Defense Federal Acquisition Regulation Supplement; Presumption of Development Exclusively at Private Expense (DFARS Case 2007-D003), 58144-58149 [2011-23956]
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Contract line, subline, or
exhibit line item number
Location name
(2) The following are excluded from the
requirements of paragraph (b)(1) of this
clause:
(i) Shipments of bulk commodities.
(ii) Shipments to locations other than
Defense Distribution Depots when the
contract includes the clause at FAR 52.213–
1, Fast Payment Procedures.
(c) The Contractor shall—
(1) Ensure that the data encoded on each
passive RFID tag are globally unique (i.e., the
tag ID is never repeated across two or more
RFID tags) and conforms to the requirements
in paragraph (d) of this clause;
(2) Use passive tags that are readable; and
(3) Ensure that the passive tag is affixed at
the appropriate location on the specific level
of packaging, in accordance with MIL–STD–
129 (Section 4.9.2) tag placement
specifications.
(d) Data syntax and standards. The
Contractor shall encode an approved RFID
tag using the instructions provided in the
EPCTM Tag Data Standards in effect at the
time of contract award. The EPCTM Tag Data
Standards are available at https://
www.epcglobalinc.org/standards/.
(1) If the Contractor is an EPCglobalTM
subscriber and possesses a unique EPCTM
company prefix, the Contractor may use any
of the identifiers and encoding instructions
described in the most recent EPCTM Tag Data
Standards document to encode tags.
(2) If the Contractor chooses to employ the
DoD identifier, the Contractor shall use its
previously assigned Commercial and
Government Entity (CAGE) code and shall
encode the tags in accordance with the tag
identifier details located at https://
www.acq.osd.mil/log/rfid/tag_data.htm. If
the Contractor uses a third-party packaging
house to encode its tags, the CAGE code of
the third-party packaging house is
acceptable.
(3) Regardless of the selected encoding
scheme, the Contractor with which the
Department holds the contract is responsible
for ensuring that the tag ID encoded on each
passive RFID tag is globally unique, per the
requirements in paragraph (c)(1) of this
clause.
(e) Advance shipment notice. The
Contractor shall use Wide Area WorkFlow
(WAWF), as required by DFARS 252.232–
7003, Electronic Submission of Payment
Requests, to electronically submit advance
shipment notice(s) with the RFID tag ID(s)
(specified in paragraph (d) of this clause) in
advance of the shipment in accordance with
the procedures at https://wawf.eb.mil/.
(End of clause)
[FR Doc. 2011–23945 Filed 9–19–11; 8:45 am]
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City
State
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 227, and 252
RIN 0750–AF84
Defense Federal Acquisition
Regulation Supplement; Presumption
of Development Exclusively at Private
Expense (DFARS Case 2007–D003)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule to
amend the Defense Federal Acquisition
Regulation Supplement to implement
sections of the Fiscal Year (FY) 2007
and 2008 National Defense
Authorization Act, including special
requirements and procedures related to
the validation of a contractor’s or
subcontractor’s asserted restrictions on
technical data and computer software.
DATES: Effective date: September 20,
2011.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Mr.
Manuel Quinones, 703–602–8383.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the Defense
Federal Acquisition Regulation
Supplement (DFARS) to implement
section 802(b) of the FY 2007 National
Defense Authorization Act (NDAA)
(Pub. L. 109–364) and section 815 of the
FY 2008 NDAA (Pub. L. 110–181).
Section 802(b) modified 10 U.S.C.
2321(f)(2) with regard to the
presumption of development at private
expense for major systems. Section 815
revised 10 U.S.C. 2321(f)(2) to exempt
commercially available off-the-shelf
items from the requirements that section
802(b) established for major systems.
This final rule implements special
requirements and procedures related to
the validation of a contractor’s or
subcontractor’s asserted restrictions on
technical data and computer software.
More specifically, the final rule affects
these validation procedures in the
context of two special categories of
items: Commercial items (including
commercially available off-the-shelf
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items), which may be referred to as the
‘‘Commercial Rule;’’ and major systems
(including subsystems and components
of major systems), which may be
referred to as the ‘‘Major Systems Rule.’’
DoD published a proposed rule with
a request for comments in the Federal
Register on May 7, 2010 (75 FR 25161).
Two respondents provided comments.
II. Discussion and Analysis of the
Public Comments
A discussion of the comments and the
changes made to the rule as a result of
those comments are provided as
follows.
A. Prescribing a Noncommercial Clause
for Technical Data Related to a
Commercial Item
Comment: Two respondents described
the prescriptions at DFARS 227.7102–
3(b) and 227.7103–6(a) as new
requirements that exceed the changes
necessary to implement the statute.
Response: The operative elements of
the clause prescription at DFARS
227.7102–3(b) were a part of the last
major revision of Part 227 in 1995. The
substance of the prescription has not
changed in the proposed rule; the
requirement was redesignated as DFARS
227.7102–(4)(b) and revised to crossreference the prescription added to
DFARS 227.7103–6(a). This follows
DFARS drafting principles to use only a
single prescription for each clause,
using cross-references when necessary.
As such, the prescription at DFARS
227.7103–6(a) serves as the primary
source for prescribing all uses of the
clause at DFARS 252.227–7013, with a
cross-reference at 227.7102–(4)(b).
Comment: A respondent
recommended that the criteria ‘‘or will
pay any portion of the development
costs’’ should be eliminated because the
Government should not receive the
benefit of something it may or may not
pay for in the future outside of the
contract.
Response: The ‘‘will pay’’ criterion
has been used since 1995. The term
‘‘will’’ is used to denote an anticipated
future action or result, and there is no
evidence that this criterion has been or
should be interpreted as seeking to be
used in a contract when the criteria
used to invoke the clause has not, and
is not, expected to occur during the
contract.
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Comment: Two respondents outlined
specific concerns that prescribing use of
the noncommercial clause for technical
data related to a commercial item is
unnecessarily burdensome with regard
to the noncommercial marking
requirements. One respondent argued
that this could result in the contractor
unintentionally forfeiting its intellectual
property rights by delivering with
commercial markings that do not
comply with the DFARS noncommercial
marking requirements.
Response: The prescription for the use
of the clause at DFARS 252.227–7013 in
this scenario already exists. Use of
commercial restrictive markings would
not directly result in the forfeiture of the
contractor’s intellectual property rights
in cases in which the noncommercial
marking rules were used. The restrictive
marking required by the clause at
DFARS 252.227–7015(d) for technical
data related to commercial items should
be sufficient to: (1) Preserve the
contractor’s rights under the
noncommercial clause procedures for
correcting ‘‘nonconforming’’ markings
(see DFARS 252.227–7013(h)(1)) or (2)
validate asserted restrictions under
DFARS 252.227–7037, which is used
regardless of whether the clauses at
DFARS 252.227–7013 or 252.227–7015
are included.
The final rule is amended to address
concerns about the desirability of
requiring noncommercial markings for
the entire technical data package, in
cases where the Government may have
funded only a small portion of the
development. The final rule revises the
prescriptions at DFARS 227.7102–4(b)
and 227.7103–6(a), to clarify that in
cases when the Government ‘‘will have
paid’’ for any portion of the
development of a commercial item, both
the commercial clause at DFARS
252.227–7015 and the noncommercial
clause at DFARS 252.227–7013 should
be used together. In these cases, the
noncommercial clause will apply only
to the technical data related to those
portions of the commercial item that
were developed in some part at
Government expense, and the
commercial clause will remain
applicable to the rest of the data. This
preserves the preexisting allocation of
rights between the parties, but avoids
the necessity of applying
noncommercial markings to data related
to commercial technologies that were
developed exclusively at private
expense. In addition, the flowdown
requirements of DFARS clause 252.227–
7013(k) and clause 252.227–7015(e) are
clarified to enable the use of the
appropriate clause(s) to lower-tier
subcontracts.
