[Federal Register Volume 75, Number 186 (Monday, September 27, 2010)]
[Proposed Rules]
[Pages 59412-59468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22284]
[[Page 59411]]
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Part III
Department of Defense
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Defense Acquisition Regulations System
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48 CFR Parts 212, 227, et al.
Defense Federal Acquisition Regulation Supplement; Patents, Data, and
Copyrights (DFARS Case 2010-D001); Proposed Rule
Federal Register / Vol. 75 , No. 186 / Monday, September 27, 2010 /
Proposed Rules
[[Page 59412]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227, 246, and 252
RIN 0750-AG62
Defense Federal Acquisition Regulation Supplement; Patents, Data,
and Copyrights (DFARS Case 2010-D001)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to update text on patents, data, and
copyrights. The proposed rule removes text and clauses that are
obsolete or unnecessary; relocates and integrates the coverage for
computer software and computer software documentation with the coverage
for technical data to eliminate redundant coverage for these subjects
while retaining the necessary distinctions; eliminates or combines the
clauses associated with technical data and computer software,
consistent with the revised and streamlined regulatory coverage;
relocates, reorganizes, and clarifies the coverage for rights in works;
and relocates to the DFARS companion resource, Procedures, Guidance,
and Information (PGI), text that is not regulatory in nature and does
not impact the public.
DATES: Comments on the proposed rule should be submitted to the address
shown below on or before November 26, 2010, to be considered in the
formulation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2010-D001,
using any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2010-D001 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to
verify posting (except allow 30 days for posting of comments submitted
by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, 703-602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule is intended to simplify and clarify DFARS part
227, Patents, Data, and Copyrights, and move to PGI text that does not
impact the public. These proposed DFARS changes are discussed in
detail, followed by a list of specific issues or topics on which public
comment is sought.
1. Subpart 212.2, Special Requirements for the Acquisition of
Commercial Items.
Subpart 212.2 is revised to update cross-references to the
reorganized subpart 227.71 for technical data and computer software. In
addition, a new section 212.270 is added to provide appropriate cross-
reference to the DFARS policies and procedures for rights in works at
subpart 227.72.
2. Subpart 212.5, Applicability of Certain Laws to the Acquisition
of Commercial Items.
Section 212.504 is revised to eliminate the statutory sections 10
U.S.C. 2320 and 2321 from the list of statutes that are inapplicable to
subcontracts for commercial items. The Federal Acquisition Streamlining
Act (FASA) required the FAR to identify statutes that do not apply to
contracts or subcontracts for commercial items (see FAR 12.503 and
12.504, and DFARS 212.503 and 212.504). The current DFARS
implementation of this authority makes 10 U.S.C. 2320 and 2321
applicable to prime contracts for commercial items, but not to
subcontracts (see 212.504(a)(iii) and (iv)), which results in the DFARS
clauses used in prime contracts not being flowed down to subcontracts,
pursuant to current 227.7102-3.
However, this approach fails to recognize that intellectual
property rights create a direct relationship between the Government and
subcontractors. Intellectual property rights are one area in which
there is a direct legal relationship created between the Government and
subcontractors, at any tier. The Government's license rights are
granted directly from the subcontractor, as the owner of the
deliverable intellectual property; the Government and subcontractor are
allowed to transact business directly with one another; and the higher-
tier contractors are prohibited from using their position to acquire
rights in subcontractor technology (i.e., other than by mutual
agreement in an arms length negotiation). This concept is recognized
explicitly in the statutes governing acquisition of intellectual
property:
Inventions and Patents. The Bayh-Dole Act (35 U.S.C. 200-
212) explicitly states that its requirements apply to subcontracts. The
regulatory implementation specifically addresses this issue at FAR
27.304-4, and in the clauses at FAR 52.227-11(k), 52.227-12, and
52.227-13(i).
Technical Data. 10 U.S.C. 2320 and 2321 explicitly apply
to subcontracts, provide that the subcontractor may transact business
directly with one another, and explicitly address rights and procedures
applicable for commercial items (see, e.g., 2320(a) & (b)(1), and
2321(f)). These procedures are discussed and implemented at current
DFARS 227.7103-13 and -15, and in the current clauses at DFARS 252.227-
7013(k), and 252.227-7037(b), (k), and (l).
These proposed revisions, which now apply these statutory
requirements to subcontracts for commercial items, also require
corresponding changes to the flowdown of the proposed revised clauses
at DFARS 252.227-7013, -7015, and -7037.
3. Subpart 227.3, Patent Rights under Government Contracts, and
associated clause 252.227-7039, Patents--Reporting of Subject
Inventions.
The proposed rule deletes the requirement for DFARS clause 252.227-
7034, Patents--Subcontractor. This clause provided for flowdown of the
52.227-12 clause to large business subcontractors. This clause is
unnecessary because the original defect in the 1984 clause was fixed in
the late 1980s, and that fix was further improved in the FAR part 27
rewrite (FAR Case 1999-402). Under that case, FAR clause 52.227-12 was
deleted. The FAR clause was replaced by DFARS clause 252.227-7038,
Patent Rights--Ownership by the Contractor (Large Business) (DFARS Case
2001-D015, 72 FR 69159).
4. Subpart 227.4, Rights in Data and Copyrights.
There are no substantive changes in subpart 227.4.
5. Subpart 227.6, Foreign Intellectual Property Exchanges and
Licenses.
The language of this subpart has been edited to use plain language
when possible. This revision proposes to relocate to PGI--
Assistance with patent rights and royalty payments in the
U.S. European Command; and
[[Page 59413]]
Information on the laws and regulations governing export
control of intellectual property.
6. Subpart 227.70, Infringement Claims, Licenses, and Assignments.
Requirements for filing an infringement claim.
Section 227.7004 (now 227.7002) establishes requirements for a
private party to file a valid patent or copyright infringement claim or
secrecy order claim against the United States. This subject matter is
not necessarily limited to FAR/DFARS-based contracts. However, the DAR
Council was unable to identify any other appropriate regulation in
which to include this subject matter, and therefore proposes to retain
it in the DFARS. This subject matter directly affects the legal rights
and remedies of private parties and therefore, must be kept in a
regulation.
The proposed rewrite differentiates between the requirements for
filing a claim for patent infringement and for filing a claim for
copyright infringement. The current DFARS only references copyright
infringement claims generically. More specific guidance is required so
that the department or agency affected can more appropriately respond
to a claim for copyright infringement. Moreover, these sections were
revised such that the section concerning indirect notification of a
claim submitted to a contractor rather than the Government was revised
to state that such notice is defective.
Guidance for processing and settling claims.
The remaining subject matter in subpart 225.70 provides guidance
for investigating and settling any intellectual property infringement
claims using a specialized form of acquisition instrument, more
commonly referred to as settlement agreements, licenses, or releases.
The following information has been moved to PGI:
Addresses for filing an administrative claim.
Examples of disposition of trademark infringement claims.
Sample denial of an administrative claim.
The section on notification and disclosure to claimants (now
227.7004) was completely rewritten to positively state that it is the
Government's policy to settle meritorious claims, that the agency
making such a determination should coordinate with other agencies on
their potential liability, and that if a claim is to be denied, the
responsible agency should notify the claimant and provide a basis for
the denial.
The DFARS clauses 252.227-7000 through 252.227-7012, currently
prescribed in DFARS subpart 227.70, have been eliminated. These clauses
were all provided just as examples, which could be modified or omitted.
Section 227.7006 now provides a sample settlement agreement for patent
infringement. This settlement agreement may be tailored as appropriate
for copyright infringement releases, settlement agreements, license
agreements, or assignment. Cognizant legal counsel must be consulted in
such circumstances.
7. Subpart 227.71, Rights in Technical Data and Computer Software.
The current version of DFARS part 227 was issued in 1995, as the
result of a joint Government-industry committee that was formed by
section 807 of the National Defense Authorization Act for FY 1991. The
section 807 committee revised nearly the entire part 227 and clauses,
and established separate coverage for the treatment of technical data
at subpart 227.71, and for computer software and computer software
documentation at subpart 227.72. In addition, within each of these
subparts, the materials were organized to provide separate sections for
commercial technologies (227.7102 and 227.7202) and for noncommercial
technologies (227.7103 and 227.7203).
As a result of this structure, the current DFARS coverage for
computer software at subpart 227.72 is primarily a duplication of the
text covering technical data at 227.71. Similarly, the current clause
for noncommercial computer software at 252.227-7014 is nearly a
duplicate of the clause governing noncommercial technical data at
252.227-7013. With this structure, it can be more difficult to
distinguish the actual differences between the treatment of technical
data vice computer software because so much of the coverage is
identical.
One of the objectives in this proposed rule is to identify and
eliminate the redundancy between current subparts 227.71 and 227.72,
and associated clauses. After consolidating the technical data and
computer software coverage at subpart 227.71, the entire subpart was
reorganized and streamlined to improve clarity, eliminate unnecessary
or obsolete coverage, and relocate appropriate materials to the PGI. In
general, materials were grouped into sections with related purposes or
policies, and to the extent possible, discussed sequentially in order
to more closely parallel the chronological sequence in which these
issues are presented in a typical acquisition (e.g., starting with
acquisition planning, specifying delivery requirements and asserting
restrictions as early as possible, accepting and validating markings on
deliverables, and the use, safeguarding, and handling of those
materials).
This subpart is now divided into the following sections:
a. 227.7100 Scope of subpart.
The subpart has been expanded to include computer software and no
longer includes rights in works.
b. 227.7101 Definitions.
The definitions in this section and the associated clauses at
252.227-7013, 252.227-7014, and 252.227-7015 are revised to incorporate
definitions applicable to computer software (e.g., ``restricted
rights''), and are further revised as to be consistent with statutory
definitions. For example, the definitions of ``computer software'' and
``computer software documentation'' were revised to reclassify some
types of recorded information as ``computer software documentation''
rather than ``computer software.'' The items ``design details,
algorithms, processes, flow charts, formulas, and related material that
describe the design, organization, or structure'' of computer software
had been added to the current definition of ``computer software'' in
the 1995 rewrite, but these types of recorded information are more
legitimately characterized as ``technical data that pertains to an
item'' (in this case, the item being computer software). However,
another type of recorded information that was retained from the 1995-
era redefinition of ``computer software'' is ``source code listings''--
the human-readable versions of computer programs for which there is no
analog in the world of technical data. Thus, ``source code'' is more
appropriately characterized as ``computer software.''
c. 227.7102 Policy.
The policy section expands in most cases the statutory requirements
for technical data at 10 U.S.C. 2320 and 2321 to cover computer
software as well. It combines the policy for both commercial and
noncommercial items or processes.
d. 227.7103 Acquisition of technical data and computer software.
Associated clauses:
252.227-7026, Deferred Delivery of Technical Data or
Computer Software; and
252.227-7027, Deferred Ordering of Technical Data or
Computer Software.
Proposed subsection 227.7103-1 addresses acquisition planning and
provides a pointer to additional guidance in PGI.
Proposed subsections 227.7103-2, Preparation of solicitation, and
227.7103-3, Identification and assessment of Government minimum needs,
are primarily the consolidation of
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coverage from the following current DFARS sections: 227.7103-2 for
noncommercial technical data; and 227.7203-1 for noncommercial computer
software. Because these materials focus on the Government's
determination of its delivery requirements, and the evaluation of
offered deliverables, they are equally applicable to commercial
technical data and computer software, subject to the commercial-
specific policies at proposed revised 227.7102. Procedures for
Government personnel to identify minimum needs have been moved to PGI.
Proposed subsection 227.7103-4 is the consolidation of the coverage
for deferred delivery and deferred ordering at delivery at current
DFARS 227.7103-8 for noncommercial technical data, and 227.7203-8 for
noncommercial computer software. The associated clauses at 252.227-7026
and 252.227-7027 are revised for clarity, with no substantive changes.
e. 227.7104 License rights in technical data and computer software.
Associated clauses:
252.227-7013, Rights in Technical Data and Computer
Software--Noncommercial.
252.227-7014, Rights in Technical Data and Computer
Software--Small Business Innovation Research (SBIR) Program. (moved
from 252.227-7018)
252.227-7015, Rights in Technical Data and Computer
Software--Commercial.
This section 227.7104 consolidates all of the existing DFARS
coverage of the allocation of rights between the parties (i.e., the
Government, contractors, subcontractors, and third parties) for the
various categories of technical data and computer software.
(i) Acquisition of rights in technical data and computer software--
noncommercial.
Proposed subsection 227.7104-1, General, is based on the
consolidation of current 227.7103-4 for noncommercial technical data,
and 227.7203-4 for noncommercial computer software. These materials are
adapted and clarified as follows:
Paragraph (a) addresses Grant of license to the
Government. Much of this information is moved to PGI.
Paragraph (b) clarifies the doctrine of segregability,
which is used to determine the license rights (or license rights
scheme) that is most appropriate for each segregable element of a
technical data computer software. This concept is further reinforced
later at 227.7104-8, in prescribing multiple rights clauses for
contracts that involve multiple types of technical data and computer
software (e.g., both commercial and noncommercial).
Paragraph (c), Activities covered, clarifies the scope of
the license that is granted to the Government. At paragraph (c)(1), the
term ``access'' is added to the well-established list of activities
that are covered by the standard license grant for noncommercial
technical data and computer software, in recognition of the emerging
practice of providing the Government with remote (e.g., Internet-based)
access to technical data or computer software that is maintained by the
contractor, as an alternative to traditional delivery methods (e.g.,
delivery on static electronic media such as CD-ROM or DVD). Paragraph
(c)(2) recognizes and clarifies that commercial licenses involve a wide
variety of licensed activities, which may not cover all of the
activities covered by the grant of license for noncommercial technical
data or computer software.
Paragraph (d) clarifies the types of intellectual property
covered by the license grant.
Proposed 227.7104-2, Rights in technical data and computer software
of third parties (including subcontractors), is based on the
consolidation of current 227.7103-9 and 227.7103-15 for noncommercial
technical data; and 227.7203-9 and 227.7203-15 for noncommercial
computer software.
Proposed 227.7104-3, Rights in noncommercial technical data and
noncommercial computer software, is a consolidation of current
227.7103-5 for noncommercial technical data, and 227.7203-5 for
noncommercial computer software.
The corresponding clause at 252.227-7013 is a consolidation of the
current 252.227-7013, which covers only noncommercial technical data,
and 252.227-7014, which covers noncommercial computer software and
computer software documentation. The new 252.227-7013 clause is a
complete replacement for the current 252.227-7013 clause and 252.227-
7014, with several key improvements:
In addition to the revised definitions discussed in section A.7.b.
of this notice, the proposed 252.227-7013 clause clarifies limitations
on the Government's right to release or disclose technical data or
computer software in which it has limited rights, restricted rights, or
Government-purpose rights. In all cases, such release or disclosure is
permitted only under certain conditions (e.g., the recipient of the
technical data or computer software is subject to a prohibition on
further disclosure of the materials). In the current 252.227-7013 and
252.227-7014 clauses, these limitations are set forth primarily in the
definitions of limited rights and restricted rights (with one
additional limitation specified within the license grant at paragraph
(b) of the clause), but for Government-purpose rights, these
restrictions are set forth entirely within the license grant (see
current 252.227-7013(b)(2)(iii) and 252.227-7014(b)(2)(iii)). This
discrepancy is remedied by listing all such restrictions on the
Government's rights within the definition of the license rights; this
reformatting also streamlines the grant of license rights at paragraph
(b) of the proposed clause.
A nearly identical paragraph regarding limitations on negotiated
special licenses was relocated from the current DFARS clause language
granting limited rights (see current 252.227-7013(b)(3)(iii)), and
restricted rights (see current 252.227-7014(b)(3)(ii)), and integrated
in a streamlined format within the grant of negotiated license rights
(see proposed 252.227-7013(b)(5)).
At proposed paragraph (f) of the clause, the substance of the
requirements governing post-award identification and assertion of
restrictions (paragraph (e) of the current 252.227-7013 and 252.227-
7014 clauses) was relocated to a new stand-alone clause 252.227-7018,
which serves as the post-award complement to the pre-award
identification and assertion clause 252.227-7017.
At paragraph (g)(2), the proposed clause establishes a new
unlimited rights marking that is optional whenever unlimited rights are
applicable, and is required when the unlimited rights apply and the
contractor also uses the copyright legend permitted by 17 U.S.C. 401 or
402 (the copyright notice). This new unlimited rights legend will help
resolve any ambiguities regarding the Government's rights in materials
that are marked with a copyright notice ``only.'' The copyright notice,
standing alone, does not qualify as a restrictive marking on
noncommercial technical data or computer software, but could serve as
restrictive marking on commercial technical data or computer software
(e.g., where it is usually accompanied by additional language such as
``All rights reserved'' and thus may indicate the ``standard''
commercial license rights or other license more restrictive than
unrestricted rights). This new unrestricted rights marking, required
only for noncommercial technical data or computer software that is both
subject to unrestricted rights and which is also marked with a
copyright notice, would be distinguishable from other commercial
technical data or
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computer software with confusingly similar copyright notices.
The clause 252.227-7032, Rights in Technical Data and Computer
Software (Foreign), previously prescribed in 227.7103 for optional use
in lieu of 252.227-7013 in contracts with foreign contractors, has been
eliminated. It is an unnecessary clause that was not frequently used.
Furthermore, it predates 10 U.S.C. 2320 and is inconsistent with that
statute.
(ii) License rights under the Small Business Innovation Research
(SBIR) Program.
Proposed section 227.7104-4 is the revised and updated version of
the current 227.7104 and 227.7204. The associated clause at 252.227-
7014, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research (SBIR) Program, is based on the
current 252.227-7018 clause and is revised to include several key
statutory and policy updates. The SBIR Program Reauthorization Act of
2000, Public Law 106-554, amended section 9 of the Act (codified at 15
U.S.C. 638(j)(3)(A)) to require that the Small Business
Administration(SBA) modify the SBIR policy directives to provide that
SBIR data rights apply to Phase III SBIR awards, as well as Phase I and
II awards. The SBA issued its policy directive on September 24, 2002,
and is currently in the process of revising and updating that policy
directive, including the treatment of intellectual property rights,
which will also be published for public comment under a separate
rulemaking action. Thus, the Department of Defense is working with the
SBA to harmonize the DFARS sections on SBIR data rights and the SBIR
Policy Directive. SBA has advised that it intends to clarify and revise
the SBIR Policy Directive regarding these issues soon.
Definitions. A definition of ``SBIR data'' was added to
the proposed clause. This new definition is based on the definition of
``SBIR Technical Data'' in section 3(bb) of the SBIR Policy Directive,
i.e., all data generated during the performance of an SBIR award. The
definition of ``SBIR data rights'' was revised and simplified to
provide the Government with limited rights in SBIR technical data, and
restricted rights in SBIR computer software, as the most
straightforward mechanism to achieve the objective of allowing the SBIR
contractor to assert proprietary data restrictions during the SBIR data
protection period. The term ``computer software'' was added to the
definition because SBIR data rights also apply to both technical data
and computer software generated under an SBIR award.
SBIR data rights protection period. Normally, SBIR data
rights end upon the date five years after acceptance of the last
deliverable. However, any SBIR data that are appropriately referenced
and protected in a subsequent SBIR award during the five-year period of
this contract remain protected through the protection period of that
subsequent SBIR award. This serves to implement the requirement of the
Policy Directive that SBIR data rights may be extended throughout
multiple future awards if the SBIR data is appropriately referenced and
protected in subsequent SBIR awards. In addition, with this new
procedure, it may be impossible for the contractor, under any
particular award, to know the expiration date of the SBIR data
generated under that award. For this reason the proposed clause
eliminates any reference to a date-certain expiration of the SBIR data
rights period. The SBIR clause continues to provide the Government with
unlimited rights upon expiration of the SBIR data protection period.
However, the SBA has advised that although its current SBIR Policy
Directive provides that after the protection period expires the
Government may disclose SBIR data, and may use and authorize others to
use SBIR data on behalf of the Government, this does not authorize the
Government or third parties to use the data for commercial purposes
without the consent of the awardee. SBA has advised that it intends to
clarify and revise the SBIR Policy Directive regarding these issues
soon. Public comments regarding the merits of the DFARS approach (i.e.,
unlimited rights after the expiration of the protection period) or the
SBA's interpretation of its current policy directive are specifically
requested.
Identification and assertion of SBIR data rights
restrictions. To facilitate the identification and assertion of
restrictions on all SBIR data being delivered to the Government,
including the extension of the SBIR data protection period through
subsequent SBIR awards, the revised clause 252.227-7017 and new clause
252.227-7018, have been expanded in scope to cover all deliverable SBIR
data.
Prohibition against requiring negotiated licenses as a
condition of award. Paragraph (b)(6)(i) of the proposed 252.227-7014
clause implements the requirements of section (b)(4) of the Policy
Directive by prohibiting the contracting officer from negotiating for
special license rights as an element of any SBIR Phase I, Phase II, or
Phase III award. However, after award, the parties may voluntarily
negotiate special license rights, or even the assignment of rights, by
mutual agreement.
(iii) License rights for commercial technical data and commercial
computer software.
Proposed 227.7104-5 is the consolidation of current 227.7102-2 for
commercial technical data, and current 227.7202-3 and -4 for commercial
computer software. The associated clause 252.227-7015 is based on the
current 252.227-7015 (which covers only commercial technical data),
adapted to include the policies governing rights in commercial computer
software from current 227.7202-2 and -3, and to include several other
key revisions:
The inclusion of clause language allocating rights in
commercial computer software and computer software documentation is a
noteworthy change. The current 227.7202 provides no clause for
commercial computer software, instead specifying that the Government
receives the rights specified in the standard commercial license
agreement that is ``customarily provided to the public unless such
licenses are inconsistent with federal procurement law or do not
otherwise meet the agencies needs.''
The proposed rule preserves this policy at 252.227-
7015(b)(1), and strengthens and clarifies it by expressly incorporating
this requirement into the contract clause.
In addition, the proposed language resolves a long-
standing issue regarding potential inconsistency between the commercial
license and Federal procurement law. The proposed 252.227-7015(b)(1)
clarifies that the inconsistent language is considered stricken from
the license, and the remainder of the license remains in effect--
effectively incorporating a ``severability'' provision equivalent to
those contained in most commercial license agreements.
The clause also encourages the parties to promptly enter
into negotiations to resolve any issues raised by striking the
inconsistent provisions. Of course, the proposed 252.227-7015(b)(4)
also preserves the parties' ability to negotiate specialized license
provisions by mutual agreement.
The proposed clause is revised to remove a specialized
definition of ``commercial item'' that excluded commercial computer
software from this statutorily defined term. The statutory definition
of commercial item contains no such exclusion, leaving no authority for
this regulatory limitation.
[[Page 59416]]
Commercial computer software that otherwise meets the definition of
commercial item must be treated as a commercial item; which clarifies
that commercial computer software documentation is merely a specialized
subtype of commercial technical data, which remains subject to
statutory mandates of 10 U.S.C. 2320.
The proposed clause establishes a more consistent policy
regarding DoD receiving the same license rights that are customarily
provided to the public as long as the license rights are consistent
with procurement law. This was already the clear statement of policy as
applied to commercial computer software at 227.7202, and is generally
consistent with the overall themes and policies governing acquisition
of commercial items at FAR part 12. However, the regulatory and clause
coverage for technical data pertaining to commercial items contained
inconsistent guidance: most of the coverage appears to implement the
general policy governing commercial acquisitions (e.g., only the
customary commercial deliverables are required except when DoD has
special needs), but then rather than granting DoD the standard
commercial license rights, the clause specifies a DoD-unique license
that provides only the minimum rights in technical data that are
required by the statute, 10 U.S.C. 2320. There is no clear rationale
for requiring DoD to accept lesser rights than an ordinary consumer
would receive in a standard, arms-length, commercial transaction for
the same technology. The Government should take the standard commercial
terms and conditions except when Government-unique requirements
(including Federal procurement law) require specialized treatment. The
standard terms and conditions should be tailored only as necessary to
meet the Government's needs.
DoD's minimum license rights were corrected to conform to
the statutory minimum rights. More specifically, in addition to the
license rights specified in the current clause, 10 U.S.C. 2320 also
requires that the DoD have the right to disclose certain technical data
to foreign governments for evaluation or information, and that both
this type of release, and a release for emergency repair or overhaul of
the commercial item, are permitted only when the recipient of the data
is subject to a prohibition on further release of the data, and the
contractor (i.e., owner of the data) is notified of the release. These
statutory requirements are added to the minimum rights required for
commercial technical data.
The proposed clause language now clarifies the requirement
that commercial technical data and computer software to be delivered
with less than unlimited rights must be marked with an appropriate
restrictive legend (proposed 252.227-7015(d)). This requirement is
contained expressly in the current 252.227-7015(d) in the form of a
release of liability for any Government use or disclosure of technical
data that is not restrictively marked. This revision clarifies the rule
for commercial technical data, and expressly establishes such a
requirement for commercial computer software. Although the current
DFARS is silent regarding any mandatory restrictive legends or notices
for commercial computer software, best commercial practices always
require restrictive markings or notices--and this is a keystone
requirement in both copyright and trade secret law. The proposed clause
allows any restrictive legend or notice that accurately characterizes
the restrictions on the Government's use and is consistent with best
commercial practices.
(iv) Prescriptions for primary rights allocation clauses.
The proposed 227.7104-8 combines and clarifies all of the current
DFARS language prescribing the primary rights-allocation clauses. In
addition, 227.7104-8(d) reinforces the application of the doctrine of
segregability to the use of clauses when multiple types of technical
data and/or computer software are involved in a single contract.
f. 227.7105, Contractor assertion of restrictions on technical data
and computer software--early identification and marking requirements.
Associated provision and clauses at--
252.227-7016, Rights in Bid or Proposal Information;
252.227-7017, Pre-Award Identification and Assertion of
License Restrictions--Technical Data and Computer Software; and
252.227-7018, Post-Award Identification and Assertion of
License Restrictions--Technical Data and Computer Software.
Proposed section 227.7105 consolidates coverage from current DFARS
227.7103-3 and 227.7103-10 for noncommercial technical data, and
227.7202-3 and 227.7202-10 for noncommercial computer software. The
associated clauses 252.227-7017 (pre-award) and the new clause at
252.227-7018 (post-award) consolidate the current DFARS clause
requirements of 252.227-7017, pre-award assertions for technical data
and computer software; 252.227-7013(e), post-award assertions for
technical data; 252.227-7014(e), post-award assertions for computer
software; and 252.227-7028, identification of technical data and
computer software previously delivered to the Government.
The proposed clauses create a comprehensive and consistent scheme
to enable the contractor to identify and assert restrictions on
technical data and computer software. This improved two-clause
combination overcomes the shortcomings in the current DFARS by ensuring
that these procedures govern all technical data and computer software
under the contract (i.e., now including all deliverable SBIR data,
commercial technical data, and commercial computer software), and
clarifying the instructions for identifying these restrictions--which
resulted in widespread confusion and noncompliance with the listing
requirement.
Another change to the original 252.227-7017 clause is the removal
of the mandatory chart format for reporting the Government's
restrictions on use, release, or disclosure of data. This requirement
was restrictive and needlessly burdensome for the contractor. Instead,
the contractor may now present the required information to the
contracting officer in any understandable format, so long as the
required information is presented and understandable. Thus, the
proposed revisions to the clause and provision aid the contractor by
lessening the burden in preparing these documents. Contractors, under
this proposed regime, will no longer have to create an entirely
different identification system just for Government customers. Rather,
the contractor will be able to submit its materials to the Government
in the same manner that it does for its commercial customers.
The original 252.227-7017 clause requirements regarding negotiated,
commercial, or non-standard licenses place a large burden upon the
contractor to (1) identify the requirements of these licenses and (2)
describe the terms of these licenses to the satisfaction of the
contracting officer. Therefore, in an effort to alleviate a portion of
this burden, the contractor is now required to submit copies of the
licenses, etc., with its assertion of restrictions.
A further change benefiting both the contractor and the Government
is the integration of the requirements of the current 252.227-7028
clause with the requirements of the 252.227-7017 clause, which avoids
the unnecessary duplication of information when the contract will
involve the delivery of technical data or computer software with
restrictions (required to be identified under current 252.227-7017, and
252.227-7013(e) or 252.227-
[[Page 59417]]
7014(e)) that have also been previously delivered to the Government
(identified again under the 252.227-7028 clause). However, now that the
consolidated 252.227-7017 and 252.227-7018 clauses apply also to
commercial technical data and computer software, these commercial
technical data and computer software are exempted from the requirement
to identify previous deliveries to the Government when such technical
data or computer software was and is offered with the standard
commercial license rights, eliminating the need for 252.227-7028,
Technical Data or Computer Software Previously Delivered to the
Government.
Additionally, pre-and post-award restriction identifications have
been separated into two distinct clauses. In order to streamline this
process, the 252.227-7018 clause tracks the language of the 252.227-
7017 clause very closely. Thus, both clauses are easy to understand and
apply, as they are quite similar in nature.
g. 227.7106, Conformity, acceptance, warranty, and validation of
asserted restrictions on technical data and computer software.
And associated clauses at--
252.227-7030, Technical Data and Computer Software--
Withholding of Payment; and
252.227-7037, Validation of Restrictive Markings in
Technical Data and Computer Software.
Proposed subsection 227.7106 is the consolidation of coverage from
the following current DFARS sections: 227.7103-11, -12, -13, and -14
for noncommercial technical data; and 227.7203-11, -12, -13, and -14
for noncommercial computer software. The associated clause 252.227-
7037, Validation of Restrictive Markings on Technical Data and Computer
Software, combines the current clauses at 252.227-7037 (applicable to
all technical data), and 252.227-7019 (noncommercial computer
software).
The two current DFARS clauses: DFARS 252.227-7037 Validation of
Restrictive Markings on Technical Data (which governs both commercial
and noncommercial technical data and is based on 10 U.S.C. 2321) and
DFARS 252.227-7019, Validation of Asserted Restrictions-Computer
Software (which governs noncommercial computer software and is not
based directly on the technical data statute) have been combined into
proposed DFARS 252.227-7037 Validation of Restrictive Markings on
Technical Data and Computer Software, hereinafter referred to as the
``proposed clause''. In addition, coverage for the validation of
asserted restrictions on commercial computer software has been added to
the proposed clause.
i. Definitions.
The definition of ``Contractor'' from the current 252.227-7019
computer software clause was retained in the proposed clause. This
definition was not present in the current 252.227-7037 technical data
clause.
ii. Challenge for commercial computer software.
The proposed clause has added a challenge procedure for
``commercial computer software.'' The current 252-227-7037 technical
data clause provided for challenge of technical data relating to a
commercial item, component, or process. This ``commercial technical
data'' challenge procedure was extended to cover commercial computer
software in the proposed clause, thereby harmonizing the challenge
procedures for both commercial computer software and commercial
technical data.
iii. Commercial presumption.
The presumption in contracts for commercial items, components, or
processes that the asserted use and release restrictions are justified
on the basis that the commercial items, components, or processes were
developed at private expense remains in the proposed clause.
Notwithstanding this presumption, the proposed clause allows the
Government to challenge the asserted use and release restrictions on
commercial technical data and commercial computer software. However,
the Government can only use information the Government provides as a
basis for challenging these asserted use and release restrictions. In
addition, the Government may request information from the contractor on
these asserted use and release restrictions, but the contractor is not
required to provide such information. See (d)(1) of the proposed
clause. Moreover, as provided in section (e)(2) of the proposed clause,
the contractor's failure to provide a timely response or to provide
sufficient information to such a request will not constitute reasonable
grounds for questioning the validity of the asserted restrictions.
In addition, the record keeping requirements in paragraph (c) of
the proposed clause are not required for ``contracts for commercial
items, components, or processes (including ``commercial computer
software.''
iv. Criteria for Challenge.
The two criteria for a challenge provided in the current 252.227-
7037 clause (which governs technical data only) have been extended in
the proposed clause to cover computer software. In the current 252.227-
7019 clause only the ``reasonable grounds'' criteria was provided. In
the proposed clause the contracting officer may challenge the marking
on both technical data and computer software if reasonable grounds
exist to question the validity of the marking, and continued adherence
to the marking would make impracticable subsequent competitive
acquisition of the computer software, item, component, or process.
