[Federal Register Volume 85, Number 9 (Tuesday, January 14, 2020)]
[Proposed Rules]
[Pages 2101-2103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00430]



Defense Acquisition Regulations System

48 CFR Parts 227, 239, and 252

[Docket DARS-2019-0067]
RIN 0750-AK87

Defense Federal Acquisition Regulation Supplement: Noncommercial 
Computer Software (DFARS Case 2018-D018)

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Advance notice of proposed rulemaking; notification of meeting.


SUMMARY: DoD is seeking information that will assist in the development 
of a revision to the Defense Federal Acquisition Regulation Supplement 
(DFARS) to implement a section of the National Defense Authorization 
Act for Fiscal Year 2018, which establishes considerations for the 
acquisition of all noncommercial computer software, related data and 
documentation, and associated license rights. In addition to the 
request for written comments on this advance notice of proposed 
rulemaking, DoD will hold a public meeting to hear the views of 
interested parties.

DATES: Comment Date: Interested parties should submit written comments 
to the address shown below on or before March 16, 2020, to be 
considered in the formation of any proposed rule.
    Public Meeting Date: The public meeting will be held on February 
18, 2020, from 10:00 a.m. to 1:00 p.m., Eastern time. The public 
meeting will end at the stated time, or when the discussion ends, 
whichever comes first. Further information for the public meeting may 
be found under the heading SUPPLEMENTARY INFORMATION.
    Registration Date: Registration to attend the public meeting must 
be received no later than close of business on February 11, 2020.

ADDRESSES: Public Meeting: The public meeting will be held in the 
Pentagon Library and Conference Center (PLCC), Conference Room B6, 1155 
Defense Pentagon, Washington, DC 20301. Conference Room B6 is located 
on the lower level of the PLCC.
    Submission of Comments: Submit written comments identified by DFARS 
Case 2018-D018, using any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Search for ``DFARS Case 2018-D018.'' Select ``Comment Now'' and follow 
the instructions provided to submit a comment. Please include ``DFARS 
Case 2018-D018'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2018-D018 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Jennifer D. Johnson, OUSD(A&S)DPC/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. Jennifer D. Johnson, telephone 


I. Background

    DoD is seeking information from experts and interested parties in 
Government and the private sector that will assist in the development 
of a revision to the DFARS to implement 10 U.S.C. 2322a, which was 
added by section 871 of the National Defense Authorization Act (NDAA) 
for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 10 U.S.C. 2322a 
requires that, as part of any negotiation for an acquisition of 
noncommercial computer software, the Secretary of Defense consider to 
the maximum extent practicable during the appropriate time in the life 
cycle, all the noncommercial and related materials necessary to meet 
the needs of the agency. As a result, any noncommercial computer 
software or related materials identified should be acquired to the 
extent appropriate.

II. Public Meeting

    DoD is hosting a public meeting to obtain the views of experts and 
interested parties in Government and the private sector regarding 
amending the DFARS to implement statutory amendments and revise 
policies and procedures for acquisition of all noncommercial computer 
software, related data and documentation, and associated license 
rights. DoD also seeks to obtain information on the potential increase 
or decrease in public costs or savings that would result from such 
amendments to the DFARS.
    Registration: To facilitate security screening and entry to the 
PLCC, individuals wishing to attend the public meeting must register by 
close of business on the date listed in the DATES section of this 
document, by sending the following information via email to 
[email protected]:
    (1) Full name.
    (2) Valid email address.
    (3) Valid telephone number.
    (4) Company or organization name.
    (5) Whether the individual is a U.S. citizen.
    (6) The date of the public meeting the individual wishes to attend.
    (7) Whether the individual intends to make a presentation, and, if 
so, the individual's title.
    Building Entry: Upon receipt of an email requesting registration, 
the Defense Acquisition Regulations System will provide notification to 
the Pentagon Force Protection Agency (PFPA) that the individual is 
requesting approval for entry to the PLCC on the date provided.

[[Page 2102]]

PFPA will send additional instructions to the email address provided in 
the request for registration. The registrant must follow the 
instructions in the PFPA email in order to be approved for entry to the 
PLCC; failure to follow the instructions in the PFPA email may result 
in the registrant being restricted from entry to the Pentagon to attend 
the public meeting.
    One valid government-issued photo identification card (i.e., 
driver's license or passport) will be required in order to enter the 
    Attendees are encouraged to arrive at least 45 minutes prior to the 
start of the meeting to accommodate security procedures.
    Public parking is not available at the PLCC.
    Presentations: If you wish to make a presentation, please submit an 
electronic copy of your presentation to [email protected] no later 
than the registration date listed in the DATES section of this 
document. Each presentation should be in PowerPoint to facilitate 
projection during the public meeting and should include the presenter's 
name, organization affiliation, telephone number, and email address on 
the cover page. Please submit presentations only and cite ``Public 
Meeting, DFARS Technical Data Rights Cases'' in all correspondence 
related to the public meeting. There will be no transcription at the 
meeting. The submitted presentations will be the only record of the 
public meeting and will be posted to the following website at the 
conclusion of the public meeting: https://www.acq.osd.mil/dpap/dars/technical_data_rights.html.
    Special accommodations: The public meeting is physically accessible 
to persons with disabilities. Requests for reasonable accommodations, 
sign language interpretation, or other auxiliary aids should be 
directed to Valencia Johnson, telephone 571-372-6099, by no later than 
the registration date listed in the DATES section of this document.
    The TTY number for further information is: 1-800-877-8339. When the 
operator answers the call, let the operator know the agency is the 
Department of Defense and the point of contact is Valencia Johnson at 

