Defense Federal Acquisition Regulation Supplement: Rights in Technical Data and Validation of Proprietary Data Restrictions (DFARS Case 2012-D022), 39481-39503 [2016-14266]
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Vol. 81
Thursday,
No. 116
June 16, 2016
Part V
Department of Defense
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Defense Acquisition Regulations System
48 CFR Parts 212, 227, and 252
Defense Federal Acquisition Regulation Supplement: Rights in Technical
Data and Validation of Proprietary Data Restrictions (DFARS Case 2012–
D022); Proposed Rule
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allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Amy G. Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 227, and 252
[Docket DARS–2016–0017]
RIN 0750–AI95
Defense Federal Acquisition
Regulation Supplement: Rights in
Technical Data and Validation of
Proprietary Data Restrictions (DFARS
Case 2012–D022)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2012 that revises the sections of
title 10 of the United States Code
(U.S.C.) that address technical data
rights and validation of proprietary data
restrictions.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
September 14, 2016, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2012–D022,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2012–D022’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2012–
D022.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2012–
D022’’ on your attached document.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2012–D022 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy G.
Williams, OUSD(AT&L)DPAP/DARS,
Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
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SUMMARY:
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I. Background
DoD is proposing to revise the DFARS
to implement section 815 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2012,
which—
• Adds special provisions for
handling technical data that are
necessary for segregation and
reintegration activities;
• Codifies and revises the policies
and procedures regarding deferred
ordering of technical data necessary to
support DoD major systems or
subsystems, weapon systems, or
noncommercial items or processes;
• Expands the period in which DoD
can challenge an asserted restriction on
technical data from 3 years to 6 years;
• Rescinds changes to 10 U.S.C. 2320
from the NDAA for FY 2011; and
• Codifies Government purpose rights
as the default rights for technical data
related to technology developed with
mixed funding.
In accordance with the statutory
changes, this rule provides better
clarity, extended time periods, and
enhanced rights for the Government to
require delivery of (including through
deferred ordering), and to assert rights
in, technical data and computer
software that are developed in whole or
in part with Government funding or that
are needed for segregation and
reintegration activities, including under
commercial items authorities. The rule
also provides extended time periods and
enhanced rights for the Government to
challenge proprietary data legends and
markings in order to enable competitive
follow-on acquisitions for Governmentfunded items or processes. However, the
rule affirmatively states that there is no
requirement in the revised deferred
ordering scheme for the contractor to
retain the technical data or computer
software beyond a reasonable time.
While the anticipated costs associated
with this rule are not quantifiable in
dollar amounts, DoD anticipates that
any such impact will be outweighed by
the expected benefits of this rule.
II. Discussion and Analysis
A. Scope of the New Requirements—
Applicability to Computer Software and
to Commercial Technologies
Section 815 revised 10 U.S.C. 2320
and 2321, which cover only technical
data (both commercial technical data
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and noncommercial technical data), and
do not expressly cover computer
software, which is expressly excluded
from the definition of ‘‘technical data.’’
However, it is longstanding Federal and
DoD policy and practice to apply the
same or analogous requirements to
computer software. Many issues are
common to both technical data and
computer software. Accordingly,
conformity of coverage between
technical data and computer software is
desirable.
Further, it is also longstanding policy
and practice to recognize that
acquisition of technical data or
computer software that is, or is related
to, commercial technologies involves
special considerations that may require
adaptation of the policies and practices
otherwise applicable to noncommercial
technologies. For example, the DFARS
coverage for commercial technical data
at 227.7102 implements the statutory
requirements as applicable to
commercial technical data, but
otherwise follows the overarching
Federal and DoD policy for acquisition
of commercial technical data and
commercial computer software: That the
Government will generally acquire the
same deliverables, and the same
associated license rights, that are
customarily provided to the public, as
long as those customary practices are
consistent with Federal law and satisfy
the agency’s needs. For commercial
computer software, the DFARS
implementation at 227.7202 is even
more closely aligned with that
overarching policy, and minimizes the
extension of DoD-specific requirements
derived from the technical data statutes
to only a few limited principles, such as
allowing DoD to require delivery of
computer software documenting
modifications made at Government
expense to meet the requirements of a
Government solicitation (see 227.7202–
1(c)(1)).
Accordingly, the implementation of
these new statutory authorities also
follows these general guidelines,
applying and adapting the technical
data-specific statutory revisions to
computer software as appropriate. The
specific determinations regarding such
applicability and adaptations are
discussed on a case-by-case basis
throughout this preamble.
B. Segregation or Reintegration Data
Section 815(a)(1) amended 10 U.S.C.
2320(a)(2)(D)(i) to add a new (fourth)
exception to the restriction on sharing
outside of DoD any technical data
relating to an item or process developed
exclusively at private expense. The new
exception is framed in the same manner
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as the three other preexisting
exceptions: They are defined by a
specific activity or purpose for which
the release is necessary (10 U.S.C.
2320(a)(2)(D)(i)(I)–(IV)); the recipient
must be subject to a prohibition on any
further use or release of the information
(10 U.S.C. 2320(a)(2)(D)(ii)); and the
person asserting restrictions on the
technical data (hereafter ‘‘the data
owner’’) must be notified of the release
or use (10 U.S.C. 2320(a)(2)(D)(iii)). The
new exception covers a new purpose or
activity, when the release or use ‘‘is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.’’
C. Approach to Implementation
In the case of technical data, the
mandatory statutory revisions are
inserted into the baseline DFARS
coverage where the rest of the statutory
scheme has been implemented. More
specifically, revisions are inserted in the
context of commercial technical data at
DFARS 227.7102–2, and associated
clause at 252.227–7015(b)(2)(ii); and for
noncommercial technical data in the
context of limited rights, as described at
DFARS 227.7103–5(c)(2), and defined at
DFARS 252.227–7013(a)(14) and
252.227–7018(a)(15).
Regarding computer software, the
statutory scheme recognizing certain
limited exceptions to the restriction on
disclosure of information outside the
Government has been extended to
noncommercial computer software in
the context of the restricted rights,
defined at DFARS 252.227–7014(a)(15).
Accordingly, the new exception
authorizing releases for segregation and
reintegration activities has been applied
to noncommercial computer software by
revising the definition of ‘‘restricted
rights.’’ Adding this additional
exception also provided an opportunity
to clarify and streamline the existing
baseline list of such exceptions that
have been added to restricted rights over
the years, and during that process the
definition had become unnecessarily
long and complex. The definition of
‘‘restricted rights’’ has thus been
clarified and streamlined, with all of the
special circumstances in which releases
outside the Government are authorized
now consolidated under subparagraph
(v)(A), while retaining all of the
substantive and procedural protections
for each such circumstance at
subparagraphs (v)(B) through (v)(E).
In order to streamline the regulations,
DoD defined a new term ‘‘segregation or
reintegration data’’ to mean data that
otherwise meets all of the statutory
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criteria (see the definition at DFARS
227.001, and in paragraph (a) of the
associated clauses at 252.227–7013,
–7014, –7015, –7018, and new
–7029(a)). Creating such a defined term
also allows the DFARS implementation
to proactively address a major concern
expressed by industry and academia in
various forums after the enactment of
section 815; namely, that the new
statutory scheme does not provide a
definition for the new concept of data
necessary for segregation or
reintegration, and thus there is likely to
be widespread confusion, uneven and
inconsistent interpretations, and
potential for disagreement, if the DFARS
implementation does not provide
additional clarity. More specifically, it
is unclear how such segregation or
reintegration data relates to the ‘‘form,
fit, and function data,’’ which would
appear to cover already the vast majority
of data that would be necessary for
segregation or reintegration activities,
with at least one critical difference: The
Government is entitled to unlimited
rights in form, fit, and function data,
while section 815 clearly contemplates
that segregation or reintegration data
could be subject to limited rights, which
is completely at the other end of the
data rights spectrum from segregation or
reintegration unlimited rights.
Accordingly, establishing a definition
for the term ‘‘segregation or
reintegration data’’ allows the DFARS
implementation to provide additional
definitional criteria and clarifying
guidance to address these concerns.
To achieve these objectives, the
proposed definition for the new term
‘‘segregation or reintegration data’’
should both (1) incorporate all of the
statutory criteria, and (2) supplement
the statutory criteria with additional
guidance to ensure clarity and
consistency. The first objective is
satisfied by incorporating the statutory
performance-based language as the core
of the primary definitional statement
(i.e., ‘‘segregation or reintegration data’’
means . . . ‘‘(insert statutory criteria).’’)
Regarding the supplementary
definitional language needed to address
the concerns raised by industry and
academia, the proposed definition
leverages existing DFARS definitional
approaches, terminology, and clarifying
language to harmonize the new term
with the existing DFARS scheme. First,
as previously noted, it is important to
identify and clarify how the new term,
segregation or reintegration data, relates
to the established definition for ‘‘form,
fit, and function data.’’ In addition, DoD
understands that part of the underlying
concern that led to the statutory creation
of the concept of segregation or
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reintegration data was based on a
number of situations in which DoD and
contractors faced challenges in finding
mutual agreement regarding what type
of data is appropriately characterized as
being form, fit, and function data (e.g.,
the level of technical detail that is
required and appropriate). These
challenges are exacerbated in situations
in which the underlying item or process
being described by the form, fit, and
function data has been developed
exclusively at private expense and is
thus treated as proprietary technology
by the contractor (e.g., a contractor is
less willing to share detailed technical
information regarding a privately
developed technology, especially when
the Government will be granted
unlimited rights in that data, which can
then be released openly to the public).
To address this foundational issue,
DoD compared the statutory language
describing segregation or reintegration
data with the existing regulatory
definition of ‘‘form, fit, and function
data.’’ In doing so, it is important to
note that the Federal Acquisition
Regulation (FAR) and DFARS each
define ‘‘form, fit, and function data,’’
but use different definitions. Although
the majority of the definitions may be
objectively similar or consistent (e.g.,
focusing on physical, functional, and
performance characteristics to support
the interchangeability of items or
processes), there is a key distinction
between the definitions: The FAR
definition (see FAR 52.227–14(a)) covers
data relating to computer software,
where the DFARS definition refers only
to technical data relating to items or
processes. The basis for this distinction
is not readily apparent, e.g., to define a
generic data type that describes the
functional or performance
characteristics of an item or process at
a low level of detail, there may be no
reason to exclude data because the
underlying item or process is
implemented by computer software,
rather than hardware alone.
Furthermore, it is not clear what result
would or should be achieved under the
DFARS definition if the item or process
being described is comprised of a
combination of hardware and software
elements. Perhaps this is part of the
reason for the challenges in applying the
DFARS definition.
After careful consideration, the
proposed rule amends the DFARS
definition of ‘‘form, fit, and function
data’’ to harmonize more effectively and
predictably with the FAR definition
(e.g., covering computer software as
well as technical data), including by
incorporating express limitations that
will more clearly address any concern
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that form, fit, and function data could be
extended to cover data or software that
includes such a degree of technical
detail that it is not appropriate to be
treated as form, fit, and function data
that will be subject to unlimited rights
(e.g., the revised definition expressly
excludes ‘‘computer software source
code, or detailed manufacturing or
process data’’). See DFARS 227.001, and
associated clauses at 252.227–7013(a),
–7014(a), –7015(a), –7018(a), and new
–7029(a).
Next, building on this clarified and
harmonized definition of ‘‘form, fit, and
function data,’’ the definition of
‘‘segregation or reintegration data’’ then
incorporates a series of additional
elements to address the concerns
previously identified:
1. Relation to form, fit, and function
data. The definition expressly states
that segregation or reintegration data is
data that is ‘‘more detailed than form,
fit, and function data’’ but otherwise
meets the statutory criteria, and cites by
way of example such data that describes
the physical, logical, or operational
interface or similar functional
relationship between items or
components.
2. Objective Standard for Level of
Detail Required. The definition
expressly states that, unless mutually
agreed otherwise by the parties, the
level of detail necessary to support the
segregation or reintegration activities
will be determined by an objective
standard—that required for ‘‘persons
reasonably skilled in the art.’’ This
objective standard is modeled after the
well-established objective standards
used for the term ‘‘developed’’ at
baseline DFARS 252.227–7013(a)(7),
and –7014(a)(7).
3. Segregation/Reintegration at Any
Practical Level. The definition
recognizes that the segregation or
reintegration of an item or process is
permitted to be performed at ‘‘any
practical level, including down to the
lowest practical level. . . .’’ This
terminology (and the additional
examples included in the definition) is
adapted from the baseline DFARS
coverage regarding the segregation of
items or processes for the determination
of source of funding for development
(i.e., ‘‘the doctrine of segregability’’),
and the definition of ‘‘developed
exclusively at private expense’’ (see
baseline DFARS 227.7103–4(b),
227.7203–4(b), 252.227–7013(a)(8)(i),
and –7014(a)(8)(i)).
4. Detailed manufacturing or process
data and source code. The definition
also recognizes expressly that the
application of the definitional elements
would not typically require detailed
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manufacturing or process data or source
code, but they may be included.
D. Deferred Ordering
Section 815 also added new
paragraph (b)(9) to 10 U.S.C. 2320,
which provides that the Government
shall have the post-contract-award right
to order technical data under certain
conditions. Although such a ‘‘deferred
ordering’’ right has been recognized in
the DFARS for decades, section 815 was
the first time that such a right has been
expressly addressed in the statutory
coverage. The baseline DFARS coverage
for deferred ordering at 227.7103–8(b),
227.7203–8(b), and associated clause
252.227–7027, was used as the point of
departure for implementing the new
statutory scheme. However, to avoid any
potential confusion, the baseline clause
number (DFARS 252.227–7027) is being
reserved, and the new statutorily based
deferred ordering framework is
implemented at the next available
DFARS clause number, 252.227–7029.
The new statutory deferred ordering
scheme is codified at 10 U.S.C.
2320(b)(9), amongst a list of elements
that are required to be included in the
DFARS ‘‘whenever practicable.’’ The
new statutory framework also states that
the Government may place a deferred
order ‘‘at any time,’’ provided that
certain conditions are met (e.g., covering
only certain types of data, and the
Government must make a required
determination that additional criteria
are met in each case). Accordingly, the
clause implementing the new statutory
deferred ordering scheme is deemed to
be required in all contracts for which
the deferred ordering criteria could be
met. The clause should therefore be
prescribed in all contracts except those
in which it would be per se
impracticable to meet the statutory
criteria. To avoid scenarios in which the
clause criteria could be met, but the
clause would not have been included
up-front, the clause is prescribed for use
in all solicitations and contracts using
other than FAR part 12 procedures and
in those using FAR part 12 procedures
for the acquisition of commercial items
that are being acquired for (i) a major
system or subsystem thereof, or (ii) a
weapon system or subsystem thereof.
See DFARS 227.7102–4(d), 227.7103–
8(c)(2), 227.7104(e)(4), 227.7202–4(c),
and 227.7203–8(c)(2); see also new
212.301(f)(xi)(D).
The new DFARS clause at 252.227–
7029 is structured to implement the
statutory scheme’s set of criteria that
must be met in order for the
Government to place a deferred order—
1. The data must have been
‘‘generated or utilized’’ in the
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performance of a contract or
subcontract;
2. The Government must determine
that the data is needed for an important
sustainment or other life cycle support
activity for a DoD system; and
3. The Government must determine
that the data either—
a. Result from development activities
funded in whole or in part by the
Government; or
b. Is segregation or reintegration data.
DFARS 252.227–7029(a), in addition
to the new or revised definitions
discussed above, provides a new
definition for a phrase that is used only
in this clause, i.e., ‘‘technical data or
computer software generated or utilized
in the performance of this contract or
any subcontract hereunder.’’ The term
includes a series of subelements that are
intended to provide clarity and
predictability in interpreting whether
this criterion is met, with inclusive, and
exclusive, statements.
DFARS 252.227–7029(b) implements
the new statutory requirements (10
U.S.C. 2320(b)(9)(A) and (B)) for the
Government to determine that certain
criteria are satisfied, as a prerequisite to
making a deferred order. However, DoD
also concluded that it was unlikely that
the legislative intent was to completely
preclude the Government from having
any form of deferred ordering right in
basic or applied research contracts
where it would be unlikely that the
Government could make one of the
otherwise-required determinations, i.e.,
that the technical information is needed
for sustainment of a major system,
weapon system, or noncommercial item
(see 252.227–7029(b)(1)(i)).
Accordingly, the requirement for those
specific elements of a determination are
waived for basic or applied research
activities (see 252.227–7029(b)(2), when
the nature of the contract is such that it
is likely to be impracticable to require
such a determination, but the
circumstances are still directly related
to a core objective of the statutory
scheme (e.g., to ensure that the
Government has access to data related to
development funded in whole or in part
by the Government)).
DFARS 252.227–7029(c) addresses
assertions by the contractor that
technical data or computer software
pertains to an item or process developed
exclusively at private expense. To the
extent that disputes might arise
regarding the Government’s
determination that the data related to
technologies developed in whole or in
part at Government expense, those
disputes will be governed by the
existing procedures governing the
validation of asserted restrictions based
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on the source of development funding.
Any other dispute arising under the
clause will be governed by the
applicable disputes clause of the
contract.
DFARS 252.227–7029(d) clarifies that
the obligation to deliver data to the
Government under an appropriate
deferred order is not intended to create
an implied obligation to preserve data in
cases when it would otherwise be
unreasonable to do so. However, this
also is not intended to preclude any
individual contract from including a
requirement to preserve any such data
for a specified period.
DFARS 252.227–7029(e) implements
the statutory limitation on
compensation for the contractor’s
compliance with an appropriate
deferred order.
DFARS 252.227–7029(f) preserves and
clarifies the long standing rule, which is
not affected by the statutory changes,
that the Government’s rights in the
technical data or computer software that
are subject to a deferred order are
determined in accordance with the
applicable rights-allocation clauses in
the contract (i.e., the license rights are
unrelated to whether the requirement
for delivery was established through
deferred ordering, through a delivery
requirement included in the contract at
award, or in any other manner for that
matter).
DFARS 252.227–7029(g) clarifies that
the deferred ordering clause is not
intended to limit or affect in any way
the ability for the Government to order
through other authorized mechanisms,
such as mutual agreement, or bilateral
or unilateral modification of the
contract.
DFARS 252.227–7029(h) implements
the statutory language (at 10 U.S.C.
2320(b)(10)) that clarifies that the
Government’s ability to require delivery
of technical data or computer software
is not affected by whether the
Government exercises its rights to
validate asserted restrictions on such
technical data or computer software.
DFARS 252.227–7029(i) clarifies that
the parties’ rights and obligations
established in the clause will survive
the end of the contract.
DFARS 252.227–7029(j) requires the
clause to be flowed down to lower tier
subcontracts in the same manner as the
clause is prescribed for use in the prime
contract.
Given that segregation or reintegration
data is eligible for deferred ordering, the
regulation must also recognize that such
data is available for ordering up-front.
References to segregation or
reintegration data are therefore included
at DFARS 227.7102–1(a)(2), 227.7103–
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2(b), 227.7202–1(c)(1) and –3(b)(1), and
227.7203–2(b)(1).
E. Validation of Asserted Restrictions
There are two primary changes
required by the revisions to 10 U.S.C.
2321:
1. The standard duration of the
Government’s right to challenge the
validity of an asserted restriction is
extended to 6 years, rather than the
current 3 years (see revised DFARS
252.227–7037(i)); and
2. For technical data that are the
subject of fraudulently asserted
restrictions, there is no time limit on the
right to challenge asserted restrictions
(see new DFARS 252.227–7037(i)(4)).
Equivalent revisions were also made
to the procedures governing validation
of asserted restrictions on computer
software pursuant to the DFARS clause
252.227–7019 (see revised paragraph
252.227–7019(e)(1), and new paragraph
252.227–7019(e)(1)(D)). The new
paragraphs 252.227–7019(e)(1)(A)–(C)
are merely a relocation of those
elements, which are embedded within
paragraph (e)(1) in the baseline. This
nonsubstantive revision is intended to
clarify these exceptions to the standard
6 year limit using a preferred paragraph
structure analogous to that in the
baseline at DFARS 252.227–7037(i)(1)
through (3).
F. Additional Technical Amendments
• Restructured the paragraphs in the
definition of ‘‘restricted rights’’
regarding authorized release/use outside
the Government—to streamline,
eliminate redundancy/complexity,
without substantive changes—other
than the incorporation of segregation or
reintegration data.
• Corrected references to Small
Business Innovation Research (SBIR)
data in the standard use and nondisclosure agreement at DFARS
227.7103–7, to conform to changes
previously made to the DFARS clause
252.227–7025, to recognize that SBIR
data is restricted and handled in a
manner equivalent to limited rights
technical data and/or restricted rights
computer software.
• Clarified the prescribed use of the
standard use and non-disclosure
agreement and DFARS 252.227–7025:
the clause is used in contracts (and not
the standard use and non-disclosure
agreement), and the standard use and
non-disclosure agreement is used for
authorized release in any/every other
situation other than under a
procurement contract.
• Clarified in DFARS clause 252.227–
7025 (see new paragraphs (b)(1)(ii) for
limited rights/restricted rights/Small
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Business Innovation Research (SBIR),
and (b)(4)(ii) for commercial) and
standard use and non-disclosure
agreement, and related up-front
coverage (e.g., DFARS 227.7103–5(c)(3),
note no equivalent discussion of notice/
timing for restricted rights at DFARS
227.7203–5(c)) the timing for mandatory
notice to the technical data/computer
software owner, recognizing that there
are three different time frames (although
only 2 relevant to standard use and nondisclosure agreement, which cannot be
used for a covered Government support
contractor), depending on the
circumstances of the release—
1. Prior to the release, except as noted
in 2. and 3.;
2. As soon as practicable, but not
more than 30 days after release to a
covered Government support contractor
(this is not new, already in baseline
DFARS 252.227–7025(b)(5)(iii); but not
applicable to standard use and nondisclosure agreement); and
3. As soon as practicable, in cases of
emergency repair or overhaul.
• Added an affirmative obligation for
the recipient of limited rights/restricted
rights/SBIR or commercial data to either
destroy the data, or to return to the
Government (at the Government’s
discretion), after completion of the
authorized activity. See DFARS
252.227–7025(b)(1)(iii) and (b)(4)(iii).
• Clarified in standard use and nondisclosure agreement and DFARS
252.227–7025 that the recipient of
limited rights/restricted rights/SBIR,
and commercial data, can use the data
only as authorized—(i) in the
attachment to the standard use and nondisclosure agreement; and (ii) in
performance of the contract and only for
activities that are authorized by the
relevant license rights (e.g., emergency
repair or overhaul, segregation or
reintegration data, or covered
Government support contractor).
• Clarified that the obligations of the
parties regarding use/handling of
technical data/computer software in the
DFARS 252.227–7025 clause, and
regarding deferred ordering in the
DFARS 252.227–7029 clause, survive
the termination, expiration, or
completion of the contract. See
revisions at DFARS 252.227–7025(e)
and 252.227–7029(i).
• Revised DFARS 252.227–7037(j) to
include a sentence relocated from end of
252.227–7037(i)(3), where it appears to
have been misplaced, as the topic (the
criteria for what constitutes a
‘‘validation’’) is more appropriately
aligned with (j).
• Revised DFARS 252.227–7019 and
252.227–7037 throughout to be
consistent when referring to the
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validation of ‘‘asserted restrictions’’
(nomenclature currently dominating
252.227–7019, and also used in 10
U.S.C. 2321, although 252.227–7037
used a mix of referring to validating the
asserted restrictions and validating the
restrictive markings in other cases), as
distinguished from specific procedures
that are directed to the associated
restrictive markings. No substantive
change is intended, just consistent use
of the nomenclature. See revisions at
252.227–7019; and 252.227–7037(c),
(d)(1) through (3).
• Amended DFARS 252.227–7019
and 252.227–7037 to clarify that
disputes under new 252.227–7029(c) are
handled under the validation
procedures in those clauses.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This rule creates one new DFARS
clause 252.227–7029, Deferred Ordering
of Technical Data or Computer
Software, to implement 10 U.S.C.