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Comment: Two respondents
commented that the proposed revisions
result in a commercial item losing its
commercial item status. One of these
respondents recommended the
elimination of the ‘‘developed
exclusively at private expense’’
component of the proposed revisions to
the clause at DFARS 252.227–7019, to
avoid the application of the
noncommercial clauses to commercial
technologies.
Response: The prescription for the use
of the clause at DFARS 252.227–7013
does not affect the commercial status of
an item that otherwise meets the
definition of commercial item at FAR
2.101 (based on 41 U.S.C. 403(12), and
10 U.S.C. 2302(3)(I)). If the item still
qualifies as a commercial item, then it
is a commercial item. If that commercial
item was not developed exclusively at
private expense, then the rules apply
that govern the treatment of technical
data deliverables and associated license
rights related to that commercial item.
Comment: Two respondents
identified several ways in which the
prescribed use of the clause at DFARS
252.227–7013, instead of 252.227–7015,
appears to be inconsistent with FAR and
DFARS policies regarding data
deliverables and data rights in
commercial technologies. The
respondents noted that DFARS
227.7102–1 states DoD’s basic policy
that DoD shall acquire only the
technical data deliverables that are
customarily provided to the public, with
a few exceptions.
Response: The prescription for the use
of the clause at DFARS 252.227–7013,
when the item has been developed in
part at Government expense but the
item still qualifies as commercial, does
not change the applicability of this
policy statement. The policy provides
exceptions, one of which allows the
Government to require the delivery of
technical data that describes
modifications made at Government
expense even if such data is not
typically provided to the public (see
DFARS 227.7102–1(a)(3)).
Comment: A respondent
recommended the elimination of the
‘‘developed exclusively at private
expense’’ component of the proposed
revisions to the clause at DFARS
252.227–7019, to avoid the application
of the noncommercial clauses to
commercial technologies.
Response: The respondent’s basis for
concern is unclear in view of the limited
applicability of the clause at DFARS
252.227–7019 to only noncommercial
computer software, and the proposed
revisions address only the
noncommercial aspects of the Major
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58145
Systems Rule. Accordingly, the
proposed revisions to the validation
procedures for noncommercial
computer software at DFARS 227.7203–
13 and 252.227–7019 are retained in the
final rule.
Comment: One respondent noted that
DFARS 227.7202–1 states the basic
policy governing commercial computer
software and computer software
documentation is that the Government
acquires the licenses customarily
provided to the public unless such
licenses are inconsistent with Federal
procurement law or do not otherwise
satisfy the agency’s needs.
Response: The proposed rule creates
no issues or conflicts with this policy
since there are no changes proposed for
any DFARS coverage related to
commercial computer software or
documentation.
B. Applying Data Rights Clauses to
Subcontracts for Commercial Items
Comment: Two respondents
recommended that 10 U.S.C. 2320 and
10 U.S.C. 2321 not be removed from the
list of statutes set forth in DFARS
212.504(a), which prohibits their
application to subcontracts for
commercial items. One respondent
concluded that removing these statutes
from the list appears to ‘‘unilaterally
overturn the express intent of Congress
and the FAR Council’’ and that the
proposed rule did not explain the basis
for the decision to remove the statutes
from the list.
Response: The proposed rule explains
the basis for this determination. The
decision to remove these statutes from
the list is based on the appropriate
statutory determinations that doing so is
in the best interest of the Government.
The proposed revisions to DFARS
212.504(a) are retained in the final rule.
C. Application of Statutory Technical
Data Rules to Computer Software
Comment: A respondent argued that
the proposed rule should not make any
changes to the validation procedures for
computer software; in particular, the
clause at DFARS 252.227–7019,
‘‘Validation of Asserted Restrictions—
Computer Software,’’ should not be
amended to include the proposed new
paragraph (f) that implements the
‘‘Major Systems Rule.’’ In addition, a
respondent contended that the decision
to cover software was flawed because:
(1) There is no statutory basis for the
change and (2) not all rights
determinations are ‘‘black and white.’’
Response: (1) Although 10 U.S.C.
2320 and 2321 apply only to technical
data and not to computer software, it is
longstanding DoD policy and practice to
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Defense Contracts and (a)(vi) 10 U.S.C.
2327, Reporting Requirements
Regarding Dealings with Terrorist
Countries, when it appears that the
intent is to remove paragraphs (a)(iii) 10
U.S.C. 2320, Rights in Technical Data
and (iv) 10 U.S.C. 2321, Validation of
Proprietary Data Restrictions.
Response: The respondent is correct.
This change is reflected in the final rule.
Comment: A respondent
recommended changing the crossreference in the second sentence of
DFARS 252.227–7037(c) from paragraph
(b) to (b)(1) for further clarification.
Response: The respondent is correct.
This change is reflected in the final rule.
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
D. Two Separate Standards for Civilian
and DoD Agencies
Comment: One respondent stated that
the proposed rule creates two separate
standards for civilian and DoD agencies
in that ‘‘the practical result could be
that an item will be treated as
commercial for purposes of intellectual
property rights by civilian agencies, and
as non-commercial by the agencies of
DoD.’’
Response: Without analyzing the
required treatment under the FAR of a
commercial item by a civilian agency
when the Government has paid a
portion of the development costs, the
proposed rule has not changed the
criteria for whether an item is a
commercial item (i.e., under the
definition at FAR 2.101). Since 1995,
DFARS 227.7102–3(b) has required the
use of the noncommercial clause at
252.227–7013 in lieu of the commercial
clause at 252.227–7015 if the
Government will pay any portion of the
development costs of the commercial
item. Although the proposed revision of
the DoD validation scheme to include a
‘‘Commercial Rule’’ and a ‘‘Major
Systems Rule’’ may have no equivalent
in the civilian validation scheme, DoD’s
process is driven by the changes to 10
U.S.C. 2321, for which there is no
equivalent in the civilian agency statute
(41 U.S.C. 253d). No revisions are
necessary.
F. Changes to Rule Resulting From the
Public Comments
Changes made in the final rule based
on the public comments received,
include the following:
• Removed DFARS 212.504
paragraphs (a)(iii) 10 U.S.C. 2320, Rights
in Technical Data, and (a)(iv) 10 U.S.C.
2321, Validation of Proprietary Data
Restrictions, instead of DFARS 212.504
paragraphs (a)(v) 10 U.S.C. 2324,
Allowable Costs Under Defense
Contracts and (a)(vi) 10 U.S.C. 2327,
Reporting Requirements Regarding
Dealings with Terrorist Countries.
• Revised the prescriptions at DFARS
227.7102–4(b) and 227.7103–6(a) to
clarify that in cases when the
Government ‘‘will have paid’’ for any
portion of the development of a
commercial item, both the commercial
clause at DFARS 252.227–7015 and the
noncommercial clause at DFARS
252.227–7013 shall be used together.
• Revised 252.212–7001(b) to add
252.227–7013 and 252.227–7037 to be
used, as applicable.
• Revised 252.212–7001(c) to add
252.227–7013, 252.227–7015 and
252.227–7037 to be flowed down to
subcontractors, as applicable.
• Revised the clause flowdown
requirements of DFARS 252.227–
7013(k) and 252.227–7015(e) to enable
the use of the appropriate clause(s) to
lower tier subcontracts.
• Changed the cross reference in the
second sentence of the clause at DFARS
252.227–7037(c) from paragraph (b) to
(b)(1).
• Revised 252.244–7000 to add
252.227–7015 and 252.227–7037 to be
flowed down to subcontractors, as
applicable.
DoD certifies that this final rule will
not have significant economic impact on
a substantial number of small entities
within the meaning for the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because major systems or subsystems
are generally not developed by small
businesses. The rule only applies in the
limited circumstances that there is a
challenge to a use or release restriction
for a major system or subsystem that the
contractor or subcontractor claims was
developed exclusively at private
expense.
