[Federal Register Volume 81, Number 116 (Thursday, June 16, 2016)]
[Proposed Rules]
[Pages 39482-39503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14266]



[[Page 39481]]

Vol. 81

Thursday,

No. 116

June 16, 2016

Part V





Department of Defense





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Defense Acquisition Regulations System





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48 CFR Parts 212, 227, and 252





Defense Federal Acquisition Regulation Supplement: Rights in Technical 
Data and Validation of Proprietary Data Restrictions (DFARS Case 2012-
D022); Proposed Rule

  Federal Register / Vol. 81 , No. 116 / Thursday, June 16, 2016 / 
Proposed Rules  

[[Page 39482]]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 227, and 252

[Docket DARS-2016-0017]
RIN 0750-AI95


Defense Federal Acquisition Regulation Supplement: Rights in 
Technical Data and Validation of Proprietary Data Restrictions (DFARS 
Case 2012-D022)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement a section of the National 
Defense Authorization Act for Fiscal Year 2012 that revises the 
sections of title 10 of the United States Code (U.S.C.) that address 
technical data rights and validation of proprietary data restrictions.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before September 14, 2016, to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2012-D022, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2012-D022'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2012-D022.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2012-D022'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2012-D022 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy 
G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 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 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 G. Williams, telephone 571-
372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to implement section 815 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2012, which--
     Adds special provisions for handling technical data that 
are necessary for segregation and reintegration activities;
     Codifies and revises the policies and procedures regarding 
deferred ordering of technical data necessary to support DoD major 
systems or subsystems, weapon systems, or noncommercial items or 
processes;
     Expands the period in which DoD can challenge an asserted 
restriction on technical data from 3 years to 6 years;
     Rescinds changes to 10 U.S.C. 2320 from the NDAA for FY 
2011; and
     Codifies Government purpose rights as the default rights 
for technical data related to technology developed with mixed funding.
    In accordance with the statutory changes, this rule provides better 
clarity, extended time periods, and enhanced rights for the Government 
to require delivery of (including through deferred ordering), and to 
assert rights in, technical data and computer software that are 
developed in whole or in part with Government funding or that are 
needed for segregation and reintegration activities, including under 
commercial items authorities. The rule also provides extended time 
periods and enhanced rights for the Government to challenge proprietary 
data legends and markings in order to enable competitive follow-on 
acquisitions for Government-funded items or processes. However, the 
rule affirmatively states that there is no requirement in the revised 
deferred ordering scheme for the contractor to retain the technical 
data or computer software beyond a reasonable time. While the 
anticipated costs associated with this rule are not quantifiable in 
dollar amounts, DoD anticipates that any such impact will be outweighed 
by the expected benefits of this rule.

II. Discussion and Analysis

A. Scope of the New Requirements--Applicability to Computer Software 
and to Commercial Technologies

    Section 815 revised 10 U.S.C. 2320 and 2321, which cover only 
technical data (both commercial technical data and noncommercial 
technical data), and do not expressly cover computer software, which is 
expressly excluded from the definition of ``technical data.'' However, 
it is longstanding Federal and DoD policy and practice to apply the 
same or analogous requirements to computer software. Many issues are 
common to both technical data and computer software. Accordingly, 
conformity of coverage between technical data and computer software is 
desirable.
    Further, it is also longstanding policy and practice to recognize 
that acquisition of technical data or computer software that is, or is 
related to, commercial technologies involves special considerations 
that may require adaptation of the policies and practices otherwise 
applicable to noncommercial technologies. For example, the DFARS 
coverage for commercial technical data at 227.7102 implements the 
statutory requirements as applicable to commercial technical data, but 
otherwise follows the overarching Federal and DoD policy for 
acquisition of commercial technical data and commercial computer 
software: That the Government will generally acquire the same 
deliverables, and the same associated license rights, that are 
customarily provided to the public, as long as those customary 
practices are consistent with Federal law and satisfy the agency's 
needs. For commercial computer software, the DFARS implementation at 
227.7202 is even more closely aligned with that overarching policy, and 
minimizes the extension of DoD-specific requirements derived from the 
technical data statutes to only a few limited principles, such as 
allowing DoD to require delivery of computer software documenting 
modifications made at Government expense to meet the requirements of a 
Government solicitation (see 227.7202-1(c)(1)).
    Accordingly, the implementation of these new statutory authorities 
also follows these general guidelines, applying and adapting the 
technical data-specific statutory revisions to computer software as 
appropriate. The specific determinations regarding such applicability 
and adaptations are discussed on a case-by-case basis throughout this 
preamble.

B. Segregation or Reintegration Data

    Section 815(a)(1) amended 10 U.S.C. 2320(a)(2)(D)(i) to add a new 
(fourth) exception to the restriction on sharing outside of DoD any 
technical data relating to an item or process developed exclusively at 
private expense. The new exception is framed in the same manner

[[Page 39483]]

as the three other preexisting exceptions: They are defined by a 
specific activity or purpose for which the release is necessary (10 
U.S.C. 2320(a)(2)(D)(i)(I)-(IV)); the recipient must be subject to a 
prohibition on any further use or release of the information (10 U.S.C. 
2320(a)(2)(D)(ii)); and the person asserting restrictions on the 
technical data (hereafter ``the data owner'') must be notified of the 
release or use (10 U.S.C. 2320(a)(2)(D)(iii)). The new exception covers 
a new purpose or activity, when the release or use ``is necessary for 
the segregation of an item or process from, or the reintegration of 
that item or process (or a physically or functionally equivalent item 
or process) with, other items or processes.''

C. Approach to Implementation

    In the case of technical data, the mandatory statutory revisions 
are inserted into the baseline DFARS coverage where the rest of the 
statutory scheme has been implemented. More specifically, revisions are 
inserted in the context of commercial technical data at DFARS 227.7102-
2, and associated clause at 252.227-7015(b)(2)(ii); and for 
noncommercial technical data in the context of limited rights, as 
described at DFARS 227.7103-5(c)(2), and defined at DFARS 252.227-
7013(a)(14) and 252.227-7018(a)(15).
    Regarding computer software, the statutory scheme recognizing 
certain limited exceptions to the restriction on disclosure of 
information outside the Government has been extended to noncommercial 
computer software in the context of the restricted rights, defined at 
DFARS 252.227-7014(a)(15). Accordingly, the new exception authorizing 
releases for segregation and reintegration activities has been applied 
to noncommercial computer software by revising the definition of 
``restricted rights.'' Adding this additional exception also provided 
an opportunity to clarify and streamline the existing baseline list of 
such exceptions that have been added to restricted rights over the 
years, and during that process the definition had become unnecessarily 
long and complex. The definition of ``restricted rights'' has thus been 
clarified and streamlined, with all of the special circumstances in 
which releases outside the Government are authorized now consolidated 
under subparagraph (v)(A), while retaining all of the substantive and 
procedural protections for each such circumstance at subparagraphs 
(v)(B) through (v)(E).
    In order to streamline the regulations, DoD defined a new term 
``segregation or reintegration data'' to mean data that otherwise meets 
all of the statutory criteria (see the definition at DFARS 227.001, and 
in paragraph (a) of the associated clauses at 252.227-7013, -7014, -
7015, -7018, and new -7029(a)). Creating such a defined term also 
allows the DFARS implementation to proactively address a major concern 
expressed by industry and academia in various forums after the 
enactment of section 815; namely, that the new statutory scheme does 
not provide a definition for the new concept of data necessary for 
segregation or reintegration, and thus there is likely to be widespread 
confusion, uneven and inconsistent interpretations, and potential for 
disagreement, if the DFARS implementation does not provide additional 
clarity. More specifically, it is unclear how such segregation or 
reintegration data relates to the ``form, fit, and function data,'' 
which would appear to cover already the vast majority of data that 
would be necessary for segregation or reintegration activities, with at 
least one critical difference: The Government is entitled to unlimited 
rights in form, fit, and function data, while section 815 clearly 
contemplates that segregation or reintegration data could be subject to 
limited rights, which is completely at the other end of the data rights 
spectrum from segregation or reintegration unlimited rights. 
Accordingly, establishing a definition for the term ``segregation or 
reintegration data'' allows the DFARS implementation to provide 
additional definitional criteria and clarifying guidance to address 
these concerns.
    To achieve these objectives, the proposed definition for the new 
term ``segregation or reintegration data'' should both (1) incorporate 
all of the statutory criteria, and (2) supplement the statutory 
criteria with additional guidance to ensure clarity and consistency. 
The first objective is satisfied by incorporating the statutory 
performance-based language as the core of the primary definitional 
statement (i.e., ``segregation or reintegration data'' means . . . 
``(insert statutory criteria).'')
    Regarding the supplementary definitional language needed to address 
the concerns raised by industry and academia, the proposed definition 
leverages existing DFARS definitional approaches, terminology, and 
clarifying language to harmonize the new term with the existing DFARS 
scheme. First, as previously noted, it is important to identify and 
clarify how the new term, segregation or reintegration data, relates to 
the established definition for ``form, fit, and function data.'' In 
addition, DoD understands that part of the underlying concern that led 
to the statutory creation of the concept of segregation or 
reintegration data was based on a number of situations in which DoD and 
contractors faced challenges in finding mutual agreement regarding what 
type of data is appropriately characterized as being form, fit, and 
function data (e.g., the level of technical detail that is required and 
appropriate). These challenges are exacerbated in situations in which 
the underlying item or process being described by the form, fit, and 
function data has been developed exclusively at private expense and is 
thus treated as proprietary technology by the contractor (e.g., a 
contractor is less willing to share detailed technical information 
regarding a privately developed technology, especially when the 
Government will be granted unlimited rights in that data, which can 
then be released openly to the public).
    To address this foundational issue, DoD compared the statutory 
language describing segregation or reintegration data with the existing 
regulatory definition of ``form, fit, and function data.'' In doing so, 
it is important to note that the Federal Acquisition Regulation (FAR) 
and DFARS each define ``form, fit, and function data,'' but use 
different definitions. Although the majority of the definitions may be 
objectively similar or consistent (e.g., focusing on physical, 
functional, and performance characteristics to support the 
interchangeability of items or processes), there is a key distinction 
between the definitions: The FAR definition (see FAR 52.227-14(a)) 
covers data relating to computer software, where the DFARS definition 
refers only to technical data relating to items or processes. The basis 
for this distinction is not readily apparent, e.g., to define a generic 
data type that describes the functional or performance characteristics 
of an item or process at a low level of detail, there may be no reason 
to exclude data because the underlying item or process is implemented 
by computer software, rather than hardware alone. Furthermore, it is 
not clear what result would or should be achieved under the DFARS 
definition if the item or process being described is comprised of a 
combination of hardware and software elements. Perhaps this is part of 
the reason for the challenges in applying the DFARS definition.
    After careful consideration, the proposed rule amends the DFARS 
definition of ``form, fit, and function data'' to harmonize more 
effectively and predictably with the FAR definition (e.g., covering 
computer software as well as technical data), including by 
incorporating express limitations that will more clearly address any 
concern

[[Page 39484]]

that form, fit, and function data could be extended to cover data or 
software that includes such a degree of technical detail that it is not 
appropriate to be treated as form, fit, and function data that will be 
subject to unlimited rights (e.g., the revised definition expressly 
excludes ``computer software source code, or detailed manufacturing or 
process data''). See DFARS 227.001, and associated clauses at 252.227-
7013(a), -7014(a), -7015(a), -7018(a), and new -7029(a).
    Next, building on this clarified and harmonized definition of 
``form, fit, and function data,'' the definition of ``segregation or 
reintegration data'' then incorporates a series of additional elements 
to address the concerns previously identified:
    1. Relation to form, fit, and function data. The definition 
expressly states that segregation or reintegration data is data that is 
``more detailed than form, fit, and function data'' but otherwise meets 
the statutory criteria, and cites by way of example such data that 
describes the physical, logical, or operational interface or similar 
functional relationship between items or components.
    2. Objective Standard for Level of Detail Required. The definition 
expressly states that, unless mutually agreed otherwise by the parties, 
the level of detail necessary to support the segregation or 
reintegration activities will be determined by an objective standard--
that required for ``persons reasonably skilled in the art.'' This 
objective standard is modeled after the well-established objective 
standards used for the term ``developed'' at baseline DFARS 252.227-
7013(a)(7), and -7014(a)(7).
    3. Segregation/Reintegration at Any Practical Level. The definition 
recognizes that the segregation or reintegration of an item or process 
is permitted to be performed at ``any practical level, including down 
to the lowest practical level. . . .'' This terminology (and the 
additional examples included in the definition) is adapted from the 
baseline DFARS coverage regarding the segregation of items or processes 
for the determination of source of funding for development (i.e., ``the 
doctrine of segregability''), and the definition of ``developed 
exclusively at private expense'' (see baseline DFARS 227.7103-4(b), 
227.7203-4(b), 252.227-7013(a)(8)(i), and -7014(a)(8)(i)).
    4. Detailed manufacturing or process data and source code. The 
definition also recognizes expressly that the application of the 
definitional elements would not typically require detailed 
manufacturing or process data or source code, but they may be included.