2320(b)(9) and (10), which DoD is
proposing to apply to contracts at or
below the SAT, and sometimes to the
acquisition of commercial items
(including COTS items), but not
contracts solely for commercial items
(including COTS items) unless
acquiring for a major system or
subsystem thereof or a weapon system
or subsystem thereof.
10 U.S.C. 2320 and 2321 have
established the applicability of rights in
technical data and validity of
proprietary data restrictions to
noncommercial technical data and
commercial technical data. It is
longstanding Federal and DoD policy
and practice to apply the same or
analogous requirements to computer
software.
This proposed rule also modifies
existing provisions and clauses that
implement 10 U.S.C. 2320 and 2321, or
provide analogous treatment of
computer software, but does not modify
the applicability of these provisions and
clause to contracts at or below the SAT
or contracts for the acquisition of
commercial items, including COTS
items.
DFARS clause
Applies below
the SAT
Applies to commercial items (including COTS items)
252.227–7013, Rights in Technical Data—Noncommercial Items .........
YES ...................
252.227–7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.
252.227–7015, Technical Data—Commercial items ...............................
252.227–7018, Rights in Noncommercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program.
252.227–7019, Validation and Asserted Restrictions—Computer Software.
252.227–7025, Limitations on the Use or Disclosure of GovernmentFurnished Information Marked with Restrictive Legends.
252.227–7037, Validation of Asserted Restrictions on Technical Data
YES ...................
Sometimes, only if a portion of the commercial item
was developed at Government expense.
NO.
YES ...................
YES ...................
YES.
NO.
NO .....................
NO.
YES ...................
YES.
YES ...................
YES.
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A. Applicability to Contracts at or Below
the SAT
41 U.S.C. 1905 governs the
applicability of laws to contracts or
subcontracts in amounts not greater
than the SAT. It is intended to limit the
applicability of laws to such contracts or
subcontracts. 41 U.S.C. 1905 provides
that if a provision of law contains
criminal or civil penalties, or if the FAR
Council makes a written determination
that it is not in the best interest of the
Federal Government to exempt contracts
or subcontracts at or below the SAT, the
law will apply to them. The Director,
Defense Procurement and Acquisition
Policy (DPAP), is the appropriate
authority to make comparable
determinations for regulations to be
published in the DFARS, which is part
of the FAR system of regulations.
DoD is proposing to apply the
requirements of 10 U.S.C. 2320(b)(9)
and (10) in the new clause 252.227–
7019 to contracts and subcontracts at or
below the SAT, but will make the final
determination after receipt and analysis
of public comments.
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B. Applicability to Contracts for the
Acquisition of Commercial Items,
Including COTS Items
41 U.S.C. 1906 governs the
applicability of laws to contracts for the
acquisition of commercial items, and is
intended to limit the applicability of
laws to contracts for the acquisition of
commercial items. 41 U.S.C. 1906
provides that if a provision of law
contains criminal or civil penalties, or if
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt commercial item contracts, the
provision of law will apply to contracts
for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the
applicability of laws to COTS items,
with the Administrator for Federal
Procurement Policy as the decision
authority to determine that it is in the
best interest of the Government to apply
a provision of law to acquisitions of
COTS items in the FAR. The Director,
DPAP, is the appropriate authority to
make comparable determinations for
regulations to be published in the
DFARS, which is part of the FAR system
of regulations.
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Section 815 has added a new statutory
requirement at 10 U.S.C. 2320(b),
paragraphs (9) and (10), with regard to
deferred ordering of technical data. As
amended, 10 U.S.C. 2320(b)(9)(A)
specifies that one of the criteria for the
right of the Government to require the
delivery of technical data at any time is
whether the technical data is needed for
the purpose of reprocurement,
sustainment, modification, or upgrade
of a major system or subsystem thereof,
a weapon system or subsystem thereof,
or any noncommercial item or process.
Consistent with the statutory
requirements, DoD is proposing to
prescribe the new clause that
implements 10 U.S.C. 2320(b)(9) and
(10) for use in solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items
that are being acquired for (i) a major
system or subsystem thereof, or (ii) a
weapon system or subsystem thereof.
DoD will make the final determination
with regard to application to
commercial items after receipt and
analysis of public comments.
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IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
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V. Regulatory Flexibility Act
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. However, an initial regulatory
flexibility analysis (IRFA) has been
performed and is summarized as
follows:
This proposed rule was initiated to
implement section 815 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2016 (Pub. L. 114–92)
that revised 10 U.S.C. 2320 and 2321.
Section 815 of the NDAA for FY 2012—
• Adds special provisions for
handling technical data that is necessary
for segregation and reintegration
activities;
• Codifies and revises the policies
and procedures regarding deferred
ordering of technical data;
• Expands the period in which DoD
can challenge an asserted restriction on
technical data from 3 years to 6 years;
• Rescinds changes to 10 U.S.C. 2320
from the NDAA for FY 2011; and
• Codifies Government purpose rights
as the default rights for technical data
related to technology developed with
mixed funding.
Based on FY 2015 Federal
Procurement Data System data, DoD
estimates that 60,400 offerors,
contractors, and subcontractors may be
impacted by the proposed changes in
this rule, of which approximately
40,500 (67 percent) may be small
entities.
The provisions and clauses that are
proposed to be amended by this rule are
covered by OMB Clearance 0704–0368,
which is currently being renewed for a
total of 941,528 response hours (75,250
respondents) and 90,600 recordkeeping
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hours (60,400 recordkeepers). However,
the changes in this rule are expected to
have negligible impact on the burdens
already covered by the OMB clearance.
The proposed rule does not duplicate,
overlap, or conflict with any other
Federal rules.
DoD was unable to identify any
alternatives that would meet the
requirements of the statute and reduce
the burden on small entities.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2012–D022), in
correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does apply to this
rule; however, these changes to the
DFARS do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
0704–0369, entitled ‘‘DFARS: Subparts
227.71, Rights in Technical Data; and
Subpart 227.72, Rights in Computer
Software and Computer Software
Documentation, and related provisions
and clauses of the Defense Federal
Acquisition Regulation Supplement
(DFARS).’’
List of Subjects in 48 CFR Parts 212,
227, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 227, and
252 are proposed to be amended as
follows;
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
1. The authority citation for parts 212,
227, and 252 continues to read as
follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 212.301 by—
a. In paragraph (f)(xii)(A), removing
‘‘227.7103–6(a)’’ and adding ‘‘227.7103–
6(a), to comply with 10 U.S.C. 2320’’ in
its place;
■ b. Redesignating (f)(xii)(C) as
(f)(xii)(E);
■
■
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39487
c. Adding paragraphs (f)(xii)(C) and
(D); and
■ d. In newly redesignated paragraph
(f)(xii)(E), removing ‘‘227.7102–4(c)’’
and adding ‘‘227.7102–4(e)’’ in its place;
The additions read as follows:
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
*
*
(f) * * *
(xii) * * *
(C) Use the clause at 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings, as
prescribed in 227.7102–4(c) or
227.7202–4(b), to comply with 10 U.S.C.
2320.
(D) Use the clause at 252.227–7029,
Deferred Ordering of Technical Data or
Computer Software, as prescribed in
227.7102–4(d), 227.7103–8(c)(2),
227.7202–4(c), or 227.7203–8(c)(2), to
comply with 10 U.S.C. 2320(b)(9).
*
*
*
*
*
PART 227—PATENTS, DATA, AND
COPYRIGHTS
3. Add section 227.001 preceding
subpart 227.3 to read as follows:
■
227.001
Definitions.
As used in this part—
Computer database means a
collection of recorded data in a form
capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines recorded
in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae, and related material
that would enable the software to be
reproduced, recreated, or recompiled.
Computer software does not include
computer databases or computer
software documentation.
Computer software documentation
means owner’s manuals, user’s manuals,
installation instructions, operating
instructions, and other similar items,
regardless of storage medium, that
explain the capabilities of the computer
software or provide instructions for
using the software.
Covered Government support
contractor means a contractor (other
than a litigation support contractor
covered by the clause at DFARS
252.204–7014, Limitations on the Use or
Disclosure of Information by Litigation
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Support Contractors) under a contract,
the primary purpose of which is to
furnish independent and impartial
advice or technical assistance directly to
the Government in support of the
Government’s management and
oversight of a program or effort (rather
than to directly furnish an end item or
service to accomplish a program or
effort), provided that the contractor—
(1) Is not affiliated with the prime
contractor or a first-tier subcontractor on
the program or effort, or with any direct
competitor of such prime contractor or
any such first-tier subcontractor in
furnishing end items or services of the
type developed or produced on the
program or effort; and
(2) Receives access to technical data
or computer software for performance of
a Government contract that contains the
clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings.
Developed is defined at 227.7101 for
technical data and at 227.7201 for
computer software and computer
software documentation.
Developed exclusively at private
expense means development was
accomplished entirely with costs
charged to indirect cost pools, costs not
allocated to a Government contract, or
any combination thereof.
(1) Private expense determinations
should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when
total costs are greater than the firmfixed-price or ceiling price of the
contract, the additional development
costs necessary to complete
development shall not be considered
when determining whether
development was at Government,
private, or mixed expense.
Developed exclusively with
Government funds means development
was not accomplished exclusively or
partially at private expense.
Developed with mixed funding means
development was accomplished
partially with costs charged to indirect
cost pools and/or costs not allocated to
a Government contract, and partially
with costs charged directly to a
Government contract.
Form, fit, and function data means
technical data or computer software that
describes the required overall physical,
logical, configuration, mating,
attachment, interface, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item or process to the
extent necessary to permit identification
of physically or functionally equivalent
items or processes. The term does not
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include computer software source code,
or detailed manufacturing or process
data.
Government purpose and Government
purpose rights are defined at 227.7101
for technical data and at 227.7201 for
computer software and computer
software documentation.
Segregation or reintegration data
means technical data or computer
software that is more detailed than form,
fit, and function data and that is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.
(1) Unless agreed otherwise by the
Government and the contractor, the
nature, quality, and level of technical
detail necessary for these data or
software shall be that required for
persons reasonably skilled in the art to
perform such segregation or
reintegration activities.
(2) The segregation or reintegration of
any such an item or process may be
performed at any practical level,
including down to the lowest
practicable segregable level, e.g., a
subitem or subcomponent level, or any
segregable portion of a process,
computer software (e.g., a software
subroutine that performs a specific
function), or documentation.
(3) The term—
(i) Includes data or software that
describes in more detail (than form, fit,
and function data) the physical, logical,
or operational interface or similar
functional interrelationship between the
items or processes; and
(ii) May include, but would not
typically require, detailed
manufacturing or process data or
computer software source code to
support such segregation or
reintegration activities.
Unlimited rights is defined at
227.7101 for technical data and at
227.7201 for computer software and
computer software documentation.
■ 4. In section 227.7101, revise
paragraph (b) to read as follows:
227.7101
Definitions.
*
*
*
*
*
(b) Other terms used in this subpart
are defined at 227.001 and as follows:
Commercial item does not include
commercial computer software (see
227.7202 for coverage regarding
commercial computer software
documentation).
Detailed manufacturing or process
data means technical data that describe
the steps, sequences, and conditions of
manufacturing, processing or assembly
used by the manufacturer to produce an
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item or component or to perform a
process.
Developed means that an item,
component, or process exists and is
workable. Thus, the item or component
must have been constructed or the
process practiced. Workability is
generally established when the item,
component, or process has been
analyzed or tested sufficiently to
demonstrate to reasonable people
skilled in the applicable art that there is
a high probability that it will operate as
intended. Whether, how much, and
what type of analysis or testing is
required to establish workability
depends on the nature of the item,
component, or process, and the state of
the art. To be considered ‘‘developed,’’
the item, component, or process need
not be at the stage where it could be
offered for sale or sold on the
commercial market, nor must the item,
component, or process be actually
reduced to practice within the meaning
of title 35 of the United States Code.
Government purpose means any
activity in which the United States
Government is a party, including
cooperative agreements with
international or multi-national defense
organizations, or sales or transfers by
the United States Government to foreign
governments or international
organizations. Government purposes
include competitive procurement, but
do not include the rights to use, modify,
reproduce, release, perform, display, or
disclose technical data for commercial
purposes or authorize others to do so.
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose technical
data within the Government without
restriction; and
(2) Release or disclose technical data
outside the Government and authorize
persons to whom release or disclosure
has been made to use, modify,
reproduce, release, perform, display, or
disclose that data for United States
Government purposes.
Limited rights means the rights to use,
modify, reproduce, release, perform,
display, or disclose technical data, in
whole or in part, within the
Government. The Government may not,
without the written permission of the
party asserting limited rights, release or
disclose the technical data outside the
Government, use the technical data for
manufacture, or authorize the technical
data to be used by another party, except
that the Government may reproduce,
release, or disclose such data or
authorize the use or reproduction of the
data by persons outside the Government
if—
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(1) The reproduction, release,
disclosure, or use is—
(i) Necessary for emergency repair and
overhaul;
(ii) Necessary for the segregation of an
item or process from, or the
reintegration of that item or process (or
a physically or functionally equivalent
item or process) with, other items or
processes; and such reproduction,
release, disclosure, or use involves only
segregation or reintegration data; or
(iii) A release or disclosure to—
(A) A covered Government support
contractor in performance of its covered
Government support contract for use,
modification, reproduction,
performance, display, or release or
disclosure to a person authorized to
receive limited rights technical data; or
(B) A foreign government, of technical
data other than detailed manufacturing
or process data, when use of such data
by the foreign government is in the
interest of the Government and is
required for evaluational or
informational purposes;
(2) The recipient of the technical data
is subject to a prohibition on the further
reproduction, release, disclosure, or use
of the technical data; and
(3) The contractor or subcontractor
asserting the restriction is notified of
such reproduction, release, disclosure,
or use.
Small Business Innovation Research
(SBIR) data rights means the
Government’s rights during the SBIR
data protection period to use, modify,
reproduce, release, perform, display, or
disclose technical data or computer
software generated under a SBIR award
as follows:
(1) Limited rights in such SBIR
technical data.
(2) Restricted rights in such SBIR
computer software.
Technical data means recorded
information, regardless of the form or
method of the recording, of a scientific
or technical nature (including computer
software documentation). The term does
not include computer software or data
incidental to contract administration,
such as financial and/or management
information.
Unlimited rights means rights to use,
modify, reproduce, perform, display,
release, or disclose technical data in
whole or in part, in any manner, and for
any purpose whatsoever, and to have or
authorize others to do so.
■ 5. Revise section 227.7102 heading to
read as follows:
227.7102
Commercial items.
6. Amend section 227.7102–1 by—
a. In paragraph (a) introductory text,
removing ‘‘commercial item or process’’
■
■
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and adding ‘‘commercial item’’ in its
place;
■ b. In paragraph (a)(1), removing ‘‘fit,
or function’’ and adding ‘‘fit, and
function’’ in its place;
■ c. Redesignating paragraphs (a)(2) and
(3) as (a)(3) and (4), respectively;
■ d. Adding new paragraph (a)(2);
■ e. In newly redesignated paragraph
(a)(3), removing ‘‘commercial items or
processes’’ and adding ‘‘commercial
items’’ in its place, and removing ‘‘stand
alone unit’’ and adding ‘‘stand-alone
unit’’ in its place;
■ f. In the newly redesignated paragraph
(a)(4), removing ‘‘commercial item or
process’’ and adding ‘‘commercial item’’
in its place;
■ g. In paragraph (b), removing
‘‘commercial products’’ and adding
‘‘commercial items’’ in its place;
■ h. In paragraph (b)(1), removing
‘‘commercial items or processes’’ and
adding ‘‘commercial items’’ in its place;
and
■ i. In paragraph (b)(2), removing
‘‘commercial items or processes’’ and
adding ‘‘commercial items’’ in its place.
The addition reads as follows:
39489
‘‘Validation of Asserted Restrictions’’ in
its place.
The additions read as follows:
227.7102–4
Contract clauses.
(a) * * *
(2) Are segregation or reintegration
data;
*
*
*
*
*
■ 7. Amend section 227.7102–2 by
revising paragraph (a) to read as follows:
*
*
*
*
(c) Use the clause at 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings, in
solicitations and contracts when it is
anticipated that the Government will
provide the contractor (other than a
litigation support contractor covered by
the clause at 252.204–7014, Limitations
on the Use or Disclosure of Information
by Litigation Support Contractors), for
performance of its contract, technical
data marked with another contractor’s
restrictive legend(s) or marking(s).
(d) Use the clause at 252.227–7029,
Deferred Ordering of Technical Data or
Computer Software, in all solicitations
and contracts using other than FAR part
12 procedures, and in all solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items that are being
acquired for—
(1) A major system or subsystem
thereof; or
(2) A weapon system or subsystem
thereof.
*
*
*
*
*
■ 9. Amend section 227.7103–2 by
revising paragraph (b)(1) to read as
follows:
227.7102–2
227.7103–2
227.7102–1
Policy.
Rights in technical data.
(a) The clause at 252.227–7015,
Technical Data–Commercial Items,
provides the Government specific
license rights in technical data
pertaining to commercial items. DoD
may use, modify, reproduce, release,
perform, display, or disclose data only
within the Government. The data may
not be used to manufacture additional
quantities of the commercial items.
Except for emergency repair or
overhaul, segregation or reintegration,
foreign government evaluational or
informational purposes (other than
detailed manufacturing or process data),
or covered Government support
contractor activities, the data may not be
released or disclosed to, or used by,
third parties without the contractor’s
written permission. Those restrictions
do not apply to the technical data
described in 227.7102–1(a).
*
*
*
*
*
■ 8. Amend section 227.7102–4 by—
■ a. Redesignating paragraph (c) as (e);
■ b. Adding new paragraphs (c) and
paragraph (d); and
■ c. In the newly redesignated
paragraph (e), removing ‘‘Validation of
Restrictive Markings’’ and adding
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*
*
Acquisition of technical data.
*
*
*
*
(b)(1) Data managers or other
requirements personnel are responsible
for identifying the Government’s
minimum needs for technical data. Data
needs must be established giving
consideration to the contractor’s
economic interests in data pertaining to
items or processes that have been
developed at private expense; the return
on the Government’s investment in the
development of items or processes
(including technology transfer/
transition to other programs); the
Government’s costs to acquire,
maintain, store, retrieve, and protect the
data; the Government’s short-term and
long-term reprocurement and
sustainment needs, including repair,
maintenance, overhaul, spare and repair
parts, and technology upgrade/insertion;
and whether procurement of the items
or processes (or physical or functional
equivalents thereof) can be
accomplished on a form, fit, and
function or segregation or reintegration
basis. When it is anticipated that the
Government will obtain unlimited or
Government purpose rights in technical
data that will be required for
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competitive reprocurement or
sustainment activities, such data should
be identified as deliverable data items.
Reprocurement needs may not be a
sufficient reason to acquire detailed
manufacturing or process data when
privately developed items or processes
(or physical or functional equivalents
thereof) can be acquired using
performance specifications, form, fit,
and function data, segregation or
reintegration data, or when there are a
sufficient number of alternate sources
that can reasonably be expected to
provide such items on a performance
specification, form, fit, and function, or
segregation or reintegration basis.
*
*
*
*
*
■ 10. Amend section 227.7103–5 by—
■ a. In paragraph (b)(4) introductory
text, removing ‘‘government purpose
rights’’ and adding ‘‘Government
purpose rights’’ wherever it appears;
■ b. In paragraph (b)(4)(ii), removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place;
■ c. In paragraphs (c)(1)(i) and (ii),
removing ‘‘items, components, or
processes’’ and adding ‘‘items or
processes’’ in both places;
■ d. Redesignating paragraphs (c)(2)(ii)
and (iii) as (c)(2)(iii) and (iv),
respectively;
■ e. Adding new paragraph (c)(2)(ii);
■ f. Revising paragraph (c)(3); and
■ g. In paragraph (c)(4), removing
‘‘(c)(2)(i), (ii), or (iii)’’ and adding
‘‘(c)(2)’’ in its place; and removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place.
The addition and revision reads as
follows:
227.7103–5
Government rights.
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*
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(c) * * *
(2) * * *
(ii) Necessary for the segregation of an
item or process from, or the
reintegration of that item or process (or
a physically or functionally equivalent
item or process) with, other items or
processes;
*
*
*
*
*
(3) The person asserting limited rights
must be notified of the Government’s
intent to release, disclose, or authorize
others to use such data prior to release
or disclosure of the data, except
notification of an intended release or
disclosure for—
(i) Covered Government support
contractor activities, which shall be
made as soon as practicable, but not
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later than 30 days after such release or
disclosure; and
(ii) Emergency repair or overhaul,
which shall be made as soon as
practicable.
*
*
*
*
*
■ 11. Amend section 227.7103–6 by—
■ a. Revising paragraph (c); and
■ b. In paragraph (e)(3), removing
‘‘Validation of Restrictive Markings’’
and adding ‘‘Validation of Asserted
Restrictions’’ in its place.
The revision reads as follows:
227.7103–6
Contract clauses.
*
*
*
*
*
(c) Use the clause at 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings, in
solicitations and contracts when it is
anticipated that the Government will
provide the contractor, for performance
of its contract, technical data marked
with another contractor’s restrictive
legend(s) or marking(s). The clause shall
be incorporated into the contract prior
to the Government releasing any such
technical data to the contractor. See
227.7103–7 when releasing such
technical data to offerors or to any
person other than the contractor.
*
*
*
*
*
■ 12. Amend section 227.7103–7 by—
■ a. In paragraph (a)(1), removing
‘‘limited rights’’ and adding ‘‘limited
rights or SBIR data rights,’’ in its place,
and removing ‘‘restricted rights’’ and
adding ‘‘restricted rights or SBIR data
rights,’’ in its place;
■ b. Revising paragraph (b); and
■ c. Revising paragraph (c)(1).
The revisions read as follows:
227.7103–7 Use and non-disclosure
agreement.
*
*
*
*
*
(b) Do not use the use and nondisclosure agreement at paragraph (c)
for releases to Government contractors.
Such releases are authorized only under
contracts that contain the clause at
252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Legends or
Markings.
(c) * * *
(1) The Recipient shall—
(a) Use, modify, reproduce, release,
perform, display, or disclose Data
marked with Government purpose rights
legends only for Government purposes
and shall not do so for any commercial
purpose. The Recipient shall not
release, perform, display, or disclose
these Data, without the express written
permission of the contractor whose
name appears in the restrictive legend
(the ‘‘Contractor’’), to any person other
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than its subcontractors or suppliers, or
prospective subcontractors or suppliers,
who require these Data to submit offers
for, or perform, contracts with the
Recipient. The Recipient shall require
its subcontractors or suppliers, or
prospective subcontractors or suppliers,
to sign a use and non-disclosure
agreement prior to disclosing or
releasing these Data to such persons.
Such agreement must be consistent with
the terms of this agreement.
(b) Use, modify, reproduce, release,
perform, display, or disclose technical
data marked with limited rights or SBIR
data rights legends only as authorized in
the attachment to this Agreement.
Release, performance, display, or
disclosure to other persons is not
authorized unless specified in the
attachment to this Agreement or
expressly permitted in writing by the
Contractor. The Recipient shall
promptly notify the Contractor of the
execution of this Agreement and
identify the Contractor’s Data that has
been or will be provided to the
Recipient, the date and place the Data
were or will be received, and the name
and address of the Government office
that has provided or will provide the
Data. This notice shall be made prior to
such release or disclosure to the
Recipient, except in cases of emergency
repair or overhaul activities, in which
case such notice must be made as soon
as practicable. The Recipient shall
destroy (or return to the Government at
the request of the Government) the
technical data and all copies in its
possession promptly following
completion of the authorized activities,
and shall notify the Contractor that the
data have been destroyed (or returned to
the Government).
