[Federal Register Volume 87, Number 242 (Monday, December 19, 2022)]
[Proposed Rules]
[Pages 77680-77703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27196]



[[Page 77679]]

Vol. 87

Monday,

No. 242

December 19, 2022

Part II





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: Small Business 
Innovation Research Data Rights (DFARS Case 2019-D043); Proposed Rule

  Federal Register / Vol. 87 , No. 242 / Monday, December 19, 2022 / 
Proposed Rules  

[[Page 77680]]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 227 and 252

[Docket DARS-2020-0033]
RIN 0750-AK71


Defense Federal Acquisition Regulation Supplement: Small Business 
Innovation Research Data Rights (DFARS Case 2019-D043)

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 the data-rights portions of 
the Small Business Innovation Research Program and Small Business 
Technology Transfer Program Policy Directives. DoD will hold a public 
meeting to hear the views of interested parties.

DATES: Comment due date: Comments on the proposed rule should be 
submitted in writing to the address shown below on or before February 
17, 2023, to be considered in the formation of a final rule.
    Public meeting date: A virtual public meeting will be held on 
February 2, 2023, from 1 p.m. to 5 p.m., Eastern time. The public 
meeting will end at the stated time, or when the discussion ends, 
whichever comes first.
    Registration date: Registration to attend the public meeting must 
be received no later than close of business on January 26, 2023. 
Information on how to register for the public meeting may be found 
under the SUPPLEMENTARY INFORMATION section of this notice.

ADDRESSES: Public Meeting: A virtual public meeting will be held using 
Zoom video conferencing software.
    Submission of Comments: Submit comments identified by DFARS Case 
2019-D043, using any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2019-D043.'' Select ``Comment'' and follow the 
instructions provided to submit a comment. Please include ``DFARS Case 
2019-D043'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2019-D043 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Mr. David E. Johnson, telephone 202-
913-5764.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to implement the intellectual 
property (e.g., data rights) portions of the revised Small Business 
Innovation Research (SBIR) Program and Small Business Technology 
Transfer (STTR) Program Policy Directives. The Small Business 
Administration (SBA) published in the Federal Register proposed 
amendments to the SBIR Program and STTR Program Policy Directives, 
which included combining the two directives in a single document, on 
April 7, 2016, at 81 FR 20483. The final combined SBIR/STTR Policy 
Directive was published on April 2, 2019, at 84 FR 12794, and became 
effective on May 2, 2019.
    DoD published an advance notice of proposed rulemaking (ANPR) on 
August 31, 2020, at 85 FR 53758, providing draft DFARS revisions and 
requesting written public comments. DoD hosted public meetings to 
obtain the views of interested parties regarding the ANPR on January 
14, 2021, and January 15, 2021.
    The preamble to the ANPR provided detailed explanations of 
revisions related to--
     A single, non-extendable, 20-year SBIR/STTR data 
protection period, rather than a 5-year period that can be extended 
indefinitely;
     Perpetual government purpose rights (GPR) license rights 
after the expiration of the SBIR/STTR data protection period, rather 
than unlimited rights; and
     Definitions that harmonize terminology used in the Policy 
Directive and the Federal Acquisition Regulation (FAR) and DFARS 
implementations.
    Eight respondents submitted public comments in response to the 
ANPR.

II. Public Meeting

    DoD is interested in continuing a dialogue with experts and 
interested parties in Government and the private sector regarding 
amending the DFARS to implement the SBIR/STTR Policy Directive.
    Registration: Individuals wishing to participate in the virtual 
meeting must register by January 26, 2023, to facilitate entry to the 
meeting. Interested parties may register for the meeting by sending the 
following information via email to [email protected] and including 
``Public Meeting, DFARS Case 2019-D043'' in the subject line of the 
message:
     Full name.
     Valid email address, which will be used for admittance to 
the meeting.
     Valid telephone number, which will serve as a secondary 
connection method. Registrants must provide the telephone number they 
plan on using to connect to the virtual meeting.
     Company or organization name.
     Whether the individual desires to make a presentation.
    Pre-registered individuals will receive instructions for connecting 
using the Zoom video conferencing software not more than one week 
before the meeting is scheduled to commence.
    Presentations: Presentations will be limited to 5 minutes per 
company or organization. This limit may be subject to adjustment, 
depending on the number of entities requesting to present, in order to 
ensure adequate time for discussion. If you wish to make a 
presentation, please submit an electronic copy of your presentation via 
email to [email protected] no later than the registration date for the 
specific meeting. Each presentation should be in PowerPoint to 
facilitate projection during the public meeting and should include the 
presenter's name, title, organization affiliation, telephone number, 
and email address on the cover page.
    Correspondence, Comments, and Presentations: Please cite ``Public 
Meeting, DFARS Case 2019-D043'' 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.

III. Discussion and Analysis

    DoD reviewed the public comments in the development of the proposed 
rule. A discussion of the comments and the changes made to the proposed 
rule in response to those comments is provided, as follows:

A. Summary of Significant Changes from the ANPR

    Edits are made to the proposed rule based on the public comments. 
The proposed rule clarifies DFARS 227.7104-1, 227.7104-2, and 227.7104-
3, and the following DFARS contract clauses to reflect the objectives 
of the SBIR/STTR Policy Directive--

[[Page 77681]]

     252.227-7013, Rights in Technical Data--Noncommercial 
Items;
     252.227-7014, Rights in Noncommercial Computer Software 
and Noncommercial Computer Software Documentation;
     252.227-7015, Technical Data--Commercial Items;
     252.227-7016, Rights in Bid or Proposal Information; and
     252.227-7018, Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovation Research (SBIR) Program.
    Edits are made to the guidance at DFARS 227.7104-1 that mirror the 
policies at DFARS 227.7103-1(c) and (d). These instructions prohibit 
contracting officers from requiring offerors to relinquish SBIR/STTR 
data rights or from rejecting offerors solely due to SBIR/STTR data 
rights restrictions. Similar to the guidance at DFARS 227.7103-
10(a)(5), the proposed rule also indicates that, during the source 
selection process, the Government may evaluate the impact of 
restrictions on the Government's ability to use or disclose technical 
data or computer software in a manner consistent with acquisition 
preferences and other guidance applicable to SBIR/STTR offerors.
    DFARS 252.227-7018 and the associated guidance to contracting 
officers are revised to indicate that the term SBIR/STTR data 
encompasses all technical data or computer software developed or 
generated in the performance of a phase I, II, or III SBIR/STTR 
contract or subcontract.
    The proposed rule also deletes the Alternate I clause for DFARS 
252.227-7018. The clause is directed to the Government's publication of 
technical data or software with a perpetual GPR license, which 
conflicts with the scope of that license.
    In addition, the proposed rule updates the marking requirements in 
DFARS 252.227-7018 to require an ``unlimited rights'' marking for 
technical data or software furnished to the Government without 
restrictions. Because the current marking paradigm does not include an 
``unlimited rights'' marking, Government personnel may be unsure 
whether technical data or computer software with no restrictive 
markings has been provided with an ``unlimited rights'' license or the 
restrictive marking was inadvertently omitted. The SBIR/STTR Policy 
Directive emphasizes the need to protect the intellectual property (IP) 
interests of small businesses. To achieve this goal, DoD has updated 
its marking requirements to resolve a long-standing gap that may 
negatively impact the IP interests of small businesses. The proposed 
rule provides a transparent and consistent framework that permits the 
Government to easily identify and resolve inadvertently omitted 
restrictive markings. To ensure consistency between DFARS 252.227-7018 
and the other noncommercial technical data and software rights clauses, 
this revision has also been applied to DFARS 252.227-7013 and DFARS 
252.227-7014 for noncommercial technical data and software. For similar 
reasons, the ``omitted markings'' procedures in DFARS 252.227-7018 
(which are discussed in the guidance at DFARS 227.7103-10 and 227.7203-
10) have been applied to DFARS 252.227-7013 and DFARS 252.227-7014. 
This allows DoD to better protect the IP interests of all of its 
industry partners.
    Lastly, the proposed rule includes revisions to the requirements 
governing restrictive markings to address concerns raised in the public 
comments and recent case precedent (see, e.g., The Boeing Co. v. 
Secretary of the Air Force, 983 F.3d 1321 (Fed. Cir. 2020)). The 
proposed revisions clarify the long-standing intent of the DFARS 
marking requirements to limit restrictive markings on noncommercial 
technical data and software to those specified in the clauses 
(including prohibiting restrictive markings directed to non-
Governmental third parties) and add an unlimited rights marking to 
mitigate against the risk of loss of IP rights by an inadvertent 
omission of restrictive markings. The prohibition of nonstandard 
markings, including restrictive markings directed to third-party 
recipients, will reduce confusion for Government personnel seeking to 
understand the Government's rights, and avoids the need to make case-
by-case determinations regarding whether a nonstandard marking--
     Must be corrected as nonconforming;
     Can be ignored as marking the contractor intended to apply 
only to non-Governmental third parties; or
     Otherwise is not intended to identify and restrict the 
Government's rights.
    This revision facilitates the Government's review of technical data 
and software deliverables by increasing standardization of 
noncommercial restrictive markings throughout all DoD contracts. In 
addition, these simplified marking procedures may be more 
understandable to small businesses that are unfamiliar with DoD's 
marking requirements.
    For similar reasons to avoid confusion regarding the Government's 
license rights, the proposed rule also clarifies the more open-ended 
marking requirement for commercial technical data at DFARS 252.227-
7015. The revisions preserve the long-standing approach allowing 
contractor discretion to choose and use its favored restrictive 
marking, consistent with commercial practices or other contractor 
preferences, while clarifying only that the restrictive marking used 
must accurately reflect the Government's license rights. The proposed 
revision will prevent confusing restrictive markings that do not 
comport with the Government's license rights, while preserving 
flexibility for commercial contractors in how they elect to mark their 
technical data.
    The proposed rule bolsters the existing standards for marking 
requirements while fostering efficiency, transparency, and consistency 
for both DoD and its contractors.

B. Analysis of Public Comments

1. Virtual Public Meetings
    Comment: One respondent recommended that the DAR Council host a 
virtual public meeting to discuss the substance of the ANPR.
    Response: DoD hosted virtual public meetings on January 14, 2021, 
and January 15, 2021. The meetings received positive feedback, and DoD 
plans to host additional virtual public meetings in the future.
2. Clarifying Definitions in DFARS 252.227-7018 and Related Clauses
a. Clarifying the Definition of ``Data''
    Comment: A respondent asserted that the definition of the term 
``data'' implies that the scope is broader than technical data and 
computer software. The respondent recommended removing this term and 
replacing all instances of the term ``data'' with technical data, 
computer software, or both (as applicable).
    Response: DoD has adopted the respondent's recommendation.
b. Clarifying the Definition of ``SBIR/STTR Data''
    Comment: Several respondents recommended revising the definition of 
SBIR/STTR data. The respondents recommended referencing SBIR 
subcontracts in the definition. The respondents also recommended 
emphasizing that SBIR/STTR data applies in the context of phase I, II, 
and III contracts. Furthermore, the respondents recommend referencing 
agreements that are not governed by the FAR, such as other transaction 
agreements, grants, cooperative agreements, and cooperative research 
and development agreements. In

[[Page 77682]]

addition, the respondents recommended referencing instruments such as 
task orders, delivery orders, and blanket purchase agreements.
    Response: DoD partially adopted the respondents' recommendations by 
referencing phase I, II, and III SBIR/STTR contracts in the definition 
of SBIR/STTR data in DFARS 252.227-7018 and the guidance at DFARS 
227.7104-2(a)(2). Because the DFARS governs FAR-based procurement 
contracts only, DoD has not revised the definition of SBIR/STTR data to 
include references to instruments that are not procurement contracts.
c. Clarifying Definitions in DFARS 252.227-7016
    Comment: One respondent stated that there are portions of paragraph 
(a) of DFARS 252.227-7016 where the subject of these sentences is 
unclear, and recommended revising the clause to resolve these 
ambiguities.
    Response: DoD reviewed DFARS 252.227-7016, paragraph (a), and made 
clarifying changes in response to the comment.
d. Definition of ``Form, Fit, and Function Data''
    Comment: A respondent recommended revising the definition of the 
term ``form, fit, and function data'' in DFARS 252.227-7018 to 
encompass technical data identifying source, functional 
characteristics, and performance requirements for computer software.
    Response: This recommended revision is related to DFARS Case 2021-
D005, which implements recent statutory amendments in 10 U.S.C. 2320 
and 2446a related to modular open systems approaches. To ensure 
thorough and consistent application of this revision throughout DFARS 
252.227-7013, DFARS 252.227-7015, and DFARS 252.227-7018, this revision 
will be addressed in DFARS Case 2021-D005.
e. Consistent Use of the Terms ``Generated'' and ``Developed''
    Comment: One respondent noted that the term ``generated'' is 
referenced in DFARS 252.227-7013, but the term is not defined. 
Therefore, the respondent recommended revising DFARS 252.227-7013 to 
incorporate the definition of ``generated'' in DFARS 252.227-7018. Some 
respondents recommended revising DFARS 252.227-7018(c)(5) and the 
associated guidance at DFARS 227.7104 to reference technical data or 
software ``developed'' under SBIR/STTR contracts, to ensure consistent 
use of this term through this clause. Lastly, a respondent recommended 
revising the definition of the term ``SBIR/STTR data'' to reference 
technical data or computer software ``first or originally'' developed 
or generated under SBIR/STTR contracts.
    Response: DoD adopted these suggested revisions except for the last 
one, revising the definition of the term ``SBIR/STTR data''. DoD did 
not adopt this suggested revision because it could create confusion 
(e.g., ``first created'' is already included in the definition of the 
term ``generated'').
3. Resolving Inconsistencies with the Perpetual Government Purpose 
Rights License in DFARS 252.227-7018
    In the ANPR, DoD revised DFARS 252.227-7018(c) to indicate that the 
Government is granted a perpetual GPR license after the SBIR/STTR 
protection period has expired. Various respondents noted ambiguities or 
inconsistencies that resulted from this revision.
a. Alternate I Clause for DFARS 252.227-7018
    Comment: One respondent asserted that the Alternate I clause for 
DFARS 252.227-7018 encourages publication of the SBIR/STTR data, 
inducing SBIR/STTR firms to publish its data as a requirement for the 
award. For this reason, the respondent recommended deletion of the 
Alternate I clause. Another respondent recommended revising the 
Alternate I clause to specify the Government's license rights after the 
SBIR/STTR protection period expires.
    Response: The perpetual GPR license does not permit publication of 
SBIR/STTR data after the SBIR/STTR protection period expires. Because 
the Alternate I clause no longer comports with the Government's license 
rights in the proposed rule, DoD has proposed to remove the Alternate I 
clause for DFARS 252.227-7018 in this proposed rule.
b. Clarifying the Scope of DFARS 252.227-7018(c)(1)(vi)
    Comment: A respondent asserted that the scope of the technical data 
and software referenced in DFARS 252.227-7018(c)(1)(vi) is unclear, in 
view of the Government's perpetual GPR license after the SBIR/STTR 
protection period expires.
    Response: DoD has clarified the scope of DFARS 252.227-
7018(c)(1)(vi) to reference ``[t]echnical data or computer software 
furnished to the Government, under this or any other Government 
contract or subcontract thereunder, with license rights for which all 
restrictive conditions on the Government have expired.''
4. Restrictive Markings
a. Applicability of the Marking Requirements to Prototypes and Other 
Products
    Comment: Some respondents recommended applying the marking 
requirements to prototypes, end items, or products themselves.
    Response: As discussed in the ANPR, the proposed rule recognizes 
and references the SBIR/STTR Policy Directive guidance on prototypes in 
DFARS 227.7104-2(c). Because the license rights and marking 
requirements prescribed in DFARS part 227 apply only to technical data 
and computer software rather than hardware, DoD has not adopted the 
proposed revision to part 227 and the associated clauses.
b. Clarifying References to Restrictive Markings in DFARS 227.7104-1
    Comment: One respondent asserted that it is unclear whether the 
word ``appropriately'' in the phrase ``appropriately marked with the 
SBIR/STTR data rights legend'' in DFARS 227.7104-1(a)(2) implies that 
the marking: (1) conforms with the marking requirements; or (2) is 
justified under the license terms in DFARS 252.227-7018. The respondent 
recommended resolving this ambiguity by removing the word 
``appropriately'' in DFARS 227.7104-1(a)(2).
    Response: DoD has adopted the recommended revision to remove the 
word ``appropriately'' in DFARS 227.7104-2(a)(2).
c. Protecting the IP Rights of Contractors by Reducing the Risk of 
Inadvertent Omission of Restrictive Markings
    Comment: A respondent noted that the SBIR/STTR program is intended 
to foster innovation from small businesses. The respondent asserted the 
current marking requirements penalize small businesses for making 
inadvertent marking omissions, and the respondent indicated that the 
proposed marking requirements will discourage new entrants from 
entering the SBIR/STTR program. The respondent recommended deletion of 
the ``Omitted Markings'' procedures in DFARS 252.227-7018(g)(2), and 
suggested that the Government provide templates for guidance on 
restrictive markings on technical data and software.
    Response: Restrictive markings provide a critical tool for 
protection of the IP interests of DoD contractors, facilitating proper 
handling of technical data and software by the Government. The 
``omitted markings'' procedures in DFARS 252.227-7018 provide 
contractors with a mechanism for

