[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Unknown Section]
[Pages 58144-58149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23956]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 227, and 252

RIN 0750-AF84


Defense Federal Acquisition Regulation Supplement; Presumption of 
Development Exclusively at Private Expense (DFARS Case 2007-D003)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule to amend the Defense Federal 
Acquisition Regulation Supplement to implement sections of the Fiscal 
Year (FY) 2007 and 2008 National Defense Authorization Act, including 
special requirements and procedures related to the validation of a 
contractor's or subcontractor's asserted restrictions on technical data 
and computer software.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, 703-602-8383.

SUPPLEMENTARY INFORMATION: 

I. Background

    This final rule amends the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement section 802(b) of the FY 2007 National 
Defense Authorization Act (NDAA) (Pub. L. 109-364) and section 815 of 
the FY 2008 NDAA (Pub. L. 110-181). Section 802(b) modified 10 U.S.C. 
2321(f)(2) with regard to the presumption of development at private 
expense for major systems. Section 815 revised 10 U.S.C. 2321(f)(2) to 
exempt commercially available off-the-shelf items from the requirements 
that section 802(b) established for major systems.
    This final rule implements special requirements and procedures 
related to the validation of a contractor's or subcontractor's asserted 
restrictions on technical data and computer software. More 
specifically, the final rule affects these validation procedures in the 
context of two special categories of items: Commercial items (including 
commercially available off-the-shelf items), which may be referred to 
as the ``Commercial Rule;'' and major systems (including subsystems and 
components of major systems), which may be referred to as the ``Major 
Systems Rule.''
    DoD published a proposed rule with a request for comments in the 
Federal Register on May 7, 2010 (75 FR 25161). Two respondents provided 
comments.

II. Discussion and Analysis of the Public Comments

    A discussion of the comments and the changes made to the rule as a 
result of those comments are provided as follows.

A. Prescribing a Noncommercial Clause for Technical Data Related to a 
Commercial Item

    Comment: Two respondents described the prescriptions at DFARS 
227.7102-3(b) and 227.7103-6(a) as new requirements that exceed the 
changes necessary to implement the statute.
    Response: The operative elements of the clause prescription at 
DFARS 227.7102-3(b) were a part of the last major revision of Part 227 
in 1995. The substance of the prescription has not changed in the 
proposed rule; the requirement was redesignated as DFARS 227.7102-
(4)(b) and revised to cross-reference the prescription added to DFARS 
227.7103-6(a). This follows DFARS drafting principles to use only a 
single prescription for each clause, using cross-references when 
necessary. As such, the prescription at DFARS 227.7103-6(a) serves as 
the primary source for prescribing all uses of the clause at DFARS 
252.227-7013, with a cross-reference at 227.7102-(4)(b).
    Comment: A respondent recommended that the criteria ``or will pay 
any portion of the development costs'' should be eliminated because the 
Government should not receive the benefit of something it may or may 
not pay for in the future outside of the contract.
    Response: The ``will pay'' criterion has been used since 1995. The 
term ``will'' is used to denote an anticipated future action or result, 
and there is no evidence that this criterion has been or should be 
interpreted as seeking to be used in a contract when the criteria used 
to invoke the clause has not, and is not, expected to occur during the 
contract.

[[Page 58145]]