(c) Use computer software marked
with restricted rights or SBIR data rights
legends only as authorized in the
attachment to this Agreement. The
recipient shall not, for example,
enhance, decompile, disassemble, or
reverse engineer the software; time
share, or use a computer program with
more than one computer at a time. The
recipient shall not release, perform,
display, or disclose such software to
others unless authorized in the
attachment to this Agreement or
expressly permitted in writing by the
Contractor. The Recipient shall
promptly notify the Contractor of the
execution of this Agreement and
identify the software that has been or
will be provided to the Recipient, the
date and place the software were or will
be received, and the name and address
of the Government office that has
provided or will provide the software.
This notice shall be made prior to such
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release or disclosure to the Recipient,
except in cases of emergency repair or
overhaul activities, in which case such
notice must be made as soon as
practicable. The Recipient shall destroy
(or return to the Government at the
request of the Government) the software
and all copies in its possession
promptly following completion of the
authorized activities, and shall notify
the Contractor that the software has
been destroyed (or returned to the
Government).
(d) Use, modify, reproduce, release,
perform, display, or disclose Data
marked with special license rights
legends (to be completed by the
contracting officer. See 227.7103–
7(a)(2). Omit if none of the Data
requested is marked with special license
rights legends).
(e) Use, modify, reproduce, perform,
or display technical data that is or
pertains to a commercial item and is
received from the Government with
commercial restrictive markings (i.e.,
marked to indicate that such data are
subject to use, modification,
reproduction, release, performance,
display, or disclosure restrictions) only
in the performance of this contract and
only for activities authorized in the
commercial limited rights license
(defined at DFARS 252.227–7015(a)(2))
for recipients of the technical data. The
Contractor shall not, without the
express written permission of the party
asserting such restrictions, use the
technical data to manufacture additional
quantities of the commercial items or for
any other unauthorized purpose, or
release or disclose such data to any
unauthorized person. The Contractor
will ensure that the party asserting
restrictions is notified prior to such
authorized release or disclosure, except
that notice of such emergency repair or
overhaul activities shall be made as
soon as practicable. The Contractor shall
destroy (or return to the Government at
the request of the Contracting Officer)
the data and all copies in its possession
promptly following completion of the
authorized activities under this contract,
and shall notify the party asserting
restrictions that the data have been
destroyed (or returned to the
Government).
(f) Use, modify, reproduce, perform,
or display commercial computer
software, or segregation or reintegration
data pertaining to commercial computer
software, received from the Government
with commercial restrictive markings
(i.e., marked to indicate that such
software are subject to use,
modification, reproduction, release,
performance, display, or disclosure
restrictions) only in the performance of
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this contract and only for activities, if
any, that are authorized in the
applicable commercial license or any
additional specially negotiated license
rights (pursuant to DFARS 227.7202–3).
The Contractor shall not, without the
express written permission of the party
asserting such restrictions, use the
computer software for any other
unauthorized purpose, or release or
disclose such software to any
unauthorized person. The Contractor
will ensure that the party asserting
restrictions is notified prior to such
authorized release or disclosure. The
Contractor shall destroy (or return to the
Government at the request of the
Contracting Officer) the software and all
copies in its possession promptly
following completion of the authorized
activities under this contract, and shall
notify the party asserting restrictions
that the data or software has been
destroyed (or returned to the
Government).
*
*
*
*
*
■ 13. Revise section 227.7103–8 to read
as follows:
227.7103–8 Deferred delivery and deferred
ordering of technical data.
(a) Deferred delivery. The clause at
252.227–7026, Deferred Delivery of
Technical Data or Computer Software,
permits the contracting officer to require
the delivery of technical data or
computer software identified as
‘‘deferred delivery’’ data at any time
until 2 years after acceptance by the
Government of all items (other than
technical data or computer software)
under the contract or contract
termination, whichever is later. The
obligation of subcontractors or suppliers
to deliver such technical data or
computer software expires 2 years after
the date the prime contractor accepts
the last item from the subcontractor or
supplier for use in the performance of
the contract. The contract must specify
which technical data or computer
software is subject to deferred delivery.
The contracting officer shall notify the
contractor sufficiently in advance of the
desired delivery date for such data to
permit timely delivery.
(b) Deferred ordering. The clause at
252.227–7029, Deferred Ordering of
Technical Data or Computer Software,
allows the contracting officer to order
certain technical data or computer
software that was not delivered or
otherwise furnished under a contract,
but that were generated or utilized in
the performance of a contract. The
availability of deferred ordering
procedures under this clause, however,
does not diminish or alter the
Government’s responsibility for advance
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planning and proactive management of
program needs for technical data in
accordance with 227.7103–1 and –2,
and computer software in accordance
with 227.7203–1 and –2. Follow the
procedures and requirements at PGI
227.7103–8(b).
(c) Contract clauses. Use the clause
at—
(1) 252.227–7026, Deferred Delivery
of Technical Data or Computer
Software, when it is in the
Government’s interests to defer the
delivery of technical data; and
(2) 252.227–7029, Deferred Ordering
of Technical Data or Computer
Software, in all solicitations and
contracts using other than FAR part 12
procedures, and in all solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items
that are being acquired for—
(i) A major system or subsystem
thereof; or
(ii) A weapon system or subsystem
thereof.
■ 14. Amend section 227.7103–13 by—
■ a. In paragraph (d) introductory text,
removing ‘‘Validation of Restrictive
Markings’’ and adding ‘‘Validation of
Asserted Restrictions’’ in its place;
■ b. In paragraph (d)(1) removing ‘‘three
years’’ and adding ‘‘6 years’’ in two
places, and removing ‘‘restrictive
markings’’ and adding ‘‘asserted
restrictions’’ in its place;
■ c. In paragraph (d)(1)(ii), removing
‘‘or’’;
■ d. In paragraph (d)(1)(iii), removing
the period at the end of the sentence,
and adding a semicolon and the word
‘‘or’’ in its place; and
■ e. Adding paragraph (d)(1)(iv).
The addition reads as follows:
227.7103–13 Government right to review,
verify, challenge and validate asserted
restrictions.
*
*
*
*
*
(d) * * *
(1) * * *
(iv) Are the subject of a fraudulently
asserted use or release restriction.
*
*
*
*
*
227.7103–15
[Amended]
15. Amend section 227.7103–15 in
paragraph (c)(2) by removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place.
■ 16. Amend section 227.7104 by—
■ a. Redesignating paragraphs (e)(4) and
(5) as (e)(5) and (6);
■ b. Adding new paragraph (e)(4);
■ c. In the newly redesignated
paragraph (e)(6), removing ‘‘Validation
of Restrictive Markings’’ and adding
■
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‘‘Validation of Asserted Restrictions’’ in
its place; and
■ d. In paragraph (f)(1), removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place.
The addition reads as follows:
227.7104 Contracts under the Small
Business Innovation Research (SBIR)
Program.
(e) * * *
(4) 252.227–7029, Deferred Ordering
of Technical Data or Computer
Software;
*
*
*
*
*
■ 17. Amend section 227.7201 by
revising paragraph (b) to read as follows:
227.7201
Definitions.
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*
(b) Other terms used in this subpart
are defined at 227.001 and as follows:
Commercial computer software means
any computer software that is a
commercial item.
Developed means that—
(1) A computer program has been
successfully operated in a computer and
tested to the extent sufficient to
demonstrate to reasonable persons
skilled in the art that the program can
reasonably be expected to perform its
intended purpose;
(2) Computer software, other than
computer programs, has been tested or
analyzed to the extent sufficient to
demonstrate to reasonable persons
skilled in the art that the software can
reasonably be expected to perform its
intended purpose; or
(3) Computer software documentation
required to be delivered under a
contract has been written, in any
medium, in sufficient detail to comply
with requirements under that contract.
Government purpose means any
activity in which the United States
Government is a party, including
cooperative agreements with
international or multi-national defense
organizations or sales or transfers by the
United States Government to foreign
governments or international
organizations. Government purposes
include competitive procurement, but
do not include the rights to use, modify,
reproduce, release, perform, display, or
disclose computer software or computer
software documentation for commercial
purposes or authorize others to do so.
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose computer
software or computer software
documentation within the Government
without restriction; and
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(2) Release or disclose computer
software or computer software
documentation outside the Government
and authorize persons to whom release
or disclosure has been made to use,
modify, reproduce, release, perform,
display, or disclose the software or
documentation for United States
Government purposes.
Minor modification means a
modification that does not significantly
alter the nongovernmental function or
purpose of the software or is of the type
customarily provided in the commercial
marketplace.
Noncommercial computer software
means software that does not qualify as
commercial computer software under
paragraph (a)(1) of the clause at
252.227–7014, Rights in Noncommercial
Computer Software and Noncommercial
Computer Software Documentation.
Restricted rights apply only to
noncommercial computer software and
mean the Government’s rights to—
(1) Use a computer program with one
computer at one time. The program may
not be accessed by more than one
terminal or central processing unit or
time shared unless otherwise permitted
by this contract;
(2) Transfer a computer program to
another Government agency without the
further permission of the Contractor if
the transferor destroys all copies of the
program and related computer software
documentation in its possession and
notifies the licensor of the transfer.
Transferred programs remain subject to
the provisions of the clause at DFARS
252.227–7014;
(3) Make the minimum number of
copies of the computer software
required for safekeeping (archive),
backup, or modification purposes;
(4) Modify computer software
provided that the Government may—
(i) Use the modified software only as
provided in paragraphs (a)(15)(i) and
(iii) of the clause at 252.227–7014; and
(ii) Not release or disclose the
modified software except as provided in
paragraph (a)(15)(ii) or (v) of the clause
at 252.227–7014; and
(5) Reproduce and release or disclose
the computer software outside the
Government only if—
(i) The reproduction, release, or
disclosure is necessary to—
(A) Permit contractors or
subcontractors performing service
contracts (see FAR 37.101) in support of
this or a related contract to use
computer software to diagnose and
correct deficiencies in a computer
program, to modify computer software
to enable a computer program to be
combined with, adapted to, or merged
with other computer programs or when
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necessary to respond to urgent tactical
situations;
(B) Permit contractors or
subcontractors performing emergency
repairs or overhaul of items or
components of items procured under
this or a related contract to use the
computer software when necessary to
perform the repairs or overhaul, or to
modify the computer software to reflect
the repairs or overhaul made;
(C) Permit covered Government
support contractors in the performance
of covered Government support
contracts to use, modify, reproduce,
perform, display, or release or disclose
the computer software to a person
authorized to receive restricted rights
computer software; or
(D) Permit contractors or
subcontractors to use, modify,
reproduce, perform, display, or release
or disclose segregation or reintegration
data to segregate computer software
from, or reintegrate that software (or
functionally equivalent software) with,
other computer software;
(ii) Each recipient contractor or
subcontractor ensures that the party that
has granted restricted rights is notified
of such release or disclosure;
(iii) Such contractors or
subcontractors are subject to the use and
non-disclosure agreement at DFARS
227.7103–7 or are Government
contractors receiving access to the
software for performance of a
Government contract that contains the
clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings;
(iv) The Government does not permit
the recipient to use, decompile,
disassemble, or reverse engineer the
software, or use software decompiled,
disassembled, or reverse engineered by
the Government pursuant to paragraph
(a)(15)(iv) of the clause at 252.227–7014,
for any purpose other than those
authorized in paragraph (a)(15)(v)(A);
and
(v) The recipient’s use of the
computer software is subject to the
limitations in paragraphs (a)(15)(i)
through (iv) of the clause at 252.227–
7014.
Unlimited rights means rights to use,
modify, reproduce, release, perform,
display, or disclose computer software
or computer software documentation in
whole or in part, in any manner and for
any purpose whatsoever, and to have or
authorize others to do so.
227.7202–1
[Amended]
18. Amend section 227.7202–1 in
paragraph (c)(1) by removing ‘‘except for
information’’ and adding ‘‘except for
■
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form, fit, and function data, segregation
or reintegration data, or information’’ in
its place.
■ 19. Amend section 227.7202–3 by—
■ a. In paragraph (a), removing ‘‘The
Government’’ and adding ‘‘Except as
provided in paragraphs (b) and (c) of
this section, the Government’’ in its
place;
■ b. Redesignating paragraph (b) as
paragraph (c);
■ c. Adding new paragraph (b); and
■ d. In the newly redesignated
paragraph (c), removing ‘‘rights not
conveyed’’ and adding ‘‘rights that are
not conveyed’’, and removing ‘‘provided
to the public’’ and adding ‘‘provided to
the public and are not authorized to be
required by paragraph (b) of this
section’’ in its place.
The addition reads as follows:
227.7202–3 Rights in commercial
computer software or commercial computer
software documentation.
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(b)(1) For segregation and
reintegration data, the Government may
require that its license rights include the
right for the Government to use, modify,
reproduce, release, perform, display, or
disclose that data to the extent
necessary for the segregation of the
commercial computer software from, or
the reintegration of that commercial
computer software (or functionally
equivalent computer software) with,
other computer software, items, or
processes. Unless the parties agree
otherwise in accordance with paragraph
(c) of this section, the license shall
authorize the Government to release the
segregation and reintegration data
outside the Government only if—
(i) The recipient of the data is subject
to a prohibition on the further
reproduction, release, disclosure, or use
of that data; and
(ii) The contractor or subcontractor
asserting the restriction is notified of
such reproduction, release, disclosure,
or use.
(2) Follow the procedures and
requirements at PGI 227.7202–3(b).
*
*
*
*
*
■ 20. Amend section 227.7202–4 by—
■ a. Revising the section heading;
■ b. Designating the introductory text as
paragraph (a); and
■ c. Adding paragraphs (b) and (c).
The revision and additions read as
follows:
227.7202–4
Contract clauses.
*
*
*
*
*
(b) Use the clause at 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings, in
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solicitations and contracts when it is
anticipated that the Government will
provide the contractor (other than a
litigation support contractor covered by
252.204–7014, Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors), for performance of
its contract, technical data or computer
software marked with another
contractor’s restrictive legend(s) or
marking(s).
(c) Use the clause at 252.227–7029,
Deferred Ordering of Technical Data or
Computer Software, in all solicitations
and contracts using other than FAR part
12 procedures, and in all solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items that are being
acquired for—
(1) A major system or subsystem
thereof; or
(2) A weapon system or subsystem
thereof.
■ 21. Amend section 227.7203–2 by
revising paragraph (b)(1) to read as
follows:
227.7203–2 Acquisition of noncommercial
computer software and computer software
documentation.
*
*
*
*
*
(b)(1) Data managers or other
requirements personnel are responsible
for identifying the Government’s
minimum needs. In addition to desired
software performance, compatibility, or
other technical considerations, needs
determinations should consider such
factors as multiple site or shared use
requirements; whether the
Government’s software operation or
sustainment will require the right to
modify or have third parties modify the
software; contractor’s economic
interests in computer software
developed at private expense; the return
on the Government’s investment in the
development of computer software
(including technology transfer/
transition to other programs); the
Government’s costs to acquire,
maintain, store, retrieve, and protect the
software or documentation; the
Government’s short-term and long-term
reprocurement and sustainment needs,
including repair, maintenance,
overhaul, spare and repair parts, and
technology upgrade/insertion; whether
procurement of the software (or
functional equivalents thereof) can be
accomplished on a form, fit, and
function or segregation or reintegration
basis; and any special computer
software documentation requirements.
*
*
*
*
*
227.7203–5
■
[Amended]
22. Amend section 227.7203–5 by—
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a. In paragraph (b)(4) introductory
text, removing ‘‘government purpose
rights’’ and adding ‘‘Government
purpose rights’’ in its place wherever it
appears; and
■ b. In paragraph (b)(4)(ii) removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place.
■ 23. Amend section 227.7203–6 by—
■ a. Revising the section heading;
■ b. Revising paragraph (d); and
■ c. In paragraph (f) by removing
‘‘Validation of Restrictive Markings’’
and adding ‘‘Validation of Asserted
Restrictions’’ in its place.
The revisions read as follows:
■
227.7203–6 Solicitation provision and
contract clauses.
*
*
*
*
*
(d) Use the clause at 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings, in
solicitations and contracts when it is
anticipated that the Government will
provide the contractor (other than a
litigation support contractor covered by
252.204–7014, Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors), for performance of
its contract, computer software or
computer software documentation
marked with another contractor’s
restrictive legend(s) or marking(s). The
clause must be incorporated into the
contract prior to the Government
releasing any such computer software or
computer software documentation to the
Contractor.
*
*
*
*
*
■ 24. Revise section 227.7203–8 to read
as follows:
227.7203–8 Deferred delivery and deferred
ordering of computer software and
computer software documentation.
(a) Deferred delivery. The clause at
252.227–7026, Deferred Delivery of
Technical Data or Computer Software,
permits the contracting officer to require
the delivery of computer software or
computer software documentation
identified as ‘‘deferred delivery’’ data at
any time until 2 years after acceptance
by the Government of all items (other
than technical data or computer
software) under the contract or contract
termination, whichever is later. The
obligation of subcontractors or suppliers
to deliver such data expires 2 years after
the date the prime contractor accepts
the last item from the subcontractor or
supplier for use in the performance of
the contract. The contract must specify
the computer software or computer
software documentation that is subject
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to deferred delivery. The contracting
officer shall notify the contractor
sufficiently in advance of the desired
delivery date for such software or
documentation to permit timely
delivery.
(b) Deferred ordering. The clause at
252.227–7029, Deferred Ordering of
Technical Data or Computer Software,
allows the contracting officer to order
certain technical data or computer
software that was not delivered or
otherwise furnished under a contract,
but that was generated or utilized in the
performance of a contract. The
availability of deferred ordering
procedures under this clause, however,
does not diminish or alter the
Government’s responsibility for advance
planning and proactive management of
program needs for technical data and
computer software in accordance with
227.7103–1 and –2, and 227.7203–1 and
–2, respectively. Follow the procedures
and requirements at PGI 227.7103–8(b).
(c) Contract clauses. Use the clause
at—
(1) 252.227–7026, Deferred Delivery
of Technical Data or Computer
Software, when it is in the
Government’s interests to defer the
delivery of computer software or
computer software documentation; and
(2) 252.227–7029, Deferred Ordering
of Technical Data or Computer
Software, in all solicitations and
contracts using other than FAR part 12
procedures, and in all solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items
that are being acquired for—
(i) A major system or subsystem
thereof; or
(ii) A weapon system or subsystem
thereof.
227.7203–13
[Amended]
25. Amend section 227.7203–13 in
paragraph (e)(3)(i) by removing ‘‘three
years’’ and adding ‘‘6 years’’ in two
places, and removing ‘‘or has been
otherwise made available without
restrictions’’ and adding ‘‘has been
otherwise made available without
restrictions, or is the subject of a
fraudulently asserted use or release
restriction’’ in its place.
■
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
227.7203–15
[Amended]
26. Amend section 227.7203–15 by—
a. In paragraph (c)(1), removing the
semicolon and replacing it with a
period;
■ b. In paragraph (c)(2), removing the
semicolon and replacing it with a
period; and
■ c. In paragraph (c)(3), removing
‘‘Information Marked with Restrictive
Legends; and’’ and adding ‘‘Information
■
■
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with Restrictive Legends or Markings.’’
in its place.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
27. Amend section 252.227–7013 by—
a. Removing the clause date ‘‘(FEB
2014)’’ and adding ‘‘(DATE)’’ in its
place;
■ b. In paragraph (a)—
i. Removing paragraph number
designations;
ii. In the definition of ‘‘Covered
Government support contractor’’
removing ‘‘covered by 252.204–7014’’
and adding ‘‘covered by the clause at
DFARS 252.204–7014, Limitations on
the Use or Disclosure of Information by
Litigation Support Contractors,’’ in its
place; redesignating (i) and (ii) as (1)
and (2), respectively; and in the newly
redesignated (2), removing ‘‘252.227–
7025, Limitations on the Use or
Disclosure of Government-Furnished
Information Marked with Restrictive
Legends’’ and adding ‘‘DFARS 252.227–
7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Legends or
Markings’’ in its place;
iii. In the definition of ‘‘Developed
exclusively at private expense’’,
removing in the introductory text the
word ‘‘government’’ and adding
‘‘Government’’ in its place;
redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; and, in the
newly redesignated paragraph (2)
removing the word ‘‘government’’ and
adding ‘‘Government’’ in its place;
iv. In the definition of ‘‘Developed
exclusively with government funds’’
removing the word ‘‘government’’ and
adding ‘‘Government’’ in its place;
v. In the definition of ‘‘Developed
with mixed funding’’ removing the
word ‘‘government’’ and adding
‘‘Government’’ in its place in two
places;
vi. Revising the definition of ‘‘Form,
fit and function data’’;
vii. In the definition of ‘‘Government
purpose rights’’ redesignating
paragraphs (i) and (ii) as (1) and (2),
respectively; and in the newly
redesignated paragraph (2) removing
‘‘government purposes’’ and adding
‘‘Government purposes’’ in its place;
viii. In the definition of ‘‘Limited
rights’’, redesignating paragraph (i)
introductory text, paragraphs (ii), and
(iii) as paragraph (1) introductory text,
paragraphs (2), and (3), respectively; in
the newly redesignated paragraph (1),
redesignating paragraphs (1)(A) and (B)
introductory text as paragraphs (1)(i)
and (iii) introductory text, respectively;
■
■
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adding paragraph (1)(ii); in the newly
redesignated paragraph (1)(i), removing
‘‘or’’; and in the newly redesignated
paragraph (1)(iii), redesignating
paragraphs (1)(iii)(1) and (2) as
paragraphs (1)(iii)(A) and (B),
respectively; and
ix. Adding, in alphabetical order, the
definition for ‘‘Segregation or
reintegration data’’;
■ c. In paragraph (b)(2)(i), removing
‘‘government purpose’’ and adding
‘‘Government purpose’’ in its place; and
removing ‘‘five-year’’ and adding ‘‘5year’’ in its place;
■ d. In paragraph (b)(2)(iii) removing
‘‘government purpose’’ and adding
‘‘Government purpose’’ in its place;
■ e. In paragraph (b)(2)(iii)(B), removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place;
■ f. In paragraph (b)(2)(iv), removing
‘‘government purpose’’ and adding
‘‘Government purpose’’ in its place in
two places;
■ g. In paragraphs (b)(3)(i)(A) and (B),
removing ‘‘items, components, and
processes’’ and adding ‘‘items or
processes’’ in both places;
■ h. Revising paragraph (b)(3)(ii);
■ i. Redesignating paragraphs (b)(3)(iii)
and (iv) introductory text as (b)(3)(iv)
and (v) introductory text, respectively;
■ j. Adding paragraph (b)(3)(iii);
■ k. Amending paragraph (b)(3)(v)(D) by
removing ‘‘252.227–7025, Limitations
on the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends’’ and adding
‘‘DFARS 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information with Restrictive
Legends or Markings’’ in its place;
■ l. Amending paragraph (b)(4) by
removing ‘‘government purpose’’ and
adding ‘‘Government purpose’’ in its
place;
■ m. Amending paragraph (b)(5)
heading by removing ‘‘government’’ and
adding ‘‘Government’’ in its place;
■ n. Amending paragraph (f) by
removing ‘‘government purpose’’ and
adding ‘‘Government purpose’’ in its
place;
■ o. Amending paragraph (f)(4)(ii) by
removing ‘‘government purpose’’ and
adding ‘‘Government purpose’’ in its
place; and
■ p. In Alternate II—
■ i. Revising the clause date and the
introductory text; and
■ ii. In paragraph (a), removing ‘‘(a)(17)’’
and adding ‘‘(a)’’ in its place.
The revision and additions read as
follows:
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252.227–7013 Rights in Technical Data—
Noncommercial Items.
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(a) * * *
Form, fit, and function data means
technical data or computer software that
describes the required overall physical,
logical, configuration, mating,
attachment, interface, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item or process to the
extent necessary to permit identification
of physically or functionally equivalent
items or processes. The term does not
include computer software source code,
or detailed manufacturing or process
data.