[[Page 77683]]

correcting inadvertently omitted markings, to ensure that contractors 
have ample opportunities to identify restrictions on technical data or 
software. These procedures are based on the guidance on ``Terms of 
Agreement Under SBIR/STTR Awards'' in the SBIR/STTR Policy Directive, 
and are consistent with long-standing DFARS policy and procedures for 
omitted markings on noncommercial technical data and computer software 
(see DFARS 227.7103-10(c) and DFARS 227.7203-10(c)). Deletion of these 
procedures would be inconsistent with the guidance in the Policy 
Directive and established DoD noncommercial marking policy and 
procedure.
    DoD acknowledges the respondent's concerns about the risk of a 
contractor unintentionally losing protection for its IP rights by 
inadvertently omitting a required restrictive legend. The risk of 
inadvertent omission may also be increased by the current lack of a 
requirement for an ``unlimited rights'' marking, relying on the absence 
of a restrictive marking to indicate that the Government has unlimited 
rights. Under this approach, contractor and Government personnel may be 
unsure whether technical data or computer software delivered with no 
restrictive markings has been intentionally provided with ``unlimited 
rights,'' or whether a restrictive marking was inadvertently omitted. 
The proposed rule resolves this long-standing issue with the marking 
requirements by adding an unlimited rights marking, similar to an 
approach previously proposed in DFARS Case 2010-D001(see 75 FR 59412, 
59448 September 27, 2010). The revisions establish a marking 
requirement for all delivered technical data and computer software 
governed by the SBIR/STTR data rights clause, eliminating the potential 
confusion regarding whether unmarked data or software is provided with 
unlimited rights or whether a restrictive marking was inadvertently 
omitted. The proposed rule provides a transparent and consistent 
framework that permits both Government and contractor personnel to 
easily identify and avoid inadvertently omitted restrictive markings, 
which improves protections for contractors' IP interests. To ensure 
consistency and address this same concern in the markings required for 
all noncommercial technical data and computer software, the unlimited 
rights marking requirement has also been applied to DFARS 252.227-7013 
and DFARS 252.227-7014. To minimize administrative burdens for 
contractors, the unlimited rights marking is identical in all of these 
clauses.
5. Narrowing or Clarifying the Scope of Certain Categories of License 
Rights
a. Narrowing the Scope of the GPR License and SBIR/STTR Data Rights 
License
    Comment: One respondent recommended narrowing the GPR license to 
only allow distribution to covered Government support contractors. 
Another respondent recommended narrowing the scope of the SBIR/STTR 
data rights license to prohibit uses of SBIR/STTR data within the 
Government that would ``undermine the small business concern or 
successor firm's future commercialization of the associated 
technology.''
    Response: DoD has not adopted the respondent's recommended 
revisions because the current scope of the SBIR/STTR data rights 
comports with the guidance set forth in the 2019 SBIR/STTR Policy 
Directive. Furthermore, the respondent's recommendation does not 
provide a clear scope of uses permitted within the Government.
b. Clarifying the Scope of the GPR License
    Comment: A respondent recommended that the proposed rule provide 
examples of ``competitive procurements'' to clarify the scope of the 
GPR license.
    Response: DoD has not adopted the recommended revision because this 
term is well known and is used in various clauses. In addition, 
examples of competitive procurements may be misconstrued to narrow the 
scope of the GPR license.
c. Restrictions on Third-Party Recipients of SIBR/STTR Data
    Comment: One of the respondents recommended emphasizing 
restrictions on third-party use of SBIR/STTR data in DFARS 252.227-
7018(a)(16)(ii).
    Response: DoD has not adopted the respondent's recommended 
revisions because the restrictions on use of SBIR/STTR data by third-
party recipients are already specified in DFARS 252.227-
7018(c)(2)(iii).
d. Royalty-Free License Rights
    Comment: A respondent recommended revising the scope of the SBIR/
STTR data rights license to grant a royalty-free license only upon 
expiration of the SBIR/STTR data protection period. The respondent also 
recommended clarifying DFARS 252.227-7018(c) to describe how the 
royalty-free license rights differ or complement the Government's 
license rights after the SBIR/STTR data protection period expires.
    Response: In DFARS 252.227-7018(c), the grant of ``royalty-free, 
worldwide, nonexclusive, irrevocable license rights'' applies to all of 
the categories of license rights in paragraph (c) of the clause. DoD 
has not adopted the recommended revisions, because the Government's 
license rights under this clause comport with the guidance provided in 
the 2019 SBIR/STTR Policy Directive; and the scope of the Government's 
license rights, during and after the SBIR/STTR protection period, are 
already defined in DFARS 252.227-7018 paragraphs (c)(2)(ii)(B) and 
(c)(5).
6. Restructuring Clauses and Revising the Scope of the Applicability of 
Clauses
    Comment: A respondent recommended removing any revisions to the 
guidance at DFARS 227.7104 related to SBIR/STTR data that later is 
considered commercial. The respondent also recommended deleting the 
applicability section in DFARS 252.227-7015(b); revising the 
applicability sections in DFARS 252.227-7013(b) and DFARS 252.227-
7018(b); and retaining the original order of the paragraphs in DFARS 
252.227-7013 and 252.227-7018. The respondent also recommended adding 
an alternate version of DFARS 252.227-7015 that would recognize funding 
contributions of the Government and the contractors. Other respondents 
recommended restructuring DFARS 252.227-7018 to combine it with other 
license rights clauses. One respondent recommended clarification of the 
scope of the clauses (as discussed in paragraph (b) of these clauses) 
and the further explanation of application of the prescribed license 
rights.
    Response: DoD added applicability sections to the clauses and the 
associated guidance to contracting officers to clarify contractors' and 
contracting officers' understanding of the scope of DFARS 252.227-7013, 
252.227-7014, 252.227-7015, and 252.227-7018. These revisions will 
ensure proper application of the SBIR/STTR data rights clause, as 
prescribed in the SBIR/STTR Policy Directive, and other clauses. For 
this reason, DoD has not adopted the respondents' recommendations for 
removal or revision of the applicability sections. In response to 
recommendations related to substantial restructuring of the 
aforementioned clauses and allocation of licenses in DFARS 252.227-7015 
based on funding contributions, these revisions are out of scope for 
the current case.

[[Page 77684]]

7. Narrowing the Flowdown Requirements in DFARS 252.227-7018 and 
Applicability of the Assertion Requirements in DFARS 252.227-7017
a. Assertion Requirements
    Comment: One respondent asserted that the identification and 
assertion requirements in DFARS 252.227-7017 should not be applied to 
SBIR/STTR data. The respondent provides the following assertions to 
support this position: (1) technical data and software requirements are 
not known prior to contract award; (2) the assertions requirement is 
redundant because Contract Data Requirements Lists (CDRLs) already 
specify the applicable distribution statement; and (3) some details of 
software deliverables (such as the software name and version) are 
unknown prior to contract award.
    Response: The assertion requirements are necessary to identify and 
protect the IP interests of contractors and subcontractors under SBIR/
STTR contracts, because they provide a practical document that 
specifically identifies SBIR/STTR technical data and software furnished 
with restrictions. CDRLs (which should be included with the 
solicitation) provide the technical data and software requirements that 
will allow contractors to identify SBIR/STTR data with restrictions and 
provide information to the Government on license restrictions. This 
assertion requirement allows the Government to ask offerors or 
contractors questions about assertions to efficiently resolve any 
misconceptions about the Government's license rights. The assertions 
should clearly identify the technical data or software furnished with 
restrictions so the Government can understand what deliverables are 
being referenced and cross-reference the assertions table and the 
restrictive markings on the deliverables. Assertions tables and CDRLs 
are not redundant, because distribution statements do not provide 
specifics of license restrictions, and assertions tables allow 
contracting officer technical representatives to cross-reference the 
asserted restrictions with technical data and software deliverables to 
ensure that they are properly marked. DFARS 252.227-7018 permits 
revisions to the assertions table ``when based on new information or 
inadvertent omissions unless the inadvertent omissions would have 
materially affected the source selection decision.'' For these reasons, 
DoD has not adopted the respondent's recommendations.
b. Flowdown Requirements
    Comment: A respondent asserted that the flowdown requirements may 
significantly increase administrative burden on small businesses. 
Another respondent recommended revising DFARS 252.227-7013 and 252.227-
7014 to indicate that DFARS 252.227-7018 will govern technical data 
that is SBIR/STTR data. Some respondents recommended revising the 
flowdown requirements to require contractors to insert DFARS 252.227-
7018 in any SBIR/STTR subcontracts as defined by the SBA SBIR/STTR 
Policy Directive.
    Response: These flowdown requirements ensure that subcontractors, 
including small businesses, are afforded the same protections as prime 
contractors. If there are no subcontracts for the small business prime 
contractor or the subcontractors are not delivering technical data, 
then the flowdown requirements are not applicable. Regardless of the 
flowdown requirements, the prime contractor is obligated to ensure that 
the Government is granted the standard license rights under the 
applicable clauses. The flowdown requirement provides a mechanism to 
facilitate this license grant.
    The DFARS 252.227-7013 definition of ``unlimited rights'' in 
paragraph (a), DFARS 252.227-7013 paragraph (b)(2), the associated 
guidance for contracting officers, and the mandatory flowdown 
requirements in DFARS 252.227-7018 already include the suggested 
revisions. The proposed rule instructs contracting officers to use 
DFARS 252.227-7018 when SBIR/STTR data is delivered, developed, or 
generated during contract performance. In addition, the proposed rule 
indicates that when a portion of contract performance is governed by 
the SBIR or STTR program (e.g., performance of one or more subcontracts 
qualifies as a phase III SBIR or STTR award), the clause at 252.227-
7018 applies to the technical data or computer software that is 
governed by the SBIR or STTR program. Furthermore, DFARS 252.227-
7013(b)(2) already indicates that DFARS 252.227-7018 governs SBIR/STTR 
data, and the flowdown requirements in DFARS 252.227-7018 already 
require flowdown to subcontracts. For these reasons, DoD has not 
adopted the respondent's recommendations.
8. Application of the SBIR/STTR Protection Period
    Comment: Some respondents recommended clarification on application 
of the 20-year SBIR/STTR data protection period. One of the respondents 
recommended clarification on how the SBIR/STTR data protection period 
is applied for SBIR/STTR contracts that predate the SBIR/STTR Policy 
Directive, contracts that were awarded with DFARS 252.227-7018, Rights 
in Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research (SBIR) Program (MAR 2020) (DEVIATION 2020-O0007), 
and contracts that are extensions or derivations from work performed 
under those previous contracts.
    Response: The proposed rule indicates that the SBIR/STTR data 
``protection period is not extended by any subsequent SBIR/STTR 
contracts under which any portion of that SBIR/STTR data is used or 
delivered. The SBIR/STTR data protection period of any such subsequent 
SBIR/STTR contract applies only to the SBIR/STTR data that are 
developed or generated under that subsequent contract.'' However, DoD 
has adopted the respondent's recommendation by further clarifying 
application of the SBIR/STTR protection period in DFARS 252.227-
7018(c)(5).
9. STTR Solicitation and Clause Regarding Agreements Between 
Contractors and Partnering Research Institutions Allocating IP Rights
    Comment: A respondent recommended revising 252.227-70XX and 
252.227-70YY to only require draft allocation agreements or agreements 
to negotiate in good faith.
    Response: The Government cannot and should not rely upon a draft 
agreement that is not legally binding or an agreement to simply 
negotiate with no contractual obligations. Therefore, DoD has not 
adopted the respondent's recommendation.
10. Additional Comments and Recommendations
a. Negative Impacts of the Updated SBIR/STTR Data Protection Period
    Comment: A respondent asserted that the 20-year SBIR/STTR data 
protection period negatively impacts the Government's use of software 
related to large systems developed by DoD program managers and 
laboratories.
    Response: DoD notes that the updated SBIR/STTR data protection 
period limits extension of the protection period. Such limitations do 
not exist in the extant version of DFARS 252.227-7018. Furthermore, 
notwithstanding license restrictions on SBIR/STTR data, DoD regularly 
achieves its technology transition goals using SBIR/STTR data.

[[Page 77685]]

b. Guidance on Source Selection Procedures Related to SBIR/STTR Data 
Rights
    Comment: One respondent recommended prescriptive guidance for 
contracting officers that prohibits deeming an offeror ineligible for 
contract award due to license restrictions on SBIR/STTR data.
    Response: DoD adopted the respondent's recommendation in DFARS 
227.7104-1, which mirrors existing language in DFARS 227.7103-1(c) and 
(d) and 227.7103-10(a)(5).
c. Recommendations Addressed by Existing DFARS Guidance, 
Recommendations Not Directed to Contracting Officers, and 
Recommendations Unrelated to License Rights
    Comment: A respondent recommended specific language that prohibits 
preferences or requirements related to collaboration with Federal 
laboratories or DoD sponsored or funded entities. The respondent also 
recommended revising the proposed rule to include guidance that is 
directed to policy or regulatory decision-makers (rather than 
contracting officers). In addition, the respondent recommended 
prescriptive guidance that indicates that the SBIR/STTR Policy 
Directive supersedes DFARS prescriptive guidance, provisions, and 
clauses. The respondent also recommended prescriptive guidance 
regarding contractor copyright ownership; patent rights for small 
businesses; prohibitions against preaward license negotiations related 
to SBIR/STTR data; and improper uses of interagency acquisitions that 
circumvent the DFARS prescriptive guidance on SBIR/STTR contracts.
    Response: The respondent's first recommendation is related to 
technical evaluation factor requirements that are not related to 
license rights, which is beyond the scope of this rule. In response to 
the respondent's second recommendation, the DFARS should only include 
guidance or requirements for contracting officers rather than guidance 
that is intended for policy or regulatory decision-makers. In response 
to the respondent's third comment, the proposed rule includes guidance, 
provisions, and clauses that are intended to fully implement IP 
portions of the SBIR/STTR Policy Directive. However, the SBIR/STTR 
Policy Directive does not supersede DFARS guidance for contracting 
officers, provisions, and clauses. The respondent's other 
recommendations are already addressed in existing guidance and clauses 
related to postaward license negotiations regarding SBIR/STTR data in 
DFARS 227.7104-2(a)(2); retention of rights by the contractor in DFARS 
252.227-7018(c); patent rights for small businesses in FAR 52.227-11; 
and interagency acquisitions in FAR subpart 17.7. For these reasons, 
DoD has not adopted the respondent's recommendations.
d. Liability and Reimbursement Obligations
    Comment: One respondent recommended revising the ``release from 
liability'' section in DFARS 252.227-7018 to impose liability and 
reimbursement obligations for the Government related to damages caused 
by unauthorized disclosure of technical data or software.
    Response: The Disputes clause and the Contracts Disputes statute 
govern claims related to breach of contract. In addition, the 
recommended revisions create open-ended funding obligations for 
reimbursement of ``all costs and reasonable attorney fees'', which are 
not authorized by any existing policy, statute, or regulation. For 
these reasons, DoD has not adopted the respondent's recommendation.
e. Potential Topic for DoD Guidance and Training
    Comment: A respondent recommended that DoD develop guidance and 
workforce training on examples of modifications or changes to 
preexisting commercial and noncommercial items made in the performance 
of a DoD contract.
    Response: Although DoD is continuously improving its guidance and 
training, this recommendation is outside the scope of this rule.

C. Other Changes

    Because the terms ``legends'' and ``markings'' are interchangeable, 
the proposed rule changes all instances of ``legends'' to ``markings'' 
in part 227 and the associated solicitations and clauses for the sake 
of consistency. A minor change is also made at DFARS 212.301(f)(xii)(A) 
for DFARS clause 252.227-7013 to add a cross-reference to 227.7102-
4(b).

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

    The proposed rule clarifies the following DFARS solicitation 
provision and contract clauses to reflect the objectives of the SBIR/
STTR Policy Directive: 252.227-7013, Rights in Technical Data-
Noncommercial Items; 252.227-7014, Rights in Noncommercial Computer 
Software and Noncommercial Computer Software Documentation; 252.227-
7015, Technical Data-Commercial Items; 252.227-7016, Rights in Bid or 
Proposal Information; 252.227-7017, Identification and Assertion of 
Use, Release, or Disclosure Restrictions; 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software-Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program; and 252.227-7025, Limitation on the Use or Disclosure of 
Government-Furnished Information Marked with Restrictive Legends.
    DFARS clauses 252.227-7013, 252.227-7015, and 252.227-7037 will 
continue to apply to contracts at or below the SAT and for the 
acquisition of commercial items, including COTS items. In addition, 
DFARS 252.227-7018 will apply to contracts at or below the SAT and for 
the acquisition of commercial items, including COTS items.
    This rule also proposes to create a new provision and a new clause: 
(1) DFARS 252.227-70XX, Additional Preaward Requirements for Small 
Business Technology Transfer Program, and (2) DFARS 252.227-70YY, 
Additional Postaward Requirements for Small Business Technology 
Transfer Program. The new provision and clause will apply to 
acquisitions at or below the SAT and to acquisitions of commercial 
items, including COTS items. Not applying this provision and clause to 
contracts below the SAT and for the acquisition of commercial items, 
including COTS items, would exclude contracts intended to be covered by 
this rule and undermine the overarching purpose of the rule. 
Consequently, DoD plans to apply the rule to contracts below the SAT 
and for the acquisition of commercial items, including COTS items.