    Comment: Two respondents outlined specific concerns that 
prescribing use of the noncommercial clause for technical data related 
to a commercial item is unnecessarily burdensome with regard to the 
noncommercial marking requirements. One respondent argued that this 
could result in the contractor unintentionally forfeiting its 
intellectual property rights by delivering with commercial markings 
that do not comply with the DFARS noncommercial marking requirements.
    Response: The prescription for the use of the clause at DFARS 
252.227-7013 in this scenario already exists. Use of commercial 
restrictive markings would not directly result in the forfeiture of the 
contractor's intellectual property rights in cases in which the 
noncommercial marking rules were used. The restrictive marking required 
by the clause at DFARS 252.227-7015(d) for technical data related to 
commercial items should be sufficient to: (1) Preserve the contractor's 
rights under the noncommercial clause procedures for correcting 
``nonconforming'' markings (see DFARS 252.227-7013(h)(1)) or (2) 
validate asserted restrictions under DFARS 252.227-7037, which is used 
regardless of whether the clauses at DFARS 252.227-7013 or 252.227-7015 
are included.
    The final rule is amended to address concerns about the 
desirability of requiring noncommercial markings for the entire 
technical data package, in cases where the Government may have funded 
only a small portion of the development. The final rule revises the 
prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a), to clarify that 
in cases when the Government ``will have paid'' for any portion of the 
development of a commercial item, both the commercial clause at DFARS 
252.227-7015 and the noncommercial clause at DFARS 252.227-7013 should 
be used together. In these cases, the noncommercial clause will apply 
only to the technical data related to those portions of the commercial 
item that were developed in some part at Government expense, and the 
commercial clause will remain applicable to the rest of the data. This 
preserves the preexisting allocation of rights between the parties, but 
avoids the necessity of applying noncommercial markings to data related 
to commercial technologies that were developed exclusively at private 
expense. In addition, the flowdown requirements of DFARS clause 
252.227-7013(k) and clause 252.227-7015(e) are clarified to enable the 
use of the appropriate clause(s) to lower-tier subcontracts.
    Comment: Two respondents commented that the proposed revisions 
result in a commercial item losing its commercial item status. One of 
these respondents recommended the elimination of the ``developed 
exclusively at private expense'' component of the proposed revisions to 
the clause at DFARS 252.227-7019, to avoid the application of the 
noncommercial clauses to commercial technologies.
    Response: The prescription for the use of the clause at DFARS 
252.227-7013 does not affect the commercial status of an item that 
otherwise meets the definition of commercial item at FAR 2.101 (based 
on 41 U.S.C. 403(12), and 10 U.S.C. 2302(3)(I)). If the item still 
qualifies as a commercial item, then it is a commercial item. If that 
commercial item was not developed exclusively at private expense, then 
the rules apply that govern the treatment of technical data 
deliverables and associated license rights related to that commercial 
item.
    Comment: Two respondents identified several ways in which the 
prescribed use of the clause at DFARS 252.227-7013, instead of 252.227-
7015, appears to be inconsistent with FAR and DFARS policies regarding 
data deliverables and data rights in commercial technologies. The 
respondents noted that DFARS 227.7102-1 states DoD's basic policy that 
DoD shall acquire only the technical data deliverables that are 
customarily provided to the public, with a few exceptions.
    Response: The prescription for the use of the clause at DFARS 
252.227-7013, when the item has been developed in part at Government 
expense but the item still qualifies as commercial, does not change the 
applicability of this policy statement. The policy provides exceptions, 
one of which allows the Government to require the delivery of technical 
data that describes modifications made at Government expense even if 
such data is not typically provided to the public (see DFARS 227.7102-
1(a)(3)).
    Comment: A respondent recommended the elimination of the 
``developed exclusively at private expense'' component of the proposed 
revisions to the clause at DFARS 252.227-7019, to avoid the application 
of the noncommercial clauses to commercial technologies.
    Response: The respondent's basis for concern is unclear in view of 
the limited applicability of the clause at DFARS 252.227-7019 to only 
noncommercial computer software, and the proposed revisions address 
only the noncommercial aspects of the Major Systems Rule. Accordingly, 
the proposed revisions to the validation procedures for noncommercial 
computer software at DFARS 227.7203-13 and 252.227-7019 are retained in 
the final rule.
    Comment: One respondent noted that DFARS 227.7202-1 states the 
basic policy governing commercial computer software and computer 
software documentation is that the Government acquires the licenses 
customarily provided to the public unless such licenses are 
inconsistent with Federal procurement law or do not otherwise satisfy 
the agency's needs.
    Response: The proposed rule creates no issues or conflicts with 
this policy since there are no changes proposed for any DFARS coverage 
related to commercial computer software or documentation.

B. Applying Data Rights Clauses to Subcontracts for Commercial Items

    Comment: Two respondents recommended that 10 U.S.C. 2320 and 10 
U.S.C. 2321 not be removed from the list of statutes set forth in DFARS 
212.504(a), which prohibits their application to subcontracts for 
commercial items. One respondent concluded that removing these statutes 
from the list appears to ``unilaterally overturn the express intent of 
Congress and the FAR Council'' and that the proposed rule did not 
explain the basis for the decision to remove the statutes from the 
list.
    Response: The proposed rule explains the basis for this 
determination. The decision to remove these statutes from the list is 
based on the appropriate statutory determinations that doing so is in 
the best interest of the Government. The proposed revisions to DFARS 
212.504(a) are retained in the final rule.