E. Administrative, Technical and
Typographical Issues
Comment: A respondent identified a
citation error, which seeks to remove
and reserve 212.504 paragraphs (a)(v) 10
U.S.C. 2324, Allowable Costs Under
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
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apply the same or analogous
requirements to computer software,
whenever appropriate. Accordingly, the
proposed rule implements revisions to
the validation procedures for computer
software only to the extent that those
procedures are based on the technical
data validation procedures that are
affected by the statutory changes. The
result is that it is only the Major
Systems Rule that is adapted for
application only to noncommercial
computer software. (2) The new Major
Systems Rule is applicable only to
challenges of contractor assertions that
development was exclusively at private
expense. Thus, the proposed adaptation
of the new Major Systems Rule to
noncommercial software validation also
is not applicable to assertions based on
mixed funds, and does not in any way
restrict the ability to segregate mixedfunding development into its privatelyfunded and Government-funded
portions.
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IV. Regulatory Flexibility Act
V. Paperwork Reduction Act
The rule does not impose any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 212,
227, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 227, and
252 are amended as follows:
1. The authority citation for 48 CFR
parts 212, 227, and 252 continues to
read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
212.504
[Amended]
2. Section 212.504 is amended as
follows:
■ (a) By removing paragraphs (a)(iii) and
(iv); and
■ (b) Redesignating paragraphs (a)(v)
through (xix) as (a)(iii) through (xvii),
respectively.
■
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PART 227—PATENTS, DATA, AND
COPYRIGHTS
3. Amend section 227.7102 by
removing the text, and republishing the
section heading to read as follows:
■
227.7102 Commercial items, components,
or processes.
4. Redesignate section 227.7102–3 as
227.7102–4.
■ 5. Add new section 227.7102–3 to
read as follows:
■
227.7102–3 Government right to review,
verify, challenge and validate asserted
restrictions.
Follow the procedures at 227.7103–13
and the clause at 252.227–7037,
Validation of Restrictive Markings on
Technical Data, regarding the validation
of asserted restrictions on technical data
related to commercial items.
■ 6. Revise the newly redesignated
section 227.7102–4 to read as follows:
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227.7102–4
Contract clauses.
(a)(1) Except as provided in paragraph
(b) of this subsection, use the clause at
252.227–7015, Technical Data–
Commercial Items, in all solicitations
and contracts when the Contractor will
be required to deliver technical data
pertaining to commercial items,
components, or processes.
(2) Use the clause at 252.227–7015
with its Alternate I in contracts for the
development or delivery of a vessel
design or any useful article embodying
a vessel design.
(b) In accordance with the clause
prescription at 227.7103–6(a), use the
clause at 252.227–7013, Rights in
Technical Data–Noncommercial Items,
in addition to the clause at 252.227–
7015, if the Government will have paid
for any portion of the development costs
of a commercial item. The clause at
252.227–7013 will govern the technical
data pertaining to any portion of a
commercial item that was developed in
any part at Government expense, and
the clause at 252.227–7015 will govern
the technical data pertaining to any
portion of a commercial item that was
developed exclusively at private
expense.
(c) Use the clause at 252.227–7037,
Validation of Restrictive Markings on
Technical Data, in all solicitations and
contracts for commercial items that
include the clause at 252.227–7015 or
the clause at 252.227–7013.
■ 6. Amend section 227.7103–6 to
revise paragraph (a) to read as follows:
227.7103–6
Contract clauses.
(a) Use the clause at 252.227–7013,
Rights in Technical Data–
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Noncommercial Items, in solicitations
and contracts when the successful
offeror(s) will be required to deliver to
the Government technical data
pertaining to noncommercial items, or
pertaining to commercial items for
which the Government will have paid
for any portion of the development costs
(in which case the clause at 252.227–
7013 will govern the technical data
pertaining to any portion of a
commercial item that was developed in
any part at Government expense, and
the clause at 252.227–7015 will govern
the technical data pertaining to any
portion of a commercial item that was
developed exclusively at private
expense). Do not use the clause when
the only deliverable items are computer
software or computer software
documentation (see 227.72), commercial
items developed exclusively at private
expense (see 227.7102–4), existing
works (see 227.7105), special works (see
227.7106), or when contracting under
the Small Business Innovation Research
Program (see 227.7104). Except as
provided in 227.7107–2, do not use the
clause in architect-engineer and
construction contracts.
*
*
*
*
*
■ 7. Amend section 227.7103–13 by:
■ (a) Redesignating paragraph (c) as
paragraph (d);
■ (b) Adding a new paragraph (c); and
■ (c) Amending redesignated paragraph
(d) by revising the introductory text and
paragraphs (d)(2)(i) and (d)(4).
The additions and revisions read as
follows.
227.7103–13 Government right to review,
verify, challenge and validate asserted
restrictions.
*
*
*
*
*
(c) Challenge considerations and
presumption.
(1) Requirements to initiate a
challenge. Contracting officers shall
have reasonable grounds to challenge
the validity of an asserted restriction.
Before issuing a challenge to an asserted
restriction, carefully consider all
available information pertaining to the
assertion. The contracting officer shall
not challenge a contractor’s assertion
that a commercial item, component, or
process was developed exclusively at
private expense unless the Government
can demonstrate that it contributed to
development of the item, component or
process.
(2) Presumption regarding
development exclusively at private
expense. 10 U.S.C. 2320(b)(1) and
2321(f) establish a presumption and
procedures regarding validation of
asserted restrictions for technical data
related to commercial items, and to
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major systems, on the basis of
development exclusively at private
expense.
(i) Commercial items. For
commercially available off-the-shelf
items (defined at 41 U.S.C. 431(c)[104])
in all cases, and for all other commercial
items except as provided in paragraph
(c)(2)(ii) of this subsection, contracting
officers shall presume that the items
were developed exclusively at private
expense whether or not a contractor
submits a justification in response to a
challenge notice. When a challenge is
warranted, a contractor’s or
subcontractor’s failure to respond to the
challenge notice cannot be the sole basis
for issuing a final decision denying the
validity of an asserted restriction.
(ii) Major systems. The presumption
of development exclusively at private
expense does not apply to major
systems or subsystems or components
thereof, except for commercially
available off-the-shelf items (which are
governed by paragraph (c)(2)(i) of this
subsection). When the contracting
officer challenges an asserted restriction
regarding technical data for a major
system or a subsystem or component
thereof on the basis that the technology
was not developed exclusively at
private expense, the contracting officer
shall sustain the challenge unless
information provided by the contractor
or subcontractor demonstrates that the
item was developed exclusively at
private expense.
(d) Challenge and validation. All
challenges shall be made in accordance
with the provisions of the clause at
252.227–7037, Validation of Restrictive
Markings on Technical Data.
*
*
*
*
*
(2) Pre-challenge requests for
information.
(i) After consideration of the
situations described in paragraph (d)(3)
of this subsection, contracting officers
may request the person asserting a
restriction to furnish a written
explanation of the facts and supporting
documentation for the assertion in
sufficient detail to enable the
contracting officer to ascertain the basis
of the restrictive markings. Additional
supporting documentation may be
requested when the explanation
provided by the person making the
assertion does not, in the contracting
officer’s opinion, establish the validity
of the assertion.
*
*
*
*
*
(4) Challenge notice. The contracting
officer shall not issue a challenge notice
unless there are reasonable grounds to
question the validity of an assertion.
The contracting officer may challenge
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an assertion whether or not supporting
documentation was requested under
paragraph (d)(2) of this subsection.
Challenge notices shall be in writing
and issued to the contractor or, after
consideration of the situations described
in paragraph (d)(3) of this subsection,
the person asserting the restriction. The
challenge notice shall include the
information in paragraph (e) of the
clause at 252.227–7037.
*
*
*
*
*
■ 8. Amend section 227.7203–13 by:
■ (a) Redesignating paragraphs (d)
through (f) as (e) through (g),
respectively; and
■ (b) Adding a new paragraph (d) to
read as follows:
227.7203–13 Government right to review,
verify, challenge and validate asserted
restrictions.