V. Expected Impact of the Rule

    The SBIR/STTR Policy Directive updates the SBIR/STTR data 
protection period to a single, non-extendable 20-year period, rather 
than an extendable 5-year period. The proposed rule also provides the 
Government with perpetual GPR license rights after the expiration of 
the SBIR/STTR data protection period, rather than unlimited rights. In 
addition, the proposed rule implements STTR-unique requirements in the 
SBIR/STTR Policy Directive related to allocation of IP rights between 
partnering institutions and contractors under the STTR program. The 
proposed

[[Page 77686]]

rule removes an alternate clause for DFARS 252.227-7018, which 
previously allowed the Government to elect not to exercise its right to 
publish or authorize others to publish SBIR data. Lastly, the proposed 
rule updates the marking requirements in DFARS 252.227-7013, 252.227-
7014, and 252.227-7018 to require an ``unlimited rights'' marking for 
technical data or software furnished to the Government without 
restrictions. The updated marking requirements permit contractors to 
use only the restrictive markings specified in the clause. The proposed 
rule also revises DFARS 252.227-7015 to indicate that restrictive 
markings on commercial technical data must accurately reflect the 
Government's license rights.
    The proposed rule therefore impacts the Government's license rights 
in SBIR/STTR data and the contractor's marking obligations. The SBIR/
STTR Policy Directive emphasizes the need to protect the IP interests 
of small businesses. The proposed rule provides a transparent and 
consistent framework that permits the Government to easily identify and 
resolve inadvertently omitted restrictive markings, which allows DoD to 
better protect the IP interests of our small-business industry 
partners.

VI. 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.

VII. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. This rule is not 
anticipated to be a major rule under 5 U.S.C. 804.

VIII. 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., 
because the rule primarily benefits small entities by emphasizing 
protection of small entities' intellectual property, therefore 
balancing any additional compliance requirements under the rule. 
However, an initial regulatory flexibility analysis has been performed 
and is summarized as follows:
    DoD is proposing to amend the DFARS to implement the data-rights 
portions of the revised SBA Small Business Innovation Research (SBIR) 
Program and Small Business Technology Transfer (STTR) Program Policy 
Directive. The final combined SBA SBIR/STTR Policy Directive became 
effective on May 2, 2019.
    The objectives of the rule are to implement the data-rights 
portions of the SBA SBIR/STTR Policy Directive. Accordingly, the rule 
provides the following:
     A single, non-extendable, 20-year SBIR/STTR data 
protection period, rather than the extant 5-year period that can be 
extended indefinitely;
     Perpetual government purpose rights (GPR) license rights 
after the expiration of the SBIR/STTR data protection period, rather 
than unlimited rights; and
     Definitions that harmonize terminology used in the Policy 
Directive and the Federal Acquisition Regulation (FAR) and DFARS 
implementations.
    The rule provides a new DFARS solicitation provision and a contract 
clause applicable to STTR awards where no such coverage has existed. 
Further, the rule updates DFARS provision and clauses 252.227-7013, 
Rights in Technical Data--Noncommercial Item; 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation; 252.227-7015, Technical Data-Commercial Items, 252.227-
7016; Rights in Bid or Proposal Information; 252.227-7017, 
Identification and Assertion of Use, Release, or Disclosure 
Restrictions; 252.227-7018, Rights in Noncommercial Technical Data and 
Computer Software--Small Business Innovation Research (SBIR) Program; 
252.227-7019, Validation of Asserted Restrictions--Computer Software; 
and 252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
    The SBIR/STTR Policy Directive emphasizes the need to protect the 
intellectual property interests of small businesses. To achieve this 
goal, DoD has updated its marking requirements to resolve a long-
standing gap that may negatively impact the intellectual property 
interests of small businesses. The proposed rule provides a transparent 
and consistent framework that permits the Government to easily identify 
and resolve inadvertently omitted restrictive markings, which allows 
DoD to better protect the intellectual property interests of our small-
business industry partners.
    The legal basis for the rule is 41 U.S.C. 1303.
    This proposed rule will apply to small entities that have contracts 
with DoD requiring delivery of data, including technical data and 
computer software. Based on data from Electronic Data Access for fiscal 
year (FY) 2018 through FY 2020, DoD estimates that 23,771 contractors 
may be impacted by the changes in this proposed rule. Of those 
entities, approximately 15,718 (66 percent) are small entities.
    This proposed rule imposes new reporting, recordkeeping, or other 
compliance requirements for small entities participating in the STTR 
program. The changes in this proposed rule add a requirement for 
offerors responding to solicitations under the STTR program to submit, 
to be eligible for award, both a written agreement and a written 
representation to the contracting officer for review. Further, the 
proposed rule requires STTR contractors to submit both an updated 
written agreement and an updated written representation to the 
contracting officer as occasioned. Based on data from SBA for FY 2018 
through FY 2020, DoD estimates that an average of 302 unique small 
entities are awarded an average of 444 STTR contract actions on an 
annual basis. DoD estimates that senior employees are necessary to 
prepare the written agreement and written representation because of the 
complexity of the matter, and the written representation requires 
execution by an employee authorized to bind the company.
    This proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    There are no known alternatives which would accomplish the stated 
objectives of this proposed rule.
    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.

[[Page 77687]]

610. Interested parties must submit such comments separately and should 
cite 5 U.S.C. 610 (DFARS Case 2019-D043), in correspondence.

IX. Paperwork Reduction Act

    This rule contains information collection requirements that require 
the approval of the Office of Management and Budget under the Paperwork 
Reduction Act (44 U.S.C. chapter 35). Accordingly, DoD has submitted a 
request for approval of a new information collection requirement 
concerning DFARS Case 2019-D043, Small Business Innovation Research 
Program Data Rights, to the Office of Management and Budget.

A. Estimated Public Reporting Burden

    Public reporting burden for this collection of information is 
estimated to average 20 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The annual reporting burden is estimated as follows:
    Respondents: 302.
    Responses per respondent: 1.5.
    Total annual responses: 453.
    Preparation hours per response: 20 hours.
    Total response burden hours: 9,060.

B. Request for Comments Regarding Paperwork Burden

    Written comments and recommendations on the proposed information 
collection, including suggestions for reducing this burden, should be 
sent to Ms. Susan Minson at the Office of Management and Budget, Desk 
Officer for DoD, Room 10236, New Executive Office Building, Washington, 
DC 20503, or email [email protected], with a copy to the 
Defense Acquisition Regulations System, Attn: David E. Johnson at 
[email protected]. Comments can be received from 30 to 60 days after 
the date of this notice, but comments to OMB will be most useful if 
received by OMB within 30 days after the date of this notice. Public 
comments are particularly invited on: whether this collection of 
information is necessary for the proper performance of functions of the 
DFARS, and will have practical utility; whether DoD's estimate of the 
public burden of this collection of information is accurate, and based 
on valid assumptions and methodology; ways to enhance the quality, 
utility, and clarity of the information to be collected; and ways to 
minimize the burden of the collection of information on those who are 
to respond, through the use of appropriate technological collection 
techniques or other forms of information technology.
    To obtain a copy of the supporting statement and associated 
collection instruments, please email [email protected]. Include DFARS 
Case 2019-D043 in the subject line of the message.

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

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

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

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

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Amend section 212.301 by--
0
a. Revising paragraph (f)(xii)(A);
0
b. Redesignating paragraph (f)(xii)(C) as paragraph (f)(xii)(D);
0
c. Adding a new paragraph (f)(xii)(C) and paragraphs (f)(xii)(E) and 
(F).
    The revision and additions read as follows:


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

* * * * *
    (f) * * *
    (xii) * * * (A) Use the clause at 252.227-7013, Rights in Technical 
Data-Noncommercial Items, as prescribed in 227.7102-4(b) and 227.7103-
6(a). Use the clause with its Alternate I as prescribed in 227.7103-
6(b)(1). Use the clause with its Alternate II as prescribed in 
227.7103-6(b)(2), to comply with 10 U.S.C. 8687 and 17 U.S.C. 1301, et 
seq.
* * * * *
    (C) Use the clause at 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software-Small Business Innovation Research 
Program and Small Business Technology Transfer Program, as prescribed 
in 227.7104-4(a)(1).
* * * * *
    (E) Use the provision at 252.227-70XX, Additional Preaward 
Requirements for Small Business Technology Transfer Program, as 
prescribed in 227.7104-4(c)(1).
    (F) Use the clause at 252.227-70YY, Additional Postaward 
Requirements for Small Business Technology Transfer Program, as 
prescribed in 227.7104-4(c)(2).
* * * * *

PART 227--PATENTS, DATA, AND COPYRIGHTS


227.7103-5  [Amended]

0
3. Amend section 227.7103-5--
0
a. In paragraph (b)(4) introductory text, by removing the words 
``government'' and ``legends'' and adding ``Government'' and 
``markings'' in their places, respectively;
0
b. In paragraph (b)(4)(i), by removing ``non-disclosure'' and adding 
``nondisclosure'' in its place;
0
c. In paragraph (b)(4)(ii), by removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place;
0
d. In paragraph (b)(5), by removing ``legends'', ``252-227-7025'', and 
``non-disclosure'' and adding ``markings'', ``252.227-7025'', and 
``nondisclosure'' in their places, respectively;
0
e. In paragraph (b)(6), by removing ``legends'' and ``non-disclosure'' 
wherever it appears, and adding ``markings'' and ``nondisclosure'' in 
their places, respectively; and removing ``Commerce Business Daily'' 
and adding ``System for Award Management'' in its place; and
0
f. In paragraph (c)(4) by removing ``non-disclosure'' and ``Information 
Marked with Restrictive Legends'' and adding ``nondisclosure'' and 
``Information with Restrictive Markings'' in their places, 
respectively.
0
4. Amend section 227.7103-6--
0
a. In paragraph (a), by revising the second sentence and adding a new 
third sentence; and
0
b. In paragraph (c), by removing ``Information Marked with Restrictive 
Legends'' and ``legend(s)'' and adding ``Information with Restrictive 
Markings'' and ``marking(s)'' in their places, respectively.
    The revision reads as follows:


227.7103-6  Contract clauses.

    (a) * * * Do not use the clause when the only deliverable items are 
computer software or computer software documentation (see 227.72), 
commercial items developed exclusively at private expense (see 
227.7102-4), existing works (see 227.7105), or special works (see 
227.7106). When contracting under the Small Business Innovation 
Research (SBIR) Program or the Small Business Technology Transfer 
(STTR) Program, see 227.7104-4(a). * * *
* * * * *
0
5. Amend section 227.7103-7--
0
a. By revising the section heading;
0
b. In paragraph (a) introductory text, by removing ``subsection'', 
``parties'',

[[Page 77688]]

and ``non-disclosure'' and adding ``section'', ``parties,'', and 
``nondisclosure'' in their places;
0
c. Revising paragraphs (a)(1) and (2);
0
d. In paragraph (b), by removing ``non-disclosure'' and ``Information 
Marked with Restrictive Legends'' and adding ``nondisclosure'' and 
``Information with Restrictive Markings'' in their places, 
respectively;
0
e. In paragraph (c) introductory text by removing ``non-disclosure'' 
and adding ``nondisclosure'' in its place;
0
f. In the agreement ``Use and Non-Disclosure Agreement'', by revising 
the agreement title, and paragraphs (1) and (5) of the agreement and 
the parenthetical clause at the end of the agreement.
    The revisions read as follows:


227.7103-7  Use and nondisclosure agreement.

    (a) * * *
    (1) The specific conditions under which an intended recipient will 
be authorized to use, modify, reproduce, release, perform, display, or 
disclose technical data subject to limited rights, or SBIR/STTR data 
rights, or computer software subject to restricted rights or SBIR/STTR 
data rights must be stipulated in an attachment to the use and 
nondisclosure agreement.
    (2) For an intended release, disclosure, or authorized use of 
technical data or computer software subject to special license rights, 
modify paragraph (1)(d) of the use and nondisclosure agreement in 
paragraph (c) of this section to enter the conditions, consistent with 
the license requirements, governing the recipient's obligations 
regarding use, modification, reproduction, release, performance, 
display, or disclosure of the data or software.
* * * * *

Use and Nondisclosure Agreement

* * * * *
    (1) The Recipient shall--
    (a) Use, modify, reproduce, release, perform, display, or disclose 
Data marked with government purpose rights markings or SBIR/STTR data 
rights markings (after expiration of the SBIR/STTR data protection 
period provided in the SBIR/STTR data rights marking) 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 marking (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 nondisclosure 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/STTR data rights 
markings only as specified 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.
    (c) Use computer software marked with restricted rights or SBIR/
STTR data rights markings only in performance of Contract Number 
[Insert contract number(s)]. 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 may not release, perform, display, or disclose such 
software to others unless expressly permitted in writing by the 
licensor whose name appears in the restrictive marking. The Recipient 
shall promptly notify the software licensor of the execution of this 
Agreement and identify the software that has been or will be provided 
to the Recipient, the date and place the software were or will be 
received, and the name and address of the Government office that has 
provided or will provide the software.
    (d) Use, modify, reproduce, release, perform, display, or disclose 
Data marked with special license rights markings. [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 markings.]
* * * * *
    (5) The Recipient agrees to indemnify and hold harmless the 
Government, its agents, and employees from every claim or liability, 
including attorneys' fees, court costs, and expenses arising out of, or 
in any way related to, the misuse or unauthorized modification, 
reproduction, release, performance, display, or disclosure of Data 
received from the Government with restrictive markings by the Recipient 
or any person to whom the Recipient has released or disclosed the Data.
* * * * *
    (End of use and nondisclosure agreement)


227.7103-10  [Amended]

0
6. Amend section 227.7103-10--
0
a. In paragraph (b)(2), by removing ``pre-existing'' and ``legend'' and 
adding ``preexisting'' and ``marking'' in their places, respectively;
0
b. In paragraph (c)(2), by removing ``legends'' and ``six months'' and 
adding ``markings'' and ``6 months'' in their places, respectively; and
0
c. In paragraph (c)(3), by removing ``use or disclosure'' and adding 
``use or disclosure that are consistent with the proposed restrictive 
marking'' in its place.


227.7103-12  [Amended]

0
7. Amend section 227.7103-12 paragraph (b)(1) by removing ``legends'' 
and adding ``markings'' in its place.


227.7103-15  [Amended]

0
8. Amend section 227.7103-15--
0
a. In paragraph (c) introductory text, by removing ``non-commercial'' 
and adding ``noncommercial'' in its place; and
0
b. In paragraph (c)(2), by removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place.


227.7103-16  [Amended]

0
9. Amend section 227.7103-16 in paragraph (b) by removing ``non-
disclosure'' and adding ``nondisclosure'' in its place.
0
10. Revise section 227.7104. to read as follows:


227.7104  Contracts under the Small Business Innovation Research (SBIR) 
Program and Small Business Technology Transfer (STTR) Program.

0
11. Add new sections 227.7104-1, 227.7104-2, 227.7104-3, and 227.7104-4 
to read as follows:


227.7104-1  Policy.

    (a) Contracting officers shall not require an offeror, either as a 
condition of being responsive to a solicitation or as a condition for 
award, to sell or otherwise relinquish to the Government any rights in 
technical data related to items, components, or processes developed 
under a SBIR/STTR contract or any rights in software generated under a 
SBIR/STTR contract except for

[[Page 77689]]

the technical data and computer software identified at 227.7104-2.
    (b) Contracting officers shall not prohibit offerors and 
contractors from furnishing or offering to furnish items, components, 
or processes developed under a SBIR/STTR contract or software generated 
under a SBIR/STTR contract solely because the Government's rights to 
use, modify, release, reproduce, perform, display, or disclose 
technical data pertaining to those items may be restricted.
    (c) In a manner consistent with the guidance in this section and 
acquisition preferences applicable to SBIR/STTR offerors, the 
Government may use information provided by offerors in response to a 
solicitation in the source selection process to evaluate the impact of 
proposed restrictions on the Government's ability to use or disclose 
technical data or computer software. However, contracting officers 
shall not prohibit offerors from offering products for which the 
offeror is entitled to provide the technical data or computer software 
with restrictions. Contracting officers also shall not require 
offerors, either as a condition of being responsive to a solicitation 
or as a condition for award, to sell or otherwise relinquish any 
greater rights in technical data or computer software when the offeror 
is entitled to provide the technical data or computer software with 
restrictions.


227.7104-2  Rights in SBIR or STTR data.

