
of the Government to use, disclose, reproduce, prepare derivative 
works, distribute copies to the public, including by electronic 
means, and perform publicly and display publicly, in any manner, 
including by electronic means, and for any purpose whatsoever, and 
to have or permit others to do so.
    (b) Allocation of Rights.
    (1) The Government shall have:
    (i) Ownership of all technical data and computer software first 
produced in the performance of this Contract;
    (ii) Unlimited rights in technical data and computer software 
specifically used in the performance of this Contract, except as 
provided herein regarding copyright;
    (iii) The right to inspect technical data and computer software 
first produced or specifically used in the performance of this 
Contract at all reasonable times. The Contractor shall make 
available all necessary facilities to allow DOE personnel to perform 
such inspection;
    (iv) The right to have all technical data and computer software 
first produced or specifically used in the performance of this 
Contract delivered to the Government or otherwise disposed of by the 
Contractor, either as the Contracting Officer may from time to time 
direct during the progress of the work or in any event as the 
Contracting Officer shall direct upon completion or termination of 
this Contract. The Contractor agrees to leave a copy of such data at 
the facility or plant to which such data relate, and to make 
available for access or to deliver to the Government such data upon 
request by the Contracting Officer. If such data are limited rights 
data or restricted computer software, the rights of the Government 
in such data shall be governed solely by the provisions of paragraph 
(e) of this clause (``Rights in Limited Rights Data'') or paragraph 
(f) of this clause (``Rights in Restricted Computer Software'');
    (v) The right to remove, cancel, correct, or ignore any markings 
not authorized by the terms of this Contract on any data furnished 
hereunder if, in response to a written inquiry by DOE concerning the 
propriety of the markings, the Contractor fails to respond thereto 
within 60 days or fails to substantiate the propriety of the 
markings. In either case DOE will notify the Contractor of the 
action taken.
    (2) The Contractor shall have:
    (i) The right to withhold limited rights data and restricted 
computer software in accordance with the provisions of this clause;
    (ii) The right to use for its private purposes, subject to 
patent, security or other provisions of this Contract, data it first 
produces in the performance of this Contract, except for data in 
DOE's Uranium Enrichment Technology, including diffusion, 
centrifuge, and atomic vapor laser isotope separation, provided the 
data requirements of this Contract have been met as of the date of 
the private use of such data; and
    (3) The Contractor agrees that for limited rights data or 
restricted computer software or other technical, business or 
financial data in the form of recorded information which it receives 
from, or is given access to by, DOE or a third party, including a 
DOE Contractor or subcontractor, and for technical data or computer 
software it first produces under this Contract which is authorized 
to be marked by DOE, the Contractor shall treat such data in 
accordance with any restrictive legend contained thereon.
    (c) Copyrighted Material.
    (1) The Contractor shall not, without prior written 
authorization of the Patent Counsel, establish a claim to statutory 
copyright in any technical data first produced in the performance of 
this contract. To the extent such authorization is granted, the 
Government reserves for itself and others acting on its behalf, a 
royalty-free, nonexclusive, irrevocable, world-wide license for 
Governmental purposes to publish, distribute, translate, duplicate, 
exhibit, and perform any such data copyrighted by the Contractor.
    (2) The Contractor agrees not to include in the technical data 
delivered under the contract any material copyrighted by the 
Contractor and not to knowingly include any material copyrighted by 
others without first granting or obtaining at no cost a license 
therein for the benefit of the Government of the same scope as set 
forth in paragraph (c)(1) of this clause. If the Contractor believes 
that such copyrighted material for which the license cannot be 
obtained must be included in the technical data to be delivered, 
rather than merely incorporated therein by reference, the Contractor 
shall obtain the written authorization of the Contracting Officer to 
include such 08347material in the technical data prior to its 
delivery.
    (d) Subcontracting.
    (1) Unless otherwise directed by the Contracting Officer, the 
Contractor agrees to use in subcontracts in which technical data is 
expected to be produced or in subcontracts for supplies that contain 
a requirement for production or delivery of data in accordance with 
the policy and procedures of 48 CFR (FAR) subpart 27.4 as 
supplemented by 48 CFR (DEAR) 927.401 through 927.409, the clause 
entitled ``Rights in Data''--General at 48 CFR 52.227-14 with the 
paragraph (a) of this clause substituted for paragraph (a) of that 
clause and including Alternates I & V, including its use with 
Alternate II through Alternate IV as may be required or authorized 
pursuant to FAR 27.409. Prior to using Alternate II, Alternate III, 
or Alternate IV, the Contractor shall consult with the DOE Patent 
Counsel.
    (2) It is the responsibility of the Contractor to obtain from 
its Subcontractors technical data and rights therein, on behalf of 
the Government, necessary to fulfill the Contractor's obligations to 
the Government with respect to such data. In the event of refusal by 
a Subcontractor to accept a clause affording the Government such 
rights, the Contractor shall:
    (i) Promptly submit written notice to the Contracting Officer 
setting forth reasons or the Subcontractor's refusal and other 
pertinent information which may expedite disposition of the matter, 
and
    (ii) Not proceed with the subcontract without the written 
authorization of the Contracting Officer.
    (e) Rights in Limited Rights Data.
    Except as may be otherwise specified in this Contract as data 
which are not subject to this paragraph, the Contractor agrees to 
and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up license by or for the Government, in any 
limited rights data of the Contractor specifically used in the 
performance of this Contract, provided, however, that to the extent 
that any limited rights data when furnished or delivered is 
specifically identified by the Contractor at the time of initial 
delivery to the Government or a representative of the Government, 
such data shall not be used within or outside the Government except 
as provided in the ``Limited Rights Notice'' set forth below. All 
such limited rights data shall be marked with the following 
``Limited Rights Notice'':