D. Deferred Ordering

    Section 815 also added new paragraph (b)(9) to 10 U.S.C. 2320, 
which provides that the Government shall have the post-contract-award 
right to order technical data under certain conditions. Although such a 
``deferred ordering'' right has been recognized in the DFARS for 
decades, section 815 was the first time that such a right has been 
expressly addressed in the statutory coverage. The baseline DFARS 
coverage for deferred ordering at 227.7103-8(b), 227.7203-8(b), and 
associated clause 252.227-7027, was used as the point of departure for 
implementing the new statutory scheme. However, to avoid any potential 
confusion, the baseline clause number (DFARS 252.227-7027) is being 
reserved, and the new statutorily based deferred ordering framework is 
implemented at the next available DFARS clause number, 252.227-7029.
    The new statutory deferred ordering scheme is codified at 10 U.S.C. 
2320(b)(9), amongst a list of elements that are required to be included 
in the DFARS ``whenever practicable.'' The new statutory framework also 
states that the Government may place a deferred order ``at any time,'' 
provided that certain conditions are met (e.g., covering only certain 
types of data, and the Government must make a required determination 
that additional criteria are met in each case). Accordingly, the clause 
implementing the new statutory deferred ordering scheme is deemed to be 
required in all contracts for which the deferred ordering criteria 
could be met. The clause should therefore be prescribed in all 
contracts except those in which it would be per se impracticable to 
meet the statutory criteria. To avoid scenarios in which the clause 
criteria could be met, but the clause would not have been included up-
front, the clause is prescribed for use in all solicitations and 
contracts using other than FAR part 12 procedures and in those using 
FAR part 12 procedures for the acquisition of commercial items that are 
being acquired for (i) a major system or subsystem thereof, or (ii) a 
weapon system or subsystem thereof. See DFARS 227.7102-4(d), 227.7103-
8(c)(2), 227.7104(e)(4), 227.7202-4(c), and 227.7203-8(c)(2); see also 
new 212.301(f)(xi)(D).
    The new DFARS clause at 252.227-7029 is structured to implement the 
statutory scheme's set of criteria that must be met in order for the 
Government to place a deferred order--
    1. The data must have been ``generated or utilized'' in the 
performance of a contract or subcontract;
    2. The Government must determine that the data is needed for an 
important sustainment or other life cycle support activity for a DoD 
system; and
    3. The Government must determine that the data either--
    a. Result from development activities funded in whole or in part by 
the Government; or
    b. Is segregation or reintegration data.
    DFARS 252.227-7029(a), in addition to the new or revised 
definitions discussed above, provides a new definition for a phrase 
that is used only in this clause, i.e., ``technical data or computer 
software generated or utilized in the performance of this contract or 
any subcontract hereunder.'' The term includes a series of subelements 
that are intended to provide clarity and predictability in interpreting 
whether this criterion is met, with inclusive, and exclusive, 
statements.
    DFARS 252.227-7029(b) implements the new statutory requirements (10 
U.S.C. 2320(b)(9)(A) and (B)) for the Government to determine that 
certain criteria are satisfied, as a prerequisite to making a deferred 
order. However, DoD also concluded that it was unlikely that the 
legislative intent was to completely preclude the Government from 
having any form of deferred ordering right in basic or applied research 
contracts where it would be unlikely that the Government could make one 
of the otherwise-required determinations, i.e., that the technical 
information is needed for sustainment of a major system, weapon system, 
or noncommercial item (see 252.227-7029(b)(1)(i)). Accordingly, the 
requirement for those specific elements of a determination are waived 
for basic or applied research activities (see 252.227-7029(b)(2), when 
the nature of the contract is such that it is likely to be 
impracticable to require such a determination, but the circumstances 
are still directly related to a core objective of the statutory scheme 
(e.g., to ensure that the Government has access to data related to 
development funded in whole or in part by the Government)).
    DFARS 252.227-7029(c) addresses assertions by the contractor that 
technical data or computer software pertains to an item or process 
developed exclusively at private expense. To the extent that disputes 
might arise regarding the Government's determination that the data 
related to technologies developed in whole or in part at Government 
expense, those disputes will be governed by the existing procedures 
governing the validation of asserted restrictions based

[[Page 39485]]

on the source of development funding. Any other dispute arising under 
the clause will be governed by the applicable disputes clause of the 
contract.
    DFARS 252.227-7029(d) clarifies that the obligation to deliver data 
to the Government under an appropriate deferred order is not intended 
to create an implied obligation to preserve data in cases when it would 
otherwise be unreasonable to do so. However, this also is not intended 
to preclude any individual contract from including a requirement to 
preserve any such data for a specified period.
    DFARS 252.227-7029(e) implements the statutory limitation on 
compensation for the contractor's compliance with an appropriate 
deferred order.
    DFARS 252.227-7029(f) preserves and clarifies the long standing 
rule, which is not affected by the statutory changes, that the 
Government's rights in the technical data or computer software that are 
subject to a deferred order are determined in accordance with the 
applicable rights-allocation clauses in the contract (i.e., the license 
rights are unrelated to whether the requirement for delivery was 
established through deferred ordering, through a delivery requirement 
included in the contract at award, or in any other manner for that 
matter).
    DFARS 252.227-7029(g) clarifies that the deferred ordering clause 
is not intended to limit or affect in any way the ability for the 
Government to order through other authorized mechanisms, such as mutual 
agreement, or bilateral or unilateral modification of the contract.
    DFARS 252.227-7029(h) implements the statutory language (at 10 
U.S.C. 2320(b)(10)) that clarifies that the Government's ability to 
require delivery of technical data or computer software is not affected 
by whether the Government exercises its rights to validate asserted 
restrictions on such technical data or computer software.
    DFARS 252.227-7029(i) clarifies that the parties' rights and 
obligations established in the clause will survive the end of the 
contract.
    DFARS 252.227-7029(j) requires the clause to be flowed down to 
lower tier subcontracts in the same manner as the clause is prescribed 
for use in the prime contract.
    Given that segregation or reintegration data is eligible for 
deferred ordering, the regulation must also recognize that such data is 
available for ordering up-front. References to segregation or 
reintegration data are therefore included at DFARS 227.7102-1(a)(2), 
227.7103-2(b), 227.7202-1(c)(1) and -3(b)(1), and 227.7203-2(b)(1).

E. Validation of Asserted Restrictions

    There are two primary changes required by the revisions to 10 
U.S.C. 2321:
    1. The standard duration of the Government's right to challenge the 
validity of an asserted restriction is extended to 6 years, rather than 
the current 3 years (see revised DFARS 252.227-7037(i)); and
    2. For technical data that are the subject of fraudulently asserted 
restrictions, there is no time limit on the right to challenge asserted 
restrictions (see new DFARS 252.227-7037(i)(4)).
    Equivalent revisions were also made to the procedures governing 
validation of asserted restrictions on computer software pursuant to 
the DFARS clause 252.227-7019 (see revised paragraph 252.227-
7019(e)(1), and new paragraph 252.227-7019(e)(1)(D)). The new 
paragraphs 252.227-7019(e)(1)(A)-(C) are merely a relocation of those 
elements, which are embedded within paragraph (e)(1) in the baseline. 
This nonsubstantive revision is intended to clarify these exceptions to 
the standard 6 year limit using a preferred paragraph structure 
analogous to that in the baseline at DFARS 252.227-7037(i)(1) through 
(3).

F. Additional Technical Amendments

     Restructured the paragraphs in the definition of 
``restricted rights'' regarding authorized release/use outside the 
Government--to streamline, eliminate redundancy/complexity, without 
substantive changes--other than the incorporation of segregation or 
reintegration data.
     Corrected references to Small Business Innovation Research 
(SBIR) data in the standard use and non-disclosure agreement at DFARS 
227.7103-7, to conform to changes previously made to the DFARS clause 
252.227-7025, to recognize that SBIR data is restricted and handled in 
a manner equivalent to limited rights technical data and/or restricted 
rights computer software.
     Clarified the prescribed use of the standard use and non-
disclosure agreement and DFARS 252.227-7025: the clause is used in 
contracts (and not the standard use and non-disclosure agreement), and 
the standard use and non-disclosure agreement is used for authorized 
release in any/every other situation other than under a procurement 
contract.
     Clarified in DFARS clause 252.227-7025 (see new paragraphs 
(b)(1)(ii) for limited rights/restricted rights/Small Business 
Innovation Research (SBIR), and (b)(4)(ii) for commercial) and standard 
use and non-disclosure agreement, and related up-front coverage (e.g., 
DFARS 227.7103-5(c)(3), note no equivalent discussion of notice/timing 
for restricted rights at DFARS 227.7203-5(c)) the timing for mandatory 
notice to the technical data/computer software owner, recognizing that 
there are three different time frames (although only 2 relevant to 
standard use and non-disclosure agreement, which cannot be used for a 
covered Government support contractor), depending on the circumstances 
of the release--
    1. Prior to the release, except as noted in 2. and 3.;
    2. As soon as practicable, but not more than 30 days after release 
to a covered Government support contractor (this is not new, already in 
baseline DFARS 252.227-7025(b)(5)(iii); but not applicable to standard 
use and non-disclosure agreement); and
    3. As soon as practicable, in cases of emergency repair or 
overhaul.
     Added an affirmative obligation for the recipient of 
limited rights/restricted rights/SBIR or commercial data to either 
destroy the data, or to return to the Government (at the Government's 
discretion), after completion of the authorized activity. See DFARS 
252.227-7025(b)(1)(iii) and (b)(4)(iii).
     Clarified in standard use and non-disclosure agreement and 
DFARS 252.227-7025 that the recipient of limited rights/restricted 
rights/SBIR, and commercial data, can use the data only as authorized--
(i) in the attachment to the standard use and non-disclosure agreement; 
and (ii) in performance of the contract and only for activities that 
are authorized by the relevant license rights (e.g., emergency repair 
or overhaul, segregation or reintegration data, or covered Government 
support contractor).
     Clarified that the obligations of the parties regarding 
use/handling of technical data/computer software in the DFARS 252.227-
7025 clause, and regarding deferred ordering in the DFARS 252.227-7029 
clause, survive the termination, expiration, or completion of the 
contract. See revisions at DFARS 252.227-7025(e) and 252.227-7029(i).
     Revised DFARS 252.227-7037(j) to include a sentence 
relocated from end of 252.227-7037(i)(3), where it appears to have been 
misplaced, as the topic (the criteria for what constitutes a 
``validation'') is more appropriately aligned with (j).
     Revised DFARS 252.227-7019 and 252.227-7037 throughout to 
be consistent when referring to the

[[Page 39486]]

validation of ``asserted restrictions'' (nomenclature currently 
dominating 252.227-7019, and also used in 10 U.S.C. 2321, although 
252.227-7037 used a mix of referring to validating the asserted 
restrictions and validating the restrictive markings in other cases), 
as distinguished from specific procedures that are directed to the 
associated restrictive markings. No substantive change is intended, 
just consistent use of the nomenclature. See revisions at 252.227-7019; 
and 252.227-7037(c), (d)(1) through (3).
     Amended DFARS 252.227-7019 and 252.227-7037 to clarify 
that disputes under new 252.227-7029(c) are handled under the 
validation procedures in those clauses.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule creates one new DFARS clause 252.227-7029, Deferred 
Ordering of Technical Data or Computer Software, to implement 10 U.S.C. 
2320(b)(9) and (10), which DoD is proposing to apply to contracts at or 
below the SAT, and sometimes to the acquisition of commercial items 
(including COTS items), but not contracts solely for commercial items 
(including COTS items) unless acquiring for a major system or subsystem 
thereof or a weapon system or subsystem thereof.
    10 U.S.C. 2320 and 2321 have established the applicability of 
rights in technical data and validity of proprietary data restrictions 
to noncommercial technical data and commercial technical data. It is 
longstanding Federal and DoD policy and practice to apply the same or 
analogous requirements to computer software.
    This proposed rule also modifies existing provisions and clauses 
that implement 10 U.S.C. 2320 and 2321, or provide analogous treatment 
of computer software, but does not modify the applicability of these 
provisions and clause to contracts at or below the SAT or contracts for 
the acquisition of commercial items, including COTS items.

------------------------------------------------------------------------
                                                          Applies to
                                   Applies below the   commercial items
          DFARS clause                    SAT           (including COTS
                                                            items)
------------------------------------------------------------------------
252.227-7013, Rights in           YES...............  Sometimes, only if
 Technical Data--Noncommercial                         a portion of the
 Items.                                                commercial item
                                                       was developed at
                                                       Government
                                                       expense.
252.227-7014, Rights in           YES...............  NO.
 Noncommercial Computer Software
 and Noncommercial Computer
 Software Documentation.
252.227-7015, Technical Data--    YES...............  YES.
 Commercial items.
252.227-7018, Rights in           YES...............  NO.
 Noncommercial Technical Data
 and Computer Software--Small
 Business Innovation Research
 (SBIR) Program.
252.227-7019, Validation and      NO................  NO.
 Asserted Restrictions--Computer
 Software.
252.227-7025, Limitations on the  YES...............  YES.
 Use or Disclosure of Government-
 Furnished Information Marked
 with Restrictive Legends.
252.227-7037, Validation of       YES...............  YES.
 Asserted Restrictions on
 Technical Data.
------------------------------------------------------------------------

A. Applicability to Contracts at or Below the SAT

    41 U.S.C. 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the SAT. It is intended to 
limit the applicability of laws to such contracts or subcontracts. 41 
U.S.C. 1905 provides that if a provision of law contains criminal or 
civil penalties, or if the FAR Council makes a written determination 
that it is not in the best interest of the Federal Government to exempt 
contracts or subcontracts at or below the SAT, the law will apply to 
them. The Director, Defense Procurement and Acquisition Policy (DPAP), 
is the appropriate authority to make comparable determinations for 
regulations to be published in the DFARS, which is part of the FAR 
system of regulations.
    DoD is proposing to apply the requirements of 10 U.S.C. 2320(b)(9) 
and (10) in the new clause 252.227-7019 to contracts and subcontracts 
at or below the SAT, but will make the final determination after 
receipt and analysis of public comments.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including COTS Items

    41 U.S.C. 1906 governs the applicability of laws to contracts for 
the acquisition of commercial items, and is intended to limit the 
applicability of laws to contracts for the acquisition of commercial 
items. 41 U.S.C. 1906 provides that if a provision of law contains 
criminal or civil penalties, or if the FAR Council makes a written 
determination that it is not in the best interest of the Federal 
Government to exempt commercial item contracts, the provision of law 
will apply to contracts for the acquisition of commercial items. 
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS 
items, with the Administrator for Federal Procurement Policy as the 
decision authority to determine that it is in the best interest of the 
Government to apply a provision of law to acquisitions of COTS items in 
the FAR. The Director, DPAP, is the appropriate authority to make 
comparable determinations for regulations to be published in the DFARS, 
which is part of the FAR system of regulations.
    Section 815 has added a new statutory requirement at 10 U.S.C. 
2320(b), paragraphs (9) and (10), with regard to deferred ordering of 
technical data. As amended, 10 U.S.C. 2320(b)(9)(A) specifies that one 
of the criteria for the right of the Government to require the delivery 
of technical data at any time is whether the technical data is needed 
for the purpose of reprocurement, sustainment, modification, or upgrade 
of a major system or subsystem thereof, a weapon system or subsystem 
thereof, or any noncommercial item or process. Consistent with the 
statutory requirements, DoD is proposing to prescribe the new clause 
that implements 10 U.S.C. 2320(b)(9) and (10) for use in solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items that are being acquired for (i) a major system or 
subsystem thereof, or (ii) a weapon system or subsystem thereof. DoD 
will make the final determination with regard to application to 
commercial items after receipt and analysis of public comments.