    (a) Under the clause at 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software-Small Business Innovation Research 
Program and Small Business Technology Transfer Program, the Government 
obtains the following standard license rights:
    (1) Unlimited rights in the technical data and computer software 
listed in paragraph (c)(1) of the clause.
    (2) SBIR/STTR data rights in all other technical data and computer 
software developed or generated under the phase I, II, or III SBIR/STTR 
contract or subcontract and marked with the SBIR/STTR data rights 
marking. SBIR/STTR data rights provide the Government limited rights in 
such technical data and restricted rights in such computer software 
during the SBIR/STTR data protection period commencing on the date of 
contract award and ending 20 years after that date unless, subsequent 
to the award, the agency and the contractor negotiate for some other 
protection period for the SBIR/STTR data. Upon expiration of the SBIR/
STTR data protection period, the Government has government purpose 
rights in the SBIR/STTR data. These government purpose rights do not 
expire. See 252.227-7018 for the definition of the SBIR/STTR data 
protection period and PGI 227.7104-2 for additional guidance on the 
SBIR/STTR data protection period.
    (b) During the SBIR/STTR data protection period, the Government may 
not release or disclose technical data or computer software that is 
subject to SBIR/STTR data rights to any person except as authorized for 
limited rights technical data or restricted rights computer software, 
respectively.
    (c) The Small Business Administration's SBIR and STTR Program 
Policy Directive (effective May 2, 2019) provides for special 
consideration regarding the handling (e.g., disclosure, reverse 
engineering) of prototypes generated under SBIR and STTR awards, to 
avoid effects that may appear to be inconsistent with the SBIR and STTR 
program objectives and to allow the SBIR/STTR awardee to retain rights 
in SBIR/STTR data during the SBIR/STTR data protection period.


227.7104-3  STTR program requirements.

    (a) Before award of a contract under the STTR program requirements 
only, the provision at 252.227-70XX, Additional Preaward Requirements 
for Small Business Technology Transfer Program, requires offerors to 
submit, as part of their proposal, a written agreement between the 
offeror and a partnering research institution that allocates any rights 
in intellectual property and the offeror's written representation that 
it is satisfied with the agreement. The contracting officer shall 
review the agreement to ensure it does not conflict with the 
requirements of the solicitation or any right to carry out follow-on 
research. If such conflicts exist and cannot be resolved, the submitted 
proposal is not eligible for award.
    (b) At contract award for STTR program requirements, in accordance 
with the clause at 252.227-70YY, Additional Postaward Requirements for 
Small Business Technology Transfer Program, the contracting officer 
shall attach to the contract the accepted written agreement and 
representation provided by the contractor pursuant to the provision at 
252.227-70XX.
    (c) After contract award, for any modification to the written 
agreement between the contractor and partnering research institution, 
the contracting officer shall review the agreement and representation 
to ensure the modified agreement adheres to the requirements of 
252.227-70YY. If acceptable, the contracting officer shall attach the 
modified agreement to the contract.


227.7104-4  Solicitation provisions and contract clauses.

    (a)(1) Use the clause at 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software-Small Business Innovation Research 
Program and Small Business Technology Transfer Program, in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
when SBIR/STTR data are delivered, developed, or generated during 
contract performance, and when any portion of contract performance is 
governed by the SBIR or STTR program (e.g., performance of one or more 
subcontracts qualifies as a phase III SBIR or STTR award).
    (2) For the remainder of the technical data or computer software 
that is delivered, developed, or generated under the contract, use the 
following clauses as applicable, in accordance with the prescriptions 
for those clauses:
    (i) 252.227-7013, Rights in Technical Data-Noncommercial Items.
    (ii) 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation.
    (iii) 252.227-7015, Technical Data-Commercial Items.
    (b) Use the following provision in solicitations and the following 
clauses in solicitations and contracts that include the clause at 
252.227-7018, in accordance with the prescriptions for the provision 
and clauses:
    (1) 252.227-7016, Rights in Bid or Proposal Information.
    (2) 252.227-7017, Identification and Assertion of Use, Release, or 
Disclosure Restrictions.
    (3) 252.227-7019, Validation of Asserted Restrictions-Computer 
Software.
    (4) 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information with Restrictive Markings.
    (5) 252.227-7028, Technical Data or Computer Software Previously 
Delivered to the Government.
    (6) 252.227-7030, Technical Data-Withholding of Payment.
    (7) 252.227-7037, Validation of Restrictive Markings on Technical 
Data (paragraph (e) of the clause contains information that must be 
included in a challenge).
    (c)(1) Use the provision at 252.227-70XX, Additional Preaward 
Requirements for Small Business Technology Transfer Program, in 
solicitations that contain the clause at 252.227-70YY.
    (2) Use the clause at 252.227-70YY, Additional Postaward 
Requirements for

[[Page 77690]]

Small Business Technology Transfer Program, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, for acquisitions 
under the STTR Program.


227.7108  [Amended]

0
12. Amend section 227.7108--
0
a. In paragraph (a)(5), by removing ``non-disclosure'' and adding 
``nondisclosure'' in its place; and
0
b. In paragraphs (c) and (d), by removing ``legends'' and adding 
``markings'' in their places.


227.7203-5  [Amended]

0
13. Amend section 227.7203-5--
0
a. In paragraph (b)(4) introductory text, by removing ``legends'' and 
adding ``markings'' in its place;
0
b. In paragraph (b)(4)(ii), by removing ``Information Marked with 
Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place;
0
c. In paragraph (b)(5), by removing ``legends'' and ``non-disclosure'' 
and adding ``markings'' and ``nondisclosure'' in their places, 
respectively; and
0
d. In paragraph (b)(6), by removing ``legends'' and ``non-disclosure'' 
wherever it appears and adding ``markings'' and ``nondisclosure'' in 
their places, respectively; and removing ``Commerce Business Daily'' 
and adding ``System for Award Management'' in its place.


227.7203-6  [Amended]

0
14. Amend section 227.7203-6--
0
a. In the section heading, by removing ``Contract clauses'' and adding 
``Solicitation provisions and contract clauses'' in its place; and
0
b. In paragraph (d), by removing ``Information Marked with Restrictive 
Legends'' and ``legend(s)'' and adding ``Information with Restrictive 
Markings'' and ``marking(s)'' in their places, respectively.


227.7203-10  [Amended]

0
15. Amend section 227.7203-10--
0
a. In paragraph (b)(1), by removing ``legend'' and adding ``marking'' 
in its place; and
0
b. In paragraph (b)(2), by removing ``pre-existing'' and ``legend'' and 
adding ``preexisting'' and ``marking'' in their places, respectively;
0
c. In paragraph (c)(2) introductory text, by removing ``legends'' and 
``six months'' and adding ``markings'' and ``6 months'' in their 
places, respectively; and
0
d. In paragraph (c)(3), by removing ``use or disclosure'' and adding 
``use or disclosure that are consistent with the proposed restrictive 
marking'' in its place.


227.7203-12  [Amended]

0
16. Amend section 227.7203-12 in paragraph (a)(1) by removing 
``legend'' and adding ``marking'' in its place.


227.7203-15  [Amended]

0
17. Amend section 227.7203-15 in paragraph (c)(3) by removing 
``Information Marked with Restrictive Legends'' and adding 
``Information with Restrictive Markings'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
18. Amend section 252.227-7013--
0
a. By revising the section heading, introductory text, and clause date;
0
b. In paragraph (a)--
0
i. Removing the designations for paragraphs (a)(1) through (16) and 
placing the definitions in alphabetical order;
0
ii. In the defined term ``Covered Government support contractor''--
0
A. In the introductory text, by removing ``effort (rather than to 
directly furnish an end item or service to accomplish a program or 
effort)'' and adding ``effort, rather than to directly furnish an end 
item or service to accomplish a program or effort'' in its place;
0
B. By redesignating paragraphs (i) and (ii) as (1) and (2) 
respectively; and
0
C. In newly redesignated paragraph (2) by removing ``Information Marked 
with Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place;
0
iii. In the defined term ``Developed exclusively at private expense''
0
A. introductory text, by removing ``government'' and adding 
``Government'' in its place, and
0
B. By redesignating paragraphs (i) and (ii) as paragraphs (1) and (2), 
respectively;
0
iv. In the defined term ``Developed exclusively with government 
funds'', by removing ``government'' and adding ``Government'' in its 
place;
0
v. By adding, in alphabetical order, the definition of ``Generated'';
0
vi. By revising the definition of ``Government purpose rights'';
0
vii. In the defined term ``Limited rights'' by--
0
A. Redesignating paragraphs (i) introductory text, (ii), and (iii) as 
paragraphs (1) introductory text, (2), and (3), respectively;
0
B. In the newly redesignated paragraph (1) by redesignating paragraphs 
(1)(A) and (B) introductory text as paragraphs (1)(i) and (ii) 
introductory text, respectively; and
0
C. In the newly redesignated paragraph (1)(ii) by redesignating 
paragraphs (1)(ii)(1) and (2) as paragraphs (1)(ii)(A) and (B), 
respectively;
0
viii. By adding, in alphabetical order, the definition of ``Small 
Business Innovation Research/Small Business Technology Transfer (SBIR/
STTR) data'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c) 
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing 
``the Rights in Noncommercial Computer Software and Noncommercial 
Software Documentation'' and adding ``the DFARS 252.227-7014, Rights in 
Noncommercial Computer Software Documentation,'' in its place;
0
f. In newly redesignated paragraph (c)(2)(i) introductory text, by 
removing ``five-year'' and adding ``5-year'' in its place;
0
g. In newly redesignated paragraph (c)(2)(i)(A), by removing 
``(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix)'' and adding 
``(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)'' in its place;
0
h. In newly redesignated paragraph (c)(2)(ii), by removing ``five-
year'', wherever it appears, and ``(b)(2)(i)(B)'' and adding ``5-year'' 
and ``(c)(2)(i)(B)'' in their places, respectively;
0
i. In newly redesignated paragraph (c)(2)(iii)(A), by removing ``non-
disclosure'' and ``227.7103-7 of the Defense Federal Acquisition 
Regulation Supplement (DFARS)'' and adding ``nondisclosure'' and 
``DFARS 227.7103-7'' in their places, respectively;
0
j. In newly redesignated paragraph (c)(2)(iii)(B), by removing 
``Information Marked with Restrictive Legends'' and adding 
``Information with Restrictive Markings'' in its place;
0
k. In newly redesignated paragraph (c)(2)(iv), by removing ``legend'' 
and ``(f)(2)'' and adding ``marking'' and ``(g)(2)'' in their places, 
respectively;
0
l. In newly redesignated paragraph (c)(3)(i) introductory text, by 
removing ``(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix)'' and adding 
``(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)'' in its place;
0
m. In newly redesignated paragraph (c)(3)(i)(A), by removing ``legend'' 
and ``(f)'' and adding ``marking'' and ``(g)'' in their places, 
respectively;
0
n. In newly redesignated paragraph (c)(3)(iv)(C), by removing 
``legend'' and ``non-disclosure'' wherever it appears and adding 
``marking'' and ``nondisclosure'' in their places, respectively;
0
o. In newly redesignated paragraph (c)(3)(iv)(D), by removing ``non-
disclosure'' wherever it appears,

[[Page 77691]]

``252.227-7025'', and ``Information Marked with Restrictive Legends'' 
and adding ``nondisclosure'', ``DFARS 252.227-7025'', and ``Information 
with Restrictive Markings'' in their places, respectively;
0
p. In newly redesignated paragraph (c)(4), by removing ``(b)(1) through 
(b)(3)'' and ``in paragraph (a)(14)'' and adding ``(c)(1) through 
(c)(3)'' and ``in the definition of ``limited rights'' '' in their 
places, respectively;
0
q. In newly redesignated paragraph (c)(5) introductory text, by 
removing ``pre-existing'' and adding ``preexisting'' in its place;
0
r. In newly redesignated paragraph (c)(6), by removing ``paragraph 
(a)(14) or (b)(2)(iii)'', ``(b)(4)'', and ``legends'' and adding ``the 
definition of ``limited rights'' or paragraph (c)(2)(iii)'', 
``(c)(4)'', and ``markings'' in their places, respectively;
0
s. In newly redesignated paragraph (e), by removing ``paragraph (b)'' 
and adding ``paragraph (c)'' in its place;
0
t. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and 
adding ``(f)(3)'' in its place;
0
u. In newly redesignated paragraph (f)(3), by --
0
A. Adding a heading to the table; and
0
B. in note 3, by removing ``SBIR'' and adding ``SBIR/STTR'' in its 
place;
0
v. In paragraph (f)(4), by removing ``Validation of Restrictive 
Markings on Technical Data'' and adding ``DFARS 252.227-7037, 
Validation of Restrictive Markings on Technical Data,'' in its place;
0
w. By revising newly redesignated paragraph (g);
0
x. In newly redesignated paragraph (i)(1) and (2), by removing 
``Validation of Restrictive Markings on Technical Data'' and adding 
``DFARS 252.227-7037, Validation of Restrictive Markings on Technical 
Data,'' in its place;
0
y. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and 
adding ``(k)(1)'' in its place;
0
z. By revising newly redesignated paragraph (l) heading and paragraphs 
(l)(1) and (2);
0
aa. By redesignating paragraphs (l)(3), (l)(4), and (l)(5) as 
paragraphs (l)(4), (l)(5), and (l)(6), respectively;
0
bb. By adding a new paragraph (l)(3);
0
cc. In alternate I--
0
i. By revising the clause date and in the introductory text removing 
``paragraph (l)'' and adding ``paragraph (m)'' in its place;
0
ii. In newly redesignated paragraph (m)(2), by removing ``paragraph 
(l)'' and ``twenty-four (24)'' and adding ``paragraph (m)'' and ``24'' 
in their places, respectively;
0
dd. In alternate II by--
0
i. Revising the clause date and the introductory text; and
0
ii. Redesignating paragraphs (a)(17) and (b)(7) as paragraphs (a) and 
(c)(7), respectively.
    The revisions and additions read as follows:


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

    As prescribed in 227.7102-4(b) and 227.7103-6(a), use the following 
clause:

Rights In Technical Data--Noncommercial Items (Date)

    (a) * * *
    Generated means, with regard to technical data or computer 
software, first created in the performance of this contract.
* * * * *
    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.
* * * * *
    Small Business Innovation Research/Small Business Technology 
Transfer (SBIR/STTR) data means all technical data or computer 
software developed or generated in the performance of a phase I, II, 
or III SBIR/STTR contract or subcontract.
* * * * *
    (b) Applicability. (1) Except as provided in paragraph (b)(2) of 
this clause, this clause will govern all technical data pertaining 
to noncommercial items or to any portion of a commercial item that 
was developed in any part at Government expense, and the clause at 
Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-
7015, Technical Data--Commercial Items, will govern the technical 
data pertaining to any portion of a commercial item that was 
developed exclusively at private expense.
    (2) The clause at DFARS 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research Program and Small Business Technology Transfer Program, 
will govern technical data that are SBIR/STTR data.
* * * * *
    (f) * * *
    (3) * * *

Identification and Assertion of Restrictions on the Government's Use, 
Release, or Disclosure of Technical Data

* * * * *
    (g)(1) Marking requirements. The Contractor, and its 
subcontractors or suppliers, shall apply asserted restrictions on 
technical data delivered under this contract only by marking such 
technical data. Except as provided in paragraph (g)(9) of this 
clause, only the following restrictive markings are authorized under 
this contract:
    (i) The unlimited rights markings at paragraph (g)(5) of this 
clause.
    (ii) The government purpose rights marking at paragraph (g)(6) 
of this clause.
    (iii) The limited rights marking at paragraph (g)(7) of this 
clause.
    (iv) The special license rights marking at paragraph (g)(8) of 
this clause.
    (v) A notice of copyright in the format prescribed under 17 
U.S.C. 401 or 402.
    (2) Other restrictive markings. Any other restrictive markings, 
including markings that describe restrictions placed on third-party 
recipients of the technical data, are not authorized and are 
nonconforming markings governed by paragraph (i)(2) of this clause.
    (3) General marking instructions. The Contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark 
the appropriate restrictive marking on all technical data that 
qualify for such markings. The authorized restrictive markings shall 
be placed on the transmittal document or storage container and, for 
printed material, each page of the printed material containing 
technical data for which restrictions are asserted. When only 
portions of a page of printed material are subject to the asserted 
restrictions, such portions shall be identified by circling, 
underscoring, with a note, or other appropriate identifier. 
Technical data transmitted directly from one computer or computer 
terminal to another shall contain a notice of asserted restrictions. 
Reproductions of technical data or any portions thereof subject to 
asserted restrictions shall also reproduce the asserted 
restrictions.
    (4) Omitted markings. (i) Technical data delivered or otherwise 
provided under this contract without restrictive markings shall be 
presumed to have been delivered with unlimited rights. To the extent 
practicable, if the Contractor has requested permission (see 
paragraph (g)(4)(ii) of this clause) to correct an inadvertent 
omission of markings, the Contracting Officer will not release or 
disclose the technical data pending evaluation of the request.
    (ii) The Contractor may request permission to have conforming 
and justified restrictive markings placed on unmarked technical data 
at its expense. The request must be received by the Contracting 
Officer within 6 months following the furnishing or delivery of such 
technical data, or any extension of that time approved by the 
Contracting Officer. The Contractor shall--
    (A) Identify the technical data that should have been marked;
    (B) Demonstrate that the omission of the marking was 
inadvertent, the proposed marking is justified and conforms with the 
requirements for the marking of technical data contained in this 
clause; and
    (C) Acknowledge, in writing, that the Government has no 
liability with respect to any disclosure, reproduction, or use of 
the technical data made prior to the addition of the marking or 
resulting from the omission of the marking.
    (5) Unlimited rights markings. Technical data or computer 
software delivered or otherwise furnished to the Government with 
unlimited rights shall be marked as follows:

[[Page 77692]]

Unlimited Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government has unlimited rights in this technical data or 
computer software pursuant to DFARS 252.227-7013, Rights in 
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation; or DFARS 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research Program and Small Business Technology Transfer Program, 
clause of the above identified contract, as applicable. This marking 
must be included in any reproduction of this technical data, 
computer software, or portions thereof.