*
*
*
*
*
(d) Major systems. When the
contracting officer challenges an
asserted restriction regarding
noncommercial computer software for a
major system or a subsystem or
component thereof on the basis that the
computer software was not developed
exclusively at private expense, the
contracting officer shall sustain the
challenge unless information provided
by the contractor or subcontractor
demonstrates that the computer
software was developed exclusively at
private expense.
*
*
*
*
*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
9. Amend section 252.212–7001 by—
(a) Revising the introductory text;
(b) Amending the clause date by
removing ‘‘(AUG 2011)’’ and adding in
its place ‘‘(SEP 2011)’’;
■ (c) Redesignating paragraphs (b)(19)
through (b)(28) as paragraphs (b)(20)
through (b)(29);
■ (d) Adding new paragraph (b)(19);
■ (e) Amending newly redesignated
paragraph (b)(20) by removing ‘‘(MAR
2011)’’ and adding in its place ‘‘(SEP
2011)’’;
■ (f) Amending newly redesignated
paragraph (b)(21) by removing ‘‘(SEP
1999)’’ and adding in its place ‘‘(SEP
2011), if applicable (see 227.7102–
4(c)).’’;
■ (g) Redesignating paragraphs (c)(2)
through (c)(6) as paragraphs (c)(5)
through (c)(9), respectively; and
■ (h) Adding new paragraphs (c)(2)
through (c)(4).
The additions and revisions read as
follows:
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■
■
■
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252.212–7001 Contract Terms and
Conditions Required to Implement Statues
or Executive Orders Applicable to Defense
Acquisitions of Commercial Items.
As prescribed in 212.301(f)(iii) and
227.7103–6(a) and (e), use the following
clauses as applicable:
*
*
*
*
*
(b) * * *
(19) 252.227–7013, Rights in
Technical Data—Noncommercial Items
(SEP 2011), if applicable (see 227.7103–
6(a)).
*
*
*
*
*
(c) * * *
(2) 252.227–7013, Rights in Technical
Data—Noncommercial Items (SEP
2011), if applicable (see 227.7103–6(a)).
(3) 252.227–7015, Technical Data—
Commercial Items (SEP 2011), if
applicable (see 227.7102–4(a)).
(4) 252.227–7037, Validation of
Restrictive Markings on Technical Data
(SEP 2011), if applicable (see 227.7102–
4(c)).
*
*
*
*
*
■ 10. Amend section 252.227–7013 by—
■ (a) Amending the clause date by
removing ‘‘(MAR 2011)’’ and adding in
its place ‘‘(SEP 2011)’’; and
■ (b) Revising paragraph (k)(2) to read as
follows:
252.227–7013 Rights in technical data–
Noncommercial items.
*
*
*
*
*
(k) * * *
(2) Whenever any technical data for
noncommercial items, or for commercial
items developed in any part at
Government expense, is to be obtained
from a subcontractor or supplier for
delivery to the Government under this
contract, the Contractor shall use this
same clause in the subcontract or other
contractual instrument, and require its
subcontractors or suppliers to do so,
without alteration, except to identify the
parties. This clause will govern the
technical data pertaining to
noncommercial items or to any portion
of a commercial item that was
developed in any part at Government
expense, and the clause at 252.227–7015
will govern the technical data pertaining
to any portion of a commercial item that
was developed exclusively at private
expense. No other clause shall be used
to enlarge or diminish the
Government’s, the Contractor’s, or a
higher-tier subcontractor’s or supplier’s
rights in a subcontractor’s or supplier’s
technical data.
*
*
*
*
*
■ 11. Amend section 252.227–7015 by—
■ (a) Amending the clause date by
removing ‘‘(MAR 2011)’’ and adding in
its place ‘‘(SEP 2011)’’; and
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(b) Adding new paragraph (e) to read
as follows:
■
252.227–7015
items.
Technical data–Commercial
*
*
*
*
*
(e) Applicability to subcontractors or
suppliers.
(1) The Contractor shall recognize and
protect the rights afforded its
subcontractors and suppliers under 10
U.S.C. 2320 and 10 U.S.C. 2321.
(2) Whenever any technical data
related to commercial items developed
in any part at private expense will be
obtained from a subcontractor or
supplier for delivery to the Government
under this contract, the Contractor shall
use this same clause in the subcontract
or other contractual instrument, and
require its subcontractors or suppliers to
do so, without alteration, except to
identify the parties. This clause will
govern the technical data pertaining to
any portion of a commercial item that
was developed exclusively at private
expense, and the clause at 252.227–7013
will govern the technical data pertaining
to any portion of a commercial item that
was developed in any part at
Government expense.
*
*
*
*
*
■ 12. Amend section 252.227–7019 by—
■ (a) Amending the clause date by
removing ‘‘(JUN 1995)’’ and adding in
its place ‘‘(SEP 2011)’’;
■ (b) Redesignating paragraphs (f)
through (i) as paragraphs (g) through (j),
respectively;
■ (c) Adding new paragraph (f);
■ (d) Revising the newly redesignated
paragraph (g)(5);
■ (e) Amending the newly redesignated
paragraph (h)(1) introductory text by
removing ‘‘(g)(3)’’, and adding in its
place ‘‘(h)(3)’’; and
■ (f) Amending the newly redesignated
paragraph h)(3) by removing ‘‘(g)(1)’’,
and adding in its place ‘‘(h)(1)’’.
The additions and revisions read as
follows:
252.227–7019 Validation of asserted
restrictions–Computer software.
*
*
*
*
*
(f) Major systems. When the
Contracting Officer challenges an
asserted restriction regarding
noncommercial computer software for a
major system or a subsystem or
component thereof on the basis that the
computer software was not developed
exclusively at private expense, the
Contracting Officer will sustain the
challenge unless information provided
by the Contractor or subcontractor
demonstrates that the computer
software was developed exclusively at
private expense.
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(g) * * *
(5) If the Contractor fails to respond
to the Contracting Officer’s request for
information or additional information
under paragraph (g)(1) of this clause, the
Contracting Officer will issue a final
decision, in accordance with paragraph
(f) of this clause and the Disputes clause
of this contract, pertaining to the
validity of the asserted restriction.
*
*
*
*
*
■ 13. Amend 252.227–7037 by—
■ (a) Amending the introductory text by
removing ‘‘227.7102–3(c)’’ and adding
in its place ‘‘227.7102–4(c)’’;
■ (b) Amending the clause date by
removing ‘‘(SEP 1999)’’ and adding in
its place ‘‘(SEP 2011)’’; and
■ (c) Revising paragraphs (b), (c), (f), and
(l) to read as follows:
252.227–7037 Validation of restrictive
markings on technical data.
sroberts on DSK5SPTVN1PROD with RULES
*
*
*
*
*
(b) Presumption regarding
development exclusively at private
expense.
(1) Commercial items. For
commercially available off-the-shelf
items (defined at 41 U.S.C. 104) in all
cases, and for all other commercial
items except as provided in paragraph
(b)(2) of this clause, the Contracting
Officer will presume that a Contractor’s
asserted use or release restrictions are
justified on the basis that the item,
component, or process was developed
exclusively at private expense. The
Contracting Officer shall not challenge
such assertions unless the Contracting
Officer has information that
demonstrates that the item, component,
or process was not developed
exclusively at private expense.
(2) Major systems. The presumption of
development exclusively at private
expense does not apply to major
systems or subsystems or components
thereof, except for commercially
available off-the-shelf items (which are
governed by paragraph (b)(1) of this
clause). When the Contracting Officer
challenges an asserted restriction
regarding technical data for a major
system or a subsystem or component
thereof on the basis that the item,
component, or process was not
developed exclusively at private
expense, the Contracting Officer will
sustain the challenge unless information
provided by the Contractor or
subcontractor demonstrates that the
item, component, or process was
developed exclusively at private
expense.