*
*
*
*
*
Limited rights * * *
(1) * * *
(ii) Necessary for the segregation of an
item or process from, or the
reintegration of that item or process (or
a physically or functionally equivalent
item or process) with, other items or
processes; and such reproduction,
release, disclosure, or use involves only
segregation or reintegration data; or
*
*
*
*
*
Segregation or reintegration data
means technical data or computer
software that is more detailed than form,
fit, and function data and that is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.
(1) Unless agreed otherwise by the
Government and the contractor, the
nature, quality, and level of technical
detail necessary for these data or
software shall be that required for
persons reasonably skilled in the art to
perform such segregation or
reintegration activities.
(2) The segregation or reintegration of
any such an item or process may be
performed at any practical level,
including down to the lowest
practicable segregable level, e.g., a
subitem or subcomponent level, or any
segregable portion of a process,
computer software (e.g., a software
subroutine that performs a specific
function), or documentation.
(3) The term—
(i) Includes data or software that
describes in more detail (than form, fit,
and function data) the physical, logical,
or operational interface or similar
functional interrelationship between the
items or processes; and
(ii) May include, but would not
typically require, detailed
manufacturing or process data or
computer software source code to
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support such segregation or
reintegration activities.
*
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*
(b) * * *
(3) * * *
(ii) The Government shall require a
recipient of limited rights data for
emergency repair or overhaul to destroy
(or return to the Government at the
request of the Contracting Officer) the
data and all copies in its possession
promptly following completion of the
emergency repair/overhaul and to notify
the Contractor that the data have been
destroyed (or returned to the
Government).
(iii) The Government shall require a
recipient of limited rights data for
segregation or reintegration activities to
destroy the data and all copies in its
possession promptly following
completion of the segregation or
reintegration activities in performance
of the contract under which such data
were received, and to notify the
Contractor that the data have been
destroyed.
*
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*
ALTERNATE II (DATE)
As prescribed in 227.7103–6(b)(2),
add to the basic clause the following
definition of ‘‘vessel design’’ in
paragraph (a) and the following
paragraph (b)(7):
*
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■ 28. Amend section 252.227–7014 by—
■ a. Removing the clause date ‘‘(FEB
2014)’’ and adding ‘‘(DATE)’’ in its
place;
■ b. In paragraph (a)—
■ i. Removing paragraph number
designations;
■ ii. Revising the definition of
‘‘Commercial computer software’’;
■ iii. In the definition of ‘‘Covered
Government support contractor’’
removing from the introductory text
‘‘covered by 252.204–7014’’ and adding
‘‘covered by the clause at DFARS
252.204–7014, Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors,’’ in its place;
redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; in the newly
redesignated paragraph (2) removing
‘‘252.227–7025, Limitations on the Use
or Disclosure of Government-Furnished
Information Marked with Restrictive
Legends’’ and adding ‘‘DFARS 252.227–
7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Legends or
Markings’’ in its place;
■ iv. In the definition of ‘‘Developed’’
redesignating paragraphs (i), (ii), and
(iii) as (1), (2), and (3), respectively;
■ v. In the definition of ‘‘Developed
exclusively at private expense’’
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removing from the introductory text
‘‘government’’ and adding
‘‘Government’’ in its place;
redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; and in the
newly redesignated paragraph (2)
removing ‘‘government’’ and adding
‘‘Government’’ in its place;
■ vi. In the definition of ‘‘Developed
exclusively with government funds’’
removing ‘‘government’’ and adding
‘‘Government’’ in its place;
■ vii. In the definition of ‘‘Developed
with mixed funding’’ removing
‘‘government’’ and adding
‘‘Government’’ in its place in two
places;
■ viii. Adding a definition for ‘‘Form,
fit, and function data’’;
■ ix. In the definition of ‘‘Government
purpose rights’’ redesignating
paragraphs (i) and (ii) as (1) and (2),
respectively; and in the newly
redesignated paragraph (2) removing
‘‘government purposes’’ and adding
‘‘Government purposes’’ in its place;
■ x. In the definition of ‘‘Restricted
rights’’ redesignating paragraphs (i), (ii),
(iii), (iv) introductory text, and (v)
introductory text as (1), (2), (3), (4)
introductory text, and (5) introductory
text, respectively; removing paragraphs
(vi) and (vii); in the newly redesignated
paragraph (4), redesignating paragraphs
(4)(A) and (B) as (4)(i) and (ii),
respectively; in the newly redesignated
paragraph (4)(ii) removing ‘‘(a)(15)(ii),
(v), (vi) and (vii)’’ and adding ‘‘(a)(15)(ii)
or (v)’’ in its place; and revising the
newly redesignated paragraph (5);
■ xi. Adding, in alphabetical order, a
definition of ‘‘Segregation or
reintegration data’’;
■ c. Amending paragraph (b)(1)(vi)(A)
by removing ‘‘government’’ and adding
‘‘Government’’ in its place;
■ d. Amending paragraph (b)(2)(i) by
removing ‘‘government purpose’’ and
adding ‘‘Government purpose’’ in its
place;
■ e. Amending paragraph (b)(2)(ii) by
removing ‘‘five years’’ and adding ‘‘5
years’’ in its place in two places, and
removing ‘‘government purpose’’ and
adding ‘‘Government purpose’’ in its
place;
■ f. Amending (b)(2)(iii) by removing
‘‘government purpose’’ and adding
‘‘Government purpose’’ in its place;
■ g. Amending (b)(2)(iii)(B) by removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Legends or Markings’’ in its
place;
■ h. Amending (b)(3)(iii)(D) by
removing ‘‘252.227–7025, Limitations
on the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends’’ and adding
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‘‘DFARS 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information with Restrictive
Legends or Markings’’ in its place;
■ i. Amending (b)(4) by removing
‘‘government purpose’’ and adding
‘‘Government purpose’’ in its place;
■ j. Amending (b)(5) heading by
removing ‘‘government’’ and adding
‘‘Government’’ in its place; and
■ k. Amending (f) introductory text,
(f)(2), and (f)(4)(ii) by removing
‘‘government purpose’’ and adding
‘‘Government purpose’’ in its place
wherever it appears.
The additions and revisions read as
follows:
252.227–7014 Rights in Noncommercial
Computer Software and Noncommercial
Computer Software Documentation.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
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(a) * * *
Commercial computer software means
any computer software that is a
commercial item.
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*
*
*
Form, fit, and function data means
technical data or computer software that
describes the required overall physical,
logical, configuration, mating,
attachment, interface, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item or process to the
extent necessary to permit identification
of physically or functionally equivalent
items or processes. The term does not
include computer software source code,
or detailed manufacturing or process
data.
*
*
*
*
*
Restricted rights * * *
(5) Reproduce and release or disclose
the computer software outside the
Government only if—
(i) The reproduction, release, or
disclosure is necessary to permit—
(A) Contractors or subcontractors
performing service contracts (see FAR
37.101) in support of this or a related
contract to use computer software to
diagnose and correct deficiencies in a
computer program, to modify computer
software to enable a computer program
to be combined with, adapted to, or
merged with other computer programs
or when necessary to respond to urgent
tactical situations;
(B) Contractors or subcontractors
performing emergency repairs or
overhaul of items or components of
items procured under this or a related
contract to use the computer software
when necessary to perform the repairs
or overhaul, or to modify the computer
software to reflect the repairs or
overhaul made;
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(C) Covered Government support
contractors in the performance of
covered Government support contracts
to use, modify, reproduce, perform,
display, or release or disclose the
computer software to a person
authorized to receive restricted rights
computer software; or
(D) Contractors or subcontractors to
use, modify, reproduce, perform,
display, or release or disclose
segregation or reintegration data to
segregate computer software from, or
reintegrate that software (or functionally
equivalent software) with, other
computer software;
(ii) Each recipient contractor or
subcontractor ensures that the party that
has granted restricted rights is notified
of such release or disclosure;
(iii) Such contractors or
subcontractors are subject to the use and
non-disclosure agreement at DFARS
227.7103–7 or are Government
contractors receiving access to the
software for performance of a
Government contract that contains the
clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings;
(iv) The Government shall not permit
the recipient to use, decompile,
disassemble, or reverse engineer the
software, or use software decompiled,
disassembled, or reverse engineered by
the Government pursuant to paragraph
(a)(15)(iv) of this clause, for any purpose
other than those authorized in
paragraph (a)(15)(v)(A); and
(v) The recipient’s use of the
computer software is subject to the
limitations in paragraphs (a)(15)(i)
through (iv) of this clause.
Segregation or reintegration data
means technical data or computer
software that is more detailed than form,
fit, and function data and that is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.
(1) Unless agreed otherwise by the
Government and the contractor, the
nature, quality, and level of technical
detail necessary for these data or
software shall be that required for
persons reasonably skilled in the art to
perform such segregation or
reintegration activities.
(2) The segregation or reintegration of
any such an item or process may be
performed at any practical level,
including down to the lowest
practicable segregable level, e.g., a
subitem or subcomponent level, or any
segregable portion of a process,
computer software (e.g., a software
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subroutine that performs a specific
function), or documentation.
(3) The term—
(i) Includes data or software that
describes in more detail (than form, fit,
and function data) the physical, logical,
or operational interface or similar
functional interrelationship between the
items or processes; and
(ii) May include, but would not
typically require, detailed
manufacturing or process data or
computer software source code to
support such segregation or
reintegration activities.
*
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*
*
*
■ 29. Amend section 252.227–7015 by—
■ a. Removing the clause date ‘‘(FEB
2014)’’ and adding ‘‘(DATE)’’ in its
place;
■ b. In paragraph (a)—
■ i. Removing paragraph number
designations;
■ ii. Revising the definition of
‘‘Commercial item’’;
■ iii. Adding, in alphabetical order, the
definition of ‘‘Commercial limited
rights’’;
■ iv. Adding, in alphabetical order, the
definition of ‘‘Commercial unlimited
rights’’;
■ v. In the definition of ‘‘Covered
Government support contractor’’
removing ‘‘252.204–7014’’ and adding
‘‘the clause at DFARS 252.204–7014,
Limitations on the Use or Disclosure of
Information by Litigation Support
Contractors’’ in its place; redesignating
paragraphs (i) and (ii) as (1) and (2),
respectively; and in the newly
redesignated paragraph (2) removing
‘‘252.227–7025, Limitations on the Use
or Disclosure of Government-Furnished
Information Marked with Restrictive
Legends’’ and adding ‘‘DFARS 252.227–
7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Legends or
Markings’’ in its place;
■ vi. Revising the definition of ‘‘Form,
fit, and function data’’;
■ vii. Removing ‘‘The term item
includes components or processes.’’;
and
■ viii. Adding, in alphabetical order, the
definition of ‘‘Segregation or
reintegration data’’;
■ c. Revising the paragraph (b)(1)
introductory text;
■ d. Revising paragraph (b)(2);
■ e. In paragraph (b)(3)(iv), removing
‘‘252.227–7025, Limitations on the Use
or Disclosure of Government-Furnished
Information Marked with Restrictive
Legends’’ and adding ‘‘DFARS 252.227–
7025, Limitations on the Use or
Disclosure of Government-Furnished
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Information with Restrictive Legends or
Markings’’ in its place;
■ f. Redesignating paragraph (e) as
paragraph (f);
■ g. Adding a new paragraph (e);
■ h. In the newly redesignated
paragraph (f), remove the last sentence
of paragraph (f)(2); and
■ i In Alternate II—
■ i. Revising the clause date and the
introductory text; and
■ ii. In paragraph (a), removing ‘‘(a)(6)’’
and adding ‘‘(a)’’ in its place.
The revisions and additions read as
follows:
252.227–7015
Items.
Technical Data–Commercial
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Commercial item does not include
commercial computer software (see
DFARS 227.7202 for coverage regarding
commercial computer software
documentation).
Commercial limited rights means the
rights to use, modify, reproduce, release,
perform, display, or disclose, in whole
or in part within the Government,
technical data pertaining to commercial
items. The Government may not,
without the written permission of the
party asserting commercial limited
rights, release or disclose the technical
data outside the Government, use the
technical data for manufacture of
additional quantities of the commercial
items, or authorize the technical data to
be used by another party, except that the
Government may reproduce, release, or
disclose such data or authorize the use
or reproduction of the data by persons
outside the Government if—
(1) The reproduction, release,
disclosure, or use is—
(i) Necessary for emergency repair and
overhaul;
(ii) Necessary for the segregation of an
item or process from, or the
reintegration of that item or process (or
a physically or functionally equivalent
item or process) with, other items or
processes; and such reproduction,
release, disclosure, or use involves only
segregation or reintegration data; or
(iii) A release or disclosure to—
(A) A covered Government support
contractor, for use, modification,
reproduction, performance, display, or
release or disclosure to authorized
person(s) in performance of a
Government contract; or
(B) A foreign government, of technical
data, other than detailed manufacturing
or process data, when use of such data
by the foreign government is in the
interest of the Government and is
required for evaluational or
informational purposes;
(2) The recipient of the technical data
is subject to a prohibition on the further
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reproduction, release, disclosure, or use
of the technical data; and
(3) The contractor or subcontractor
asserting the restriction is notified of
such reproduction, release, disclosure,
or use.
Commercial unlimited rights means
rights to use, modify, reproduce,
perform, display, release, or disclose
technical data in whole or in part, in
any manner, and for any purpose
whatsoever, and to have or authorize
others to do so.
*
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*
Form, fit, and function data means
technical data or computer software that
describes the required overall physical,
logical, configuration, mating,
attachment, interface, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item or process to the
extent necessary to permit identification
of physically or functionally equivalent
items or processes. The term does not
include computer software source code,
or detailed manufacturing or process
data.
Segregation or reintegration data
means technical data or computer
software that is more detailed than form,
fit, and function data and that is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.
(1) Unless agreed otherwise by the
Government and the contractor, the
nature, quality, and level of technical
detail necessary for these data or
software shall be that required for
persons reasonably skilled in the art to
perform such segregation or
reintegration activities.
(2) The segregation or reintegration of
any such an item or process may be
performed at any practical level,
including down to the lowest
practicable segregable level, e.g., a
subitem or subcomponent level, or any
segregable portion of a process,
computer software (e.g., a software
subroutine that performs a specific
function), or documentation.
(3) The term—
(i) Includes data or software that
describes in more detail (than form, fit,
and function data) the physical, logical,
or operational interface or similar
functional interrelationship between the
items or processes; and
(ii) May include, but would not
typically require, detailed
manufacturing or process data or
computer software source code to
support such segregation or
reintegration activities.
*
*
*
*
*
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39497
(b) License. (1) The Government shall
have commercial unlimited rights in
technical data that pertain to
commercial items and—
*
*
*
*
*
(2) Except as provided in paragraphs
(b)(1) and (e) of this clause, the
Government shall have commercial
limited rights in technical data
pertaining to commercial items.
*
*
*
*
*
(e) Applicability to development at
private expense. This clause will govern
the technical data pertaining to any
portion of a commercial item that was
developed exclusively at private
expense. The clause at DFARS 252.227–
7013, Rights in Technical Data–
Noncommercial Items, will govern the
technical data pertaining to any portion
of a commercial item that was
developed in any part at Government
expense.
*
*
*
*
*
ALTERNATE I (DATE)
As prescribed in 227.7102–4(a)(2),
add to the basic clause the following
definition of ‘‘vessel design’’ in
paragraph (a) and the following
paragraph (b)(4):
*
*
*
*
*
■ 30. Amend section 252.227–7018 by—
■ a. Removing the clause date ‘‘(FEB
2014)’’ and adding ‘‘(DATE)’’ in its
place;
■ b. In paragraph (a)—
■ i. Removing paragraph number
designations;
■ ii. In the definition of ‘‘Commercial
computer software’’ redesignating
paragraphs (i) through (iv) as (1) through
(4), respectively;
■ iii. In the definition of ‘‘Covered
Government support contractor’’
introductory text, removing ‘‘252.204–
7014’’ and adding ‘‘the clause at DFARS
252.204–7014, Limitations on the Use or
Disclosure of Information by Litigation
Support Contractors’’ in its place;
redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; and in the
newly redesignated paragraph (2)
removing ‘‘252.227–7025, Limitations
on the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends’’ and adding
‘‘DFARS 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information with Restrictive
Legends or Markings’’ in its place;
■ iv. In the definition of ‘‘Developed’’
redesignating paragraphs (i) thorough
(iv) as (1) through (4), respectively;
■ v. In the definition of ‘‘Developed
exclusively at private expense’’
introductory text, removing
‘‘government’’ and adding
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‘‘Government’’ in its place;
redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; and in the
newly redesignated paragraph (2)
removing ‘‘government’’ and adding
‘‘Government’’ in its place;
■ vi. In the definition of ‘‘Developed
exclusively with government funds’’
removing ‘‘government’’ and adding
‘‘Government’’ in its place;
■ vii. In the definition of ‘‘Developed
with mixed funding’’ removing
‘‘government’’ and adding
‘‘Government’’ in its place in two
places.
■ viii. Revising the definition of ‘‘Form,
fit and function data’’;
■ ix. In the definition of ‘‘Limited
rights’’ redesignating paragraph (i)
introductory text, paragraphs (ii), and
(iii) as paragraph (1) introductory text,
paragraphs (2), and (3), respectively; in
the newly redesignated paragraph (1),
redesignating paragraphs (1)(A) and (B)
introductory text as (1)(i) and (iii)
introductory text, respectively; adding
paragraph (1)(ii); in the newly
redesignated (1)(i), removing ‘‘or’’; in
the newly redesignated (1)(iii),
redesignating paragraphs (1)(iii)(1) and
(2) as (1)(iii)(A) and (B), respectively.
■ x. In the definition of ‘‘Restricted
rights’’ redesignating paragraphs (i), (ii),
(iii), (iv) introductory text and (v)
introductory text as (1), (2), (3), (4)
introductory text, and (5) introductory
text, respectively; removing paragraphs
(vi) and (vii); in the newly redesignated
paragraph (4) redesignating paragraphs
(4)(A) and (B) as (4)(i) and (ii),
respectively; in the newly redesignated
paragraph (4)(ii) removing ‘‘(a)(18)(ii),
(v), (vi) and (vii of this clause;)’’ and
adding ‘‘(a)(18)(ii) or (v) of this clause;
and’’; and revising the newly
redesignated paragraph (5);
■ xi. In the definition of ‘‘SBIR data
rights’’ redesignating paragraphs (i) and
(ii) as (1) and (2); and
■ xii. Adding, in alphabetical order, a
definition for ‘‘Segregation or
reintegration data’’;
■ c. In paragraph (b)(8)(iv), removing
‘‘252.227–7025, Limitations on the Use
or Disclosure of Government-Furnished
Information Marked with Restrictive
Legends’’ and adding ‘‘DFARS 252.227–
7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Legends or
Markings’’ in its place; and
■ d. In paragraph (f)(5)(ii), removing
‘‘government’’ and adding
‘‘Government’’ in its place.
The revisions and additions read as
follows:
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252.227–7018 Rights in Noncommercial
Technical Data and Computer Software—
Small Business Innovation Research (SBIR)
Program.
*
*
*
*
*
Form, fit, and function data means
technical data or computer software that
describes the required overall physical,
logical, configuration, mating,
attachment, interface, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item or process to the
extent necessary to permit identification
of physically or functionally equivalent
items or processes. The term does not
include computer software source code,
or detailed manufacturing or process
data.
*
*
*
*
*
Limited rights * * *
(1) * * *
(ii) Necessary for the segregation of an
item or process from, or the
reintegration of that item or process (or
a physically or functionally equivalent
item or process) with, other items or
processes; and such reproduction,
release, disclosure, or use involves only
segregation or reintegration data; or
*
*
*
*
*
Restrictive rights * * *
(5) Reproduce and release or disclose
the computer software outside the
Government only if—
(i) The reproduction, release, or
disclosure is necessary to—
(A) Permit contractors or
subcontractors performing service
contracts (see 37.101 of the Federal
Acquisition Regulation) in support of
this or a related contract to use
computer software to diagnose and
correct deficiencies in a computer
program, to modify computer software
to enable a computer program to be
combined with, adapted to, or merged
with other computer programs or when
necessary to respond to urgent tactical
situations;
(B) Permit contractors or
subcontractors performing emergency
repairs or overhaul of items or
components of items procured under
this or a related contract to use the
computer software when necessary to
perform the repairs or overhaul, or to
modify the computer software to reflect
the repairs or overhaul made;
(C) Permit covered Government
support contractors in the performance
of covered Government support
contracts to use, modify, reproduce,
perform, display, or release or disclose
the computer software to a person
authorized to receive restricted rights
computer software; or
(D) Permit contractors or
subcontractors to use, modify,
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reproduce, perform, display, or release
or disclose segregation or reintegration
data to segregate computer software
from, or reintegrate that software (or
functionally equivalent software) with,
other computer software;
(ii) Each recipient contractor or
subcontractor notifies the party that has
granted restricted rights that a release or
disclosure was made;
(iii) Such contractors or
subcontractors are subject to the use and
non-disclosure agreement at DFARS
227.7103–7 or are Government
contractors receiving access to the
software for performance of a
Government contract that contains the
clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
with Restrictive Legends or Markings;
(iv) The Government shall not permit
the recipient to use, decompile,
disassemble, or reverse engineer the
software, or use software decompiled,
disassembled, or reverse engineered by
the Government pursuant to paragraph
(a)(18)(iv) of this clause, for any purpose
other than those authorized in
paragraph (a)(18)(v)(A); and
(v) The recipient’s use of the
computer software is subject to the
limitations in paragraphs (a)(18)(i)
through (iv) of this clause.
*
*
*
*
*
Segregation or reintegration data
means technical data or computer
software that is more detailed than form,
fit, and function data and that is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.
(1) Unless agreed otherwise by the
Government and the contractor, the
nature, quality, and level of technical
detail necessary for these data or
software shall be that required for
persons reasonably skilled in the art to
perform such segregation or
reintegration activities.
(2) The segregation or reintegration of
any such an item or process may be
performed at any practical level,
including down to the lowest
practicable segregable level, e.g., a
subitem or subcomponent level, or any
segregable portion of a process,
computer software (e.g., a software
subroutine that performs a specific
function), or documentation.
(3) The term—
(i) Includes data or software that
describes in more detail (than form, fit,
and function data) the physical, logical,
or operational interface or similar
functional interrelationship between the
items or processes; and
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(ii) May include, but would not
typically require, detailed
manufacturing or process data or
computer software source code to
support such segregation or
reintegration activities.
*
*
*
*
*
■ 31. Amend section 252.227–7019 by—
■ a. Removing the clause date ‘‘(SEP
2011)’’ and adding ‘‘(DATE)’’ in its
place;
■ b. Revising paragraph (b);
■ c. In paragraph (d)(1), removing
‘‘asserted restrictions’’ and adding
‘‘asserted restrictions (including as
assertion under paragraph (c) of DFARS
252.227–7029, Deferred Ordering of
Technical Data or Computer Software)’’
in its place;
■ d. In paragraph (d)(2)(i)(B), removing
‘‘restriction’’ and adding ‘‘marking’’ in
its place; removing ‘‘sixty (60) days’’
and adding ‘‘60 days’’ in its place; and
removing ‘‘the markings’’ and adding
‘‘the marking’’ in its place;
■ e. Revising paragraph (e)(1);
■ f. In paragraph (e)(2), removing
‘‘sustain’’ and adding ‘‘sustains’’ in its
place;
■ g. In paragraph (g)(1)(ii), removing
‘‘sixty (60) days’’ and adding ‘‘60 days’’
in its place;
■ h. In paragraph (g)(1)(iv), removing
‘‘three-year’’ and adding ‘‘3-year’’ in its
place;
■ i. In paragraph (h)(1)(i), removing
‘‘ninety (90) days’’ and adding ‘‘90
days’’ in its place;
■ j. In paragraph (h)(1)(ii), removing
‘‘one year’’ and adding ‘‘1 year’’ in its
place; and removing ‘‘ninety (90) days’’
and adding ‘‘90 days’’ in its place;
■ k. In paragraph (h)(1)(iii), removing
‘‘ninety (90) days’’ and adding ‘‘90
days’’ in its place in two places; and
removing ‘‘one year’’ and adding ‘‘1
year’’ in its place;
■ l. In paragraph (h)(2)(i), removing
‘‘ninety (90) days’’ and adding ‘‘90
days’’;
■ m. In paragraph (h)(2)(ii), removing
‘‘ninety (90) days’’ and adding ‘‘90
days’’;
■ n. In paragraph (h)(2)(iii), removing
‘‘one year’’ and adding ‘‘1 year’’ in its
place; and removing ‘‘ninety (90) days’’
and adding ‘‘90 days’’ in its place;
■ o. In paragraph (h)(3), removing
‘‘government’’ and adding
‘‘Government’’ in its place in two
places; removing ‘‘227.7103–7 of the
Defense Federal Acquisition Regulation
Supplement (DFARS)’’ and adding
‘‘DFARS 227.7103–7’’ in its place; and
removing ‘‘Information Marked with
Restrictive Legends’’ and adding
‘‘Information with Restrictive Legends
or Markings’’ in its place.