(End of marking)

    (6) Government purpose rights markings. Data delivered or 
otherwise furnished to the Government with government purpose rights 
shall be marked as follows:

Government Purpose Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these technical data are restricted by 
paragraph (c)(2) of the DFARS 252.227-7013, Rights in Technical 
Data--Noncommercial Items, clause contained in the above identified 
contract. No restrictions apply after the expiration date shown 
above. Any reproduction of technical data or portions thereof marked 
with this marking must also reproduce the markings.

(End of marking)

    (7) Limited rights markings. Data delivered or otherwise 
furnished to the Government with limited rights shall be marked as 
follows:

Limited Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these technical data are restricted by 
paragraph (c)(3) of the DFARS 252.227-7013, Rights in Technical 
Data--Noncommercial Items, clause contained in the above identified 
contract. Any reproduction of technical data or portions thereof 
marked with this marking must also reproduce the markings. Any 
person, other than the Government, who has been provided access to 
such data must promptly notify the above named Contractor.

(End of marking)

    (8) Special license rights markings. (i) Data in which the 
Government's rights stem from a specifically negotiated license 
shall be marked as follows:

Special License Rights

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these data are restricted by Contract 
Number [Insert contract number], License Number [Insert license 
identifier]. Any reproduction of technical data or portions thereof 
marked with this marking must also reproduce the markings.

(End of marking)

    (ii) For purposes of this clause, special licenses do not 
include government purpose license rights acquired under a prior 
contract (see paragraph (c)(5) of this clause).
    (9) Preexisting data markings. If the terms of a prior contract 
or license permitted the Contractor to restrict the Government's 
rights to use, modify, reproduce, release, perform, display, or 
disclose technical data deliverable under this contract, and those 
restrictions are still applicable, the Contractor may mark such data 
with the appropriate restrictive marking for which the data 
qualified under the prior contract or license. The Contractor shall 
follow the marking procedures in paragraph (g)(1) of this clause.
* * * * *
    (l) Subcontractors or suppliers.
    (1) The Contractor shall ensure that the rights afforded its 
subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, 
15 U.S.C. 638(j)(1)(B)(iii) and (v), and the identification, 
assertion, and delivery processes of paragraph (f) of this clause 
are recognized and protected.
    (2) Whenever any technical data for noncommercial items, or for 
commercial items developed in any part at Government expense, are to 
be obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the Contractor shall use the 
following clause(s) in the subcontract or other contractual 
instrument, including subcontracts or other contractual instruments 
for commercial items, and require its subcontractors or suppliers to 
do so, without alteration, except to identify the parties:
    (i)(A) Except as provided in paragraph (l)(2)(ii) of this 
clause, use this clause to govern the technical data pertaining to 
noncommercial items or to any portion of a commercial item that was 
developed in any part at Government expense.
    (B) Use the clause at DFARS 252.227-7015, Technical Data--
Commercial Items, to govern the technical data pertaining to any 
portion of a commercial item that was developed exclusively at 
private expense.
    (ii) Use the clause at DFARS 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program, to govern technical data that are SBIR/STTR data.
    (3) No other clause shall be used to enlarge or diminish the 
Government's, the Contractor's, or a higher-tier subcontractor's or 
supplier's rights in a subcontractor's or supplier's technical data.
* * * * *

Alternate I (Date)

* * * * *

Alternate II (Date)

    As prescribed in 227.7103-6(b)(2), add the following definition 
of ``Vessel design'' in alphabetical order to paragraph (a) and add 
paragraph (c)(7) to the basic clause:
* * * * *
0
19. Amend section 252.227-7014--
0
a. By revising the section heading, introductory text, and the clause 
date;
0
b. In paragraph (a)--
0
i. By removing the designations for paragraphs (a)(1) through (16) and 
placing the definitions in alphabetical order;
0
ii. In the defined term ``Commercial computer software'', by--
0
A. Redesignating paragraphs (i) through (iv) as paragraphs (1) through 
(4), respectively; and
0
B. In newly redesignated paragraph (4) by removing ``(a)(1)(i), (ii), 
or (iii) of this clause'' and adding ``(1), (2), or (3) of this 
definition'' in its place;
0
iii. In the defined term ``Covered Government support contractor'', 
by--
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2), 
respectively; and
0
B. In newly redesignated paragraph (2) by removing ``Information Marked 
with Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place;
0
iv. In the defined term ``Developed'', by redesignating paragraphs (i), 
(ii), and (iii) as paragraphs (1), (2), and (3), respectively;
0
v. In the defined terms ``Developed exclusively at private expense'' 
and ``Government purpose rights'', by redesignating paragraphs (i) and 
(ii) as paragraphs (1) and (2), respectively;
0
vi. In the defined term ``Noncommercial computer software'', by 
removing ``under paragraph (a)(1) of this clause'' and adding ``under 
the definition of ``commercial computer software'' of this clause'' in 
its place;
0
vii. By revising the defined term ``Restricted rights'';
0
viii. By adding, in alphabetical order, the definition ``Small Business 
Innovation Research/Small Business Technology Transfer (SBIR/STTR) 
data'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c) 
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing 
``world-wide'' and adding ``worldwide'' in its place;
0
f. In newly redesignated paragraph (c)(2)(i), by removing ``(b)(1)'' 
and adding ``(c)(1)'' in its place;
0
g. In newly redesignated paragraph (c)(2)(ii), by removing ``five 
years'' and ``five-year'' and adding ``5 years'' and ``5-year'' in 
their places, respectively;
0
h. In newly redesignated paragraph (c)(2)(iii)(A), by removing ``non-

[[Page 77693]]

disclosure'' and adding ``nondisclosure'' in its place;
0
i. In newly redesignated paragraph (c)(2)(iii)(B), by removing 
``Information Marked with Restrictive Legends'' and adding 
``Information with Restrictive Markings'' in its place;
0
j. In newly redesignated paragraph (c)(3)(ii), by removing ``(b)(4)'' 
and adding ``(c)(4)'' in its place;
0
k. In newly redesignated paragraph (c)(3)(iii)(C), by removing 
``legend'' and ``non-disclosure'' wherever it appears and adding 
``marking'' and ``nondisclosure'' in their places, respectively;
0
l. In newly redesignated paragraph (c)(3)(iii)(D), by removing ``non-
disclosure'' wherever it appears, ``252.227-7025'', and ``Information 
Marked with Restrictive Legends'' and adding ``nondisclosure'', ``DFARS 
252.227-7025'' and ``Information with Restrictive Markings'', in their 
places, respectively;
0
m. By revising paragraph (c)(4)(i);
0
n. In paragraph (c)(5) introductory text, by removing ``pre-existing'' 
and adding ``preexisting'' in its place;
0
o. By revising paragraph (c)(6);
0
p. In newly redesignated paragraph (e) introductory text, by removing 
``(b)'' and adding ``(c)'' in its place;
0
q. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and 
adding ``(f)(3)'' in its place;
0
r. By revising newly redesignated paragraph (f)(3) table;
0
s. In newly redesignated paragraph (f)(4), by removing ``Validation of 
Asserted Restrictions--Computer Software'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software,'' in its 
place;
0
t. By revising newly redesignated paragraph (g);
0
u. In newly redesignated paragraph (i)(1), by removing ``Validation of 
Asserted Restrictions--Computer Software and the Validation of 
Restrictive Markings on Technical Data'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software, and the 
DFARS 252.227-7037, Validation of Restrictive Markings on Technical 
Data,'' in its place;
0
v. In newly redesignated paragraph (i)(2), by removing ``Validation of 
Asserted Restrictions--Computer Software, or the Validation of 
Restrictive Markings on Technical Data'' and ``sixty (60) days'' and 
adding ``DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software, or the DFARS 252.227-7037, Validation of Restrictive 
Markings on Technical Data,'' and ``60 days'' in their places, 
respectively;
0
w. In newly redesignated paragraph (k)(2) introductory text, by 
removing ``(j)(1)'' and adding ``(k)(1)'' in its place;
0
x. In newly redesignated paragraph (l), by revising the heading and 
paragraph (1);
0
y. In newly redesignated paragraph (l)(3), by removing ``(e)'' and 
adding ``(f)'' in its place;
0
z. In alternate I--
0
i. By revising the clause date;
0
ii. In the introductory text, by removing ``(l)'' and adding ``(m)'' in 
its place;
0
iii. By redesignating paragraph (l) as paragraph (m);
0
iv. In newly redesignated paragraph (m)(2), by removing ``(l)'' and 
``twenty-four (24) months'' and adding ``(m)'' and ``24 months'' in 
their places, respectively.
    The revisions and additions read as follows:


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

    As prescribed in 227.7203-6(a)(1), use the following clause:

Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation (Date)

    (a) * * *
    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 
this clause;
    (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 (1) 
and (3) of this definition; and
    (ii) Not release or disclose the modified software except as 
provided in paragraphs (2), (5), (6) and (7) of this definition;
    (5) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) in 
support of this or a related contract to use computer software to 
diagnose and correct deficiencies in a computer program, to modify 
computer software to enable a computer program to be combined with, 
adapted to, or merged with other computer programs or when necessary 
to respond to urgent tactical situations, provided that--
    (i) The Government notifies the party which has granted 
restricted rights that a release or disclosure to particular 
contractors or subcontractors was made;
    (ii) Such contractors or subcontractors are subject to the use 
and nondisclosure agreement at 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement (DFARS) 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 Markings;
    (iii) The Government shall not permit the recipient to 
decompile, disassemble, or reverse engineer the software, or use 
software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (4) of this definition, for any 
other purpose; and
    (iv) Such use is subject to the limitations in paragraphs (1) 
through (3) of this definition;
    (6) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under 
this or a related contract to use the computer software when 
necessary to perform the repairs or overhaul, or to modify the 
computer software to reflect the repairs or overhaul made, provided 
that--
    (i) The intended recipient is subject to the use and 
nondisclosure agreement at DFARS 227.7103-7 or is a Government 
contractor 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 Markings;
    (ii) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (4) of this definition, for any other purpose; 
and
    (iii) Such use is subject to the limitations in paragraphs (1) 
through (3) of this definition; and
    (7) Permit covered Government support contractors in the 
performance of covered Government support contracts that contain the 
clause at 252.227-7025, Limitations on the Use or Disclosure of 
Government-Furnished Information with Restrictive Markings, to use, 
modify, reproduce, perform, display, or release or disclose the 
computer software to a person authorized to receive restricted 
rights computer software, provided that--
    (i) The Government shall not permit the covered Government 
support contractor to decompile, disassemble, or reverse engineer 
the software, or use software decompiled, disassembled, or reverse 
engineered by the Government pursuant to paragraph (4) of this 
definition, for any other purpose; and
    (ii) Such use is subject to the limitations in paragraphs (1) 
through (4) of this definition.
    Small Business Innovation Research/Small Business Technology 
Transfer (SBIR/STTR)

[[Page 77694]]

data means all technical data or computer software developed or 
generated in the performance of a phase I, II, or III SBIR/STTR 
contract or subcontract.
* * * * *
    (b) Applicability. This clause governs all noncommercial 
computer software or computer software documentation, except that 
the clause at DFARS 252.227-7018, Rights in Noncommercial Technical 
Data and Computer Software--Small Business Innovation Research 
Program and Small Business Technology Transfer Program, will govern 
any computer software or computer software documentation that is 
SBIR/STTR data.
    (c) * * *
    (4) * * *
    (i) The standard license rights granted to the Government under 
paragraphs (c)(1) through (c)(3) of this clause, including the 
period during which the Government shall have government purpose 
rights in computer software, may be modified by mutual agreement to 
provide such rights as the parties consider appropriate but shall 
not provide the Government lesser rights in computer software than 
are enumerated in the definition of ``restricted rights'' of this 
clause, or lesser rights in computer software documentation than are 
enumerated in the definition of ``limited rights'' of the DFARS 
252.227-7013, Rights in Technical Data--Noncommercial Items, clause 
of this contract.
* * * * *
    (6) Release from liability. The Contractor agrees to release the 
Government from liability for any release or disclosure of computer 
software made in accordance with the definition of ``restricted 
rights'' or paragraph (c)(2)(iii) of this clause, in accordance with 
the terms of a license negotiated under paragraph (c)(4) of this 
clause, or by others to whom the recipient has released or disclosed 
the software, and to seek relief solely from the party who has 
improperly used, modified, reproduced, released, performed, 
displayed, or disclosed Contractor software marked with restrictive 
markings.
* * * * *
    (f) * * *
    (3) * * *

Identification and Assertion of Restrictions on the Government's Use, 
Release, or Disclosure of Computer Software

    The Contractor asserts for itself, or the persons identified 
below, that the Government's rights to use, release, or disclose the 
following computer software should be restricted:

----------------------------------------------------------------------------------------------------------------
  Computer software to be
furnished with restrictions    Basis for assertion \2\     Asserted rights category    Name of person asserting
            \1\                                                       \3\                  restrictions \4\
----------------------------------------------------------------------------------------------------------------
                   (LIST)                       (LIST)                      (LIST)                      (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
  restrictions on the Government's rights to use, release, or disclose computer software.
\2\ Indicate whether development was exclusively or partially at private expense. If development was not at
  private expense, enter the specific reason for asserting that the Government's rights should be restricted.
\3\ Enter asserted rights category (e.g., restricted or government purpose rights in computer software,
  government purpose license rights from a prior contract, rights in SBIR/STTR data generated under another
  contract, or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.

Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------

(End of identification and assertion)
* * * * *
    (g)(1) Marking requirements. The Contractor, and its 
subcontractors or suppliers, shall apply asserted restrictions on 
computer software or computer software documentation delivered under 
this contract only by marking such software or documentation. Except 
as provided in paragraph (g)(9) of this clause, only the following 
restrictive markings are authorized under this contract:
    (i) The unlimited rights marking at paragraph (g)(5) of this 
clause;
    (ii) The government purpose rights marking at paragraph (g)(6) 
of this clause;
    (iii) The restricted rights marking at paragraph (g)(7) of this 
clause;
    (iv) The special license rights marking at paragraph (g)(8) of 
this clause; or
    (v) A notice of copyright in the format prescribed under 17 
U.S.C. 401 or 402.
    (2) Other restrictive markings. Any other restrictive markings, 
including markings that describe restrictions placed on third-party 
recipients of the computer software or computer software 
documentation, are not authorized and shall be deemed nonconforming 
markings governed by paragraph (i)(2) of this clause.
    (3) General marking instructions. The Contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark 
the appropriate restrictive marking on all computer software that 
qualify for such markings. The authorized restrictive marking shall 
be placed on the transmitted document or software storage container 
and each page, or portions thereof, of printed material containing 
computer software for which restrictions are asserted. Computer 
software transmitted directly from one computer or computer terminal 
to another shall contain a notice of asserted restrictions. However, 
instructions that interfere with or delay the operation of computer 
software in order to display a restrictive rights marking or other 
license statement at any time prior to or during use of the computer 
software, or otherwise cause such interference or delay, shall not 
be inserted in software that will or might be used in combat or 
situations that simulate combat conditions, unless the Contracting 
Officer's written permission to deliver such software has been 
obtained prior to delivery. Reproductions of computer software or 
any portions thereof subject to asserted restrictions, shall also 
reproduce the asserted restrictions.
    (4) Omitted markings. (i) Computer software or computer software 
documentation delivered or otherwise provided under this contract 
without restrictive markings shall be presumed to have been 
delivered with unlimited rights. To the extent practicable, if the 
Contractor has requested permission (see paragraph (g)(4)(ii) of 
this clause) to correct an inadvertent omission of markings, the 
Contracting Officer will not release or disclose the software or 
documentation pending evaluation of the request.
    (ii) The Contractor may request permission to have conforming 
and justified restrictive markings placed on unmarked computer 
software or computer software documentation at its expense. The 
request must be received by the Contracting Officer within 6 months 
following the furnishing or delivery of such software or 
documentation, or any extension of that time approved by the 
Contracting Officer. The Contractor shall--
    (A) Identify the software or documentation that should have been 
marked;
    (B) Demonstrate that the omission of the marking was 
inadvertent, the proposed marking is justified and conforms with the 
requirements for the marking of computer software or computer 
software documentation contained in this clause; and
    (C) Acknowledge, in writing, that the Government has no 
liability with respect to any disclosure, reproduction, or use of 
the software or documentation made prior to the addition of the 
marking or resulting from the omission of the marking.
    (5) Unlimited rights markings. Technical data or computer 
software delivered or otherwise furnished to the Government with 
unlimited rights shall be marked as follows:

Unlimited Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government has unlimited rights in these technical data or 
this computer software pursuant to the DFARS 252.227-7013, Rights in 
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation; or DFARS 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research Program and Small Business Technology Transfer Program, 
clause of the above identified contract, as applicable. This marking 
must be included in

[[Page 77695]]

any reproduction of these technical data, computer software, or 
portions thereof.