Note 10 U.S.C. 2321 (d)(1)(A) and (B) require both grounds for
technical data. Accordingly, in order to harmonize the criteria for
technical data and computer software, the two criteria were extended to
cover computer software.
v. Urgent and compelling circumstances.
The proposed clause allows an agency head, at any time after a
contracting officer's final decision, to declare that urgent and
compelling circumstances exist. This allows the agency to use or
release the data ``as necessary to address the urgent and compelling
circumstances.'' However, the recipient of this data will be required
to sign a non-disclosure agreement at DFARS 227.7103-7 or be performing
work under a contract containing the clause at DFARS 252.227-7025,
Government-Furnished Information Marked with Restrictive Legends. The
urgent and compelling circumstances procedure which currently exists in
the current 252.227-7019 clause but not in the current 252.227-7037
clause has been extended to cover technical data in the combined
clause, thereby harmonizing the procedures for both technical data and
computer software.
The proposed clause allows the agency to use or release the data
``as necessary to address the urgent and compelling circumstances''.
This language replaces language in the current 252.227-7019 clause
providing specific rights for specific rights category data. The new
language provides more flexibility for the agency and is less confusing
than the current language.
vi. Written response considered a claim within the meaning of the
Contract Disputes Act.
The proposed clause provides, that for both technical data and
computer software, a contractor's (includes subcontractors and
suppliers at any tier) written response to a contracting officer's
challenge ``shall be considered a claim within the meaning of the
Contract Disputes Act of 1978 (41 U.S.C. 601, et seq.), and shall be
certified--regardless of dollar amount.'' This provision is contained
in the current 252.227-7037 clause as mandated by 10 U.S.C. 2321(h).
Note that the statute
[[Page 59418]]
does not prohibit application of this requirement for computer
software. Sections (f)(3) through(6) of the current 252.227-7019 clause
provide an analogous requirement which was subject to the rigors of a
formal rulemaking process. Accordingly, in order to harmonize the
requirements for both technical data and computer software in the
proposed clause, the language of the current 252.227-7037 clause was
extended to cover computer software in the proposed clause.
vii. Flowdown.
The proposed clause provides for flowdown of this clause for both
technical data and computer software, commercial as well as
noncommercial, to subcontractors, at any tier, or suppliers. This
flowdown is mandated by 10 U.S.C. 2321. Note as part of this case that
the prohibition against 10 U.S.C. 2321 applying to subcontracts for
commercial items will be eliminated.
viii. Privity of contract.
This proposed clause tracks the privity of contract language
contained in the new proposed DFARS 252.227-7013 Rights in Technical
Data and Computer Software--noncommercial items. Note privity of
contract with subcontractors, at any tier, and suppliers is mandated by
10 U.S.C. 2321 for technical data. Further, both the current 252.227-
7019 and the current 252.227-7037 clause contain a privity of contract
provision for subcontractors, at any tier, and suppliers that were
subject to the rigors of a formal rulemaking process.
ix. The related regulatory material.
Current 227.7103-12 and 227.7103-13 have been revised and relocated
at 227.7106-4 and -5, respectively. Revisions were made to streamline
existing language and to eliminate material that was duplicative of
material in the proposed clause at DFARS 252.227-7037, Validation of
Restrictive Markings on Technical Data and Computer Software.
h. 227.7107, Safeguarding, use, and handling of technical data and
computer software.
Associated clause at 252.227-7025, Government-Furnished Information
Marked with Restrictive Legends.
Proposed 227.7107 is the consolidation of coverage from the
following current DFARS sections: 227.7103-7, and -16, and 227.7202-16
regarding the safeguarding and release of restricted information
outside the Government; and 227.7108 and 227.7208 regarding contractor
data repositories.
Perhaps most importantly, this new coverage harmonizes and
clarifies the operation of the nondisclosure agreement provided at
current 227.7103-7 (see proposed 227.7107-2), and its clause equivalent
at 252.227-7025. In both cases, the scope of the nondisclosure
agreement/clause was expanded to cover commercial technical data or
computer software marked with a restrictive legend. This expansion
helps clarify the Government's obligation to protect such restricted
and valuable commercial information by applying a consistent protection
and release scheme to all forms of technical data and computer
software, regardless of whether the material is commercial or
noncommercial. In view of the wide variety of potential restrictive
legends, and associated license restrictions, for commercial technical
data and computer software, these new requirements are modeled after
the procedures used to handle negotiated license agreements for
noncommercial technical data and computer software: The recipient is
expressly limited to those uses authorized by the applicable license,
which the Government is required to identify in an attachment prior to
release of the information.
8. Subpart 227.72, Rights in Works.
The treatment of special works, existing works, and architect-
engineer services was moved out of current 227.71 to entirely replace
the material of subpart 227.72. This was done because special works,
existing works, and architect-engineer services, are not technical
data, which is exclusively covered by 10 U.S.C. 2320 and subpart
227.71, or computer software, also covered by subpart 227.71. To avoid
confusion, technical data, computer software documentation, and
computer software, are excluded from the coverage of special works and
existing works. No exclusion was deemed necessary for architect-
engineer services because plans for buildings and other structures, and
the structures themselves, are not normally considered to be technical
data, i.e., recorded information of a scientific or technical nature.
The material was reorganized. Instead of differentiating between
special works and existing works, the proposed regulations are
differentiated based on whether the contract is for the acquisition
of--
Works and the assignments of rights in works (section
227.7202 and associated clause at 252.227-7020, Rights in Works--
Ownership;, or
Works and license rights in works (section 227.7203 and
associated clause at 227.7021, Rights in Works--License.
These clauses replace the current clauses 252.227-7020 and 252.227-
7021.
There is also a new section on safeguarding, use, and handling of
works, which parallels the section 227.7107 on safeguarding, use, and
handling of technical data and computer software. The associated new
clause is 252.227-70YY, Government-Furnished Works Marked with
Restrictive Legends.
The existing section 227.7107 on Contracts for architect-engineer
services has been expanded to cover rights in architectural designs,
shop drawings, or similar information related to architect-engineer
services and construction. The associated clauses are--
252.227-7022, Government Rights (Unlimited);
252.227-7024, Notice and Approval of Restricted Designs;
252.227-7033, Rights in Shop Drawings.
Of particular note is the inclusion of architectural works in the
list of examples of works in the clauses at 252.227-7020 and 252.227-
7021. The acquisition of a unique architectural design of a building, a
monument, or construction of similar nature, which for artistic,
aesthetic or other special reasons the Government does not want
duplicated, is actually a special work which should be included within
the coverage of special works and not under the general coverage of
contract for architect-engineer services (now at 227.7205).
The clause at 252.227-7023, Drawings and other Data to Become the
Property of the Government has been deleted, as the requirement is now
covered in the proposed revised Rights in Works--Ownership clause at
252.227-7020.
9. Request for Public Comment on Additional Issues.
In addition to comments on any of the subject matter covered by
these proposed revisions, DoD seeks comments on the following
additional issues related to this subject matter:
A new clause containing all definitions relevant to DFARS
Part 227 (or subpart 227.71 and/or 227.72).
Paragraph (a) of the primary rights-allocation clauses (252.227-
7013, -7014, and -7015) largely duplicate each other, and many of the
other clauses repeat these definitions. Combining all definitions into
a single clause would significantly shorten these clauses collectively
by avoiding duplication. However, the drawback is that one requires the
definitions clause in order to interpret the rights-clauses, and many
people will not even realize that so many of the terms used in the
rights-clause are actually defined, and thus would not be motivated to
seek out the additional clause.
A single prescriptive section covering all clauses in
subpart 227.71.
[[Page 59419]]
In the proposed rule, the clause prescriptions are distributed
throughout the sections. It may be preferred to combine all of the
relevant clause prescriptions into a single, all-encompassing
prescriptive section (e.g., a new 227.7108).
Renumbering the clauses.
The proposed clauses have retained their current numbering, except
for 252.227-7018 (now 252.227-7014) (and in cases where clauses have
been merged, the new combined clause uses the number applicable to the
current clause that applies to technical data). However, the clauses
could be renumbered to coincide with the general order in which the
clauses are discussed and prescribed in the regulation, without
necessitating any significant changes for the most well-known and
critical clauses. For example:
----------------------------------------------------------------------------------------------------------------
Current/proposed 252.227- Prescribed at: Renumbered
----------------------------------------------------------------------------------------------------------------
7013........................................ 227.7104-8(a) 7013
7018/7014................................... 227.7104-8(b) 7014
7015........................................ 227.7104-8(c) 7015
7016........................................ 227.7105-3(a) 7016
7017........................................ 227.7105-3(b) 7017
(new)....................................... 227.7105-3(c) 7018
7030........................................ 227.7106-5(a) 7023
7037........................................ 227.7106-5(b) 7024
7025........................................ 227.7107-4 7025
7020........................................ 227.7202-3 7030
7021........................................ 227.7203-3 7031
7022........................................ 227.7205-2(a) 7032
7033........................................ 227.7205-2(b) 7033
7024........................................ 227.7205-2(c) 7034
7038........................................ 227.303(2) 7038
7039........................................ 227.303(1) 7039
----------------------------------------------------------------------------------------------------------------
Would the benefits of a more logical sequence outweigh the
administrative difficulty of the number changes?
Addition of a ``Scope'' section to the primary rights-
allocation clauses.
Would this assist with the application of the doctrine of
segregability? When more than one rights-allocation clause is used in
the contract, issues may arise as to which clause applies to which
deliverable-technical data or computer software.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993. This is not a
major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
updates and clarifies DFARS text, but makes no significant change to
DoD policy regarding patents, data, and copyrights. However, DoD has
performed an initial regulatory flexibility analysis, which is
summarized as follows:
The objective of the rule is to clarify and update the coverage on
patents, data, and copyrights in DFARS part 227.
Statutes pertaining to administrative claims of infringement in DoD
include the following: The Foreign Assistance Act of 1961, 22 U.S.C.
2356 (formerly the Mutual Security Acts of 1951 and 1954); the
Invention Secrecy Act, 35 U.S.C. 181-188; 10 U.S.C. 2386; 28 U.S.C.
1498; and 35 U.S.C. 286.
Subpart 227.71 implements the following laws and Executive order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305(d)(4).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 7317.
(6) 17 U.S.C. 1301, et seq.
(7) Executive Order 12591 (paragraph 1(b)(7)).
The SBIR Program Reauthorization Act of 2000 (Pub. L. 106-554)
amended section 9 of the Act (codified at 15 U.S.C. 638(j)(3)(A)) to
require that the Small Business Administration (SBA) modify the SBIR
policy directives to provide that SBIR data rights apply to phase III
SBIR awards, as well as phase I and II awards. The SBA issued its
policy directive on September 24, 2002, and is currently in the process
of revising and updating that policy directive, including the treatment
of intellectual property rights, which will also be published for
public comment under a separate rulemaking action. Thus, DoD is working
with SBA to harmonize the DFARS sections on SBIR data rights and the
SBIR policy directive. SBA has advised that it intends to clarify and
revise the SBIR policy directive regarding these issues soon.
This rule applies to small businesses awarded contracts--
That anticipate the delivery of technical data or computer
software;
When technical data or computer software will be generated
during performance of contracts under the SBIR program;
When the Government has a specific need to control the
distribution of works first produced, created, or generated in the
performance of a contract; or
For architect-engineer services and for construction
involving architect-engineer services.
DoD does not have an overall estimate of the number of small
entities receiving awards in these categories, but there are
approximately 3,000 awards per year in the SBIR program in recent
years.
The clause at 252.227-7038, Patent Rights--Ownership by the
Contractor (Large Business) is only used if the contractor is other
than a small business or nonprofit organization.
It is not known how many of the respondents are small business
concerns. Certainly the respondents to the requirements of DFARS
252.227-7018, Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovation Research (SBIR) Program are small
businesses, but the burdens for that clause have not been separately
calculated from the burdens for the other clauses addressing technical
data rights.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known alternatives that would reduce the burden on
small business and still meet the objectives of the rule.
DoD invites comments from small businesses and other interested
parties. DoD also will consider comments from small entities concerning
the affected DFARS subparts in accordance with 5 U.S.C. 610. Such
comments should be submitted separately and should cite DFARS Case
2010-D001.
[[Page 59420]]
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply. The information collection
requirements associated with part 227 that require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq., have
been extended under OMB Control Number 0704-0369 (55,000 respondents,
approximately 1.5 million burden hours). This proposed rule does not
change DoD's estimates of the associated information collection
requirement. The proposed rule deletes 17 clauses that did not have
information collection requirements. Two clauses that had information
collection requirements have been incorporated into other clauses
(252.225-7014 into 252.225-7013, 252.227-7019 into 252.227-7037),
without affecting the associated information collection requirements.
The SBIR clause at 252.227-7018 has been renumbered as 252.227-7014.
List of Subjects at 48 CFR Parts 212, 227, 246, and 252.
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR parts 212, 227, 246, and
252 as follows:
1. The authority citation for 48 CFR parts 212, 227, 246, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
2. Section 212.211 is revised to read as follows:
212.211 Technical data.
The DoD policies and procedures for acquiring technical data
related to commercial items are at subpart 227.71.
3. Section 212.212 is revised to read as follows:
212.212 Computer software.
The DoD policies and procedures for acquiring commercial computer
software are at subpart 227.71.
4. Section 212.271 is added to subpart 212.2 to read as follows:
212.271 Works.
The DoD policies and procedures for acquiring rights in works,
including architectural designs, shop drawings, or other information
resulting from or related to architect-engineer services and
construction, are at subpart 227.72.
Section 212.504 [Amended]
5. Section 212.504 is amended by removing and reserving paragraphs
(a)(iii) and (a)(iv).
6. Revise part 227 to read as follows:
PART 227--PATENTS, DATA, AND COPYRIGHTS
Subpart 227.3--Patent Rights Under Government Contracts
227.303 Contract clauses.
227.304 Procedures.
227.304-1 General.
Subpart 227.4--Rights in Data and Copyrights
227.400 Scope of subpart.
Subpart 227.6--Foreign License and Technical Assistance Agreements
227.670 Foreign intellectual property agreements and licenses.
Sec. 227.670-1 General.
Sec. 227.670-2 Policy.
Sec. 227.670-3 Procedures.
Sec. 227.670-4 Export control of intellectual property.
Subpart 227.70--Infringement Claims, Licenses, and Assignments
Sec. 227.7000 Scope.
Sec. 227.7001 Statutes pertaining to administrative claims of
infringement.
Sec. 227.7002 Requirements for filing an administrative claim for
patent or copyright infringement or a secrecy order claim.
Sec. 227.7003 Investigation and administrative disposition of
claims.
Sec. 227.7004 Notification and disclosure to claimants.
Sec. 227.7005 Settlement of indemnified claims.
Sec. 227.7006 Settlement agreements.
Subpart 227.71--Rights in Technical Data and Computer Software
Sec. 227.7100 Scope of subpart.
Sec. 227.7101 Definitions.
Sec. 227.7102 Policy.
Sec. 227.7103 Acquisition of technical data and computer software.
Sec. 227.7103-1 Acquisition planning.
Sec. 227.7103-2 Preparation of solicitation.
Sec. 227.7103-3 Identification and assessment of Government minimum
needs.
Sec. 227.7103-4 Deferred delivery and deferred ordering of
technical data or computer software.
Sec. 227.7103-5 Contract clauses.
Sec. 227.7104 License rights in technical data and computer
software.
Sec. 227.7104-1 General.
Sec. 227.7104-2 Rights in technical data and computer software of
third parties (including subcontractors).
Sec. 227.7104-3 Rights in noncommercial technical data and
noncommercial computer software.
Sec. 227.7104-4 Rights in technical data and computer software--
Small Business Innovation Research (SBIR) Program.
Sec. 227.7104-5 Rights in commercial technical data and computer
software.
Sec. 227.7104-6 Rights in derivative technical data and computer
software.
Sec. 227.7104-7 Retention of rights by offerors, contractors, or
third parties.
Sec. 227.7104-8 Contract clauses.
Sec. 227.7105 Contractor assertion of restrictions on technical
data and computer software--early identification and marking
requirements.
Sec. 227.7105-1 Early identification.
Sec. 227.7105-2 Marking requirements.
Sec. 227.7105-3 Solicitation provision and contract clauses.
Sec. 227.7106 Conformity, acceptance, warranty, and validation of
asserted restrictions on technical data and computer software.
Sec. 227.7106-1 Conformity and acceptance.
Sec. 227.7106-2 Warranty
Sec. 227.7106-3 Unjustified and nonconforming markings.
Sec. 227.7106-4 Government right to review, verify, challenge and
validate asserted restrictions.
Sec. 227.7106-5 Contract clauses.
Sec. 227.7107 Safeguarding, use, and handling of technical data and
computer software.
Sec. 227.7107-1 Government procedures for protecting technical data
and computer software.
Sec. 227.7107-2 Use and non-disclosure agreement.
2Sec. 27.7107-3 Contractor technical data or computer software
repositories.
Sec. 227.7107-4 Contract clause.
Subpart 227.72--Rights in Works
Sec. 227.7200 Scope of subpart.
Sec. 227.7201 Definitions.
Sec. 227.7202 Contracts for the acquisition of works and the
assignment of rights in works.
Sec. 227.7202-1 Policy.
Sec. 227.7202-2 Procedures.
Sec. 227.7202-3 Contract clause.
Sec. 227.7203 Contracts for the acquisition of works and license
rights in works.
Sec. 227.7203-1 Policy.
Sec. 227.7203-2 Procedures.
Sec. 227.7203-3 Contract clause.
Sec. 227.7204 Safeguarding, use, and handling of works.
Sec. 227.7204-1 Procedures.
Sec. 227.7204-2 Contract clause.
Sec. 227.7205 Rights in architectural designs, shop drawings, or
similar information related to architect-engineer services and
construction.
Sec. 227.7205-1 Scope.
Sec. 227.7205-2 Contract clauses.
Subpart 227.3--Patent Rights Under Government Contracts
227.303 Contract clauses.
(1) Use the clause at 252.227-7039, Patents--Reporting of Subject
Inventions, in solicitations and contracts containing the clause at FAR
52.227-11, Patent Rights--Ownership by the Contractor.
(2)(i) Use the clause at 252.227-7038, Patent Rights--Ownership by
the Contractor (Large Business), instead of the clause at FAR 52.227-
11, in
[[Page 59421]]
solicitations and contracts for experimental, developmental, or
research work if--
(A) The contractor is other than a small business concern or
nonprofit organization; and
(B) No alternative patent rights clause is used in accordance with
FAR 27.303(c) or (e).
(ii) Use the clause with its Alternate I if--
(A) The acquisition of patent rights for the benefit of a foreign
government is required under a treaty or executive agreement;
(B) The agency head determines at the time of award that it would
be in the national interest to acquire the right to sublicense foreign
governments or international organizations pursuant to any existing or
future treaty or agreement; or
(C) Other rights are necessary to effect a treaty or agreement, in
which case Alternate I may be appropriately modified.
(iii) Use the clause with its Alternate II in long-term contracts
if necessary to effect treaty or agreements to be entered into.
Sec. 227.304 Procedures.
Sec. 227.304-1 General.
Interim and final invention reports and notification of all
subcontracts for experimental, developmental, or research work (FAR
27.304-1(e)(2)(ii)) may be submitted on DD Form 882, Report of
Inventions and Subcontracts. For additional guidance and information on
invention reporting, see PGI 227.304-1.
Subpart 227.4--Rights in Data and Copyrights
Sec. 227.400 Scope of subpart.
DoD activities shall follow the requirements in subparts 227.71 and
227.72 instead of FAR subpart 27.4.
Subpart 227.6--Foreign License and Technical Assistance Agreements
Sec. 227.670 Foreign intellectual property agreements and licenses.
Sec. 227.670-1 General.
In furtherance of the national defense, the Government may develop
foreign additional sources of defense services or products that may be
accomplished through the use of intellectual property rights or
technical assistance agreements. Under such agreements, a domestic
concern (``domestic source''), agrees to furnish to a foreign concern
or government (``foreign source''), intellectual property rights and
other foreign technical assistance needed to enable the foreign source
to produce particular supplies or perform particular services.
Sec. 227.670-2 Policy.
(a) It is DoD policy not to pay for rights for intellectual
property to which the Government holds a royalty-free license or
otherwise has title to use or disclose.
(b) This policy shall be applied by agencies in negotiating
consideration for foreign license technical assistance agreements or
supply contracts with foreign sources.
(c) The consideration for foreign intellectual property agreements
may be in the form of a lump sum payment, payments for each item
manufactured by the foreign source, an agreement to exchange
intellectual property rights on improvements made to the article or
service, capital stock transactions, or any combination of these. The
domestic source's bases for computing such consideration may include
actual costs; charges for the use of the intellectual property rights
and the domestic source's ``price'' for setting up a foreign source.
The compensation to be paid for in such agreements is referred to as a
royalty or license fee.
Sec. 227.670-3 Procedures.
(a) Negotiation of intellectual property agreements. When
negotiating or reviewing the terms of an intellectual property exchange
or license agreement between the Government and a domestic source,
between the Government and a foreign source, or between a domestic
source and a foreign source--
(i) Intellectual property agreements between the Government and a
domestic source.
(A) Intellectual property agreements between the Government and a
domestic source (a domestic contractor) shall--
(1) Specify the intellectual property rights to be supplied to the
foreign source (a foreign concern or government);
(2) Provide, in connection with any separate agreement between the
domestic source and the foreign source, a statement referring to the
contract between the Government and the domestic source; and
(3) Conform to the requirements of export control laws and
regulations. See PGI 227.670-4.
(B) In negotiating the price paid to the domestic source, the
actual cost of the intellectual property rights, the extent of the
Government's contribution to the development of the supplies and
services, and the Government's intellectual property rights shall be
considered.
(ii) Intellectual property agreements between the Government and a
foreign source. In negotiating contract prices with a foreign source,
the agency concerned shall obtain from the foreign source a detailed
statement (see FAR 27.204-1(a)(2)) of royalties, license fees, and
other compensation paid to a domestic source (or any of its
subcontractors) for intellectual property rights and other technical
assistance provided to the foreign source, including identifications
and descriptions. Examples of charges for intellectual property that
are not acceptable include any charge or royalty to which the
Government already has title or license or has paid for in an agreement
with a domestic source.
(iii) Reviewing intellectual property agreements between a domestic
source and a foreign source.
(A) In reviewing foreign licenses or technical assistance
agreements between domestic and foreign sources, the agency concerned
shall indicate whether the intellectual property exchange or agreement
meets the requirements of 22 CFR sections 124.07-124.10 (of the
International Traffic in Arms Regulations).
(B) When the Government anticipates that it will purchase foreign
supplies or services involved in the agreement from the foreign source,
the following guidance applies:
(1) The agency concerned shall evaluate the amount of the reduction
in charges necessary to account for the Government's intellectual
property rights, and shall determine whether it is fair and reasonable
in the circumstances, before indicating its approval.
(2) If the agreement does not specify any reduction in charges,
however, or otherwise fails to give recognition to the Government's
intellectual property rights, the agency concerned shall evaluate the
agreement and condition its approval upon amendment of the agreement to
reflect a reduction, in accordance with 22 CFR 124.10.
(C) When the Government does not anticipate that it will purchase
the foreign supplies or services involved in the agreement from the
foreign source, the following guidance applies:
(1) If the agreement provides for charges to the foreign source for
data or patent rights, it may suffice to fulfill the requirements of 22
CFR 124.10 insofar as the Department of Defense is concerned if--
(i) The domestic source and the Government negotiate the
appropriate reduction in the domestic source's
[[Page 59422]]
charges to the foreign source considering any rights the Government may
have in the intellectual property.
(ii) The foreign source shall pass any reduction in purchase price
on to the Government.
(2) Even though no charge is to be made to the foreign source for
intellectual property rights, the agency concerned shall--
(i) Evaluate the acceptability of the provision before indicating
its approval; or
(ii) Explicitly condition its approval on the right to evaluate the
acceptability of the provision at a later time.
(D) Any agreement between the domestic and foreign sources shall
reflect the arrangements contemplated by any technical assistance
agreement between the Government and the domestic source.
(E) Every agreement shall provide that any license rights
transferred under the agreement are subject to existing rights of the
Government.
(F) In connection with every agreement referred to in paragraph (b)
of this section, a request shall be made to the domestic source--
(1) To identify the intellectual property rights to be provided to
the foreign source by the domestic source or any of its subcontractors,
and
(2) To identify any intellectual property rights of which the
domestic source may be aware.
(G) The agency concerned shall notify the domestic source that the
approval of any agreement is not an approval of the charges, and is not
an approval of any business arrangements in the agreement. However, the
agency may approve any charges or business arrangements if it is in the
Government's best interests. In any event, a disclaimer should be made
to charges or business terms not affecting any purchase made by or for
the Government.
(b) For assistance with patent rights and royalty payments in the
United States European Command, see PGI 227.670-3(b).
Sec. 227.670-4 Export control of intellectual property.
The laws and regulations governing the export of intellectual
property are numerous. These laws and regulations are referenced at PGI
227.670-4.
Subpart 227.70--Infringement Claims, Licenses, and Assignments
Sec. 227.7000 Scope.
(a) This subpart prescribes--
(1) The policy regarding patent and copyright infringement and
secrecy order claims; and
(2) Provides instructions on how the public must submit these
claims.
(b) This subpart 227.70 does not apply to licenses or assignments
acquired by the Department of Defense. Moreover, this subpart does not
apply to other forms of intellectual property infringement other than
patent, copyright, and secrecy order claims.
Sec. 227.7001 Statutes pertaining to administrative claims of
infringement.
Statutes pertaining to administrative claims of infringement in the
Department of Defense include the following: The Foreign Assistance Act
of 1961, 22 U.S.C. 2356 (formerly the Mutual Security Acts of 1951 and
1954); the Invention Secrecy Act, 35 U.S.C. 181-188; 10 U.S.C. 2386; 28
U.S.C. 1498; and 35 U.S.C. 286.
Sec. 227.7002 Requirements for filing an administrative claim for
patent or copyright infringement or a secrecy order claim.
(a) A patent or copyright infringement claim or a secrecy order
claim, asserted against the United States under any of the applicable
statutes cited in 227.7001, must be in writing and actually
communicated to and received by an agency, organization, office, or
field establishment within the Department of Defense. Claims shall
include the following:
(1) An allegation of infringement;
(2) The requested remedy;
(3) An identification of the patent(s), or copyrighted work(s)
alleged to be infringed;
(4) An identification of the alleged infringing use, including a
statement of the acts allegedly committed by the Government, and the
time period during which the alleged acts occurred; or
(5) As an alternative to paragraph (a)(4) of this section, a
declaration that the claimant has made a bona fide attempt to determine
the alleged infringing use, but was unable to do so, giving reasons,
and stating a reasonable basis for its belief that its patent(s) or
copyrighted work(s) allegedly are being infringed;
(6) Any additional information that will expedite the resolution of
the claim; and
(7) A declaration that the claimant is the owner or exclusive
licensee of the patent(s) or copyrighted work(s) alleged to be
infringed, or otherwise has standing to sue.
(b) If the correspondence alleging infringement does not meet the
requirements set forth in this paragraph, the sender shall be advised
in writing--
(1) That the claim for infringement has not been satisfactorily
presented, and
(2) What is necessary to establish a claim.
(c) In addition to the information listed in paragraph (a) of this
section, the following material and information is generally necessary
in the course of processing an infringement claim. Claimants are
encouraged to furnish this information at the time of filing a claim to
permit the most expeditious processing and settlement of the claim.
(1) For patent infringement claims--
(i) A copy of the allegedly infringed patent(s) and a designation
of all claims alleged to be infringed.
(ii) Identification of all alleged infringements known to the
claimant that involve the patented item or process, including the
identity of the vendor or contractor and the Government procuring
activity.
(iii) A detailed identification of the alleged infringement,
particularly where the infringement relates to a component or
subcomponent of the item procured. This should include an element-by-
element comparison of a representative claim(s) with the allegedly
infringing product or process. Further, this identification should
include documentation and drawings in suitable detail to enable
verification of the infringement.
(iv) Names and addresses of all past and present licenses under the
patent(s), and copies of all license agreements and releases involving
the patent(s).
(v) A brief description of all litigation in which the patent(s)
has been or is now involved, and the present status thereof.
(vi) A list of all persons to whom notices of infringement have
been sent, including all agencies of the Government, and a statement of
the ultimate disposition of each.
(vii) A description of Government employment or military service of
the inventor(s).
(viii) A list of all Government contracts or agreements under which
the inventor, patent owner, or their agents have performed work
relating to the patents.
(ix) A copy of the U.S. Patent and Trademark Office (PTO) file
wrapper of each patent if available to claimant.
(x) A list of any corresponding foreign patent applications.
(xi) Pertinent prior art known to claimant, not contained in the
PTO file wrapper, such as prior art cited in corresponding foreign
patent prosecutions.
(2) For copyright infringement claims--
(i) A copy of the copyrighted work(s) alleged to be infringed.
[[Page 59423]]
(ii) A detailed identification of the allegedly infringing work,
including a copy, if available.
(iii) Names and addresses of all past and present licensees and
assignees under the copyrighted work, and copies of all licenses and
assignments involving the copyrighted work(s).
(iv) A brief description of all litigation in which the copyrighted
work(s) has been or is now involved, and the present status.
(v) A list of all persons and organizations to whom notices of
infringement have been sent, including all agencies of the Government,
and a statement of the ultimate disposition of each.
(vi) A description of Government employment or military service of
the author.
(vii) A list of all Government contracts under which the work was
produced.
(viii) Copies of registration records for the copyrighted works.
(Registration of the work with the U.S. copyright office is not
required to file an administrative claim).
(d) Secrecy order claims. In addition to the information listed in
paragraph (a) of this section, the following material or information is
generally necessary in the course of processing a secrecy order claim.
(1) An identification of the damages sought from imposition of the
secrecy order and/or use of the invention by the Government while the
secrecy order was pending.
(2) A copy of the secrecy order, the notice of allowability and any
PTO licenses for foreign filing or modifications of the secrecy order.
(3) An identification of the sponsor of the secrecy order.
(4) An identification of the serial number and filing date of the
patent application under secrecy order and any corresponding foreign
patent application.
(5) Documentation for any claim for damages.
(6) An indication of when and where the Government allegedly used
the invention.
(e) Claimants must submit their claims to the appropriate agency at
the addresses at PGI 227.7002(e). Any agency receiving an allegation of
infringement which meets the requirements of paragraph (a) of this
section shall--
(1) Acknowledge the receipt of the allegation; and
(2) Supply the other agencies that may have an interest with a copy
of the allegation and the acknowledgement.
(f) A communication making a proffer of a license in which no
infringement is alleged shall not be considered as a claim for
infringement.
227.7003 Investigation and administrative disposition of claims.
(a) Whenever a claim of infringement of an intellectual property
right is asserted against the Department of Defense, or its contractors
acting with the authorization and consent of the Government, all
necessary steps shall be taken to investigate, and to settle
administratively, deny, or otherwise dispose of such claim prior to
suit against the United States.
(b) Agency procedures. An investigation and administrative
determination (denial or settlement) of each claim shall be made in
accordance with instructions and procedures established by each agency,
subject to the following:
(1) The agency responsible for purchasing the alleged infringing
item or process shall have sole responsibility for the disposition of
the infringement claim when the funds of that agency alone will be
charged. However, when funds of another agency are to be charged, in
whole or in part, the agreement of such agency shall be obtained, and
each agency concerned shall execute any settlement agreement.
(2) When two or more agencies are responsible for purchasing the
alleged infringing item or process, and the funds of both agencies are
to be charged in the settlement, the agency with the predominant
financial interest in the claim shall be responsible for the
disposition of the claim, or as jointly agreed upon by the agencies
concerned. The agency responsible for negotiation shall, throughout the
negotiation, coordinate with the other agencies concerned and keep them
advised of the status of the negotiation. Each agency concerned shall
execute any settlement agreement.
(c) Disposition of trademark infringement claims. See PGI
227.7003(c) for examples of various ways a trademark infringement claim
might be disposed of.