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The revisions read as follows:
252.227–7019 Validation of Asserted
Restrictions—Computer Software.
*
*
*
*
*
(b) Justification. The Contractor shall
maintain records sufficient to justify the
validity of any asserted restrictions on
the Government’s rights to use, modify,
reproduce, perform, display, release, or
disclose computer software delivered,
required to be delivered, or otherwise
provided to the Government under this
contract and shall be prepared to
furnish to the Contracting Officer a
written justification for such asserted
restrictions in response to a request for
information under paragraph (d) of this
clause or a challenge under paragraph
(f) of this clause.
*
*
*
*
*
(e) * * *
(1) The Government, when there are
reasonable grounds to do so, has the
right to review and challenge the
validity of any restrictions asserted by
the Contractor on the Government’s
rights to use, modify, reproduce, release,
perform, display, or disclose computer
software delivered, to be delivered
under this contract, or otherwise
provided to the Government in the
performance of this contract. The
Government may exercise this right
within 6 years after the date(s) the
software is delivered or otherwise
furnished to the Government, or 6 years
following final payment under this
contract, whichever is later. The
Government may, however, challenge a
restriction on the release, disclosure or
use of computer software at any time if
such software—
(A) Is publicly available;
(B) Has been furnished to the United
States without restriction;
(C) Has been otherwise made
available without restriction; or
(D) Is the subject of a fraudulently
asserted use or release restriction.
*
*
*
*
*
■ 32. Amend 252.227–7025 by—
■ a. Revising the heading, introductory
text, clause title, and clause date;
■ b. In paragraph (a)(1), removing
‘‘252.227–7013’’ and adding ‘‘DFARS
252.227–7013’’ in its place;
■ c. In paragraph (a)(2), removing
‘‘government purpose rights,’’ and
adding ‘‘Government purpose rights,’’ in
its place and removing ‘‘252.227–7014’’
and adding ‘‘DFARS 252.227–7014’’ in
its place;
■ d. In paragraph (a)(3), removing
‘‘252.227–7018’’ and adding ‘‘DFARS
252.227–7018’’;
■ e. Revising paragraph (b)(1)(i);
■ f. Redesignating paragraph (b)(1)(ii) as
paragraph (b)(1)(iv);
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g. Adding new paragraph (b)(1)(ii) and
paragraph (b)(1)(iii);
■ h. In the newly redesignated (b)(1)(iv),
removing ‘‘(b)(5)’’ and adding ‘‘(b)(6)’’ in
its place; and adding a period at the end
of the sentence;
■ i. In paragraph (b)(2), removing
‘‘government’’ and adding
‘‘Government’’ in its place wherever it
appears; and removing ‘‘227.7103–7’’
and adding ‘‘DFARS 227.7103–7’’ in its
place;
■ j. In paragraph (b)(3)(i) removing
‘‘227.7103–7’’ and adding ‘‘DFARS
227.7103–7’’ in its place;
■ k. In paragraph (b)(3)(ii), removing
‘‘(b)(5)’’ and adding ‘‘(b)(6)’’ in its place;
■ l. Revising paragraph (b)(4);
■ m. Redesignating paragraph (b)(5) as
(b)(6);
■ n. Adding new paragraph (b)(5);
■ o. In the newly redesignated (b)(6)
introductory text, removing ‘‘legends’’
and adding ‘‘legends or markings’’ in its
place;
■ p. Revising paragraph (b)(6)(iii); and
■ q. Adding paragraph (e).
The revisions and additions read as
follows:
■
252.227–7025 Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Legends or
Markings.
As prescribed in 227.7102–4(c),
227.7103–6(c), 227.7104(f)(1), 227.7202–
4(b), or 227.7203–6(d), use the following
clause:
LIMITATIONS ON THE USE OR
DISCLOSURE OF GOVERNMENT–
FURNISHED INFORMATION WITH
RESTRICTIVE LEGENDS OR
MARKINGS (DATE)
*
*
*
*
*
(b) * * *
(1) * * *
(i) The Contractor shall use, modify,
reproduce, perform, or display technical
data received from the Government with
limited rights legends, computer
software received with restricted rights
legends, or SBIR technical data or
computer software received with SBIR
data rights legends (during the SBIR
data protection period) only in the
performance of this contract and only
for activities authorized in the license
for recipients of the data or software.
The Contractor shall not, without the
express written permission of the party
whose name appears in the legend, use
the data or software for any
unauthorized purpose or release or
disclose the data or software to any
unauthorized person.
(ii) The Contractor shall ensure that
the party whose name appears in the
legend is notified prior to such
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authorized release or disclosure, except
that notice regarding—
(A) Covered Government support
contractor activities shall be made as
soon as practicable, but not later than 30
days after such release or disclosure;
and
(B) Emergency repair or overhaul
activities shall be made as soon as
practicable.
(iii) The Contractor shall destroy (or
return to the Government at the request
of the Contracting Officer) the data or
software and all copies in its possession
promptly following completion of the
authorized activities under this contract,
and shall notify the party whose name
appears in the legend that the data or
software has been destroyed (or
returned to the Government).
*
*
*
*
*
(4) GFI technical data marked with
commercial restrictive markings.
(i) The Contractor shall use, modify,
reproduce, perform, or display technical
data that is or pertains to a commercial
item and is received from the
Government with commercial restrictive
markings (i.e., marked to indicate that
such data are subject to use,
modification, reproduction, release,
performance, display, or disclosure
restrictions) only in the performance of
this contract and only for activities
authorized in the commercial limited
rights license (defined at DFARS
252.227–7015(a)(2)), or any additional
specially negotiated license rights
(pursuant to 252.227–7015(c)), for
recipients of the technical data. The
Contractor shall not, without the
express written permission of the party
asserting such restrictions, use the
technical data to manufacture additional
quantities of the commercial items or for
any other unauthorized purpose, or
release or disclose such data to any
unauthorized person.
(ii) The Contractor shall ensure that
the party asserting restrictions is
notified prior to such authorized release
or disclosure, except that notice
regarding—
(A) Covered Government support
contractor activities shall be made as
soon as practicable, but not later than 30
days after such release or disclosure;
and
(B) Emergency repair or overhaul
activities shall be made as soon as
practicable.
(iii) The Contractor shall destroy (or
return to the Government at the request
of the Contracting Officer) the data and
all copies in its possession promptly
following completion of the authorized
activities under this contract, and shall
notify the party asserting restrictions
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that the data has been destroyed (or
returned to the Government).
(iv) If the Contractor is a covered
Government support contractor, the
Contractor is also subject to the
additional terms and conditions at
paragraph (b)(6) of this clause.
(5) GFI commercial computer software
marked with commercial restrictive
markings.
(i) The Contractor shall use, modify,
reproduce, perform, or display
commercial computer software, or
segregation or reintegration data
pertaining to commercial computer
software, received from the Government
with commercial restrictive markings
(i.e., marked to indicate that such
software are subject to use,
modification, reproduction, release,
performance, display, or disclosure
restrictions) only in the performance of
this contract and only for activities, if
any, that are authorized in the
applicable commercial license or any
additional specially negotiated license
rights (pursuant to DFARS 227.7202–3).
The Contractor shall not, without the
express written permission of the party
asserting such restrictions, use the
computer software for any other
unauthorized purpose, or release or
disclose such software to any
unauthorized person.
(ii) The Contractor shall ensure that
the party asserting restrictions is
notified prior to such authorized release
or disclosure.
(iii) The Contractor shall destroy (or
return to the Government at the request
of the Contracting Officer) the software
and all copies in its possession
promptly following completion of the
authorized activities under this contract,
and shall notify the party asserting
restrictions that the data or software has
been destroyed (or returned to the
Government).
(6) * * *
(iii) The Contractor will ensure that
the party whose name appears in the
legend or marking is notified of the
release or disclosure as soon as
practicable, but not later than 30 days
after such release or disclosure;
*
*
*
*
*
(e) The rights and obligations of the
parties under this clause shall survive
the termination, expiration, or
completion of this contract.
252.227–7027
[Removed and Reserved.]
33. Remove and reserve section
252.227–7027.
■ 34. Add section 252.227–7029 to read
as follows:
■
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252.227–7029 Deferred Ordering of
Technical Data or Computer Software.
As prescribed at 227.7102–4(d),
227.7103–8(c)(2), 227.7104(e)(4),
227.7202–4(c), and 227.7203–8(c)(2),
use the following clause:
DEFERRED ORDERING OF
TECHNICAL DATA OR COMPUTER
SOFTWARE (DATE)
(a) Definitions. As used in this
clause—
Applied research and development
are defined at FAR 35.001.
Commercial computer software,
computer software, computer software
documentation, detailed manufacturing
or process data, developed, developed
exclusively at private expense,
developed exclusively with Government
funds, developed with mixed funding,
form, fit, and function data, segregation
or reintegration data, and technical data
are defined in the DFARS at—
(1) 252.227–7013, Rights in Technical
Data—Noncommercial Items;
(2) 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation;
(3) 252.227–7015, Technical Data—
Commercial Items; and
(4) 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research (SBIR) Program.
Commercially available off-the-shelf
software means computer software that
is a commercially available off-the-shelf
item.
Form, fit, and function data means
technical data or computer software that
describes the required overall physical,
logical, configuration, mating,
attachment, interface, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item or process to the
extent necessary to permit identification
of physically or functionally equivalent
items or processes. The term does not
include computer software source code,
or detailed manufacturing or process
data.
Segregation or reintegration data
means technical data or computer
software that is more detailed than form,
fit, and function data and that is
necessary for the segregation of an item
or process from, or the reintegration of
that item or process (or a physically or
functionally equivalent item or process)
with, other items or processes.
(1) Unless agreed otherwise by the
Government and the contractor, the
nature, quality, and level of technical
detail necessary for these data or
software shall be that required for
persons reasonably skilled in the art to
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perform such segregation or
reintegration activities.
(2) The segregation or reintegration of
any such an item or process may be
performed at any practical level,
including down to the lowest
practicable segregable level, e.g., a
subitem or subcomponent level, or any
segregable portion of a process,
computer software (e.g., a software
subroutine that performs a specific
function), or documentation.
(3) The term—
(i) Includes data or software that
describes in more detail (than form, fit,
and function data) the physical, logical,
or operational interface or similar
functional interrelationship between the
items or processes; and
(ii) May include, but would not
typically require, detailed
manufacturing or process data or
computer software source code to
support such segregation or
reintegration activities.
Technical data or computer software
generated or utilized in the performance
of this contract or any subcontract
hereunder means—
(1) Technical data or computer
software developed in the performance
of this contract or any subcontract
hereunder;
(2) Technical data pertaining to an
item or process that is developed,
delivered, or incorporated into the
design of a system, in the performance
of this contract or any subcontract
hereunder;
(3) Computer software or computer
software documentation pertaining to
computer software designed, developed,
or delivered in the performance of this
contract or any subcontract hereunder;
(4) Technical data or computer
software used to provide services in the
performance of this contract or any
subcontract hereunder; or
(5) Technical data or computer
software, other than commercially
available off-the-shelf software,
necessary to access, use, reproduce,
modify, perform, display, release, or
disclose any of the technical data or
computer software identified in
paragraphs (1) through (4) of this
definition.
(b) In addition to technical data or
computer software specified elsewhere
in this contract to be delivered or
otherwise furnished hereunder, the
Government may at any time order
technical data or computer software as
follows:
(1) Except as provided in paragraph
(b)(2) of this clause, the Government
may require delivery of any technical
data or computer software generated or
utilized in the performance of this
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contract or any subcontract hereunder,
upon a determination by the
Government that the technical data or
computer software—
(i) Is needed for the purpose of
development, production,
reprocurement, sustainment,
modification, or upgrade (including
through competitive means) of—
(A) A major system or subsystem
thereof;
(B) A weapon system or subsystem
thereof;
(C) Any noncommercial item; or
(D) Any portion of a commercial item
that was either developed exclusively
with Government funds or developed
with mixed funding, or that was a
modification made at Government
expense; and
(ii) Either—
(A) Pertains to an item or process that
was either developed exclusively with
Government funds or developed with
mixed funding;
(B) Was generated either exclusively
with Government funds or with mixed
funding in cases when contract
performance did not involve the
development of an item or process; or
(C) Is form, fit, and function data, or
segregation or reintegration data.
(2) For technical data or computer
software resulting from basic research or
applied research, the Government is not
required to make the determination that
such technical data or computer
software is needed for the purposes set
forth at paragraph (b)(1)(i).
(c) If the Contractor asserts in writing
to the Contracting Officer that technical
data or computer software that is or may
be covered by a determination in
paragraph (b)(1)(ii)(A) or (B) of this
clause pertains to an item or process
developed exclusively at private
expense, the contractor’s assertion shall
include information sufficient for the
Contracting officer to evaluate the
assertion, and that assertion shall be
governed by the applicable procedures
for validation of asserted restrictions at
DFARS 252.227–7019, Validation of
Asserted Restrictions—Computer
Software, or 252.227–7037, Validation
of Asserted Restrictions on Technical
Data. Any other assertion or
disagreement shall be governed by the
applicable disputes clause.
(d) This clause shall not be
interpreted as imposing an obligation on
the Contractor to preserve any technical
data or computer software covered by
this clause for longer than a reasonable
period. However, this does not restrict
the Government from including a
contract requirement for the Contractor
to preserve such technical data or
computer software for a specific period.
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39501
(e) When technical data or computer
software is ordered under paragraph (b)
of this clause, the Contractor shall be
compensated only for reasonable costs
incurred for converting and delivering
the technical data or computer software
into the required form.
(f) The Government’s rights to use
such technical data or computer
software shall be pursuant to the
applicable rights in technical data and
computer software clause(s), or
pursuant to DFARS 227.7202 in the case
of commercial computer software, in
effect as of the date of award of this
contract.
(g) The Government may exercise its
deferred ordering rights by any means
available for ordering technical data or
computer software, including unilateral
contract modification. Nothing
contained in this clause shall be
construed as altering or limiting the
ability of the Government to order
technical data (including computer
software documentation) or computer
software by mutual agreement with the
Contractor. The rights provided to the
Government in this clause are in
addition to and do not limit any rights
afforded to the Government by any other
clause of this contract.
(h) The Government is not foreclosed
from requiring the delivery of the
technical data or computer software by
a failure to challenge, in accordance
with the requirements of the applicable
validation of asserted restrictions or
restrictive markings clause, the
contractor’s assertion of a use or release
restriction on the technical data or
computer software.
(i) The rights and obligations of the
parties under this clause shall survive
the termination, expiration, or
completion of this contract.
(j) Flowdown. The Contractor or
subcontractor shall insert this clause in
contractual instruments with its
subcontractors or suppliers at any tier,
including subcontracts for commercial
items, except for subcontracts solely for
commercial items that are not being
acquired for—
(1) A major system or subsystem
thereof; or
(2) A weapon system or subsystem
thereof.
(End of clause)
■ 35. Amend section 252.227–7037 by—
■ a. Revising the heading, introductory
text, clause title, and clause date;
■ b. Revising paragraph (c);
■ c. Revising paragraph (d)(1);
■ d. Revising paragraph (d)(2);
■ e. In paragraph (d)(3), removing
‘‘marking’’ and adding ‘‘asserted
restriction’’ in its place wherever it
appears; and removing ‘‘item,
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component, or process’’ and adding
‘‘item or process’’ in its place;
■ f. Revising paragraph (e)(1)
introductory text;
■ g. In paragraph (e)(1)(ii), removing
‘‘sixty (60) days’’ and adding ‘‘60 days’’
in its place;
■ h. Revising paragraph (e)(1)(iii);
■ i. In paragraph (e)(4), removing
‘‘restrictive markings’’ and adding
‘‘asserted restrictions’’ in its place;
■ j. In paragraph (g)(1), removing
‘‘restrictive marking’’ and adding
‘‘asserted restriction’’ in its place
wherever it appears; and removing
‘‘sixty (60) days’’ and adding ‘‘60 days’’
in its place in two places;
■ k. In paragraph (g)(2)(i), removing
‘‘restrictive marking’’ and adding
‘‘asserted restriction’’ in its place; and
removing ‘‘sixty (60) days’’ and adding
‘‘60 days’’ in its place in two places;
■ l. Revising paragraph (g)(2)(ii);
■ m. Revising paragraph (g)(2)(iii);
■ n. In paragraph (g)(2)(iv), removing
‘‘restrictive markings’’ and adding
‘‘asserted restrictions’’ in its place in
two places;
■ o. In paragraph (h)(1)(i), removing
‘‘restrictive marking’’ and adding
‘‘restrictive marking supported by the
asserted restrictions’’ in its place;
■ p. Revising paragraph (h)(1)(ii);
■ q. Revising paragraph (i);
■ r. Revising paragraph (j); and
■ s. Revising paragraph (k).
The revisions read as follows:
252.227–7037 Validation of Asserted
Restrictions on Technical Data.
As prescribed in 227.7102–4(e),
227.7103–6(e)(3), 227.7104(e)(5), or
227.7203–6(f), use the following clause:
VALIDATION OF ASSERTED
RESTRICTIONS ON TECHNICAL
DATA (DATE)
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*
*
*
*
*
(c) Justification. The Contractor or
subcontractor at any tier is responsible
for maintaining records sufficient to
justify the validity of its asserted
restrictions on the rights of the
Government and others to use,
duplicate, release or disclose technical
data delivered; required to be delivered,
or otherwise provided to the
Government under the contract or
subcontract. Except as provided in
paragraph (b)(1) of this clause, the
Contractor or subcontractor shall be
prepared to furnish to the Contracting
Officer a written justification for such
asserted restrictions in response to a
challenge under paragraph (e) of this
clause.
(d) * * *
(1) The Contracting Officer may
request the Contractor or subcontractor
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to furnish a written explanation for any
asserted restriction on the right of the
United States or others to use, disclose,
or release technical data, or an assertion
under paragraph (c) of DFARS 252.227–
7029, Deferred Ordering of Technical
Data or Computer Software. If, upon
review of the explanation submitted, the
Contracting Officer remains unable to
ascertain the basis of the asserted
restriction, the Contracting Officer may
further request the Contractor or
subcontractor to furnish additional
information in the records of, or
otherwise in the possession of or
reasonably available to, the Contractor
or subcontractor to justify the validity of
any asserted restriction on technical
data delivered, to be delivered, or
otherwise provided to the Government
under the contract or subcontract (e.g.,
a statement of facts accompanied with
supporting documentation). The
Contractor or subcontractor shall submit
such written data as requested by the
Contracting Officer within the time
required or such longer period as may
be mutually agreed.
(2) If the Contracting Officer, after
reviewing the written data furnished
pursuant to paragraph (d)(1) of this
clause, or any other available
information pertaining to the validity of
an asserted restriction, determines that
reasonable grounds exist to question the
current validity of the asserted
restriction and that continued
adherence to the asserted restriction
would make impracticable the
subsequent competitive acquisition of
the item or process to which the
technical data relates, the Contracting
Officer shall follow the procedures in
paragraph (e) of this clause.
*
*
*
*
*
(e) * * *
(1) Notwithstanding any provision of
this contract concerning inspection and
acceptance, if the Contracting Officer
determines that a challenge to the
asserted restriction is warranted, the
Contracting Officer shall send a written
challenge notice to the Contractor or
subcontractor making the asserted
restriction. Such challenge shall—
*
*
*
*
*
(iii) State that a DoD Contracting
Officer’s final decision, issued pursuant
to paragraph (g) of this clause,
sustaining the validity of a prior
asserted restriction identical to the
current asserted restriction, within the
3-year period preceding the current
challenge, shall serve as justification for
the current asserted restriction if the
prior validated restriction was asserted
by the same Contractor or subcontractor
(or any licensee of such Contractor or
PO 00000
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Fmt 4701
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subcontractor) to which such notice is
being provided; and
*
*
*
*
*
(g) * * *
(2) * * *
(ii) The Government agrees that it will
continue to be bound by the asserted
restriction for a period of 90 days from
the issuance of the Contracting Officer’s
final decision under paragraph (g)(2)(i)
of this clause. The Contractor or
subcontractor agrees that, if it intends to
file suit in the United States Claims
Court it will provide a notice of intent
to file suit to the Contracting Officer
within 90 days from the issuance of the
Contracting Officer’s final decision
under paragraph (g)(2)(i) of this clause.
If the Contractor or subcontractor fails to
appeal, file suit, or provide a notice of
intent to file suit to the Contracting
Officer within the 90-day period, the
Government may cancel or ignore the
restrictive markings supported by the
asserted restriction, or may require
delivery of the technical data or
computer software covered by the
asserted restriction pursuant to DFARS
252.227–7029, Deferred Ordering of
Technical Data or Computer Software,
and the failure of the Contractor or
subcontractor to take the required action
constitutes agreement with such
Government action.
(iii) The Government agrees that it
will continue to be bound by the
asserted restriction where a notice of
intent to file suit in the United States
Claims Court is provided to the
Contracting Officer within 90 days from
the issuance of the final decision under
paragraph (g)(2)(i) of this clause. The
Government will no longer be bound,
and the Contractor or subcontractor
agrees that the Government may strike
or ignore the restrictive markings
supported by the asserted restrictions, if
the Contractor or subcontractor fails to
file its suit within 1 year after issuance
of the final decision. Notwithstanding
the foregoing, where the head of an
agency determines, on a nondelegable
basis, that urgent or compelling
circumstances will not permit waiting
for the filing of a suit in the United
States Claims Court, the Contractor or
subcontractor agrees that the agency
may, following notice to the Contractor
or subcontractor, authorize release or
disclosure of the technical data. Such
agency determination may be made at
any time after issuance of the final
decision and will not affect the
Contractor’s or subcontractor’s right to
damages against the United States
where its asserted restrictions are
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asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
ultimately upheld or to pursue other
relief, if any, as may be provided by law.
*
*
*
*
*
(h) * * *
(1) * * *
(ii) If the asserted restriction is found
not to be substantially justified, the
Contractor or subcontractor, as
appropriate, shall be liable to the
Government for payment of the cost to
the Government of reviewing the
asserted restriction supporting the
restrictive marking and the fees and
other expenses (as defined in 28 U.S.C.
2412(d)(2)(A)) incurred by the
Government in challenging the asserted
restriction supporting the restrictive
marking, unless special circumstances
would make such payment unjust.
*
*
*
*
*
(i) Duration of right to challenge. The
Government may review the validity of
any restriction on technical data,
delivered, to be delivered, or otherwise
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provided to the Government under a
contract, asserted by the Contractor or
subcontractor. During the period within
6 years of final payment on a contract
or within 6 years of delivery of the
technical data to the Government,
whichever is later, the Contracting
Officer may review and make a written
determination to challenge the asserted
restriction. The Government may,
however, challenge an asserted
restriction on the release, disclosure or
use of technical data at any time if such
technical data—
(1) Are publicly available;
(2) Have been furnished to the United
States without restriction;
(3) Have been otherwise made
available without restriction; or
(4) Are the subject of a fraudulently
asserted use or release restriction.