Limited Rights Notice

    These data contain ``limited rights data,'' furnished under 
Contract No. ________ with the United States Department of Energy 
which may be duplicated and used by the Government with the express 
limitations that the ``limited rights data'' may not be disclosed 
outside the Government or be used for purposes of manufacture 
without prior permission of the Contractor, except that further 
disclosure or use may be made solely for the following purposes:
    (a) Use (except for manufacture) by support services contractors 
within the scope of their contracts;
    (b) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (c) This ``limited rights data'' may be disclosed to other 
Contractors participating in the Government's program of which this 
Contract is a part for information or use (except for manufacture) 
in connection with the work performed under their contracts and 
under the restriction that the ``limited rights data'' be retained 
in confidence and not be further disclosed; and
    (d) This ``limited rights data'' may be used by the Government 
or others on its behalf for emergency repair or overhaul work under 
the restriction that the ``limited rights data'' be retained in 
confidence and not be further disclosed. This Notice shall be marked 
on any reproduction of this data in whole or in part.
    (e) Release to a foreign government, or instrumentality thereof, 
as the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work 
by such government.

(End of Notice)

    (f) Rights in Restricted Computer Software.
    (1) Except as may be otherwise specified in this Contract as 
data which are not subject to this paragraph, the Contractor agrees 
to and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up, license by or for the Government, in any 
restricted computer software of the Contractor specifically used in 
the performance of this Contract, provided, however, that to the

[[Page 15147]]

extent that any restricted computer software when furnished or 
delivered is specifically identified by the Contractor at the time 
of initial delivery to the Government or a representative of the 
Government, such data shall not be used within or outside the 
Government except as provided in the ``Restricted Rights Notice'' 
set forth below. All such restricted computer software shall be 
marked with the following ``Restricted Rights Notice'':

Restricted Rights Notice--Long Form

    (a) This computer software is submitted with restricted rights 
under Government Contract No. ________. It may not be used, 
reproduced, or disclosed by the Government except as provided in 
paragraph (b) of this notice.
    (b) This computer software may be:
    (1) Used, or copied for use, in or with the computer or 
computers for which it was acquired, including use at any Government 
installation to which such computer or computers may be transferred;
    (2) Used, copied for use, in a backup or replacement computer if 
any computer for which it was acquired is inoperative or is 
replaced;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that only the portions of the derivative software 
consisting of the restricted computer software are to be made 
subject to the same restricted rights; and
    (5) Disclosed to and reproduced for use by contractors under a 
service contract (of the type defined in FAR 37.101) in accordance 
with subparagraphs (b) (1) through (4) of this Notice, provided the 
Government makes such disclosure or reproduction subject to these 
restricted rights.
    (c) Notwithstanding the foregoing, if this computer software has 
been published under copyright, it is licensed to the Government, 
without disclosure prohibitions, with the rights set forth in the 
restricted rights notice above.
    (d) This Notice shall be marked on any reproduction of this 
computer software, in whole or in part.