227.7004 Notification and disclosure to claimants.
(a) Before settling any claim--
(1) Contact any other agencies that might have an interest in the
settlement of the claim; and
(2) Send the claimant a letter stating the limits of the
Government's liability, for patent or copyright infringement, and
indicate that any settlement agreement will take the general form found
at PGI 227.7006(b).
(b) If a claim is denied, the department or agency responsible for
the determination of the claim shall--
(1) Notify the claimant or authorized representative in writing;
(2) Provide a basis for denying the claim; and
(3) Draft the notification to avoid any admissions against the
Government's interest. Additionally, the notification should not waive
any evidentiary privileges that the Government may have, and it should
state that the denial is a final agency action. An example letter of
denial of an administrative claim may be found at PGI 227.7004(b)(3).
227.7005 Settlement of indemnified claims.
Settlement of claims involving payment for past infringement should
not be made without the consent of, and equitable contribution by, each
indemnifying contractor involved, unless such settlement is determined
to be in the best interests of the Government.
227.7006 Settlement agreements.
Settlement of claims for intellectual property infringement can
take many forms. Sometimes, the appropriate manner in which to settle a
claim or litigation is through use of a settlement agreement.
(a) Required FAR clauses for settlement agreements. The following
FAR clauses shall be included in any settlement agreement:
(1) FAR 52.203-5, Covenant Against Contingent Fees.
(2) FAR 52.203-3, Gratuities.
(3) FAR 52.232-23, Assignment of Claims.
(4) FAR 52.233-1, Disputes.
(b) Sample settlement agreement for patent infringement. This
patent infringement settlement agreement may be tailored as appropriate
for copyright infringement releases, settlement agreements, license
agreements, or assignments.
PATENT LICENSE AND RELEASE CONTRACT
THIS CONTRACT is effective as of the ---- day of [month, year,] between
the UNITED STATES OF AMERICA (hereinafter called the Government), and
------------ (hereinafter called the Contractor), (a corporation
organized and existing under the laws of the State of ------------), (a
partnership consisting of ------------), (an individual trading as ----
--------), of the City of ------------, in the State of ------------.
WHEREAS, the Contractor warrants that it has the right to grant the
within license and release, and the Government desires to procure the
same, and
[[Page 59424]]
WHEREAS, this contract is authorized by law, including 10 U.S.C. 2386.
NOW THEREFORE, in consideration of the grant, release and agreements
hereinafter recited, the parties have agreed as follows:
FIRST OPTION FOR ARTICLES 1 AND 2
ARTICLE l. License Grant.*
(a) The Contractor hereby grants to the Government an irrevocable,
nonexclusive, nontransferable, and paid-up license, under the following
intellectual property rights, to practice by or for the Government,
throughout the world, any and all of the inventions hereunder, in the
manufacture and use of any article or material, in the use of any
method or process, and in the disposition of any article or material in
accordance with law:
U.S. Patent No. ------ Date ------
Application Serial No. ------ Filing Date ------
(b) No rights are granted or implied by the agreement under any
other patents other than as provided above or by operation of law.
(c) Nothing contained herein shall limit any rights which the
Government may have obtained by virtue of prior contracts or by
operation of law or otherwise.
ARTICLE 2. License Term.*
ALTERNATE I
The license hereby granted shall remain in full force and effect
for the full term of the intellectual property referred to in the
``License Grant'' clause of this contract and any and all intellectual
property hereafter issued.
ALTERNATE II
The license hereby granted shall terminate on the ---- day of ----
--, ---- provided, however, that termination is without prejudice to
the completion of any Government contract entered into prior to
termination or to the subsequent use or disposition of any articles or
materials manufactured by or for the Government under this license.
SECOND OPTION FOR ARTICLES 1 AND 2
ARTICLE 1. License Grant--Running Royalty.*
(a) The Contractor hereby grants to the Government, as represented
by the Secretary of ------, an irrevocable, nonexclusive,
nontransferable license, under the following intellectual property
rights, to practice by or for [agency], throughout the world, any and
all of the inventions hereunder in the manufacture and use of any
article or material, in the use of any method or process, and in the
disposition of any article or material in accordance with law:
U.S. Patent No. ------ Date ----------
Application Serial No. ------ Filing Date ------
(b) No rights are granted or implied by the agreement under any other
patents other than as provided above or by operation of law.
(c) Nothing contained herein shall limit any rights which the
Government may have obtained by virtue of prior contracts or by
operation of law or otherwise.
(d) Computation of Royalties.
Subject to the following conditions, royalties shall accrue to the
Contractor under this agreement on all articles or materials embodying,
or manufactured by the use of, any or all inventions claimed under any
unexpired United States patent licensed herein, upon acceptance thereof
by [agency], at the rate of ---- percent of the net selling price of
such articles or materials (amount) per (name of item) * whether
manufactured by the Government or procured under a fixed-price
contract, and at the rate of (amount) per (name of item) acquired or
manufactured by a Contractor performing under a cost-reimbursement
contract. With respect to such articles or materials made by [agency],
``net selling price,'' as used in this paragraph, means the actual cost
of direct labor and materials without allowance for overhead and
supervision.
(e) Reporting and Payment of Royalties.
(1) The (procuring office) shall, on or before the sixtieth (60th)
day following the end of each yearly * period ending ------deliver to
the Contractor a written report furnishing necessary information
relative to royalties which have accrued under this contract during
stated period.
(2) Royalties which have accrued under this contract during the
yearly* period ending ------ shall be paid to the Contractor (if
appropriations therefore are available or become available) within
sixty (60) days following the receipt of a voucher from the Contractor
submitted in accordance with the report referred to above; provided,
that the Government shall not be obligated to pay, in respect of any
such yearly period, on account of the combined royalties accruing under
this contract directly and under any separate licenses granted pursuant
to the ``License to Other Government Agencies'' clause (if any) of this
contract, an amount greater than ---- dollars ($----). If such combined
royalties exceed the said maximum yearly obligation, each agency shall
pay a pro-rata share as determined by the proportion its accrued
royalties bear to the combined total of accrued royalties.
(f) License to Other Government Agencies.
The Contractor hereby agrees to grant a separate license under the
intellectual property rights referred to in the ``License Grant''
clause of this contract, on the same terms and conditions as appear in
this license contract, to any other agency of the Government at any
time on receipt of a written request for such a license; provided,
however, that each agency make payments directly to the Contractor for
royalties which accrue under the separate licenses. The Contractor
shall promptly notify the Licensee upon receipt of any request for a
license.
ARTICLE 2. License Term--Running Royalty.*
The license hereby granted shall remain in full force and effect
for the full term of each of the intellectual property referred to in
the ``License Grant'' clause of this contract and any and all
intellectual property hereafter issued unless terminated sooner, as
elsewhere herein provided.
ARTICLE 3. Release of Past Infringement.
The Contractor hereby releases each and every claim and demand
which it now has or may hereafter have against the Government for the
manufacture or use by or for the Government prior to the effective date
of this contract, of any inventions covered by (i) any patents and
patent applications identified in this contract, and (ii) any other
patents or patent applications owned or hereafter acquired by it,
insofar as and only to the extent that such other patents or patent
applications cover the manufacture, use, or disposition of (description
of subject matter).
ARTICLE 4. Non-Estoppel.
The Government reserves the right at any time to contest the
enforceability, validity, scope of, or the title to any intellectual
property herein licensed without waiving or forfeiting any right under
this contract.
ARTICLE 5. FAR Clauses.
Insert the following FAR clauses:
(a) Covenant Against Contingent Fees, FAR 52.203-5.
(b) Gratuities, FAR 52.203-3.
(c) Assignment of Claims, FAR 52.232-23.
(d) Disputes, FAR 52.233-1.
ARTICLE 6. Termination.
Notwithstanding any other provision of this contract, the
Government shall
[[Page 59425]]
have the right to terminate the license, in whole or in part, by giving
the Contractor at least thirty (30) days written notice of the
termination date; provided, however, that the obligation of the
Government to pay royalties which have accrued prior to the effective
date of termination shall not be affected.
ARTICLE 7. Payment.
The Contractor shall be paid the sum of ------ Dollars ($----) in
full compensation for the rights herein granted and agreed to be
granted.
ARTICLE 8. Readjustment of Payments.
(a) The Government shall be entitled to the benefit of more favorable
terms with respect to all royalties accruing under a contract when any
license, under substantially the same intellectual property and
authorizing substantially the same acts which are authorized under this
contract, has been or shall hereafter be granted within the United
States. The Contractor shall promptly notify the Secretary in writing
of the granting of such more favorable terms.
(b) In the event any licensed intellectual property is held invalid by
decision of a court of competent jurisdiction, the requirement to pay
royalties under this contract shall be interpreted in conformity with
the court's decision as to the scope of validity of such intellectual
property; provided, however, that in the event such decision is
modified or reversed on appeal, the requirement to pay royalties under
this contract shall be interpreted in conformity with the final
decision rendered on such appeal.
ARTICLE 9. Successors and Assignees.
This Agreement shall be binding upon the Contractor, its successors
(when the Contractor is an individual, change ``successors'' to
``heirs''; if a partnership, modify appropriately) and assignees, but
nothing contained in this Article shall authorize an assignment of any
claim against the Government other than as permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this contract.
THE UNITED STATES OF AMERICA
By---------------------------------------------------------------------
Date-------------------------------------------------------------------
(Signature and Title of Contractor Representative)---------------------
By---------------------------------------------------------------------
Date-------------------------------------------------------------------
(Signature and Title of Government Representative----------------------
Contract Number ----
* If only a release is procured, delete those articles marked with an
*.
(c) Assignment. If an assignment is procured, the following
provides sample language that may be used to assign patent rights to
the Government.
The Contractor hereby conveys to the Government, as represented by the
Secretary of --------, the entire right, title, and interest in and to
the following patents (and applications for patent), in and to the
inventions thereof, and in and to all claims and demands whatsoever for
infringement thereof heretofore accrued, the same to be held and
enjoyed by the Government through its duly appointed representatives to
the full end of the term of said patents (and to the full end of the
terms of all patents which may be granted upon said applications for
patent, or upon any division, continuation-in-part or continuation
thereof):
U.S. Patent No. ------ Date ------
Name of Inventor-------------------------------------------------------
U.S. Application Serial No. ------
Filing Date ------
Name of Inventor-------------------------------------------------------
Subpart 227.71--Rights in Technical Data and Computer Software
227.7100 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures for--
(1) The acquisition of technical data and computer software; and
(2) The rights to use, modify, reproduce, release, perform,
display, or disclose technical data and computer software.
(b) It implements requirements of the following laws and Executive
order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305(d)(4).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 7317.
(6) 17 U.S.C. 1301, et seq.
(7) Executive Order 12591 (paragraph 1(b)(7)).
(c) Does not apply to rights in works (see subpart 227.72).
227.7101 Definitions.
As used in this subpart--
(a) Unless otherwise specifically indicated, the terms offeror and
contractor include an offeror's or contractor's subcontractors or
suppliers, or potential subcontractors or suppliers, at any tier.
(b) Other terms are defined in the clauses at--
(1) 252.227-7013, Rights in Technical Data and Computer Software--
Noncommercial;
(2) 252.227-7014, Rights in Technical Data and Computer Software--
Small Business Innovation Research (SBIR) Program; and
(3) 252.227-7015, Rights in Technical Data and Computer Software--
Commercial.
227.7102 Policy.
(a) It is DoD policy to acquire only the technical data and
computer software, and the rights in that data and software, that are
necessary to satisfy agency needs. Significant elements of the
materials discussed in this section are based on 10 U.S.C. 2320 and
2321. Although these statutes apply only to technical data, they are
expanded by policy in most cases to cover computer software as well.
(b) To encourage offerors and contractors to offer or use
commercial products to satisfy military requirements, offerors and
contractors shall not be required to--
(1) Furnish technical information related to commercial items that
is not customarily provided to the public except technical data or
computer software that--
(i) Are form, fit, or function data (applies only to technical
data);
(ii) Are required for repair or maintenance of commercial items or
processes, or for the proper installation, operating, or handling of a
commercial item, either as a stand-alone unit or as a part of a
military system, when such information is not customarily provided to
commercial users or the data provided to commercial users is not
sufficient for military purposes; or
(iii) Describe the modification of a commercial item made at
Government expense to meet the requirements of a Government
solicitation; or
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release, perform, display, or disclose
commercial technical data or commercial computer software except for a
transfer of rights mutually agreed upon.
(c) Commercial technical data and commercial computer software
shall be acquired--
(1) Under the licenses customarily provided to the public unless
such licenses are inconsistent with Federal procurement law or do not
otherwise satisfy user needs; and
(2) Competitively, to the maximum extent practicable, using firm-
fixed-price contracts or firm-fixed-priced orders under available
pricing schedules.
(d) Solicitations and contracts shall--
(1) Specify the technical data and computer software to be
delivered under
[[Page 59426]]
a contract and the delivery schedules for that data and software (10
U.S.C. 2320(b)(2)).
(2) Whenever practicable, identify--
(i) The type and quantity of the technical data and computer
software (including requirements for multiple users at one site, or
multiple site licenses)
(ii) The format and media in which the data or software will be
delivered; and
(iii) The place of delivery for each deliverable item of technical
data;
(3) Establish or reference procedures for determining the
acceptability of technical data and computer software (10 U.S.C.
2320(b)(3));
(4) Establish separate contract line items, to the extent
practicable, for the technical data and computer software to be
delivered under a contract (10 U.S.C. 2320(b)(4)) (this requirement may
be satisfied by listing each deliverable item on an attachment to the
contract);
(5) Require offerors and contractors to price separately each
deliverable data or software item (10 U.S.C. 2320(b)(4));
(6) Require offerors to identify and assert, to the maximum extent
practicable, restrictions on deliverable technical data and computer
software as early as possible in the acquisition, and in all cases
require the identification and assertion prior to delivery (10 U.S.C.
2320(b)(5)).
(e) Offerors shall not be required, either as a condition of being
responsive to a solicitation or as a condition for award, to sell or
otherwise relinquish to the Government any rights in technical data or
computer software related to items, or processes developed at private
expense, except for the types of data or software for which the
Government receives unlimited rights regardless of the source of
funding (10 U.S.C. 2320(a)(2)(F)).
(f) Offerors and contractors shall not be prohibited or discouraged
from furnishing or offering to furnish items, processes, or computer
software developed at private expense solely because the Government's
rights to access, use, modify, reproduce, release, perform, display, or
disclose technical data pertaining to those items may be restricted.
(10 U.S.C. 2320(a)(2)(F)).
(g) Solicitations for major systems development contracts shall not
require offerors to submit proposals that would permit the Government
to acquire competitively items identical to items developed at private
expense unless a determination is made at a level above the contracting
officer that--
(1) The offeror will not be able to satisfy program schedule or
delivery requirements; or
(2) The offeror's proposal to meet mobilization requirements does
not satisfy mobilization needs. (10 U.S.C. 2305)
(h) For acquisitions involving major weapon systems or subsystems
of major weapon systems, the acquisition plan shall address acquisition
strategies that provide for technical data and computer software, and
the associated license rights, in accordance with 207.106(S-70).
(i) The Government's rights in a vessel design, and in any useful
article embodying a vessel design, must be consistent with the
Government's rights in technical data pertaining to the design (10
U.S.C. 7317; 17 U.S.C. 1301(a)(3)).
(j) Solicitations and contracts establish a limited form of privity
between the Government and subcontractors or suppliers regarding
technical data and computer software, and rights in that data or
software. Subcontractors and suppliers at any tier--
(1) Shall not be required to relinquish rights in technical data or
computer software to the prime contractor or a higher-tier
subcontractor; and
(2) May transact directly with the Government in matters relating
to technical data and computer software. (10 U.S.C. 2320 and 2321)
(k) DoD shall protect technical data and computer software from
unauthorized access, use, reproduction, modification, release,
performance, display, and disclosure. For additional information on the
protection of technical data and computer software from unauthorized
activities, see PGI 227.7102(i).
227.7103 Acquisition of technical data and computer software.
227.7103-1 Acquisition planning.
Requirements for technical data and computer software, and rights
in that data and software, shall be fully addressed in acquisition
planning, including through compliance with 207.106(S-70) for
acquisitions of major weapons systems or subsystems thereof.
Restrictions on the Government's rights to access, use, modify,
reproduce, perform, display, release, or disclose technical data or
computer software may have a significant impact on other elements of
the acquisition plan, such as the ability to release data or software
in connection with the competitive re-procurement of additional
quantities of the item or process, or the competitive selection of life
cycle support, maintenance, or for future upgrades or technical refresh
of the technologies. For additional information on incorporating
technical data and computer software considerations into acquisition
planning, see PGI 227.7103-1.
227.7103-2 Preparation of solicitation.
Contracting officers shall work closely with data managers,
software managers, and requirements personnel to ensure that
requirements included in solicitations and contracts for technical data
and computer software are consistent with the policies at 227.7102.
227.7103-3 Identification and assessment of Government minimum needs.
(a) Data managers, software managers, and other requirements
personnel are responsible for identifying the Government's minimum
needs for technical data and computer software, and for rights in that
data or software. Follow the procedures at PGI 227.7103-3(a) to
identify and assess the Government's minimum needs.
(b) When reviewing offers received in response to a solicitation or
other request for technical data or computer software, data managers
must balance the original assessment of the Government's data and
software needs with the associated prices contained in the offer.
Information provided by offerors in response to the solicitation
provision may be used in the source selection process to evaluate the
impact on evaluation factors that may be created by restrictions on the
Government's ability to use or disclose technical data, consistent with
the policies of this subpart.
227.7103-4 Deferred delivery and deferred ordering of technical data
or computer software.
(a) Deferred delivery. The contracting officer shall--
(1) Specify in the contract which technical data or computer
software is subject to deferred delivery; and
(2) Notify the contractor sufficiently in advance of the desired
delivery date in order to permit timely delivery of the technical data
or computer software.
(b) Deferred ordering. When computer software or technical data are
to be procured through deferred ordering, the contracting officer
shall--
(1) Negotiate the delivery dates with the contractor; and
(2) Compensate the contractor only for--
(i) Converting the data into the prescribed form;
(ii) Reproduction costs; and
(iii) Delivery costs.
[[Page 59427]]
227.7103-5 Contract clauses.
(a) Use the clause at 252.227-7026, Deferred Delivery of Technical
Data or Computer Software, when it is in the Government's interests to
defer the delivery of technical data or computer software.
(b) Use the clause at 252.227-7027, Deferred Ordering of Technical
Data or Computer Software, when a firm requirement for a particular
data item(s) has not been established prior to contract award but there
is a potential need for the data.
227.7104 License rights in technical data and computer software.
227.7104-1 General.
(a) Grant of license. The Government obtains rights in technical
data and computer software under an irrevocable license granted or
obtained for the Government by the contractor. The contractor (or
licensor) retains all rights in the data not granted to the Government.
(b) Doctrine of segregability. Determinations of the rights in
technical data and computer software may be made at the lowest
practicable segregable portion of the data or software. See PGI
227.7104-1(b) for examples of making this determination on the
segregable portion.
(c) Activities covered.
(1) Noncommercial licenses. The license granted for noncommercial
technical data and noncommercial computer software under the clauses
covers the following activities:
(i) Access;
(ii) Use;
(iii) Reproduction;
(iv) Modification;
(v) Release;
(vi) Performance;
(vii) Display; and
(viii) Disclosure.
(2) Commercial licenses. Due to the wide variety of terms and
conditions used in commercial license agreements, some of the licenses
customarily offered to the public might not expressly address all of
the individual activities listed in paragraph (c)(1) of this
subsection. Contracting officers must ensure that the license rights
covering commercial technical data or commercial computer software
satisfy the Governments minimum needs--including the need to engage in
any or all of the activities listed in paragraph (c)(1) of this
subsection.
(d) Scope of the license.
(1) Except as specified in paragraph (c)(2) of this subsection, the
Government's license rights cover all forms of intellectual property
interest that, absent the license, would restrict the ability of the
Government to engage in any of the activities listed in paragraph (c)
of this subsection. The most common examples are copyright and trade
secret.
(2) The license does not cover--
(i) Rights in inventions (see FAR subpart 27.3 and DFARS subpart
227.3); and
(ii) Rights in trademarks, service marks, collective marks,
certification marks, or any other mark.
(e) Additional information. For additional information on the
nature of the Government's license, see PGI 227.7104-1(e).
227.7104-2 Rights in technical data and computer software of third
parties (including subcontractors).
(a) Third parties.
(1) Under the standard data rights clauses (e.g., 252.227-7013, -
7014, -7015), a contractor must grant or obtain for the Government the
same license rights in a third party's technical data and computer
software delivered under the contract that the contractor must grant
the Government under the clauses.
(2) When non-standard license rights in technical data or computer
software are negotiated, also negotiate the extent of a third party's
intellectual property license commensurate with those non-standard
license rights negotiations. An intellectual property license with a
third party must provide the Government with at least the minimum
rights required by the applicable rights-allocation clause.
(3) Only grant approval to use a third party's intellectual
property (excluding patents) in which the Government will not receive a
license when the Government's requirements cannot be satisfied without
the third party material or when the use of the third party material
will result in cost savings to the Government which outweigh the lack
of a license.
(b) Subcontractors.
(1) Subcontractors or suppliers at any tier cannot be required to
relinquish any rights in technical data to a contractor, a higher tier
subcontractor, or to the Government, as a condition for award of any
contract, subcontract, purchase order, or similar instrument except for
the rights obtained by the Government under the standard rights clause
contained in the contractor's contract with the Government.
(2) The Government may transact directly with a subcontractor on
matters relating to the validation of its asserted restrictions on the
Government's rights to use or disclose technical data. The clause at
252.227-7037 obtains a contractor's agreement that the direct
transaction of validation or challenge matters with subcontractors at
any tier does not establish or imply privity of contract for matters
not covered by the clause. When a subcontractor or supplier exercises
its right to transact validation matters directly with the Government,
contracting officers shall deal directly with such persons, as provided
at 227.7106-5.
227.7104-3 Rights in noncommercial technical data and noncommercial
computer software.
(a) The Government's license rights in noncommercial technical data
and noncommercial computer software are governed by the clause at
252.227-7013, Rights in Technical Data and Computer Software--
Noncommercial.
(b) For noncommercial technical data and noncommercial computer
software, the scope of the license is generally determined by the
source of funds used to develop the item, process, or software.
(1) Technical data pertaining to items or processes. Contractors or
licensors may, with some exceptions (see paragraphs (b)(1)(iii) through
(xi) of the clause at 252.227-7013), restrict the Government's rights
to use, modify, release, reproduce, perform, display, or disclose
technical data pertaining to items or processes developed exclusively
at private expense (limited rights). They may not restrict the
Government's rights to technical data pertaining to items or processes
developed exclusively at Government expense (unlimited rights) without
the Government's approval. When an item or process is developed with
mixed funding, the Government may use, modify, release, reproduce,
perform, display, or disclose the data pertaining to such items or
processes within the Government without restriction, but may release or
disclose the data outside the Government only for government purposes
(government purpose rights).
(2) Technical data that do not pertain to items or processes.
Technical data may be created during the performance of a contract for
a conceptual design or similar effort that does not require the
development, manufacture, construction, or production of items or
processes. The Government generally obtains unlimited rights in such
data when the data were created exclusively with Government funds,
government purpose rights when the data were created with mixed
funding, and limited rights when the data were created exclusively at
private expense.
(c) In unusual situations, the standard rights may not satisfy the
Government's
[[Page 59428]]
needs or the Government may be willing to accept lesser rights in data
in return for other consideration. In those cases, a special license
may be negotiated. However, the licensor is not obligated to provide
the Government greater rights and the contracting officer is not
required to accept lesser rights than the rights provided in the
standard grant of license. The situations under which a particular
grant of license applies are enumerated in paragraphs (c)(1) through
(c)(4) of this subsection.
(1) Unlimited rights. The Government obtains unlimited rights in
technical data or computer software when the technical data or computer
software, or the items or processes to which the technical data
pertain, are developed exclusively with Government funds, or that
qualify under certain criteria for which the source of development
funding is irrelevant. See paragraph (b)(1) of the clause at 252.227-
7013.
(2) Government purpose rights.
(i) The Government obtains Government purpose rights in
noncommercial technical data and noncommercial computer software when
the technical data or computer software, or the items or processes to
which the technical data pertain, are developed with mixed funding--
except when the Government is entitled to unlimited rights regardless
of the source of development funding, as provided in paragraph (c)(1)
of this subsection.
(ii) The period during which Government purpose rights are
effective is negotiable. The clause at 252.227-7013 provides a nominal
five-year period, but either party may request a different period.
Changes to the Government purpose rights period may be made by mutual
agreement at any time prior to delivery of the technical data or
computer software without consideration from either party. Longer
periods should be negotiated when a five-year period does not provide
sufficient time to apply the data for commercial purposes or when
necessary to recognize subcontractors' interests in the data.
(iii) During the Government purpose rights period, the Government
may not use, or authorize other persons to use, technical data marked
with Government purpose rights legends for commercial purposes. The
Government shall not release or disclose data in which it has
Government purpose rights to any person, or authorize others to do so,
unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227.7107-2; or
(B) The intended recipient is a Government contractor receiving
access to the data for performance of a Government contract that
contains the clause at 252.227-7025, Government-Furnished Information
Marked with Restrictive Legends.
(iv) See 227.7107-1 for Government procedures for protecting data
and computer software.
(v) Upon expiration of the Government purpose rights period, the
Government has unlimited rights in the data including the right to
authorize others to use the data for commercial purposes.
(3) Limited rights. (i) The Government obtains limited rights in
noncommercial technical data, when the technical data, or the items or
processes to which the technical data pertain, is developed exclusively
at private expense--except when the Government is entitled to unlimited
rights as provided in paragraphs (b)(1)(iii) through (xi) of the clause
at 252.227-7013.
(ii) Data in which the Government has limited rights may not be
used, released, or disclosed outside the Government without the
permission of the contractor asserting the restriction except for a
use, release, or disclosure that is--
(A) Necessary for emergency repair and overhaul; or
(B) To a foreign government, other than detailed manufacturing or
process data, when use, release, or disclosure is in the interest of
the United States and is required for evaluational or informational
purposes.
(iii) The person asserting limited rights must be notified of the
Government's intent to release, disclose, or authorize others to use
such data prior to release or disclosure of the data except
notification of an intended release, disclosure, or use for emergency
repair or overhaul, which shall be made as soon as practicable.
(iv) When the person asserting limited rights permits the
Government to release, disclose, or have others use the data subject to
restrictions on further use, release, or disclosure, or for a release
under paragraph (c)(3)(ii)(A) or (B) of this subsection, the intended
recipient must complete the use and non-disclosure agreement at
227.7107-2 prior to release or disclosure of the limited rights data.
(4) Restricted rights. The Government obtains restricted rights in
noncommercial computer software required to be delivered or otherwise
provided to the Government under a contract that was developed
exclusively at private expense.
(5) Negotiated license rights.
(i) General.
(A) The standard license rights granted to the Government under
paragraphs (c)(1) through (4) of this subsection (including the period
during which the Government shall have Government purpose rights) may
be modified only by mutual written agreement.
(B) Negotiate specific licenses when the parties agree to modify
the standard license rights granted to the Government or when the
Government wants to obtain rights in data in which it does not have
rights. If either party desires to negotiate specialized license rights
in technical data or computer software, the other party agrees to
promptly enter into good faith negotiations to determine whether there
are acceptable terms for transferring such rights.
(C) In no event may the negotiated license provide the Government
lesser rights than limited rights in technical data, or restricted
rights in computer software.
(D) The negotiated license rights must stipulate what rights the
Government has to release or disclose the technical data or computer
software to other persons or to authorize others to use the technical
data or computer software.
(E) Identify all negotiated rights in a license agreement made part
of the contract.
(ii) Technical data.
(A) When negotiating to obtain, relinquish, or increase the
Government's rights in technical data, consider the acquisition
strategy for the item or process, including logistics support and other
factors which may have relevance for a particular procurement.
(B) Generally, if technical data was acquired with Government
purpose or limited rights, the contracting officer should negotiate for
additional rights only if there is a need to disclose the data outside
the Government or if the additional rights are required for competitive
reprocurement and the anticipated savings expected to be obtained
through competition are estimated to exceed the acquisition cost of the
additional rights. Prior to negotiating for additional rights in
limited rights data, consider alternatives such as--
(1) Using performance specifications and form, fit, and function
data to acquire or develop functionally equivalent items or processes;
(2) Obtaining a contractor's contractual commitment to qualify
additional sources and maintain adequate competition among the sources;
or
(3) Reverse engineering, or providing items from Government
inventories to contractors who request the items to
[[Page 59429]]
facilitate the development of equivalent items through reverse
engineering.
(6) Pre-existing license rights. When the Government has previously
obtained license rights in the technical data or computer software, the
Government retains those same rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights have expired.
227.7104-4 Rights in technical data and computer software--Small
Business Innovation Research (SBIR) Program.
(a) Pursuant to 15 U.S.C. 638(j)(1)(B)(v), (2)(A), (3)(A), and the
Small Business Innovation Research Program Policy Directive, small
business concerns in the performance of SBIR Phase I, II, and III
awards may create technical data and computer software categorized as
``SBIR data.'' SBIR Phase III includes activities that derive from,
extend, or logically conclude efforts performed under prior SBIR
awards, but are funded by sources other than the SBIR program. SBIR
contractors retain proprietary rights to SBIR data for a limited
protection period (5 years after acceptance of the last deliverable),
but grant specific license rights to the Government (SBIR data rights).
This protection period is extended for any SBIR data that is
appropriately referenced and protected in any subsequent SBIR award
made prior to the expiration of the protection period. SBIR data rights
attach to all SBIR data even if the data would otherwise qualify for
unlimited rights or government purpose rights based on development
exclusively or partially with Government funds (see 10 U.S.C. 2320).
For additional information on the SBIR program, see PGI 227.7104-4.
(b) The contracting officer shall not negotiate for special license
rights as an element of any SBIR Phase I, Phase II, or Phase III award.
However, after award, the parties may negotiate special license rights
by mutual agreement.
227.7104-5 Rights in commercial technical data and commercial computer
software.
(a) The clause at 252.227-7015, Rights in Technical Data and
Computer Software--Commercial, provides the Government specific license
rights in commercial technical data and commercial computer software.
The Government takes the same license rights as are customarily offered
to the public, to the extent that the commercial license is consistent
with Federal procurement law and meets DoD minimum needs (see 252.227-
7015(b)(1)).
(1) Notwithstanding any terms or conditions to the contrary in the
commercial license agreement, the Government shall have--
(i) Unlimited rights in certain types of technical data listed at
252.227-7015(b)(2); and
(ii) At least certain minimum rights (similar to limited rights in
noncommercial technical data) in all technical data listed at 252.227-
7015(b)(3).
(2) If the commercial license customarily offered to the public is
inconsistent with Federal procurement law or does not otherwise meet
DoD needs, the contracting officer will negotiate with the contractor
as provided for at 252.227-7015(b)(1) and (b)(4).
(b) If additional rights are needed, the contracting officer must
negotiate with the contractor to obtain such rights. The specific
additional rights granted to the Government shall be enumerated in a
license agreement made part of the contract.
(c) See PGI 227.7104-5(c) for guidance regarding determining
whether a license is consistent with Federal procurement law and meets
the agency's needs, including open source software as a special type of
commercial computer software, (see PGI 227.7104-5(c)).
227.7104-6 Rights in derivative technical data and computer software.
The clauses at 252.227-7013 and 252.227-7014 protect the
Government's rights in technical data and computer software, or
portions thereof, that the contractor subsequently uses to prepare
derivative data or software or subsequently embeds or includes in other
data or software. The Government retains the rights it obtained under
the development contract in the unmodified portions of the derivative
data or software.
227.7104-7 Retention of rights by offerors, contractors, or third
parties.
The offeror, contractor, or other third party owner or licensor
retains all intellectual property rights (including ownership) in
technical data and computer software except those rights granted to the
Government.
227.7104-8 Contract clauses.