(j) Decision not to challenge. A
decision by the Government, or a
determination by the Contracting
PO 00000
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39503
Officer, to not challenge the asserted
restriction supporting a restrictive
marking shall not constitute
‘‘validation.’’ Only the Contracting
Officer’s final decision or actions of an
agency Board of Contract Appeals or a
court of competent jurisdiction that
sustains the validity of an asserted
restriction constitute validation of the
restriction.
(k) Privity of contract. The Contractor
or subcontractor agrees that the
Contracting Officer may transact matters
under this clause directly with
subcontractors at any tier that assert
restrictions on the right of the United
States or others to use, disclose or
release technical data. However, this
clause neither creates nor implies
privity of contract between the
Government and subcontractors.
*
*
*
*
*
[FR Doc. 2016–14266 Filed 6–15–16; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 81, Number 116 (Thursday, June 16, 2016)]
[Proposed Rules]
[Pages 39481-39503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14266]
[[Page 39481]]
Vol. 81
Thursday,
No. 116
June 16, 2016
Part V
Department of Defense
-----------------------------------------------------------------------
Defense Acquisition Regulations System
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48 CFR Parts 212, 227, and 252
Defense Federal Acquisition Regulation Supplement: Rights in Technical
Data and Validation of Proprietary Data Restrictions (DFARS Case 2012-
D022); Proposed Rule
Federal Register / Vol. 81 , No. 116 / Thursday, June 16, 2016 /
Proposed Rules
[[Page 39482]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227, and 252
[Docket DARS-2016-0017]
RIN 0750-AI95
Defense Federal Acquisition Regulation Supplement: Rights in
Technical Data and Validation of Proprietary Data Restrictions (DFARS
Case 2012-D022)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act for Fiscal Year 2012 that revises the
sections of title 10 of the United States Code (U.S.C.) that address
technical data rights and validation of proprietary data restrictions.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before September 14, 2016, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2012-D022, using
any of the following methods:
[cir] Regulations.gov: https://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2012-D022''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2012-D022.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2012-D022'' on your attached document.
[cir] Email: osd.dfars@mail.mil. Include DFARS Case 2012-D022 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement section 815 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2012, which--
Adds special provisions for handling technical data that
are necessary for segregation and reintegration activities;
Codifies and revises the policies and procedures regarding
deferred ordering of technical data necessary to support DoD major
systems or subsystems, weapon systems, or noncommercial items or
processes;
Expands the period in which DoD can challenge an asserted
restriction on technical data from 3 years to 6 years;
Rescinds changes to 10 U.S.C. 2320 from the NDAA for FY
2011; and
Codifies Government purpose rights as the default rights
for technical data related to technology developed with mixed funding.
In accordance with the statutory changes, this rule provides better
clarity, extended time periods, and enhanced rights for the Government
to require delivery of (including through deferred ordering), and to
assert rights in, technical data and computer software that are
developed in whole or in part with Government funding or that are
needed for segregation and reintegration activities, including under
commercial items authorities. The rule also provides extended time
periods and enhanced rights for the Government to challenge proprietary
data legends and markings in order to enable competitive follow-on
acquisitions for Government-funded items or processes. However, the
rule affirmatively states that there is no requirement in the revised
deferred ordering scheme for the contractor to retain the technical
data or computer software beyond a reasonable time. While the
anticipated costs associated with this rule are not quantifiable in
dollar amounts, DoD anticipates that any such impact will be outweighed
by the expected benefits of this rule.
II. Discussion and Analysis
A. Scope of the New Requirements--Applicability to Computer Software
and to Commercial Technologies
Section 815 revised 10 U.S.C. 2320 and 2321, which cover only
technical data (both commercial technical data and noncommercial
technical data), and do not expressly cover computer software, which is
expressly excluded from the definition of ``technical data.'' However,
it is longstanding Federal and DoD policy and practice to apply the
same or analogous requirements to computer software. Many issues are
common to both technical data and computer software. Accordingly,
conformity of coverage between technical data and computer software is
desirable.
Further, it is also longstanding policy and practice to recognize
that acquisition of technical data or computer software that is, or is
related to, commercial technologies involves special considerations
that may require adaptation of the policies and practices otherwise
applicable to noncommercial technologies. For example, the DFARS
coverage for commercial technical data at 227.7102 implements the
statutory requirements as applicable to commercial technical data, but
otherwise follows the overarching Federal and DoD policy for
acquisition of commercial technical data and commercial computer
software: That the Government will generally acquire the same
deliverables, and the same associated license rights, that are
customarily provided to the public, as long as those customary
practices are consistent with Federal law and satisfy the agency's
needs. For commercial computer software, the DFARS implementation at
227.7202 is even more closely aligned with that overarching policy, and
minimizes the extension of DoD-specific requirements derived from the
technical data statutes to only a few limited principles, such as
allowing DoD to require delivery of computer software documenting
modifications made at Government expense to meet the requirements of a
Government solicitation (see 227.7202-1(c)(1)).
Accordingly, the implementation of these new statutory authorities
also follows these general guidelines, applying and adapting the
technical data-specific statutory revisions to computer software as
appropriate. The specific determinations regarding such applicability
and adaptations are discussed on a case-by-case basis throughout this
preamble.
B. Segregation or Reintegration Data
Section 815(a)(1) amended 10 U.S.C. 2320(a)(2)(D)(i) to add a new
(fourth) exception to the restriction on sharing outside of DoD any
technical data relating to an item or process developed exclusively at
private expense. The new exception is framed in the same manner
[[Page 39483]]
as the three other preexisting exceptions: They are defined by a
specific activity or purpose for which the release is necessary (10
U.S.C. 2320(a)(2)(D)(i)(I)-(IV)); the recipient must be subject to a
prohibition on any further use or release of the information (10 U.S.C.
2320(a)(2)(D)(ii)); and the person asserting restrictions on the
technical data (hereafter ``the data owner'') must be notified of the
release or use (10 U.S.C. 2320(a)(2)(D)(iii)). The new exception covers
a new purpose or activity, when the release or use ``is necessary for
the segregation of an item or process from, or the reintegration of
that item or process (or a physically or functionally equivalent item
or process) with, other items or processes.''
C. Approach to Implementation
In the case of technical data, the mandatory statutory revisions
are inserted into the baseline DFARS coverage where the rest of the
statutory scheme has been implemented. More specifically, revisions are
inserted in the context of commercial technical data at DFARS 227.7102-
2, and associated clause at 252.227-7015(b)(2)(ii); and for
noncommercial technical data in the context of limited rights, as
described at DFARS 227.7103-5(c)(2), and defined at DFARS 252.227-
7013(a)(14) and 252.227-7018(a)(15).
Regarding computer software, the statutory scheme recognizing
certain limited exceptions to the restriction on disclosure of
information outside the Government has been extended to noncommercial
computer software in the context of the restricted rights, defined at
DFARS 252.227-7014(a)(15). Accordingly, the new exception authorizing
releases for segregation and reintegration activities has been applied
to noncommercial computer software by revising the definition of
``restricted rights.'' Adding this additional exception also provided
an opportunity to clarify and streamline the existing baseline list of
such exceptions that have been added to restricted rights over the
years, and during that process the definition had become unnecessarily
long and complex. The definition of ``restricted rights'' has thus been
clarified and streamlined, with all of the special circumstances in
which releases outside the Government are authorized now consolidated
under subparagraph (v)(A), while retaining all of the substantive and
procedural protections for each such circumstance at subparagraphs
(v)(B) through (v)(E).
In order to streamline the regulations, DoD defined a new term
``segregation or reintegration data'' to mean data that otherwise meets
all of the statutory criteria (see the definition at DFARS 227.001, and
in paragraph (a) of the associated clauses at 252.227-7013, -7014, -
7015, -7018, and new -7029(a)). Creating such a defined term also
allows the DFARS implementation to proactively address a major concern
expressed by industry and academia in various forums after the
enactment of section 815; namely, that the new statutory scheme does
not provide a definition for the new concept of data necessary for
segregation or reintegration, and thus there is likely to be widespread
confusion, uneven and inconsistent interpretations, and potential for
disagreement, if the DFARS implementation does not provide additional
clarity. More specifically, it is unclear how such segregation or
reintegration data relates to the ``form, fit, and function data,''
which would appear to cover already the vast majority of data that
would be necessary for segregation or reintegration activities, with at
least one critical difference: The Government is entitled to unlimited
rights in form, fit, and function data, while section 815 clearly
contemplates that segregation or reintegration data could be subject to
limited rights, which is completely at the other end of the data rights
spectrum from segregation or reintegration unlimited rights.
Accordingly, establishing a definition for the term ``segregation or
reintegration data'' allows the DFARS implementation to provide
additional definitional criteria and clarifying guidance to address
these concerns.
To achieve these objectives, the proposed definition for the new
term ``segregation or reintegration data'' should both (1) incorporate
all of the statutory criteria, and (2) supplement the statutory
criteria with additional guidance to ensure clarity and consistency.
The first objective is satisfied by incorporating the statutory
performance-based language as the core of the primary definitional
statement (i.e., ``segregation or reintegration data'' means . . .
``(insert statutory criteria).'')
Regarding the supplementary definitional language needed to address
the concerns raised by industry and academia, the proposed definition
leverages existing DFARS definitional approaches, terminology, and
clarifying language to harmonize the new term with the existing DFARS
scheme. First, as previously noted, it is important to identify and
clarify how the new term, segregation or reintegration data, relates to
the established definition for ``form, fit, and function data.'' In
addition, DoD understands that part of the underlying concern that led
to the statutory creation of the concept of segregation or
reintegration data was based on a number of situations in which DoD and
contractors faced challenges in finding mutual agreement regarding what
type of data is appropriately characterized as being form, fit, and
function data (e.g., the level of technical detail that is required and
appropriate). These challenges are exacerbated in situations in which
the underlying item or process being described by the form, fit, and
function data has been developed exclusively at private expense and is
thus treated as proprietary technology by the contractor (e.g., a
contractor is less willing to share detailed technical information
regarding a privately developed technology, especially when the
Government will be granted unlimited rights in that data, which can
then be released openly to the public).
To address this foundational issue, DoD compared the statutory
language describing segregation or reintegration data with the existing
regulatory definition of ``form, fit, and function data.'' In doing so,
it is important to note that the Federal Acquisition Regulation (FAR)
and DFARS each define ``form, fit, and function data,'' but use
different definitions. Although the majority of the definitions may be
objectively similar or consistent (e.g., focusing on physical,
functional, and performance characteristics to support the
interchangeability of items or processes), there is a key distinction
between the definitions: The FAR definition (see FAR 52.227-14(a))
covers data relating to computer software, where the DFARS definition
refers only to technical data relating to items or processes. The basis
for this distinction is not readily apparent, e.g., to define a generic
data type that describes the functional or performance characteristics
of an item or process at a low level of detail, there may be no reason
to exclude data because the underlying item or process is implemented
by computer software, rather than hardware alone. Furthermore, it is
not clear what result would or should be achieved under the DFARS
definition if the item or process being described is comprised of a
combination of hardware and software elements. Perhaps this is part of
the reason for the challenges in applying the DFARS definition.
After careful consideration, the proposed rule amends the DFARS
definition of ``form, fit, and function data'' to harmonize more
effectively and predictably with the FAR definition (e.g., covering
computer software as well as technical data), including by
incorporating express limitations that will more clearly address any
concern
[[Page 39484]]
that form, fit, and function data could be extended to cover data or
software that includes such a degree of technical detail that it is not
appropriate to be treated as form, fit, and function data that will be
subject to unlimited rights (e.g., the revised definition expressly
excludes ``computer software source code, or detailed manufacturing or
process data''). See DFARS 227.001, and associated clauses at 252.227-
7013(a), -7014(a), -7015(a), -7018(a), and new -7029(a).
Next, building on this clarified and harmonized definition of
``form, fit, and function data,'' the definition of ``segregation or
reintegration data'' then incorporates a series of additional elements
to address the concerns previously identified:
1. Relation to form, fit, and function data. The definition
expressly states that segregation or reintegration data is data that is
``more detailed than form, fit, and function data'' but otherwise meets
the statutory criteria, and cites by way of example such data that
describes the physical, logical, or operational interface or similar
functional relationship between items or components.
2. Objective Standard for Level of Detail Required. The definition
expressly states that, unless mutually agreed otherwise by the parties,
the level of detail necessary to support the segregation or
reintegration activities will be determined by an objective standard--
that required for ``persons reasonably skilled in the art.'' This
objective standard is modeled after the well-established objective
standards used for the term ``developed'' at baseline DFARS 252.227-
7013(a)(7), and -7014(a)(7).
3. Segregation/Reintegration at Any Practical Level. The definition
recognizes that the segregation or reintegration of an item or process
is permitted to be performed at ``any practical level, including down
to the lowest practical level. . . .'' This terminology (and the
additional examples included in the definition) is adapted from the
baseline DFARS coverage regarding the segregation of items or processes
for the determination of source of funding for development (i.e., ``the
doctrine of segregability''), and the definition of ``developed
exclusively at private expense'' (see baseline DFARS 227.7103-4(b),
227.7203-4(b), 252.227-7013(a)(8)(i), and -7014(a)(8)(i)).
4. Detailed manufacturing or process data and source code. The
definition also recognizes expressly that the application of the
definitional elements would not typically require detailed
manufacturing or process data or source code, but they may be included.
D. Deferred Ordering
Section 815 also added new paragraph (b)(9) to 10 U.S.C. 2320,
which provides that the Government shall have the post-contract-award
right to order technical data under certain conditions. Although such a
``deferred ordering'' right has been recognized in the DFARS for
decades, section 815 was the first time that such a right has been
expressly addressed in the statutory coverage. The baseline DFARS
coverage for deferred ordering at 227.7103-8(b), 227.7203-8(b), and
associated clause 252.227-7027, was used as the point of departure for
implementing the new statutory scheme. However, to avoid any potential
confusion, the baseline clause number (DFARS 252.227-7027) is being
reserved, and the new statutorily based deferred ordering framework is
implemented at the next available DFARS clause number, 252.227-7029.
The new statutory deferred ordering scheme is codified at 10 U.S.C.
2320(b)(9), amongst a list of elements that are required to be included
in the DFARS ``whenever practicable.'' The new statutory framework also
states that the Government may place a deferred order ``at any time,''
provided that certain conditions are met (e.g., covering only certain
types of data, and the Government must make a required determination
that additional criteria are met in each case). Accordingly, the clause
implementing the new statutory deferred ordering scheme is deemed to be
required in all contracts for which the deferred ordering criteria
could be met. The clause should therefore be prescribed in all
contracts except those in which it would be per se impracticable to
meet the statutory criteria. To avoid scenarios in which the clause
criteria could be met, but the clause would not have been included up-
front, the clause is prescribed for use in all solicitations and
contracts using other than FAR part 12 procedures and in those using
FAR part 12 procedures for the acquisition of commercial items that are
being acquired for (i) a major system or subsystem thereof, or (ii) a
weapon system or subsystem thereof. See DFARS 227.7102-4(d), 227.7103-
8(c)(2), 227.7104(e)(4), 227.7202-4(c), and 227.7203-8(c)(2); see also
new 212.301(f)(xi)(D).
The new DFARS clause at 252.227-7029 is structured to implement the
statutory scheme's set of criteria that must be met in order for the
Government to place a deferred order--
1. The data must have been ``generated or utilized'' in the
performance of a contract or subcontract;
2. The Government must determine that the data is needed for an
important sustainment or other life cycle support activity for a DoD
system; and
3. The Government must determine that the data either--
a. Result from development activities funded in whole or in part by
the Government; or
b. Is segregation or reintegration data.
DFARS 252.227-7029(a), in addition to the new or revised
definitions discussed above, provides a new definition for a phrase
that is used only in this clause, i.e., ``technical data or computer
software generated or utilized in the performance of this contract or
any subcontract hereunder.'' The term includes a series of subelements
that are intended to provide clarity and predictability in interpreting
whether this criterion is met, with inclusive, and exclusive,
statements.
DFARS 252.227-7029(b) implements the new statutory requirements (10
U.S.C. 2320(b)(9)(A) and (B)) for the Government to determine that
certain criteria are satisfied, as a prerequisite to making a deferred
order. However, DoD also concluded that it was unlikely that the
legislative intent was to completely preclude the Government from
having any form of deferred ordering right in basic or applied research
contracts where it would be unlikely that the Government could make one
of the otherwise-required determinations, i.e., that the technical
information is needed for sustainment of a major system, weapon system,
or noncommercial item (see 252.227-7029(b)(1)(i)). Accordingly, the
requirement for those specific elements of a determination are waived
for basic or applied research activities (see 252.227-7029(b)(2), when
the nature of the contract is such that it is likely to be
impracticable to require such a determination, but the circumstances
are still directly related to a core objective of the statutory scheme
(e.g., to ensure that the Government has access to data related to
development funded in whole or in part by the Government)).
DFARS 252.227-7029(c) addresses assertions by the contractor that
technical data or computer software pertains to an item or process
developed exclusively at private expense. To the extent that disputes
might arise regarding the Government's determination that the data
related to technologies developed in whole or in part at Government
expense, those disputes will be governed by the existing procedures
governing the validation of asserted restrictions based
[[Page 39485]]
on the source of development funding. Any other dispute arising under
the clause will be governed by the applicable disputes clause of the
contract.
DFARS 252.227-7029(d) clarifies that the obligation to deliver data
to the Government under an appropriate deferred order is not intended
to create an implied obligation to preserve data in cases when it would
otherwise be unreasonable to do so. However, this also is not intended
to preclude any individual contract from including a requirement to
preserve any such data for a specified period.
DFARS 252.227-7029(e) implements the statutory limitation on
compensation for the contractor's compliance with an appropriate
deferred order.
DFARS 252.227-7029(f) preserves and clarifies the long standing
rule, which is not affected by the statutory changes, that the
Government's rights in the technical data or computer software that are
subject to a deferred order are determined in accordance with the
applicable rights-allocation clauses in the contract (i.e., the license
rights are unrelated to whether the requirement for delivery was
established through deferred ordering, through a delivery requirement
included in the contract at award, or in any other manner for that
matter).
DFARS 252.227-7029(g) clarifies that the deferred ordering clause
is not intended to limit or affect in any way the ability for the
Government to order through other authorized mechanisms, such as mutual
agreement, or bilateral or unilateral modification of the contract.
DFARS 252.227-7029(h) implements the statutory language (at 10
U.S.C. 2320(b)(10)) that clarifies that the Government's ability to
require delivery of technical data or computer software is not affected
by whether the Government exercises its rights to validate asserted
restrictions on such technical data or computer software.
DFARS 252.227-7029(i) clarifies that the parties' rights and
obligations established in the clause will survive the end of the
contract.
DFARS 252.227-7029(j) requires the clause to be flowed down to
lower tier subcontracts in the same manner as the clause is prescribed
for use in the prime contract.
Given that segregation or reintegration data is eligible for
deferred ordering, the regulation must also recognize that such data is
available for ordering up-front. References to segregation or
reintegration data are therefore included at DFARS 227.7102-1(a)(2),
227.7103-2(b), 227.7202-1(c)(1) and -3(b)(1), and 227.7203-2(b)(1).
E. Validation of Asserted Restrictions
There are two primary changes required by the revisions to 10
U.S.C. 2321:
1. The standard duration of the Government's right to challenge the
validity of an asserted restriction is extended to 6 years, rather than
the current 3 years (see revised DFARS 252.227-7037(i)); and
2. For technical data that are the subject of fraudulently asserted
restrictions, there is no time limit on the right to challenge asserted
restrictions (see new DFARS 252.227-7037(i)(4)).
Equivalent revisions were also made to the procedures governing
validation of asserted restrictions on computer software pursuant to
the DFARS clause 252.227-7019 (see revised paragraph 252.227-
7019(e)(1), and new paragraph 252.227-7019(e)(1)(D)). The new
paragraphs 252.227-7019(e)(1)(A)-(C) are merely a relocation of those
elements, which are embedded within paragraph (e)(1) in the baseline.
This nonsubstantive revision is intended to clarify these exceptions to
the standard 6 year limit using a preferred paragraph structure
analogous to that in the baseline at DFARS 252.227-7037(i)(1) through
(3).
F. Additional Technical Amendments
Restructured the paragraphs in the definition of
``restricted rights'' regarding authorized release/use outside the
Government--to streamline, eliminate redundancy/complexity, without
substantive changes--other than the incorporation of segregation or
reintegration data.
Corrected references to Small Business Innovation Research
(SBIR) data in the standard use and non-disclosure agreement at DFARS
227.7103-7, to conform to changes previously made to the DFARS clause
252.227-7025, to recognize that SBIR data is restricted and handled in
a manner equivalent to limited rights technical data and/or restricted
rights computer software.
Clarified the prescribed use of the standard use and non-
disclosure agreement and DFARS 252.227-7025: the clause is used in
contracts (and not the standard use and non-disclosure agreement), and
the standard use and non-disclosure agreement is used for authorized
release in any/every other situation other than under a procurement
contract.
Clarified in DFARS clause 252.227-7025 (see new paragraphs
(b)(1)(ii) for limited rights/restricted rights/Small Business
Innovation Research (SBIR), and (b)(4)(ii) for commercial) and standard
use and non-disclosure agreement, and related up-front coverage (e.g.,
DFARS 227.7103-5(c)(3), note no equivalent discussion of notice/timing
for restricted rights at DFARS 227.7203-5(c)) the timing for mandatory
notice to the technical data/computer software owner, recognizing that
there are three different time frames (although only 2 relevant to
standard use and non-disclosure agreement, which cannot be used for a
covered Government support contractor), depending on the circumstances
of the release--
1. Prior to the release, except as noted in 2. and 3.;
2. As soon as practicable, but not more than 30 days after release
to a covered Government support contractor (this is not new, already in
baseline DFARS 252.227-7025(b)(5)(iii); but not applicable to standard
use and non-disclosure agreement); and
3. As soon as practicable, in cases of emergency repair or
overhaul.
Added an affirmative obligation for the recipient of
limited rights/restricted rights/SBIR or commercial data to either
destroy the data, or to return to the Government (at the Government's
discretion), after completion of the authorized activity. See DFARS
252.227-7025(b)(1)(iii) and (b)(4)(iii).
Clarified in standard use and non-disclosure agreement and
DFARS 252.227-7025 that the recipient of limited rights/restricted
rights/SBIR, and commercial data, can use the data only as authorized--
(i) in the attachment to the standard use and non-disclosure agreement;
and (ii) in performance of the contract and only for activities that
are authorized by the relevant license rights (e.g., emergency repair
or overhaul, segregation or reintegration data, or covered Government
support contractor).
Clarified that the obligations of the parties regarding
use/handling of technical data/computer software in the DFARS 252.227-
7025 clause, and regarding deferred ordering in the DFARS 252.227-7029
clause, survive the termination, expiration, or completion of the
contract. See revisions at DFARS 252.227-7025(e) and 252.227-7029(i).
Revised DFARS 252.227-7037(j) to include a sentence
relocated from end of 252.227-7037(i)(3), where it appears to have been
misplaced, as the topic (the criteria for what constitutes a
``validation'') is more appropriately aligned with (j).
Revised DFARS 252.227-7019 and 252.227-7037 throughout to
be consistent when referring to the
[[Page 39486]]
validation of ``asserted restrictions'' (nomenclature currently
dominating 252.227-7019, and also used in 10 U.S.C. 2321, although
252.227-7037 used a mix of referring to validating the asserted
restrictions and validating the restrictive markings in other cases),
as distinguished from specific procedures that are directed to the
associated restrictive markings. No substantive change is intended,
just consistent use of the nomenclature. See revisions at 252.227-7019;
and 252.227-7037(c), (d)(1) through (3).
Amended DFARS 252.227-7019 and 252.227-7037 to clarify
that disputes under new 252.227-7029(c) are handled under the
validation procedures in those clauses.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This rule creates one new DFARS clause 252.227-7029, Deferred
Ordering of Technical Data or Computer Software, to implement 10 U.S.C.