[[Page 39487]]

IV. 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.

V. Regulatory Flexibility Act

    DoD does not expect this proposed 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. 
However, an initial regulatory flexibility analysis (IRFA) has been 
performed and is summarized as follows:
    This proposed rule was initiated to implement section 815 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 
(Pub. L. 114-92) that revised 10 U.S.C. 2320 and 2321. Section 815 of 
the NDAA for FY 2012--
     Adds special provisions for handling technical data that 
is necessary for segregation and reintegration activities;
     Codifies and revises the policies and procedures regarding 
deferred ordering of technical data;
     Expands the period in which DoD can challenge an asserted 
restriction on technical data from 3 years to 6 years;
     Rescinds changes to 10 U.S.C. 2320 from the NDAA for FY 
2011; and
     Codifies Government purpose rights as the default rights 
for technical data related to technology developed with mixed funding.
    Based on FY 2015 Federal Procurement Data System data, DoD 
estimates that 60,400 offerors, contractors, and subcontractors may be 
impacted by the proposed changes in this rule, of which approximately 
40,500 (67 percent) may be small entities.
    The provisions and clauses that are proposed to be amended by this 
rule are covered by OMB Clearance 0704-0368, which is currently being 
renewed for a total of 941,528 response hours (75,250 respondents) and 
90,600 recordkeeping hours (60,400 recordkeepers). However, the changes 
in this rule are expected to have negligible impact on the burdens 
already covered by the OMB clearance.
    The proposed rule does not duplicate, overlap, or conflict with any 
other Federal rules.
    DoD was unable to identify any alternatives that would meet the 
requirements of the statute and reduce the burden on small entities.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D022), in 
correspondence.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply to 
this rule; however, these changes to the DFARS do not impose additional 
information collection requirements to the paperwork burden previously 
approved under OMB Control Number 0704-0369, entitled ``DFARS: Subparts 
227.71, Rights in Technical Data; and Subpart 227.72, Rights in 
Computer Software and Computer Software Documentation, and related 
provisions and clauses of the Defense Federal Acquisition Regulation 
Supplement (DFARS).''

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

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 227, and 252 are proposed to be 
amended as follows;

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

0
1. The authority citation for 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

0
2. Amend section 212.301 by--
0
a. In paragraph (f)(xii)(A), removing ``227.7103-6(a)'' and adding 
``227.7103-6(a), to comply with 10 U.S.C. 2320'' in its place;
0
b. Redesignating (f)(xii)(C) as (f)(xii)(E);
0
c. Adding paragraphs (f)(xii)(C) and (D); and
0
d. In newly redesignated paragraph (f)(xii)(E), removing ``227.7102-
4(c)'' and adding ``227.7102-4(e)'' in its place; The additions read as 
follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (f) * * *
    (xii) * * *
    (C) Use the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information with Restrictive Legends 
or Markings, as prescribed in 227.7102-4(c) or 227.7202-4(b), to comply 
with 10 U.S.C. 2320.
    (D) Use the clause at 252.227-7029, Deferred Ordering of Technical 
Data or Computer Software, as prescribed in 227.7102-4(d), 227.7103-
8(c)(2), 227.7202-4(c), or 227.7203-8(c)(2), to comply with 10 U.S.C. 
2320(b)(9).
* * * * *

PART 227--PATENTS, DATA, AND COPYRIGHTS

0
3. Add section 227.001 preceding subpart 227.3 to read as follows:


227.001  Definitions.

    As used in this part--
    Computer database means a collection of recorded data in a form 
capable of being processed by a computer. The term does not include 
computer software.
    Computer program means a set of instructions, rules, or routines 
recorded in a form that is capable of causing a computer to perform a 
specific operation or series of operations.
    Computer software means computer programs, source code, source code 
listings, object code listings, design details, algorithms, processes, 
flow charts, formulae, and related material that would enable the 
software to be reproduced, recreated, or recompiled. Computer software 
does not include computer databases or computer software documentation.
    Computer software documentation means owner's manuals, user's 
manuals, installation instructions, operating instructions, and other 
similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    Covered Government support contractor means a contractor (other 
than a litigation support contractor covered by the clause at DFARS 
252.204-7014, Limitations on the Use or Disclosure of Information by 
Litigation

[[Page 39488]]

Support Contractors) under a contract, the primary purpose of which is 
to furnish independent and impartial advice or technical assistance 
directly to the Government in support of the Government's management 
and oversight of a program or effort (rather than to directly furnish 
an end item or service to accomplish a program or effort), provided 
that the contractor--
    (1) Is not affiliated with the prime contractor or a first-tier 
subcontractor on the program or effort, or with any direct competitor 
of such prime contractor or any such first-tier subcontractor in 
furnishing end items or services of the type developed or produced on 
the program or effort; and
    (2) Receives access to technical data or computer software for 
performance of a Government contract that contains the clause at DFARS 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Legends or Markings.
    Developed is defined at 227.7101 for technical data and at 227.7201 
for computer software and computer software documentation.
    Developed exclusively at private expense means development was 
accomplished entirely with costs charged to indirect cost pools, costs 
not allocated to a Government contract, or any combination thereof.
    (1) Private expense determinations should be made at the lowest 
practicable level.
    (2) 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.
    Developed exclusively with Government funds means development was 
not accomplished exclusively or partially at private expense.
    Developed with mixed funding means development was accomplished 
partially with costs charged to indirect cost pools and/or costs not 
allocated to a Government contract, and partially with costs charged 
directly to a Government contract.
    Form, fit, and function data means technical data or computer 
software that describes the required overall physical, logical, 
configuration, mating, attachment, interface, 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 or functionally equivalent items or 
processes. The term does not include computer software source code, or 
detailed manufacturing or process data.
    Government purpose and Government purpose rights are defined at 
227.7101 for technical data and at 227.7201 for computer software and 
computer software documentation.
    Segregation or reintegration data means technical data or computer 
software that is more detailed than form, fit, and function data and 
that is necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes.
    (1) Unless agreed otherwise by the Government and the contractor, 
the nature, quality, and level of technical detail necessary for these 
data or software shall be that required for persons reasonably skilled 
in the art to perform such segregation or reintegration activities.
    (2) The segregation or reintegration of any such an item or process 
may be performed at any practical level, including down to the lowest 
practicable segregable level, e.g., a subitem or subcomponent level, or 
any segregable portion of a process, computer software (e.g., a 
software subroutine that performs a specific function), or 
documentation.
    (3) The term--
    (i) Includes data or software that describes in more detail (than 
form, fit, and function data) the physical, logical, or operational 
interface or similar functional interrelationship between the items or 
processes; and
    (ii) May include, but would not typically require, detailed 
manufacturing or process data or computer software source code to 
support such segregation or reintegration activities.
    Unlimited rights is defined at 227.7101 for technical data and at 
227.7201 for computer software and computer software documentation.
0
4. In section 227.7101, revise paragraph (b) to read as follows:


227.7101   Definitions.

* * * * *
    (b) Other terms used in this subpart are defined at 227.001 and as 
follows:
    Commercial item does not include commercial computer software (see 
227.7202 for coverage regarding commercial computer software 
documentation).
    Detailed manufacturing or process data means technical data that 
describe the steps, sequences, and conditions of manufacturing, 
processing or assembly used by the manufacturer to produce an item or 
component or to perform a process.
    Developed means that an item, component, or process exists and is 
workable. Thus, the item or component must have been constructed or the 
process practiced. Workability is generally established when the item, 
component, or process has been analyzed or tested sufficiently to 
demonstrate to reasonable people skilled in the applicable art that 
there is a high probability that it will operate as intended. Whether, 
how much, and what type of analysis or testing is required to establish 
workability depends on the nature of the item, component, or process, 
and the state of the art. To be considered ``developed,'' the item, 
component, or process need not be at the stage where it could be 
offered for sale or sold on the commercial market, nor must the item, 
component, or process be actually reduced to practice within the 
meaning of title 35 of the United States Code.
    Government purpose means any activity in which the United States 
Government is a party, including cooperative agreements with 
international or multi-national defense organizations, or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, reproduce, 
release, perform, display, or disclose technical data for commercial 
purposes or authorize others to do so.
    Government purpose rights means the rights to--
    (1) Use, modify, reproduce, release, perform, display, or disclose 
technical data within the Government without restriction; and
    (2) Release or disclose technical data outside the Government and 
authorize persons to whom release or disclosure has been made to use, 
modify, reproduce, release, perform, display, or disclose that data for 
United States Government purposes.
    Limited rights means the rights to use, modify, reproduce, release, 
perform, display, or disclose technical data, in whole or in part, 
within the Government. The Government may not, without the written 
permission of the party asserting limited rights, release or disclose 
the technical data outside the Government, use the technical data for 
manufacture, or authorize the technical data to be used by another 
party, except that the Government may reproduce, release, or disclose 
such data or authorize the use or reproduction of the data by persons 
outside the Government if--

[[Page 39489]]

    (1) The reproduction, release, disclosure, or use is--
    (i) Necessary for emergency repair and overhaul;
    (ii) Necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes; and such reproduction, release, disclosure, or use involves 
only segregation or reintegration data; or
    (iii) A release or disclosure to--
    (A) A covered Government support contractor in performance of its 
covered Government support contract for use, modification, 
reproduction, performance, display, or release or disclosure to a 
person authorized to receive limited rights technical data; or
    (B) A foreign government, of technical data other than detailed 
manufacturing or process data, when use of such data by the foreign 
government is in the interest of the Government and is required for 
evaluational or informational purposes;
    (2) The recipient of the technical data is subject to a prohibition 
on the further reproduction, release, disclosure, or use of the 
technical data; and
    (3) The contractor or subcontractor asserting the restriction is 
notified of such reproduction, release, disclosure, or use.
    Small Business Innovation Research (SBIR) data rights means the 
Government's rights during the SBIR data protection period to use, 
modify, reproduce, release, perform, display, or disclose technical 
data or computer software generated under a SBIR award as follows:
    (1) Limited rights in such SBIR technical data.
    (2) Restricted rights in such SBIR computer software.
    Technical data means recorded information, regardless of the form 
or method of the recording, of a scientific or technical nature 
(including computer software documentation). The term does not include 
computer software or data incidental to contract administration, such 
as financial and/or management information.
    Unlimited rights means rights to use, modify, reproduce, perform, 
display, release, or disclose technical data in whole or in part, in 
any manner, and for any purpose whatsoever, and to have or authorize 
others to do so.
0
5. Revise section 227.7102 heading to read as follows:


227.7102   Commercial items.

0
6. Amend section 227.7102-1 by--
0
a. In paragraph (a) introductory text, removing ``commercial item or 
process'' and adding ``commercial item'' in its place;
0
b. In paragraph (a)(1), removing ``fit, or function'' and adding ``fit, 
and function'' in its place;
0
c. Redesignating paragraphs (a)(2) and (3) as (a)(3) and (4), 
respectively;
0
d. Adding new paragraph (a)(2);
0
e. In newly redesignated paragraph (a)(3), removing ``commercial items 
or processes'' and adding ``commercial items'' in its place, and 
removing ``stand alone unit'' and adding ``stand-alone unit'' in its 
place;
0
f. In the newly redesignated paragraph (a)(4), removing ``commercial 
item or process'' and adding ``commercial item'' in its place;
0
g. In paragraph (b), removing ``commercial products'' and adding 
``commercial items'' in its place;
0
h. In paragraph (b)(1), removing ``commercial items or processes'' and 
adding ``commercial items'' in its place; and
0
i. In paragraph (b)(2), removing ``commercial items or processes'' and 
adding ``commercial items'' in its place.
    The addition reads as follows:


227.7102-1   Policy.

    (a) * * *
    (2) Are segregation or reintegration data;
* * * * *
0
7. Amend section 227.7102-2 by revising paragraph (a) to read as 
follows:


227.7102-2   Rights in technical data.

    (a) The clause at 252.227-7015, Technical Data-Commercial Items, 
provides the Government specific license rights in technical data 
pertaining to commercial items. DoD may use, modify, reproduce, 
release, perform, display, or disclose data only within the Government. 
The data may not be used to manufacture additional quantities of the 
commercial items. Except for emergency repair or overhaul, segregation 
or reintegration, foreign government evaluational or informational 
purposes (other than detailed manufacturing or process data), or 
covered Government support contractor activities, the data may not be 
released or disclosed to, or used by, third parties without the 
contractor's written permission. Those restrictions do not apply to the 
technical data described in 227.7102-1(a).
* * * * *
0
8. Amend section 227.7102-4 by--
0
a. Redesignating paragraph (c) as (e);
0
b. Adding new paragraphs (c) and paragraph (d); and
0
c. In the newly redesignated paragraph (e), removing ``Validation of 
Restrictive Markings'' and adding ``Validation of Asserted 
Restrictions'' in its place.
    The additions read as follows:


227.7102-4   Contract clauses.

* * * * *
    (c) Use the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information with Restrictive Legends 
or Markings, in solicitations and contracts when it is anticipated that 
the Government will provide the contractor (other than a litigation 
support contractor covered by the clause at 252.204-7014, Limitations 
on the Use or Disclosure of Information by Litigation Support 
Contractors), for performance of its contract, technical data marked 
with another contractor's restrictive legend(s) or marking(s).
    (d) Use the clause at 252.227-7029, Deferred Ordering of Technical 
Data or Computer Software, in all solicitations and contracts using 
other than FAR part 12 procedures, and in all solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items that are being acquired for--
    (1) A major system or subsystem thereof; or
    (2) A weapon system or subsystem thereof.
* * * * *
0
9. Amend section 227.7103-2 by revising paragraph (b)(1) to read as 
follows:


227.7103-2   Acquisition of technical data.

* * * * *
    (b)(1) Data managers or other requirements personnel are 
responsible for identifying the Government's minimum needs for 
technical data. Data needs must be established giving consideration to 
the contractor's economic interests in data pertaining to items or 
processes that have been developed at private expense; the return on 
the Government's investment in the development of items or processes 
(including technology transfer/transition to other programs); the 
Government's costs to acquire, maintain, store, retrieve, and protect 
the data; the Government's short-term and long-term reprocurement and 
sustainment needs, including repair, maintenance, overhaul, spare and 
repair parts, and technology upgrade/insertion; and whether procurement 
of the items or processes (or physical or functional equivalents 
thereof) can be accomplished on a form, fit, and function or 
segregation or reintegration basis. When it is anticipated that the 
Government will obtain unlimited or Government purpose rights in 
technical data that will be required for

[[Page 39490]]

competitive reprocurement or sustainment activities, such data should 
be identified as deliverable data items. Reprocurement needs may not be 
a sufficient reason to acquire detailed manufacturing or process data 
when privately developed items or processes (or physical or functional 
equivalents thereof) can be acquired using performance specifications, 
form, fit, and function data, segregation or reintegration data, or 
when there are a sufficient number of alternate sources that can 
reasonably be expected to provide such items on a performance 
specification, form, fit, and function, or segregation or reintegration 
basis.
* * * * *
0
10. Amend section 227.7103-5 by--
0
a. In paragraph (b)(4) introductory text, removing ``government purpose 
rights'' and adding ``Government purpose rights'' wherever it appears;
0
b. In paragraph (b)(4)(ii), removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive Legends 
or Markings'' in its place;
0
c. In paragraphs (c)(1)(i) and (ii), removing ``items, components, or 
processes'' and adding ``items or processes'' in both places;
0
d. Redesignating paragraphs (c)(2)(ii) and (iii) as (c)(2)(iii) and 
(iv), respectively;
0
e. Adding new paragraph (c)(2)(ii);
0
f. Revising paragraph (c)(3); and
0
g. In paragraph (c)(4), removing ``(c)(2)(i), (ii), or (iii)'' and 
adding ``(c)(2)'' in its place; and removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive Legends 
or Markings'' in its place.
    The addition and revision reads as follows:


227.7103-5   Government rights.