(a)(1) Use the clause at 252.227-7013, Rights in Technical Data and
Computer Software-Noncommercial, in solicitations and contracts when
the successful offeror(s) will be required to deliver noncommercial
technical data or noncommercial computer software to the Government,
except when contracting under the Small Business Innovation Research
Program (see paragraph (b) of this subsection).
(2) Also use the clause at 252.227-7013 in all solicitations and
contracts when the contractor will be required to deliver commercial
technical data or commercial computer software (in addition to the
clause at 252.227-7015), if the Government will pay any portion of the
costs of development or modification of a commercial item, commercial
technical data, or commercial computer software.
(3) Use the clause at 252.227-7013 with its Alternate I in research
contracts when the contracting officer determines, in consultation with
counsel, that public dissemination by the contractor would be--
(i) In the interest of the Government; and
(ii) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(4) Use the clause at 252.227-7013 with its Alternate II in
contracts for the development or delivery of a vessel design or any
useful article embodying a vessel design.
(b)(1) Use the clause at 252.227-7014, Rights in Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program,
when SBIR data will be generated during performance of Phase I, II, or
III awards or activities under the SBIR program (227.7104-4).
(2) Use the clause at 252.227-7014 with its Alternate I in research
contracts when the contracting officer determines that public
dissemination of SBIR data by the contractor would be--
(i) In the interest of the Government; and
(ii) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(c)(1) Use the clause at 252.227-7015, Technical Data and Computer
Software--Commercial, in all solicitations and contracts when the
contractor will be required to deliver commercial technical data or
commercial computer software.
(2) Use the clause at 252.227-7015 with its Alternate I in
contracts for the development or delivery of a vessel design or any
useful article embodying a vessel design.
(d) Doctrine of segregability and applicability to subcontractors.
To the maximum extent practicable, when the prescriptions at paragraphs
(a) through (c) of this subsection require the use of more than one
clause, the contract will specify which deliverables are governed by
each clause. In addition, the clauses
[[Page 59430]]
prescribed at paragraphs (a) through (c) of this subsection require the
contractor to use the appropriate clause(s) in subcontracts, and to
notify the Government if a clause is used that is not already included
in the prime contract. For additional guidance on using the doctrine of
segregability to manage the application of multiple rights-
determinative clauses under a single contract, see PGI 227.7104-8(d).
227.7105 Contractor assertion of restrictions on technical data and
computer software--early identification and marking requirements.
227.7105-1 Early identification.
(a) The solicitation provision at 252.227-7017, Pre-Award
Identification and Assertion of License Restrictions--Technical Data
and Computer Software, requires offerors to identify to the contracting
officer, prior to contract award, all technical data and computer
software that the offeror asserts should be provided to the Government
with restrictions on use, modification, reproduction, release, or
disclosure. The notification and identification must be submitted as an
attachment to the offer.
(1) The contracting officer shall specify that pre-award
identification is intended to require the identification of situations
in which an offeror or contractor anticipates using a commercial or
nondevelopmental technology (or any technology for which restrictions
are likely to be asserted), but the specific subcontractor, supplier,
or the specific asserted restrictions, have not yet been identified.
For example, to ensure that the latest and best technology is used for
a particular application, the offeror may propose delaying the
selection of the particular technology or source for that technology,
until shortly before the technology is required to be integrated into
the systems or deliverables--often referred to as ``just in time''
technology insertion. In this case, the offeror's pre-award list shall
identify the technical data or computer software that it anticipates
delivering with restrictions, and provide as much information as
possible about the nature of the anticipated restrictions, the basis
for the asserted restrictions, and the potential source(s) of the
technology (e.g., commercial technologies, or noncommercial
technologies developed exclusively or partially at private expense).
(2) The pre-identification list of assertions must be consistent
with the offeror's proposal regarding the use of commercial or
nondevelopmental technologies and the need to develop new technologies,
as reflected in the remainder of the technical and cost portions of the
proposal. Even such a rudimentary identification will place the
contracting officer on notice that rights may be restricted in the
technical data or computer software, thereby permitting the Government
to more accurately evaluate the offer.
(3) After contract award, the contractor is required to provide the
more specific information (e.g., the asserted restrictions, basis for
assertion, and entity asserting restrictions) as soon as the
information is available, pursuant to 252.227-7018, Post-Award
Identification and Assertion of License Restrictions--Technical Data
and Computer Software.
(b) If an offeror fails to submit the attachment or fails to
complete the attachment in accordance with the requirements of the
solicitation provision, such failure shall constitute a minor
informality. The contracting officer shall provide an offeror an
opportunity to remedy a minor informality in accordance with the
procedures at FAR 14.405 or 15.307. An offeror's failure to correct the
informality within the time prescribed by the contracting officer shall
render the offer ineligible for award.
(c) The procedures for correcting minor informalities shall not be
used to obtain information regarding asserted restrictions or an
offeror's suggested asserted rights category. Questions regarding the
justification for an asserted restriction or asserted rights category
must be pursued in accordance with the procedures at 227.7106-3.
(d) The restrictions asserted by a successful offeror shall be
attached to its contract unless, in accordance with the procedures at
227.7103-13, the parties have agreed that an asserted restriction is
not justified.
(e) Subsequent to contract award, the clause at 252.227-7018, Post-
Award Identification and Assertion of License Restrictions--Technical
Data and Computer Software, permits the contractor to make additional
assertions under certain conditions, in accordance with the procedures
and in the format prescribed by that clause.
(f) Neither the pre- or post-award assertions made by the
contractor, or the fact that certain assertions are identified in the
attachment to the contract, determine the respective rights of the
parties. As provided at 227.7106-4, the Government has the right to
review, verify, challenge, and validate restrictive markings.
(g) Information provided by offerors in response to the
solicitation provision may be used in the source selection process to
evaluate the impact on evaluation factors that may be created by
restrictions on the Government's ability to use or disclose technical
data, consistent with the policies of this subpart.
227.7105-2 Marking requirements.
(a) Contractor marking requirements. The clause at 252.227-7013,
Rights in Technical Data and Computer Software--Noncommercial--
(1) Requires a contractor that desires to restrict the Government's
rights in technical data or computer software to place restrictive
markings on the data or software, provides instructions for the
placement of the restrictive markings, and authorizes the use of
certain restrictive markings; and
(2) Requires a contractor to deliver, furnish, or otherwise provide
to the Government any technical data or computer software in which the
Government has previously obtained rights with the Government's pre-
existing rights in that data or software unless the parties have agreed
otherwise or restrictions on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose the data have
expired. When restrictions are still applicable, the contractor is
permitted to mark the data or software with the appropriate restrictive
legend for which the data or software qualifies.
(b) Unmarked technical data or computer software.
(1) Technical data or computer software delivered or otherwise
provided under a contract without restrictive markings shall be
presumed to have been delivered with unlimited rights and may be
released or disclosed without restriction. To the extent practicable,
if a contractor has requested permission (see paragraph (b)(2) of this
subsection) to correct an inadvertent omission of markings, do not
release or disclose the technical data or computer software pending
evaluation of the request.
(2) A contractor may request permission to have appropriate legends
placed on unmarked technical data or computer software at its expense.
The request must be received by the contracting officer within six
months following the furnishing or delivery of such data or software,
or any extension of that time approved by the contracting officer. The
person making the request must--
(i) Identify the technical data or computer software that should
have been marked;
(ii) Demonstrate that the omission of the marking was inadvertent
and that the proposed marking is justified and conforms with the
requirements for the
[[Page 59431]]
marking of technical data and computer software contained in the
relevant clause(s); and
(iii) Acknowledge, in writing, that the Government has no liability
with respect to any disclosure, reproduction, or use of the technical
data or computer software made prior to the addition of the marking or
resulting from the omission of the marking.
(3) Contracting officers should grant permission to mark only if
the technical data or computer software were not distributed outside
the Government or were distributed outside the Government with
restrictions on further use or disclosure.
227.7105-3 Solicitation provision and contract clauses.
(a) Use the clause 252.227-7016, Rights in Bid or Proposal
Information, in all solicitations and contracts that anticipate the
delivery of technical data or computer software.
(b) Use the provision 252.227-7017, Pre-Award Identification and
Assertion of License Restrictions--Technical Data and Computer
Software, in all solicitations that anticipate the delivery of
technical data or computer software.
(c) Use the clause 252.227-7018, Post-Award Identification and
Assertion of License Restrictions--Technical Data and Computer
Software, in all solicitations and contracts that anticipate the
delivery of technical data or computer software.
227.7106 Conformity, acceptance, warranty, and validation of asserted
restrictions on technical data and computer software.
227.7106-1 Conformity and acceptance.
(a) Solicitations and contracts requiring the delivery of technical
data or computer software shall specify the requirements the data or
software must satisfy to be acceptable. Contracting officers, or their
authorized representatives, are responsible for determining whether
technical data and computer software tendered for acceptance conform to
the contractual requirements.
(b) The clause at 252.227-7030, Technical Data and Computer
Software--Withholding of Payment, provides for withholding up to 10
percent of the contract price pending correction or replacement of the
nonconforming technical data or negotiation of an equitable reduction
in contract price. The amount subject to withholding may be expressed
as a fixed dollar amount or as a percentage of the contract price. In
either case, the amount shall be determined giving consideration to the
relative value and importance of the data. For examples on the amount
subject to withholding, see PGI 227.7106-1(b).
(c) Do not accept technical data or computer software that do not
conform to the contractual requirements in all respects. Except for
nonconforming restrictive markings (see paragraph (d) of this
subsection), correction or replacement of nonconforming data or
software, or an equitable reduction in contract price when correction
or replacement of the nonconforming data or software is not practicable
or is not in the Government's interests, shall be accomplished in
accordance with--
(1) The provisions of a contract clause providing for inspection
and acceptance of deliverables and remedies for nonconforming
deliverables; or
(2) The procedures at FAR 46.407(c) through (g), if the contract
does not contain an inspection clause providing remedies for
nonconforming deliverables.
(d) Follow the procedures at 227.7106-3 if nonconforming markings
are the sole reason technical data or computer software fails to
conform to contractual requirements. The clause at 252.227-7030, as
prescribed at 227.7106-5, may be used to withhold an amount from
payment, consistent with the terms of the clause, pending correction of
the nonconforming markings.
227.7106-2 Warranty.
(a) Noncommercial technical data. The intended use of the technical
data and the cost, if any, to obtain the warranty should be considered
before deciding to obtain a data warranty (see FAR 46.703). The fact
that a particular item or process is or is not warranted shall not be a
consideration in determining whether or not to obtain a warranty for
the technical data that pertain to the item or process.
(1) A data warranty should be considered if the Government intends
to repair or maintain an item and defective repair or maintenance data
would impair the Government's effective use of the item or result in
increased costs to the Government.
(2) As prescribed in 246.710, use the clause at 252.246-7001,
Warranty of Data, and its alternates, or a substantially similar clause
when the Government needs a specific warranty of technical data.
(b) Noncommercial computer software.
(1) Weapon systems. Computer software that is a component of a
weapon system or major subsystem shall be addressed as part of the
weapon system warranty. Follow the procedures at 246.710.
(2) Non-weapon systems. Approval of the chief of the contracting
office must be obtained to use a computer software warranty other than
a weapon system warranty. Consider the factors at FAR 46.703 in
deciding whether to obtain a computer software warranty. When approval
for a warranty has been obtained, the clause at 252.246-7001, Warranty
of Data, and its alternates, may be appropriately modified for use with
computer software or a procurement-specific clause may be developed.
(c) Commercial technical data and commercial computer software.
Follow FAR part 12 and DFARS part 212 regarding warranties for
commercial technical data and commercial computer software.
227.7106-3 Unjustified and nonconforming markings.
(a) Unjustified markings. (1) An unjustified marking is an
authorized marking that does not accurately depict restrictions
applicable to the Government's use, modification, reproduction,
release, performance, display, or disclosure of the marked technical
data or computer software. For an example, see PGI 227-7106-3(b).
(2) The correction of unjustified markings on technical data or
computer software is governed by 252.227-7013(i)(1). However, at any
time during performance of a contract and notwithstanding existence of
a challenge, the contracting officer and the party that has asserted a
restrictive marking may agree that the restrictive marking is not
justified.
(b) Nonconforming markings. (1) A nonconforming marking is a
marking that does not comply with the form or content that is
authorized by the clause governing the technical data or computer
software.
(i) For noncommercial technical data and noncommercial computer
software, authorized markings are identified in the clause at 252.227-
7013, Rights in Technical Data and Computer Software--Noncommercial.
All other noncommercial markings which differ from those identified in
252.227-7013, whether in form or substance, are nonconforming markings.
(ii) For commercial technical data and commercial computer
software, the clause at 252.227-7015, Rights in Technical Data and
Computer Software--Commercial does not specify the form or content of
restrictive legends. However, any restrictive marking that does not
accurately describe the Government's license rights shall be considered
an unjustified
[[Page 59432]]
marking under paragraph (b) of this subsection.
(2) The correction of nonconforming markings on technical data or
computer software is governed by 252.227-7013(i)(2). To the extent
practicable, the contracting officer should return technical data or
computer software bearing nonconforming markings to the person who has
placed the nonconforming markings on such technical data or computer
software to provide that person an opportunity to correct or strike the
nonconforming marking at that person's expense.
227.7106-4 Government right to review, verify, challenge, and validate
asserted restrictions.
(a) General. All challenges must be made in accordance with the
provisions of 252.227-7037, Validation of Restrictive Markings on
Technical Data and Computer Software.
(1) The Government has the right to challenge asserted restrictions
on technical data (see 10 U.S.C. 2321) and computer software when--
(i) There are reasonable grounds to question the validity of the
assertion; and
(ii) Continued adherence to the assertion would make it impractical
to later procure competitively the item to which the technical data or
computer software pertain.
(2) However, there is a mandatory presumption that commercial items
are developed at private expense. (See 10 U.S.C. 2320(b)(1), and
2321(f)). Therefore, do not challenge a contractor's assertion that a
commercial item or process was developed at private expense unless the
Government can demonstrate that it contributed to development of the
item, component, or process.
(b) Pre-award considerations. (1) The challenge procedures may
significantly delay awards under competitive procurements. Therefore,
avoid challenging asserted restrictions prior to a competitive contract
award unless resolution of the assertion is essential for successful
completion of the procurement.
(2) Transacting challenge matters directly with subcontractors, at
any tier, or suppliers. The clause at 252.227-7037 includes the
contractor's agreement that the Government may transact matters under
the clause directly with a subcontractor, at any tier, or supplier
without creating or implying privity of contract for matters not
covered under the clause. Contracting officers should permit a
subcontractor or supplier to transact challenge and validation matters
directly with the Government when--
(i) A subcontractor's or supplier's business interests in its
technical data would be compromised if the data were disclosed to a
higher-tier contractor;
(ii) There is reason to believe that the contractor will not
respond in a timely manner to a challenge and an untimely response
would jeopardize a subcontractor's or supplier's right to assert
restrictions; or
(iii) Requested to do so by a subcontractor or supplier.
227.7106-5 Contract clauses.
Use the following clauses in solicitations and contracts that
anticipate the delivery of technical data or computer software:
(a) 252.227-7030, Technical Data and Computer Software--Withholding
of Payment; and
(b) 252.227-7037, Validation of Restrictive Markings on Technical
Data and Computer Software.
227.7107 Safeguarding, use, and handling of technical data and
computer software.
227.7107-1 Government procedures for protecting technical data and
computer software.
(a) DoD personnel, including acquisition personnel, are required to
protect technical data and computer software from unauthorized or
inappropriate access, use, modification, reproduction, release,
performance, display, and disclosure. This protection includes--
(1) Restrictions that are based on an offeror's, contractor's, or
licensor's intellectual property rights; and
(2) Restrictions based on other laws, policies, or regulations
(e.g., export-controlled information or technology, information subject
to withholding under the FOIA, privacy information).
(b) Contracting activities shall establish procedures to assure
that technical data or computer software marked with restrictive
legends are released or disclosed, including a release or disclosure
through a Government solicitation, only to authorized persons subject
to appropriate use and non-disclosure restrictions. Solicitations or
public announcements must provide notice of the use and non-disclosure
requirements.
(c)(1) Class use and non-disclosure agreements (e.g., agreements
covering all solicitations received by a company within a reasonable
period) are authorized for Government purpose rights technical data or
computer software, and may be obtained at any time prior to release or
disclosure of the technical data or computer software.
(2) Documents transmitting Government purpose rights technical data
or computer software to persons under class agreements shall identify
the technical data or computer software subject to Government purpose
rights and the class agreement under which the technical data or
computer software are provided.
227.7107-2 Use and non-disclosure agreement.
(a) Except as provided in paragraph (c) of this subsection,
technical data or computer software delivered to the Government with
restrictions on access, use, modification, reproduction, release,
performance, display, or disclosure may not be provided to third
parties unless the intended recipient completes and signs the use and
non-disclosure agreement (Agreement) at paragraph (d) of this
subsection prior to release or disclosure of the data or software.
(b) An attachment to the Agreement will identify--
(1) The technical data and computer software that the Government
intends to furnish to the recipient with restrictions on access, use,
modification, reproduction, release, performance, display, or
disclosure; and
(2) The specific conditions under which the recipient is authorized
to access, use, modify, reproduce, release, perform, display, or
disclose the following:
(i) Technical data subject to limited rights;
(ii) Computer software subject to restricted rights;
(iii) SBIR data subject to SBIR data rights; and
(iv) Technical data or computer software subject to--
(A) Negotiated license rights; or
(B) Other license restrictions, including commercial license
rights.
(c) The requirement for the Agreement does not apply to Government
contractors which require access to a third party's technical data or
computer software for the performance of a Government contract that
contains the clause at 252.227-7025, Government-Furnished Information
Marked with Restrictive Legends.
(d) The prescribed use and non-disclosure agreement is as follows:
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227.7107-3 Contractor technical data or computer software
repositories.
(a) Contractor technical data or computer software repositories may
be established when permitted by agency procedures. The contractual
instrument establishing each repository must require, as a minimum, the
repository management contractor to--
(1) Establish and maintain adequate procedures for protecting
technical data and computer software delivered to or stored at the
repository from unauthorized release or disclosure;
(2) Establish and maintain adequate procedures for controlling the
release or disclosure of technical data and computer software from the
repository to third parties consistent with the Government's rights in
such data;
(3) When required by the contracting officer, deliver technical
data or computer software to the Government on paper or in other
specified media;
(4) Be responsible for maintaining the currency of technical data
and computer software delivered directly by Government contractors or
subcontractors to the repository;
(5) Obtain use and non-disclosure agreements (see 227.7107-2) from
all persons to whom government purpose rights technical data or
computer software is released or disclosed; and
(6) Indemnify the Government from any liability to technical data
and computer software owners or licensors resulting from, or as a
consequence of, a release or disclosure of data or software made by the
repository contractor or its officers, employees, agents, or
representatives.
(b) If the contractor is or will be the repository manager, the
contractor's technical data and computer software management and
distribution responsibilities must be identified in the contract or the
contract must reference the agreement between the Government and the
contractor that establishes those responsibilities.
(c) If the contractor is not and will not be the repository
manager, do not require a contractor or subcontractor to deliver
technical data marked with limited rights legends, or computer software
marked with restricted rights legends, to a repository managed by
another contractor unless the contractor or subcontractor who has
asserted the limited rights or restricted rights agrees to release the
data or software to the repository or has authorized, in writing, the
Government to do so.
[[Page 59443]]
(d) Repository procedures may provide for the acceptance, delivery,
and subsequent distribution of technical data or computer software in
storage media other than paper, including direct electronic exchange of
data between two computers. The procedures must provide for the
identification of any portions of the data provided with restrictive
legends, when appropriate. The acceptance criteria must be consistent
with the authorized delivery format.
227.7107-4 Contract clause.
(a) Use the clause at 252.227-7025, Government-Furnished
Information Marked with Restrictive Legends, in solicitations and
contracts when it is anticipated that the Government will provide the
contractor, for performance of its contract, technical data or computer
software marked with another party's restrictive legend(s).
(b) When technical data marked with Government purpose rights
legends will be released or disclosed to a Government contractor
performing a contract that does not include the clause at 252.227-7025,
the contract may be modified, prior to release or disclosure, to
include that clause in lieu of requiring the contractor to complete a
use and non-disclosure agreement.
Subpart 227.72--Rights in Works
227.7200 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures for the acquisition of, and
Government rights in--
(1) Copyrightable works;
(2) Other works; and
(3) Architectural designs, shop drawings, or similar information
resulting from or related to construction or architect-engineer
services; and
(b) Does not apply to technical data (including computer software
documentation) or computer software (see subpart 227.71). For
additional information concerning the acquisition of works versus the
acquisition of technical data and computer software, see PGI
227.7200(b).
227.7201 Definitions.
As used in this subpart--
(a) Unless otherwise specifically indicated, the terms offeror and
contractor include an offeror's or contractor's subcontractors or
suppliers, or potential subcontractors or potential suppliers, at any
tier.
(b) Other terms are defined in the clause at--
(1) 252.227-7020, Rights in Works-Ownership; and
(2) 252.227-7021, Rights in WorksLicense.
227.7202 Contracts for the acquisition of works and the assignment of
rights in works.
227.7202-1 Policy.
The Government shall require assignment of the entire right, title,
and interest, including the intellectual property rights (other than
patent rights), in works first created, developed, generated,
originated, prepared, or produced in the performance of a contract
where it has a need to control--
(a) The use, modification, reproduction, release, distribution,
performance, or display, of the works; and
(b) The preparation of derivative works from the works.
227.7202-2 Procedures.
(a) Solicitations and contracts shall specify--
(1) The works to be first produced, created, or generated;
(2) The intellectual property rights to be assigned; and
(3) The delivery schedule for both the works and the assignment
instruments.
(b) Use the procedures at subpart 227.71 if the Government has a
need to control technical data (including computer software
documentation), computer software, and architectural works that
comprise technical data or computer software.
227.7202-3 Contract clause.
(a)(1) Use the clause at 252.227-7020, Rights in Works--Ownership,
in solicitations and contracts--
(i) For architect-engineer services, or for construction involving
architect-engineer services, when the Government requires the exclusive
control of the data pertaining to design for a unique architectural
design of a building, a monument, or construction of similar nature,
which for artistic, aesthetic, or other special reasons the Government
does not want duplicated; and
(ii) When the successful offeror(s) will be required to assign to
the Government the entire right, title, and interest, including the
intellectual property rights, to the entirety of works first created,
developed, generated, originated, prepared, or produced in the
performance of the contract.
(2) The following are examples of copyright assignments.
The assignment instruments should be tailored to the particular
work and the rights being assigned.
Copyright Assignment
Title of Work:---------------------------------------------------------
Contract No.:----------------------------------------------------------
Assignor's Name:-------------------------------------------------------
Assignor's Address:----------------------------------------------------
For good and valuable consideration, receipt of which is hereby
acknowledged, [name of assignor] (``Assignor''), hereby irrevocably
transfers and assigns to [name of assignee] (``Assignee''), located
at [insert address], its successors and assigns, in perpetuity, all
right (whether now known or hereinafter created), title, and
interest, throughout the world, including any copyrights and renewal
or extensions thereto, in [title and short description of work,
created under Contract No.: ----, including, if available, copyright
registration number].
IN WITNESS THEREOF, Assignor has duly executed this Agreement.
By:--------------------------------------------------------------------
[Authorized signature]
Typed Name:------------------------------------------------------------
Title:-----------------------------------------------------------------
[Assignor's title]
Date:------------------------------------------------------------------
AUTHOR COPYRIGHT ASSIGNMENT AGREEMENT
BETWEEN THE (name of agency)
AND
-----------------------------------------------------------------------
This Copyright Assignment Agreement, (hereinafter called
``AGREEMENT'') is made and entered into by and between the United
States of America as represented by the Secretary of the (name of
agency) (hereinafter called ``GOVERNMENT'') and (AUTHOR's name),
at-------- (AUTHOR's Address) (hereinafter called ``AUTHOR'') and
governs a Work(s) already prepared or to be prepared by the AUTHOR
with the intention that the contribution has been or shall be
included in a United States Government produced textbook, website,
spreadsheet calculator, or other teaching or reference material,
titled:
-----------------------------------------------------------------------
1. The AUTHOR hereby sells, grants, conveys, assigns and transfers
to the GOVERNMENT, its entire right, title and interest in and to the
Work(s), including, without limitation, copyrights, renewals and/or
extensions thereof for all territories of the world, and all derivative
works resulting from the Work(s) covered by this Agreement in
consideration for payment of the Work(s) made under Contract No.------
-- and subject to the retained rights set forth in Paragraph 2. Such
assigned rights include, but are not limited to, the rights throughout
the world to:
(a) Edit, print, publish, republish, and distribute the Work(s) and
to prepare, edit, print, publish, republish and distribute derivative
works based thereon, in any language and in all media of expression now
known or later developed; and
(b) To license and permit others to do so.
[[Page 59444]]
2. The AUTHOR retains the rights to:
(a) Reproduce or authorize others to reproduce the Work(s),
material extracted verbatim from the Work(s), or create derivative
works, for the AUTHOR's business purposes, but shall not use these
rights for purposes that directly compete with the GOVERNMENT's use of
the Work(s).
(b) Make limited distribution of all or portions of the Work(s) if
the AUTHOR informs the GOVERNMENT in advance of the nature and extent
of such limited distribution.
(c) First refusal for the creation of any derivative works
resulting from the generation of this Work(s).
3. GOVERNMENT agrees:
(a) To abide by accepted academic standards in the use of the
Work(s), specifically the Work(s) will be published with the name of
the Author(s) attached to the Work(s).
(b) No part of the Work(s) will be used in a subsequent or
derivative work without both a citation of the source and, if a large
amount of material is used, without the name of the Author(s) attached.
(c) If a portion of the Work(s) is to be modified, updated,
changed, or otherwise used in another Work(s), the AUTHOR will be given
an opportunity to update the material and will be compensated for this
update effort at a fair and reasonable rate. For such updates, the
GOVERNMENT agrees to exert reasonable efforts to contact the recipient.
If the AUTHOR declines or is unable to update the Work(s) within a
reasonable period of time, the GOVERNMENT is authorized to engage an
alternate author to update the Work(s). When the Work(s) is being
updated by an alternate author, the chapter, section, or material in
question will include the original author's name with an appropriate
inscription, such as ``based on,'' or ``updated from.''
4. The AUTHOR represents and warrants that the Work(s):
(a) Is original or has in part been obtained from copyrighted works
for which the AUTHOR has obtained written permission from the copyright
owner, has not been previously published and is not in the public
domain.
(b) Is owned by the AUTHOR who has the right to convey all rights
herein conveyed to the GOVERNMENT.
(c) Contains no libelous material or material which may infringe
upon or violate the copyright, trademark, trade secret or other right
of another.
(d) And that all statements asserted as facts in the Work(s) are
either true or based upon generally accepted professional research
practices and principles.
5. This Agreement shall commence on the Effective Date and shall
continue for the duration of the existing copyright term of the
Work(s), and the duration of any renewals or extensions thereof. The
Effective Date shall be the latest of the dates after which both
parties have signed this Agreement.
6. If any part of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of any other part or provision of this
Agreement, which other part or provision shall remain in full force and
effect.
7. This Agreement shall be governed by and construed in accordance
with the laws of the United States, as applicable to contracts made and
to be performed within the United States, and all disputes had by one
party against the other shall be brought in a court of competent
jurisdiction in the United States under Federal Acquisition Regulation
(FAR) clause 52.233-1, Disputes, which is hereby incorporated into this
agreement (found in full at http://www.farsite.hill.af.mil).
8. The waiver of any provision of this Agreement by either party,
or the failure of either party to require performance of any provision
of this Agreement shall not be construed as a waiver of its rights to
insist on performance of that same provision, or any other provision,
at some other time. Any effective waiver, modification or amendment
must be in writing and signed by both parties.
9. This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and expressly supersedes
any prior written or oral understandings or agreements between them
with respect to the subject matter hereof.
SIGNED:
Author:
-----------------------------------------------------------------------
Date:------------------------------------------------------------------
-----------------------------------------------------------------------
Printed Name
-----------------------------------------------------------------------
Street Address
-----------------------------------------------------------------------
City, State, Zip Code
-----------------------------------------------------------------------
Phone Number
GOVERNMENT (Contracting Officer):
-----------------------------------------------------------------------
Date:------------------------------------------------------------------
-----------------------------------------------------------------------
Printed Name
(b)(1) When the clause at 252.227-7020, Rights in Works-Ownership,
is used in accordance with 227.7202-3(a)(1), other appropriate rights
in technical data and computer software or rights in works clauses may
be required, as prescribed at 227.7104-8(a), 227.7104-8(b), 227.7104-
8(c), or 227.7203-3(a), when the successful offeror(s) will be required
to deliver to the Government--
(i) Technical data or computer software; or
(ii) Works created, developed, generated, originated, prepared, or
produced outside of contract award.
(2) The contracting officer must identify which works and
deliverables are subject to which clauses when the clause at 252.227-
7020, Rights in Works-Ownership, is used in addition to the clauses at
252.227-7013, Rights in Technical Data and Computer Software-
Noncommercial; 252.227-7014, Rights in Technical Data and Computer
Software-Small Business Innovation Research (SBIR) Program; 252.227-
7015 Rights in Technical Data and Computer Software-Commercial; or
252.227-7021, Rights in Works-License.
227.7203 Contracts for the acquisition of works and license rights in
works.
227.7203-1 Policy.
When the Government does not require assignment of ownership in
works (see 227.7202) and does not require modification to existing
works, such works shall be acquired under licenses customarily provided
to the public unless such licenses are inconsistent with Federal
procurement law or do not otherwise satisfy user needs.
227.7203-2 Procedures.
(a) Solicitations and contracts shall specify the works to be
delivered under the contract, and the delivery schedule for the works.
(b) Use the procedures at subpart 227.71 if the Government desires
to obtain technical data (including computer software documentation) or
computer software.
227.7203-3 Contract clause.
(a) Use the clause at 252.227-7021, Rights in Works-License in
solicitations and contracts when the successful offeror(s) will be
required to deliver to the Government--
(1) Works first created, developed, generated, originated,
prepared, or produced outside of contract award; or
(2) Modifications made by the successful offeror(s) to works first
created, developed, generated, originated, prepared, or produced
outside of contract award;
[[Page 59445]]
(b)(1) When the clause at 252.227-7021, Rights in Works-License, is
used in accordance with 227.7203-3(a), other appropriate rights in
technical data and computer software or rights in works clauses may be
required, as prescribed at 227.7104-8(a), 227.7104-8(b), 227.7104-8(c),
or 227.7202-3(a) when the successful offeror(s) will be required to--
(i) Deliver to the Government technical data or computer software;
or
(ii) Assign to the Government the entire right, title and interest,
including the intellectual property rights, to the entirety of works
first created, developed, generated, originated, prepared, or produced
in the performance of the contract.
(2) The contracting officer must identify which works and
deliverables are subject to which clauses when the clause at 252.227-
7021, Rights in Works-License, is used in addition to the clauses at
252.227-7013, Rights in Technical Data and Computer Software-
Noncommercial; 252.227-7014, Rights in Technical Data and Computer
Software-Small Business Innovation Research (SBIR) Program; 252.227-
7015, Rights in Technical Data and Computer Software-Commercial; or
252.227-7020, Rights in Works-Ownership.
227.7204 Safeguarding, use, and handling of works.
227.7204-1 Procedures.
(a) DoD personnel, including acquisition personnel, are required to
protect works from unauthorized or inappropriate access, use,
modification, reproduction, release, performance, display, and
disclosure. This protection includes--
(1) Restrictions that are based on an offeror's, contractor's, or
licensor's intellectual property rights; and
(2) Restrictions based on other laws, policies, or regulations
(e.g., export--controlled information or technology, information
subject to withholding under the FOIA, privacy information).
(b) Contracting activities shall establish procedures to assure
that works marked with restrictive legends are released or disclosed,
including a release or disclosure through a Government solicitation,
only to authorized persons subject to appropriate use and non-
disclosure restrictions. Solicitations or public announcements must
provide notice of the use and non-disclosure requirements.