(c) Justification. The Contractor or
subcontractor at any tier is responsible
for maintaining records sufficient to
justify the validity of its markings that
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impose restrictions on the Government
and others to use, duplicate, or disclose
technical data delivered or required to
be delivered under the contract or
subcontract. Except as provided in
paragraph (b)(1) of this clause, the
Contractor or subcontractor shall be
prepared to furnish to the Contracting
Officer a written justification for such
restrictive markings in response to a
challenge under paragraph (e) of this
clause.
*
*
*
*
*
(f) Final decision when Contractor or
subcontractor fails to respond. Upon a
failure of a Contractor or subcontractor
to submit any response to the challenge
notice the Contracting Officer will issue
a final decision to the Contractor or
subcontractor in accordance with
paragraph (b) of this clause and the
Disputes clause of this contract
pertaining to the validity of the asserted
restriction. This final decision shall be
issued as soon as possible after the
expiration of the time period of
paragraph (e)(1)(ii) or (e)(2) of this
clause. Following issuance of the final
decision, the Contracting Officer will
comply with the procedures in
paragraphs (g)(2)(ii) through (iv) of this
clause.
*
*
*
*
*
(l) Flowdown. The Contractor or
subcontractor agrees to insert this clause
in contractual instruments with its
subcontractors or suppliers at any tier
requiring the delivery of technical data.
*
*
*
*
*
14. Amend section 252.244–7000 by—
(a) Amending the clause date by
removing ‘‘(AUG 2011)’’ and adding in
its place ‘‘(SEP 2011)’’;
■ (b) Redesignating paragraphs (c)
through (h) as (e) through (j),
respectively; and
■ (c) Adding new paragraphs (c) and (d)
as follows:
■
■
252.244–7000 Subcontracts for
commercial items and commercial
components (DoD contracts).
*
*
*
*
*
(c) 252.227–7015, Technical Data—
Commercial Items (SEP 2011), if
applicable (see 227.7102–4(a)).
(d) 252.227–7037, Validation of
Restrictive Markings on Technical Data
(SEP 2011), if applicable (see 227.7102–
4(c)).
*
*
*
*
*
[FR Doc. 2011–23956 Filed 9–19–11; 8:45 am]
BILLING CODE 5001–08–P
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58149
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 213
RIN 0750–AH07
Defense Federal Acquisition
Regulation Supplement; Ships
Bunkers Easy Acquisition (SEA) Card®
and Aircraft Ground Services (DFARS
Case 2009–D019)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement to
allow the use of U.S. Government fuel
cards in lieu of a Purchase OrderInvoice-Voucher for fuel, oil, and
refueling-related items for purchases not
exceeding the simplified acquisition
threshold.
SUMMARY:
DATES:
Effective Date: September 20,
2011.
Mr.
Dustin Pitsch, telephone 703–602–0289.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background
DoD published a proposed rule in the
Federal register at 76 FR 21849 on April
19, 2011, to add language to Defense
Federal Acquisition Regulation
Supplement (DFARS) 213.306(a)(1)(A)
to include purchases of marine fuel, oil,
and refueling-related items up to the
simplified acquisition threshold using
the Ships Bunkers Easy Acquisition
(SEA) Card® in lieu of the SF 44,
Purchase Order-Invoice-Voucher.
Additionally, this section is revised to
include additional ground refuelingrelated services when using the AIR
Card®. These changes for use of the AIR
Card® and SEA Card® will improve the
refueling capability of aircraft and
smaller vessels at non-contract
locations. No public comments were
received in response to the proposed
rule.
II. Executive Order 12866 and
Executive Order 13563
Executive Orders 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
E:\FR\FM\20SER1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Unknown Section]
[Pages 58144-58149]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23956]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227, and 252
RIN 0750-AF84
Defense Federal Acquisition Regulation Supplement; Presumption of
Development Exclusively at Private Expense (DFARS Case 2007-D003)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement to implement sections of the Fiscal
Year (FY) 2007 and 2008 National Defense Authorization Act, including
special requirements and procedures related to the validation of a
contractor's or subcontractor's asserted restrictions on technical data
and computer software.
DATES: Effective date: September 20, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, 703-602-8383.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement section 802(b) of the FY 2007 National
Defense Authorization Act (NDAA) (Pub. L. 109-364) and section 815 of
the FY 2008 NDAA (Pub. L. 110-181). Section 802(b) modified 10 U.S.C.
2321(f)(2) with regard to the presumption of development at private
expense for major systems. Section 815 revised 10 U.S.C. 2321(f)(2) to
exempt commercially available off-the-shelf items from the requirements
that section 802(b) established for major systems.
This final rule implements special requirements and procedures
related to the validation of a contractor's or subcontractor's asserted
restrictions on technical data and computer software. More
specifically, the final rule affects these validation procedures in the
context of two special categories of items: Commercial items (including
commercially available off-the-shelf items), which may be referred to
as the ``Commercial Rule;'' and major systems (including subsystems and
components of major systems), which may be referred to as the ``Major
Systems Rule.''
DoD published a proposed rule with a request for comments in the
Federal Register on May 7, 2010 (75 FR 25161). Two respondents provided
comments.
II. Discussion and Analysis of the Public Comments
A discussion of the comments and the changes made to the rule as a
result of those comments are provided as follows.
A. Prescribing a Noncommercial Clause for Technical Data Related to a
Commercial Item
Comment: Two respondents described the prescriptions at DFARS
227.7102-3(b) and 227.7103-6(a) as new requirements that exceed the
changes necessary to implement the statute.
Response: The operative elements of the clause prescription at
DFARS 227.7102-3(b) were a part of the last major revision of Part 227
in 1995. The substance of the prescription has not changed in the
proposed rule; the requirement was redesignated as DFARS 227.7102-
(4)(b) and revised to cross-reference the prescription added to DFARS
227.7103-6(a). This follows DFARS drafting principles to use only a
single prescription for each clause, using cross-references when
necessary. As such, the prescription at DFARS 227.7103-6(a) serves as
the primary source for prescribing all uses of the clause at DFARS
252.227-7013, with a cross-reference at 227.7102-(4)(b).
Comment: A respondent recommended that the criteria ``or will pay
any portion of the development costs'' should be eliminated because the
Government should not receive the benefit of something it may or may
not pay for in the future outside of the contract.
Response: The ``will pay'' criterion has been used since 1995. The
term ``will'' is used to denote an anticipated future action or result,
and there is no evidence that this criterion has been or should be
interpreted as seeking to be used in a contract when the criteria used
to invoke the clause has not, and is not, expected to occur during the
contract.
[[Page 58145]]
Comment: Two respondents outlined specific concerns that
prescribing use of the noncommercial clause for technical data related
to a commercial item is unnecessarily burdensome with regard to the
noncommercial marking requirements. One respondent argued that this
could result in the contractor unintentionally forfeiting its
intellectual property rights by delivering with commercial markings
that do not comply with the DFARS noncommercial marking requirements.
Response: The prescription for the use of the clause at DFARS
252.227-7013 in this scenario already exists. Use of commercial
restrictive markings would not directly result in the forfeiture of the
contractor's intellectual property rights in cases in which the
noncommercial marking rules were used. The restrictive marking required
by the clause at DFARS 252.227-7015(d) for technical data related to
commercial items should be sufficient to: (1) Preserve the contractor's
rights under the noncommercial clause procedures for correcting
``nonconforming'' markings (see DFARS 252.227-7013(h)(1)) or (2)
validate asserted restrictions under DFARS 252.227-7037, which is used
regardless of whether the clauses at DFARS 252.227-7013 or 252.227-7015
are included.
The final rule is amended to address concerns about the
desirability of requiring noncommercial markings for the entire
technical data package, in cases where the Government may have funded
only a small portion of the development. The final rule revises the
prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a), to clarify that
in cases when the Government ``will have paid'' for any portion of the
development of a commercial item, both the commercial clause at DFARS
252.227-7015 and the noncommercial clause at DFARS 252.227-7013 should
be used together. In these cases, the noncommercial clause will apply
only to the technical data related to those portions of the commercial
item that were developed in some part at Government expense, and the
commercial clause will remain applicable to the rest of the data. This
preserves the preexisting allocation of rights between the parties, but
avoids the necessity of applying noncommercial markings to data related
to commercial technologies that were developed exclusively at private
expense. In addition, the flowdown requirements of DFARS clause
252.227-7013(k) and clause 252.227-7015(e) are clarified to enable the
use of the appropriate clause(s) to lower-tier subcontracts.