* * * * *
    (c) * * *
    (2) * * *
    (ii) Necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes;
* * * * *
    (3) The person asserting limited rights must be notified of the 
Government's intent to release, disclose, or authorize others to use 
such data prior to release or disclosure of the data, except 
notification of an intended release or disclosure for--
    (i) Covered Government support contractor activities, which shall 
be made as soon as practicable, but not later than 30 days after such 
release or disclosure; and
    (ii) Emergency repair or overhaul, which shall be made as soon as 
practicable.
* * * * *
0
11. Amend section 227.7103-6 by--
0
a. Revising paragraph (c); and
0
b. In paragraph (e)(3), removing ``Validation of Restrictive Markings'' 
and adding ``Validation of Asserted Restrictions'' in its place.
    The revision reads as follows:


227.7103-6   Contract clauses.

* * * * *
    (c) Use the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information with Restrictive Legends 
or Markings, in solicitations and contracts when it is anticipated that 
the Government will provide the contractor, for performance of its 
contract, technical data marked with another contractor's restrictive 
legend(s) or marking(s). The clause shall be incorporated into the 
contract prior to the Government releasing any such technical data to 
the contractor. See 227.7103-7 when releasing such technical data to 
offerors or to any person other than the contractor.
* * * * *
0
12. Amend section 227.7103-7 by--
0
a. In paragraph (a)(1), removing ``limited rights'' and adding 
``limited rights or SBIR data rights,'' in its place, and removing 
``restricted rights'' and adding ``restricted rights or SBIR data 
rights,'' in its place;
0
b. Revising paragraph (b); and
0
c. Revising paragraph (c)(1).
    The revisions read as follows:


227.7103-7   Use and non-disclosure agreement.

* * * * *
    (b) Do not use the use and non-disclosure agreement at paragraph 
(c) for releases to Government contractors. Such releases are 
authorized only under contracts that contain the clause at 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished 
Information with Restrictive Legends or Markings.
    (c) * * *
    (1) The Recipient shall--
    (a) Use, modify, reproduce, release, perform, display, or disclose 
Data marked with Government purpose rights legends only for Government 
purposes and shall not do so for any commercial purpose. The Recipient 
shall not release, perform, display, or disclose these Data, without 
the express written permission of the contractor whose name appears in 
the restrictive legend (the ``Contractor''), to any person other than 
its subcontractors or suppliers, or prospective subcontractors or 
suppliers, who require these Data to submit offers for, or perform, 
contracts with the Recipient. The Recipient shall require its 
subcontractors or suppliers, or prospective subcontractors or 
suppliers, to sign a use and non-disclosure agreement prior to 
disclosing or releasing these Data to such persons. Such agreement must 
be consistent with the terms of this agreement.
    (b) Use, modify, reproduce, release, perform, display, or disclose 
technical data marked with limited rights or SBIR data rights legends 
only as authorized in the attachment to this Agreement. Release, 
performance, display, or disclosure to other persons is not authorized 
unless specified in the attachment to this Agreement or expressly 
permitted in writing by the Contractor. The Recipient shall promptly 
notify the Contractor of the execution of this Agreement and identify 
the Contractor's Data that has been or will be provided to the 
Recipient, the date and place the Data were or will be received, and 
the name and address of the Government office that has provided or will 
provide the Data. This notice shall be made prior to such release or 
disclosure to the Recipient, except in cases of emergency repair or 
overhaul activities, in which case such notice must be made as soon as 
practicable. The Recipient shall destroy (or return to the Government 
at the request of the Government) the technical data and all copies in 
its possession promptly following completion of the authorized 
activities, and shall notify the Contractor that the data have been 
destroyed (or returned to the Government).
    (c) Use computer software marked with restricted rights or SBIR 
data rights legends only as authorized in the attachment to this 
Agreement. The recipient shall not, for example, enhance, decompile, 
disassemble, or reverse engineer the software; time share, or use a 
computer program with more than one computer at a time. The recipient 
shall not release, perform, display, or disclose such software to 
others unless authorized in the attachment to this Agreement or 
expressly permitted in writing by the Contractor. The Recipient shall 
promptly notify the Contractor of the execution of this Agreement and 
identify the 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. This notice shall be made prior to such

[[Page 39491]]

release or disclosure to the Recipient, except in cases of emergency 
repair or overhaul activities, in which case such notice must be made 
as soon as practicable. The Recipient shall destroy (or return to the 
Government at the request of the Government) the software and all 
copies in its possession promptly following completion of the 
authorized activities, and shall notify the Contractor that the 
software has been destroyed (or returned to the Government).
    (d) Use, modify, reproduce, release, perform, display, or disclose 
Data marked with special license rights legends (to be completed by the 
contracting officer. See 227.7103-7(a)(2). Omit if none of the Data 
requested is marked with special license rights legends).
    (e) Use, modify, reproduce, perform, or display technical data that 
is or pertains to a commercial item and is received from the Government 
with commercial restrictive markings (i.e., marked to indicate that 
such data are subject to use, modification, reproduction, release, 
performance, display, or disclosure restrictions) only in the 
performance of this contract and only for activities authorized in the 
commercial limited rights license (defined at DFARS 252.227-7015(a)(2)) 
for recipients of the technical data. The Contractor shall not, without 
the express written permission of the party asserting such 
restrictions, use the technical data to manufacture additional 
quantities of the commercial items or for any other unauthorized 
purpose, or release or disclose such data to any unauthorized person. 
The Contractor will ensure that the party asserting restrictions is 
notified prior to such authorized release or disclosure, except that 
notice of such emergency repair or overhaul activities shall be made as 
soon as practicable. The Contractor shall destroy (or return to the 
Government at the request of the Contracting Officer) the data and all 
copies in its possession promptly following completion of the 
authorized activities under this contract, and shall notify the party 
asserting restrictions that the data have been destroyed (or returned 
to the Government).
    (f) Use, modify, reproduce, perform, or display commercial computer 
software, or segregation or reintegration data pertaining to commercial 
computer software, received from the Government with commercial 
restrictive markings (i.e., marked to indicate that such software are 
subject to use, modification, reproduction, release, performance, 
display, or disclosure restrictions) only in the performance of this 
contract and only for activities, if any, that are authorized in the 
applicable commercial license or any additional specially negotiated 
license rights (pursuant to DFARS 227.7202-3). The Contractor shall 
not, without the express written permission of the party asserting such 
restrictions, use the computer software for any other unauthorized 
purpose, or release or disclose such software to any unauthorized 
person. The Contractor will ensure that the party asserting 
restrictions is notified prior to such authorized release or 
disclosure. The Contractor shall destroy (or return to the Government 
at the request of the Contracting Officer) the software and all copies 
in its possession promptly following completion of the authorized 
activities under this contract, and shall notify the party asserting 
restrictions that the data or software has been destroyed (or returned 
to the Government).
* * * * *
0
13. Revise section 227.7103-8 to read as follows:


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

    (a) Deferred delivery. The clause at 252.227-7026, Deferred 
Delivery of Technical Data or Computer Software, permits the 
contracting officer to require the delivery of technical data or 
computer software identified as ``deferred delivery'' data at any time 
until 2 years after acceptance by the Government of all items (other 
than technical data or computer software) under the contract or 
contract termination, whichever is later. The obligation of 
subcontractors or suppliers to deliver such technical data or computer 
software expires 2 years after the date the prime contractor accepts 
the last item from the subcontractor or supplier for use in the 
performance of the contract. The contract must specify which technical 
data or computer software is subject to deferred delivery. The 
contracting officer shall notify the contractor sufficiently in advance 
of the desired delivery date for such data to permit timely delivery.
    (b) Deferred ordering. The clause at 252.227-7029, Deferred 
Ordering of Technical Data or Computer Software, allows the contracting 
officer to order certain technical data or computer software that was 
not delivered or otherwise furnished under a contract, but that were 
generated or utilized in the performance of a contract. The 
availability of deferred ordering procedures under this clause, 
however, does not diminish or alter the Government's responsibility for 
advance planning and proactive management of program needs for 
technical data in accordance with 227.7103-1 and -2, and computer 
software in accordance with 227.7203-1 and -2. Follow the procedures 
and requirements at PGI 227.7103-8(b).
    (c) Contract clauses. Use the clause at--
    (1) 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; and
    (2) 252.227-7029, Deferred Ordering of Technical Data or Computer 
Software, in all solicitations and contracts using other than FAR part 
12 procedures, and in all solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items that are being 
acquired for--
    (i) A major system or subsystem thereof; or
    (ii) A weapon system or subsystem thereof.
0
14. Amend section 227.7103-13 by--
0
a. In paragraph (d) introductory text, removing ``Validation of 
Restrictive Markings'' and adding ``Validation of Asserted 
Restrictions'' in its place;
0
b. In paragraph (d)(1) removing ``three years'' and adding ``6 years'' 
in two places, and removing ``restrictive markings'' and adding 
``asserted restrictions'' in its place;
0
c. In paragraph (d)(1)(ii), removing ``or'';
0
d. In paragraph (d)(1)(iii), removing the period at the end of the 
sentence, and adding a semicolon and the word ``or'' in its place; and
0
e. Adding paragraph (d)(1)(iv).
    The addition reads as follows:


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

* * * * *
    (d) * * *
    (1) * * *
    (iv) Are the subject of a fraudulently asserted use or release 
restriction.
* * * * *


227.7103-15  [Amended]

0
15. Amend section 227.7103-15 in paragraph (c)(2) by removing 
``Information Marked with Restrictive Legends'' and adding 
``Information with Restrictive Legends or Markings'' in its place.
0
16. Amend section 227.7104 by--
0
a. Redesignating paragraphs (e)(4) and (5) as (e)(5) and (6);
0
b. Adding new paragraph (e)(4);
0
c. In the newly redesignated paragraph (e)(6), removing ``Validation of 
Restrictive Markings'' and adding

[[Page 39492]]

``Validation of Asserted Restrictions'' in its place; and
0
d. In paragraph (f)(1), removing ``Information Marked with Restrictive 
Legends'' and adding ``Information with Restrictive Legends or 
Markings'' in its place.
    The addition reads as follows:


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

    (e) * * *
    (4) 252.227-7029, Deferred Ordering of Technical Data or Computer 
Software;
* * * * *
0
17. Amend section 227.7201 by revising paragraph (b) to read as 
follows:


227.7201  Definitions.

* * * * *
    (b) Other terms used in this subpart are defined at 227.001 and as 
follows:
    Commercial computer software means any computer software that is a 
commercial item.
    Developed means that--
    (1) 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;
    (2) Computer software, other than computer programs, has been 
tested or analyzed to the extent sufficient to demonstrate to 
reasonable persons skilled in the art that the software can reasonably 
be expected to perform its intended purpose; or
    (3) Computer software documentation required to be delivered under 
a contract has been written, in any medium, in sufficient detail to 
comply with requirements under that contract.
    Government purpose means any activity in which the United States 
Government is a party, including cooperative agreements with 
international or multi-national defense organizations or sales or 
transfers by the United States Government to foreign governments or 
international organizations. Government purposes include competitive 
procurement, but do not include the rights to use, modify, reproduce, 
release, perform, display, or disclose computer software or computer 
software documentation for commercial purposes or authorize others to 
do so.
    Government purpose rights means the rights to--
    (1) Use, modify, reproduce, release, perform, display, or disclose 
computer software or computer software documentation within the 
Government without restriction; and
    (2) Release or disclose computer software or computer software 
documentation outside the Government and authorize persons to whom 
release or disclosure has been made to use, modify, reproduce, release, 
perform, display, or disclose the software or documentation for United 
States Government purposes.
    Minor modification means a modification that does not significantly 
alter the nongovernmental function or purpose of the software or is of 
the type customarily provided in the commercial marketplace.
    Noncommercial computer software means software that does not 
qualify as commercial computer software under paragraph (a)(1) of the 
clause at 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.
    Restricted rights apply only to noncommercial computer software and 
mean the Government's rights to--
    (1) Use a computer program with one computer at one time. The 
program may not be accessed by more than one terminal or central 
processing unit or time shared unless otherwise permitted by this 
contract;
    (2) Transfer a computer program to another Government agency 
without the further permission of the Contractor if the transferor 
destroys all copies of the program and related computer software 
documentation in its possession and notifies the licensor of the 
transfer. Transferred programs remain subject to the provisions of the 
clause at DFARS 252.227-7014;
    (3) Make the minimum number of copies of the computer software 
required for safekeeping (archive), backup, or modification purposes;
    (4) Modify computer software provided that the Government may--
    (i) Use the modified software only as provided in paragraphs 
(a)(15)(i) and (iii) of the clause at 252.227-7014; and
    (ii) Not release or disclose the modified software except as 
provided in paragraph (a)(15)(ii) or (v) of the clause at 252.227-7014; 
and
    (5) Reproduce and release or disclose the computer software outside 
the Government only if--
    (i) The reproduction, release, or disclosure is necessary to--
    (A) Permit contractors or subcontractors performing service 
contracts (see FAR 37.101) in support of this or a related contract to 
use computer software to diagnose and correct deficiencies in a 
computer program, to modify computer software to enable a computer 
program to be combined with, adapted to, or merged with other computer 
programs or when necessary to respond to urgent tactical situations;
    (B) 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;
    (C) Permit covered Government support contractors in the 
performance of covered Government support contracts to use, modify, 
reproduce, perform, display, or release or disclose the computer 
software to a person authorized to receive restricted rights computer 
software; or
    (D) Permit contractors or subcontractors to use, modify, reproduce, 
perform, display, or release or disclose segregation or reintegration 
data to segregate computer software from, or reintegrate that software 
(or functionally equivalent software) with, other computer software;
    (ii) Each recipient contractor or subcontractor ensures that the 
party that has granted restricted rights is notified of such release or 
disclosure;
    (iii) Such contractors or subcontractors are subject to the use and 
non-disclosure agreement at DFARS 227.7103-7 or are Government 
contractors receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information with Restrictive Legends or Markings;
    (iv) The Government does not permit the recipient to use, 
decompile, disassemble, or reverse engineer the software, or use 
software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(15)(iv) of the clause at 252.227-
7014, for any purpose other than those authorized in paragraph 
(a)(15)(v)(A); and
    (v) The recipient's use of the computer software is subject to the 
limitations in paragraphs (a)(15)(i) through (iv) of the clause at 
252.227-7014.
    Unlimited rights means rights to use, modify, reproduce, release, 
perform, display, or disclose computer software or computer software 
documentation in whole or in part, in any manner and for any purpose 
whatsoever, and to have or authorize others to do so.