(c)(1) Class use and non-disclosure agreements (e.g., agreements
covering all solicitations received by a company within a reasonable
period) are authorized for Government purpose rights works and may be
obtained at any time prior to release or disclosure of the works.
(2) Documents transmitting Government purpose rights works to
persons under class agreements shall identify the works subject to
Government purpose rights and the class agreement under which the works
are provided.
227.7204-2 Contract clause.
(a) Use the clause at 252.227-70YY, Government-Furnished Works
Marked with Restrictive Legends, in solicitations and contracts when it
is anticipated that the Government will provide the contractor, for
performance of its contract, works marked with another party's
restrictive legend(s).
(b) When works marked with government license rights legends will
be released or disclosed to a Government contractor performing a
contract that does not include the clause at 252.227-70YY, the contract
may be modified, prior to release or disclosure, to include that
clause, in lieu of requiring the contractor to complete a use and non-
disclosure agreement.
227.7205 Rights in architectural designs, shop drawings, or similar
information related to architect-engineer services and construction.
227.7205-1 Scope.
(a) This section provides clauses for data, copyrights, and
restricted designs unique to the acquisition of architect-engineer
services and construction.
(b) It does not apply when the acquisition is limited to supply
contracts for the acquisition of construction supplies or materials; or
experimental, developmental, or research work, or test and evaluation
studies of structures, equipment, processes, or materials for use in
construction. For such acquisitions, use the provisions and clauses
required by 227.7104-8.
227.7205-2 Contract clauses.
(a) Use the clause at 252.227-7022, Government Rights in Works
(Unlimited), except as provided in paragraphs (b) and (d) of this
subsection, in solicitations and contracts for architect-engineer
services and for construction involving architect-engineer services.
(b) Use the clause at 252.227-7024, Notice and Approval of
Restricted Designs, in architect-engineer contracts when necessary for
the Government to make informed decisions concerning noncompetitive
aspects of the design.
(c) Use the clause at 252.227-7033, Rights in Shop Drawings, in
solicitations and contracts calling for delivery of shop drawings.
(d) When the Government requires the exclusive control of the data
pertaining to the design of a building, monument, or a construction of
a similar nature, see 227.7202-2(a)(2).
PART 246--QUALITY ASSURANCE
246.710 Contract clauses.
7. Section 246.710 is amended at paragraph (1) by removing ``Rights
in Technical Data and Computer Software'' and adding in its place
``Rights in Technical Data and Computer Software--Noncommercial''.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.227-7000 [Removed and reserved.]
8. Section 252.227-7000 is removed and reserved.
252.227-7001 [Removed and reserved.]
9. Section 252.227-7001 is removed and reserved.
252.227-7002 [Removed and reserved.]
10. Section 252.227-7002 is removed and reserved.
252.227-7003 [Removed and reserved.]
11. Section 252.227-7003 is removed and reserved.
252.227-7004 [Removed and reserved.]
12. Section 252.227-7004 is removed and reserved.
252.227-7005 [Removed and reserved.]
13. Section 252.227-7005 is removed and reserved.
252.227-7006 [Removed and reserved.]
14. Section 252.227-7006 is removed and reserved.
252.227-7007 [Removed and reserved.]
15. Section 252.227-7007 is removed and reserved.
252.227-7008 [Removed and reserved.]
16. Section 252.227-7008 is removed and reserved.
252.227-7009 [Removed and reserved.]
17. Section 252.227-7008 is removed and reserved.
252.227-7010 [Removed and reserved.]
18. Section 252.227-7010 is removed and reserved.
252.227-7011 [Removed and reserved.]
19. Section 252.227-7011 is removed and reserved.
[[Page 59446]]
252.227-7012 [Removed and reserved.]
20. Section 252.227-7012 is removed and reserved.
21. Section 252.227-7013 is revised to read as follows:
252.227-7013 Rights in Technical Data and Computer Software--
Noncommercial.
As prescribed in 227.7104-8(a), use the following clause:
RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE--NONCOMMERCIAL (DATE)
(a) Definitions. As used in this clause--
(1) Commercial computer software means computer software that is
a commercial item.
(2) Commercial technical data means technical data that is or
pertains to a commercial item.
(3) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
(4) Computer program means a set of instructions, rules,
routines, or statements, regardless of the form or method of
recording, that is capable of causing a computer to perform a
specific operation or series of operations. Examples include
firmware, object code, and any form of executable code.
(5) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be complied to generate a computer program. The
term does not include computer database or computer software
documentation.
(6) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(7) Detailed manufacturing or process data means technical data
that describe the steps, sequences, and conditions of manufacturing,
processing, or assembly used by the manufacturer to produce an item
or to perform a process.
(8) Developed means that--
(i) An item or process exists and is workable. Workability is
generally established when the item or process has been analyzed or
tested sufficiently to demonstrate to reasonable people skilled in
the art that there is a high probability that it will operate as
intended. Whether, how much, and what type of analysis or testing is
required to establish workability depends on the nature of the item
or process, and the state of the art. To be considered developed,
the item or process need not be at the stage where it could be
offered for sale or sold on the commercial market, nor must the item
or process actually be reduced to practice within the meaning of
title 35 of the United States Code.
(ii) A computer program has been successfully operated in a
computer and tested to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the program can
reasonably be expected to perform its intended purpose;
(iii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the computer software can
reasonably be expected to perform its intended purpose; or
(iv) Computer software user's documentation required to be
delivered or otherwise provided under a contract has been written,
in any medium, in sufficient detail to comply with requirements
under that contract.
(9) Developed exclusively at private expense means development
was accomplished entirely with costs not paid or reimbursed by the
Government, or costs paid or reimbursed by the Government through
indirect cost pools, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at Government,
private, or mixed expense.
(10) Developed exclusively with Government funds means
development was not accomplished exclusively or partially at private
expense.
(11) Developed with mixed funding means development was
accomplished partially with costs not paid or reimbursed by the
Government or costs paid or reimbursed by the Government through
indirect cost pools, and partially with costs paid or reimbursed
directly by the Government.
(12) Form, fit, and function data means technical data that
describes the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item or process to the extent necessary to permit
identification of physically and functionally interchangeable items.
(13) Government purpose means any activity in which the United
States Government is a party.
(i) The term includes competitive procurement and any agreements
or contracts with, or sales or transfers to, international or multi-
national defense organizations or foreign governments.
(ii) The term does not include the rights to access, use,
modify, reproduce, release, perform, display, or disclose technical
data for commercial purposes or to authorize others to do so.
(14) Government purpose rights means the rights to--
(i) Access, use, modify, reproduce, release, perform, display,
or disclose technical data or computer software within the
Government without restriction; and
(ii) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to access, use, modify, reproduce, release,
perform, display, or disclose that data for Government purposes.
However, the Government shall not release or disclose the technical
data or computer software outside the Government unless--
(A) Prior to release or disclosure (or in emergency situations,
as soon as practicable), the intended recipient has executed the
non-disclosure agreement at 227.7107-2 with its required
attachments; or
(B) The recipient is a Government contractor receiving access to
the technical data or computer software for performance of a
Government contract that contains the clause at DFARS 252.227-7025
and the attachments required by that clause.
(15) Limited rights means the rights to access, use, modify,
reproduce, release, perform, display, or disclose technical data, in
whole or in part, within the Government. The Government may not,
without the written permission of the party asserting limited
rights, release or disclose the technical data outside the
Government, use the technical data for manufacture, or authorize the
technical data to be accessed or used by another party, unless--
(i) The reproduction, release, disclosure, access, or use is--
(A) Necessary for emergency repair and overhaul;
(B) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or access or use of such
data by, a foreign government that is in the interest of the
Government and is required for evaluational or informational
purposes; or
(C) A release or disclosure of computer software design
documentation to, or access by, a contractor or subcontractor
performing a service contract (see 37.101 of the Federal Acquisition
Regulation) in support of this or a related contract to use such
computer software documentation to diagnose and correct deficiencies
in a computer program, to modify computer software to enable a
computer program to be combined with, adapted to, or merged with
other computer programs or when necessary to respond to urgent
tactical situations or for emergency repair or overhaul of items or
processes;
(ii) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient--
(A) Has executed the use and non-disclosure agreements at
227.7107-2, with its required attachment(s); or
(B) Is a Government contractor receiving access to the technical
data for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(iii) The recipient for emergency repair or overhaul is required
to destroy the technical data and all copies in its possession
promptly following completion of the emergency repair or overhaul,
and to notify the Contractor that
[[Page 59447]]
the data or computer software have been destroyed; and
(iv) The Contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, access, or
use.
(16) Noncommercial computer software means computer software
that does not qualify as commercial computer software.
(17) Noncommercial technical data means technical data that does
not qualify as commercial technical data.
(18) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Install and use computer software on one computer at a time.
The computer software may not be time shared or accessed by more
than one terminal or central processing unit unless otherwise
permitted by this contract;
(ii) Transfer computer software within the Government without
further permission of the Contractor so long as the transferred
computer software remain subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified computer software only as provided in
paragraphs (a)(18)(i) and (iii) of this clause; and
(B) Not release or disclose the modified computer software
except as provided in paragraphs (a)(18)(ii), (v) and (vi) of this
clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations or for emergency repair or
overhaul of items or processes, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors--
(1) Have executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Are Government contractors receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(18)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient--
(1) Has executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Is a Government contractor receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, and the attachments required by that
clause;
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(C) The Government shall require a recipient of restricted
rights computer software for emergency repair or overhaul to destroy
any copies of the computer software in its possession promptly
following completion of the emergency repair/overhaul and to notify
the Contractor that the computer software has been destroyed.
(19) SBIR data means all--
(i) Technical data--
(A) Pertaining to items or processes developed under a Small
Business Innovation Research (SBIR) award; or
(B) Created under a SBIR award that does not require the
development of items or processes; and
(ii) Computer software developed under a SBIR award.
(20) SBIR data rights mean the Government's rights during the
SBIR data protection period (specified at 252.227-7014(b)(5)(ii)) to
access, use, modify, reproduce, release, perform, display, or
disclose SBIR data as follows:
(i) Limited rights in SBIR data that is technical data; and
(ii) Restricted rights in SBIR data that is computer software.
(21) Technical data means recorded information (regardless of
the form or method of the recording) of a scientific or technical
nature (including computer databases and computer software
documentation). The term does not include computer software or
financial, administrative, cost or pricing, or management data or
other information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data.
(22) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose technical data or
computer software in whole or in part, in any manner and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Government Rights. The Contractor grants or shall obtain for
the Government the following paid-up, world-wide, nonexclusive,
irrevocable license rights in technical data and computer software:
(1) Unlimited rights. The Government shall have unlimited rights
in--
(i) Technical data (that does not pertain to an item or process)
or computer software developed exclusively with Government funds;
(ii) Technical data pertaining to an item or process that has
been or will be developed exclusively with Government funds;
(iii) Studies, analyses, test data, or similar data produced for
this contract, when the study, analysis, test, or similar work was
specified as an element of performance;
(iv) Form, fit, and function data;
(v) Technical data necessary for installation, operation,
maintenance, or training purposes (other than detailed manufacturing
or process data);
(vi) Corrections or changes to technical data or computer
software furnished to the Contractor by the Government;
(vii) Technical data or computer software otherwise publicly
available or that has been released or disclosed by the Contractor
or subcontractor without restrictions;
(viii) Technical data or computer software in which the
Government has obtained unlimited rights under another Government
contract or as a result of negotiations;
(ix) Technical data or computer software furnished to the
Government, under this or any other Government contract or
subcontract with restrictive conditions and the restrictive
conditions have expired (e.g., Government purpose rights, SBIR data
rights, or negotiated license rights);
(x) Computer software user's documentation required to be
delivered or otherwise provided under this contract; and
(xi) Technical data or computer software delivered or otherwise
provided to the Government without any restrictive markings (see
paragraph (g) of this clause).
(2) Government purpose rights.
(i) The Government shall have Government purpose rights for a
five-year period, or such other period as may be negotiated in--
(A) Technical data (that does not pertain to an item or process)
or computer software developed with mixed funding; and
(B) Technical data pertaining to items or processes developed
with mixed funding;
(ii) The five-year period, or such other period as may have been
negotiated under paragraph (b)(5) of this clause, shall commence
upon execution of the contract, subcontract, letter contract (or
similar contractual instrument), contract modification, or option
exercise that required development of the computer software,
development of the items or processes, or creation of the technical
data. Upon expiration of the five-year or other negotiated period,
the Government shall have unlimited rights in the technical data or
computer software.
(3) Limited rights. Except as provided in paragraphs (b)(1)(iii)
through (b)(1)((xi) of this clause, the Government shall have
limited rights in technical data--
(i) Pertaining to items or processes developed exclusively at
private expense and marked with the limited rights legend prescribed
in paragraph (f) of this clause; or
(ii) Created exclusively at private expense in the performance
of a contract that does not require the development, manufacture,
construction, or production of items or processes.
(4) Restricted rights. The Government shall have restricted
rights in noncommercial
[[Page 59448]]
computer software that was developed exclusively at private expense
and is required to be delivered or otherwise provided to the
Government under this contract.
(5) Negotiated license rights. (i) The standard license rights
granted to the Government under paragraphs (b)(1) through (b)(4) of
this clause (including the period during which the Government shall
have Government purpose rights) may be modified only by mutual
written agreement.
(ii) If either party desires to negotiate specialized license
rights in technical data or computer software, the other party
agrees to enter into negotiations.
(iii) However, in no event may the negotiated license provide
the Government lesser rights than limited rights in technical data,
or restricted rights in computer software.
(iv) Any license rights negotiated under this paragraph shall be
identified in a license agreement attached to this contract.
(6) Prior Government rights. Technical data and computer
software that will be delivered or otherwise provided to the
Government under this contract, in which the Government has
previously obtained rights, shall be delivered or otherwise provided
with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to access, use,
modify, reproduce, release, perform, display, or disclose the
technical data or computer software have expired.
(7) Rights in derivative technical data and computer software.
The Government shall retain its rights in the unchanged portions of
any technical data and computer software delivered or otherwise
provided under this contract that the Contractor uses to prepare, or
includes in, derivative technical data or computer software.
(c) Contractor rights in technical data or computer software.
The Contractor (or other third party owner or licensor) retains all
intellectual property rights for technical data and computer
software (including ownership) developed under this contract except
those granted to the Government as specified under paragraph (b) of
this clause.
(d) Third party technical data or computer software. (1) The
Contractor shall not incorporate any third party owned or licensed
technical data or computer software in the technical data or
computer software to be delivered or otherwise provided under this
contract unless--
(i) The Contractor has obtained for the Government the license
rights necessary to perfect a license in the deliverable technical
data or computer software of the appropriate scope set forth in
paragraph (b) of this clause; or
(ii) The Contracting Officer has granted specific written
approval to do so.
(2) The Contractor shall ensure that any such license rights
obtained from third parties and granted to the Government are
identified and asserted pursuant to paragraph (f) of this clause,
and such technical data and computer software are appropriately
marked pursuant to paragraph (g) of this clause.
(e) Release from liability. In the event that an authorized
recipient of technical data or computer software delivered or
otherwise provided to the Government under this contract engages in
any unauthorized activities with such technical data or computer
software, the Contractor agrees to--
(1) Release the Government from liability for any licensed use
of technical data or computer software made in accordance with the
Government's license rights granted pursuant to paragraph (b) of
this clause; and
(2) Seek relief solely from the party who has improperly
accessed, used, modified, reproduced, released, performed,
displayed, or disclosed Contractor technical data or computer
software marked with restrictive legends.
(f) Identification and delivery of technical data and computer
software to be furnished with restrictions. The Contractor shall not
deliver any technical data or computer software with restrictive
markings unless the technical data or computer software are listed
on an Attachment to this contract in accordance with--
(1) The provision at DFARS 252.227-7017, Pre-Award
Identification and Assertion of License Restrictions--Technical Data
and Computer Software; and
(2) The clause at DFARS 252.227-7018, Post-Award Identification
and Assertion of License Restrictions--Technical Data and Computer
Software.
(g) Marking requirements. The Contractor, and its subcontractors
or suppliers, shall assert restrictions on the Government's rights
to access, use, modify, reproduce, release, perform, display, or
disclose technical data or computer software delivered or otherwise
provided under this contract only by marking the deliverable that is
subject to restriction.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
all technical data or computer software with the appropriate
legends.
(i) The authorized legends shall be placed on the transmittal
document or storage media, and on each page of the printed material
containing technical data or computer software for which
restrictions are asserted. If only portions of a page are subject to
the asserted restrictions, the Contractor shall identify the
restricted portions (e.g., by circling or underscoring with a note
or other appropriate identifier).
(ii) Technical data or computer software transmitted directly
from one computer or computer terminal to another shall contain a
notice of asserted restrictions.
(iii) The Contractor shall not use instructions that interfere
with or delay the operation of the computer program in order to
display an authorized legend in computer software that will or might
be used in combat or situations that simulate combat conditions,
unless the Contracting Officer's written permission to deliver such
computer software has been obtained prior to delivery.
(iv) Reproductions of technical data or computer software, or
any portions thereof, subject to asserted restrictions shall also
include the asserted restrictions.
(2) Unlimited rights markings. Technical data or computer
software that is delivered or otherwise provided to the Government
with unlimited rights, and that is marked with a copyright legend
prescribed under 17 U.S.C. 401 or 402, shall also be marked as
follows:
The U.S. Government has Unlimited Rights in this technical data or
computer software pursuant to the clause at DFARS 252.227-7013. Any
reproduction of technical data or computer software, or portions
thereof, marked with this legend must also reproduce these markings.
(End of legend)
(3) Government purpose rights markings. Technical data or
computer software delivered or otherwise provided to the Government
with Government purpose rights shall be marked as follows:
GOVERNMENT PURPOSE RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose these technical data or computer
software are restricted by paragraph (b)(2) of the Rights in
Technical Data and Computer Software--Noncommercial clause contained
in the above identified contract. No restrictions apply after the
expiration date shown above. Any reproduction of technical data or
computer software or portions thereof marked with this legend must
also reproduce the markings.
(End of legend)
(4) Limited rights markings. Technical data delivered or
otherwise provided to the Government with limited rights shall be
marked with the following legend:
LIMITED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose these technical data or computer
software are restricted by paragraph (b)(3) of the Rights in
Technical Data and Computer Software--Noncommercial clause contained
in the above identified contract. Any reproduction of technical data
or computer software or portions thereof marked with this legend
must also reproduce the markings. Any person, other than the
Government, who has been provided access to such technical data or
computer software shall promptly notify the above named Contractor.
(End of legend)
(5) Restricted rights markings. Computer software delivered or
otherwise provided to the Government with restricted rights shall be
marked with the following legend:
RESTRICTED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to access, use, modify, reproduce, release,
perform, display,
[[Page 59449]]
or disclose this computer software are restricted by paragraph
(b)(4) of the Rights in Technical Data and Computer Software--
Noncommercial clause contained in the above identified contract. Any
reproduction of computer software or portions thereof marked with
this legend must also reproduce the markings. Any person, other than
the Government, who has been provided access to such computer
software shall promptly notify the above named Contractor.
(End of legend)
(6) Negotiated license rights markings.
(i) Except as noted in paragraph (g)(6)(ii) of this clause,
technical data and computer software in which the Government's
rights stem from a negotiated license shall be marked with the
following legend:
NEGOTIATED LICENSE RIGHTS
The Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose these technical data or computer
software are restricted by Contract No. (Insert contract number),
License No. (Insert license identifier). Any reproduction of
technical data or computer software or portions thereof marked with
this legend must also reproduce the markings.
(End of legend)
(ii) For purposes of marking, negotiated licenses do not include
Government purpose rights for which a different restrictive period
has been negotiated (see paragraph (g)(3) of this clause), or
Government purpose license rights acquired under a prior contract
(see paragraph (g)(7) of this clause).
(7) Pre-existing technical data or computer software markings.
If the terms of a prior contract or license permitted the Contractor
to restrict the Government's rights in technical data or computer
software, the Contractor may mark such technical data or computer
software with the appropriate restrictive legend in accordance with
the marking procedures in paragraph (g)(1) of this clause.
(8) Authorized markings. Except as provided in paragraph (g)(7)
of this clause, only the following legends are authorized under this
contract:
(i) The unlimited rights legend at paragraph (g)(2) of this
clause.
(ii) The Government purpose rights legend at paragraph (g)(3) of
this clause.
(iii) The limited rights legend at paragraph (g)(4) of this
clause.
(iv) The restricted rights legend at paragraph (g)(5) of this
clause.
(v) The negotiated license rights legend at paragraph (g)(6) of
this clause.
(vi) The notice of copyright as prescribed under 17 U.S.C. 401
or 402.
(h) Contractor procedures and records. Throughout performance of
this contract, the Contractor and its subcontractors or suppliers
that will deliver technical data or computer software with other
than unlimited rights, shall--
(1) Assure that restrictive markings are used only when
authorized by the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data or computer software
delivered under this contract.
(i) Removal of unjustified and nonconforming markings.
(1) Unjustified technical data or computer software markings.
The rights and obligations of the parties regarding the validation
of restrictive markings on technical data or computer software
provided or to be provided under this contract are contained in the
clause at 252.227-7037. Notwithstanding any provision of this
contract concerning inspection and acceptance, the Government may
ignore or, at the Contractor's expense, correct or strike a marking
if a restrictive marking is determined to be unjustified.
(2) Nonconforming technical data or computer software markings.
A nonconforming marking is a marking placed on technical data or
computer software delivered or otherwise provided to the Government
under this contract that is not in the format authorized by this
contract. Correction of nonconforming markings is not subject to the
clause at 252.227-7037. If the Contracting Officer notifies the
Contractor of a nonconforming marking and the Contractor fails to
remove or correct such marking within sixty (60) days, the
Government may ignore or, at the Contractor's expense, remove or
correct any nonconforming marking.
(j) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(k) Applicability to subcontractors or suppliers.
(1) The Contractor shall recognize and protect the rights
afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10
U.S.C. 2321, and the identification, assertion, and delivery
processes of paragraph (e) of this clause.
(2)(i) Whenever any technical data or computer software will be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause (or other appropriate clause(s) prescribed at DFARS 227.7104-
8), in the subcontract or other contractual instrument, and require
its subcontractors or suppliers to do so, without alteration, except
to identify the parties as follows:
(A) References to the Government are not changed.
(B) The subcontractor or supplier has all rights and obligations
of the Contractor in the clause.
(ii) No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher-tier subcontractor's or
supplier's rights in a subcontractor's or supplier's technical data
or computer software except by mutual agreement of the parties whose
rights are affected.
(iii) If the clause used with a subcontractor or supplier is not
a clause that is used in the prime contract (or higher-tier
subcontract), the Contractor shall notify the Government of the use
of the clause and, if appropriate pursuant to DFARS 227.7104-8(d),
the Contracting Officer will modify the prime contract to include
the new clause.
(3) Technical data or computer software required to be delivered
by a subcontractor or supplier shall normally be delivered to the
next higher-tier contractor, subcontractor, or supplier. However,
when there is a requirement in the prime contract for technical data
or computer software to be submitted with other than unlimited
rights, then a subcontractor or supplier may fulfill its requirement
by submitting the technical data or computer software directly to
the Government.
(4) The Contractor and higher-tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in technical data or computer software from their
subcontractors or suppliers.
(5) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in technical
data or computer software as an excuse for failing to satisfy its
contractual obligation to the Government.
(End of clause)
ALTERNATE I (DATE)
As prescribed in 227.7104-8(a)(3), add the following paragraph
(l) to the basic clause:
(l) Publication for sale.
(1) This paragraph only applies to technical data or computer
software in which the Government has obtained unlimited rights or a
license to make an unrestricted release of technical data or
computer software.
(2) The Government shall not publish, or authorize others to
publish on its behalf, deliverable technical data or computer
software if the Contractor publishes the technical data or computer
software for sale prior to the Government's intended publication.
Before the Contractor publishes any technical data or computer
software, the Contractor shall promptly notify the Contracting
Officer of such publication(s). The Government's publication
restrictions shall not apply after twenty-four (24) months following
the delivery date specified in this contract, or the removal of any
national security or export control restrictions, whichever is
later.
(3) This limitation on the Government's right to publish for
sale shall continue as long as the data are reasonably available to
the public for purchase.
ALTERNATE II (DATE)
As prescribed in 227.7104-8(a)(4), add the following paragraphs
(a)(23) and (b)(8) to the basic clause:
(a)(23) Vessel design means the design of a vessel, boat, or
craft, and its components, including the hull, decks,
superstructure, and the exterior surface shape of all external
shipboard equipment and systems. The term includes designs covered
by 10 U.S.C. 7317, and designs protectable under 17 U.S.C. 1301, et
seq.
(b)(8) Vessel designs. For a vessel design (including a vessel
design embodied in a useful article) that is developed or delivered
under this contract, the Government shall have the right to make and
have made any useful article that embodies the vessel design, to
import the article, to sell the
[[Page 59450]]
article, and to distribute the article for sale or to use the
article in trade, to the same extent that the Government is granted
rights in the technical data pertaining to the vessel design.
22. Section 252.227-7014 is revised to read as follows:
252.227-7014 Rights in technical data and computer software--small
business innovation research (SBIR) program.
As prescribed in 227.7104-8(b), use the following clause:
RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE--SMALL BUSINESS
INNOVATION RESEARCH (SBIR) PROGRAM (DATE)
(a) Definitions. As used in this clause--
(1) Commercial computer software means computer software that is
a commercial item.
(2) Commercial technical data means technical data that is or
pertains to a commercial item.
(3) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of being
stored in, or processed by a computer. The term does not include
computer software.
(4) Computer program means a set of instructions, rules,
routines, or statements, regardless of the form or method of
recording, that is capable of causing a computer to perform a
specific operation or series of operations. Examples include
firmware, object code, and any form of executable code.
(5) Computer software means computer programs; and source code,
source code listings, object code listings, and similar human-
readable, recorded information, that can be compiled to generate a
computer program. The term does not include computer databases or
computer software documentation.
(6) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation such as user's or
owner's manuals, users, manuals, installation instructions,
operating instructions, and other similar information that explains
the capabilities of the computer software or provides instructions
for using or maintaining the computer software.
(ii) The term does not include computer software.
(7) Detailed manufacturing or process data means technical data
that describe the steps, sequences, and conditions of manufacturing,
processing, or assembly used by the manufacturer to produce an item
or to perform a process.
(8) Developed means that--
(i) An item or process exists and is workable. Workability is
generally established when the item or process has been analyzed or
tested sufficiently to demonstrate to reasonable people skilled in
the applicable art that there is a high probability that it will
operate as intended. Whether, how much, and what type of analysis or
testing is required to establish workability depends on the nature
of the item or process, and the state of the art. To be considered
developed, the item or process need not be at the stage where it
could be offered for sale or sold on the commercial market, or must
the item or process actually be reduced to practice within the
meaning of title 35 of the United States Code;
(ii) A computer program has been successfully operated in a
computer and tested to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the program can
reasonably be expected to perform its intended purpose;
(iii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the computer software can
reasonably be expected to perform its intended purpose; or
(iv) Computer software user's documentation required to be
delivered under a contract has been written, in any medium, in
sufficient detail to comply with requirements under that contract.
(9) Developed exclusively at private expense means development
was accomplished entirely with costs not paid or reimbursed by the
Government, or costs paid or reimbursed by the Government through
indirect cost pools, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm-fixed-price or ceiling price of the contract, the
additional development costs necessary to complete development shall
not be considered when determining whether development was at
Government, private, or mixed expense.
(10) Form, fit, and function data means technical data that
describe the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item or process to the extent necessary to permit
identification of physically and functionally interchangeable items.
(11) Government purpose means any activity in which the United
States Government is a party.
(i) The term includes the competitive procurement and any
agreements or contracts with, or sales or transfers to,
international or multi-national defense organizations or foreign
governments.
(ii) The term does not include the rights to access, use,
modify, reproduce, release, perform, display, or disclose technical
data or computer software for commercial purposes or authorize
others to do so.
(12) Government purpose rights means the rights to--
(i) Access, use, modify, reproduce, release, perform, display,
or disclose technical data or computer software within the
Government without restriction; and
(ii) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to access, use, modify, reproduce, release,
perform, display, or disclose that data for Government purposes.
However, the Government shall not release or disclose the technical
data or computer software outside the Government unless--
(A) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient has
executed the non-disclosure agreement at 227.7107-2 with its
required attachments; or
(B) The recipient is a Government contractor receiving access to
the technical data or computer software for performance of a
Government contract that contains the clause at DFARS 252.227-7025
and the attachments required by that clause.
(13) Limited rights means the rights to access, use, modify,
reproduce, release, perform, display, or disclose noncommercial
technical data, in whole or in part, within the Government. The
Government may not, without the written permission of the party
asserting limited rights, release or disclose the technical data
outside the Government, use the technical data for manufacture, or
authorize the technical data to be accessed or used by another
party, unless--
(i) The reproduction, release, disclosure, access, or use is--
(A) Necessary for emergency repair and overhaul;
(B) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or use of such data by,
a foreign government that is in the interest of the Government and
is required for evaluational or informational purposes; or
(C) A release or disclosure of computer software documentation
to a contractor or subcontractor performing a service contract (see
37.101 of the Federal Acquisition Regulation) in support of this or
a related contract to use such computer software documentation to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations or for emergency repair or
overhaul of items or processes;
(ii) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient--
(A) Has executed the use and non-disclosure agreements at
227.7101-2, with its required attachment(s); or
(B) Is a Government contractor receiving access to the technical
data for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(iii) The recipient of limited rights data for emergency repair
or overhaul is required to destroy the technical data and all copies
in its possession promptly following completion of the emergency
repair or overhaul and to notify the Contractor that the data have
been destroyed; and
(iv) The Contractor or subcontractor asserting the restriction
is notified of such
[[Page 59451]]
reproduction, release, disclosure, access, or use.
(14) Noncommercial computer software means computer software
that does not qualify as commercial computer software.
(15) Noncommercial technical data means technical data that does
not qualify as commercial technical data.
(16) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Install and use computer software on one computer at a time.
The computer software may not be shared or accessed by more than one
terminal or central processing unit or time shared unless otherwise
permitted by this contract;
(ii) Transfer computer software within the Government without
further permission of the Contractor so as long as the transferred
computer software remains subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified computer software only as provided in
paragraphs (a)(13)(i) and (iii) of this clause; and
(B) Not release or disclose the modified computer software
except as provided in paragraphs (a)(13)(ii), (v) and (vi) of this
clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors--
(1) Have executed the use and non-disclosure agreement at
227.7107-2, with its required attachment(s); or
(2) Are Government contractors receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(16)(iv) of this clause, for
any other purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(16)(i) of this clause.
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient--
(1) Has executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachment(s); or
(2) Is a Government contractor receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the required attachment(s);
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(16)(iv) of this clause, for
any other purpose; and
(C) The Government shall require a recipient of restricted
rights computer software for emergency repair or overhaul is
required to destroy any copies of the computer software in its
possession promptly following completion of the emergency repair/
overhaul and to notify the Contractor that the computer software has
been destroyed.
(17) SBIR data means all--
(i) Technical data--
(A) Pertaining to items or processes developed under a SBIR
award; or
(B) Created under a SBIR award that does not require the
development of items or processes; and
(ii) Computer software developed under a SBIR award.
(18) SBIR data rights mean the Government's rights during the
SBIR data protection period (specified at paragraph (b)(5)(ii) of
this clause) to access, use, modify, reproduce, release, perform,
display, or disclose SBIR data as follows:
(i) Limited rights in SBIR data that is technical data; and
(ii) Restricted rights in SBIR data that is computer software.
(19) Technical data means recorded information, (regardless of
the form or method of the recording), of a scientific or technical
nature (including computer databases and computer software
documentation). This term does not include computer software or
financial, administrative, cost or pricing, or management data or
other information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data.
(20) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose, technical data or
computer software in whole or in part, in any manner and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Government Rights. The Contractor grants or shall obtain for
the Government the following paid-up, world-wide, nonexclusive,
irrevocable license rights in technical data and noncommercial
computer software.