(End of marking)

    (6) Government purpose rights markings. Computer software 
delivered or otherwise furnished to the Government with government 
purpose rights shall be marked as follows:

Government Purpose Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
paragraph (c)(2) of the DFARS 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
clause contained in the above identified contract. No restrictions 
apply after the expiration date shown above. Any reproduction of the 
software or portions thereof marked with this marking must also 
reproduce the markings.

(End of marking)

    (7) Restricted rights markings. Software delivered or otherwise 
furnished to the Government with restricted rights shall be marked 
as follows:

Restricted Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
paragraph (c)(3) of the DFARS 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
clause contained in the above identified contract. Any reproduction 
of computer software or portions thereof marked with this marking 
must also reproduce the markings. Any person, other than the 
Government, who has been provided access to such software must 
promptly notify the above named Contractor.

(End of marking)

    (8) Special license rights markings. (i) Computer software or 
computer documentation in which the Government's rights stem from a 
specifically negotiated license shall be marked as follows:

Special License Rights

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
Contract Number [Insert contract number], License Number [Insert 
license identifier]. Any reproduction of computer software, computer 
software documentation, or portions thereof marked with this marking 
must also reproduce the markings.

(End of marking)

    (ii) For purposes of this clause, special licenses do not 
include government purpose license rights acquired under a prior 
contract (see paragraph (c)(5) of this clause).
    (9) Preexisting markings. If the terms of a prior contract or 
license permitted the Contractor to restrict the Government's rights 
to use, modify, release, perform, display, or disclose computer 
software or computer software documentation and those restrictions 
are still applicable, the Contractor may mark such software or 
documentation with the appropriate restrictive marking for which the 
software qualified under the prior contract or license. The 
Contractor shall follow the marking procedures in paragraph (g)(1) 
of this clause.
* * * * *
    (l) Subcontractors or suppliers.
    (1)(i) Except as provided in paragraph (l)(1)(ii) of this 
clause, whenever any noncommercial computer software or computer 
software documentation is to be obtained from a subcontractor or 
supplier for delivery to the Government under this contract, the 
Contractor shall use this clause in its subcontracts or other 
contractual instruments, and require its subcontractors or suppliers 
to do so, without alteration, except to identify the parties.
    (ii) The Contractor shall use the clause at DFARS 252.227-7018, 
Rights in Noncommercial Technical Data and Computer Software--Small 
Business Innovation Research Program and Small Business Technology 
Transfer Program, to govern computer software or computer software 
documentation that is SBIR/STTR data.
    (iii) No other clause shall be used to enlarge or diminish the 
Government's, the Contractor's, or a higher tier subcontractor's or 
supplier's rights in a subcontractor's or supplier's computer 
software or computer software documentation.
* * * * *

Alternate I (Date)

* * * * *
0
20. Amend section 252.227-7015--
0
a. By revising the section heading and the clause date;
0
b. In paragraph (a)--
0
i. By removing the designations of paragraphs (a)(1) through (5) and 
placing in alphabetical order;
0
ii. In the defined term ``Covered Government support contractor'', by 
--
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2), 
respectively; and
0
B. In newly redesignated paragraph (2) removing ``Information Marked 
with Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place;
0
iii. In the defined term ``The term item'', by removing ``The term 
item'' and adding ``Item'' in its place;
0
c. By redesignating paragraphs (b) through (e) as paragraphs (c) 
through (f), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c)(2) introductory text, by 
removing ``(b)(1)'' and adding ``(c)(1)'' in its place;
0
f. In newly redesignated paragraph (c)(3)(i), by removing ``(b)(2)'' 
and adding ``(c)(2)'' in its place;
0
g. In newly redesignated paragraph (c)(3)(iii), by removing 
``restrictive legend'', ``non-disclosure'' and ``an non-disclosure'' 
and adding ``restrictive marking'', ``nondisclosure'', and ``a 
nondisclosure'' in their places, respectively;
0
h. In newly redesignated paragraph (c)(3)(iv), by removing ``non-
disclosure'' wherever it appears and ``252.227-7025, Limitations on the 
Use or Disclosure of Government-Furnished Information Marked with 
Restrictive Legends'' and adding ``nondisclosure'' and ``DFARS 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished 
Information with Restrictive Markings'' in their places, respectively;
0
i. In newly redesignated paragraph (e), by adding a new sentence at the 
end of the paragraph;
0
j. By revising newly redesignated paragraph (f);
0
k. In Alternate I by--
0
i. Revising the clause date and the introductory text; and
0
ii. Redesignating paragraphs (a)(6) and (b)(4) as paragraphs (a) and 
(c)(4), respectively;
    The revisions and additions read as follows:


252.227--7015  Technical Data--Commercial Items.

* * * * *

Technical Data--Commercial Items (Date)

* * * * *
    (b) Applicability. This clause will govern the technical data 
pertaining to any portion of a commercial item that was developed 
exclusively at private expense. If the commercial item was developed 
in any part at Government expense--
    (1) The clause at Defense Federal Acquisition Regulation 
Supplement (DFARS) 252.227-7018, Rights in Noncommercial Technical 
Data and Computer Software--Small Business Innovation Research 
Program and Small Business Technology Transfer Program, will govern 
technical data that are generated during any portion of performance 
that is covered under the Small Business Innovation Research (SBIR) 
Program or Small Business Technology Transfer (STTR) Program; and
    (2) 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 and is not covered under the SBIR or STTR 
program.
* * * * *
    (e) * * * The Contractor shall ensure that restrictive markings 
on technical data accurately reflect the rights granted to the 
Government.
    (f) Subcontractors or suppliers.
    (1) The Contractor shall recognize and protect the rights 
afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10

[[Page 77696]]

U.S.C. 2321, and 15 U.S.C. 638(j)(1)(B)(iii) and (v).
    (2) Whenever any technical data related to commercial items 
developed in any part at private expense will be obtained from a 
subcontractor or supplier for delivery to the Government under this 
contract, the Contractor shall use this clause in the subcontract or 
other contractual instrument, including subcontracts and other 
contractual instruments for commercial items, and require its 
subcontractors or suppliers to do so, without alteration, except to 
identify the parties. This clause will govern the technical data 
pertaining to any portion of a commercial item that was developed 
exclusively at private expense, and the Contractor shall use the 
following clauses to govern the technical data pertaining to any 
portion of a commercial item that was developed in any part at 
Government expense:
    (i) Use the clause at DFARS 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program, to govern technical data that are generated during any 
portion of performance that is covered under the SBIR or STTR 
program.
    (ii) Use the clause at DFARS 252.227-7013, Rights in Technical 
Data--Noncommercial Items, to govern any technical data that are not 
generated during any portion of performance that is covered under 
the SBIR or STTR program.
* * * * *

Alternate I (Date)

    As prescribed in 227.7102-4(a)(2), add the following definition 
of ``Vessel design'' in alphabetical order to paragraph (a) and add 
paragraph (c)(4) to the basic clause:

0
21. Amend section 252.227-7016 by--
0
a. Revising the section heading, introductory text, and clause date;
0
b. Revising paragraph (a); and
0
c. Revising paragraph (c)(2).
    The revisions read as follows:


252.227-7016  Rights in Bid or Proposal Information.

    As prescribed in 227.7103-6(e)(1), 227.7104-4(b)(1), or 227.7203-
6(b), use the following clause:

Rights in Bid or Proposal Information (Date)

    (a) Definitions. As used in this clause--
    Computer software--
    (1) Is defined in the 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
clause of this contract; or
    (2) If this is a contract awarded under the Small Business 
Innovation Research Program or Small Business Technology Transfer 
Program, the term is defined in the 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program, clause of this contract.

Technical data--

    (1) Is defined in the 252.227-7013, Rights in Technical Data--
Noncommercial Items, clause of this contract; or
    (2) If this is a contract awarded under the Small Business 
Innovation Research Program or Small Business Technology Transfer 
Program, the term is defined in the 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program, clause of this contract.
* * * * *
    (c) * * *
    (2) The Government's right to use, modify, reproduce, release, 
perform, display, or disclose information that is technical data or 
computer software required to be delivered under this contract are 
determined by the Defense Federal Acquisition Regulation Supplement 
(DFARS) 252.227-7013, Rights in Technical Data--Noncommercial Items; 
DFARS 252.227-7014, Rights in Noncommercial Computer Software and 
Noncommercial Computer Software Documentation; or DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business 
Technology Transfer Program, clause of this contract.
* * * * *
0
22. Amend section 252.227-7017 by--
0
a. Revising the section heading, introductory text, and clause date;
0
b. Revising paragraphs (a) and (b);
0
c. Removing from paragraph (d) introductory text ``suppliers shall'' 
and adding ``suppliers, shall'' in its place; and
0
d. Revising the paragraph (d) table.
    The revisions read as follows:


252.227-7017  Identification and Assertion of Use, Release, or 
Disclosure Restrictions.

    As prescribed in 227.7103-3(b), 227.7104-4(b)(2), or 227.7203-3(a), 
use the following provision:

Identification and Assertion of Use, Release, or Disclosure 
Restrictions (Date)

(a) Definitions. As used in this provision--Computer software--

    (1) Is defined in the 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
clause of this solicitation; or
    (2) If this solicitation contemplates a contract under the Small 
Business Innovation Research Program or Small Business Technology 
Transfer Program, the term is defined in the 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program, clause of this solicitation.

Technical data--

    (1) Is defined in the 252.227-7013, Rights in Technical Data--
Noncommercial Items, clause of this solicitation; or
    (2) If this solicitation contemplates a contract under the Small 
Business Innovation Research Program or Small Business Technology 
Transfer Program, the term is defined in the 252.227-7018, Rights in 
Noncommercial Technical Data and Computer Software--Small Business 
Innovation Research Program and Small Business Technology Transfer 
Program, clause of this solicitation.
    (b) The identification and assertion requirements in this 
provision apply only to technical data, including computer software 
documentation, or computer software to be delivered with other than 
unlimited rights. For contracts to be awarded under the Small 
Business Innovation Research (SBIR) Program or Small Business 
Technology Transfer (STTR) Program), these requirements apply to 
SBIR/STTR data that will be generated under the resulting contract 
and will be delivered with SBIR/STTR data rights and to any other 
data that will be delivered with other than unlimited rights. 
Notification and identification are not required for restrictions 
based solely on copyright.
    (d) * * *

Identification and Assertion of Restrictions on the Government's Use, 
Release, or Disclosure of Technical Data or Computer Software

    The Offeror asserts for itself, or the persons identified below, 
that the Government's rights to use, release, or disclose the 
following technical data or computer software should be restricted:

----------------------------------------------------------------------------------------------------------------
 Technical data or computer
  software to be furnished     Basis for assertion \2\     Asserted rights category    Name of person asserting
   with restrictions \1\                                              \3\                  restrictions \4\
----------------------------------------------------------------------------------------------------------------
               (LIST) \5\                       (LIST)                      (LIST)                      (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ For technical data (other than computer software documentation) pertaining to items, components, or
  processes developed at private expense, identify both the deliverable technical data and each such item,
  component, or process. For computer software or computer software documentation identify the software or
  documentation.

[[Page 77697]]

 
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
  restrictions. For technical data, other than computer software documentation, development refers to
  development of the item, component, or process to which the data pertain. The Government's rights in computer
  software documentation generally may not be restricted. For computer software, development refers to the
  software. Indicate whether development was accomplished exclusively or partially at private expense. If
  development was not accomplished at private expense, or for computer software documentation, enter the
  specific basis for asserting restrictions.
\3\ Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in
  SBIR/STTR data generated under a contract resulting from this solicitation or under another contract, limited,
  restricted, or government purpose rights under a contract resulting from this solicitation or under a prior
  contract, or specially negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
\5\ Enter ``none'' when all data or software will be submitted without restrictions.

Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------

(End of identification and assertion)

* * * * *
0
23. Amend section 252.227-7018--
0
a. By revising the section heading, introductory text, clause title, 
and date;
0
b. In paragraph (a)--
0
i. By removing designations for paragraphs (a)(1) through (16) and 
placing in alphabetical order;
0
ii. In the defined term ``Commercial computer software'', by:
0
A. Redesignating paragraphs (i) through (iv) as paragraphs (1) and (4), 
respectively; and
0
B. In newly redesignated paragraph (4) by removing ``(a)(1)(i) or (iii) 
of this clause'' and adding ``(1), (2), or (3) of this definition'' in 
its place;
0
iii. In the defined term ``Covered Government support contractor'', by:
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2), 
respectively; and
0
B. In newly redesignated paragraph (2) by removing ``Information Marked 
with Restrictive Legends'' and adding ``Information with Restrictive 
Markings'' in its place;
0
iv. In the defined term ``Developed'', by redesignating paragraphs (i) 
through (iv) as paragraphs (1) through (4), respectively;
0
v. In the defined term ``Developed exclusively at private expense'', by 
redesignating paragraphs (i) and (ii) as paragraphs (1) and (2), 
respectively;
0
vi. Adding, in alphabetical order, the definition of ``Government 
purpose rights'';
0
vii. In the defined term ``limited rights'', by:
0
A. Redesignating paragraphs (i) through (iii) as paragraphs (1) through 
(3), respectively;
0
B. In newly redesignated paragraph (1) by redesignating paragraphs 
(1)(A) and (B) as paragraphs (1)(i) and (ii), respectively;
0
C. In newly redesignated paragraph (1)(ii) by redesignating paragraphs 
(1)(ii)(1) and (2) as paragraphs (1)(ii)(A) and (B), respectively;
0
viii. In the defined term ``Noncommercial computer software'', by 
removing ``paragraph (a)(1) of this clause'' and adding ``the 
``commercial computer software'' definition of this clause'' in its 
place;
0
ix. By revising the defined term ``Restricted rights'';
0
x. By adding, in alphabetical order, definitions for ``Small Business 
Innovation Research/Small Business Technology Transfer (SBIR/STTR) 
data'' and ``SBIR/STTR data protection period'';
0
xi. By removing the defined term ``SBIR data rights'' and adding, in 
alphabetical order, the definition of ``SBIR/STTR data rights'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c) 
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing 
``world-wide'' and adding ``worldwide'' in its place;
0
f. In newly redesignated paragraph (c)(1), by removing ``data, 
including computer software documentation, or computer software 
generated under this contract'' and adding ``data or computer software, 
including such data generated under this contract,'' in its place;
0
g. In newly redesignated paragraph (c)(1)(iv), by removing ``use, 
release'' and adding ``use, release,'' in its place.
0
h. By revising newly redesignated paragraph (c)(1)(v);
0
i. By redesignating newly redesignated paragraph (c)(1)(vi) as 
paragraph (c)(1)(vii);
0
j. By adding a new paragraph (c)(1)(vi);
0
k. By revising newly redesignated paragraph (c)(1)(vii);
0
l. By redesignating newly redesignated paragraphs (c)(2) through (8) as 
paragraphs (c)(3) through (9), respectively;
0
m. By adding a new paragraph (c)(2);
0
n. In newly redesignated paragraph (c)(3), by removing ``(f)(1)'', 
``legend'', and ``(f)(2)'' and adding ``(g)(1)'', ``restrictive 
marking'', and ``(g)(3)'' in their places, respectively;
0
o. By revising newly redesignated paragraphs (c)(5) and (c)(6);
0
p. In newly redesignated paragraph (c)(7) introductory text, by 
removing ``pre-existing'' and adding ``preexisting'' in its place;
0
q. By revising newly redesignated paragraph (c)(8);
0
r. In newly redesignated paragraph (c)(9)(iii), by removing ``non-
disclosure'', ``legend'', and ``an non-disclosure'' and adding 
``nondisclosure'', ``marking'', and ``a nondisclosure'' in their 
places, respectively;
0
s. In newly redesignated paragraph (c)(9)(iv), by removing ``non-
disclosure'' wherever it appears, ``252.227-7025'', and ``Information 
Marked with Restrictive Legends'' and adding ``nondisclosure'', ``DFARS 
252.227-7025'', and ``Information with Restrictive Markings'' in their 
places, respectively;
0
t. In newly redesignated paragraph (e) introductory text, by removing 
``(b)'' and adding ``(c)'' in its place;
0
u. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and 
adding ``(f)(3)'' in its place;
0
v. By revising the paragraph (f)(3) table;
0
w. In newly redesignated paragraph (f)(4), by removing ``Validation of 
Asserted Restrictions--Computer Software and/or Validation of 
Restrictive Markings on Technical Data'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software, and/or 
DFARS 252.227-7037, Validation of Restrictive Markings on Technical 
Data,'' in its place;
0
x. By revising paragraph (g);
0
y. In newly redesignated paragraph (i)(1), by removing ``Validation of 
Restrictive Markings on Technical Data and the Validation of Asserted 
Restrictions--Computer Software'' and adding ``DFARS 252.227-7037, 
Validation of Restrictive Markings on Technical Data, and the DFARS 
252.227-7019, Validation of Asserted Restrictions--Computer Software,'' 
in its place;
0
z. In newly redesignated paragraph (i)(2), by removing ``Validation of 
Restrictive Markings on Technical Data or the Validation of Asserted 
Restrictions--Computer Software'' and ``(sixty (6)) days'' and adding 
``DFARS 252.227-7037, Validation of Restrictive Markings on Technical 
Data, or the DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software,'' and ``60 days'' in their places, respectively;

[[Page 77698]]

0
aa. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and 
adding ``(k)(1)'' in its place;
0
bb. In newly redesignated paragraph (l), by revising the heading and 
paragraphs (l)(1) and (2); and
0
cc. By removing Alternate I.
    The revisions and additions read as follows:


252.227-7018  Rights in Noncommercial Technical Data and Computer 
Software--Small Business Innovation Research Program and Small Business 
Technology Transfer Program.