C. Application of Statutory Technical Data Rules to Computer Software

    Comment: A respondent argued that the proposed rule should not make 
any changes to the validation procedures for computer software; in 
particular, the clause at DFARS 252.227-7019, ``Validation of Asserted 
Restrictions--Computer Software,'' should not be amended to include the 
proposed new paragraph (f) that implements the ``Major Systems Rule.'' 
In addition, a respondent contended that the decision to cover software 
was flawed because: (1) There is no statutory basis for the change and 
(2) not all rights determinations are ``black and white.''
    Response: (1) Although 10 U.S.C. 2320 and 2321 apply only to 
technical data and not to computer software, it is longstanding DoD 
policy and practice to

[[Page 58146]]

apply the same or analogous requirements to computer software, whenever 
appropriate. Accordingly, the proposed rule implements revisions to the 
validation procedures for computer software only to the extent that 
those procedures are based on the technical data validation procedures 
that are affected by the statutory changes. The result is that it is 
only the Major Systems Rule that is adapted for application only to 
noncommercial computer software. (2) The new Major Systems Rule is 
applicable only to challenges of contractor assertions that development 
was exclusively at private expense. Thus, the proposed adaptation of 
the new Major Systems Rule to noncommercial software validation also is 
not applicable to assertions based on mixed funds, and does not in any 
way restrict the ability to segregate mixed-funding development into 
its privately-funded and Government-funded portions.

D. Two Separate Standards for Civilian and DoD Agencies

    Comment: One respondent stated that the proposed rule creates two 
separate standards for civilian and DoD agencies in that ``the 
practical result could be that an item will be treated as commercial 
for purposes of intellectual property rights by civilian agencies, and 
as non-commercial by the agencies of DoD.''
    Response: Without analyzing the required treatment under the FAR of 
a commercial item by a civilian agency when the Government has paid a 
portion of the development costs, the proposed rule has not changed the 
criteria for whether an item is a commercial item (i.e., under the 
definition at FAR 2.101). Since 1995, DFARS 227.7102-3(b) has required 
the use of the noncommercial clause at 252.227-7013 in lieu of the 
commercial clause at 252.227-7015 if the Government will pay any 
portion of the development costs of the commercial item. Although the 
proposed revision of the DoD validation scheme to include a 
``Commercial Rule'' and a ``Major Systems Rule'' may have no equivalent 
in the civilian validation scheme, DoD's process is driven by the 
changes to 10 U.S.C. 2321, for which there is no equivalent in the 
civilian agency statute (41 U.S.C. 253d). No revisions are necessary.

E. Administrative, Technical and Typographical Issues

    Comment: A respondent identified a citation error, which seeks to 
remove and reserve 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable 
Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting 
Requirements Regarding Dealings with Terrorist Countries, when it 
appears that the intent is to remove paragraphs (a)(iii) 10 U.S.C. 
2320, Rights in Technical Data and (iv) 10 U.S.C. 2321, Validation of 
Proprietary Data Restrictions.
    Response: The respondent is correct. This change is reflected in 
the final rule.
    Comment: A respondent recommended changing the cross-reference in 
the second sentence of DFARS 252.227-7037(c) from paragraph (b) to 
(b)(1) for further clarification.
    Response: The respondent is correct. This change is reflected in 
the final rule.