(1) Unlimited rights. The Government shall have unlimited rights
in--
(i) Form, fit, and function data;
(ii) Technical data necessary for installation, operation,
maintenance, or training purposes (other than detailed manufacturing
or process data);
(iii) Corrections or changes to technical data or computer
software furnished to the Contractor by the Government;
(iv) Technical data or computer software otherwise publicly
available or have been released or disclosed by the Contractor or a
subcontractor without restrictions;
(v) Technical data or computer software in which the Government
has obtained unlimited rights under another Government contract or a
result of negotiations;
(vi) SBIR data upon expiration of the SBIR data rights Technical
data or computer software delivered or otherwise provided to the
Government, under this or any other Government contract or
subcontract in which the restrictive condition(s) has or have
expired;
(vii) Computer software user's documentation required to be
delivered or otherwise provided under this contract; and
(viii) Technical data or computer software delivered or
otherwise provided to the Government without any restrictive
markings.
(2) Limited rights. Except as provided in paragraphs (b)(1) of
this clause, the Government shall have limited rights in technical
data--
(i) Pertaining to items or processes developed exclusively at
private expense and marked with the limited rights legend prescribed
in paragraph (g)(4) of this clause; or
(ii) Created exclusively at private expense in the performance
of a contract that does not require the development, manufacture,
construction, or production of items or processes.
(3) Restricted rights in computer software. The Government shall
have restricted rights in noncommercial computer software required
to be delivered or otherwise provided to the Government under this
contract that were developed exclusively at private expense and were
not created or developed under this contract.
(4) Rights in commercial technical data and computer software.
The Government shall have the rights specified by the clause at
252.227-7015 in commercial technical data and commercial computer
software required to be delivered or otherwise provided to the
Government under this contract.
(5) SBIR data rights.
(i) Except as provided in paragraph (b)(1) of this clause, the
Government shall have SBIR data rights in--
(A) All SBIR data created or developed under this contract; and
(B) All relevant SBIR data created or developed under other SBIR
contracts where such SBIR data is specifically referenced and
protected under the 252.227-7017 and -7018 clauses of this contract.
(ii) Protection Period. The Government's SBIR data rights
commence with contract award and end upon the date five years after
acceptance of the last deliverable under this contract. However, any
SBIR data that is appropriately referenced and protected in a
subsequent SBIR award during the five year period of this contract
shall remain protected through the protection period of that
subsequent SBIR award. After the expiration
[[Page 59452]]
of the applicable protection period, the Government shall have
unlimited rights pursuant to paragraph (b)(1)(vi) of this clause.
(6) Negotiated license rights.
(i) SBIR Data. The SBIR Data rights license granted to the
Government under paragraph (b)(5) of this clause may, after award,
be modified or transferred by mutual agreement only in writing under
a separate agreement.
(ii) Technical Data and Computer Software other than SBIR Data.
(A) The standard license rights granted to the Government under
paragraphs (b)(1) through (b)(3) and (b)(5) of this clause
(including the period during which the Government shall have
Government purpose rights) may be modified only by mutual written
agreement.
(B) If either party desires to negotiate specialized license
rights in technical data or computer software, the other party
agrees to enter into negotiations for transferring such rights.
(iii) However, in no event may the negotiated license provide
the Government lesser rights than limited rights in technical data,
or restricted rights in computer software.
(iv) Any license rights negotiated under this paragraph shall be
identified in a license agreement attached to this contract.
(7) Prior Government rights. Technical data, including computer
software documentation, or computer software that will be delivered
or otherwise provided to the Government under this contract, in
which the Government has previously obtained rights shall be
delivered or provided with the pre-existing rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to access, use,
modify, release, perform, display, or disclose the technical data or
computer software have expired or no longer apply.
(8) Rights in derivative computer software or computer software
documentation. The Government shall retain its rights in the
unchanged portions of any technical data and computer software
delivered or otherwise provided under this contract that the
Contractor uses to prepare, or includes in, derivative technical
data or computer software.
(c) Contractor rights in technical data or computer software.
The Contractor retains all intellectual property rights for
technical data and computer software (including ownership) developed
under this contract except those granted to the Government as
specified under paragraph (b) of this clause.
(d) Third party copyrighted technical data and computer
software. (1) The Contractor shall not incorporate any third party
copyrighted technical data or computer software in the technical
data or computer software to be delivered or otherwise provided
under this contract unless--
(i) The Contractor has obtained, for the Government the license
rights necessary to perfect a license or licenses in the deliverable
technical data or computer software of the appropriate scope set
forth in paragraph (b) of this clause; or
(ii) The Contracting Officer has granted specific written
approval to do so.
(2) The Contractor shall ensure that any such license rights
obtained from third parties and granted to the Government are
identified and asserted pursuant to paragraph (f) of this clause,
and such technical data and computer software are appropriately
marked pursuant to paragraph (g) of this clause.
(e) Release from liability.
(1) The Contractor agrees that the Government, and other persons
to whom the Government may have released or disclosed technical data
or computer software delivered or otherwise provided under this
contract, shall have no liability for any release or disclosure of
technical data or computer software that are not marked to indicate
that these technical data or computer software are licensed data
subject to access, use, modification, reproduction, release,
performance, display, or disclosure restrictions.
(2) In the event that an authorized recipient of technical data
or computer software delivered or otherwise provided to the
Government under this contract engages in any unauthorized
activities with such technical data or computer software, the
Contractor agrees to--
(i) Release the Government from liability for any release or
disclosure of technical data or computer software made in accordance
with the Government's license rights granted pursuant to paragraph
(b) of this clause; and
(ii) Seek relief solely from the party who has improperly
accessed, used, modified, reproduced, released, performed,
displayed, or disclosed Contractor data marked with restrictive
legends.
(f) Identification and delivery of technical data or computer
software to be provided with restrictions. The Contractor shall not
deliver or otherwise provide any technical data or computer software
with restrictive markings unless the technical data or computer
software are listed in an Attachment to this contract in accordance
with--
(1) The provision at DFARS 252.227-7017, Pre-Award
Identification and Assertion of License Restrictions--Technical Data
and Computer Software; and
(2) The clause at DFARS 252.227-7018, Post-Award Identification
and Assertion of License Restrictions--Technical Data and Computer
Software.
(g) Marking requirements. The Contractor, and its subcontractors
or suppliers, shall assert restrictions on the Government's rights
to access, use, modify, reproduce, release, perform, display, or
disclose technical data or computer software to be delivered or
otherwise provided under this contract only by marking the
deliverable that is subject to restriction.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
all technical data and computer software with the appropriate
legends.
(i) The authorized legends shall be placed on each page of the
printed material or media containing the computer software or the
transmittal document or storage container to which the restrictions
apply. If only portions of a page are subject to the asserted
restrictions, the Contractor shall identify the restricted portions
(e.g., by circling or underscoring with a note or other appropriate
identifier).
(ii) Technical data or computer software transmitted directly
from one computer or computer terminal to another shall contain a
notice of asserted restrictions.
(iii) The Contractor shall not use instructions that interfere
with or delay the operation of the computer program in order to
display an authorized legend in computer software that will or might
be used in combat or situations that simulate combat conditions,
unless the Contracting Officer's written permission to deliver such
computer software has been obtained prior to delivery.
(iv) Reproductions of technical data or computer software, or
any portions thereof, subject to asserted restrictions shall also
include the asserted restrictions.
(2) Unlimited rights markings. Technical data or computer
software that is delivered or otherwise provided to the Government
with unlimited rights, and that is marked with a copyright legend
prescribed under 17 U.S.C. 401 or 402, shall also be marked as
follows:
The U.S. Government has Unlimited Rights in this technical data or
computer software pursuant to the clause at DFARS 252.227-7018. Any
reproduction of technical data or computer software, or portions
thereof, marked with this legend must also reproduce these markings.
(End of legend)
(3) SBIR data rights markings. Technical data or computer
software that is delivered or otherwise provided to the Government
with SBIR data rights shall be marked with the following legend:
SBIR DATA RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose technical data or computer software
marked with this legend are restricted during the protection period
described at paragraph (b)(5) of the Rights in Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program
clause contained in the above identified contract. The Government
has unlimited rights after the expiration of the protection period.
Any reproduction of technical data, computer software or portions
thereof marked with this legend must also reproduce the markings.
(End of legend)
(4) Limited rights markings. Technical data delivered or
otherwise provided to the Government with limited rights shall be
marked with the following legend:
LIMITED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
-----------------------------------------------------------------------
The Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (b)(2) of the Rights in Technical
[[Page 59453]]
Data and Computer Software--Small Business Innovative Research
(SBIR) Program clause contained in the above identified contract.
Any reproduction of technical data or portions thereof marked with
this legend must also reproduce the markings. Any person, other than
the Government, who has been provided access to such technical data
shall promptly notify the above named Contractor.
(End of legend)
(5) Restricted rights markings. Computer software delivered or
otherwise provided to the Government with restricted rights shall be
marked with the following legend:
RESTRICTED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
(End of legend)
(6) Negotiated license rights markings.
(i) Except as provided in paragraph (g)(6)(ii) of this clause,
technical data or computer software in which the Government's rights
stem from a negotiated license shall be marked with the following
legend:
NEGOTIATED LICENSE RIGHTS
The Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose this technical data or computer
software are restricted by Contract No. ----------(Insert contract
number)--------, License No. --------(Insert license identifier)----
----. Any reproduction of technical data, computer software, or
portions thereof marked with this legend must also reproduce the
markings.
(End of legend)
(ii) For purposes of marking, negotiated licenses do not include
Government purpose license rights acquired under a prior contract
(see paragraph (b)(7) of this clause).
(7) Pre-existing data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights in technical data or computer software, the Contractor may
mark such technical data or computer software with the appropriate
restrictive legend in accordance with the marking procedures in
paragraph (g)(1) of this clause.
(8) Except as provided in paragraph (g)(7) of this clause, only
the following legends are authorized under this contract:
(i) The SBIR data rights legend at paragraph (g)(3) of this
clause.
(ii) The limited rights legend at paragraph (g)(4) of this
clause.
(iii) The restricted rights legend at paragraph (g)(5) of this
clause, or the negotiated license rights legend at paragraph (g)(6)
of this clause.
(iv) A notice of copyright as prescribed under 17 U.S.C. 401 or
402.
(h) Contractor procedures and records. Throughout performance of
this contract, the Contractor, and its subcontractors or suppliers
that will deliver technical data or computer software with other
than unlimited rights, shall--
(1) Assure that restrictive markings are used only when
authorized by the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data or computer software
delivered under this contract.
(i) Removal of unjustified and nonconforming markings.
(1) Unjustified technical data or computer software markings.
The rights and obligations of the parties regarding the validation
of restrictive markings on technical data or computer software
provided or to be provided under this contract are contained in the
clause at 252.227-7037. Notwithstanding any provision of this
contract concerning inspection and acceptance, the Government may
ignore or, at the Contractor's expense, correct or strike a marking
if a restrictive marking is determined to be unjustified.
(2) Nonconforming technical data or computer software markings.
A nonconforming marking is a marking placed on technical data or
computer software delivered or otherwise provided to the Government
under this contract that is not in the format authorized by this
contract. Correction of nonconforming markings is not subject to the
clause at 252.227-7037. If the Contracting Officer notifies the
Contractor of a nonconforming marking and the Contractor fails to
remove or correct such markings within sixty (60) days, the
Government may ignore or, at the Contractor's expense, remove or
correct any nonconforming markings.
(j) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(k) Applicability to subcontractors or suppliers.
(1) The Contractor shall assure that the rights afforded its
subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321,
15 U.S.C. 638, and the identification, assertion, and delivery
processes required by paragraph (f) of this clause are recognized
and protected.
(2) Whenever any technical data or computer software is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall--
(i) Use--
(A) This same clause in the subcontract or other contractual
instrument with a small business concern for SBIR data; or
(B) The appropriate clause prescribed at DFARS 227.7104-8 with
other than a small business concern, or for commercial or other non
SBIR data; and
(ii) Require its subcontractors or suppliers to do so at all
tiers, without alteration, except to identify the parties as
follows:
(A) References to the Government are not changed.
(B) The subcontractor or supplier has all rights and obligations
of the contractor in the clause; and
(iii) If the clause used with a subcontractor or supplier is not
a clause that is used in the prime contract (or higher-tier
subcontract), the Contractor shall notify the Government of the use
of the clause and, if appropriate pursuant to DFARS 227.7104-8(d),
the Contracting Officer will modify the prime contract to include
the new clause.
(3) No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher-tier subcontractor's or
supplier's rights in a subcontractor's or supplier's technical data
or computer software.
(4) Technical data required to be delivered by a subcontractor
or supplier shall normally be delivered to the next higher-tier
Contractor, subcontractor, or supplier. However, when there is a
requirement in the prime contract for technical data which may be
submitted with other than unlimited rights by a subcontractor or
supplier, then said subcontractor or supplier may fulfill its
requirement by submitting such technical data directly to the
Government, rather than through a higher-tier contractor,
subcontractor, or supplier.
(5) The Contractor and higher-tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in technical data or computer software from their
subcontractors or suppliers.
(6) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in technical
data or computer software as an excuse for failing to satisfy its
contractual obligation to the Government.
(End of clause)
ALTERNATE I (DATE)
As prescribed in 227.7104-8(b)(2), add the following paragraph
(l) to the basic clause:
(l) Publication for sale.
(1) This paragraph applies only to technical data or computer
software delivered to the Government with SBIR data rights.
(2) Upon expiration of the SBIR data rights, the Government will
not exercise its right to publish or authorize others to publish an
item of technical data or computer software identified in this
contract as being subject to paragraph (l) of this clause if the
Contractor, prior to the expiration of the SBIR data rights, or
within two years following delivery of the technical data or
computer software, or within two years following the removal of any
national security or export control restrictions, whichever is
later, publishes such technical data or computer software and
promptly notifies the Contracting Officer in writing of such
publication(s). Any such publication(s) shall include a notice
identifying the number of this contract and the Government's rights
in the published data.
(3) This limitation on the Government's right to publish for
sale shall continue as long as the technical data or computer
software are reasonably available to the public for purchase.
23. Section 252.227-7015 is revised to read as follows:
252.227-7015 Rights in technical data and computer software--
commercial.
As prescribed in 227.7104-8(c), use the following clause:
[[Page 59454]]
RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE--COMMERCIAL (DATE)
(a) Definitions. As used in this clause--
(1) Commercial computer software means computer software that is
a commercial item.
(2) Commercial technical data means technical data that is or
pertains to a commercial item.
(3) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
(4) Computer program means a set of instructions, rules,
routines, or statements, regardless of the form or method of
recording, that is capable of causing a computer to perform a
specific operation or series of operations. Examples include
firmware, object code, and any form of executable code.
(5) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be compiled to generate a computer program. The
term does not include computer databases or computer software
documentation.
(6) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(7) Form, fit, and function data means technical data that
describes the required overall physical, functional, and performance
characteristics (along with the qualification requirements, if
applicable) of an item or process to the extent necessary to permit
identification of physically and functionally interchangeable items.
(8) Technical data means recorded information (regardless of the
form or method of the recording) of a scientific or technical nature
(including computer databases and computer software documentation).
The term does not include computer software or financial,
administrative, cost or pricing, or management data or other
information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data. (See 10 U.S.C. 2302(4)).
(9) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose technical data or
computer software in whole or in part, in any manner, and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Government rights. The Government shall have the following
license rights in commercial computer software, commercial computer
software documentation, and technical data relating to a commercial
item that is delivered under this contract:
(1) Standard commercial license rights. Except as provided in
paragraphs (b)(2) through (b)(4) of this clause, the Government
shall have the same rights as those in the standard commercial
license customarily provided to the public unless such rights are
inconsistent with Federal procurement law. Any portions of the
standard commercial license that are inconsistent with Federal
procurement law shall be considered stricken from the license and
the remaining portions of the license shall remain in effect. The
parties will promptly enter into negotiations to resolve any issues
raised by the elimination of license terms or conditions that are
inconsistent with Federal procurement law. The resulting license
shall be attached to the contract.
(2) Government right to require up to unlimited rights in
certain types of technical data. Notwithstanding paragraph (b)(1) of
this clause, the Government shall have the right to require the
Contractor to grant additional rights (up to and including unlimited
rights) pursuant to paragraph (b)(4) of this clause, in technical
data that--
(i) Have been provided to the Government or others without
restrictions on--
(A) Further disclosure other than a release or disclosure
resulting from the sale, transfer, or other assignment of interest
in the technical data to another party; or
(B) The sale or transfer of some or all of a business entity or
its assets to another party;
(ii) Are form, fit, and function data;
(iii) Are a correction or change to technical data furnished to
the Contractor by the Government;
(iv) Are necessary for operation, maintenance, installation, or
training (other than detailed manufacturing or process data); or
(v) Have been provided to the Government under a prior contract
or licensing agreement through which the Government has acquired the
rights to access, use, modify, reproduce, release, perform, display,
or disclose the data without restrictions.
(3) Government's minimum rights in technical data.
Notwithstanding any limitations in the standard commercial license
granted by paragraph (b)(1) of this clause, the Government may
access, use, modify, reproduce, release, perform, display, or
disclose commercial technical data (including computer software
documentation) within the Government. However, unless specifically
authorized by the commercial license granted under paragraph (b)(1)
of this clause or a negotiated license under paragraph (b)(4) of
this clause, the Government shall not--
(i) Use the technical data to manufacture additional quantities
of the commercial items; or
(ii) Release, perform, display, disclose, or authorize access or
use of the technical data outside the Government without the
Contractor's written permission unless--
(A) The release, disclosure or permitted access or use is--
(1) Necessary for emergency repair or overhaul of the commercial
items delivered or otherwise provided under this contract; or
(2) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or access or use of such
data by, a foreign government that is in the interest of the
Government and is required for evaluational or informational
purposes;
(B) Prior to the release or disclosure, the intended recipient--
(1) Has executed the use and non-disclosure agreement at
227.7107-2, with its required attachment(s); or
(2) Is a Government contractor receiving access to the technical
data for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause; and
(C) The Contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, access, or use.
(4) Negotiated license rights.
(i) Except as permitted by paragraph (b)(4)(ii) of this clause,
the standard license rights granted to the Government under
paragraphs (b)(1) through (b)(3) of this clause may be modified only
by mutual written agreement.
(ii) For the types of data covered by paragraph (b)(2) of this
clause, the Government may require the Contractor to grant the
Government license rights up to and including unlimited rights;
however, if the Government requires such additional rights under
this paragraph, the Contractor shall be entitled to reasonable
compensation for granting any rights in addition to those provided
in the Contractor's standard commercial license. In all other cases,
if either party desires to negotiate specialized license rights in
technical data or computer software, the other party agrees to enter
into negotiations.
(iii) However, in no event may the negotiated license provide
the Government lesser rights than specified at paragraph (b)(3) of
this clause.
(iv) Any license rights negotiated under this paragraph of the
clause shall be identified in a license agreement attached to this
contract.
(c) Contractor Rights. The Contractor retains all intellectual
property rights (including ownership) not granted to the Government
in paragraph (b) of this clause.
(d) Restrictive Markings and Notices Required. All commercial
technical data and commercial computer software to be delivered or
otherwise provided to the Government with restrictions are--
(1) Identified in an attachment to this contract, in accordance
with--
(i) The provision at DFARS 252.227-7017, Pre-Award
Identification and Assertion of License Restrictions--Technical Data
and Computer Software; and
(ii) The clause at DFARS 252.227-7018, Post-Award Identification
and Assertion of License Restrictions--Technical Data and Computer
Software; and
(2) Marked to indicate that these technical data or computer
software are licensed
[[Page 59455]]
subject to access, use, modification, reproduction, release,
performance, display, or disclosure restrictions. The form of the
marking or notice must be consistent with best commercial practices,
and must accurately describe the Government's rights. Validation of
the marking is governed by DFARS 252.227-7037, Validation of
Restrictive Markings on Technical Data and Computer Software.
(e) Release from liability.
(1) The Contractor agrees that the Government, and other persons
to whom the Government may have released or disclosed technical data
or computer software delivered or otherwise furnished under this
contract, shall have no liability for any release or disclosure of
technical data or computer software that are not marked to indicate
that these technical data or computer software are licensed data
subject to use, modification, reproduction, release, performance,
display, or disclosure restrictions.
(2) In the event that an authorized recipient of technical data
or computer software delivered or otherwise provided to the
Government under this contract engages in any unauthorized
activities with such technical data or computer software, the
Contractor agrees to--
(i) Release the Government from liability for any release or
disclosure of technical data or computer software made in accordance
with the Government's license rights granted pursuant to paragraph
(b) of this clause; and
(ii) Seek relief solely from the party who has improperly used,
modified, reproduced, released, performed, displayed, or disclosed
Contractor data marked with restrictive legends.
(f) Applicability to subcontractors or suppliers.
(1) The Contractor shall recognize and protect the rights
afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10
U.S.C. 2321, and the identification, assertion, and delivery
processes of paragraph (d) of this clause.
(2) Whenever any technical data or computer software will be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause (or other appropriate clause(s) prescribed at DFARS 227.7104-
8) in the subcontract or other contractual instrument, and require
its subcontractors or suppliers to do so, without alteration, except
to identify the parties as follows:
(i) References to the Government are not changed.
(ii) The subcontractor or supplier has all rights and
obligations of the Contractor in the clause.
(3) If the clause used with a subcontractor or supplier is not a
clause that is used in the prime contract (or higher-tier
subcontract), the Contractor shall notify the Government of the use
of the clause and, if appropriate pursuant to DFARS 227.7104-8(d),
the Contracting Officer will modify the prime contract to include
the new clause.
(End of clause)
ALTERNATE I (DATE)
As prescribed in 227.7104-8(c)(2), add the following paragraphs
(a)(10) and (b)(5) to the basic clause:
(a)(10) Vessel design means the design of a vessel, boat, or
craft, and its components, including the hull, decks,
superstructure, and the exterior surface shape of all external
shipboard equipment and systems. The term includes designs covered
by 10 U.S.C. 7317, and designs protectable under 17 U.S.C. 1301, et
seq.
(b)(5) Vessel designs. For a vessel design (including a vessel
design embodied in a useful article) that is developed or delivered
under this contract, the Government shall have the right to make and
have made any useful article that embodies the vessel design, to
import the article, to sell the article, and to distribute the
article for sale or to use the article in trade, to the same extent
that the Government is granted rights in the technical data
pertaining to the vessel design.
24. Section 252.227-7016 is revised to read as follows:
252.227-7016 Rights in bid or proposal information.
As prescribed in 227.7105-3(a), use the following clause:
RIGHTS IN BID OR PROPOSAL INFORMATION (DATE)
(a) Definitions. As used in this clause--
(1) Offeror includes an offeror's subcontractors or suppliers,
or potential subcontractors or suppliers, at any tier.
(2) Computer software and technical data are defined in the
following clause(s) contained in this solicitation:
(i) 252.227-7013, Rights in Technical Data and Computer
Software--Noncommercial;
(ii) 252.227-7014, Rights in Technical Data and Computer
Software--Small Business Innovation Research (SBIR) Program; or
(iii) 252.227-7015, Rights in Technical Data and Computer
Software--Commercial
(b) Government rights prior to contract award. By submission of
its offer, the offeror agrees that the Government--
(1) May reproduce the bid or proposal, or any portions thereof,
to the extent necessary to evaluate the offer.
(2) Except as provided in paragraph (d) of this clause, shall
use information contained in the bid or proposal only for
evaluational purposes and shall not disclose, directly or
indirectly, such information to any person including potential
evaluators, unless that person has been authorized by the head of
the agency, his or her designee, or the Contracting Officer to
receive such information.
(c) Government rights subsequent to contract award. The
Contractor agrees--
(1) Except as provided in paragraphs (c)(2), (d), and (e) of
this clause, the Government shall have the rights to access, use,
modify, reproduce, release, perform, display, or disclose
information contained in the Contractor's bid or proposal within the
Government. The Government shall not release, perform, display, or
disclose such information outside the Government without the
Contractor's written permission.
(2) The Government's right to access, use, modify, reproduce,
release, perform, display, or disclose information that is technical
data or computer software required to be delivered under this
contract are determined by the Rights in Technical Data and Computer
Software--Noncommercial, Rights in Technical Data and Computer--
Commercial, or Rights in Technical Data and Computer Software-Small
Business Innovative Research (SBIR) Program clause(s) of this
contract.
(d) Government-furnished information. The Government's rights
with respect to technical data or computer software contained in the
Contractor's bid or proposal that were provided to the Contractor by
the Government are subject only to restrictions on access, use,
modification, reproduction, release, performance, display, or
disclosure, if any, imposed by the developer or licensor of such
technical data or computer software.
(e) Information available without restrictions. The Government's
rights to access, use, modify, reproduce, release, perform, display,
or, disclose information contained in a bid or proposal, including
technical data or computer software, and to permit others to do so,
shall not be restricted in any manner if such information has been
released or disclosed to the Government or to other persons without
restrictions other than a release or disclosure resulting from the
sale, transfer, or other assignment of interest in the information
to another party or the sale or transfer of some or all of a
business entity or its assets to another party.
(f) Flowdown. The Contractor shall include this clause in all
subcontracts or similar contractual instruments and require its
subcontractors or suppliers to do so without alteration, except to
identify the parties as follows:
(1) References to the Government are not changed; and
(2) The subcontractor or supplier has all rights and obligations
of the Contractor in the clause.
(End of clause)
25. Section 252.227-7017 is revised to read as follows:
252.227-7017 Pre-award identification and assertion of license
restrictions--technical data and computer software.
As prescribed in 227.7105-3(b), use the following provision:
PRE-AWARD IDENTIFICATION AND ASSERTION OF LICENSE RESTRICTIONS--
TECHNICAL DATA AND COMPUTER SOFTWARE (DATE)
(a) Definitions. As used in this provision--
(1) Commercial computer software means computer software that is
a commercial item.
(2) Commercial technical data means technical data that is or
pertains to a commercial item.
(3) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
[[Page 59456]]
(4) Computer program means a set of instructions, rules,
routines, or statements, regardless of the form or method of
recording, that is capable of causing a computer to perform a
specific operation or series of operations. Examples include
firmware, object code, and any form of executable code.
(5) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be complied to generate a computer program. The
term does not include computer database or computer software
documentation.
(6) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(7) Developed means that--
(i) An item or process exists and is workable. Workability is
generally established when the item or process has been analyzed or
tested sufficiently to demonstrate to reasonable people skilled in
the art that there is a high probability that it will operate as
intended. Whether, how much, and what type of analysis or testing is
required to establish workability depends on the nature of the item
or process, and the state of the art. To be considered
``developed,'' the item or process need not be at the stage where it
could be offered for sale or sold on the commercial market, nor must
the item or process be actually reduced to practice within the
meaning of Title 35 of the United States Code.
(ii) A computer program has been successfully operated in a
computer and tested to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the program can
reasonably be expected to perform its intended purpose;
(iii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the computer software can
reasonably be expected to perform its intended purpose; or
(iv) Computer software user's documentation required to be
delivered or otherwise provided under a contract has been written,
in any medium, in sufficient detail to comply with requirements
under that contract.
(8) Developed exclusively at private expense means development
was accomplished entirely with costs not paid or reimbursed by the
Government, or costs paid or reimbursed by the Government through
indirect cost pools, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at Government,
private, or mixed expense.
(9) Government purpose means any activity in which the United
States Government is a party.
(i) The term includes competitive procurement and any agreements
or contracts with, or sales or transfers to, international or multi-
national defense organizations or foreign governments.
(ii) The term does not include the rights to access, use,
modify, reproduce, release, perform, display, or disclose technical
data for commercial purposes or to authorize others to do so.
(10) Government purpose rights means the rights to--
(i) Access, use, modify, reproduce, release, perform, display,
or disclose technical data or computer software within the
Government without restriction; and
(ii) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to access, use, modify, reproduce, release,
perform, display, or disclose that data for Government purposes.
However, the Government shall not release or disclose the technical
data or computer software outside the Government unless--
(A) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient has
executed the non-disclosure agreement at 227.7107-2 with its
required attachments; or
(B) The recipient is a Government contractor receiving access to
the technical data or computer software for performance of a
Government contract that contains the clause at DFARS 252.227-7025
and the attachments required by that clause.
(11) Limited rights means the rights to access, use, modify,
reproduce, release, perform, display, or disclose technical data, in
whole or in part, within the Government. The Government may not,
without the written permission of the party asserting limited
rights, release or disclose the technical data outside the
Government, use the technical data for manufacture, or authorize the
technical data to be accessed or used by another party, unless--
(i) The reproduction, release, disclosure, access, or use is--
(A) Necessary for emergency repair and overhaul;
(B) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or access or use of such
data by, a foreign government that is in the interest of the
Government and is required for evaluational or informational
purposes; or
(C) A release or disclosure of computer software design
documentation to, or access by, a contractor or subcontractor
performing a service contract (see 37.101 of the Federal Acquisition
Regulation) in support of this or a related contract to use such
computer software documentation to diagnose and correct deficiencies
in a computer program, to modify computer software to enable a
computer program to be combined with, adapted to, or merged with
other computer programs or when necessary to respond to urgent
tactical situations or for emergency repair or overhaul of items or
processes;
(ii) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient--
(A) Has executed the use and non-disclosure agreements at
227.7107-2, with its required attachment(s); or
(B) Is a Government contractor receiving access to the technical
data for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(iii) The recipient for emergency repair or overhaul is required
to destroy the technical data and all copies in its possession
promptly following completion of the emergency repair or overhaul,
and to notify the Contractor that the data or computer software have
been destroyed; and
(iv) The Contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, access, or
use.
(12) Noncommercial computer software means computer software
that does not qualify as commercial computer software.
(13) Noncommercial technical data means technical data that does
not qualify as commercial technical data.
(14) Offeror includes an offeror's subcontractors or suppliers,
or potential subcontractors or suppliers, at any tier.
(15) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Install and use computer software on one computer at a time.
The computer software may not be time shared or accessed by more
than one terminal or central processing unit unless otherwise
permitted by this contract;
(ii) Transfer computer software within the Government without
further permission of the Contractor so long as the transferred
computer software remain subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified computer software only as provided in
paragraphs (a)(18)(i) and (iii) of this clause; and
(B) Not release or disclose the modified computer software
except as provided in paragraphs (a)(18)(ii), (v), and (vi) of this
clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
[[Page 59457]]
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations or for emergency repair or
overhaul of items or processes, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors--
(1) Have executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Are Government contractors receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(18)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient--
(1) Has executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Is a Government contractor receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, and the attachments required by that
clause;
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(C) The Government shall require a recipient of restricted
rights computer software for emergency repair or overhaul to destroy
any copies of the computer software in its possession promptly
following completion of the emergency repair/overhaul and to notify
the Contractor that the computer software has been destroyed.
(16) SBIR data means all--
(i) Technical data--
(A) Pertaining to items or processes developed under a Small
Business Innovation Research (SBIR) award; or
(B) Created under a SBIR award that does not require the
development of items or processes; and
(ii) Computer software developed under a SBIR award.
(17) SBIR data rights mean the Government's rights during the
SBIR data protection period (specified at 252.227-7014(b)(5)(ii)) to
access, use, modify, reproduce, release, perform, display, or
disclose SBIR data as follows:
(i) Limited rights in SBIR data that is technical data; and
(ii) Restricted rights in SBIR data that is computer software.
(18) Technical data means recorded information (regardless of
the form or method of the recording) of a scientific or technical
nature (including computer databases and computer software
documentation). The term does not include computer software or
financial, administrative, cost or pricing, or management data or
other information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data.
(19) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose technical data or
computer software in whole or in part, in any manner and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Scope. The identification and assertion requirements in this
provision apply only to technical data and computer software to be
delivered or otherwise provided with other than unlimited rights.
(c) Pre-award identification. Offers submitted in response to
this solicitation shall identify--all technical data or computer
software that the offeror asserts will be delivered or otherwise
provided to the Government with restrictions on access, use,
modification, reproduction, release, performance, display, or
disclosure. The offeror's pre-award identification shall be
submitted as an attachment to its offer and shall contain the
following information:
(1) Title. Place the following title at the top of the first
page of the attachment: ``PRE-AWARD IDENTIFICATION AND ASSERTION OF
LICENSE RESTRICTIONS--TECHNICAL DATA AND COMPUTER SOFTWARE.''