Comment: Two respondents commented that the proposed revisions
result in a commercial item losing its commercial item status. One of
these respondents recommended the elimination of the ``developed
exclusively at private expense'' component of the proposed revisions to
the clause at DFARS 252.227-7019, to avoid the application of the
noncommercial clauses to commercial technologies.
Response: The prescription for the use of the clause at DFARS
252.227-7013 does not affect the commercial status of an item that
otherwise meets the definition of commercial item at FAR 2.101 (based
on 41 U.S.C. 403(12), and 10 U.S.C. 2302(3)(I)). If the item still
qualifies as a commercial item, then it is a commercial item. If that
commercial item was not developed exclusively at private expense, then
the rules apply that govern the treatment of technical data
deliverables and associated license rights related to that commercial
item.
Comment: Two respondents identified several ways in which the
prescribed use of the clause at DFARS 252.227-7013, instead of 252.227-
7015, appears to be inconsistent with FAR and DFARS policies regarding
data deliverables and data rights in commercial technologies. The
respondents noted that DFARS 227.7102-1 states DoD's basic policy that
DoD shall acquire only the technical data deliverables that are
customarily provided to the public, with a few exceptions.
Response: The prescription for the use of the clause at DFARS
252.227-7013, when the item has been developed in part at Government
expense but the item still qualifies as commercial, does not change the
applicability of this policy statement. The policy provides exceptions,
one of which allows the Government to require the delivery of technical
data that describes modifications made at Government expense even if
such data is not typically provided to the public (see DFARS 227.7102-
1(a)(3)).
Comment: A respondent recommended the elimination of the
``developed exclusively at private expense'' component of the proposed
revisions to the clause at DFARS 252.227-7019, to avoid the application
of the noncommercial clauses to commercial technologies.
Response: The respondent's basis for concern is unclear in view of
the limited applicability of the clause at DFARS 252.227-7019 to only
noncommercial computer software, and the proposed revisions address
only the noncommercial aspects of the Major Systems Rule. Accordingly,
the proposed revisions to the validation procedures for noncommercial
computer software at DFARS 227.7203-13 and 252.227-7019 are retained in
the final rule.
Comment: One respondent noted that DFARS 227.7202-1 states the
basic policy governing commercial computer software and computer
software documentation is that the Government acquires the licenses
customarily provided to the public unless such licenses are
inconsistent with Federal procurement law or do not otherwise satisfy
the agency's needs.
Response: The proposed rule creates no issues or conflicts with
this policy since there are no changes proposed for any DFARS coverage
related to commercial computer software or documentation.
B. Applying Data Rights Clauses to Subcontracts for Commercial Items
Comment: Two respondents recommended that 10 U.S.C. 2320 and 10
U.S.C. 2321 not be removed from the list of statutes set forth in DFARS
212.504(a), which prohibits their application to subcontracts for
commercial items. One respondent concluded that removing these statutes
from the list appears to ``unilaterally overturn the express intent of
Congress and the FAR Council'' and that the proposed rule did not
explain the basis for the decision to remove the statutes from the
list.
Response: The proposed rule explains the basis for this
determination. The decision to remove these statutes from the list is
based on the appropriate statutory determinations that doing so is in
the best interest of the Government. The proposed revisions to DFARS
212.504(a) are retained in the final rule.
C. Application of Statutory Technical Data Rules to Computer Software
Comment: A respondent argued that the proposed rule should not make
any changes to the validation procedures for computer software; in
particular, the clause at DFARS 252.227-7019, ``Validation of Asserted
Restrictions--Computer Software,'' should not be amended to include the
proposed new paragraph (f) that implements the ``Major Systems Rule.''
In addition, a respondent contended that the decision to cover software
was flawed because: (1) There is no statutory basis for the change and
(2) not all rights determinations are ``black and white.''
Response: (1) Although 10 U.S.C. 2320 and 2321 apply only to
technical data and not to computer software, it is longstanding DoD
policy and practice to
[[Page 58146]]
apply the same or analogous requirements to computer software, whenever
appropriate. Accordingly, the proposed rule implements revisions to the
validation procedures for computer software only to the extent that
those procedures are based on the technical data validation procedures
that are affected by the statutory changes. The result is that it is
only the Major Systems Rule that is adapted for application only to
noncommercial computer software. (2) The new Major Systems Rule is
applicable only to challenges of contractor assertions that development
was exclusively at private expense. Thus, the proposed adaptation of
the new Major Systems Rule to noncommercial software validation also is
not applicable to assertions based on mixed funds, and does not in any
way restrict the ability to segregate mixed-funding development into
its privately-funded and Government-funded portions.
D. Two Separate Standards for Civilian and DoD Agencies
Comment: One respondent stated that the proposed rule creates two
separate standards for civilian and DoD agencies in that ``the
practical result could be that an item will be treated as commercial
for purposes of intellectual property rights by civilian agencies, and
as non-commercial by the agencies of DoD.''
Response: Without analyzing the required treatment under the FAR of
a commercial item by a civilian agency when the Government has paid a
portion of the development costs, the proposed rule has not changed the
criteria for whether an item is a commercial item (i.e., under the
definition at FAR 2.101). Since 1995, DFARS 227.7102-3(b) has required
the use of the noncommercial clause at 252.227-7013 in lieu of the
commercial clause at 252.227-7015 if the Government will pay any
portion of the development costs of the commercial item. Although the
proposed revision of the DoD validation scheme to include a
``Commercial Rule'' and a ``Major Systems Rule'' may have no equivalent
in the civilian validation scheme, DoD's process is driven by the
changes to 10 U.S.C. 2321, for which there is no equivalent in the
civilian agency statute (41 U.S.C. 253d). No revisions are necessary.
E. Administrative, Technical and Typographical Issues
Comment: A respondent identified a citation error, which seeks to
remove and reserve 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable
Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting
Requirements Regarding Dealings with Terrorist Countries, when it
appears that the intent is to remove paragraphs (a)(iii) 10 U.S.C.
2320, Rights in Technical Data and (iv) 10 U.S.C. 2321, Validation of
Proprietary Data Restrictions.
Response: The respondent is correct. This change is reflected in
the final rule.
Comment: A respondent recommended changing the cross-reference in
the second sentence of DFARS 252.227-7037(c) from paragraph (b) to
(b)(1) for further clarification.
Response: The respondent is correct. This change is reflected in
the final rule.
F. Changes to Rule Resulting From the Public Comments
Changes made in the final rule based on the public comments
received, include the following:
Removed DFARS 212.504 paragraphs (a)(iii) 10 U.S.C. 2320,
Rights in Technical Data, and (a)(iv) 10 U.S.C. 2321, Validation of
Proprietary Data Restrictions, instead of DFARS 212.504 paragraphs
(a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and
(a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with
Terrorist Countries.
Revised the prescriptions at DFARS 227.7102-4(b) and
227.7103-6(a) to clarify that in cases when the Government ``will have
paid'' for any portion of the development of a commercial item, both
the commercial clause at DFARS 252.227-7015 and the noncommercial
clause at DFARS 252.227-7013 shall be used together.
Revised 252.212-7001(b) to add 252.227-7013 and 252.227-
7037 to be used, as applicable.
Revised 252.212-7001(c) to add 252.227-7013, 252.227-7015
and 252.227-7037 to be flowed down to subcontractors, as applicable.
Revised the clause flowdown requirements of DFARS 252.227-
7013(k) and 252.227-7015(e) to enable the use of the appropriate
clause(s) to lower tier subcontracts.