F. Changes to Rule Resulting From the Public Comments

    Changes made in the final rule based on the public comments 
received, include the following:
     Removed DFARS 212.504 paragraphs (a)(iii) 10 U.S.C. 2320, 
Rights in Technical Data, and (a)(iv) 10 U.S.C. 2321, Validation of 
Proprietary Data Restrictions, instead of DFARS 212.504 paragraphs 
(a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and 
(a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with 
Terrorist Countries.
     Revised the prescriptions at DFARS 227.7102-4(b) and 
227.7103-6(a) to clarify that in cases when the Government ``will have 
paid'' for any portion of the development of a commercial item, both 
the commercial clause at DFARS 252.227-7015 and the noncommercial 
clause at DFARS 252.227-7013 shall be used together.
     Revised 252.212-7001(b) to add 252.227-7013 and 252.227-
7037 to be used, as applicable.
     Revised 252.212-7001(c) to add 252.227-7013, 252.227-7015 
and 252.227-7037 to be flowed down to subcontractors, as applicable.
     Revised the clause flowdown requirements of DFARS 252.227-
7013(k) and 252.227-7015(e) to enable the use of the appropriate 
clause(s) to lower tier subcontracts.
     Changed the cross reference in the second sentence of the 
clause at DFARS 252.227-7037(c) from paragraph (b) to (b)(1).
     Revised 252.244-7000 to add 252.227-7015 and 252.227-7037 
to be flowed down to subcontractors, as applicable.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under Section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD certifies that this final rule will not have significant 
economic impact on a substantial number of small entities within the 
meaning for the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because major systems or subsystems are generally not developed by 
small businesses. The rule only applies in the limited circumstances 
that there is a challenge to a use or release restriction for a major 
system or subsystem that the contractor or subcontractor claims was 
developed exclusively at private expense.

V. Paperwork Reduction Act

    The rule does not impose any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 212, 227, and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 227, and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 212, 227, and 252 continues 
to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS


212.504  [Amended]

0
2. Section 212.504 is amended as follows:
0
(a) By removing paragraphs (a)(iii) and (iv); and
0
(b) Redesignating paragraphs (a)(v) through (xix) as (a)(iii) through 
(xvii), respectively.

[[Page 58147]]

PART 227--PATENTS, DATA, AND COPYRIGHTS

0
3. Amend section 227.7102 by removing the text, and republishing the 
section heading to read as follows:


227.7102  Commercial items, components, or processes.

0
4. Redesignate section 227.7102-3 as 227.7102-4.

0
5. Add new section 227.7102-3 to read as follows:


227.7102-3  Government right to review, verify, challenge and validate 
asserted restrictions.

    Follow the procedures at 227.7103-13 and the clause at 252.227-
7037, Validation of Restrictive Markings on Technical Data, regarding 
the validation of asserted restrictions on technical data related to 
commercial items.

0
6. Revise the newly redesignated section 227.7102-4 to read as follows:


227.7102-4  Contract clauses.

    (a)(1) Except as provided in paragraph (b) of this subsection, use 
the clause at 252.227-7015, Technical Data-Commercial Items, in all 
solicitations and contracts when the Contractor will be required to 
deliver technical data pertaining to commercial items, components, or 
processes.
    (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.
    (b) In accordance with the clause prescription at 227.7103-6(a), 
use the clause at 252.227-7013, Rights in Technical Data-Noncommercial 
Items, in addition to the clause at 252.227-7015, if the Government 
will have paid for any portion of the development costs of a commercial 
item. The clause at 252.227-7013 will govern the technical data 
pertaining to any portion of a commercial item that was developed in 
any part at Government expense, and the clause at 252.227-7015 will 
govern the technical data pertaining to any portion of a commercial 
item that was developed exclusively at private expense.
    (c) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, in all solicitations and contracts for 
commercial items that include the clause at 252.227-7015 or the clause 
at 252.227-7013.

0
6. Amend section 227.7103-6 to revise paragraph (a) to read as follows:


227.7103-6  Contract clauses.

    (a) Use the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items, in solicitations and contracts when the successful 
offeror(s) will be required to deliver to the Government technical data 
pertaining to noncommercial items, or pertaining to commercial items 
for which the Government will have paid for any portion of the 
development costs (in which case the clause at 252.227-7013 will govern 
the technical data pertaining to any portion of a commercial item that 
was developed in any part at Government expense, and the clause at 
252.227-7015 will govern the technical data pertaining to any portion 
of a commercial item that was developed exclusively at private 
expense). Do not use the clause when the only deliverable items are 
computer software or computer software documentation (see 227.72), 
commercial items developed exclusively at private expense (see 
227.7102-4), existing works (see 227.7105), special works (see 
227.7106), or when contracting under the Small Business Innovation 
Research Program (see 227.7104). Except as provided in 227.7107-2, do 
not use the clause in architect-engineer and construction contracts.
* * * * *

0
7. Amend section 227.7103-13 by:
0
(a) Redesignating paragraph (c) as paragraph (d);
0
(b) Adding a new paragraph (c); and
0
(c) Amending redesignated paragraph (d) by revising the introductory 
text and paragraphs (d)(2)(i) and (d)(4).
    The additions and revisions read as follows.