(2) Statement of Assertion. Include the following statement:
``The offeror asserts for itself, or the persons identified in
paragraph (4)(iv) of this attachment, that the Government's rights
to access, use, modify, reproduce, release, perform, display, or
disclose only the following technical data or computer software
should be restricted:''
(3) Identification of the technical data or computer software to
be delivered or otherwise provided with restrictions. For technical
data (other than computer software documentation) pertaining to
items or processes, identify both the deliverable technical data and
each such item or process as specifically as possible (e.g., by
referencing specific sections of the proposal, data item numbers or
item numbers, or specific technology or components). For computer
software or computer software documentation, identify the software
or documentation by specific name or module or item number. The
offeror must identify all technical data or computer software that
it asserts or anticipates will be delivered or otherwise provided
with restrictions, including cases in which the offeror is unable to
provide a complete listing of the detailed information required by
paragraph (c)(4) of this provision (e.g., when the specific
restrictions or identity of the entity asserting restrictions is not
yet known).
(4) Detailed description of the asserted restrictions. For each
of the technical data or computer software identified above in
paragraph (c)(3) of this provision, identify the following
information:
(i) Asserted rights. Identify the asserted rights category for
the technical data or computer software as specified in paragraph
(b) of the applicable clauses.
(A) For noncommercial technical data or noncommercial computer
software, the applicable clause(s) are at DFARS 252.227-7013, Rights
in Technical Data and Computer Software-Noncommercial, or DFARS
252.227-7014, Rights in Technical Data and Computer Software--Small
Business Innovation Research (SBIR) Program (e.g., Government
purpose rights; limited rights; restricted rights; negotiated
licenses; or rights under prior Government contracts, including SBIR
data rights for which the protection period has not expired); and
(B) For commercial technical data or computer software, the
applicable clause is at 252.227-7015, Rights in Technical Data and
Computer Software--Commercial. (e.g., a standard commercial license,
a negotiated license, or the Government's minimum rights in or
technical data).
(ii) Copies of negotiated, commercial, and other non-standard
licenses. The offeror shall attach to its offer for each listed item
copies of all proposed negotiated license(s), the offeror's standard
commercial license(s), and any other asserted restrictions other
than Government purpose rights; limited rights; restricted rights;
rights under prior Government contracts, including SBIR data rights
for which the protection period has not expired; or Government's
minimum rights as specified in the clause at 252.227-7015, Rights in
Technical Data and Computer Software--Commercial.
(iii) Specific basis for assertion. Identify the specific basis
for the assertion. For example:
(A) Development at private expense, either exclusively or
partially. For technical data, development refers to development of
the item or process to which the data pertains (see paragraphs
(a)(8) through (a)(11) of the clause at DFARS 252.227-7013). For
computer software, development refers to the development of the
computer software (see paragraphs (a)(8) through (a)(11) of the
clause at DFARS 252.227-7013). Indicate whether development was
accomplished exclusively or partially at private expense.
(B) Rights under a prior Government contract, including SBIR
data rights for which the protection period has not expired (see
paragraphs (a)(7) through (a)(8) of the clause at DFARS 252.227-7014
and paragraph (c)(4)(v) of this provision).
(C) Standard commercial license customarily provided to the
public (see paragraph (b)(1) of the clause at DFARS 252.227-7015).
(D) Negotiated license rights (see paragraph (c)(4)(ii) of this
provision).
(iv) Entity asserting restrictions. Identify the corporation,
partnership, individual, or other person, as appropriate, asserting
the restrictions.
(v) Previously delivered technical data or computer software.
The offeror shall identify the technical data or computer software
that are identical or substantially similar to
[[Page 59458]]
technical data or computer software that the offeror has produced
for, delivered to, or is obligated to deliver or otherwise provide
to the Government under any other contract or subcontract. The
offeror need not identify commercial technical data or computer
software that were, or will be, delivered or otherwise provided
subject to a standard commercial license.
(5) Signature(s). The attachment must--
(i) Be signed and dated by--
(A) An official authorized to contractually obligate the
offeror; and
(B) An official authorized to obligate each entity or person
identified above in paragraph (4)(iv) of this attachment, except
that no signature is required under this paragraph (B) when the item
being provided is commercial technical data or commercial computer
software and is being offered with the standard commercial license
rights.
(ii) Include the printed name and title of each official.
(d) Supplemental information. When requested by the Contracting
Officer, the offeror shall provide sufficient information to enable
the Contracting Officer to evaluate the offeror's assertions.
Sufficient information should include, but is not limited to, the
following:
(1) The contract number under which the technical data or
computer software were produced;
(2) The contract number under which, and the name and address of
the organization to whom, the technical data or computer software
were most recently delivered or will be delivered; and
(3) Identification of the expiration date for any limitations on
the Government's rights to access, use, modify, reproduce, release,
perform, display, or disclose the technical data or computer
software, when applicable.
(e) Ineligibility for award. An offeror's failure to submit,
complete, or sign the identifications and assertions required by
paragraph (c) of this provision with its offer may render the offer
ineligible for award.
(f) Award. If the offeror is awarded the contract, the
Contracting Officer will attach the offeror's list of assertions to
the resulting contract.
(g) Post-award amendment of assertions. After contract award,
amendments to the offeror's assertions may only be accomplished in
accordance with the clause at 252.227-7018 Post-Award Identification
and Assertion of License Restrictions-Technical Data and Computer
Software. Alternatively, a modified list of assertions may be
included by mutual agreement.
(h) Applicability to subcontractors and suppliers. Whenever any
technical data or computer software will be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the offeror shall use this same provision in the
subcontract or other contractual instrument, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties as follows:
(1) References to the Government are not changed; and
(2) The subcontractor or supplier has all rights and obligations
of the offeror in the provision.
(End of provision)
26. Section 252.227-7018 is revised to read as follows:
252.227-7018 Post-award identification and assertion of license
restrictions--technical data and computer software.
As prescribed in 227.7105-3(c), use the following clause:
POST-AWARD IDENTIFICATION AND ASSERTION OF LICENSE RESTRICTIONS--
TECHNICAL DATA AND COMPUTER SOFTWARE (DATE)
(a) Definitions. As used in this clause--
(1) Commercial computer software means computer software that is
a commercial item.
(2) Commercial technical data means technical data that is or
pertains to a commercial item.
(3) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
(4) Computer program means a set of instructions, rules,
routines, or statements, regardless of the form or method of
recording, that is capable of causing a computer to perform a
specific operation or series of operations. Examples include
firmware, object code, and any form of executable code.
(5) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be complied to generate a computer program. The
term does not include computer database or computer software
documentation.
(6) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(7) Contractor includes the Contractor's subcontractors or
suppliers, or potential subcontractors or suppliers, at any tier.
(8) Developed means that--
(i) An item or process exists and is workable. Workability is
generally established when the item or process has been analyzed or
tested sufficiently to demonstrate to reasonable people skilled in
the art that there is a high probability that it will operate as
intended. Whether, how much, and what type of analysis or testing is
required to establish workability depends on the nature of the item
or process, and the state of the art. To be considered developed,
the item or process need not be at the stage where it could be
offered for sale or sold on the commercial market, or must the item
or process be actually reduced to practice within the meaning of
title 35 of the United States Code.
(ii) A computer program has been successfully operated in a
computer and tested to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the program can
reasonably be expected to perform its intended purpose;
(iii) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the computer software can
reasonably be expected to perform its intended purpose; or
(iv) Computer software user's documentation required to be
delivered or otherwise provided under a contract has been written,
in any medium, in sufficient detail to comply with requirements
under that contract.
(9) Developed exclusively at private expense means development
was accomplished entirely with costs not paid or reimbursed by the
Government, or costs paid or reimbursed by the Government through
indirect cost pools, or any combination thereof.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) Under fixed-price contracts, when total costs are greater
than the firm-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at Government,
private, or mixed expense.
(10) Government purpose means any activity in which the United
States Government is a party.
(i) The term includes competitive procurement and any agreements
or contracts with, or sales or transfers to, international or multi-
national defense organizations or foreign governments.
(ii) The term does not include the rights to access, use,
modify, reproduce, release, perform, display, or disclose technical
data for commercial purposes or to authorize others to do so.
(11) Government purpose rights means the rights to--
(i) Access, use, modify, reproduce, release, perform, display,
or disclose technical data or computer software within the
Government without restriction; and
(ii) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to access, use, modify, reproduce, release,
perform, display, or disclose that data for Government purposes.
However, the Government shall not release or disclose the technical
data or computer software outside the Government unless--
(A) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient has
executed the non-disclosure agreement at 227.7107-2 with its
required attachments; or
(B) The recipient is a Government contractor receiving access to
the technical
[[Page 59459]]
data or computer software for performance of a Government contract
that contains the clause at DFARS 252.227-7025 and the attachments
required by that clause.
(12) Limited rights means the rights to access, use, modify,
reproduce, release, perform, display, or disclose technical data, in
whole or in part, within the Government. The Government may not,
without the written permission of the party asserting limited
rights, release or disclose the technical data outside the
Government, use the technical data for manufacture, or authorize the
technical data to be accessed or used by another party, unless--
(i) The reproduction, release, disclosure, access, or use is--
(A) Necessary for emergency repair and overhaul;
(B) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or access or use of such
data by, a foreign government that is in the interest of the
Government and is required for evaluational or informational
purposes; or
(C) A release or disclosure of computer software design
documentation to, or access by, a contractor or subcontractor
performing a service contract (see 37.101 of the Federal Acquisition
Regulation) in support of this or a related contract to use such
computer software documentation to diagnose and correct deficiencies
in a computer program, to modify computer software to enable a
computer program to be combined with, adapted to, or merged with
other computer programs or when necessary to respond to urgent
tactical situations or for emergency repair or overhaul of items or
processes;
(ii) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient--
(A) Has executed the use and non-disclosure agreements at
227.7107-2, with its required attachment(s); or
(B) Is a Government contractor receiving access to the technical
data for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(iii) The recipient for emergency repair or overhaul is required
to destroy the technical data and all copies in its possession
promptly following completion of the emergency repair or overhaul,
and to notify the Contractor that the data or computer software have
been destroyed; and
(iv) The Contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, access, or
use.
(13) Noncommercial computer software means computer software
that does not qualify as commercial computer software.
(14) Noncommercial technical data means technical data that does
not qualify as commercial technical data.
(15) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Install and use computer software on one computer at a time.
The computer software may not be time shared or accessed by more
than one terminal or central processing unit unless otherwise
permitted by this contract;
(ii) Transfer computer software within the Government without
further permission of the Contractor so long as the transferred
computer software remain subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified computer software only as provided in
paragraphs (a)(18)(i) and (iii) of this clause; and
(B) Not release or disclose the modified computer software
except as provided in paragraphs (a)(18)(ii), (v), and (vi) of this
clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations or for emergency repair or
overhaul of items or processes, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors--
(1) Have executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Are Government contractors receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(18)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient--
(1) Has executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Is a Government contractor receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, and the attachments required by that
clause;
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(C) The Government shall require a recipient of restricted
rights computer software for emergency repair or overhaul to destroy
any copies of the computer software in its possession promptly
following completion of the emergency repair/overhaul and to notify
the Contractor that the computer software has been destroyed.
(16) SBIR data means all--
(i) Technical data--
(A) Pertaining to items or processes developed under a Small
Business Innovation Research (SBIR) award; or
(B) Created under a SBIR award that does not require the
development of items or processes; and
(ii) Computer software developed under a SBIR award.
(17) SBIR data rights mean the Government's rights during the
SBIR data protection period (specified at 252.227-7014(b)(5)(ii)) to
access, use, modify, reproduce, release, perform, display, or
disclose SBIR data as follows:
(i) Limited rights in SBIR data that is technical data; and
(ii) Restricted rights in SBIR data that is computer software.
(18) Technical data means recorded information (regardless of
the form or method of the recording) of a scientific or technical
nature (including computer databases and computer software
documentation). The term does not include computer software or
financial, administrative, cost or pricing, or management data or
other information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data.
(19) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose technical data or
computer software in whole or in part, in any manner and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Scope. The identification and assertion requirements in this
clause apply only to technical data and computer software to be
delivered with other than unlimited rights.
(c) Pre-award assertion list. This contract contains the list of
all deliverable technical data or computer software that the
Contractor asserted should be delivered or otherwise provided to the
Government with restrictions pursuant to the provision at 252.227-
7017, Pre-Award Identification and Assertion of License
Restrictions--Technical Data and Computer Software.
(d) Restrictions on delivery. Except as permitted by paragraph
(e) of this clause, Contractors shall not deliver or otherwise
provide any technical data or computer software with restrictive
markings unless the technical data or computer software is
identified in the list of assertions referenced in paragraph (c) of
this clause.
(e) Post-award assertions.
(1) Post-award assertions may be identified after award only
when based on--
(i) New information; or
(ii) Inadvertent omissions, unless the inadvertent omissions
would have materially affected the source selection decision.
(2) The post-award identification and assertion shall be
submitted to the
[[Page 59460]]
Contracting Officer as soon as practicable and shall be prior to the
scheduled date for delivery of the technical data or computer
software.
(f) Form of contractor's post-award assertions. Contractor's
post-award assertions shall be submitted as identifications in a
separate attachment. A pre-award identification may be submitted as
a post-award identification only if the pre-award identification is
being amended. Contractor's post-award identification shall contain
the following information:
(1) Title. Place the following title at the top of the first
page of the attachment: ``POST-AWARD IDENTIFICATION AND ASSERTION OF
LICENSE RESTRICTIONS--TECHNICAL DATA AND COMPUTER SOFTWARE.''
(2) Statement of Assertion. Include the following statement(s):
``The Contractor asserts for itself, or the persons identified in
paragraph (4)(iv) of this clause, that the Government's rights to
access, use, modify, reproduce, release, perform, display, or
disclose only the following technical data or computer software
should be restricted:''
(3) Identification of the technical data or computer software to
be delivered or otherwise provided with restrictions. For technical
data (other than computer software documentation) pertaining to
items or processes, identify both the deliverable technical data and
each such item or process as specifically as possible (e.g., by
referencing specific sections of the proposal, data item numbers or
item numbers, or specific technology or components). For computer
software or computer software documentation, identify the computer
software or computer software documentation by specific name or
module or item number. The Contractor must identify all technical
data or computer software that it asserts or anticipates will be
delivered or otherwise provided with restrictions, including cases
in which the Contractor is unable to provide a complete listing of
the detailed information required by paragraph (f)(4) of this clause
(e.g., when the specific restrictions or identity of the entity
asserting restrictions is not yet known).
(4) Detailed description of the asserted restrictions. For each
of the technical data or computer software identified above in
paragraph (3) of this clause, identify the following information:
(i) Asserted rights. Identify the asserted rights category for
the technical data or computer software as specified in paragraph
(b) of the applicable clauses.
(A) For noncommercial technical data or noncommercial computer
software, the applicable clause(s) are at DFARS 252.227-7013, Rights
in Technical Data and Computer Software--Noncommercial, or DFARS
252.227-7014, Rights in Technical Data and Computer Software-Small
Business Innovation Research (SBIR) Program (e.g., Government
purpose rights; limited rights; restricted rights; negotiated
licenses; or rights under prior Government contracts, including SBIR
data rights for which the protection period has not expired); and
(B) For commercial technical data or computer software, the
applicable clause is at 252.227-7015, Rights in Technical Data and
Computer Software--Commercial (e.g., a standard commercial license,
a negotiated license, or the Government's minimum rights in
technical data).
(ii) Copies of negotiated, commercial, and other non-standard
licenses. Contractor shall provide copies of all proposed negotiated
license(s), Contractor's standard commercial license(s), and any
other asserted restrictions other than Government purpose rights;
limited rights; restricted rights; rights under prior Government
contracts, including SBIR data rights for which the protection
period has not expired; or Government's minimum rights as specified
in the clause at 252.227-7015, Rights in Technical Data and Computer
Software--Commercial.
(iii) Specific basis for assertion. Identify the specific basis
for the assertion. For example:
(A) Development at private expense, either exclusively or
partially. For technical data, development refers to development of
the item or process to which the data pertains (see paragraphs
(a)(8) through (a)(11) of the clause at DFARS 252.227-7013). For
computer software, development refers to the development of the
computer software (see paragraphs (a)(8) through (a)(11) of the
clause at DFARS 252.227-7013). Indicate whether development was
accomplished exclusively or partially at private expense.
(B) Rights under a prior Government contract, including SBIR
data rights for which the protection period has not expired (see
paragraphs (a)(7) through (a)(8) of the clause at DFARS 252.227-7014
and paragraph (4)(v) of this clause)
(C) Standard commercial license customarily provided to the
public (see paragraph (b)(1) of the clause at DFARS 252.227-7015).
(D) Negotiated license rights (see paragraph (4)(ii) of this
clause).
(iv) Entity asserting restrictions. Identify the corporation,
partnership, individual, or other person, as appropriate, asserting
the restrictions.
(v) Previously delivered technical data or computer software.
(A) Identification requirements. The Contractor shall indicate
the technical data or computer software that are identical or
substantially similar to technical data or computer software that
the Contractor has produced for, delivered to, or is obligated to
deliver or otherwise provide to the Government, under any other
contract or subcontract.
(B) Scope. This requirement applies to--
(1) All noncommercial technical data and noncommercial computer
software; and
(2) Only those commercial technical data and commercial computer
software that were, or will be, delivered or otherwise provided are
subject to a negotiated license.
(vi) Amendment or modification of pre-award assertions. Indicate
whether the asserted restrictions amend or affect any of the pre-
award assertions on the list specified in paragraph (c) of this
clause. If so, specifically identify what information contained
within the pre-award assertions is superseded by the amendments or
modifications.
(5) Signature(s). The list of assertions must--
(i) Be signed and dated by--
(A) An official authorized to contractually obligate the
Contractor; and
(B) An official authorized to obligate each entity or person
identified in paragraph (4)(iv) of this clause except that no
signature is required under this paragraph (B) when the item being
provided is commercial technical data or commercial computer
software and is being offered with the standard commercial license
rights.
(ii) Include the printed name and title of each official.
(g) Supplemental information. When requested by the Contracting
Officer, the Contractor shall provide sufficient information to
enable the Contracting Officer to evaluate the Contractor's original
and additional assertions. Sufficient information should include,
but is not limited to, the following:
(1) The contract number under which the technical data or
computer software were produced;
(2) The contract number under which, and the name and address of
the organization to whom, the technical data or computer software
were most recently delivered or will be delivered; and
(3) Any limitations on the Government's rights to access, use,
modify, reproduce, release, perform, display, or disclose the
technical data or computer software, including, when applicable,
identification of the earliest date the limitations expire.
(h) Withholding of payment. A Contractor's failure to submit,
complete, or sign the identifications and assertions required by
paragraphs (c) and (e) of this clause with its performance may
result in a withholding of payment under the clause at 252.227-7030,
Technical Data and Computer Software--Withholding of Payment.
(i) Applicability to subcontractors and suppliers. Whenever any
technical data or computer software will be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the Contractor shall use this same clause in the
subcontract or other contractual instrument, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties as follows:
(1) References to the Government are not changed; and
(2) The subcontractor or supplier has all rights and obligations
of the Contractor in the clause.
(End of clause)
252.227-7019 [Removed and reserved]
27. Section 252.227-7019 is removed and reserved.
28. Section 252.227-7020 is revised to read as follows:
252.227-7020 Rights in works--ownership.
As prescribed in 227.7202-3, use the following clause:
RIGHTS IN WORKS--OWNERSHIP (DATE)
(a) Definitions. As used in this clause--
[[Page 59461]]
(1) Architectural works means the design of a building, a
monument, or construction of similar nature as embodied in any
tangible medium of expression, including all architectural plans,
models, drawings, notes, specifications, and other data pertaining
to the design as well as the building, monument, or construction of
similar nature.
(2) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
(3) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be compiled to generate a computer program. The
term does not include computer database or computer software
documentation.
(4) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(5) Technical data means recorded information (regardless of the
form or method of the recording) of a scientific or technical nature
(including computer databases and computer software documentation).
The term does not include computer software or financial,
administrative, cost or pricing, or management data or other
information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data.
(6) The term works--
(i) Includes the following:
(A) Databases.
(B) Literary works.
(C) Musical works, including any accompanying words.
(D) Dramatic works, including any accompanying music.
(E) Pantomimes and choreographic works.
(F) Pictorial, graphic, and sculptural works.
(G) Motion pictures and other audiovisual works.
(H) Sound recordings.
(I) Architectural works.
(J) Mask works.
(K) Original designs.
(ii) Does not include technical data (including computer
software documentation) and computer software.
(b) Government rights. The Contractor shall assign to the
Government the entire right, title, and interest, including the
intellectual property rights (other than patent rights) in--
(1) Works first produced, created, generated, or delivered under
this contract to the Government; and
(2) Works not first produced, created, or generated under this
contract that are incorporated into a contract deliverable.
(c) Contractor rights. The Contractor shall not retain any
rights in works first produced, created, generated, or delivered
under this contract unless specified in an agreement negotiated in
accordance with paragraph (g) of this clause.
(d) Third party works. The Contractor shall not incorporate,
without the written approval of the Contracting Officer, any third
party works, in whole or in part, into the works that are produced,
created, generated, or delivered under this contract, unless the
Contractor has obtained for the Government the rights set forth in
paragraph (b) of this clause.
(e) Indemnification. The Contractor shall indemnify and save and
hold harmless the Government, and its officers, agents, and
employees acting for the Government, against any liability,
including costs and expenses:
(1) For violation of proprietary rights, copyrights, or rights
of privacy or publicity, arising out of the creation, delivery,
access, use, modification, reproduction, release, performance,
display, or disclosure of any works first produced, created,
generated, or delivered under this contract, or
(2) Based upon any libelous or other unlawful matter contained
in such works.
(f) Marking. The Contractor, unless directed to the contrary by
the Contracting Officer, shall place on works first produced,
created, generated, or delivered under this contract the following
notice: ``(designator(s)) (year of creation) United States
Government, as represented by the Secretary of (department). All
rights reserved.'' The designator element of the notice shall
indicate all designators appropriate to the work, such as ``C'' for
a copyright work, a ``P'' for phonorecords, or a ``D'' for original
designs.
(g) Negotiated rights. The rights granted to the Government
under paragraph (b) of this clause, the Contractor rights under
paragraph (c) of this clause, and the requirement for
indemnification under paragraph (e) of this clause, may be modified
by mutual agreement. Any rights so negotiated shall be identified in
a separate license agreement made part of this contract.
(h) Contractor retention of architectural works. Unless
otherwise specified, for a period of three (3) years after
completion of the project, the Contractor shall retain all
architectural works and furnish them upon the request of the
Contracting Officer. Unless otherwise provided in this contract, the
Contractor shall have the right to retain copies of all
architectural works beyond this period.
(i) Applicability to subcontractors or suppliers. Whenever any
works will be first produced, created, generated, or delivered, in
whole or in part, by a subcontractor or supplier under this
contract, the Contractor shall use this same clause in the
subcontract or other contractual instrument, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties as follows:
(1) References to the Government are not changed.
(2) The subcontractor or supplier has all rights and obligations
of the Contractor in the clause.
(End of clause)
28. Section 252.227-7021 is revised to read as follows:
252.227-7021 Rights in works license.
As prescribed at 227.7203-3, use the following clause:
RIGHTS IN WORKS-LICENSE (DATE)
(a) Definitions. As used in this clause--
(1) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
(2) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be compiled to generate a computer program. The
term does not include computer database or computer software
documentation.
(3) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(4) Developed means produced, created, or generated.
(5) Government purposes means any activities to which the United
States Government is a party.
(6) Government license rights means the rights to--
(i) Access, use, modify, reproduce, release, perform, display,
or disclose works within the Government without restriction; and
(ii) Release or disclose works outside the Government and
authorize persons to whom release or disclosure has been made to
access, use, modify, reproduce, release, perform, display, or
disclose those works for Government purposes. However, the
Government shall not release or disclose works outside the
Government unless the recipient is a Government contractor receiving
access to the works for performance of a Government contract that
contains the clause at DFARS 252.227-70YY.
(7) Technical data means recorded information (regardless of the
form or method of the recording) of a scientific or technical nature
(including computer databases and computer software documentation).
The term does not include computer software or financial,
administrative, cost or pricing, or management data or other
information incidental to contract administration.
[[Page 59462]]
Recorded information of a scientific or technical nature that is
included in computer databases is also technical data.
(8) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose a work in whole or
in part, in any manner, and for any purpose whatsoever, and to have
or authorize others to do so.
(9) The term works--
(i) Includes the following:
(A) Databases.
(B) Literary works.
(C) Musical works, including any accompanying words.
(D) Dramatic works, including any accompanying music.
(E) Pantomimes and choreographic works.
(F) Pictorial, graphic, and sculptural works.
(G) Motion pictures and other audiovisual works.
(H) Sound recordings.
(I) Architectural works.
(J) Mask works.
(K) Original designs.
(ii) Does not include technical data (including computer
software documentation) and computer software.
(b) Government rights. The Government shall have the following
license rights in a work that is delivered or developed under this
contract:
(1) Except as provided in paragraphs (b)(2) and (b)(3) of this
clause, the Government shall have the same rights as those in the
standard commercial license customarily provided to the public
unless such rights are inconsistent with Federal procurement law.
Any portions of the standard commercial license that are
inconsistent with Federal procurement law shall be considered
stricken from the license and the remaining portions of the license
shall remain in effect. The parties will promptly enter into
negotiations to resolve any issues raised by the elimination of
license terms or conditions that are inconsistent with Federal
procurement law. The resulting license shall be attached to the
contract.
(2) Unlimited rights in all portions of a work that are first
developed under the contract that are segregable from any sections
of the work developed prior to contract award.
(3) Government license rights in all portions of the work first
developed under the contract and that are not segregable from
sections of the work that were developed prior to contract award.
(4) Negotiated license rights.
(i) The license rights granted to the Government under
paragraphs (b)(1), (b)(2), or (b)(3) of this clause may be modified
only by mutual written agreement.
(ii) If the Government desires to obtain rights in a work in
addition to those specified in paragraph (b)(1), (b)(2), or (b)(3),
the Contractor agrees to enter into good faith negotiations with the
Contracting Officer to determine whether there are acceptable terms
for transferring such rights.
(iii) Any work in which the Contractor has granted the
Government rights under paragraph (b)(3)(ii) of this clause shall be
listed or described in a separate license agreement made part of
this contract. The license shall enumerate the rights granted the
Government.
(c) Contractor rights. The Contractor retains all intellectual
property rights (including ownership) not granted to the Government
in paragraph (b) of this clause.
(d) Restrictive markings and notices required. (1) The
Contractor shall ensure that any works to be delivered or otherwise
provided to the Government with restrictions are marked to indicate
that the works are licensed subject to access, use, modification,
reproduction, release, performance, display, or disclosure
restrictions. The form of the marking or notice must be consistent
with best commercial practices, and must accurately describe the
Government's rights.
(2) Government license rights markings. Works delivered or
otherwise furnished to the Government with Government license rights
shall be marked as follows:
GOVERNMENT LICENSE RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
-----------------------------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to access, use, modify, reproduce,
release, perform, display, or disclose these works are restricted by
paragraph (b)(3) of the Rights in Works--License clause contained in
the above identified contract. No restrictions apply after the
expiration date shown above. Any reproduction of works or portions
thereof marked with this legend must also reproduce the markings.
(End of legend)
(e) Release from liability.
(1) The Contractor agrees that the Government, and other persons
to whom the Government may have released or disclosed a work
delivered or otherwise furnished under this contract, shall have no
liability for any release or disclosure of the work that is not
marked to indicate that the work is licensed subject to access, use,
modification, reproduction, release, performance, display, or
disclosure restrictions.
(2) In the event that an authorized recipient of a work
delivered or otherwise provided to the Government under this
contract engages in any unauthorized activities with respect to the
work, the Contractor agrees to--
(i) Release the Government from liability for any release or
disclosure of the work made in accordance with the Government's
license rights granted pursuant to paragraph (b) of this clause; and
(ii) Seek relief solely from the party who has improperly
accessed, used, modified, reproduced, released, performed,
displayed, or disclosed the work marked with restrictive legends.
(f) Indemnification.
(1) The Contractor shall indemnify and save and hold harmless
the Government, and its officers, agents and employees acting for
the Government, against any liability, including costs and expenses,
(i) For violation of proprietary rights, copyrights, or rights
of privacy or publicity, arising out of the creation, delivery,
access, use, modification, reproduction, release, performance,
display, or disclosure of any works first produced, created or
generated under this contract, or
(ii) Based upon any libelous or other unlawful matter contained
in such works.
(2) The requirement for indemnification may be modified by
mutual agreement. Any rights so negotiated shall be identified in a
separate agreement made part of this contract.
(g) Applicability to subcontractors or suppliers. Whenever any
works will be obtained from a subcontractor or supplier for delivery
to the Government under this contract, the Contractor shall use this
same clause in the subcontract or other contractual instrument, and
require its subcontractors or suppliers to do so, without
alteration, except to identify the parties as follows:
(1) References to the Government are not changed.
(2) The subcontractor or supplier has all rights and obligations
of the Contractor in the clause.
(End of clause)
30. Section 252.227-7022 is revised to read as follows:
252.227-7022 Government rights in works (unlimited).
As prescribed at 227.7205-2(a), use the following clause:
GOVERNMENT RIGHTS IN WORKS (UNLIMITED) (DATE)
The Government shall have unlimited rights, in all drawings,
designs, specifications, notes, and other works developed in the
performance of this contract, including the right to use same on any
other Government design or construction without additional
compensation to the Contractor. The Contractor hereby grants to the
Government a paid-up license throughout the world to all such works
to which he may assert or establish any claim under copyright laws.
The Contractor for a period of three (3) years after completion of
the project, agrees to furnish the original or copies of all such
works on the request of the Contracting Officer.
(End of clause)
252.227-7023 [Removed and reserved]
31. Section 252.227-7023 is removed and reserved.
32. Section 252.227-7024 is amended by revising the introductory
text of the clause to read as follows:
252.227-7024 Notice and approval of restricted designs.
As prescribed at 227.7205-2(b), use the following clause:
* * * * *
33. Section 252.227-7025 is revised to read as follows:
252.227-7025 Government-furnished information marked with restrictive
legends.
As prescribed in 227.7107-4, use the following clause:
[[Page 59463]]
GOVERNMENT-FURNISHED INFORMATION MARKED WITH RESTRICTIVE LEGENDS (DATE)
(a) Definitions. As used in this clause--
(1) Commercial computer software means computer software that is
a commercial item.
(2) Commercial technical data means technical data that is or
pertains to a commercial item.
(3) Computer database or database means a collection of recorded
information in a form capable of, and for the purpose of, being
stored in, or processed by a computer. The term does not include
computer software.
(4) Computer program means a set of instructions, rules,
routines, or statements, regardless of the form or method of
recording, that is capable of causing a computer to perform a
specific operation or series of operations. Examples include
firmware, object code, and any form of executable code.
(5) Computer software means computer programs; and source code,
source code listings, and similar human-readable, recorded
information that can be compiled to generate a computer program. The
term does not include computer database or computer software
documentation.
(6) Computer software documentation means technical data
relating to computer software.
(i) The term includes--
(A) Computer software design documentation, such as design
details, algorithms, processes, flow charts, formulas, and related
information that describe the design, organization, or structure of
computer software; and
(B) Computer software user's documentation, such as user's or
owner's manuals, installation instructions, operating instructions,
and similar information that explains the capabilities of the
computer software or provides instructions for using or maintaining
the computer software.
(ii) The term does not include computer software.
(7) Contractor includes the Contractor's subcontractors or
suppliers, or potential subcontractors or suppliers, at any tier.
(8) Government purpose means any activity in which the United
States Government is a party.
(i) The term includes competitive procurement and any agreements
or contracts with, or sales or transfers to, international or multi-
national defense organizations or foreign governments.