227.7202-1  [Amended]

0
18. Amend section 227.7202-1 in paragraph (c)(1) by removing ``except 
for information'' and adding ``except for

[[Page 39493]]

form, fit, and function data, segregation or reintegration data, or 
information'' in its place.
0
19. Amend section 227.7202-3 by--
0
a. In paragraph (a), removing ``The Government'' and adding ``Except as 
provided in paragraphs (b) and (c) of this section, the Government'' in 
its place;
0
b. Redesignating paragraph (b) as paragraph (c);
0
c. Adding new paragraph (b); and
0
d. In the newly redesignated paragraph (c), removing ``rights not 
conveyed'' and adding ``rights that are not conveyed'', and removing 
``provided to the public'' and adding ``provided to the public and are 
not authorized to be required by paragraph (b) of this section'' in its 
place.
    The addition reads as follows:


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

* * * * *
    (b)(1) For segregation and reintegration data, the Government may 
require that its license rights include the right for the Government to 
use, modify, reproduce, release, perform, display, or disclose that 
data to the extent necessary for the segregation of the commercial 
computer software from, or the reintegration of that commercial 
computer software (or functionally equivalent computer software) with, 
other computer software, items, or processes. Unless the parties agree 
otherwise in accordance with paragraph (c) of this section, the license 
shall authorize the Government to release the segregation and 
reintegration data outside the Government only if--
    (i) The recipient of the data is subject to a prohibition on the 
further reproduction, release, disclosure, or use of that data; and
    (ii) The contractor or subcontractor asserting the restriction is 
notified of such reproduction, release, disclosure, or use.
    (2) Follow the procedures and requirements at PGI 227.7202-3(b).
* * * * *
0
20. Amend section 227.7202-4 by--
0
a. Revising the section heading;
0
b. Designating the introductory text as paragraph (a); and
0
c. Adding paragraphs (b) and (c).
    The revision and additions read as follows:


227.7202-4  Contract clauses.

* * * * *
    (b) Use the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information with Restrictive Legends 
or Markings, in solicitations and contracts when it is anticipated that 
the Government will provide the contractor (other than a litigation 
support contractor covered by 252.204-7014, Limitations on the Use or 
Disclosure of Information by Litigation Support Contractors), for 
performance of its contract, technical data or computer software marked 
with another contractor's restrictive legend(s) or marking(s).
    (c) Use the clause at 252.227-7029, Deferred Ordering of Technical 
Data or Computer Software, in all solicitations and contracts using 
other than FAR part 12 procedures, and in all solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items that are being acquired for--
    (1) A major system or subsystem thereof; or
    (2) A weapon system or subsystem thereof.
0
21. Amend section 227.7203-2 by revising paragraph (b)(1) to read as 
follows:


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

* * * * *
    (b)(1) Data managers or other requirements personnel are 
responsible for identifying the Government's minimum needs. In addition 
to desired software performance, compatibility, or other technical 
considerations, needs determinations should consider such factors as 
multiple site or shared use requirements; whether the Government's 
software operation or sustainment will require the right to modify or 
have third parties modify the software; contractor's economic interests 
in computer software developed at private expense; the return on the 
Government's investment in the development of computer software 
(including technology transfer/transition to other programs); the 
Government's costs to acquire, maintain, store, retrieve, and protect 
the software or documentation; the Government's short-term and long-
term reprocurement and sustainment needs, including repair, 
maintenance, overhaul, spare and repair parts, and technology upgrade/
insertion; whether procurement of the software (or functional 
equivalents thereof) can be accomplished on a form, fit, and function 
or segregation or reintegration basis; and any special computer 
software documentation requirements.
* * * * *


227.7203-5   [Amended]

0
22. Amend section 227.7203-5 by--
0
a. In paragraph (b)(4) introductory text, removing ``government purpose 
rights'' and adding ``Government purpose rights'' in its place wherever 
it appears; and
0
b. In paragraph (b)(4)(ii) removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive Legends 
or Markings'' in its place.
0
23. Amend section 227.7203-6 by--
0
a. Revising the section heading;
0
b. Revising paragraph (d); and
0
c. In paragraph (f) by removing ``Validation of Restrictive Markings'' 
and adding ``Validation of Asserted Restrictions'' in its place.
    The revisions read as follows:


227.7203-6   Solicitation provision and contract clauses.

* * * * *
    (d) Use the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information with Restrictive Legends 
or Markings, in solicitations and contracts when it is anticipated that 
the Government will provide the contractor (other than a litigation 
support contractor covered by 252.204-7014, Limitations on the Use or 
Disclosure of Information by Litigation Support Contractors), for 
performance of its contract, computer software or computer software 
documentation marked with another contractor's restrictive legend(s) or 
marking(s). The clause must be incorporated into the contract prior to 
the Government releasing any such computer software or computer 
software documentation to the Contractor.
* * * * *
0
24. Revise section 227.7203-8 to read as follows:


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

    (a) Deferred delivery. The clause at 252.227-7026, Deferred 
Delivery of Technical Data or Computer Software, permits the 
contracting officer to require the delivery of computer software or 
computer software documentation identified as ``deferred delivery'' 
data at any time until 2 years after acceptance by the Government of 
all items (other than technical data or computer software) under the 
contract or contract termination, whichever is later. The obligation of 
subcontractors or suppliers to deliver such data expires 2 years after 
the date the prime contractor accepts the last item from the 
subcontractor or supplier for use in the performance of the contract. 
The contract must specify the computer software or computer software 
documentation that is subject

[[Page 39494]]

to deferred delivery. The contracting officer shall notify the 
contractor sufficiently in advance of the desired delivery date for 
such software or documentation to permit timely delivery.
    (b) Deferred ordering. The clause at 252.227-7029, Deferred 
Ordering of Technical Data or Computer Software, allows the contracting 
officer to order certain technical data or computer software that was 
not delivered or otherwise furnished under a contract, but that was 
generated or utilized in the performance of a contract. The 
availability of deferred ordering procedures under this clause, 
however, does not diminish or alter the Government's responsibility for 
advance planning and proactive management of program needs for 
technical data and computer software in accordance with 227.7103-1 and 
-2, and 227.7203-1 and -2, respectively. Follow the procedures and 
requirements at PGI 227.7103-8(b).
    (c) Contract clauses. Use the clause at--
    (1) 252.227-7026, Deferred Delivery of Technical Data or Computer 
Software, when it is in the Government's interests to defer the 
delivery of computer software or computer software documentation; and
    (2) 252.227-7029, Deferred Ordering of Technical Data or Computer 
Software, in all solicitations and contracts using other than FAR part 
12 procedures, and in all solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items that are being 
acquired for--
    (i) A major system or subsystem thereof; or
    (ii) A weapon system or subsystem thereof.


227.7203-13   [Amended]

0
25. Amend section 227.7203-13 in paragraph (e)(3)(i) by removing 
``three years'' and adding ``6 years'' in two places, and removing ``or 
has been otherwise made available without restrictions'' and adding 
``has been otherwise made available without restrictions, or is the 
subject of a fraudulently asserted use or release restriction'' in its 
place.


227.7203-15   [Amended]

0
26. Amend section 227.7203-15 by--
0
a. In paragraph (c)(1), removing the semicolon and replacing it with a 
period;
0
b. In paragraph (c)(2), removing the semicolon and replacing it with a 
period; and
0
c. In paragraph (c)(3), removing ``Information Marked with Restrictive 
Legends; and'' and adding ``Information with Restrictive Legends or 
Markings.'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
27. Amend section 252.227-7013 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its 
place;
0
b. In paragraph (a)--
    i. Removing paragraph number designations;
    ii. In the definition of ``Covered Government support contractor'' 
removing ``covered by 252.204-7014'' and adding ``covered by the clause 
at DFARS 252.204-7014, Limitations on the Use or Disclosure of 
Information by Litigation Support Contractors,'' in its place; 
redesignating (i) and (ii) as (1) and (2), respectively; and in the 
newly redesignated (2), removing ``252.227-7025, Limitations on the Use 
or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information with 
Restrictive Legends or Markings'' in its place;
    iii. In the definition of ``Developed exclusively at private 
expense'', removing in the introductory text the word ``government'' 
and adding ``Government'' in its place; redesignating paragraphs (i) 
and (ii) as (1) and (2), respectively; and, in the newly redesignated 
paragraph (2) removing the word ``government'' and adding 
``Government'' in its place;
    iv. In the definition of ``Developed exclusively with government 
funds'' removing the word ``government'' and adding ``Government'' in 
its place;
    v. In the definition of ``Developed with mixed funding'' removing 
the word ``government'' and adding ``Government'' in its place in two 
places;
    vi. Revising the definition of ``Form, fit and function data'';
    vii. In the definition of ``Government purpose rights'' 
redesignating paragraphs (i) and (ii) as (1) and (2), respectively; and 
in the newly redesignated paragraph (2) removing ``government 
purposes'' and adding ``Government purposes'' in its place;
    viii. In the definition of ``Limited rights'', redesignating 
paragraph (i) introductory text, paragraphs (ii), and (iii) as 
paragraph (1) introductory text, paragraphs (2), and (3), respectively; 
in the newly redesignated paragraph (1), redesignating paragraphs 
(1)(A) and (B) introductory text as paragraphs (1)(i) and (iii) 
introductory text, respectively; adding paragraph (1)(ii); in the newly 
redesignated paragraph (1)(i), removing ``or''; and in the newly 
redesignated paragraph (1)(iii), redesignating paragraphs (1)(iii)(1) 
and (2) as paragraphs (1)(iii)(A) and (B), respectively; and
    ix. Adding, in alphabetical order, the definition for ``Segregation 
or reintegration data'';
0
c. In paragraph (b)(2)(i), removing ``government purpose'' and adding 
``Government purpose'' in its place; and removing ``five-year'' and 
adding ``5-year'' in its place;
0
d. In paragraph (b)(2)(iii) removing ``government purpose'' and adding 
``Government purpose'' in its place;
0
e. In paragraph (b)(2)(iii)(B), removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive Legends 
or Markings'' in its place;
0
f. In paragraph (b)(2)(iv), removing ``government purpose'' and adding 
``Government purpose'' in its place in two places;
0
g. In paragraphs (b)(3)(i)(A) and (B), removing ``items, components, 
and processes'' and adding ``items or processes'' in both places;
0
h. Revising paragraph (b)(3)(ii);
0
i. Redesignating paragraphs (b)(3)(iii) and (iv) introductory text as 
(b)(3)(iv) and (v) introductory text, respectively;
0
j. Adding paragraph (b)(3)(iii);
0
k. Amending paragraph (b)(3)(v)(D) by removing ``252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information Marked with Restrictive Legends'' and adding ``DFARS 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Legends or Markings'' in its 
place;
0
l. Amending paragraph (b)(4) by removing ``government purpose'' and 
adding ``Government purpose'' in its place;
0
m. Amending paragraph (b)(5) heading by removing ``government'' and 
adding ``Government'' in its place;
0
n. Amending paragraph (f) by removing ``government purpose'' and adding 
``Government purpose'' in its place;
0
o. Amending paragraph (f)(4)(ii) by removing ``government purpose'' and 
adding ``Government purpose'' in its place; and
0
p. In Alternate II--
0
i. Revising the clause date and the introductory text; and
0
ii. In paragraph (a), removing ``(a)(17)'' and adding ``(a)'' in its 
place.
    The revision and additions read as follows:

[[Page 39495]]

252.227-7013   Rights in Technical Data--Noncommercial Items.