2320(b)(9) and (10), which DoD is proposing to apply to contracts at or
below the SAT, and sometimes to the acquisition of commercial items
(including COTS items), but not contracts solely for commercial items
(including COTS items) unless acquiring for a major system or subsystem
thereof or a weapon system or subsystem thereof.
10 U.S.C. 2320 and 2321 have established the applicability of
rights in technical data and validity of proprietary data restrictions
to noncommercial technical data and commercial technical data. It is
longstanding Federal and DoD policy and practice to apply the same or
analogous requirements to computer software.
This proposed rule also modifies existing provisions and clauses
that implement 10 U.S.C. 2320 and 2321, or provide analogous treatment
of computer software, but does not modify the applicability of these
provisions and clause to contracts at or below the SAT or contracts for
the acquisition of commercial items, including COTS items.
------------------------------------------------------------------------
Applies to
Applies below the commercial items
DFARS clause SAT (including COTS
items)
------------------------------------------------------------------------
252.227-7013, Rights in YES............... Sometimes, only if
Technical Data--Noncommercial a portion of the
Items. commercial item
was developed at
Government
expense.
252.227-7014, Rights in YES............... NO.
Noncommercial Computer Software
and Noncommercial Computer
Software Documentation.
252.227-7015, Technical Data-- YES............... YES.
Commercial items.
252.227-7018, Rights in YES............... NO.
Noncommercial Technical Data
and Computer Software--Small
Business Innovation Research
(SBIR) Program.
252.227-7019, Validation and NO................ NO.
Asserted Restrictions--Computer
Software.
252.227-7025, Limitations on the YES............... YES.
Use or Disclosure of Government-
Furnished Information Marked
with Restrictive Legends.
252.227-7037, Validation of YES............... YES.
Asserted Restrictions on
Technical Data.
------------------------------------------------------------------------
A. Applicability to Contracts at or Below the SAT
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 41
U.S.C. 1905 provides that if a provision of law contains criminal or
civil penalties, or if the FAR Council makes a written determination
that it is not in the best interest of the Federal Government to exempt
contracts or subcontracts at or below the SAT, the law will apply to
them. The Director, Defense Procurement and Acquisition Policy (DPAP),
is the appropriate authority to make comparable determinations for
regulations to be published in the DFARS, which is part of the FAR
system of regulations.
DoD is proposing to apply the requirements of 10 U.S.C. 2320(b)(9)
and (10) in the new clause 252.227-7019 to contracts and subcontracts
at or below the SAT, but will make the final determination after
receipt and analysis of public comments.
B. Applicability to Contracts for the Acquisition of Commercial Items,
Including COTS Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. 41 U.S.C. 1906 provides that if a provision of law contains
criminal or civil penalties, or if the FAR Council makes a written
determination that it is not in the best interest of the Federal
Government to exempt commercial item contracts, the provision of law
will apply to contracts for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS
items, with the Administrator for Federal Procurement Policy as the
decision authority to determine that it is in the best interest of the
Government to apply a provision of law to acquisitions of COTS items in
the FAR. The Director, DPAP, is the appropriate authority to make
comparable determinations for regulations to be published in the DFARS,
which is part of the FAR system of regulations.
Section 815 has added a new statutory requirement at 10 U.S.C.
2320(b), paragraphs (9) and (10), with regard to deferred ordering of
technical data. As amended, 10 U.S.C. 2320(b)(9)(A) specifies that one
of the criteria for the right of the Government to require the delivery
of technical data at any time is whether the technical data is needed
for the purpose of reprocurement, sustainment, modification, or upgrade
of a major system or subsystem thereof, a weapon system or subsystem
thereof, or any noncommercial item or process. Consistent with the
statutory requirements, DoD is proposing to prescribe the new clause
that implements 10 U.S.C. 2320(b)(9) and (10) for use in solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items that are being acquired for (i) a major system or
subsystem thereof, or (ii) a weapon system or subsystem thereof. DoD
will make the final determination with regard to application to
commercial items after receipt and analysis of public comments.
[[Page 39487]]
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
V. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
However, an initial regulatory flexibility analysis (IRFA) has been
performed and is summarized as follows:
This proposed rule was initiated to implement section 815 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016
(Pub. L. 114-92) that revised 10 U.S.C. 2320 and 2321. Section 815 of
the NDAA for FY 2012--
Adds special provisions for handling technical data that
is necessary for segregation and reintegration activities;
Codifies and revises the policies and procedures regarding
deferred ordering of technical data;
Expands the period in which DoD can challenge an asserted
restriction on technical data from 3 years to 6 years;
Rescinds changes to 10 U.S.C. 2320 from the NDAA for FY
2011; and
Codifies Government purpose rights as the default rights
for technical data related to technology developed with mixed funding.
Based on FY 2015 Federal Procurement Data System data, DoD
estimates that 60,400 offerors, contractors, and subcontractors may be
impacted by the proposed changes in this rule, of which approximately
40,500 (67 percent) may be small entities.
The provisions and clauses that are proposed to be amended by this
rule are covered by OMB Clearance 0704-0368, which is currently being
renewed for a total of 941,528 response hours (75,250 respondents) and
90,600 recordkeeping hours (60,400 recordkeepers). However, the changes
in this rule are expected to have negligible impact on the burdens
already covered by the OMB clearance.
The proposed rule does not duplicate, overlap, or conflict with any
other Federal rules.
DoD was unable to identify any alternatives that would meet the
requirements of the statute and reduce the burden on small entities.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D022), in
correspondence.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply to
this rule; however, these changes to the DFARS do not impose additional
information collection requirements to the paperwork burden previously
approved under OMB Control Number 0704-0369, entitled ``DFARS: Subparts
227.71, Rights in Technical Data; and Subpart 227.72, Rights in
Computer Software and Computer Software Documentation, and related
provisions and clauses of the Defense Federal Acquisition Regulation
Supplement (DFARS).''
List of Subjects in 48 CFR Parts 212, 227, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 227, and 252 are proposed to be
amended as follows;
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
1. The authority citation for parts 212, 227, and 252 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 by--
0
a. In paragraph (f)(xii)(A), removing ``227.7103-6(a)'' and adding
``227.7103-6(a), to comply with 10 U.S.C. 2320'' in its place;
0
b. Redesignating (f)(xii)(C) as (f)(xii)(E);
0
c. Adding paragraphs (f)(xii)(C) and (D); and
0
d. In newly redesignated paragraph (f)(xii)(E), removing ``227.7102-
4(c)'' and adding ``227.7102-4(e)'' in its place; The additions read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(xii) * * *
(C) Use the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information with Restrictive Legends
or Markings, as prescribed in 227.7102-4(c) or 227.7202-4(b), to comply
with 10 U.S.C. 2320.
(D) Use the clause at 252.227-7029, Deferred Ordering of Technical
Data or Computer Software, as prescribed in 227.7102-4(d), 227.7103-
8(c)(2), 227.7202-4(c), or 227.7203-8(c)(2), to comply with 10 U.S.C.
2320(b)(9).
* * * * *
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
3. Add section 227.001 preceding subpart 227.3 to read as follows:
227.001 Definitions.
As used in this part--
Computer database means a collection of recorded data in a form
capable of being processed by a computer. The term does not include
computer software.
Computer program means a set of instructions, rules, or routines
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, recreated, or recompiled. Computer software
does not include computer databases or computer software documentation.
Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
Covered Government support contractor means a contractor (other
than a litigation support contractor covered by the clause at DFARS
252.204-7014, Limitations on the Use or Disclosure of Information by
Litigation
[[Page 39488]]
Support Contractors) under a contract, the primary purpose of which is
to furnish independent and impartial advice or technical assistance
directly to the Government in support of the Government's management
and oversight of a program or effort (rather than to directly furnish
an end item or service to accomplish a program or effort), provided
that the contractor--
(1) Is not affiliated with the prime contractor or a first-tier
subcontractor on the program or effort, or with any direct competitor
of such prime contractor or any such first-tier subcontractor in
furnishing end items or services of the type developed or produced on
the program or effort; and
(2) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at DFARS
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Legends or Markings.
Developed is defined at 227.7101 for technical data and at 227.7201
for computer software and computer software documentation.
Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a Government contract, or any combination thereof.
(1) Private expense determinations should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at Government,
private, or mixed expense.
Developed exclusively with Government funds means development was
not accomplished exclusively or partially at private expense.
Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a Government contract, and partially with costs charged
directly to a Government contract.
Form, fit, and function data means technical data or computer
software that describes the required overall physical, logical,
configuration, mating, attachment, interface, functional, and
performance characteristics (along with the qualification requirements,
if applicable) of an item or process to the extent necessary to permit
identification of physically or functionally equivalent items or
processes. The term does not include computer software source code, or
detailed manufacturing or process data.
Government purpose and Government purpose rights are defined at
227.7101 for technical data and at 227.7201 for computer software and
computer software documentation.
Segregation or reintegration data means technical data or computer
software that is more detailed than form, fit, and function data and
that is necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes.
(1) Unless agreed otherwise by the Government and the contractor,
the nature, quality, and level of technical detail necessary for these
data or software shall be that required for persons reasonably skilled
in the art to perform such segregation or reintegration activities.
(2) The segregation or reintegration of any such an item or process
may be performed at any practical level, including down to the lowest
practicable segregable level, e.g., a subitem or subcomponent level, or
any segregable portion of a process, computer software (e.g., a
software subroutine that performs a specific function), or
documentation.
(3) The term--
(i) Includes data or software that describes in more detail (than
form, fit, and function data) the physical, logical, or operational
interface or similar functional interrelationship between the items or
processes; and
(ii) May include, but would not typically require, detailed
manufacturing or process data or computer software source code to
support such segregation or reintegration activities.
Unlimited rights is defined at 227.7101 for technical data and at
227.7201 for computer software and computer software documentation.
0
4. In section 227.7101, revise paragraph (b) to read as follows:
227.7101 Definitions.
* * * * *
(b) Other terms used in this subpart are defined at 227.001 and as
follows:
Commercial item does not include commercial computer software (see
227.7202 for coverage regarding commercial computer software
documentation).
Detailed manufacturing or process data means technical data that
describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item or
component or to perform a process.
Developed means that an item, component, or process exists and is
workable. Thus, the item or component must have been constructed or the
process practiced. Workability is generally established when the item,
component, or process has been analyzed or tested sufficiently to
demonstrate to reasonable people skilled in the applicable art that
there is a high probability that it will operate as intended. Whether,
how much, and what type of analysis or testing is required to establish
workability depends on the nature of the item, component, or process,
and the state of the art. To be considered ``developed,'' the item,
component, or process need not be at the stage where it could be
offered for sale or sold on the commercial market, nor must the item,
component, or process be actually reduced to practice within the
meaning of title 35 of the United States Code.
Government purpose means any activity in which the United States
Government is a party, including cooperative agreements with
international or multi-national defense organizations, or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose technical data for commercial
purposes or authorize others to do so.
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or disclose
technical data within the Government without restriction; and
(2) Release or disclose technical data outside the Government and
authorize persons to whom release or disclosure has been made to use,
modify, reproduce, release, perform, display, or disclose that data for
United States Government purposes.
Limited rights means the rights to use, modify, reproduce, release,
perform, display, or disclose technical data, in whole or in part,
within the Government. The Government may not, without the written
permission of the party asserting limited rights, release or disclose
the technical data outside the Government, use the technical data for
manufacture, or authorize the technical data to be used by another
party, except that the Government may reproduce, release, or disclose
such data or authorize the use or reproduction of the data by persons
outside the Government if--
[[Page 39489]]
(1) The reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul;
(ii) Necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes; and such reproduction, release, disclosure, or use involves
only segregation or reintegration data; or
(iii) A release or disclosure to--
(A) A covered Government support contractor in performance of its
covered Government support contract for use, modification,
reproduction, performance, display, or release or disclosure to a
person authorized to receive limited rights technical data; or
(B) A foreign government, of technical data other than detailed
manufacturing or process data, when use of such data by the foreign
government is in the interest of the Government and is required for
evaluational or informational purposes;
(2) The recipient of the technical data is subject to a prohibition
on the further reproduction, release, disclosure, or use of the
technical data; and
(3) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
Small Business Innovation Research (SBIR) data rights means the
Government's rights during the SBIR data protection period to use,
modify, reproduce, release, perform, display, or disclose technical
data or computer software generated under a SBIR award as follows:
(1) Limited rights in such SBIR technical data.
(2) Restricted rights in such SBIR computer software.
Technical data means recorded information, regardless of the form
or method of the recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or data incidental to contract administration, such
as financial and/or management information.
Unlimited rights means rights to use, modify, reproduce, perform,
display, release, or disclose technical data in whole or in part, in
any manner, and for any purpose whatsoever, and to have or authorize
others to do so.
0
5. Revise section 227.7102 heading to read as follows:
227.7102 Commercial items.
0
6. Amend section 227.7102-1 by--
0
a. In paragraph (a) introductory text, removing ``commercial item or
process'' and adding ``commercial item'' in its place;
0
b. In paragraph (a)(1), removing ``fit, or function'' and adding ``fit,
and function'' in its place;
0
c. Redesignating paragraphs (a)(2) and (3) as (a)(3) and (4),
respectively;
0
d. Adding new paragraph (a)(2);
0
e. In newly redesignated paragraph (a)(3), removing ``commercial items
or processes'' and adding ``commercial items'' in its place, and
removing ``stand alone unit'' and adding ``stand-alone unit'' in its
place;
0
f. In the newly redesignated paragraph (a)(4), removing ``commercial
item or process'' and adding ``commercial item'' in its place;
0
g. In paragraph (b), removing ``commercial products'' and adding
``commercial items'' in its place;
0
h. In paragraph (b)(1), removing ``commercial items or processes'' and
adding ``commercial items'' in its place; and
0
i. In paragraph (b)(2), removing ``commercial items or processes'' and
adding ``commercial items'' in its place.
The addition reads as follows:
227.7102-1 Policy.
(a) * * *
(2) Are segregation or reintegration data;
* * * * *
0
7. Amend section 227.7102-2 by revising paragraph (a) to read as
follows:
227.7102-2 Rights in technical data.
(a) The clause at 252.227-7015, Technical Data-Commercial Items,
provides the Government specific license rights in technical data
pertaining to commercial items. DoD may use, modify, reproduce,
release, perform, display, or disclose data only within the Government.
The data may not be used to manufacture additional quantities of the
commercial items. Except for emergency repair or overhaul, segregation
or reintegration, foreign government evaluational or informational
purposes (other than detailed manufacturing or process data), or
covered Government support contractor activities, the data may not be
released or disclosed to, or used by, third parties without the
contractor's written permission. Those restrictions do not apply to the
technical data described in 227.7102-1(a).
* * * * *
0
8. Amend section 227.7102-4 by--
0
a. Redesignating paragraph (c) as (e);
0
b. Adding new paragraphs (c) and paragraph (d); and
0
c. In the newly redesignated paragraph (e), removing ``Validation of
Restrictive Markings'' and adding ``Validation of Asserted
Restrictions'' in its place.
The additions read as follows:
227.7102-4 Contract clauses.
* * * * *
(c) Use the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information with Restrictive Legends
or Markings, in solicitations and contracts when it is anticipated that
the Government will provide the contractor (other than a litigation
support contractor covered by the clause at 252.204-7014, Limitations
on the Use or Disclosure of Information by Litigation Support
Contractors), for performance of its contract, technical data marked
with another contractor's restrictive legend(s) or marking(s).
(d) Use the clause at 252.227-7029, Deferred Ordering of Technical
Data or Computer Software, in all solicitations and contracts using
other than FAR part 12 procedures, and in all solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial items that are being acquired for--
(1) A major system or subsystem thereof; or
(2) A weapon system or subsystem thereof.
* * * * *
0
9. Amend section 227.7103-2 by revising paragraph (b)(1) to read as
follows:
227.7103-2 Acquisition of technical data.
* * * * *
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's minimum needs for
technical data. Data needs must be established giving consideration to
the contractor's economic interests in data pertaining to items or
processes that have been developed at private expense; the return on
the Government's investment in the development of items or processes
(including technology transfer/transition to other programs); the
Government's costs to acquire, maintain, store, retrieve, and protect
the data; the Government's short-term and long-term reprocurement and
sustainment needs, including repair, maintenance, overhaul, spare and
repair parts, and technology upgrade/insertion; and whether procurement
of the items or processes (or physical or functional equivalents
thereof) can be accomplished on a form, fit, and function or
segregation or reintegration basis. When it is anticipated that the
Government will obtain unlimited or Government purpose rights in
technical data that will be required for
[[Page 39490]]
competitive reprocurement or sustainment activities, such data should
be identified as deliverable data items. Reprocurement needs may not be
a sufficient reason to acquire detailed manufacturing or process data
when privately developed items or processes (or physical or functional
equivalents thereof) can be acquired using performance specifications,
form, fit, and function data, segregation or reintegration data, or
when there are a sufficient number of alternate sources that can
reasonably be expected to provide such items on a performance
specification, form, fit, and function, or segregation or reintegration
basis.
* * * * *
0
10. Amend section 227.7103-5 by--
0
a. In paragraph (b)(4) introductory text, removing ``government purpose
rights'' and adding ``Government purpose rights'' wherever it appears;
0
b. In paragraph (b)(4)(ii), removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive Legends
or Markings'' in its place;
0
c. In paragraphs (c)(1)(i) and (ii), removing ``items, components, or
processes'' and adding ``items or processes'' in both places;
0
d. Redesignating paragraphs (c)(2)(ii) and (iii) as (c)(2)(iii) and
(iv), respectively;
0
e. Adding new paragraph (c)(2)(ii);
0
f. Revising paragraph (c)(3); and
0
g. In paragraph (c)(4), removing ``(c)(2)(i), (ii), or (iii)'' and
adding ``(c)(2)'' in its place; and removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive Legends
or Markings'' in its place.
The addition and revision reads as follows:
227.7103-5 Government rights.
* * * * *
(c) * * *
(2) * * *
(ii) Necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes;
* * * * *
(3) The person asserting limited rights must be notified of the
Government's intent to release, disclose, or authorize others to use
such data prior to release or disclosure of the data, except
notification of an intended release or disclosure for--
(i) Covered Government support contractor activities, which shall
be made as soon as practicable, but not later than 30 days after such
release or disclosure; and
(ii) Emergency repair or overhaul, which shall be made as soon as
practicable.
* * * * *
0
11. Amend section 227.7103-6 by--
0
a. Revising paragraph (c); and
0
b. In paragraph (e)(3), removing ``Validation of Restrictive Markings''
and adding ``Validation of Asserted Restrictions'' in its place.
The revision reads as follows:
227.7103-6 Contract clauses.
* * * * *
(c) Use the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information with Restrictive Legends
or Markings, in solicitations and contracts when it is anticipated that
the Government will provide the contractor, for performance of its
contract, technical data marked with another contractor's restrictive
legend(s) or marking(s). The clause shall be incorporated into the
contract prior to the Government releasing any such technical data to
the contractor. See 227.7103-7 when releasing such technical data to
offerors or to any person other than the contractor.
* * * * *
0
12. Amend section 227.7103-7 by--
0
a. In paragraph (a)(1), removing ``limited rights'' and adding
``limited rights or SBIR data rights,'' in its place, and removing
``restricted rights'' and adding ``restricted rights or SBIR data
rights,'' in its place;
0
b. Revising paragraph (b); and
0
c. Revising paragraph (c)(1).
The revisions read as follows:
227.7103-7 Use and non-disclosure agreement.
* * * * *
(b) Do not use the use and non-disclosure agreement at paragraph
(c) for releases to Government contractors. Such releases are
authorized only under contracts that contain the clause at 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Legends or Markings.
(c) * * *
(1) The Recipient shall--
(a) Use, modify, reproduce, release, perform, display, or disclose
Data marked with Government purpose rights legends only for Government
purposes and shall not do so for any commercial purpose. The Recipient
shall not release, perform, display, or disclose these Data, without
the express written permission of the contractor whose name appears in
the restrictive legend (the ``Contractor''), to any person other than
its subcontractors or suppliers, or prospective subcontractors or
suppliers, who require these Data to submit offers for, or perform,
contracts with the Recipient. The Recipient shall require its
subcontractors or suppliers, or prospective subcontractors or
suppliers, to sign a use and non-disclosure agreement prior to
disclosing or releasing these Data to such persons. Such agreement must
be consistent with the terms of this agreement.
(b) Use, modify, reproduce, release, perform, display, or disclose
technical data marked with limited rights or SBIR data rights legends
only as authorized in the attachment to this Agreement. Release,
performance, display, or disclosure to other persons is not authorized
unless specified in the attachment to this Agreement or expressly
permitted in writing by the Contractor. The Recipient shall promptly
notify the Contractor of the execution of this Agreement and identify
the Contractor's Data that has been or will be provided to the
Recipient, the date and place the Data were or will be received, and
the name and address of the Government office that has provided or will
provide the Data. This notice shall be made prior to such release or
disclosure to the Recipient, except in cases of emergency repair or
overhaul activities, in which case such notice must be made as soon as
practicable. The Recipient shall destroy (or return to the Government
at the request of the Government) the technical data and all copies in
its possession promptly following completion of the authorized
activities, and shall notify the Contractor that the data have been
destroyed (or returned to the Government).
(c) Use computer software marked with restricted rights or SBIR
data rights legends only as authorized in the attachment to this
Agreement. The recipient shall not, for example, enhance, decompile,
disassemble, or reverse engineer the software; time share, or use a
computer program with more than one computer at a time. The recipient
shall not release, perform, display, or disclose such software to
others unless authorized in the attachment to this Agreement or
expressly permitted in writing by the Contractor. The Recipient shall
promptly notify the Contractor of the execution of this Agreement and
identify the software that has been or will be provided to the
Recipient, the date and place the software were or will be received,
and the name and address of the Government office that has provided or
will provide the software. This notice shall be made prior to such
[[Page 39491]]
release or disclosure to the Recipient, except in cases of emergency
repair or overhaul activities, in which case such notice must be made
as soon as practicable. The Recipient shall destroy (or return to the
Government at the request of the Government) the software and all
copies in its possession promptly following completion of the
authorized activities, and shall notify the Contractor that the
software has been destroyed (or returned to the Government).
(d) Use, modify, reproduce, release, perform, display, or disclose
Data marked with special license rights legends (to be completed by the
contracting officer. See 227.7103-7(a)(2). Omit if none of the Data
requested is marked with special license rights legends).
(e) Use, modify, reproduce, perform, or display technical data that
is or pertains to a commercial item and is received from the Government
with commercial restrictive markings (i.e., marked to indicate that
such data are subject to use, modification, reproduction, release,
performance, display, or disclosure restrictions) only in the
performance of this contract and only for activities authorized in the
commercial limited rights license (defined at DFARS 252.227-7015(a)(2))
for recipients of the technical data. The Contractor shall not, without
the express written permission of the party asserting such
restrictions, use the technical data to manufacture additional
quantities of the commercial items or for any other unauthorized
purpose, or release or disclose such data to any unauthorized person.
The Contractor will ensure that the party asserting restrictions is
notified prior to such authorized release or disclosure, except that
notice of such emergency repair or overhaul activities shall be made as
soon as practicable. The Contractor shall destroy (or return to the
Government at the request of the Contracting Officer) the data and all
copies in its possession promptly following completion of the
authorized activities under this contract, and shall notify the party
asserting restrictions that the data have been destroyed (or returned
to the Government).
(f) Use, modify, reproduce, perform, or display commercial computer
software, or segregation or reintegration data pertaining to commercial
computer software, received from the Government with commercial
restrictive markings (i.e., marked to indicate that such software are
subject to use, modification, reproduction, release, performance,
display, or disclosure restrictions) only in the performance of this
contract and only for activities, if any, that are authorized in the
applicable commercial license or any additional specially negotiated
license rights (pursuant to DFARS 227.7202-3). The Contractor shall
not, without the express written permission of the party asserting such
restrictions, use the computer software for any other unauthorized
purpose, or release or disclose such software to any unauthorized
person. The Contractor will ensure that the party asserting
restrictions is notified prior to such authorized release or
disclosure. The Contractor shall destroy (or return to the Government
at the request of the Contracting Officer) the software and all copies
in its possession promptly following completion of the authorized
activities under this contract, and shall notify the party asserting
restrictions that the data or software has been destroyed (or returned
to the Government).