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

* * * * *
    (c) Challenge considerations and presumption.
    (1) Requirements to initiate a challenge. Contracting officers 
shall have reasonable grounds to challenge the validity of an asserted 
restriction. Before issuing a challenge to an asserted restriction, 
carefully consider all available information pertaining to the 
assertion. The contracting officer shall not challenge a contractor's 
assertion that a commercial item, component, or process was developed 
exclusively at private expense unless the Government can demonstrate 
that it contributed to development of the item, component or process.
    (2) Presumption regarding development exclusively at private 
expense. 10 U.S.C. 2320(b)(1) and 2321(f) establish a presumption and 
procedures regarding validation of asserted restrictions for technical 
data related to commercial items, and to major systems, on the basis of 
development exclusively at private expense.
    (i) Commercial items. For commercially available off-the-shelf 
items (defined at 41 U.S.C. 431(c)[104]) in all cases, and for all 
other commercial items except as provided in paragraph (c)(2)(ii) of 
this subsection, contracting officers shall presume that the items were 
developed exclusively at private expense whether or not a contractor 
submits a justification in response to a challenge notice. When a 
challenge is warranted, a contractor's or subcontractor's failure to 
respond to the challenge notice cannot be the sole basis for issuing a 
final decision denying the validity of an asserted restriction.
    (ii) Major systems. The presumption of development exclusively at 
private expense does not apply to major systems or subsystems or 
components thereof, except for commercially available off-the-shelf 
items (which are governed by paragraph (c)(2)(i) of this subsection). 
When the contracting officer challenges an asserted restriction 
regarding technical data for a major system or a subsystem or component 
thereof on the basis that the technology was not developed exclusively 
at private expense, the contracting officer shall sustain the challenge 
unless information provided by the contractor or subcontractor 
demonstrates that the item was developed exclusively at private 
expense.
    (d) Challenge and validation. All challenges shall be made in 
accordance with the provisions of the clause at 252.227-7037, 
Validation of Restrictive Markings on Technical Data.
* * * * *
    (2) Pre-challenge requests for information.
    (i) After consideration of the situations described in paragraph 
(d)(3) of this subsection, contracting officers may request the person 
asserting a restriction to furnish a written explanation of the facts 
and supporting documentation for the assertion in sufficient detail to 
enable the contracting officer to ascertain the basis of the 
restrictive markings. Additional supporting documentation may be 
requested when the explanation provided by the person making the 
assertion does not, in the contracting officer's opinion, establish the 
validity of the assertion.
* * * * *
    (4) Challenge notice. The contracting officer shall not issue a 
challenge notice unless there are reasonable grounds to question the 
validity of an assertion. The contracting officer may challenge

[[Page 58148]]

an assertion whether or not supporting documentation was requested 
under paragraph (d)(2) of this subsection. Challenge notices shall be 
in writing and issued to the contractor or, after consideration of the 
situations described in paragraph (d)(3) of this subsection, the person 
asserting the restriction. The challenge notice shall include the 
information in paragraph (e) of the clause at 252.227-7037.
* * * * *

0
8. Amend section 227.7203-13 by:
0
(a) Redesignating paragraphs (d) through (f) as (e) through (g), 
respectively; and
0
(b) Adding a new paragraph (d) to read as follows:


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

* * * * *
    (d) Major systems. When the contracting officer challenges an 
asserted restriction regarding noncommercial computer software for a 
major system or a subsystem or component thereof on the basis that the 
computer software was not developed exclusively at private expense, the 
contracting officer shall sustain the challenge unless information 
provided by the contractor or subcontractor demonstrates that the 
computer software was developed exclusively at private expense.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
9. Amend section 252.212-7001 by--
0
(a) Revising the introductory text;
0
(b) Amending the clause date by removing ``(AUG 2011)'' and adding in 
its place ``(SEP 2011)'';
0
(c) Redesignating paragraphs (b)(19) through (b)(28) as paragraphs 
(b)(20) through (b)(29);
0
(d) Adding new paragraph (b)(19);
0
(e) Amending newly redesignated paragraph (b)(20) by removing ``(MAR 
2011)'' and adding in its place ``(SEP 2011)'';
0
(f) Amending newly redesignated paragraph (b)(21) by removing ``(SEP 
1999)'' and adding in its place ``(SEP 2011), if applicable (see 
227.7102-4(c)).'';
0
(g) Redesignating paragraphs (c)(2) through (c)(6) as paragraphs (c)(5) 
through (c)(9), respectively; and
0
(h) Adding new paragraphs (c)(2) through (c)(4).
    The additions and revisions read as follows:


252.212-7001  Contract Terms and Conditions Required to Implement 
Statues or Executive Orders Applicable to Defense Acquisitions of 
Commercial Items.

    As prescribed in 212.301(f)(iii) and 227.7103-6(a) and (e), use the 
following clauses as applicable:
* * * * *
    (b) * * *
    (19) 252.227-7013, Rights in Technical Data--Noncommercial Items 
(SEP 2011), if applicable (see 227.7103-6(a)).
* * * * *
    (c) * * *
    (2) 252.227-7013, Rights in Technical Data--Noncommercial Items 
(SEP 2011), if applicable (see 227.7103-6(a)).
    (3) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if 
applicable (see 227.7102-4(a)).
    (4) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (SEP 2011), if applicable (see 227.7102-4(c)).
* * * * *

0
10. Amend section 252.227-7013 by--
0
(a) Amending the clause date by removing ``(MAR 2011)'' and adding in 
its place ``(SEP 2011)''; and
0
(b) Revising paragraph (k)(2) to read as follows:


252.227-7013  Rights in technical data-Noncommercial items.

* * * * *
    (k) * * *
    (2) Whenever any technical data for noncommercial items, or for 
commercial items developed in any part at Government expense, is to be 
obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the Contractor shall use this same 
clause in the subcontract or other contractual instrument, and require 
its subcontractors or suppliers to do so, without alteration, except to 
identify the parties. This clause will govern the technical data 
pertaining to noncommercial items or to any portion of a commercial 
item that was developed in any part at Government expense, and the 
clause at 252.227-7015 will govern the technical data pertaining to any 
portion of a commercial item that was developed exclusively at private 
expense. 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.
* * * * *

0
11. Amend section 252.227-7015 by--
0
(a) Amending the clause date by removing ``(MAR 2011)'' and adding in 
its place ``(SEP 2011)''; and
0
(b) Adding new paragraph (e) to read as follows:


252.227-7015  Technical data-Commercial items.

* * * * *
    (e) 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 and 10 U.S.C. 
2321.
    (2) Whenever any technical data related to commercial items 
developed in any part at private expense 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. 
This clause will govern the technical data pertaining to any portion of 
a commercial item that was developed exclusively at private expense, 
and the clause at 252.227-7013 will govern the technical data 
pertaining to any portion of a commercial item that was developed in 
any part at Government expense.
* * * * *

0
12. Amend section 252.227-7019 by--
0
(a) Amending the clause date by removing ``(JUN 1995)'' and adding in 
its place ``(SEP 2011)'';
0
(b) Redesignating paragraphs (f) through (i) as paragraphs (g) through 
(j), respectively;
0
(c) Adding new paragraph (f);
0
(d) Revising the newly redesignated paragraph (g)(5);
0
(e) Amending the newly redesignated paragraph (h)(1) introductory text 
by removing ``(g)(3)'', and adding in its place ``(h)(3)''; and
0
(f) Amending the newly redesignated paragraph h)(3) by removing 
``(g)(1)'', and adding in its place ``(h)(1)''.
    The additions and revisions read as follows:


252.227-7019  Validation of asserted restrictions-Computer software.