* * * * *
    (a) * * *
    Form, fit, and function data means technical data or computer 
software that describes the required overall physical, logical, 
configuration, mating, attachment, interface, 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 or functionally equivalent items or 
processes. The term does not include computer software source code, or 
detailed manufacturing or process data.
* * * * *
    Limited rights * * *
    (1) * * *
    (ii) Necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes; and such reproduction, release, disclosure, or use involves 
only segregation or reintegration data; or
* * * * *
    Segregation or reintegration data means technical data or computer 
software that is more detailed than form, fit, and function data and 
that is necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes.
    (1) Unless agreed otherwise by the Government and the contractor, 
the nature, quality, and level of technical detail necessary for these 
data or software shall be that required for persons reasonably skilled 
in the art to perform such segregation or reintegration activities.
    (2) The segregation or reintegration of any such an item or process 
may be performed at any practical level, including down to the lowest 
practicable segregable level, e.g., a subitem or subcomponent level, or 
any segregable portion of a process, computer software (e.g., a 
software subroutine that performs a specific function), or 
documentation.
    (3) The term--
    (i) Includes data or software that describes in more detail (than 
form, fit, and function data) the physical, logical, or operational 
interface or similar functional interrelationship between the items or 
processes; and
    (ii) May include, but would not typically require, detailed 
manufacturing or process data or computer software source code to 
support such segregation or reintegration activities.
* * * * *
    (b) * * *
    (3) * * *
    (ii) The Government shall require a recipient of limited rights 
data for emergency repair or overhaul to destroy (or return to the 
Government at the request of the Contracting Officer) the data and all 
copies in its possession promptly following completion of the emergency 
repair/overhaul and to notify the Contractor that the data have been 
destroyed (or returned to the Government).
    (iii) The Government shall require a recipient of limited rights 
data for segregation or reintegration activities to destroy the data 
and all copies in its possession promptly following completion of the 
segregation or reintegration activities in performance of the contract 
under which such data were received, and to notify the Contractor that 
the data have been destroyed.
* * * * *

ALTERNATE II (DATE)

    As prescribed in 227.7103-6(b)(2), add to the basic clause the 
following definition of ``vessel design'' in paragraph (a) and the 
following paragraph (b)(7):
* * * * *
0
28. Amend section 252.227-7014 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its 
place;
0
b. In paragraph (a)--
0
i. Removing paragraph number designations;
0
ii. Revising the definition of ``Commercial computer software'';
0
iii. In the definition of ``Covered Government support contractor'' 
removing from the introductory text ``covered by 252.204-7014'' and 
adding ``covered by the clause at DFARS 252.204-7014, Limitations on 
the Use or Disclosure of Information by Litigation Support 
Contractors,'' in its place; redesignating paragraphs (i) and (ii) as 
(1) and (2), respectively; in the newly redesignated paragraph (2) 
removing ``252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends'' and 
adding ``DFARS 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information with Restrictive Legends or Markings'' 
in its place;
0
iv. In the definition of ``Developed'' redesignating paragraphs (i), 
(ii), and (iii) as (1), (2), and (3), respectively;
0
v. In the definition of ``Developed exclusively at private expense'' 
removing from the introductory text ``government'' and adding 
``Government'' in its place; redesignating paragraphs (i) and (ii) as 
(1) and (2), respectively; and in the newly redesignated paragraph (2) 
removing ``government'' and adding ``Government'' in its place;
0
vi. In the definition of ``Developed exclusively with government 
funds'' removing ``government'' and adding ``Government'' in its place;
0
vii. In the definition of ``Developed with mixed funding'' removing 
``government'' and adding ``Government'' in its place in two places;
0
viii. Adding a definition for ``Form, fit, and function data'';
0
ix. In the definition of ``Government purpose rights'' redesignating 
paragraphs (i) and (ii) as (1) and (2), respectively; and in the newly 
redesignated paragraph (2) removing ``government purposes'' and adding 
``Government purposes'' in its place;
0
x. In the definition of ``Restricted rights'' redesignating paragraphs 
(i), (ii), (iii), (iv) introductory text, and (v) introductory text as 
(1), (2), (3), (4) introductory text, and (5) introductory text, 
respectively; removing paragraphs (vi) and (vii); in the newly 
redesignated paragraph (4), redesignating paragraphs (4)(A) and (B) as 
(4)(i) and (ii), respectively; in the newly redesignated paragraph 
(4)(ii) removing ``(a)(15)(ii), (v), (vi) and (vii)'' and adding 
``(a)(15)(ii) or (v)'' in its place; and revising the newly 
redesignated paragraph (5);
0
xi. Adding, in alphabetical order, a definition of ``Segregation or 
reintegration data'';
0
c. Amending paragraph (b)(1)(vi)(A) by removing ``government'' and 
adding ``Government'' in its place;
0
d. Amending paragraph (b)(2)(i) by removing ``government purpose'' and 
adding ``Government purpose'' in its place;
0
e. Amending paragraph (b)(2)(ii) by removing ``five years'' and adding 
``5 years'' in its place in two places, and removing ``government 
purpose'' and adding ``Government purpose'' in its place;
0
f. Amending (b)(2)(iii) by removing ``government purpose'' and adding 
``Government purpose'' in its place;
0
g. Amending (b)(2)(iii)(B) by removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive Legends 
or Markings'' in its place;
0
h. Amending (b)(3)(iii)(D) by removing ``252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends'' and adding

[[Page 39496]]

``DFARS 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information with Restrictive Legends or Markings'' 
in its place;
0
i. Amending (b)(4) by removing ``government purpose'' and adding 
``Government purpose'' in its place;
0
j. Amending (b)(5) heading by removing ``government'' and adding 
``Government'' in its place; and
0
k. Amending (f) introductory text, (f)(2), and (f)(4)(ii) by removing 
``government purpose'' and adding ``Government purpose'' in its place 
wherever it appears.
    The additions and revisions read as follows:


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

* * * * *
    (a) * * *
    Commercial computer software means any computer software that is a 
commercial item.
* * * * *
    Form, fit, and function data means technical data or computer 
software that describes the required overall physical, logical, 
configuration, mating, attachment, interface, 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 or functionally equivalent items or 
processes. The term does not include computer software source code, or 
detailed manufacturing or process data.
* * * * *
    Restricted rights * * *
    (5) Reproduce and release or disclose the computer software outside 
the Government only if--
    (i) The reproduction, release, or disclosure is necessary to 
permit--
    (A) Contractors or subcontractors performing service contracts (see 
FAR 37.101) in support of this or a related contract to use computer 
software to diagnose and correct deficiencies in a computer program, to 
modify computer software to enable a computer program to be combined 
with, adapted to, or merged with other computer programs or when 
necessary to respond to urgent tactical situations;
    (B) 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;
    (C) Covered Government support contractors in the performance of 
covered Government support contracts to use, modify, reproduce, 
perform, display, or release or disclose the computer software to a 
person authorized to receive restricted rights computer software; or
    (D) Contractors or subcontractors to use, modify, reproduce, 
perform, display, or release or disclose segregation or reintegration 
data to segregate computer software from, or reintegrate that software 
(or functionally equivalent software) with, other computer software;
    (ii) Each recipient contractor or subcontractor ensures that the 
party that has granted restricted rights is notified of such release or 
disclosure;
    (iii) Such contractors or subcontractors are subject to the use and 
non-disclosure agreement at DFARS 227.7103-7 or are Government 
contractors receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information with Restrictive Legends or Markings;
    (iv) The Government shall not permit the recipient to use, 
decompile, disassemble, or reverse engineer the software, or use 
software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(15)(iv) of this clause, for any 
purpose other than those authorized in paragraph (a)(15)(v)(A); and
    (v) The recipient's use of the computer software is subject to the 
limitations in paragraphs (a)(15)(i) through (iv) of this clause.
    Segregation or reintegration data means technical data or computer 
software that is more detailed than form, fit, and function data and 
that is necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes.
    (1) Unless agreed otherwise by the Government and the contractor, 
the nature, quality, and level of technical detail necessary for these 
data or software shall be that required for persons reasonably skilled 
in the art to perform such segregation or reintegration activities.
    (2) The segregation or reintegration of any such an item or process 
may be performed at any practical level, including down to the lowest 
practicable segregable level, e.g., a subitem or subcomponent level, or 
any segregable portion of a process, computer software (e.g., a 
software subroutine that performs a specific function), or 
documentation.
    (3) The term--
    (i) Includes data or software that describes in more detail (than 
form, fit, and function data) the physical, logical, or operational 
interface or similar functional interrelationship between the items or 
processes; and
    (ii) May include, but would not typically require, detailed 
manufacturing or process data or computer software source code to 
support such segregation or reintegration activities.
* * * * *
0
29. Amend section 252.227-7015 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its 
place;
0
b. In paragraph (a)--
0
i. Removing paragraph number designations;
0
ii. Revising the definition of ``Commercial item'';
0
iii. Adding, in alphabetical order, the definition of ``Commercial 
limited rights'';
0
iv. Adding, in alphabetical order, the definition of ``Commercial 
unlimited rights'';
0
v. In the definition of ``Covered Government support contractor'' 
removing ``252.204-7014'' and adding ``the clause at DFARS 252.204-
7014, Limitations on the Use or Disclosure of Information by Litigation 
Support Contractors'' in its place; redesignating paragraphs (i) and 
(ii) as (1) and (2), respectively; and in the newly redesignated 
paragraph (2) removing ``252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information Marked with Restrictive 
Legends'' and adding ``DFARS 252.227-7025, Limitations on the Use or 
Disclosure of Government-Furnished Information with Restrictive Legends 
or Markings'' in its place;
0
vi. Revising the definition of ``Form, fit, and function data'';
0
vii. Removing ``The term item includes components or processes.''; and
0
viii. Adding, in alphabetical order, the definition of ``Segregation or 
reintegration data'';
0
c. Revising the paragraph (b)(1) introductory text;
0
d. Revising paragraph (b)(2);
0
e. In paragraph (b)(3)(iv), removing ``252.227-7025, Limitations on the 
Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished

[[Page 39497]]

Information with Restrictive Legends or Markings'' in its place;
0
f. Redesignating paragraph (e) as paragraph (f);
0
g. Adding a new paragraph (e);
0
h. In the newly redesignated paragraph (f), remove the last sentence of 
paragraph (f)(2); and
0
i In Alternate II--
0
i. Revising the clause date and the introductory text; and
0
ii. In paragraph (a), removing ``(a)(6)'' and adding ``(a)'' in its 
place.
    The revisions and additions read as follows:


252.227-7015  Technical Data-Commercial Items.

* * * * *
    Commercial item does not include commercial computer software (see 
DFARS 227.7202 for coverage regarding commercial computer software 
documentation).
    Commercial limited rights means the rights to use, modify, 
reproduce, release, perform, display, or disclose, in whole or in part 
within the Government, technical data pertaining to commercial items. 
The Government may not, without the written permission of the party 
asserting commercial limited rights, release or disclose the technical 
data outside the Government, use the technical data for manufacture of 
additional quantities of the commercial items, or authorize the 
technical data to be used by another party, except that the Government 
may reproduce, release, or disclose such data or authorize the use or 
reproduction of the data by persons outside the Government if--
    (1) The reproduction, release, disclosure, or use is--
    (i) Necessary for emergency repair and overhaul;
    (ii) Necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes; and such reproduction, release, disclosure, or use involves 
only segregation or reintegration data; or
    (iii) A release or disclosure to--
    (A) A covered Government support contractor, for use, modification, 
reproduction, performance, display, or release or disclosure to 
authorized person(s) in performance of a Government contract; or
    (B) A foreign government, of technical data, other than detailed 
manufacturing or process data, when use of such data by the foreign 
government is in the interest of the Government and is required for 
evaluational or informational purposes;
    (2) The recipient of the technical data is subject to a prohibition 
on the further reproduction, release, disclosure, or use of the 
technical data; and
    (3) The contractor or subcontractor asserting the restriction is 
notified of such reproduction, release, disclosure, or use.
    Commercial unlimited rights means rights to use, modify, reproduce, 
perform, display, release, or disclose technical data in whole or in 
part, in any manner, and for any purpose whatsoever, and to have or 
authorize others to do so.
* * * * *
    Form, fit, and function data means technical data or computer 
software that describes the required overall physical, logical, 
configuration, mating, attachment, interface, 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 or functionally equivalent items or 
processes. The term does not include computer software source code, or 
detailed manufacturing or process data.
    Segregation or reintegration data means technical data or computer 
software that is more detailed than form, fit, and function data and 
that is necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes.
    (1) Unless agreed otherwise by the Government and the contractor, 
the nature, quality, and level of technical detail necessary for these 
data or software shall be that required for persons reasonably skilled 
in the art to perform such segregation or reintegration activities.
    (2) The segregation or reintegration of any such an item or process 
may be performed at any practical level, including down to the lowest 
practicable segregable level, e.g., a subitem or subcomponent level, or 
any segregable portion of a process, computer software (e.g., a 
software subroutine that performs a specific function), or 
documentation.
    (3) The term--
    (i) Includes data or software that describes in more detail (than 
form, fit, and function data) the physical, logical, or operational 
interface or similar functional interrelationship between the items or 
processes; and
    (ii) May include, but would not typically require, detailed 
manufacturing or process data or computer software source code to 
support such segregation or reintegration activities.
* * * * *
    (b) License. (1) The Government shall have commercial unlimited 
rights in technical data that pertain to commercial items and--
* * * * *
    (2) Except as provided in paragraphs (b)(1) and (e) of this clause, 
the Government shall have commercial limited rights in technical data 
pertaining to commercial items.
* * * * *
    (e) Applicability to development at private expense. This clause 
will govern the technical data pertaining to any portion of a 
commercial item that was developed exclusively at private expense. The 
clause at DFARS 252.227-7013, Rights in Technical Data-Noncommercial 
Items, will govern the technical data pertaining to any portion of a 
commercial item that was developed in any part at Government expense.
* * * * *

ALTERNATE I (DATE)

    As prescribed in 227.7102-4(a)(2), add to the basic clause the 
following definition of ``vessel design'' in paragraph (a) and the 
following paragraph (b)(4):
* * * * *
0
30. Amend section 252.227-7018 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its 
place;
0
b. In paragraph (a)--
0
i. Removing paragraph number designations;
0
ii. In the definition of ``Commercial computer software'' redesignating 
paragraphs (i) through (iv) as (1) through (4), respectively;
0
iii. In the definition of ``Covered Government support contractor'' 
introductory text, removing ``252.204-7014'' and adding ``the clause at 
DFARS 252.204-7014, Limitations on the Use or Disclosure of Information 
by Litigation Support Contractors'' in its place; redesignating 
paragraphs (i) and (ii) as (1) and (2), respectively; and in the newly 
redesignated paragraph (2) removing ``252.227-7025, Limitations on the 
Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information with 
Restrictive Legends or Markings'' in its place;
0
iv. In the definition of ``Developed'' redesignating paragraphs (i) 
thorough (iv) as (1) through (4), respectively;
0
v. In the definition of ``Developed exclusively at private expense'' 
introductory text, removing ``government'' and adding

[[Page 39498]]

``Government'' in its place; redesignating paragraphs (i) and (ii) as 
(1) and (2), respectively; and in the newly redesignated paragraph (2) 
removing ``government'' and adding ``Government'' in its place;
0
vi. In the definition of ``Developed exclusively with government 
funds'' removing ``government'' and adding ``Government'' in its place;
0
vii. In the definition of ``Developed with mixed funding'' removing 
``government'' and adding ``Government'' in its place in two places.
0
viii. Revising the definition of ``Form, fit and function data'';
0
ix. In the definition of ``Limited rights'' redesignating paragraph (i) 
introductory text, paragraphs (ii), and (iii) as paragraph (1) 
introductory text, paragraphs (2), and (3), respectively; in the newly 
redesignated paragraph (1), redesignating paragraphs (1)(A) and (B) 
introductory text as (1)(i) and (iii) introductory text, respectively; 
adding paragraph (1)(ii); in the newly redesignated (1)(i), removing 
``or''; in the newly redesignated (1)(iii), redesignating paragraphs 
(1)(iii)(1) and (2) as (1)(iii)(A) and (B), respectively.
0
x. In the definition of ``Restricted rights'' redesignating paragraphs 
(i), (ii), (iii), (iv) introductory text and (v) introductory text as 
(1), (2), (3), (4) introductory text, and (5) introductory text, 
respectively; removing paragraphs (vi) and (vii); in the newly 
redesignated paragraph (4) redesignating paragraphs (4)(A) and (B) as 
(4)(i) and (ii), respectively; in the newly redesignated paragraph 
(4)(ii) removing ``(a)(18)(ii), (v), (vi) and (vii of this clause;)'' 
and adding ``(a)(18)(ii) or (v) of this clause; and''; and revising the 
newly redesignated paragraph (5);
0
xi. In the definition of ``SBIR data rights'' redesignating paragraphs 
(i) and (ii) as (1) and (2); and
0
xii. Adding, in alphabetical order, a definition for ``Segregation or 
reintegration data'';
0
c. In paragraph (b)(8)(iv), removing ``252.227-7025, Limitations on the 
Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information with 
Restrictive Legends or Markings'' in its place; and
0
d. In paragraph (f)(5)(ii), removing ``government'' and adding 
``Government'' in its place.
    The revisions and additions read as follows:


252.227-7018  Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovation Research (SBIR) Program.