    As prescribed in 227.7104-4(a), use the following clause:

Rights in Noncommercial Technical Data and Computer Software--Small 
Business Innovation Research Program and Small Business Technlogy 
Transfer Program (Date)

    (a) * * *
    Government purpose rights means the rights to--
    (1) Use, modify, reproduce, release, perform, display, or 
disclose technical data or computer software within the Government 
without restriction; and
    (2) Release or disclose technical data or computer software 
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.
* * * * *
    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 
this clause;
    (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 (1) 
and (3) of this definition; and
    (ii) Not release or disclose the modified software except as 
provided in paragraphs (2), (5), (6), and (7) of this definition;
    (5) Permit contractors or subcontractors performing service 
contracts (see 37.101 of the Federal Acquisition Regulation) in 
support of this or a related contract to use computer software to 
diagnose and correct deficiencies in a computer program, to modify 
computer software to enable a computer program to be combined with, 
adapted to, or merged with other computer programs or when necessary 
to respond to urgent tactical situations, provided that--
    (i) The Government notifies the party which has granted 
restricted rights that a release or disclosure to particular 
contractors or subcontractors was made;
    (ii) Such contractors or subcontractors are subject to the 
nondisclosure agreement at 227.7103-7 of the Defense Federal 
Acquisition Regulation Supplement or are Government contractors 
receiving access to the software for performance of a Government 
contract that contains the clause at 252.227-7025, Limitations on 
the Use or Disclosure of Government-Furnished Information with 
Restrictive Markings;
    (iii) The Government shall not permit the recipient to 
decompile, disassemble, or reverse engineer the software, or use 
software decompiled, disassembled, or reverse engineered by the 
Government pursuant to paragraph (4) of this definition, for any 
other purpose; and
    (iv) Such use is subject to the limitations in paragraphs (1) 
through (3) of this definition;
    (6) Permit contractors or subcontractors performing emergency 
repairs or overhaul of items or components of items procured under 
this or a related contract to use the computer software when 
necessary to perform the repairs or overhaul, or to modify the 
computer software to reflect the repairs or overhaul made, provided 
that--
    (i) The intended recipient is subject to the nondisclosure 
agreement at 227.7103-7 or is a Government contractor receiving 
access to the software for performance of a Government contract that 
contains the clause at 252.227-7025, Limitations on the Use or 
Disclosure of Government Furnished Information with Restrictive 
Markings;
    (ii) The Government shall not permit the recipient to decompile, 
disassemble, or reverse engineer the software, or use software 
decompiled, disassembled, or reverse engineered by the Government 
pursuant to paragraph (4) of this definition, for any other purpose; 
and
    (iii) Such use is subject to the limitations in paragraphs (1) 
through (3) of this definition; and
    (7) Permit covered Government support contractors in the 
performance of Government contracts that contain the clause at 
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Markings, to use, modify, 
reproduce, perform, display, or release or disclose the computer 
software to a person authorized to receive restricted rights 
computer software, provided that--
    (i) The Government shall not permit the covered Government 
support contractor to decompile, disassemble, or reverse engineer 
the software, or use software decompiled, disassembled, or reverse 
engineered by the Government pursuant to paragraph (4) of this 
definition, for any other purpose; and
    (ii) Such use is subject to the limitations in paragraphs (1) 
through (4) of this definition.
    Small Business Innovation Research/Small Business Technology 
Transfer (SBIR/STTR) data means all technical data or computer 
software developed or generated in the performance of a phase I, II, 
or III SBIR/STTR contract or subcontract.
    SBIR/STTR data protection period means the period of time during 
which the Government is obligated to protect SBIR/STTR data against 
unauthorized use and disclosure in accordance with SBIR/STTR data 
rights. The SBIR/STTR data protection period begins on the date of 
award of the contract under which the SBIR/STTR data are developed 
or generated and ends 20 years after that date unless, subsequent to 
the award, the agency and the Contractor negotiate for some other 
protection period for the SBIR/STTR data developed or generated 
under that contract.
    SBIR/STTR data rights means the Government's rights, during the 
SBIR/STTR data protection period, in SBIR/STTR data covered by 
paragraph (c)(5) of this clause, as follows:
    (1) Limited rights in such SBIR/STTR technical data; and
    (2) Restricted rights in such SBIR/STTR computer software.
* * * * *
    (b) Applicability. This clause will govern all SBIR/STTR data. 
For any data that are not SBIR/STTR data--
    (1) The Defense Federal Acquisition Regulation Supplement 
(DFARS) clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, will govern the technical data pertaining to 
noncommercial items or to any portion of a commercial item that was 
developed in any part at Government expense, and the DFARS clause at 
252.227-7015, Technical Data--Commercial Items, will govern the 
technical data pertaining to any portion of a commercial item that 
was developed exclusively at private expense;
    (2) The DFARS clause at 252.227-7014, Rights in Noncommercial 
Computer Software and Noncommercial Computer Software Documentation, 
will govern noncommercial computer software and computer software 
documentation; and
    (3) A license consistent with DFARS 227.7202 will govern 
commercial computer software and commercial computer software 
documentation.
* * * * *
    (c) * * *
    (1) * * *
    (v) Technical data or computer software in which the Government 
has acquired previously unlimited rights under another Government 
contract or as a result of negotiations;
    (vi) Technical data or computer software furnished to the 
Government, under this or any other Government contract or 
subcontract thereunder, with license rights for which all 
restrictive conditions on the Government have expired; and
    (vii) Computer software documentation generated or required to 
be delivered under this contract.
    (2) Government purpose rights. (i) The Government shall have 
government purpose rights for the period specified in paragraph 
(c)(2)(ii) of this clause in data that are--
    (A) Not SBIR/STTR data, and are--
    (1) Technical data pertaining to items, components, or processes 
developed with mixed funding, or are computer software developed 
with mixed funding, except when

[[Page 77699]]

the Government is entitled to unlimited rights in such data as 
provided in paragraph (c)(1) of this clause;
    (2) Created with mixed funding in the performance of a contract 
that does not require the development, manufacture, construction, or 
production of items, components, or processes; or
    (B) SBIR/STTR data, upon expiration of the SBIR/STTR data 
protection period.
    (ii)(A) For the non-SBIR/STTR data described in paragraph 
(c)(2)(i)(A) of this clause, the Government shall have government 
purpose rights for a period of 5 years, or such other period as may 
be negotiated. This period shall commence upon award of the 
contract, subcontract, letter contract (or similar contractual 
instrument), or contract modification (including a modification to 
exercise an option) that required development of the items, 
components, or processes, or creation of the data described in 
paragraph (c)(2)(i)(A)(2) of this clause. Upon expiration of the 5-
year or other negotiated period, the Government shall have unlimited 
rights in the data.
    (B) For the SBIR/STTR data described in paragraph (c)(2)(i)(B) 
of this clause, the Government shall have government purpose rights 
perpetually or for such other period as may be negotiated. This 
Government purpose rights period commences upon the expiration of 
the SBIR/STTR data protection period. Upon expiration of any such 
negotiated government purpose rights period, the Government shall 
have unlimited rights in the data.
    (iii) The Government shall not release or disclose data in which 
it has government purpose rights unless--
    (A) Prior to release or disclosure, the intended recipient is 
subject to the nondisclosure agreement at DFARS 227.7103-7; or
    (B) The recipient is a Government contractor receiving access to 
the data 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 Markings.
    (iv) The Contractor has the exclusive right, including the right 
to license others, to use technical data in which the Government has 
obtained government purpose rights under this contract for any 
commercial purpose during the time period specified in the 
government purpose rights marking prescribed in paragraph (g)(2) of 
this clause.
* * * * *
    (5) SBIR/STTR data rights. Except for technical data, including 
computer software documentation, or computer software in which the 
Government has unlimited rights under paragraph (c)(1) of this 
clause, the Government shall have SBIR/STTR data rights, during the 
SBIR/STTR data protection period of this contract, in all SBIR/STTR 
data developed or generated under this contract. This protection 
period is not extended by any subsequent SBIR/STTR contracts under 
which any portion of that SBIR/STTR data is used or delivered. The 
SBIR/STTR data protection period of any such subsequent SBIR/STTR 
contract applies only to the SBIR/STTR data that are developed or 
generated under that subsequent contract. The SBIR/STTR data 
protection period is governed by the version of this clause that is 
incorporated in the contract under which the SBIR/STTR data are 
developed or generated. If the SBIR/STTR data were developed or 
generated under a contract that included a previous version of this 
clause, then the SBIR/STTR data protection period is governed by 
that previous version of this clause.
    (6) Specifically negotiated license rights. The standard license 
rights granted to the Government under paragraphs (c)(1) through 
(c)(5) of this clause may be modified by mutual agreement to provide 
such rights as the parties consider appropriate but shall not 
provide the Government lesser rights in technical data, including 
computer software documentation, than are enumerated in the 
definition of ``limited rights'' of this clause or lesser rights in 
computer software than are the definition of ``restricted rights'' 
of this clause. Any rights so negotiated shall be identified in a 
license agreement made part of this contract.
* * * * *
    (8) Release from liability. The Contractor agrees to release the 
Government from liability for any release or disclosure of technical 
data, computer software, or computer software documentation made in 
accordance with the definitions of ``Government purpose,'' 
``noncommercial computer software,'' or paragraph (c)(5) of this 
clause, or in accordance with the terms of a license negotiated 
under paragraph (c)(6) of this clause, or by others to whom the 
recipient has released or disclosed the data, software, or 
documentation and to seek relief solely from the party who has 
improperly used, modified, reproduced, released, performed, 
displayed, or disclosed Contractor data or software marked with 
restrictive markings.
* * * * *
    (f) * * *

Identification and Assertion of Restrictions on the Government's Use, 
Release, or Disclosure of Technical Data or Computer Software

    The Contractor asserts for itself, or the persons identified 
below, that the Government's rights to use, release, or disclose the 
following technical data or computer software should be restricted:

----------------------------------------------------------------------------------------------------------------
 Technical data or Computer
  software to be furnished     Basis for assertion \2\     Asserted Rights category    Name of person asserting
   with restrictions \1\                                              \3\                  restrictions \4\
----------------------------------------------------------------------------------------------------------------
               (LIST) \5\                       (LIST)                      (LIST)                      (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components, or processes developed at private expense, identify
  both the technical data and each such item, component, or process.
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
  restrictions on the Government's rights to use, release, or disclose technical data or computer software.
  Indicate whether development was accomplished exclusively or partially at private expense. If development was
  not at private expense enter the specific reason for asserting that the Government's rights should be
  restricted.
\3\ Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or
  government purpose license rights from a prior contract, SBIR/STTR data rights under this or another contract,
  or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.

Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------

(End of identification and assertion)
* * * * *
    (g)(1) Marking requirements. The Contractor, and its 
subcontractors or suppliers, shall apply asserted restrictions on 
technical data or computer software delivered under this contract 
only by marking such technical data or software. Except as provided 
in paragraph (g)(11) of this clause, only the following restrictive 
markings are authorized under this contract:
    (i) The unlimited rights marking at paragraph (g)(5) of this 
clause.
    (ii) The government purpose rights marking at paragraph (g)(6) 
of this clause.
    (iii) The limited rights marking at paragraph (g)(7) of this 
clause.
    (iv) The restricted rights marking at paragraph (g)(8) of this 
clause.
    (v) The SBIR/STTR data rights marking at paragraph (g)(9) of 
this clause.
    (vi) The special license rights marking at paragraph (g)(10) of 
this clause.
    (vii) A notice of copyright in the format prescribed under 17 
U.S.C. 401 or 402.
    (2) Other restrictive makings. Any other restrictive markings, 
including markings that describe restrictions placed on third-party 
recipients of the technical data or computer software, are not 
authorized and shall be deemed nonconforming markings governed by 
paragraph (i)(2) of this clause.
    (3) General marking instructions. The Contractor, or its 
subcontractors or suppliers, shall conspicuously and legibly mark 
the appropriate restrictive marking to all technical data and 
computer software that qualify for such markings. The authorized 
restrictive markings shall be placed on the

[[Page 77700]]

transmittal document or storage container and, for printed material, 
each page of the printed material containing technical data or 
computer software for which restrictions are asserted. When only 
portions of a page of printed material are subject to the asserted 
restrictions, such portions shall be identified by circling, 
underscoring, with a note, or other appropriate identifier. 
Technical data or computer software transmitted directly from one 
computer or computer terminal to another shall contain a notice of 
asserted restrictions. However, instructions that interfere with or 
delay the operation of computer software in order to display a 
restrictive rights marking or other license statement at any time 
prior to or during use of the computer software, or otherwise cause 
such interference or delay, shall not be inserted in software that 
will or might be used in combat or situations that simulate combat 
conditions, unless the Contracting Officer's written permission to 
deliver such software has been obtained prior to delivery. 
Reproductions of technical data, computer software, or any portions 
thereof subject to asserted restrictions shall also reproduce the 
asserted restrictions.
    (4) Omitted markings. (i) Technical data, computer software, or 
computer software documentation delivered or otherwise provided 
under this contract without restrictive markings shall be presumed 
to have been delivered with unlimited rights. To the extent 
practicable, if the Contractor has requested permission (see 
paragraph (g)(4)(ii) of this clause) to correct an inadvertent 
omission of markings, the Contracting Officer will not release or 
disclose the technical data, software, or documentation pending 
evaluation of the request.
    (ii) The Contractor may request permission to have conforming 
and justified restrictive markings placed on unmarked technical 
data, computer software, or computer software documentation at its 
expense. The request must be received by the Contracting Officer 
within 6 months following the furnishing or delivery of such 
technical data, software, or documentation, or any extension of that 
time approved by the Contracting Officer. The Contractor shall--
    (A) Identify the technical data, software, or documentation that 
should have been marked;
    (B) Demonstrate that the omission of the marking was 
inadvertent, the proposed marking is justified and conforms with the 
requirements for the marking of technical data, computer software, 
or computer software documentation contained in this clause; and
    (C) Acknowledge, in writing, that the Government has no 
liability with respect to any disclosure, reproduction, or use of 
the technical data, software, or documentation made prior to the 
addition of the marking or resulting from the omission of the 
marking.
    (5) Unlimited rights markings. Technical data or computer 
software delivered or otherwise furnished to the Government with 
unlimited rights shall be marked as follows:

Unlimited Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government has unlimited rights in these technical data or 
this computer software pursuant to DFARS 252.227-7013, Rights in 
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation; or DFARS 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research Program and Small Business Technology Transfer Program, 
clause of the above identified contract, as applicable. This marking 
must be included in any reproduction of these technical data, 
computer software, or portions thereof. (End of marking)
    (6) Government purpose rights markings. Technical data or 
computer software delivered or otherwise furnished to the Government 
with government purpose rights shall be marked as follows:

Government Purpose Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these technical data or computer 
software are restricted by paragraph (c)(2) of the DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business 
Technology Transfer Program, clause contained in the above 
identified contract. No restrictions apply after the expiration date 
shown above. Any reproduction of technical data or computer software 
or portions thereof marked with this restrictive marking must also 
reproduce the markings.

(End of marking)

    (7) Limited rights markings. Technical data not generated under 
this contract that pertain to items, components, or processes 
developed exclusively at private expense and delivered or otherwise 
furnished with limited rights shall be marked as follows:

Limited Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose these technical data are restricted by 
paragraph (c)(3) of the DFARS 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research Program and Small Business Technology Transfer Program, 
clause contained in the above identified contract. Any reproduction 
of technical data or portions thereof marked with this restrictive 
marking must also reproduce the markings. Any person, other than the 
Government, who has been provided access to such data must promptly 
notify the above named Contractor.

(End of marking)

    (8) Restricted rights markings. Computer software delivered or 
otherwise furnished to the Government with restricted rights shall 
be marked as follows:

Restricted Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this software are restricted by 
paragraph (c)(4) of the DFARS 252.227-7018, Rights in Noncommercial 
Technical Data and Computer Software--Small Business Innovation 
Research Program and Small Business Technology Transfer Program, 
clause contained in the above identified contract. Any reproduction 
of computer software or portions thereof marked with this 
restrictive marking must also reproduce the markings. Any person, 
other than the Government, who has been provided access to such 
software must promptly notify the above named Contractor.