(ii) The term does not include the rights to access, use,
modify, reproduce, release, perform, display, or disclose technical
data for commercial purposes or to authorize others to do so.
(9) Government purpose rights means the rights to--
(i) Access, use, modify, reproduce, release, perform, display,
or disclose technical data or computer software within the
Government without restriction; and
(ii) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to access, use, modify, reproduce, release,
perform, display, or disclose that data for Government purposes.
However, the Government shall not release or disclose the technical
data or computer software outside the Government unless--
(A) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient has
executed the non-disclosure agreement at 227.7107-2 with its
required attachments; or
(B) The recipient is a Government contractor receiving access to
the technical data or computer software for performance of a
Government contract that contains the clause at DFARS 252.227-7025
and the attachments required by that clause.
(10) Limited rights means the rights to access, use, modify,
reproduce, release, perform, display, or disclose technical data, in
whole or in part, within the Government. The Government may not,
without the written permission of the party asserting limited
rights, release or disclose the technical data outside the
Government, use the technical data for manufacture, or authorize the
technical data to be accessed or used by another party, unless--
(i) The reproduction, release, disclosure, access, or use is--
(A) Necessary for emergency repair and overhaul;
(B) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or access or use of such
data by, a foreign government that is in the interest of the
Government and is required for evaluational or informational
purposes; or
(C) A release or disclosure of computer software design
documentation to, or access by, a contractor or subcontractor
performing a service contract (see 37.101 of the Federal Acquisition
Regulation) in support of this or a related contract to use such
computer software documentation to diagnose and correct deficiencies
in a computer program, to modify computer software to enable a
computer program to be combined with, adapted to, or merged with
other computer programs or when necessary to respond to urgent
tactical situations or for emergency repair or overhaul of items or
processes;
(ii) Prior to release or disclosure (or in emergency situations,
as soon as practicable thereafter), the intended recipient--
(A) Has executed the use and non-disclosure agreements at
227.7107-2, with its required attachment(s); or
(B) Is a Government contractor receiving access to the technical
data for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(iii) The recipient for emergency repair or overhaul is required
to destroy the technical data and all copies in its possession
promptly following completion of the emergency repair or overhaul,
and to notify the Contractor that the data or computer software have
been destroyed; and
(iv) The Contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, access, or
use.
(11) Noncommercial computer software means computer software
that does not qualify as commercial computer software.
(12) Noncommercial technical data means technical data that does
not qualify as commercial technical data.
(13) Owner-Licensor means the person whose name appears in the
restrictive legend or is otherwise identified as asserting
restrictions on the access, use, modification, reproduction,
release, performance, display, or disclosure of technical data or
computer software.
(14) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) Install and use computer software on one computer at a time.
The computer software may not be time shared or accessed by more
than one terminal or central processing unit unless otherwise
permitted by this contract;
(ii) Transfer computer software within the Government without
further permission of the Contractor so long as the transferred
computer software remain subject to the provisions of this clause;
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified computer software only as provided in
paragraphs (a)(18)(i) and (iii) of this clause; and
(B) Not release or disclose the modified computer software
except as provided in paragraphs (a)(18)(ii), (v), and (vi) of this
clause;
(v) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations or for emergency repair or
overhaul of items or processes, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors--
(1) Have executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Are Government contractors receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025 and the attachment(s) required by that
clause;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(D) Such use is subject to the limitation in paragraph
(a)(18)(i) of this clause; and
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer
[[Page 59464]]
software when necessary to perform the repairs or overhaul, or to
modify the computer software to reflect the repairs or overhaul
made, provided that--
(A) The intended recipient--
(1) Has executed the use and non-disclosure agreement at DFARS
227.7107-2, with its required attachments; or
(2) Is a Government contractor receiving access to the computer
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, and the attachments required by that
clause;
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the computer software, or use
computer software decompiled, disassembled, or reverse engineered by
the Government pursuant to paragraph (a)(18)(iv) of this clause, for
any other purpose; and
(C) The Government shall require a recipient of restricted
rights computer software for emergency repair or overhaul to destroy
any copies of the computer software in its possession promptly
following completion of the emergency repair/overhaul and to notify
the Contractor that the computer software has been destroyed.
(15) SBIR data means all--
(i) Technical data--
(A) Pertaining to items or processes developed under a Small
Business Innovation Research (SBIR) award; or
(B) Created under a SBIR award that does not require the
development of items or processes; and
(ii) Computer software developed under a SBIR award.
(16) SBIR data rights mean the Government's rights during the
SBIR data protection period (specified at 252.227-7014(b)(5)(ii)) to
access, use, modify, reproduce, release, perform, display, or
disclose SBIR data as follows:
(i) Limited rights in SBIR data that is technical data; and
(ii) Restricted rights in SBIR data that is computer software.
(17) Technical data means recorded information (regardless of
the form or method of the recording) of a scientific or technical
nature (including computer databases and computer software
documentation). The term does not include computer software or
financial, administrative, cost or pricing, or management data or
other information incidental to contract administration. Recorded
information of a scientific or technical nature that is included in
computer databases is also technical data.
(18) Unlimited rights means the rights to access, use, modify,
reproduce, perform, display, release, or disclose technical data or
computer software in whole or in part, in any manner and for any
purpose whatsoever, and to have or authorize others to do so.
(b) Attachment. An attachment to the contract will identify--
(1) The technical data and computer software that the Government
intends to furnish to the Contractor with restrictions on access,
use, modification, reproduction, release, performance, display, or
disclosure; and
(2) The specific conditions under which the Contractor is
authorized to access, use, modify, reproduce, release, perform,
display, or disclose the following:
(i) Technical data subject to limited rights;
(ii) Computer software subject to restricted rights;
(iii) SBIR data subject to SBIR data rights; and
(iv) Technical data or computer software subject to--
(A) Negotiated license rights; or
(B) Other license restrictions, including commercial license
rights.
(c) Government-furnished information provided with restrictions.
Technical data or computer software provided to the Contractor as
Government-furnished information, under this contract are subject to
restrictions on access, use, modification, reproduction, release,
performance, display, or disclosure as follows:
(1) Government-furnished information marked with Government
purpose rights legends. The Contractor shall access, use, modify,
reproduce, release, perform, display, or disclose Government-
furnished information marked with Government purpose rights legends
for Government purposes only and shall not do so for any commercial
purpose. The Contractor shall not, without the express written
permission of the Owner-Licensor, release, perform, display, or
disclose such Government-furnished information to, or allow access
by, a person other than its subcontractors, suppliers, or
prospective subcontractors or suppliers, who require the Government-
furnished information to submit offers for, or perform, subcontracts
or supplier obligations under this contract. The Contractor shall
ensure compliance with paragraph (j) of this clause.
(2) Government-furnished information (technical data) marked
with limited rights legends or SBIR data rights legends. The
Contractor shall access, use, modify, reproduce, release, perform,
or display Government-furnished information (technical data) marked
with limited rights legends only in the performance of this
contract, as specified in the Attachment to this contract.
(i) The Contractor shall not, unless expressly authorized in the
Attachment to this contract or by express written permission of the
Owner-Licensor, release or disclose such technical data to, or allow
access by, any other person. The Contractor shall ensure compliance
with paragraph (j) of this clause.
(ii) The Contractor shall promptly notify the Owner-Licensor of
the execution of this contract and identify the Owner-Licensor's
technical data or computer software that has been or will be
provided to the Contractor, the date and place the Government-
furnished information were or will be received, and the name and
address of the Government office that has provided or will provide
the Government-furnished information.
(3) Government-furnished information (computer software) marked
with restricted rights legends or SBIR data rights legends. The
Contractor shall access, use, modify, reproduce, release, perform,
display, or disclose Government-furnished information (computer
software) marked with restricted rights legends only in the
performance of this contract, as specified in the Attachment to this
contract.
(i) The Contractor shall not, unless expressly authorized in the
Attachment to this contract or by express written permission of the
Owner-Licensor, release or disclose such Government-furnished
information to, or allow access by, any person. The Contractor shall
ensure compliance with paragraph (j) of this clause.
(ii) The Recipient shall promptly notify the software Owner-
Licensor of the execution of this Agreement and identify the
software that has been or will be provided to the Recipient, the
date and place the software were or will be received, and the name
and address of the Government office that has provided or will
provide the software.
(4) Government-furnished information marked with negotiated
license rights legends. The Contractor shall access, use, modify,
reproduce, release, perform, or display Government-furnished
information marked with negotiated license rights legends only as
permitted in the negotiated license, which is specified in the
Attachment to this contract. The Contractor shall not, unless
expressly authorized in the Attachment or by express written
permission of the Owner-Licensor, release or disclose such
Government-furnished information to, or allow access by, any person.
The Contractor shall ensure compliance with paragraph (j) of this
clause.
(5) Government-furnished information marked with other
restrictive legends, or otherwise subject to restrictions. The
Contractor shall access, use, modify, reproduce, release, perform,
display, or disclose Government-furnished information that are
marked with other restrictive legends, or that are otherwise
identified in the Attachment as subject to restrictions, only as
specified in the Attachment to this contract. The Contractor shall
ensure compliance with paragraph (j) of this clause.
(d) Contractor procedures for safeguarding, use, and handling of
Government-furnished information. Contractor shall adopt operating
procedures and physical security measures sufficient to protect the
Government-furnished information from unauthorized access, use,
modification, reproduction, release, performance, display, or
further disclosure; including through compliance with the
requirements of paragraph (j) of this clause.
(e) Disclaimer of warranty. Unless specifically stated elsewhere
in this contract, the Government is providing the requested
technical data and computer software to the recipient ``as is'' and
free of all warranties and representations, including suitability
for intended purpose.
(f) The Contractor may enter into any agreement directly with
the Owner-Licensor with respect to the access, use, modification,
reproduction, release, performance, display, or disclosure of these
technical data or computer software.
(g) Indemnification and creation of third party beneficiary
rights. The Contractor agrees--
(1) To indemnify and hold harmless the Government, its agents,
and employees from every claim or liability, including attorneys
[[Page 59465]]
fees, court costs, and expenses, arising out of, or in any way
related to, the unauthorized access, use, modification,
reproduction, release, performance, display, or disclosure of the
Government-furnished information by the Contractor or any person to
whom the Contractor has released or disclosed such data or software;
and
(2) The Owner-Licensor, in addition to any other rights it may
have, is a third party beneficiary of this clause and has the right
of direct action against the Contractor, or any person to whom the
Contractor has released or disclosed the Government-furnished
information, for the unauthorized access, use, modification,
reproduction, release, performance, display, or disclosure of
Government-furnished information subject to restrictive legends.
(h) Disposition of Government-furnished information. Recipient
agrees to destroy or return the original and all copies of the
Government-furnished information released to the recipient within 30
days following the expiration of the use and non-disclosure
agreement.
(i) Survival of obligations. The obligations imposed by this
clause shall survive the expiration or termination of this contract.
(j) Subcontractor flowdown and release or disclosure outside the
Contractor's organization. (1) The Contractor shall not release or
disclose Government-furnished information to, or allow access by,
any person outside the Contractor's organization unless the intended
recipient is--
(i) Authorized to access or receive the Government-furnished
information; and
(ii) Subject to appropriate prohibitions on unauthorized access,
use, modification, reproduction, release, performance, display, or
disclosure, in accordance with paragraph (j)(2) of this clause.
(2) The Contractor shall either--
(i) Use this same clause (including the restrictions contained
in the Attachment specified at paragraph (b) of this clause) in the
subcontract or other contractual instrument with an intended
recipient who is a subcontractor or supplier, and require that
subcontractor or supplier to do so, without alteration except to
identify the parties, as follows:
(A) References to the Government are not changed; and
(B) The intended recipient (subcontractor or supplier) has all
rights and obligations of the Contractor in the clause; or
(ii) Require the intended recipient to execute the standard use
and nondisclosure agreement in accordance with DFARS 227.7107-2,
which shall incorporate the restrictions contained in the Attachment
specified at paragraph (b) of this clause.
(End of clause)
34. Section 252.227-7026 is revised to read as follows:
252.227-7026 Deferred delivery of technical data or computer software.
As prescribed at 227.7103-5(a), use the following clause:
DEFERRED DELIVERY OF TECHNICAL DATA OR COMPUTER SOFTWARE (DATE)
The Government shall have the right to require, at any time
during the performance of this contract, within two (2) years after
either acceptance of all items (other than technical data or
computer software) to be delivered or otherwise provided under this
contract or termination of this contract, whichever is later,
delivery of any technical data or computer software item identified
in this contract as ``deferred delivery'' data or computer software.
The obligation to furnish such technical data required to be
prepared by a subcontractor and pertaining to an item obtained from
him shall expire two (2) years after the date Contractor accepts the
last delivery of that item from that subcontractor for use in
performing this contract.
(End of clause)
35. Section 252.227-7027 is revised to read as follows:
252.227-7027 Deferred ordering of technical data or computer software.
As prescribed at 227.7103-5(b), use the following clause:
DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE (DATE)
(a) In addition to technical data or computer software specified
elsewhere in this contract to be delivered, the Government may order
any technical data or computer software created or developed in the
performance of this contract or any subcontract hereunder.
(b) The Government's deferred ordering rights under paragraph
(a) of this clause shall expire three (3) years after acceptance of
all items (other than technical data or computer software) to be
delivered or otherwise provided under this contract, or the
termination of this contract, whichever is later. However, the
obligation to deliver technical data or computer software created or
developed by a subcontractor shall expire three (3) years after the
date the Contractor accepts the last delivery of that computer
software, or the item to which the technical data pertains, from
that subcontractor.
(c) When the technical data or computer software is ordered, the
Contractor shall be compensated for converting the technical data or
computer software into the prescribed form for reproduction and
delivery.
(d) The Government's rights to access, use, modify, reproduce,
release, perform, display, or disclose the delivered technical data
or computer software shall be determined pursuant to the appropriate
data rights clause:
(1) DFARS 252.227-7013, Rights in Technical Data and Computer
Software--Noncommercial;
(2) DFARS 252.227-7014, Rights in Technical Data and Computer
Software--Small Business Innovation Research (SBIR); or
(3) DFARS 252.227-7015, Rights in Technical Data and Computer
Software--Commercial.
(End of clause)
252.227-7028 [Removed and reserved]
36. Section 252.227-7028 is removed and reserved.
37. Section 252.227-7030 is revised to read as follows:
252.227-7030 Technical data and computer software--withholding of
payment.
As prescribed at 227.7106-5(a), use the following clause:
TECHNICAL DATA AND COMPUTER SOFTWARE--WITHHOLDING OF PAYMENT (DATE)
(a) If technical data or computer software specified to be
delivered under this contract are not delivered within the time
specified by this contract or are deficient upon delivery (including
having restrictive markings not identified in the list described in
the clause at 252.227-7013(f) or 252.227-7014(f) of this contract),
the Contracting Officer may, until such data or software is accepted
by the Government, withhold payment to the Contractor of ten percent
(10%) of the total contract price or amount unless a lesser
withholding is specified in the contract. Payments shall not be
withheld or any other action taken pursuant to this paragraph when
the Contractor's failure to make timely delivery or to deliver such
data or software without deficiencies arises out of causes beyond
the control and without the fault or negligence of the Contractor.
(b) The withholding of any amount or subsequent payment to the
Contractor shall not be construed as a waiver of any rights accruing
to the Government under this contract.
(End of clause)
252.227-7032 [Removed and reserved]
38. Section 252.227-7032 is removed and reserved.
39. Section 252.227-7033 is revised to read as follows:
252.227-7033 Rights in shop drawings.
As prescribed at 227.7205-2(c), use the following clause:
RIGHTS IN SHOP DRAWINGS (DATE)
(a) Shop drawings for construction means drawings, submitted to
the Government by the Construction Contractor, subcontractor or any
lower-tier subcontractor pursuant to a construction contract,
showing in detail (i) the proposed fabrication and assembly of
structural elements and (ii) the installation (i.e., form, fit, and
attachment details) of materials or equipment. The Government may
duplicate, use, and disclose in any manner and for any purpose shop
drawings delivered under this contract.
(b) The Contractor shall include this clause, including this
paragraph (b), in all subcontracts hereunder.
(End of clause)
[[Page 59466]]
252.227-7034 [Removed]
40. Reserved section 252.227-7034 is removed.
41. Section 252.227-7037 is revised to read as follows:
252.227-7037 Validation of restrictive markings on technical data and
computer software.
As prescribed in 227.7106-5(b), use the following clause:
VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA AND COMPUTER
SOFTWARE (DATE)
(a) Definitions.
(1) As used in this clause, unless otherwise specifically
indicated, the term Contractor means the Contractor and its
subcontractors or suppliers, or potential subcontractors or
suppliers, at any tier.
(2) The other terms used in this clause are defined in the
Rights in Technical Data and Computer Software--Noncommercial clause
of this contract.
(b) Contracts for commercial items--presumption of development
at private expense. Under a contract for a commercial item
(including commercial computer software), the Department of Defense
shall presume that a Contractor's asserted use or release
restrictions are justified on the basis that the commercial item was
developed exclusively at private expense. The Department shall not
challenge such assertions unless information the Department provides
demonstrates that the commercial item was not developed exclusively
at private expense.
(c) Justification. Except under contracts for commercial items
(including commercial computer software), the Contractor shall--
(1) Maintain records sufficient to justify the validity of any
markings that assert restrictions on the Government's and others'
right to access, use, modify, reproduce, perform, display, release,
or disclose technical data or computer software delivered or
required to be delivered under the contract or subcontract; and
(2) Be prepared to furnish to the Contracting Officer a written
justification for such restrictive markings in response to a
challenge under paragraph (d) of this clause or in response to a
request for information under paragraph (e) of this clause.
(d) Notwithstanding any provision of this contract concerning
inspection and acceptance, the Contracting Officer may challenge the
Contractor's assertion of restrictions if the Contracting Officer
determines that--
(1) Reasonable grounds exist to question the current validity of
the marking; and
(2) Continued adherence to the marking would make impracticable
subsequent competitive acquisition of the computer software or item
or process.
(e) Challenge process.
(1) For other than commercial items, the Contracting Officer may
request the Contractor to provide a written explanation for any
asserted restriction sufficient to enable the Contracting Officer to
evaluate the Contractor's asserted restrictions and determine
whether a challenge is warranted. Such written explanation shall be
based upon the records required by this clause or other information
reasonably available to the Contractor.
(2) The Contractor's failure to provide a timely response to a
Contracting Officer's request for information or failure to provide
sufficient information to enable the Contracting Officer to evaluate
an asserted restriction shall constitute reasonable grounds for
questioning the validity of an asserted restriction.
(3) The Contracting Officer will review the explanation
submitted and--
(i) Request the Contractor to furnish additional information
within the time required or such longer period as may be mutually
agreed upon;
(ii) Determine that the asserted marking is valid and so notify
the Contractor in writing; or
(iii) Challenge that the asserted marking is not valid.
(4) When the Contracting Officer challenges that the asserted
marking is not valid, and the Contractor notifies the Contracting
Officer that it agrees with that determination, the Contracting
Officer may--
(i) Strike or correct the unjustified marking at the
Contractor's expense; or
(ii) Return the computer software or technical data to the
Contractor for correction at the Contractor's expense. If the
Contractor fails to correct or strike the unjustified restriction
and return the corrected computer software or technical data to the
Contracting Officer within sixty (60) days following receipt of the
computer software or technical data, the Contracting Officer may
correct or strike the markings at the Contractor's expense.
(5) When the Contracting Officer challenges that the asserted
marking is not valid, and the Contractor does not notify the
contracting officer that it agrees with this determination, the
Contracting Officer will send a written challenge notice to the
Contractor asserting the restrictive markings. Such challenge
shall--
(i) State the specific grounds for challenging the asserted
restriction;
(ii) Require a response within sixty (60) days justifying and
providing sufficient evidence as to the current validity of the
asserted restriction;
(iii) State that it is a justification of the asserted
restriction if--
(A) A DoD Contracting Officer's final decision issued pursuant
to paragraph (e)(9) of this clause, or action of a court of
competent jurisdiction or Board of Contract Appeals, has sustained
the validity of a restrictive marking identical to the asserted
restriction;
(B) Such decision or action occurred within the three-year
period preceding the challenge; and
(C) The validated restriction was asserted by the same
Contractor (or any licensee of such Contractor) to which such notice
is being provided; and
(iv) State that failure to respond to the challenge notice may
result in issuance of a final decision pursuant to paragraph (e)(8)
of this clause.
(6) In response to the written challenge notice, the Contractor
shall--
(i) Submit a written request showing the need for additional
time to respond to the challenge notice. In such cases, the
Contracting Officer will grant sufficient additional time to permit
the response; or
(ii) Submit a written response that seeks to justify an asserted
restriction on technical data and computer software. This written
response shall be considered a claim within the meaning of the
Contract Disputes Act of 1978 (41 U.S.C. 601, et seq.), and shall be
certified in the form prescribed at 33.207 of the Federal
Acquisition Regulation, regardless of dollar amount.
(7) A Contractor receiving challenges to the same asserted
restrictions from more than one Contracting Officer will notify each
Contracting Officer of the other challenges and identify which
Contracting Officer initiated the first in time unanswered
challenge. The Contracting Officer initiating the first in time
unanswered challenge after consultation with the Contractor and the
other Contracting Officers, shall formulate and distribute a
schedule that provides the Contractor a reasonable opportunity for
responding to each challenge.
(8) If the Contractor fails to respond to the Contracting
Officer's challenge notice, the Contracting Officer will issue a
final decision pertaining to the validity of the asserted
restriction. This final decision shall be issued as soon as possible
after the expiration of the time period of paragraph (e)(5)(ii) of
this clause. Following issuance of the final decision, the
Contracting Officer will comply with the procedures in paragraph (f)
of this clause.
(9) After receipt of the Contractor's written response that
seeks to justify the asserted restriction, the Contracting Officer
will--
(i) Request additional supporting documentation if, in the
Contracting Officer's opinion, the Contractor's explanation does not
provide sufficient evidence to justify the validity of the asserted
restrictions. The Contractor shall promptly respond to the
Contracting Officer's request for additional supporting
documentation; or
(ii) Issue a final decision validating the asserted restriction.
The decision shall state that the Government will continue to be
bound by the restrictive marking; or
(iii) Issue a final decision denying the validity of the
asserted restriction and follow the procedures in paragraph (f) of
this clause.
(f) Contractor appeal.
(1) The Government agrees that, notwithstanding a Contracting
Officer's final decision denying the validity of an asserted
restriction and except as provided in paragraph (f)(3) of this
clause, it will honor the asserted restriction--
(i) For a period of ninety (90) days from the date of the
Contracting Officer's final decision to allow the Contractor to
appeal to the appropriate Board of Contract Appeals or to file suit
in an appropriate court;
(ii) For a period of one year from the date of the Contracting
Officer's final decision if, within the first ninety (90) days
following the Contracting Officer's final decision, the Contractor
has provided notice to the Contracting Officer of an intent to file
suit in an appropriate court; or
[[Page 59467]]
(iii) Until final disposition by the appropriate Board of
Contract Appeals or court of competent jurisdiction, if the
Contractor has--
(A) Appealed to the Board of Contract Appeals or filed suit an
appropriate court within ninety (90) days; or
(B) Submitted, within ninety (90) days, a notice of intent to
file suit in an appropriate court and filed suit within one year.
(2) The Contractor agrees that the Government may strike,
correct, or ignore the restrictive markings if the Contractor fails
to--
(i) Appeal to a Board of Contract Appeals within ninety (90)
days from the date of the Contracting Officer's final decision;
(ii) File suit in an appropriate court within ninety (90) days
from such date; or
(iii) File suit within one year after the date of the
Contracting Officer's final decision if the Contractor had provided
notice of intent to file suit within ninety (90) days following the
date of the Contracting Officer's final decision.
(3) Exception for urgent and compelling circumstances.
(i) The agency head, on a nondelegable basis, may determine that
urgent or compelling circumstances do not permit awaiting the filing
of suit in an appropriate court, or the rendering of a decision by a
court of competent jurisdiction or Board of Contract Appeals. In
that event, the agency head shall notify the Contractor of the
urgent or compelling circumstances. The agency head's determination
may be made at any time after the date of the Contracting Officer's
final decision and shall not affect the Contractor's right to
damages against the United States, or other relief provided by law,
if its asserted restrictions are ultimately upheld.
(ii) Notwithstanding paragraph (f)(1) of this clause, the
Contractor agrees that the agency may access, use, modify,
reproduce, release, perform, display, or disclose computer software
or technical data as necessary to address the urgent and compelling
circumstances.
(iii) The Government agrees not to release or disclose
Contractor's restrictively marked technical data or computer
software unless, prior to release or disclosure, the intended
recipient is subject to the use and non-disclosure agreement at
227.7107-2 of the Defense Federal Acquisition Regulation Supplement
(DFARS), or is a Government contractor receiving access to the
technical data or computer software for performance of a Government
contract that contains the clause at DFARS 252.227-7025, Government-
Furnished Information Marked with Restrictive Legends.
(g) Final disposition of appeal or suit. If the Contractor
appeals or files suit and if, upon final disposition of the appeal
or suit, the Contracting Officer's decision is--
(1) Sustained--
(i) Any restrictive marking on the technical data or computer
software shall be cancelled, corrected or ignored; and
(ii) If the restrictive markings are found not to be
substantially justified, the Contractor shall be liable to the
Government for payment of the cost to the Government of reviewing
the restrictive markings and the fees and other expenses (as defined
in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in
challenging the marking, unless special circumstances would make
such payment unjust; or
(2) Not sustained--
(i) The Government shall continue to be bound by the restrictive
markings; and
(ii) The Government shall be liable to the Contractor for
payment of fees and other expenses (as defined in 28 U.S.C.
2412(d)(2)(A)) incurred by the Contractor in defending the marking,
if the challenge by the Government is found not to have been made in
good faith.
(h) Duration of right to challenge. The Government has the right
to challenge the validity of any Contractor asserted restrictions on
technical data or computer software delivered or to be delivered
under a contract or otherwise provided to the Government in the
performance of this contract. The Contracting Officer may exercise
this right during the period within three (3) years of final payment
on a contract or within three (3) years of delivery of the technical
data or computer software to the Government, whichever is later. The
Government may, however, challenge a restriction on the release,
disclosure or use of technical data and computer software at any
time if such technical data or computer software--
(1) Is publicly available;
(2) Has been furnished to the United States without restriction;
or
(3) Has been otherwise made available without restriction.
(i) Decision not to challenge. A decision by the Government, or
a determination by the Contracting Officer, to not challenge the
restrictive marking or asserted restriction shall not constitute
``validation.'' Only a Contracting Officer's final decision or an
action of an agency Board of Contract Appeals or a court of
competent jurisdiction that sustains the validity of an asserted
restriction constitutes validation of the restriction.
(j) Privity of contract. The Contractor agrees that the
Contracting Officer may transact matters under this clause directly
with subcontractors or suppliers at any tier that assert restrictive
markings. However, neither this clause, nor any action taken by the
Government under this clause, creates or implies privity of contract
between the Government and subcontractors or suppliers for matters
not covered by this clause.
(k) Flowdown. The Contractor shall insert this clause, including
this paragraph (k), in contractual instruments with its
subcontractors requiring the delivery of technical data or computer
software.
(End of clause)
42. Section 252.227-70YY is added to read as follows:
252.227-70YY Government-furnished works marked with restrictive
legends.
As prescribed in 227.7204-2, use the following clause:
GOVERNMENT-FURNISHED WORKS MARKED WITH RESTRICTIVE LEGENDS (DATE)
(a) Definitions. As used in this clause--
(1) Contractor includes the Contractor's subcontractors or
suppliers, or potential subcontractors or suppliers, at any tier.
(2) Owner-Licensor means the person whose name appears in the
restrictive legend or is otherwise identified as asserting
restrictions on the access, use, modification, reproduction,
release, performance, display, or disclosure of works.
(3) Other terms are defined in the clause at DFARS 252.227-7021,
Rights in Works--License.
(b) Attachment. An attachment to the contract will identify--
(1) The works that the Government intends to furnish to the
Contractor with restrictions on access, use, modification,
reproduction, release, performance, display, or disclosure; and
(2) The specific conditions under which the Contractor is
authorized to access, use, modify, reproduce, release, perform,
display, or disclose the works.
(c) Government-furnished works provided with restrictions. If
the Government furnishes Government-furnished works, such works are
subject to restrictions on access, use, modification, reproduction,
release, performance, display, or disclosure as follows:
(1) Government-furnished works marked with Government purpose
rights legends. The Contractor shall access, use, modify, reproduce,
release, perform, display, or disclose Government-furnished works
marked with Government license rights legends for Government
purposes only and shall not do so for any commercial purpose. The
Contractor shall not, without the express written permission of the
Owner-Licensor, release or disclose such Government-furnished works
to, or allow access by, a person other than its subcontractors,
suppliers, or prospective subcontractors or suppliers, who require
the Government-furnished works to submit offers for, or perform,
subcontracts or supplier obligations under this contract. The
Contractor shall ensure compliance with paragraph (j) of this
clause.
(2) Government-furnished works marked with other restrictive
legends, or otherwise subject to restrictions. The Contractor shall
access, use, modify, reproduce, release, perform, display, or
disclose Government-furnished works that are marked with other
restrictive legends, or that are otherwise identified in the
attachment as subject to restrictions, only as specified in the
attachment to this contract. The Contractor shall ensure compliance
with paragraph (j) of this clause.
(d) Contractor procedures for safeguarding, use, and handling of
Government-furnished works. Contractor shall adopt operating
procedures and physical security measures sufficient to protect the
Government-furnished works from unauthorized access, use,
modification, reproduction, release, performance, display, or
further disclosure.
(e) Disclaimer of warranty. Unless specifically stated elsewhere
in this contract,
[[Page 59468]]
the Government is providing the identified works to the recipient
``as is'' and free of all warranties and representations, including
suitability for intended purpose.
(f) The Contractor may enter into any agreement directly with
the Owner-Licensor with respect to the access, use, modification,
reproduction, release, performance, display, or disclosure of these
works.
(g) Indemnification and creation of third party beneficiary
rights. The Contractor agrees--
(1) To indemnify and hold harmless the Government, its agents,
and employees from every claim or liability, including attorneys
fees, court costs, and expenses, arising out of, or in any way
related to, the unauthorized access, use, modification,
reproduction, release, performance, display, or disclosure of works
received from the Government with restrictive legends by the
Contractor or any person to whom the Contractor has released or
disclosed such works; and
(2) That the party whose name appears on the restrictive legend,
in addition to any other rights it may have, is a third party
beneficiary who has the right of direct action against the
Contractor, or any person to whom the Contractor has released or
disclosed the Government-furnished works, for the unauthorized
access, use, modification, reproduction, release, performance,
display, or disclosure of Government-furnished works subject to
restrictive legends.
(h) Disposition of Government-furnished works. Recipient agrees
to destroy or return of all copies of the works released to the
recipient within 30 days following the expiration of the use and
non-disclosure agreement.
(i) Survival of obligations. The obligations imposed by this
clause shall survive the expiration or termination of this contract.
(j) Applicability to subcontractors and suppliers and release or
disclosure outside the Contractor's organization.
(1) The Contractor shall not release or disclose Government-
furnished works to, or allow access by, any person outside the
Contractor's organization unless the intended recipient is--
(i) Authorized to access or receive the Government-furnished
works; and
(ii) Subject to appropriate prohibitions on unauthorized access,
use, modification, reproduction, release, performance, display, or
disclosure, in accordance with paragraph (2) of this clause.
(2) The Contractor shall use this same clause (including the
restrictions contained in the Attachment specified at paragraph (b)
of this clause) in the subcontract or other contractual instrument
with an intended recipient who is a subcontractor or supplier, and
require that subcontractor or supplier to do so, without alteration
except to identify the parties, as follows:
(i) References to the Government are not changed; and
(ii) The intended recipient (subcontractor or supplier) has all
rights and obligations of the Contractor in the clause.
(End of clause)
[FR Doc. 2010-22284 Filed 9-24-10; 8:45 am]
BILLING CODE 5001-08-P