(End of Notice)

    (2) Where it is impractical to include the Restricted Rights 
Notice on restricted computer software, the following short-form 
Notice may be used in lieu thereof:

Restricted Rights Notice--Short Form

    Use, reproduction, or disclosure is subject to restrictions set 
forth in the Long Form Notice of Contract No. ________ with (name of 
Contractor ).

(End of Notice)

    (3) If the software is embedded, or if it is commercially 
impractical to mark it with human readable text, then the symbol R 
and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may 
be used. This will be read to mean restricted computer software, 
subject to the rights of the Government as described in the Long 
Form Notice, in effect as of the date indicated next to the symbol. 
The symbol shall not be used to mark human readable material. In the 
event this Contract contains any variation to the rights in the Long 
Form Notice, then the contract number must also be cited.
    (4) If restricted rights computer software is delivered with the 
copyright notice of 17 U.S.C. 401, the software will be presumed to 
be published copyrighted computer software licensed to the 
Government without disclosure prohibitions, unlimited rights, unless 
the Contractor includes the following statement with such copyright 
notice ``Unpublished--rights reserved under the Copyright Laws of 
the United States.''
    (g) Relationship to patents.
    Nothing contained in this clause creates or is intended to imply 
a license to the Government in any patent or is intended to be 
construed as affecting the scope of any licenses or other rights 
otherwise granted to the Government under any patent.

(End of Clause)

Alternate I (XXX 1997)

    In accordance with 48 CFR 970.2706(f), insert the parenthetical 
phrase ``(except Restricted Data in category C-24, 10 CFR part 725, 
in which DOE has reserved the right to receive reasonable 
compensation for the use of its inventions and discoveries, 
including related data and technology)'' after ``technical data'' in 
paragraph (b)(2)(ii) of the clause at 48 CFR 970.5204-XX, as 
appropriate.

(End of Alternate)

    26. Subsection 970.5204-YY is added to read as follows:


970.5204-YY   Rights in Data-Technology Transfer.

    Insert the following clause in management and operating contracts 
in accordance with 48 CFR 970.2707.

Rights in Data-Technology Transfer (XXX 1997)

    (a) Definitions.
    (1) Computer data bases, as used in this clause, means a 
collection of data in a form capable of, and for the purpose of, 
being stored in, processed, and operated on by a computer. The term 
does not include computer software.
    (2) Computer software, as used in this clause, means (i) 
computer programs which are data comprising a series of 
instructions, rules, routines, or statements, regardless of the 
media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations and (ii) data comprising 
source code listings, design details, algorithms, processes, flow 
charts, formulae, and related material that would enable the 
computer program to be produced, created, or compiled. The term does 
not include computer data bases.
    (3) Data, as used in this clause, means recorded information, 
regardless of form or the media on which it may be recorded. The 
term includes technical data and computer software.
    (4) Limited rights data, as used in this clause, means data, 
other than computer software, developed at private expense that 
embody trade secrets or are commercial or financial and confidential 
or privileged. The Government's rights to use, duplicate, or 
disclose limited rights data are as set forth in the Limited Rights 
Notice of paragraph (g) of this clause.
    (5) Restricted computer software, as used in this clause, means 
computer software developed at private expense and that is a trade 
secret; is commercial or financial and is confidential or 
privileged; or is published copyrighted computer software, including 
minor modifications of any such computer software. The Government's 
rights to use, duplicate, or disclose Restricted Computer Software 
are as set forth in the Restricted Rights Notice of subparagraph (h) 
of this clause.
    (6) Technical data, as used in this clause, means recorded data, 
regardless of form or characteristic, that are of a scientific or 
technical nature. Technical data does not include computer software, 
but does include manuals and instructional materials and technical 
data formatted as a computer data base. Technical data does not 
include data incidental to the administration of this contract, such 
as financial, administrative, cost and pricing, or management 
information.
    (7) Unlimited rights, as used in this clause, means the rights 
of the Government to use, disclose, reproduce, prepare derivative 
works, distribute copies to the public, including by electronic 
means, and perform publicly and display publicly, in any manner, 
including by electronic means, and for any purpose whatsoever, and 
to have or permit others to do so.
    (b) Allocation of Rights.
    (1) The Government shall have:
    (i) Ownership of all technical data and computer software first 
produced in the performance of this Contract;
    (ii) Unlimited rights in technical data and computer software 
specifically used in the performance of this Contract, except as 
provided herein regarding copyright, subject to the withholding 
provisions for protected CRADA information in accordance with 
Technology Transfer actions under this Contract;
    (iii) The right to inspect technical data and computer software 
first produced or specifically used in the performance of this 
Contract at all reasonable times. The Contractor shall make 
available all necessary facilities to allow DOE personnel to perform 
such inspection;
    (iv) The right to have all technical data and computer software 
first produced or specifically used in the performance of this 
Contract delivered to the Government or otherwise disposed of by the 
Contractor, either as the Contracting Officer may from time to time 
direct during the progress of the work or in any event as the 
Contracting Officer shall direct upon completion or termination of 
this Contract. The Contractor agrees to leave a copy of such data at 
the facility or plant to which such data relate, and to make 
available for access or to deliver to the Government such data upon 
request by the Contracting Officer. If such data are limited rights 
data or restricted computer software the rights of the Government in 
such data shall be governed solely by the provisions of paragraph 
(e) of this clause (``Rights in Limited Rights Data'') or