* * * * *
    (f) Major systems. When the Contracting Officer challenges an 
asserted restriction regarding noncommercial computer software for a 
major system or a subsystem or component thereof on the basis that the 
computer software was not developed exclusively at private expense, the 
Contracting Officer will sustain the challenge unless information 
provided by the Contractor or subcontractor demonstrates that the 
computer software was developed exclusively at private expense.

[[Page 58149]]

    (g) * * *
    (5) If the Contractor fails to respond to the Contracting Officer's 
request for information or additional information under paragraph 
(g)(1) of this clause, the Contracting Officer will issue a final 
decision, in accordance with paragraph (f) of this clause and the 
Disputes clause of this contract, pertaining to the validity of the 
asserted restriction.
* * * * *

0
13. Amend 252.227-7037 by--
0
(a) Amending the introductory text by removing ``227.7102-3(c)'' and 
adding in its place ``227.7102-4(c)'';
0
(b) Amending the clause date by removing ``(SEP 1999)'' and adding in 
its place ``(SEP 2011)''; and
0
(c) Revising paragraphs (b), (c), (f), and (l) to read as follows:


252.227-7037  Validation of restrictive markings on technical data.

* * * * *
    (b) Presumption regarding development exclusively at private 
expense.
    (1) Commercial items. For commercially available off-the-shelf 
items (defined at 41 U.S.C. 104) in all cases, and for all other 
commercial items except as provided in paragraph (b)(2) of this clause, 
the Contracting Officer will presume that a Contractor's asserted use 
or release restrictions are justified on the basis that the item, 
component, or process was developed exclusively at private expense. The 
Contracting Officer shall not challenge such assertions unless the 
Contracting Officer has information that demonstrates that the item, 
component, or process was not developed exclusively at private expense.
    (2) Major systems. The presumption of development exclusively at 
private expense does not apply to major systems or subsystems or 
components thereof, except for commercially available off-the-shelf 
items (which are governed by paragraph (b)(1) of this clause). When the 
Contracting Officer challenges an asserted restriction regarding 
technical data for a major system or a subsystem or component thereof 
on the basis that the item, component, or process was not developed 
exclusively at private expense, the Contracting Officer will sustain 
the challenge unless information provided by the Contractor or 
subcontractor demonstrates that the item, component, or process was 
developed exclusively at private expense.
    (c) Justification. The Contractor or subcontractor at any tier is 
responsible for maintaining records sufficient to justify the validity 
of its markings that impose restrictions on the Government and others 
to use, duplicate, or disclose technical data delivered or required to 
be delivered under the contract or subcontract. Except as provided in 
paragraph (b)(1) of this clause, the Contractor or subcontractor shall 
be prepared to furnish to the Contracting Officer a written 
justification for such restrictive markings in response to a challenge 
under paragraph (e) of this clause.
* * * * *
    (f) Final decision when Contractor or subcontractor fails to 
respond. Upon a failure of a Contractor or subcontractor to submit any 
response to the challenge notice the Contracting Officer will issue a 
final decision to the Contractor or subcontractor in accordance with 
paragraph (b) of this clause and the Disputes clause of this contract 
pertaining to the validity of the asserted restriction. This final 
decision shall be issued as soon as possible after the expiration of 
the time period of paragraph (e)(1)(ii) or (e)(2) of this clause. 
Following issuance of the final decision, the Contracting Officer will 
comply with the procedures in paragraphs (g)(2)(ii) through (iv) of 
this clause.
* * * * *
    (l) Flowdown. The Contractor or subcontractor agrees to insert this 
clause in contractual instruments with its subcontractors or suppliers 
at any tier requiring the delivery of technical data.
* * * * *

0
14. Amend section 252.244-7000 by--
0
(a) Amending the clause date by removing ``(AUG 2011)'' and adding in 
its place ``(SEP 2011)'';
0
(b) Redesignating paragraphs (c) through (h) as (e) through (j), 
respectively; and
0
(c) Adding new paragraphs (c) and (d) as follows:


252.244-7000  Subcontracts for commercial items and commercial 
components (DoD contracts).

* * * * *
    (c) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if 
applicable (see 227.7102-4(a)).
    (d) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (SEP 2011), if applicable (see 227.7102-4(c)).
* * * * *

[FR Doc. 2011-23956 Filed 9-19-11; 8:45 am]
BILLING CODE 5001-08-P