III. Discussion and Analysis

    An initial draft of the proposed revisions to the DFARS to 
implement section 871 of the NDAA for FY 2018 is available in the 
Federal eRulemaking Portal at http://www.regulations.gov, by searching 
for ``DFARS Case 2018-D018'', selecting ``Open Docket Folder'' for RIN 
0750-AK87, and viewing the ``Supporting Documents''. The following is a 
summary of DoD's proposed approach and the feedback DoD is seeking from 
industry and the public.
    A. Requirement for consideration of certain matters during 
acquisition of noncommercial computer software. The primary proposed 
changes to implement 10 U.S.C. 2322a would revise DFARS 227.7203-2. The 
requirements of subsection (a) of 10 U.S.C. 2322a are added to DFARS 
227.7203-2(b) to require that, to the maximum extent practicable, the 
Government's needs determinations must address the acquisition at 
appropriate times in the life cycle of all computer software, related 
data, and associated license rights necessary to meet the Government's 
needs for specific computer software life cycle activities (e.g., 
reproducing, building, recompiling, testing, and deploying the 
    The requirements of subsection (b) of 10 U.S.C. 2322a are proposed 
to be added as a new paragraph (6) under DFARS 227.7203-2(c), to 
require that noncommercial computer software or data required to be 
delivered as a result of the considerations addressed during the needs 
determination (as revised at 227.7203-2(b)), to the extent appropriate, 
     Computer software delivered in a digital format compatible 
with applicable computer programs on relevant system hardware; and
     All necessary external or additional computer software or 
data, along with all necessary license rights; or
     Delivery of sufficient information to support maintenance 
and understanding of interfaces and software revision history, along 
with all necessary license rights, if the necessary external or 
additional computer software or data will not be delivered.
    The proposed implementation of these new requirements includes 
adaptations of the statutory language intended to take advantage of 
existing DFARS defined terms and nomenclature, and to better support 
the implementation of the statutory objectives in DoD acquisitions. For 
example, although the statute focuses on detailed aspects of the 
delivery requirements for noncommercial computer software, the proposed 
DFARS revisions also recognize that the Government must consider and 
acquire appropriate license rights in order to utilize those 
deliverables. Accordingly, references to ``necessary license rights'' 
or ``associated license rights'' are included throughout the proposed 
    Additionally, the proposed revisions use the established DFARS 
defined term ``computer program'' in place of the statutory reference 
to ``working computer software system binary files,'' and add a new 
definition for the term ``data.'' The new definition for the term 
``data'' is proposed for inclusion in DFARS 227.001, and is an 
adaptation of the definition of that term in FAR 52.227-14(a). As a 
result, the definition of ``technical data'' at DFARS 252.227-
7013(a)(15), 252.227-7015(a)(5), and 252.227-7018(a)(20) is revised 
slightly to avoid an inconsistent use of the term ``data.''
    The proposed revisions also add appropriate cross-references to the 
new proposed implementing coverage. For example, a new paragraph was 
added to DFARS 227.7202-1(d), so that factors identified in 227.7203-
2(b) and (c), when adapted as appropriate, are considered for 
commercial computer software and computer software documentation. In 
addition, DFARS 239.101 is revised to add a reference to the coverage 
of noncommercial computer acquisitions in 227.7203.
    B. Section 813 Panel Final Report of the Government-Industry 
Advisory Panel on Technical Data Rights.
    The proposed revisions to DFARS 227.7203-2 also address concerns 
raised in the Final Report of the Government-Industry Advisory Panel on 
Technical Data Rights (Section 813 Panel) submitted to the 
Congressional Defense Committees in mid-November 2018. For example, the 
813 Panel's Tension Point Paper No. 27, ``Failure to Define and Order 
CDRLs (Reliance on Deferred Ordering and DAL to Obtain Data),'' 
emphasizes the importance of the Government identifying its data needs 
early in the program life cycle, and a preference for upfront ordering 
of data rather than relying on mechanisms such as deferred ordering 
pursuant to DFARS 252.227-7027. The paper suggests that the 
Government's approach to data ordering should be consistent with the 
program's intellectual property strategy, which should be developed and 
updated to account for potential changes in the life cycle sustainment 
    C. Seeking Public Comment on Additional Topics.
    In addition to seeking public comment on the substance of the draft 
DFARS revisions, DoD is also seeking information regarding any 
corresponding change in the burden, including associated costs or 
savings, resulting from contractors and subcontractors complying with 
the draft

[[Page 2103]]

revised DFARS implementation. More specifically, DoD is seeking 
information regarding any anticipated increase or decrease in such 
burden and costs relative to the burden and costs associated with 
complying with the current DFARS implementing language.

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 not a significant regulatory action and, therefore, was not 
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. Executive Order 13771

    This advance notice of proposed rulemaking is not subject to E.O. 

List of Subjects in 48 CFR Part 227, 239, and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
[FR Doc. 2020-00430 Filed 1-13-20; 8:45 am]