[[Page 15148]]

paragraph (f) of this clause (``Rights in Restricted Computer 
Software'');
    (v) The right to remove, cancel, correct, or ignore any markings 
not authorized by the terms of this Contract on any data furnished 
hereunder if, in response to a written inquiry by DOE concerning the 
propriety of the markings, the Contractor fails to respond thereto 
within 60 days or fails to substantiate the propriety of the 
markings. In either case DOE will notify the Contractor of the 
action taken.
    (2) The Contractor shall have:
    (i) The right to withhold limited rights data and restricted 
computer software in accordance with the provisions of this clause;
    (ii) The right to use for its private purposes, subject to 
patent, security or other provisions of this Contract, data it first 
produces in the performance of this Contract, except for data in 
DOE's Uranium Enrichment Technology, including diffusion, 
centrifuge, and atomic vapor laser isotope separation, provided the 
data requirements of this Contract have been met as of the date of 
the private use of such data; and
    (iii) The right to assert copyright subsisting in scientific and 
technical articles as provided in paragraph (d) of this clause and 
the right to request permission to assert copyright subsisting in 
works other than scientific and technical articles as provided in 
paragraph (e) of this clause.
    (3) The Contractor agrees that for limited rights data or 
restricted computer software or other technical, business or 
financial data in the form of recorded information which it receives 
from, or is given access to by, DOE or a third party, including a 
DOE Contractor or subcontractor, and for technical data or computer 
software it first produces under this Contract which is authorized 
to be marked by DOE, the Contractor shall treat such data in 
accordance with any restrictive legend contained thereon.
    (c) Copyright (General).
    (1) The Contractor agrees not to mark, register, or otherwise 
assert copyright in any data in a published or unpublished work, 
other than as set forth in paragraphs (d) and (e) of this clause.
    (2) Except for material to which the Contractor has obtained the 
right to assert copyright in accordance with either paragraph (d) or 
(e) of this clause, the Contractor agrees not to include in the data 
delivered under this Contract any material copyrighted by the 
Contractor and not to knowingly include any material copyrighted by 
others without first granting or obtaining at no cost a license 
therein for the benefit of the Government of the same scope as set 
forth in paragraph (d) of this clause below. If the Contractor 
believes that such copyrighted material for which the license cannot 
be obtained must be included in the data to be delivered, rather 
than merely incorporated therein by reference, the Contractor shall 
obtain the written authorization of the Contracting Officer to 
include such material in the data prior to its delivery.
    (d) Copyrighted works (scientific and technical articles).
    (1) The Contractor shall have the right to assert, without prior 
approval of the Contracting Officer, copyright subsisting in 
scientific and technical articles composed under this contract or 
based on or containing data first produced in the performance of 
this Contract, and published in academic, technical or professional 
journals, symposia, proceedings, or similar works. When assertion of 
copyright is made, the Contractor shall affix the applicable 
copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of 
Government sponsorship (including contract number) on the data when 
such data are delivered to the Government as well as when the data 
are published or deposited for registration as a published work in 
the U.S. Copyright Office. The Contractor grants to the Government, 
and others acting on its behalf, a paid-up, nonexclusive, 
irrevocable worldwide license in such copyrighted data to reproduce, 
prepare derivative works, distribute copies to the public, and 
perform publicly and display publicly, by or on behalf of the 
Government.
    (2) The contractor shall mark each scientific or technical 
article first produced or composed under this contract and submitted 
for journal publication with a notice, similar in all material 
respects to the following, on the front reflecting the Government's 
non-exclusive, royalty free, world-wide license in the copyright.