(End of marking)

    (9) SBIR/STTR data rights markings. Except for technical data or 
computer software in which the Government has acquired unlimited 
rights under paragraph (c)(1) of this clause or negotiated special 
license rights as provided in paragraph (c)(6) of this clause, 
technical data or computer software generated under this contract 
shall be marked as follows. The Contractor shall enter the 
expiration date for the SBIR/STTR data protection period on the 
marking:

SBIR/STTR Data Rights

Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration of SBIR/STTR Data Protection Period-------------------------
Expiration of the Government Purpose Rights Period---------------------

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose technical data or computer software 
marked with this restrictive marking are restricted during the 
period shown as provided in paragraph (c)(5) of the DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business 
Technology Transfer Program, clause contained in the above 
identified contract. After the SBIR/STTR data protection period 
expiration date shown above, the Government has perpetual government 
purpose rights as provided in paragraph (c)(4) of that clause, 
unless otherwise indicated by the government purpose rights 
expiration date shown above. Any reproduction of technical data, 
computer software, or portions thereof marked with this restrictive 
marking must also reproduce the markings.

(End of marking)

    (10) Special license rights markings.
    (i) Technical data or computer software in which the 
Government's rights stem from a specifically negotiated license 
shall be marked as follows:

[[Page 77701]]

Special License Rights

    The Government's rights to use, modify, reproduce, release, 
perform, display, or disclose this technical data or computer 
software are restricted by Contract Number [Insert contract number], 
License Number [Insert license identifier]. Any reproduction of 
technical data, computer software, or portions thereof marked with 
this restrictive marking must also reproduce the markings.

(End of marking)

    (ii) For purposes of this clause, special licenses do not 
include government purpose license rights acquired under a prior 
contract (see paragraph (c)(7) of this clause).
    (11) Preexisting data markings. If the terms of a prior contract 
or license permitted the Contractor to restrict the Government's 
rights to use, modify, reproduce, release, perform, display, or 
disclose technical data or computer software, and those restrictions 
are still applicable, the Contractor may mark such data or software 
with the appropriate restrictive marking for which the data or 
software qualified under the prior contract or license. The 
Contractor shall follow the marking procedures in paragraph (g)(1) 
of this clause.
* * * * *
    (l) Subcontractors or suppliers. (1) The Contractor shall assure 
that the rights afforded its subcontractors and suppliers under 10 
U.S.C. 2320, 10 U.S.C. 2321, 15 U.S.C. 638(j)(1)(B)(iii) and (v), 
and the identification, assertion, and delivery processes required 
by paragraph (f) of this clause are recognized and protected.
    (2) Whenever any technical data or computer software is to be 
obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the Contractor shall use the 
following clause(s) in the subcontract or other contractual 
instrument, and require its subcontractors or suppliers to do so, 
without alteration, except to identify the parties:
    (i) Except as provided in paragraph (l)(2)(ii) of this clause, 
use this clause to govern SBIR/STTR data.
    (ii) For data that are not SBIR/STTR data--
    (A) Use the DFARS clause at 252.227-7013, Rights in Technical 
Data--Noncommercial Items, to govern the technical data pertaining 
to noncommercial items or to any portion of a commercial item that 
was developed in any part at Government expense, and use the DFARS 
clause at 252.227-7015, Technical Data--Commercial Items, to govern 
the technical data pertaining to any portion of a commercial item 
that was developed exclusively at private expense;
    (B) Use the DFARS clause at 252.227-7014, Rights in 
Noncommercial Computer Software and Noncommercial Computer Software 
Documentation, to govern noncommercial computer software and 
computer software documentation; and
    (C) Use the license under which the data are customarily 
provided to the public, in accordance with DFARS 227.7202, for 
commercial computer software and commercial computer software 
documentation.
    (iii) No other clause shall be used to enlarge or diminish the 
Government's, the Contractor's, or a higher tier subcontractor's or 
supplier's rights in a subcontractor's or supplier's technical data 
or computer software.
* * * * *
0
24. Amend section 252.227-7019--
0
a. By revising the section heading, introductory text, and clause date;
0
b. By revising paragraph (a);
0
c. In paragraph (d)(2)(i)(B) by removing ``sixty (60) days'' and the 
period at the end of the paragraph and adding ``60 days'' and a 
semicolon in their places, respectively;
0
d. In paragraph (e)(1) by removing ``three years'' wherever it appears 
and adding ``3 years'' in its place;
0
e. In paragraph (f)(1)(ii) by removing ``sixty (60) days'' and adding 
``60 days'' in its place;
0
f. In paragraph (f)(1)(iv) by removing ``three-year'' and adding ``3-
year'' in its place;
0
g. In paragraph (f)(7) by removing ``provides the contractor'' and 
adding ``provides the Contractor'' in its place;
0
h. In paragraph (g)(1)(i), by removing ``ninety (90) days'' and adding 
``90 days'' in its place;
0
i. In paragraph (g)(1)(ii), by removing ``one year'' and ``ninety (90) 
days'' and adding ``1 year'' and ``90 days'' in their places, 
respectively;
0
j. Revising paragraph (g)(1)(iii);
0
k. In paragraphs (g)(2)(i) and (ii), by removing ``ninety (90) days'' 
and adding ``90 days'' in its place;
0
l. In paragraph (g)(2)(iii), by removing ``one year'' and ``ninety (90) 
days'' and adding ``1 year'' and ``90 days'' in their places, 
respectively; and
0
m. Revising paragraph (g)(3).
    The revisions read as follows:


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

    As prescribed in 227.7104-4(b)(3) or 227.7203-6(c), use the 
following clause:

Validation of Asserted Restrictions--Computer Software (Date)

    (a) Definitions. As used in this clause--
    Contractor, unless otherwise specifically indicated, means the 
Contractor and its subcontractors or suppliers.
    Other terms used in this clause are defined in the 252.227-7014, 
Rights in Noncommercial Computer Software and Noncommercial Computer 
Software Documentation, clause of this contract.
* * * * *
    (g) * * *
    (1) * * *
    (iii) Until final disposition by the appropriate Board of 
Contract Appeals or court of competent jurisdiction, if the 
Contractor has--
    (A) Appealed to the Board of Contract Appeals or filed suit in 
an appropriate court within 90 days; or
    (B) Submitted, within 90 days, a notice of intent to file suit 
in an appropriate court and filed suit within 1 year.
* * * * *
    (3)(i) The agency head, on a nondelegable basis, may determine 
that urgent or compelling circumstances do not permit awaiting the 
filing of suit in an appropriate court, or the rendering of a 
decision by a court of competent jurisdiction or Board of Contract 
Appeals. In that event, the agency head shall notify the Contractor 
of the urgent or compelling circumstances. Notwithstanding paragraph 
(g)(1) of this clause, the Contractor agrees that the agency may 
use, modify, reproduce, release, perform, display, or disclose 
computer software marked with--
    (A) Government purpose markings for any purpose, and authorize 
others to do so; or
    (B) Restricted or special license rights for government purposes 
only.
    (ii) The Government agrees not to release or disclose such 
software unless, prior to release or disclosure, the intended 
recipient is subject to the use and nondisclosure agreement at DFARS 
227.7103-7, or is a Government contractor 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 Markings. The 
agency head's determination may be made at any time after the date 
of the Contracting Officer's final decision and shall not affect the 
Contractor's right to damages against the United States, or other 
relief provided by law, if its asserted restrictions are ultimately 
upheld.
* * * * *
0
25. Amend section 252.227-7025--
0
a. By revising the section heading, introductory text, and clause date;
0
b. By adding paragraph (a) introductory text and revising paragraph 
(a)(3);
0
c. By revising paragraph (b)(1) heading, paragraphs (b)(1)(i), (b)(2), 
(3) and (4);
0
d. In paragraph (b)(5) introductory text, by removing ``legends'' and 
adding ``markings'' in its place;
0
e. In paragraph (b)(5)(iii), by removing ``legend'' and ``thirty (30) 
days'' and adding ``marking'' and ``30 days'' in their places, 
respectively;
0
f. In paragraph (b)(5)(iv), by removing ``non-disclosure'' wherever it 
appears and ``legend'' and adding ``nondisclosure'' and ``marking'' in 
their places, respectively;
0
g. In paragraph (b)(5)(v)(B), by removing ``legend'' and adding 
``marking'' in its place;
0
h. In paragraph (c)(1), by removing ``legends'' and adding ``markings'' 
in its place'';
0
i. In paragraph (c)(2), by removing ``legend'' and ``legends'' and 
adding ``marking'' and ``markings'' in their places, respectively; and

[[Page 77702]]

0
j. In paragraph (d), by removing ``non-disclosure'' and adding 
``nondisclosure'' in its place; and
0
k. By adding ``(End of clause)'' at the end of the clause.
    The revisions and addition read as follows:


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

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

Limitations on the Use or Disclosure of Government-Furnished 
Information With Restrictive Markings (Date)

    (a) Definitions. As used in this clause--
* * * * *
    (3) For Small Business Innovation Research (SBIR) Program and 
Small Business Technology Transfer (STTR) Program contracts, the 
terms ``covered Government support contractor,'' ``government 
purpose rights,'' ``limited rights,'' ``restricted rights,'' and 
``SBIR/STTR data rights'' are defined in the clause at 252.227-7018, 
Rights in Noncommercial Technical Data and Computer Software--Small 
Business Innovation Research Program and Small Business Technology 
Transfer Program.
    (b) * * *
    (1) GFI marked with limited rights, restricted rights, or SBIR/
STTR data rights markings. (i) The Contractor shall use, modify, 
reproduce, perform, or display technical data received from the 
Government with limited rights markings, computer software received 
with restricted rights markings, or SBIR/STTR technical data or 
computer software received with SBIR/STTR data rights markings 
(during the SBIR/STTR data protection period) only in the 
performance of this contract. The Contractor shall not, without the 
express written permission of the party whose name appears in the 
marking, release or disclose such data or software to any 
unauthorized person.
* * * * *
    (2) GFI marked with government purpose rights markings. The 
Contractor shall use technical data or computer software received 
from the Government with government purpose rights markings for 
government purposes only. The Contractor shall not, without the 
express written permission of the party whose name appears in the 
restrictive marking, use, modify, reproduce, release, perform, or 
display such data or software for any commercial purpose or disclose 
such data or software to a person other than its subcontractors, 
suppliers, or prospective subcontractors or suppliers, who require 
the data or software to submit offers for, or perform, contracts 
under this contract. Prior to disclosing the data or software, the 
Contractor shall require the persons to whom disclosure will be made 
to complete and sign the nondisclosure agreement at 227.7103-7 of 
the Defense Federal Acquisition Regulation Supplement (DFARS).
    (3) GFI marked with specially negotiated license rights 
markings. (i) The Contractor shall use, modify, reproduce, release, 
perform, or display technical data or computer software received 
from the Government with specially negotiated license markings only 
as permitted in the license. Such data or software may not be 
released or disclosed to other persons unless permitted by the 
license and, prior to release or disclosure, the intended recipient 
has completed the nondisclosure agreement at DFARS 227.7103-7. The 
Contractor shall modify paragraph (1)(c) of the nondisclosure 
agreement to reflect the recipient's obligations regarding use, 
modification, reproduction, release, performance, display, and 
disclosure of the data or software.
* * * * *
    (4) GFI technical data marked with commercial restrictive 
markings. (i) The Contractor shall use, modify, reproduce, perform, 
or display technical data that are or pertain to a commercial item 
and are received from the Government with a commercial restrictive 
marking (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. 
The Contractor shall not, without the express written permission of 
the party whose name appears in the marking, use the technical data 
to manufacture additional quantities of the commercial items, or 
release or disclose such data to any unauthorized person.
* * * * *

(End of clause)

0
26. Revise section 252.227-7028 heading and introductory text to read 
as follows:


252.227-7028  Technical Data or Computer Software Previously Delivered 
to the Government.

    As prescribed in 227.7103-6(d), 227.7104-4(b)(5), or 227.7203-6(e), 
use the following provision:
* * * * *
0
27. Revise section 252.227-7030 heading and introductory text to read 
as follows:


252.227-7030  Technical Data--Withholding of Payment.

    As prescribed at 227.7103-6(e)(2) or 227.7104-4(b)(6), use the 
following clause:
* * * * *


252.227-7037  [Amended]

0
28. Amend section 252.227-7037 introductory text by removing 
``,227.7104(c)(5)'' and adding ``, 227.7104-4(b)(7)'' in its place.
0
29. Add new sections 252.227-70XX and 252.227-70YY to read as follows:


252.227-70XX  Additional Preaward Requirements for Small Business 
Technology Transfer Program.

    As prescribed in 227.7104-4(c)(1), use the following provision:

Additional Preaward Requirements for Small Business Technology Transfer 
Program (Date)

    (a) Definitions. As used in this provision, the terms research 
institution and United States have the meaning given in the 252.227-
70YY, Additional Postaward Requirements for Small Business 
Technology Transfer Program, clause of this solicitation.
    (b) Offers submitted in response to this solicitation shall 
include the following:
    (1) The written agreement between the Offeror and a partnering 
research institution, which shall contain--
    (i) A specific allocation of ownership, rights, and 
responsibilities for intellectual property (including inventions, 
patents, technical data, and computer software) resulting from the 
Small Business Technology Transfer (STTR) Program award;
    (ii) Identification of which party to the written agreement may 
obtain United States or foreign patents or otherwise protect any 
inventions that result from a STTR award; and
    (iii) No provisions that conflict with the requirements of this 
solicitation, including the rights of the United States and the 
Offeror regarding intellectual property, and regarding any right to 
carry out follow-on research.
    (2) The Offeror's written representation that--
    (i) The Offeror is satisfied with its written agreement with the 
partnering research institution; and
    (ii) The written agreement does not conflict with the 
requirements of this solicitation.
    (c) The Offeror shall submit the written representation required 
by paragraph (b)(2) of this provision as an attachment to its offer, 
dated and signed by an official authorized to contractually obligate 
the Offeror.
    (d) The Offeror's failure to submit the written agreement or 
written representation required by paragraph (b) of this provision 
with its offer may render the offer ineligible for award.
    (e) If the Offeror is awarded a contract, the Contracting 
Officer will include the written agreement and written 
representation required by paragraph (b) of this provision in an 
attachment to that contract.
    (End of provision)


252.227-70YY  Additional Postaward Requirements for Small Business 
Technology Transfer Program.

    As prescribed in 227.7104-4(c)(2), use the following clause:

Additional Postaward Requirements for Small Business Technology 
Transfer Program (Date)

    (a) Definitions. As used in this clause--
    Research institution means an institution or entity that--
    (1) Has a place of business located in the United States;
    (2) Operates primarily within the United States or makes a 
significant contribution to the U.S. economy through payment of 
taxes or use of American products, materials or labor; and
    (3) Is either--
    (i) A nonprofit institution that is owned and operated 
exclusively for scientific or

[[Page 77703]]

educational purposes, no part of the net earnings of which inures to 
the benefit of any private shareholder or individual (section 4(3) 
of the Stevenson-Wydler Technology Innovation Act of 1980); or
    (ii) A Federally-funded research or research and development 
center as identified by the National Science Foundation (https://www.nsf.gov/statistics/ffrdclist/) in accordance with the Federal 
Acquisition Regulation (FAR).
    United States means the 50 States and the District of Columbia, 
the territories and possessions of the Government, the Commonwealth 
of Puerto Rico, the Republic of the Marshall Islands, the Federated 
States of Micronesia, and the Republic of Palau.
    (b) Preaward submissions. Attached to this contract are the 
following documents, submitted by the Contractor pursuant to Defense 
Federal Acquisition Regulation Supplement 252.227-70XX, Additional 
Preaward Requirements for Small Business Technology Transfer 
Program:
    (1) The written agreement between the Contractor and a 
partnering research institution.
    (2) The Contractor's written representation that it is satisfied 
with that written agreement, which does not conflict with the 
requirements of this contract.
    (c) Postaward updates. The Contractor shall not allow any 
modification to its written agreement with the partnering research 
institution, unless the written agreement, as modified, contains--
    (1) A specific allocation of ownership, rights, and 
responsibilities for intellectual property (including inventions, 
patents, technical data, and computer software) resulting from 
performance of this contract;
    (2) Identification of which party to the written agreement may 
obtain United States or foreign patents or otherwise protect any 
inventions that result from a Small Business Technology Transfer 
Program award;
    (3) The Contractor's written, dated, and signed representation 
that--
    (i) The Contractor is satisfied with its written agreement with 
the partnering research institution, as modified; and
    (ii) The written agreement, as modified, does not conflict with 
the requirements of this contract; and
    (4) No provisions that conflict with the requirements of this 
contract, including the rights of the United States and the 
Contractor regarding intellectual property, and regarding any right 
to carry out follow-on research.
    (d) Submission of updated agreement. Within 30 days of execution 
of the modified written agreement described in paragraph (b)(1) of 
this clause, the Contractor shall submit a copy of that updated 
written agreement and the updated written representation described 
in paragraph (b)(2) of this clause to the Contracting Officer for 
review and attachment to this contract.
(End of clause)

[FR Doc. 2022-27196 Filed 12-15-22; 8:45 am]
BILLING CODE 6820-ep-P