Changed the cross reference in the second sentence of the
clause at DFARS 252.227-7037(c) from paragraph (b) to (b)(1).
Revised 252.244-7000 to add 252.227-7015 and 252.227-7037
to be flowed down to subcontractors, as applicable.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under Section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
DoD certifies that this final rule will not have significant
economic impact on a substantial number of small entities within the
meaning for the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because major systems or subsystems are generally not developed by
small businesses. The rule only applies in the limited circumstances
that there is a challenge to a use or release restriction for a major
system or subsystem that the contractor or subcontractor claims was
developed exclusively at private expense.
V. Paperwork Reduction Act
The rule does not impose any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 212, 227, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 227, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 227, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
212.504 [Amended]
0
2. Section 212.504 is amended as follows:
0
(a) By removing paragraphs (a)(iii) and (iv); and
0
(b) Redesignating paragraphs (a)(v) through (xix) as (a)(iii) through
(xvii), respectively.
[[Page 58147]]
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
3. Amend section 227.7102 by removing the text, and republishing the
section heading to read as follows:
227.7102 Commercial items, components, or processes.
0
4. Redesignate section 227.7102-3 as 227.7102-4.
0
5. Add new section 227.7102-3 to read as follows:
227.7102-3 Government right to review, verify, challenge and validate
asserted restrictions.
Follow the procedures at 227.7103-13 and the clause at 252.227-
7037, Validation of Restrictive Markings on Technical Data, regarding
the validation of asserted restrictions on technical data related to
commercial items.
0
6. Revise the newly redesignated section 227.7102-4 to read as follows:
227.7102-4 Contract clauses.
(a)(1) Except as provided in paragraph (b) of this subsection, use
the clause at 252.227-7015, Technical Data-Commercial Items, in all
solicitations and contracts when the Contractor will be required to
deliver technical data pertaining to commercial items, components, or
processes.
(2) Use the clause at 252.227-7015 with its Alternate I in
contracts for the development or delivery of a vessel design or any
useful article embodying a vessel design.
(b) In accordance with the clause prescription at 227.7103-6(a),
use the clause at 252.227-7013, Rights in Technical Data-Noncommercial
Items, in addition to the clause at 252.227-7015, if the Government
will have paid for any portion of the development costs of a commercial
item. The clause at 252.227-7013 will govern the technical data
pertaining to any portion of a commercial item that was developed in
any part at Government expense, and the clause at 252.227-7015 will
govern the technical data pertaining to any portion of a commercial
item that was developed exclusively at private expense.
(c) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, in all solicitations and contracts for
commercial items that include the clause at 252.227-7015 or the clause
at 252.227-7013.
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6. Amend section 227.7103-6 to revise paragraph (a) to read as follows:
227.7103-6 Contract clauses.
(a) Use the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items, in solicitations and contracts when the successful
offeror(s) will be required to deliver to the Government technical data
pertaining to noncommercial items, or pertaining to commercial items
for which the Government will have paid for any portion of the
development costs (in which case the clause at 252.227-7013 will govern
the technical data pertaining to any portion of a commercial item that
was developed in any part at Government expense, and the clause at
252.227-7015 will govern the technical data pertaining to any portion
of a commercial item that was developed exclusively at private
expense). Do not use the clause when the only deliverable items are
computer software or computer software documentation (see 227.72),
commercial items developed exclusively at private expense (see
227.7102-4), existing works (see 227.7105), special works (see
227.7106), or when contracting under the Small Business Innovation
Research Program (see 227.7104). Except as provided in 227.7107-2, do
not use the clause in architect-engineer and construction contracts.
* * * * *
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7. Amend section 227.7103-13 by:
0
(a) Redesignating paragraph (c) as paragraph (d);
0
(b) Adding a new paragraph (c); and
0
(c) Amending redesignated paragraph (d) by revising the introductory
text and paragraphs (d)(2)(i) and (d)(4).
The additions and revisions read as follows.
227.7103-13 Government right to review, verify, challenge and validate
asserted restrictions.
* * * * *
(c) Challenge considerations and presumption.
(1) Requirements to initiate a challenge. Contracting officers
shall have reasonable grounds to challenge the validity of an asserted
restriction. Before issuing a challenge to an asserted restriction,
carefully consider all available information pertaining to the
assertion. The contracting officer shall not challenge a contractor's
assertion that a commercial item, component, or process was developed
exclusively at private expense unless the Government can demonstrate
that it contributed to development of the item, component or process.
(2) Presumption regarding development exclusively at private
expense. 10 U.S.C. 2320(b)(1) and 2321(f) establish a presumption and
procedures regarding validation of asserted restrictions for technical
data related to commercial items, and to major systems, on the basis of
development exclusively at private expense.
(i) Commercial items. For commercially available off-the-shelf
items (defined at 41 U.S.C. 431(c)[104]) in all cases, and for all
other commercial items except as provided in paragraph (c)(2)(ii) of
this subsection, contracting officers shall presume that the items were
developed exclusively at private expense whether or not a contractor
submits a justification in response to a challenge notice. When a
challenge is warranted, a contractor's or subcontractor's failure to
respond to the challenge notice cannot be the sole basis for issuing a
final decision denying the validity of an asserted restriction.
(ii) Major systems. The presumption of development exclusively at
private expense does not apply to major systems or subsystems or
components thereof, except for commercially available off-the-shelf
items (which are governed by paragraph (c)(2)(i) of this subsection).
When the contracting officer challenges an asserted restriction
regarding technical data for a major system or a subsystem or component
thereof on the basis that the technology was not developed exclusively
at private expense, the contracting officer shall sustain the challenge
unless information provided by the contractor or subcontractor
demonstrates that the item was developed exclusively at private
expense.
(d) Challenge and validation. All challenges shall be made in
accordance with the provisions of the clause at 252.227-7037,
Validation of Restrictive Markings on Technical Data.
* * * * *
(2) Pre-challenge requests for information.
(i) After consideration of the situations described in paragraph
(d)(3) of this subsection, contracting officers may request the person
asserting a restriction to furnish a written explanation of the facts
and supporting documentation for the assertion in sufficient detail to
enable the contracting officer to ascertain the basis of the
restrictive markings. Additional supporting documentation may be
requested when the explanation provided by the person making the
assertion does not, in the contracting officer's opinion, establish the
validity of the assertion.
* * * * *
(4) Challenge notice. The contracting officer shall not issue a
challenge notice unless there are reasonable grounds to question the
validity of an assertion. The contracting officer may challenge
[[Page 58148]]
an assertion whether or not supporting documentation was requested
under paragraph (d)(2) of this subsection. Challenge notices shall be
in writing and issued to the contractor or, after consideration of the
situations described in paragraph (d)(3) of this subsection, the person
asserting the restriction. The challenge notice shall include the
information in paragraph (e) of the clause at 252.227-7037.
* * * * *
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8. Amend section 227.7203-13 by:
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(a) Redesignating paragraphs (d) through (f) as (e) through (g),
respectively; and
0
(b) Adding a new paragraph (d) to read as follows:
227.7203-13 Government right to review, verify, challenge and validate
asserted restrictions.
* * * * *
(d) Major systems. When the contracting officer challenges an
asserted restriction regarding noncommercial computer software for a
major system or a subsystem or component thereof on the basis that the
computer software was not developed exclusively at private expense, the
contracting officer shall sustain the challenge unless information
provided by the contractor or subcontractor demonstrates that the
computer software was developed exclusively at private expense.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
9. Amend section 252.212-7001 by--
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(a) Revising the introductory text;
0
(b) Amending the clause date by removing ``(AUG 2011)'' and adding in
its place ``(SEP 2011)'';
0
(c) Redesignating paragraphs (b)(19) through (b)(28) as paragraphs
(b)(20) through (b)(29);
0
(d) Adding new paragraph (b)(19);
0
(e) Amending newly redesignated paragraph (b)(20) by removing ``(MAR
2011)'' and adding in its place ``(SEP 2011)'';
0
(f) Amending newly redesignated paragraph (b)(21) by removing ``(SEP
1999)'' and adding in its place ``(SEP 2011), if applicable (see
227.7102-4(c)).'';
0
(g) Redesignating paragraphs (c)(2) through (c)(6) as paragraphs (c)(5)
through (c)(9), respectively; and
0
(h) Adding new paragraphs (c)(2) through (c)(4).