    This manuscript has been authored by [insert the name of the 
contractor] under contract no. [insert the contract number] with the 
U.S. Department of Energy. The United States Government retains and 
the publisher, by accepting the article for publication, 
acknowledges that the United States Government retains a non-
exclusive, royalty-free, world-wide license to publish or reproduce 
the published form of this manuscript, or allow other to do so, for 
United States Government purposes.

(End of notice)

    (3) The title to the original of unclassified graduate theses 
and the original of related unclassified scientific papers shall 
vest in the author thereof, subject to the right of DOE to retain 
duplicates of such documents and to use such documents for any 
purpose whatsoever without any claim on the part of the author or 
the contractor for additional compensation.
    (e) Copyrighted works (other than scientific and technical 
articles).
    The Contractor may obtain permission to assert copyright 
subsisting in technical data and computer software first produced by 
the Contractor in performance of this Contract, where the Contractor 
can show that commercialization would be enhanced by such copyright 
protection, subject to the following:
    (1) Contractor Request to Assert Copyright.
    (i) For data other than scientific and technical articles, the 
Contractor shall submit in writing to Patent Counsel its request to 
assert copyright in data first produced in the performance of this 
Contract pursuant to this clause. Each request by the Contractor 
must include:
    (A) the identity of the data (including any computer program) 
for which the Contractor requests permission to assert copyright, as 
well as an abstract which is descriptive of the data and is suitable 
for dissemination purposes, (B) the program under which it was 
funded, (C) whether the data is subject to an international treaty 
or agreement, (D) whether the data is subject to export control, (E) 
a statement that the Contractor plans to commercialize the data in 
compliance with the clause of this contract entitled ``Technology 
Transfer Mission,'' within five (5) years after obtaining permission 
to assert copyright, and (F) for data other than computer software, 
a statement explaining why the assertion of copyright is necessary 
to enhance commercialization. For data that is developed using other 
funding sources in addition to DOE funding, the permission to assert 
copyright in accordance with this clause must also be obtained by 
the Contractor from all other funding sources prior to the 
Contractor's request to Patent Counsel. The request shall include 
the Contractor's certification or other documentation acceptable to 
Patent Counsel demonstrating such permission has been obtained.
    (ii) Permission for the Contractor to assert copyright in 
excepted categories of data as determined by DOE will be expressly 
withheld. Such excepted categories include data whose release (A) 
would be detrimental to national security, i.e., involve classified 
information or data or sensitive information under Section 148 of 
the Atomic Energy Act of 1954, as amended, or are subject to export 
control for nonproliferation and other nuclear-related national 
security purposes, (B) would not enhance the appropriate transfer or 
dissemination and commercialization of such data, (C) would have a 
negative impact on U.S. industrial competitiveness, (D) would 
prevent DOE from meeting its obligations under treaties and 
international agreements, or (E) would be detrimental to one or more 
of DOE's programs. Additional excepted categories may be added by 
the Assistant General Counsel for Intellectual Property where data 
are determined to be subject to export controls. In addition, 
notwithstanding any other provision of this Contract, all data 
developed with Naval Reactors' funding and those data that are 
classified fall within excepted categories. Additionally, the rights 
of the Contractor in data are subject to the disposition of data 
rights in the treaties and international agreements identified under 
this Contract as well as those additional treaties and international 
agreements which DOE may from time to time identify by unilateral 
amendment to the Contract; such amendment listing added treaties and 
international agreements is effective only for data which is 
developed after the date such treaty or international agreement is 
added to this Contract. Also, the Contractor will not be permitted 
to assert copyright in data in the form of various technical reports 
generated by the Contractor under the Contract without first 
obtaining the advanced written permission of the Contracting 
Officer.
    (2) DOE Review and Response to Contractor's Request. The Patent 
Counsel shall use its best efforts to respond in writing within 90 
days of receipt of a complete request by the Contractor to assert 
copyright in technical data and computer software