* * * * *
    Form, fit, and function data means technical data or computer 
software that describes the required overall physical, logical, 
configuration, mating, attachment, interface, 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 or functionally equivalent items or 
processes. The term does not include computer software source code, or 
detailed manufacturing or process data.
* * * * *
    Limited rights * * *
    (1) * * *
    (ii) Necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes; and such reproduction, release, disclosure, or use involves 
only segregation or reintegration data; or
* * * * *
    Restrictive rights * * *
    (5) Reproduce and release or disclose the computer software outside 
the Government only if--
    (i) The reproduction, release, or disclosure is necessary to--
    (A) 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;
    (B) 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;
    (C) Permit covered Government support contractors in the 
performance of covered Government support contracts to use, modify, 
reproduce, perform, display, or release or disclose the computer 
software to a person authorized to receive restricted rights computer 
software; or
    (D) Permit contractors or subcontractors to use, modify, reproduce, 
perform, display, or release or disclose segregation or reintegration 
data to segregate computer software from, or reintegrate that software 
(or functionally equivalent software) with, other computer software;
    (ii) Each recipient contractor or subcontractor notifies the party 
that has granted restricted rights that a release or disclosure was 
made;
    (iii) Such contractors or subcontractors are subject to the use and 
non-disclosure agreement at DFARS 227.7103-7 or are Government 
contractors receiving access to the software for performance of a 
Government contract that contains the clause at DFARS 252.227-7025, 
Limitations on the Use or Disclosure of Government-Furnished 
Information with Restrictive Legends or Markings;
    (iv) The Government shall not permit the recipient to use, 
decompile, disassemble, or reverse engineer the software, or use 
software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (a)(18)(iv) of this clause, for any 
purpose other than those authorized in paragraph (a)(18)(v)(A); and
    (v) The recipient's use of the computer software is subject to the 
limitations in paragraphs (a)(18)(i) through (iv) of this clause.
* * * * *
    Segregation or reintegration data means technical data or computer 
software that is more detailed than form, fit, and function data and 
that is necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes.
    (1) Unless agreed otherwise by the Government and the contractor, 
the nature, quality, and level of technical detail necessary for these 
data or software shall be that required for persons reasonably skilled 
in the art to perform such segregation or reintegration activities.
    (2) The segregation or reintegration of any such an item or process 
may be performed at any practical level, including down to the lowest 
practicable segregable level, e.g., a subitem or subcomponent level, or 
any segregable portion of a process, computer software (e.g., a 
software subroutine that performs a specific function), or 
documentation.
    (3) The term--
    (i) Includes data or software that describes in more detail (than 
form, fit, and function data) the physical, logical, or operational 
interface or similar functional interrelationship between the items or 
processes; and

[[Page 39499]]

    (ii) May include, but would not typically require, detailed 
manufacturing or process data or computer software source code to 
support such segregation or reintegration activities.
* * * * *
0
31. Amend section 252.227-7019 by--
0
a. Removing the clause date ``(SEP 2011)'' and adding ``(DATE)'' in its 
place;
0
b. Revising paragraph (b);
0
c. In paragraph (d)(1), removing ``asserted restrictions'' and adding 
``asserted restrictions (including as assertion under paragraph (c) of 
DFARS 252.227-7029, Deferred Ordering of Technical Data or Computer 
Software)'' in its place;
0
d. In paragraph (d)(2)(i)(B), removing ``restriction'' and adding 
``marking'' in its place; removing ``sixty (60) days'' and adding ``60 
days'' in its place; and removing ``the markings'' and adding ``the 
marking'' in its place;
0
e. Revising paragraph (e)(1);
0
f. In paragraph (e)(2), removing ``sustain'' and adding ``sustains'' in 
its place;
0
g. In paragraph (g)(1)(ii), removing ``sixty (60) days'' and adding 
``60 days'' in its place;
0
h. In paragraph (g)(1)(iv), removing ``three-year'' and adding ``3-
year'' in its place;
0
i. In paragraph (h)(1)(i), removing ``ninety (90) days'' and adding 
``90 days'' in its place;
0
j. In paragraph (h)(1)(ii), removing ``one year'' and adding ``1 year'' 
in its place; and removing ``ninety (90) days'' and adding ``90 days'' 
in its place;
0
k. In paragraph (h)(1)(iii), removing ``ninety (90) days'' and adding 
``90 days'' in its place in two places; and removing ``one year'' and 
adding ``1 year'' in its place;
0
l. In paragraph (h)(2)(i), removing ``ninety (90) days'' and adding 
``90 days'';
0
m. In paragraph (h)(2)(ii), removing ``ninety (90) days'' and adding 
``90 days'';
0
n. In paragraph (h)(2)(iii), removing ``one year'' and adding ``1 
year'' in its place; and removing ``ninety (90) days'' and adding ``90 
days'' in its place;
0
o. In paragraph (h)(3), removing ``government'' and adding 
``Government'' in its place in two places; removing ``227.7103-7 of the 
Defense Federal Acquisition Regulation Supplement (DFARS)'' and adding 
``DFARS 227.7103-7'' in its place; and removing ``Information Marked 
with Restrictive Legends'' and adding ``Information with Restrictive 
Legends or Markings'' in its place.
    The revisions read as follows:


252.227-7019  Validation of Asserted Restrictions--Computer Software.

* * * * *
    (b) Justification. The Contractor shall maintain records sufficient 
to justify the validity of any asserted restrictions on the 
Government's rights to use, modify, reproduce, perform, display, 
release, or disclose computer software delivered, required to be 
delivered, or otherwise provided to the Government under this contract 
and shall be prepared to furnish to the Contracting Officer a written 
justification for such asserted restrictions in response to a request 
for information under paragraph (d) of this clause or a challenge under 
paragraph (f) of this clause.
* * * * *
    (e) * * *
    (1) The Government, when there are reasonable grounds to do so, has 
the right to review and challenge the validity of any restrictions 
asserted by the Contractor on the Government's rights to use, modify, 
reproduce, release, perform, display, or disclose computer software 
delivered, to be delivered under this contract, or otherwise provided 
to the Government in the performance of this contract. The Government 
may exercise this right within 6 years after the date(s) the software 
is delivered or otherwise furnished to the Government, or 6 years 
following final payment under this contract, whichever is later. The 
Government may, however, challenge a restriction on the release, 
disclosure or use of computer software at any time if such software--
    (A) Is publicly available;
    (B) Has been furnished to the United States without restriction;
    (C) Has been otherwise made available without restriction; or
    (D) Is the subject of a fraudulently asserted use or release 
restriction.
* * * * *
0
32. Amend 252.227-7025 by--
0
a. Revising the heading, introductory text, clause title, and clause 
date;
0
b. In paragraph (a)(1), removing ``252.227-7013'' and adding ``DFARS 
252.227-7013'' in its place;
0
c. In paragraph (a)(2), removing ``government purpose rights,'' and 
adding ``Government purpose rights,'' in its place and removing 
``252.227-7014'' and adding ``DFARS 252.227-7014'' in its place;
0
d. In paragraph (a)(3), removing ``252.227-7018'' and adding ``DFARS 
252.227-7018'';
0
e. Revising paragraph (b)(1)(i);
0
f. Redesignating paragraph (b)(1)(ii) as paragraph (b)(1)(iv);
0
g. Adding new paragraph (b)(1)(ii) and paragraph (b)(1)(iii);
0
h. In the newly redesignated (b)(1)(iv), removing ``(b)(5)'' and adding 
``(b)(6)'' in its place; and adding a period at the end of the 
sentence;
0
i. In paragraph (b)(2), removing ``government'' and adding 
``Government'' in its place wherever it appears; and removing 
``227.7103-7'' and adding ``DFARS 227.7103-7'' in its place;
0
j. In paragraph (b)(3)(i) removing ``227.7103-7'' and adding ``DFARS 
227.7103-7'' in its place;
0
k. In paragraph (b)(3)(ii), removing ``(b)(5)'' and adding ``(b)(6)'' 
in its place;
0
l. Revising paragraph (b)(4);
0
m. Redesignating paragraph (b)(5) as (b)(6);
0
n. Adding new paragraph (b)(5);
0
o. In the newly redesignated (b)(6) introductory text, removing 
``legends'' and adding ``legends or markings'' in its place;
0
p. Revising paragraph (b)(6)(iii); and
0
q. Adding paragraph (e).
    The revisions and additions read as follows:


252.227-7025  Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Legends or Markings.

    As prescribed in 227.7102-4(c), 227.7103-6(c), 227.7104(f)(1), 
227.7202-4(b), or 227.7203-6(d), use the following clause:

LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED 
INFORMATION WITH RESTRICTIVE LEGENDS OR MARKINGS (DATE)

* * * * *
    (b) * * *
    (1) * * *
    (i) The Contractor shall use, modify, reproduce, perform, or 
display technical data received from the Government with limited rights 
legends, computer software received with restricted rights legends, or 
SBIR technical data or computer software received with SBIR data rights 
legends (during the SBIR data protection period) only in the 
performance of this contract and only for activities authorized in the 
license for recipients of the data or software. The Contractor shall 
not, without the express written permission of the party whose name 
appears in the legend, use the data or software for any unauthorized 
purpose or release or disclose the data or software to any unauthorized 
person.
    (ii) The Contractor shall ensure that the party whose name appears 
in the legend is notified prior to such

[[Page 39500]]

authorized release or disclosure, except that notice regarding--
    (A) Covered Government support contractor activities shall be made 
as soon as practicable, but not later than 30 days after such release 
or disclosure; and
    (B) Emergency repair or overhaul activities shall be made as soon 
as practicable.
    (iii) The Contractor shall destroy (or return to the Government at 
the request of the Contracting Officer) the data or software and all 
copies in its possession promptly following completion of the 
authorized activities under this contract, and shall notify the party 
whose name appears in the legend that the data or software has been 
destroyed (or returned to the Government).
* * * * *
    (4) GFI technical data marked with commercial restrictive markings.
    (i) The Contractor shall use, modify, reproduce, perform, or 
display technical data that is or pertains to a commercial item and is 
received from the Government with commercial restrictive markings 
(i.e., marked to indicate that such data are subject to use, 
modification, reproduction, release, performance, display, or 
disclosure restrictions) only in the performance of this contract and 
only for activities authorized in the commercial limited rights license 
(defined at DFARS 252.227-7015(a)(2)), or any additional specially 
negotiated license rights (pursuant to 252.227-7015(c)), for recipients 
of the technical data. The Contractor shall not, without the express 
written permission of the party asserting such restrictions, use the 
technical data to manufacture additional quantities of the commercial 
items or for any other unauthorized purpose, or release or disclose 
such data to any unauthorized person.
    (ii) The Contractor shall ensure that the party asserting 
restrictions is notified prior to such authorized release or 
disclosure, except that notice regarding--
    (A) Covered Government support contractor activities shall be made 
as soon as practicable, but not later than 30 days after such release 
or disclosure; and
    (B) Emergency repair or overhaul activities shall be made as soon 
as practicable.
    (iii) The Contractor shall destroy (or return to the Government at 
the request of the Contracting Officer) the data and all copies in its 
possession promptly following completion of the authorized activities 
under this contract, and shall notify the party asserting restrictions 
that the data has been destroyed (or returned to the Government).
    (iv) If the Contractor is a covered Government support contractor, 
the Contractor is also subject to the additional terms and conditions 
at paragraph (b)(6) of this clause.
    (5) GFI commercial computer software marked with commercial 
restrictive markings.
    (i) The Contractor shall use, modify, reproduce, perform, or 
display commercial computer software, or segregation or reintegration 
data pertaining to commercial computer software, received from the 
Government with commercial restrictive markings (i.e., marked to 
indicate that such software are subject to use, modification, 
reproduction, release, performance, display, or disclosure 
restrictions) only in the performance of this contract and only for 
activities, if any, that are authorized in the applicable commercial 
license or any additional specially negotiated license rights (pursuant 
to DFARS 227.7202-3). The Contractor shall not, without the express 
written permission of the party asserting such restrictions, use the 
computer software for any other unauthorized purpose, or release or 
disclose such software to any unauthorized person.
    (ii) The Contractor shall ensure that the party asserting 
restrictions is notified prior to such authorized release or 
disclosure.
    (iii) The Contractor shall destroy (or return to the Government at 
the request of the Contracting Officer) the software and all copies in 
its possession promptly following completion of the authorized 
activities under this contract, and shall notify the party asserting 
restrictions that the data or software has been destroyed (or returned 
to the Government).
    (6) * * *
    (iii) The Contractor will ensure that the party whose name appears 
in the legend or marking is notified of the release or disclosure as 
soon as practicable, but not later than 30 days after such release or 
disclosure;
* * * * *
    (e) The rights and obligations of the parties under this clause 
shall survive the termination, expiration, or completion of this 
contract.


252.227-7027  [Removed and Reserved.]

0
33. Remove and reserve section 252.227-7027.
0
34. Add section 252.227-7029 to read as follows:


252.227-7029  Deferred Ordering of Technical Data or Computer Software.