The additions and revisions read as follows:
252.212-7001 Contract Terms and Conditions Required to Implement
Statues or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
As prescribed in 212.301(f)(iii) and 227.7103-6(a) and (e), use the
following clauses as applicable:
* * * * *
(b) * * *
(19) 252.227-7013, Rights in Technical Data--Noncommercial Items
(SEP 2011), if applicable (see 227.7103-6(a)).
* * * * *
(c) * * *
(2) 252.227-7013, Rights in Technical Data--Noncommercial Items
(SEP 2011), if applicable (see 227.7103-6(a)).
(3) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if
applicable (see 227.7102-4(a)).
(4) 252.227-7037, Validation of Restrictive Markings on Technical
Data (SEP 2011), if applicable (see 227.7102-4(c)).
* * * * *
0
10. Amend section 252.227-7013 by--
0
(a) Amending the clause date by removing ``(MAR 2011)'' and adding in
its place ``(SEP 2011)''; and
0
(b) Revising paragraph (k)(2) to read as follows:
252.227-7013 Rights in technical data-Noncommercial items.
* * * * *
(k) * * *
(2) Whenever any technical data for noncommercial items, or for
commercial items developed in any part at Government expense, is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause in the subcontract or other contractual instrument, and require
its subcontractors or suppliers to do so, without alteration, except to
identify the parties. This clause will govern the technical data
pertaining to noncommercial items or to any portion of a commercial
item that was developed in any part at Government expense, and the
clause at 252.227-7015 will govern the technical data pertaining to any
portion of a commercial item that was developed exclusively at private
expense. No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher-tier subcontractor's or
supplier's rights in a subcontractor's or supplier's technical data.
* * * * *
0
11. Amend section 252.227-7015 by--
0
(a) Amending the clause date by removing ``(MAR 2011)'' and adding in
its place ``(SEP 2011)''; and
0
(b) Adding new paragraph (e) to read as follows:
252.227-7015 Technical data-Commercial items.
* * * * *
(e) Applicability to subcontractors or suppliers.
(1) The Contractor shall recognize and protect the rights afforded
its subcontractors and suppliers under 10 U.S.C. 2320 and 10 U.S.C.
2321.
(2) Whenever any technical data related to commercial items
developed in any part at private expense will be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the Contractor shall use this same clause in the subcontract
or other contractual instrument, and require its subcontractors or
suppliers to do so, without alteration, except to identify the parties.
This clause will govern the technical data pertaining to any portion of
a commercial item that was developed exclusively at private expense,
and the clause at 252.227-7013 will govern the technical data
pertaining to any portion of a commercial item that was developed in
any part at Government expense.
* * * * *
0
12. Amend section 252.227-7019 by--
0
(a) Amending the clause date by removing ``(JUN 1995)'' and adding in
its place ``(SEP 2011)'';
0
(b) Redesignating paragraphs (f) through (i) as paragraphs (g) through
(j), respectively;
0
(c) Adding new paragraph (f);
0
(d) Revising the newly redesignated paragraph (g)(5);
0
(e) Amending the newly redesignated paragraph (h)(1) introductory text
by removing ``(g)(3)'', and adding in its place ``(h)(3)''; and
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(f) Amending the newly redesignated paragraph h)(3) by removing
``(g)(1)'', and adding in its place ``(h)(1)''.
The additions and revisions read as follows:
252.227-7019 Validation of asserted restrictions-Computer software.
* * * * *
(f) Major systems. When the Contracting Officer challenges an
asserted restriction regarding noncommercial computer software for a
major system or a subsystem or component thereof on the basis that the
computer software was not developed exclusively at private expense, the
Contracting Officer will sustain the challenge unless information
provided by the Contractor or subcontractor demonstrates that the
computer software was developed exclusively at private expense.
[[Page 58149]]
(g) * * *
(5) If the Contractor fails to respond to the Contracting Officer's
request for information or additional information under paragraph
(g)(1) of this clause, the Contracting Officer will issue a final
decision, in accordance with paragraph (f) of this clause and the
Disputes clause of this contract, pertaining to the validity of the
asserted restriction.
* * * * *
0
13. Amend 252.227-7037 by--
0
(a) Amending the introductory text by removing ``227.7102-3(c)'' and
adding in its place ``227.7102-4(c)'';
0
(b) Amending the clause date by removing ``(SEP 1999)'' and adding in
its place ``(SEP 2011)''; and
0
(c) Revising paragraphs (b), (c), (f), and (l) to read as follows:
252.227-7037 Validation of restrictive markings on technical data.
* * * * *
(b) Presumption regarding development exclusively at private
expense.
(1) Commercial items. For commercially available off-the-shelf
items (defined at 41 U.S.C. 104) in all cases, and for all other
commercial items except as provided in paragraph (b)(2) of this clause,
the Contracting Officer will presume that a Contractor's asserted use
or release restrictions are justified on the basis that the item,
component, or process was developed exclusively at private expense. The
Contracting Officer shall not challenge such assertions unless the
Contracting Officer has information that demonstrates that the item,
component, or process was not developed exclusively at private expense.
(2) Major systems. The presumption of development exclusively at
private expense does not apply to major systems or subsystems or
components thereof, except for commercially available off-the-shelf
items (which are governed by paragraph (b)(1) of this clause). When the
Contracting Officer challenges an asserted restriction regarding
technical data for a major system or a subsystem or component thereof
on the basis that the item, component, or process was not developed
exclusively at private expense, the Contracting Officer will sustain
the challenge unless information provided by the Contractor or
subcontractor demonstrates that the item, component, or process was
developed exclusively at private expense.
(c) Justification. The Contractor or subcontractor at any tier is
responsible for maintaining records sufficient to justify the validity
of its markings that impose restrictions on the Government and others
to use, duplicate, or disclose technical data delivered or required to
be delivered under the contract or subcontract. Except as provided in
paragraph (b)(1) of this clause, the Contractor or subcontractor shall
be prepared to furnish to the Contracting Officer a written
justification for such restrictive markings in response to a challenge
under paragraph (e) of this clause.
* * * * *
(f) Final decision when Contractor or subcontractor fails to
respond. Upon a failure of a Contractor or subcontractor to submit any
response to the challenge notice the Contracting Officer will issue a
final decision to the Contractor or subcontractor in accordance with
paragraph (b) of this clause and the Disputes clause of this contract
pertaining to the validity of the asserted restriction. This final
decision shall be issued as soon as possible after the expiration of
the time period of paragraph (e)(1)(ii) or (e)(2) of this clause.
Following issuance of the final decision, the Contracting Officer will
comply with the procedures in paragraphs (g)(2)(ii) through (iv) of
this clause.
* * * * *
(l) Flowdown. The Contractor or subcontractor agrees to insert this
clause in contractual instruments with its subcontractors or suppliers
at any tier requiring the delivery of technical data.
* * * * *
0
14. Amend section 252.244-7000 by--
0
(a) Amending the clause date by removing ``(AUG 2011)'' and adding in
its place ``(SEP 2011)'';
0
(b) Redesignating paragraphs (c) through (h) as (e) through (j),
respectively; and
0
(c) Adding new paragraphs (c) and (d) as follows:
252.244-7000 Subcontracts for commercial items and commercial
components (DoD contracts).
* * * * *
(c) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if
applicable (see 227.7102-4(a)).
(d) 252.227-7037, Validation of Restrictive Markings on Technical
Data (SEP 2011), if applicable (see 227.7102-4(c)).
* * * * *
[FR Doc. 2011-23956 Filed 9-19-11; 8:45 am]
BILLING CODE 5001-08-P