[[Page 15149]]

pursuant to this clause. Such response shall either give or withhold 
DOE's permission for the Contractor to assert copyright or advise 
the Contractor that DOE needs additional time to respond and the 
reasons therefor.
    (3) Permission for Contractor to Assert Copyright.
    (i) For computer software, the Contractor shall furnish to a DOE 
designated, centralized software distribution and control point, at 
the time permission to assert copyright is given under paragraph 
(e)(2) of this clause: (A) an abstract describing the software 
suitable for publication, (B) the source code for each software 
program, and (C) the object code and at least the minimum support 
documentation needed by a technically competent user to understand 
and use the software. The Patent Counsel, for good cause shown by 
the Contractor, may allow the minimum support documentation to be 
delivered within 60 days after permission to assert copyright is 
given or at such time the minimum support documentation becomes 
available. The Contractor acknowledges that the DOE designated 
software distribution and control point may provide a technical 
description of the software in an announcement identifying its 
availability from the copyright holder.
    (ii) Unless otherwise directed by the Contracting Officer, for 
data other than computer software to which the Contractor has 
received permission to assert copyright under paragraph (e)(2) of 
this clause above, the Contractor shall within sixty (60) days of 
obtaining such permission furnish to DOE's Office of Scientific and 
Technical Information (OSTI) a copy of such data as well as an 
abstract of the data suitable for dissemination purposes. The 
Contractor acknowledges that OSTI may provide an abstract of the 
data in an announcement to DOE, its contractors and to the public 
identifying its availability from the copyright holder.
    (iii) For a period of five (5) years beginning on the date the 
Contractor is given permission to assert copyright in data, the 
Contractor grants to the Government, and others acting on its 
behalf, a paid-up, nonexclusive, irrevocable worldwide license in 
such copyrighted data to reproduce, prepare derivative works and 
perform publicly and display publicly, by or on behalf of the 
Government. Subject to DOE approval, the five-year period for 
assertion of copyright is renewable for successive five year 
periods. The DOE approval will be based on the standard that the 
work is still commercially available and the market demand is being 
met.
    (iv) After the authorized five (5) year period, or successive 
five year period(s) for assertion of copyright by the contractor as 
described in paragraph (e)(3)(iii) of this clause, or if, prior to 
the end of such period(s), the Contractor abandons commercialization 
activities pertaining to the data to which the Contractor has been 
given permission to assert copyright, the Contractor grants to the 
Government, and others acting on its behalf, a paid-up, 
nonexclusive, irrevocable worldwide license in such copyrighted data 
to reproduce, distribute copies to the public, prepare derivative 
works, perform publicly and display publicly, and to permit others 
to do so.
    (v) Whenever the Contractor asserts copyright in data pursuant 
to this paragraph (e), the Contractor shall affix the applicable 
copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and 
also an acknowledgement of the Government sponsorship and license 
rights of paragraphs (e)(3) (iii) and (iv) of this clause. Such 
action shall be taken when the data are delivered to the Government, 
published, licensed or deposited for registration as a published 
work in the U.S Copyright Office. The acknowledgement of Government 
sponsorship and license rights shall be as follows:
    NOTICE: These data were produced under Contract No.________ with 
the Department of Energy. The Government is granted for itself and 
others acting on its behalf a paid-up, nonexclusive, irrevocable 
worldwide license in this data to reproduce, prepare derivative 
works, and perform publicly and display publicly. Beginning five (5) 
years after (date permission to assert copyright was obtained), the 
Government is granted for itself and others acting on its behalf a 
paid-up, nonexclusive, irrevocable worldwide license in this data to 
reproduce, prepare derivative works, distribute copies to the 
public, perform publicly and display publicly, and to permit others 
to do so. The initial five year period may have been extended for 
successive periods of five years, thereby allowing the contractor to 
assert its copyright for that additional period. However, prior to 
the expiration of the initial and any successive five year period, 
the conditions underlying the permission to assert copyright might 
have been violated, denying the contractor the right to assert the 
copyright. NEITHER THE UNITED STATES NOR THE UNITED STATES 
DEPARTMENT OF ENERGY, NOR ANY OF THEIR EMPLOYEES, MAKES ANY 
WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LEGAL LIABILITY OR 
RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY 
INFORMATION, APPARATUS, PRODUCT, OR PROCESS DISCLOSED, OR REPRESENTS 
THAT ITS USE WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS.