    As prescribed at 227.7102-4(d), 227.7103-8(c)(2), 227.7104(e)(4), 
227.7202-4(c), and 227.7203-8(c)(2), use the following clause:

DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE (DATE)

    (a) Definitions. As used in this clause--
    Applied research and development are defined at FAR 35.001.
    Commercial computer software, computer software, computer software 
documentation, detailed manufacturing or process data, developed, 
developed exclusively at private expense, developed exclusively with 
Government funds, developed with mixed funding, form, fit, and function 
data, segregation or reintegration data, and technical data are defined 
in the DFARS at--
    (1) 252.227-7013, Rights in Technical Data--Noncommercial Items;
    (2) 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation;
    (3) 252.227-7015, Technical Data--Commercial Items; and
    (4) 252.227-7018, Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovation Research (SBIR) Program.
    Commercially available off-the-shelf software means computer 
software that is a commercially available off-the-shelf item.
    Form, fit, and function data means technical data or computer 
software that describes the required overall physical, logical, 
configuration, mating, attachment, interface, 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 or functionally equivalent items or 
processes. The term does not include computer software source code, or 
detailed manufacturing or process data.
    Segregation or reintegration data means technical data or computer 
software that is more detailed than form, fit, and function data and 
that is necessary for the segregation of an item or process from, or 
the reintegration of that item or process (or a physically or 
functionally equivalent item or process) with, other items or 
processes.
    (1) Unless agreed otherwise by the Government and the contractor, 
the nature, quality, and level of technical detail necessary for these 
data or software shall be that required for persons reasonably skilled 
in the art to

[[Page 39501]]

perform such segregation or reintegration activities.
    (2) The segregation or reintegration of any such an item or process 
may be performed at any practical level, including down to the lowest 
practicable segregable level, e.g., a subitem or subcomponent level, or 
any segregable portion of a process, computer software (e.g., a 
software subroutine that performs a specific function), or 
documentation.
    (3) The term--
    (i) Includes data or software that describes in more detail (than 
form, fit, and function data) the physical, logical, or operational 
interface or similar functional interrelationship between the items or 
processes; and
    (ii) May include, but would not typically require, detailed 
manufacturing or process data or computer software source code to 
support such segregation or reintegration activities.
    Technical data or computer software generated or utilized in the 
performance of this contract or any subcontract hereunder means--
    (1) Technical data or computer software developed in the 
performance of this contract or any subcontract hereunder;
    (2) Technical data pertaining to an item or process that is 
developed, delivered, or incorporated into the design of a system, in 
the performance of this contract or any subcontract hereunder;
    (3) Computer software or computer software documentation pertaining 
to computer software designed, developed, or delivered in the 
performance of this contract or any subcontract hereunder;
    (4) Technical data or computer software used to provide services in 
the performance of this contract or any subcontract hereunder; or
    (5) Technical data or computer software, other than commercially 
available off-the-shelf software, necessary to access, use, reproduce, 
modify, perform, display, release, or disclose any of the technical 
data or computer software identified in paragraphs (1) through (4) of 
this definition.
    (b) In addition to technical data or computer software specified 
elsewhere in this contract to be delivered or otherwise furnished 
hereunder, the Government may at any time order technical data or 
computer software as follows:
    (1) Except as provided in paragraph (b)(2) of this clause, the 
Government may require delivery of any technical data or computer 
software generated or utilized in the performance of this contract or 
any subcontract hereunder, upon a determination by the Government that 
the technical data or computer software--
    (i) Is needed for the purpose of development, production, 
reprocurement, sustainment, modification, or upgrade (including through 
competitive means) of--
    (A) A major system or subsystem thereof;
    (B) A weapon system or subsystem thereof;
    (C) Any noncommercial item; or
    (D) Any portion of a commercial item that was either developed 
exclusively with Government funds or developed with mixed funding, or 
that was a modification made at Government expense; and
    (ii) Either--
    (A) Pertains to an item or process that was either developed 
exclusively with Government funds or developed with mixed funding;
    (B) Was generated either exclusively with Government funds or with 
mixed funding in cases when contract performance did not involve the 
development of an item or process; or
    (C) Is form, fit, and function data, or segregation or 
reintegration data.
    (2) For technical data or computer software resulting from basic 
research or applied research, the Government is not required to make 
the determination that such technical data or computer software is 
needed for the purposes set forth at paragraph (b)(1)(i).
    (c) If the Contractor asserts in writing to the Contracting Officer 
that technical data or computer software that is or may be covered by a 
determination in paragraph (b)(1)(ii)(A) or (B) of this clause pertains 
to an item or process developed exclusively at private expense, the 
contractor's assertion shall include information sufficient for the 
Contracting officer to evaluate the assertion, and that assertion shall 
be governed by the applicable procedures for validation of asserted 
restrictions at DFARS 252.227-7019, Validation of Asserted 
Restrictions--Computer Software, or 252.227-7037, Validation of 
Asserted Restrictions on Technical Data. Any other assertion or 
disagreement shall be governed by the applicable disputes clause.
    (d) This clause shall not be interpreted as imposing an obligation 
on the Contractor to preserve any technical data or computer software 
covered by this clause for longer than a reasonable period. However, 
this does not restrict the Government from including a contract 
requirement for the Contractor to preserve such technical data or 
computer software for a specific period.
    (e) When technical data or computer software is ordered under 
paragraph (b) of this clause, the Contractor shall be compensated only 
for reasonable costs incurred for converting and delivering the 
technical data or computer software into the required form.
    (f) The Government's rights to use such technical data or computer 
software shall be pursuant to the applicable rights in technical data 
and computer software clause(s), or pursuant to DFARS 227.7202 in the 
case of commercial computer software, in effect as of the date of award 
of this contract.
    (g) The Government may exercise its deferred ordering rights by any 
means available for ordering technical data or computer software, 
including unilateral contract modification. Nothing contained in this 
clause shall be construed as altering or limiting the ability of the 
Government to order technical data (including computer software 
documentation) or computer software by mutual agreement with the 
Contractor. The rights provided to the Government in this clause are in 
addition to and do not limit any rights afforded to the Government by 
any other clause of this contract.
    (h) The Government is not foreclosed from requiring the delivery of 
the technical data or computer software by a failure to challenge, in 
accordance with the requirements of the applicable validation of 
asserted restrictions or restrictive markings clause, the contractor's 
assertion of a use or release restriction on the technical data or 
computer software.
    (i) The rights and obligations of the parties under this clause 
shall survive the termination, expiration, or completion of this 
contract.
    (j) Flowdown. The Contractor or subcontractor shall insert this 
clause in contractual instruments with its subcontractors or suppliers 
at any tier, including subcontracts for commercial items, except for 
subcontracts solely for commercial items that are not being acquired 
for--
    (1) A major system or subsystem thereof; or
    (2) A weapon system or subsystem thereof.
    (End of clause)
0
35. Amend section 252.227-7037 by--
0
a. Revising the heading, introductory text, clause title, and clause 
date;
0
b. Revising paragraph (c);
0
c. Revising paragraph (d)(1);
0
d. Revising paragraph (d)(2);
0
e. In paragraph (d)(3), removing ``marking'' and adding ``asserted 
restriction'' in its place wherever it appears; and removing ``item,

[[Page 39502]]

component, or process'' and adding ``item or process'' in its place;
0
f. Revising paragraph (e)(1) introductory text;
0
g. In paragraph (e)(1)(ii), removing ``sixty (60) days'' and adding 
``60 days'' in its place;
0
h. Revising paragraph (e)(1)(iii);
0
i. In paragraph (e)(4), removing ``restrictive markings'' and adding 
``asserted restrictions'' in its place;
0
j. In paragraph (g)(1), removing ``restrictive marking'' and adding 
``asserted restriction'' in its place wherever it appears; and removing 
``sixty (60) days'' and adding ``60 days'' in its place in two places;
0
k. In paragraph (g)(2)(i), removing ``restrictive marking'' and adding 
``asserted restriction'' in its place; and removing ``sixty (60) days'' 
and adding ``60 days'' in its place in two places;
0
l. Revising paragraph (g)(2)(ii);
0
m. Revising paragraph (g)(2)(iii);
0
n. In paragraph (g)(2)(iv), removing ``restrictive markings'' and 
adding ``asserted restrictions'' in its place in two places;
0
o. In paragraph (h)(1)(i), removing ``restrictive marking'' and adding 
``restrictive marking supported by the asserted restrictions'' in its 
place;
0
p. Revising paragraph (h)(1)(ii);
0
q. Revising paragraph (i);
0
r. Revising paragraph (j); and
0
s. Revising paragraph (k).
    The revisions read as follows:


252.227-7037  Validation of Asserted Restrictions on Technical Data.

    As prescribed in 227.7102-4(e), 227.7103-6(e)(3), 227.7104(e)(5), 
or 227.7203-6(f), use the following clause:

VALIDATION OF ASSERTED RESTRICTIONS ON TECHNICAL DATA (DATE)

* * * * *
    (c) Justification. The Contractor or subcontractor at any tier is 
responsible for maintaining records sufficient to justify the validity 
of its asserted restrictions on the rights of the Government and others 
to use, duplicate, release or disclose technical data delivered; 
required to be delivered, or otherwise provided to the Government 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 
asserted restrictions in response to a challenge under paragraph (e) of 
this clause.
    (d) * * *
    (1) The Contracting Officer may request the Contractor or 
subcontractor to furnish a written explanation for any asserted 
restriction on the right of the United States or others to use, 
disclose, or release technical data, or an assertion under paragraph 
(c) of DFARS 252.227-7029, Deferred Ordering of Technical Data or 
Computer Software. If, upon review of the explanation submitted, the 
Contracting Officer remains unable to ascertain the basis of the 
asserted restriction, the Contracting Officer may further request the 
Contractor or subcontractor to furnish additional information in the 
records of, or otherwise in the possession of or reasonably available 
to, the Contractor or subcontractor to justify the validity of any 
asserted restriction on technical data delivered, to be delivered, or 
otherwise provided to the Government under the contract or subcontract 
(e.g., a statement of facts accompanied with supporting documentation). 
The Contractor or subcontractor shall submit such written data as 
requested by the Contracting Officer within the time required or such 
longer period as may be mutually agreed.
    (2) If the Contracting Officer, after reviewing the written data 
furnished pursuant to paragraph (d)(1) of this clause, or any other 
available information pertaining to the validity of an asserted 
restriction, determines that reasonable grounds exist to question the 
current validity of the asserted restriction and that continued 
adherence to the asserted restriction would make impracticable the 
subsequent competitive acquisition of the item or process to which the 
technical data relates, the Contracting Officer shall follow the 
procedures in paragraph (e) of this clause.
* * * * *
    (e) * * *
    (1) Notwithstanding any provision of this contract concerning 
inspection and acceptance, if the Contracting Officer determines that a 
challenge to the asserted restriction is warranted, the Contracting 
Officer shall send a written challenge notice to the Contractor or 
subcontractor making the asserted restriction. Such challenge shall--
* * * * *
    (iii) State that a DoD Contracting Officer's final decision, issued 
pursuant to paragraph (g) of this clause, sustaining the validity of a 
prior asserted restriction identical to the current asserted 
restriction, within the 3-year period preceding the current challenge, 
shall serve as justification for the current asserted restriction if 
the prior validated restriction was asserted by the same Contractor or 
subcontractor (or any licensee of such Contractor or subcontractor) to 
which such notice is being provided; and
* * * * *
    (g) * * *
    (2) * * *
    (ii) The Government agrees that it will continue to be bound by the 
asserted restriction for a period of 90 days from the issuance of the 
Contracting Officer's final decision under paragraph (g)(2)(i) of this 
clause. The Contractor or subcontractor agrees that, if it intends to 
file suit in the United States Claims Court it will provide a notice of 
intent to file suit to the Contracting Officer within 90 days from the 
issuance of the Contracting Officer's final decision under paragraph 
(g)(2)(i) of this clause. If the Contractor or subcontractor fails to 
appeal, file suit, or provide a notice of intent to file suit to the 
Contracting Officer within the 90-day period, the Government may cancel 
or ignore the restrictive markings supported by the asserted 
restriction, or may require delivery of the technical data or computer 
software covered by the asserted restriction pursuant to DFARS 252.227-
7029, Deferred Ordering of Technical Data or Computer Software, and the 
failure of the Contractor or subcontractor to take the required action 
constitutes agreement with such Government action.
    (iii) The Government agrees that it will continue to be bound by 
the asserted restriction where a notice of intent to file suit in the 
United States Claims Court is provided to the Contracting Officer 
within 90 days from the issuance of the final decision under paragraph 
(g)(2)(i) of this clause. The Government will no longer be bound, and 
the Contractor or subcontractor agrees that the Government may strike 
or ignore the restrictive markings supported by the asserted 
restrictions, if the Contractor or subcontractor fails to file its suit 
within 1 year after issuance of the final decision. Notwithstanding the 
foregoing, where the head of an agency determines, on a nondelegable 
basis, that urgent or compelling circumstances will not permit waiting 
for the filing of a suit in the United States Claims Court, the 
Contractor or subcontractor agrees that the agency may, following 
notice to the Contractor or subcontractor, authorize release or 
disclosure of the technical data. Such agency determination may be made 
at any time after issuance of the final decision and will not affect 
the Contractor's or subcontractor's right to damages against the United 
States where its asserted restrictions are

[[Page 39503]]

ultimately upheld or to pursue other relief, if any, as may be provided 
by law.
* * * * *
    (h) * * *
    (1) * * *
    (ii) If the asserted restriction is found not to be substantially 
justified, the Contractor or subcontractor, as appropriate, shall be 
liable to the Government for payment of the cost to the Government of 
reviewing the asserted restriction supporting the restrictive marking 
and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) 
incurred by the Government in challenging the asserted restriction 
supporting the restrictive marking, unless special circumstances would 
make such payment unjust.
* * * * *
    (i) Duration of right to challenge. The Government may review the 
validity of any restriction on technical data, delivered, to be 
delivered, or otherwise provided to the Government under a contract, 
asserted by the Contractor or subcontractor. During the period within 6 
years of final payment on a contract or within 6 years of delivery of 
the technical data to the Government, whichever is later, the 
Contracting Officer may review and make a written determination to 
challenge the asserted restriction. The Government may, however, 
challenge an asserted restriction on the release, disclosure or use of 
technical data at any time if such technical data--
    (1) Are publicly available;
    (2) Have been furnished to the United States without restriction;
    (3) Have been otherwise made available without restriction; or
    (4) Are the subject of a fraudulently asserted use or release 
restriction.
    (j) Decision not to challenge. A decision by the Government, or a 
determination by the Contracting Officer, to not challenge the asserted 
restriction supporting a restrictive marking shall not constitute 
``validation.'' Only the Contracting Officer's final decision or 
actions of an agency Board of Contract Appeals or a court of competent 
jurisdiction that sustains the validity of an asserted restriction 
constitute validation of the restriction.
    (k) Privity of contract. The Contractor or subcontractor agrees 
that the Contracting Officer may transact matters under this clause 
directly with subcontractors at any tier that assert restrictions on 
the right of the United States or others to use, disclose or release 
technical data. However, this clause neither creates nor implies 
privity of contract between the Government and subcontractors.
* * * * *
[FR Doc. 2016-14266 Filed 6-15-16; 8:45 am]
 BILLING CODE 5001-06-P