(End of Notice)

    (vi) With respect to any data to which the Contractor has 
received permission to assert copyright, the DOE has the right, 
during the 5 year period or successive five year period set forth in 
subparagraph (e)(1)(i) of this clause, to request the Contractor to 
grant a nonexclusive, partially exclusive or exclusive license in 
any field of use to a responsible applicant(s) upon terms that are 
reasonable under the circumstances, and if the Contractor refuses 
such request, to grant such license itself, if the DOE determines 
that the Contractor has not made a satisfactory demonstration that 
either it or its licensee(s) is actively pursuing commercialization 
of the data as set forth in subparagraph (e)(1)(A) of this clause. 
Before licensing under this subparagraph (vi), DOE shall furnish the 
Contractor a written request for the Contractor to grant the stated 
license, and the Contractor shall be allowed thirty (30) days (or 
such longer period as may be authorized by the Contracting Officer 
for good cause shown in writing by the Contractor) after such notice 
to show cause why the license should not be granted. The Contractor 
shall have the right to appeal the decision of the DOE to grant the 
stated license to the Invention Licensing Appeal Board as set forth 
in 10 CFR 781.65--``Appeals''.
    (vii) No costs shall be allowable for maintenance of copyrighted 
data, primarily for the benefit of the Contractor and/or a licensee 
and which exceeds DOE Program needs, except as expressly provided in 
writing by the Contracting Officer. The Contractor may use its net 
royalty income to effect such maintenance costs.
    (viii) At any time the Contractor abandons commercialization 
activities for data for which the Contractor has received permission 
to assert copyright in accordance with this clause, it shall advise 
OSTI and Patent Counsel and upon request assign the copyright to the 
Government so that the Government can distribute the data to the 
public.
    (4) The following notice may be placed on the software prior to 
any publication and prior to the Contractor's obtaining permission 
from the Department of Energy to assert copyright in the software 
pursuant to paragraph (c)(3) of this section.

NOTICE

    This program was prepared by [Insert the Contractor's name and 
the individual author], hereinafter the Contractor, under Contract 
[Insert the Contract Number] with the Department of Energy (DOE). 
All rights in the program are reserved by DOE on behalf of the 
United States Government and the Contractor as provided in the 
contract. You are authorized to use this program for Governmental 
purposes but it is not to be released or distributed to the public. 
Neither the Government nor the Contractor makes any warranty, 
express or implied, or assumes any liability or responsibility for 
the use of this software. This notice including this sentence must 
appear on any copies of this program.

(End of Notice)

    (f) Subcontracting.
    (1) Unless otherwise directed by the Contracting Officer, the 
Contractor agrees to use in subcontracts in which technical data is 
expected to be produced or in subcontracts for supplies that contain 
a requirement for production or delivery of data in accordance with 
the policy and procedures of 48 CFR (FAR) subpart 27.4 as 
supplemented by 48 CFR (DEAR) 927.401 through 927.409, the clause 
entitled ``Rights in Data--General'' at 48 CFR 52.227-14 with the 
paragraph (a) of this clause substituted for paragraph (a) of that 
clause and including Alternates I & V, including its use with 
Alternate II through Alternate IV as may be required or authorized 
pursuant to 48 CFR 27.409. Prior to using Alternate II, Alternate 
III, or Alternate IV, the Contractor shall consult with the DOE 
Patent Counsel.
    (2) It is the responsibility of the Contractor to obtain from 
its Subcontractors technical data and rights therein, on behalf of 
the Government, necessary to fulfill the

[[Page 15150]]

Contractor's obligations to the Government with respect to such 
data. In the event of refusal by a Subcontractor to accept a clause 
affording the Government such rights, the Contractor shall:
    (i) Promptly submit written notice to the Contracting Officer 
setting forth reasons or the Subcontractor's refusal and other 
pertinent information which may expedite disposition of the matter, 
and
    (ii) Not proceed with the subcontract without the written 
authorization of the Contracting Officer.
    (g) Rights in Limited Rights Data.
    Except as may be otherwise specified in this Contract as data 
which are not subject to this paragraph, the Contractor agrees to 
and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up license by or for the Government, in any 
limited rights data of the Contractor specifically used in the 
performance of this Contract, provided, however, that to the extent 
that any limited rights data when furnished or delivered is 
specifically identified by the Contractor at the time of initial 
delivery to the Government or a representative of the Government, 
such data shall not be used within or outside the Government except 
as provided in the ``Limited Rights Notice'' set forth below. All 
such limited rights data shall be marked with the following 
``Limited Rights Notice'':

Limited Rights Notice

    These data contain ``limited rights data,'' furnished under 
Contract No. ________ with the United States Department of Energy 
which may be duplicated and used by the Government with the express 
limitations that the ``limited rights data'' may not be disclosed 
outside the Government or be used for purposes of manufacture 
without prior permission of the Contractor, except that further 
disclosure or use may be made solely for the following purposes:
    (a) Use (except for manufacture) by support services contractors 
within the scope of their contracts;
    (b) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (c) This ``limited rights data'' may be disclosed to other 
Contractors participating in the Government's program of which this 
Contract is a part for information or use (except for manufacture) 
in connection with the work performed under their contracts and 
under the restriction that the ``limited rights data'' be retained 
in confidence and not be further disclosed; and
    (d) This ``limited rights data'' may be used by the Government 
or others on its behalf for emergency repair or overhaul work under 
the restriction that the ``limited rights data'' be retained in 
confidence and not be further disclosed. This Notice shall be marked 
on any reproduction of this data in whole or in part.
    (e) Release to a foreign government, or instrumentality thereof, 
as the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work 
by such government.

(End of Notice)

    (h) Rights in Restricted Computer Software.
    (1) Except as may be otherwise specified in this Contract as 
data which are not subject to this paragraph, the Contractor agrees 
to and does hereby grant to the Government an irrevocable, 
nonexclusive, paid-up, license by or for the Government, in any 
restricted computer software of the Contractor specifically used in 
the performance of this Contract, provided, however, that to the 
extent that any restricted computer software when furnished or 
delivered is specifically identified by the Contractor at the time 
of initial delivery to the Government or a representative of the 
Government, such data shall not be used within or outside the 
Government except as provided in the ``Restricted Rights Notice'' 
set forth below. All such restricted computer software shall be 
marked with the following ``Restricted Rights Notice'':

Restricted Rights Notice-Long Form

    (a) This computer software is submitted with restricted rights 
under Government Contract No. ________. It may not be used, 
reproduced, or disclosed by the Government except as provided in 
paragraph (b) of this notice.
    (b) This computer software may be:
    (1) Used, or copied for use, in or with the computer or 
computers for which it was acquired, including use at any Government 
installation to which such computer or computers may be transferred;
    (2) Used, copied for use, in a backup or replacement computer if 
any computer for which it was acquired is inoperative or is 
replaced;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that only the portions of the derivative software 
consisting of the restricted computer software are to be made 
subject to the same restricted rights; and
    (5) Disclosed to and reproduced for use by contractors under a 
service contract (of the type defined in FAR 37.101) in accordance 
with subparagraphs (b)(1) through (4) of this Notice, provided the 
Government makes such disclosure or reproduction subject to these 
restricted rights.
    (c) Notwithstanding the foregoing, if this computer software has 
been published under copyright, it is licensed to the Government, 
without disclosure prohibitions, with the rights set forth in the 
restricted rights notice above.
    (d) This Notice shall be marked on any reproduction of this 
computer software, in whole or in part.

 (End of Notice)

    (2) Where it is impractical to include the Restricted Rights 
Notice on restricted computer software, the following short-form 
Notice may be used in lieu thereof:

Restricted Rights Notice--Short Form

    Use, reproduction, or disclosure is subject to restrictions set 
forth in the Long Form Notice of Contract No. ________ with (name of 
Contractor).

(End of Notice)

    (3) If the software is embedded, or if it is commercially 
impractical to mark it with human readable text, then the symbol R 
and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may 
be used. This will be read to mean restricted computer software, 
subject to the rights of the Government as described in the Long 
Form Notice, in effect as of the date indicated next to the symbol. 
The symbol shall not be used to mark human readable material. In the 
event this Contract contains any variation to the rights in the Long 
Form Notice, then the contract number must also be cited.
    (4) If restricted rights computer software is delivered with the 
copyright notice of 17 U.S.C. 401, the software will be presumed to 
be published copyrighted computer software licensed to the 
Government without disclosure prohibitions, unlimited rights, unless 
the Contractor includes the following statement with such copyright 
notice ``Unpublished-rights reserved under the Copyright Laws of the 
United States.''
    (i) Relationship to patents.
    Nothing contained in this clause creates or is intended to imply 
a license to the Government in any patent or is intended to be 
construed as affecting the scope of any licenses or other rights 
otherwise granted to the Government under any patent.

(End of Clause)

    Alternate I (XXX 1996): In accordance with 970.2706(f), insert 
the parenthetical phrase ``(except Restricted Data in category C-24, 
10 CFR part 725, in which DOE has reserved the right to receive 
reasonable compensation for the use of its inventions and 
discoveries, including related data and technology)'' after 
``technical data'' in paragraph (b)(2)(ii) of the clause at 
970.5204-44, as appropriate.

(End of Alternate)

[FR Doc. 97-7327 Filed 3-28-97; 8:45 am]
BILLING CODE 6450-01-P