* * * * *
0
13. Revise section 227.7103-8 to read as follows:
227.7103-8 Deferred delivery and deferred ordering of technical data.
(a) Deferred delivery. The clause at 252.227-7026, Deferred
Delivery of Technical Data or Computer Software, permits the
contracting officer to require the delivery of technical data or
computer software identified as ``deferred delivery'' data at any time
until 2 years after acceptance by the Government of all items (other
than technical data or computer software) under the contract or
contract termination, whichever is later. The obligation of
subcontractors or suppliers to deliver such technical data or computer
software expires 2 years after the date the prime contractor accepts
the last item from the subcontractor or supplier for use in the
performance of the contract. The contract must specify which technical
data or computer software is subject to deferred delivery. The
contracting officer shall notify the contractor sufficiently in advance
of the desired delivery date for such data to permit timely delivery.
(b) Deferred ordering. The clause at 252.227-7029, Deferred
Ordering of Technical Data or Computer Software, allows the contracting
officer to order certain technical data or computer software that was
not delivered or otherwise furnished under a contract, but that were
generated or utilized in the performance of a contract. The
availability of deferred ordering procedures under this clause,
however, does not diminish or alter the Government's responsibility for
advance planning and proactive management of program needs for
technical data in accordance with 227.7103-1 and -2, and computer
software in accordance with 227.7203-1 and -2. Follow the procedures
and requirements at PGI 227.7103-8(b).
(c) Contract clauses. Use the clause at--
(1) 252.227-7026, Deferred Delivery of Technical Data or Computer
Software, when it is in the Government's interests to defer the
delivery of technical data; and
(2) 252.227-7029, Deferred Ordering of Technical Data or Computer
Software, in all solicitations and contracts using other than FAR part
12 procedures, and in all solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items that are being
acquired for--
(i) A major system or subsystem thereof; or
(ii) A weapon system or subsystem thereof.
0
14. Amend section 227.7103-13 by--
0
a. In paragraph (d) introductory text, removing ``Validation of
Restrictive Markings'' and adding ``Validation of Asserted
Restrictions'' in its place;
0
b. In paragraph (d)(1) removing ``three years'' and adding ``6 years''
in two places, and removing ``restrictive markings'' and adding
``asserted restrictions'' in its place;
0
c. In paragraph (d)(1)(ii), removing ``or'';
0
d. In paragraph (d)(1)(iii), removing the period at the end of the
sentence, and adding a semicolon and the word ``or'' in its place; and
0
e. Adding paragraph (d)(1)(iv).
The addition reads as follows:
227.7103-13 Government right to review, verify, challenge and validate
asserted restrictions.
* * * * *
(d) * * *
(1) * * *
(iv) Are the subject of a fraudulently asserted use or release
restriction.
* * * * *
227.7103-15 [Amended]
0
15. Amend section 227.7103-15 in paragraph (c)(2) by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Legends or Markings'' in its place.
0
16. Amend section 227.7104 by--
0
a. Redesignating paragraphs (e)(4) and (5) as (e)(5) and (6);
0
b. Adding new paragraph (e)(4);
0
c. In the newly redesignated paragraph (e)(6), removing ``Validation of
Restrictive Markings'' and adding
[[Page 39492]]
``Validation of Asserted Restrictions'' in its place; and
0
d. In paragraph (f)(1), removing ``Information Marked with Restrictive
Legends'' and adding ``Information with Restrictive Legends or
Markings'' in its place.
The addition reads as follows:
227.7104 Contracts under the Small Business Innovation Research (SBIR)
Program.
(e) * * *
(4) 252.227-7029, Deferred Ordering of Technical Data or Computer
Software;
* * * * *
0
17. Amend section 227.7201 by revising paragraph (b) to read as
follows:
227.7201 Definitions.
* * * * *
(b) Other terms used in this subpart are defined at 227.001 and as
follows:
Commercial computer software means any computer software that is a
commercial item.
Developed means that--
(1) A computer program has been successfully operated in a computer
and tested to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the program can reasonably be expected
to perform its intended purpose;
(2) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the software can reasonably
be expected to perform its intended purpose; or
(3) Computer software documentation required to be delivered under
a contract has been written, in any medium, in sufficient detail to
comply with requirements under that contract.
Government purpose means any activity in which the United States
Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose computer software or computer
software documentation for commercial purposes or authorize others to
do so.
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or disclose
computer software or computer software documentation within the
Government without restriction; and
(2) Release or disclose computer software or computer software
documentation outside the Government and authorize persons to whom
release or disclosure has been made to use, modify, reproduce, release,
perform, display, or disclose the software or documentation for United
States Government purposes.
Minor modification means a modification that does not significantly
alter the nongovernmental function or purpose of the software or is of
the type customarily provided in the commercial marketplace.
Noncommercial computer software means software that does not
qualify as commercial computer software under paragraph (a)(1) of the
clause at 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
Restricted rights apply only to noncommercial computer software and
mean the Government's rights to--
(1) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(2) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of the
clause at DFARS 252.227-7014;
(3) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification purposes;
(4) Modify computer software provided that the Government may--
(i) Use the modified software only as provided in paragraphs
(a)(15)(i) and (iii) of the clause at 252.227-7014; and
(ii) Not release or disclose the modified software except as
provided in paragraph (a)(15)(ii) or (v) of the clause at 252.227-7014;
and
(5) Reproduce and release or disclose the computer software outside
the Government only if--
(i) The reproduction, release, or disclosure is necessary to--
(A) Permit contractors or subcontractors performing service
contracts (see FAR 37.101) in support of this or a related contract to
use computer software to diagnose and correct deficiencies in a
computer program, to modify computer software to enable a computer
program to be combined with, adapted to, or merged with other computer
programs or when necessary to respond to urgent tactical situations;
(B) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under this
or a related contract to use the computer software when necessary to
perform the repairs or overhaul, or to modify the computer software to
reflect the repairs or overhaul made;
(C) Permit covered Government support contractors in the
performance of covered Government support contracts to use, modify,
reproduce, perform, display, or release or disclose the computer
software to a person authorized to receive restricted rights computer
software; or
(D) Permit contractors or subcontractors to use, modify, reproduce,
perform, display, or release or disclose segregation or reintegration
data to segregate computer software from, or reintegrate that software
(or functionally equivalent software) with, other computer software;
(ii) Each recipient contractor or subcontractor ensures that the
party that has granted restricted rights is notified of such release or
disclosure;
(iii) Such contractors or subcontractors are subject to the use and
non-disclosure agreement at DFARS 227.7103-7 or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Legends or Markings;
(iv) The Government does not permit the recipient to use,
decompile, disassemble, or reverse engineer the software, or use
software decompiled, disassembled, or reverse engineered by the
Government pursuant to paragraph (a)(15)(iv) of the clause at 252.227-
7014, for any purpose other than those authorized in paragraph
(a)(15)(v)(A); and
(v) The recipient's use of the computer software is subject to the
limitations in paragraphs (a)(15)(i) through (iv) of the clause at
252.227-7014.
Unlimited rights means rights to use, modify, reproduce, release,
perform, display, or disclose computer software or computer software
documentation in whole or in part, in any manner and for any purpose
whatsoever, and to have or authorize others to do so.
227.7202-1 [Amended]
0
18. Amend section 227.7202-1 in paragraph (c)(1) by removing ``except
for information'' and adding ``except for
[[Page 39493]]
form, fit, and function data, segregation or reintegration data, or
information'' in its place.
0
19. Amend section 227.7202-3 by--
0
a. In paragraph (a), removing ``The Government'' and adding ``Except as
provided in paragraphs (b) and (c) of this section, the Government'' in
its place;
0
b. Redesignating paragraph (b) as paragraph (c);
0
c. Adding new paragraph (b); and
0
d. In the newly redesignated paragraph (c), removing ``rights not
conveyed'' and adding ``rights that are not conveyed'', and removing
``provided to the public'' and adding ``provided to the public and are
not authorized to be required by paragraph (b) of this section'' in its
place.
The addition reads as follows:
227.7202-3 Rights in commercial computer software or commercial
computer software documentation.
* * * * *
(b)(1) For segregation and reintegration data, the Government may
require that its license rights include the right for the Government to
use, modify, reproduce, release, perform, display, or disclose that
data to the extent necessary for the segregation of the commercial
computer software from, or the reintegration of that commercial
computer software (or functionally equivalent computer software) with,
other computer software, items, or processes. Unless the parties agree
otherwise in accordance with paragraph (c) of this section, the license
shall authorize the Government to release the segregation and
reintegration data outside the Government only if--
(i) The recipient of the data is subject to a prohibition on the
further reproduction, release, disclosure, or use of that data; and
(ii) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
(2) Follow the procedures and requirements at PGI 227.7202-3(b).
* * * * *
0
20. Amend section 227.7202-4 by--
0
a. Revising the section heading;
0
b. Designating the introductory text as paragraph (a); and
0
c. Adding paragraphs (b) and (c).
The revision and additions read as follows:
227.7202-4 Contract clauses.
* * * * *
(b) Use the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information with Restrictive Legends
or Markings, in solicitations and contracts when it is anticipated that
the Government will provide the contractor (other than a litigation
support contractor covered by 252.204-7014, Limitations on the Use or
Disclosure of Information by Litigation Support Contractors), for
performance of its contract, technical data or computer software marked
with another contractor's restrictive legend(s) or marking(s).
(c) Use the clause at 252.227-7029, Deferred Ordering of Technical
Data or Computer Software, in all solicitations and contracts using
other than FAR part 12 procedures, and in all solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial items that are being acquired for--
(1) A major system or subsystem thereof; or
(2) A weapon system or subsystem thereof.
0
21. Amend section 227.7203-2 by revising paragraph (b)(1) to read as
follows:
227.7203-2 Acquisition of noncommercial computer software and
computer software documentation.
* * * * *
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's minimum needs. In addition
to desired software performance, compatibility, or other technical
considerations, needs determinations should consider such factors as
multiple site or shared use requirements; whether the Government's
software operation or sustainment will require the right to modify or
have third parties modify the software; contractor's economic interests
in computer software developed at private expense; the return on the
Government's investment in the development of computer software
(including technology transfer/transition to other programs); the
Government's costs to acquire, maintain, store, retrieve, and protect
the software or documentation; the Government's short-term and long-
term reprocurement and sustainment needs, including repair,
maintenance, overhaul, spare and repair parts, and technology upgrade/
insertion; whether procurement of the software (or functional
equivalents thereof) can be accomplished on a form, fit, and function
or segregation or reintegration basis; and any special computer
software documentation requirements.
* * * * *
227.7203-5 [Amended]
0
22. Amend section 227.7203-5 by--
0
a. In paragraph (b)(4) introductory text, removing ``government purpose
rights'' and adding ``Government purpose rights'' in its place wherever
it appears; and
0
b. In paragraph (b)(4)(ii) removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive Legends
or Markings'' in its place.
0
23. Amend section 227.7203-6 by--
0
a. Revising the section heading;
0
b. Revising paragraph (d); and
0
c. In paragraph (f) by removing ``Validation of Restrictive Markings''
and adding ``Validation of Asserted Restrictions'' in its place.
The revisions read as follows:
227.7203-6 Solicitation provision and contract clauses.
* * * * *
(d) Use the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information with Restrictive Legends
or Markings, in solicitations and contracts when it is anticipated that
the Government will provide the contractor (other than a litigation
support contractor covered by 252.204-7014, Limitations on the Use or
Disclosure of Information by Litigation Support Contractors), for
performance of its contract, computer software or computer software
documentation marked with another contractor's restrictive legend(s) or
marking(s). The clause must be incorporated into the contract prior to
the Government releasing any such computer software or computer
software documentation to the Contractor.
* * * * *
0
24. Revise section 227.7203-8 to read as follows:
227.7203-8 Deferred delivery and deferred ordering of computer
software and computer software documentation.
(a) Deferred delivery. The clause at 252.227-7026, Deferred
Delivery of Technical Data or Computer Software, permits the
contracting officer to require the delivery of computer software or
computer software documentation identified as ``deferred delivery''
data at any time until 2 years after acceptance by the Government of
all items (other than technical data or computer software) under the
contract or contract termination, whichever is later. The obligation of
subcontractors or suppliers to deliver such data expires 2 years after
the date the prime contractor accepts the last item from the
subcontractor or supplier for use in the performance of the contract.
The contract must specify the computer software or computer software
documentation that is subject
[[Page 39494]]
to deferred delivery. The contracting officer shall notify the
contractor sufficiently in advance of the desired delivery date for
such software or documentation to permit timely delivery.
(b) Deferred ordering. The clause at 252.227-7029, Deferred
Ordering of Technical Data or Computer Software, allows the contracting
officer to order certain technical data or computer software that was
not delivered or otherwise furnished under a contract, but that was
generated or utilized in the performance of a contract. The
availability of deferred ordering procedures under this clause,
however, does not diminish or alter the Government's responsibility for
advance planning and proactive management of program needs for
technical data and computer software in accordance with 227.7103-1 and
-2, and 227.7203-1 and -2, respectively. Follow the procedures and
requirements at PGI 227.7103-8(b).
(c) Contract clauses. Use the clause at--
(1) 252.227-7026, Deferred Delivery of Technical Data or Computer
Software, when it is in the Government's interests to defer the
delivery of computer software or computer software documentation; and
(2) 252.227-7029, Deferred Ordering of Technical Data or Computer
Software, in all solicitations and contracts using other than FAR part
12 procedures, and in all solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items that are being
acquired for--
(i) A major system or subsystem thereof; or
(ii) A weapon system or subsystem thereof.
227.7203-13 [Amended]
0
25. Amend section 227.7203-13 in paragraph (e)(3)(i) by removing
``three years'' and adding ``6 years'' in two places, and removing ``or
has been otherwise made available without restrictions'' and adding
``has been otherwise made available without restrictions, or is the
subject of a fraudulently asserted use or release restriction'' in its
place.
227.7203-15 [Amended]
0
26. Amend section 227.7203-15 by--
0
a. In paragraph (c)(1), removing the semicolon and replacing it with a
period;
0
b. In paragraph (c)(2), removing the semicolon and replacing it with a
period; and
0
c. In paragraph (c)(3), removing ``Information Marked with Restrictive
Legends; and'' and adding ``Information with Restrictive Legends or
Markings.'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
27. Amend section 252.227-7013 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its
place;
0
b. In paragraph (a)--
i. Removing paragraph number designations;
ii. In the definition of ``Covered Government support contractor''
removing ``covered by 252.204-7014'' and adding ``covered by the clause
at DFARS 252.204-7014, Limitations on the Use or Disclosure of
Information by Litigation Support Contractors,'' in its place;
redesignating (i) and (ii) as (1) and (2), respectively; and in the
newly redesignated (2), removing ``252.227-7025, Limitations on the Use
or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information with
Restrictive Legends or Markings'' in its place;
iii. In the definition of ``Developed exclusively at private
expense'', removing in the introductory text the word ``government''
and adding ``Government'' in its place; redesignating paragraphs (i)
and (ii) as (1) and (2), respectively; and, in the newly redesignated
paragraph (2) removing the word ``government'' and adding
``Government'' in its place;
iv. In the definition of ``Developed exclusively with government
funds'' removing the word ``government'' and adding ``Government'' in
its place;
v. In the definition of ``Developed with mixed funding'' removing
the word ``government'' and adding ``Government'' in its place in two
places;
vi. Revising the definition of ``Form, fit and function data'';
vii. In the definition of ``Government purpose rights''
redesignating paragraphs (i) and (ii) as (1) and (2), respectively; and
in the newly redesignated paragraph (2) removing ``government
purposes'' and adding ``Government purposes'' in its place;
viii. In the definition of ``Limited rights'', redesignating
paragraph (i) introductory text, paragraphs (ii), and (iii) as
paragraph (1) introductory text, paragraphs (2), and (3), respectively;
in the newly redesignated paragraph (1), redesignating paragraphs
(1)(A) and (B) introductory text as paragraphs (1)(i) and (iii)
introductory text, respectively; adding paragraph (1)(ii); in the newly
redesignated paragraph (1)(i), removing ``or''; and in the newly
redesignated paragraph (1)(iii), redesignating paragraphs (1)(iii)(1)
and (2) as paragraphs (1)(iii)(A) and (B), respectively; and
ix. Adding, in alphabetical order, the definition for ``Segregation
or reintegration data'';
0
c. In paragraph (b)(2)(i), removing ``government purpose'' and adding
``Government purpose'' in its place; and removing ``five-year'' and
adding ``5-year'' in its place;
0
d. In paragraph (b)(2)(iii) removing ``government purpose'' and adding
``Government purpose'' in its place;
0
e. In paragraph (b)(2)(iii)(B), removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive Legends
or Markings'' in its place;
0
f. In paragraph (b)(2)(iv), removing ``government purpose'' and adding
``Government purpose'' in its place in two places;
0
g. In paragraphs (b)(3)(i)(A) and (B), removing ``items, components,
and processes'' and adding ``items or processes'' in both places;
0
h. Revising paragraph (b)(3)(ii);
0
i. Redesignating paragraphs (b)(3)(iii) and (iv) introductory text as
(b)(3)(iv) and (v) introductory text, respectively;
0
j. Adding paragraph (b)(3)(iii);
0
k. Amending paragraph (b)(3)(v)(D) by removing ``252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends'' and adding ``DFARS
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Legends or Markings'' in its
place;
0
l. Amending paragraph (b)(4) by removing ``government purpose'' and
adding ``Government purpose'' in its place;
0
m. Amending paragraph (b)(5) heading by removing ``government'' and
adding ``Government'' in its place;
0
n. Amending paragraph (f) by removing ``government purpose'' and adding
``Government purpose'' in its place;
0
o. Amending paragraph (f)(4)(ii) by removing ``government purpose'' and
adding ``Government purpose'' in its place; and
0
p. In Alternate II--
0
i. Revising the clause date and the introductory text; and
0
ii. In paragraph (a), removing ``(a)(17)'' and adding ``(a)'' in its
place.
The revision and additions read as follows:
[[Page 39495]]
252.227-7013 Rights in Technical Data--Noncommercial Items.
* * * * *
(a) * * *
Form, fit, and function data means technical data or computer
software that describes the required overall physical, logical,
configuration, mating, attachment, interface, functional, and
performance characteristics (along with the qualification requirements,
if applicable) of an item or process to the extent necessary to permit
identification of physically or functionally equivalent items or
processes. The term does not include computer software source code, or
detailed manufacturing or process data.
* * * * *
Limited rights * * *
(1) * * *
(ii) Necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes; and such reproduction, release, disclosure, or use involves
only segregation or reintegration data; or
* * * * *
Segregation or reintegration data means technical data or computer
software that is more detailed than form, fit, and function data and
that is necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes.
(1) Unless agreed otherwise by the Government and the contractor,
the nature, quality, and level of technical detail necessary for these
data or software shall be that required for persons reasonably skilled
in the art to perform such segregation or reintegration activities.
(2) The segregation or reintegration of any such an item or process
may be performed at any practical level, including down to the lowest
practicable segregable level, e.g., a subitem or subcomponent level, or
any segregable portion of a process, computer software (e.g., a
software subroutine that performs a specific function), or
documentation.
(3) The term--
(i) Includes data or software that describes in more detail (than
form, fit, and function data) the physical, logical, or operational
interface or similar functional interrelationship between the items or
processes; and
(ii) May include, but would not typically require, detailed
manufacturing or process data or computer software source code to
support such segregation or reintegration activities.
* * * * *
(b) * * *
(3) * * *
(ii) The Government shall require a recipient of limited rights
data for emergency repair or overhaul to destroy (or return to the
Government at the request of the Contracting Officer) the data and all
copies in its possession promptly following completion of the emergency
repair/overhaul and to notify the Contractor that the data have been
destroyed (or returned to the Government).
(iii) The Government shall require a recipient of limited rights
data for segregation or reintegration activities to destroy the data
and all copies in its possession promptly following completion of the
segregation or reintegration activities in performance of the contract
under which such data were received, and to notify the Contractor that
the data have been destroyed.
* * * * *
ALTERNATE II (DATE)
As prescribed in 227.7103-6(b)(2), add to the basic clause the
following definition of ``vessel design'' in paragraph (a) and the
following paragraph (b)(7):
* * * * *
0
28. Amend section 252.227-7014 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its
place;
0
b. In paragraph (a)--
0
i. Removing paragraph number designations;
0
ii. Revising the definition of ``Commercial computer software'';
0
iii. In the definition of ``Covered Government support contractor''
removing from the introductory text ``covered by 252.204-7014'' and
adding ``covered by the clause at DFARS 252.204-7014, Limitations on
the Use or Disclosure of Information by Litigation Support
Contractors,'' in its place; redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; in the newly redesignated paragraph (2)
removing ``252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends'' and
adding ``DFARS 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information with Restrictive Legends or Markings''
in its place;
0
iv. In the definition of ``Developed'' redesignating paragraphs (i),
(ii), and (iii) as (1), (2), and (3), respectively;
0
v. In the definition of ``Developed exclusively at private expense''
removing from the introductory text ``government'' and adding
``Government'' in its place; redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; and in the newly redesignated paragraph (2)
removing ``government'' and adding ``Government'' in its place;
0
vi. In the definition of ``Developed exclusively with government
funds'' removing ``government'' and adding ``Government'' in its place;
0
vii. In the definition of ``Developed with mixed funding'' removing
``government'' and adding ``Government'' in its place in two places;
0
viii. Adding a definition for ``Form, fit, and function data'';
0
ix. In the definition of ``Government purpose rights'' redesignating
paragraphs (i) and (ii) as (1) and (2), respectively; and in the newly
redesignated paragraph (2) removing ``government purposes'' and adding
``Government purposes'' in its place;
0
x. In the definition of ``Restricted rights'' redesignating paragraphs
(i), (ii), (iii), (iv) introductory text, and (v) introductory text as
(1), (2), (3), (4) introductory text, and (5) introductory text,
respectively; removing paragraphs (vi) and (vii); in the newly
redesignated paragraph (4), redesignating paragraphs (4)(A) and (B) as
(4)(i) and (ii), respectively; in the newly redesignated paragraph
(4)(ii) removing ``(a)(15)(ii), (v), (vi) and (vii)'' and adding
``(a)(15)(ii) or (v)'' in its place; and revising the newly
redesignated paragraph (5);
0
xi. Adding, in alphabetical order, a definition of ``Segregation or
reintegration data'';
0
c. Amending paragraph (b)(1)(vi)(A) by removing ``government'' and
adding ``Government'' in its place;
0
d. Amending paragraph (b)(2)(i) by removing ``government purpose'' and
adding ``Government purpose'' in its place;
0
e. Amending paragraph (b)(2)(ii) by removing ``five years'' and adding
``5 years'' in its place in two places, and removing ``government
purpose'' and adding ``Government purpose'' in its place;
0
f. Amending (b)(2)(iii) by removing ``government purpose'' and adding
``Government purpose'' in its place;
0
g. Amending (b)(2)(iii)(B) by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive Legends
or Markings'' in its place;
0
h. Amending (b)(3)(iii)(D) by removing ``252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding
[[Page 39496]]
``DFARS 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information with Restrictive Legends or Markings''
in its place;
0
i. Amending (b)(4) by removing ``government purpose'' and adding
``Government purpose'' in its place;
0
j. Amending (b)(5) heading by removing ``government'' and adding
``Government'' in its place; and
0
k. Amending (f) introductory text, (f)(2), and (f)(4)(ii) by removing
``government purpose'' and adding ``Government purpose'' in its place
wherever it appears.
The additions and revisions read as follows:
252.227-7014 Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
* * * * *
(a) * * *
Commercial computer software means any computer software that is a
commercial item.
* * * * *
Form, fit, and function data means technical data or computer
software that describes the required overall physical, logical,
configuration, mating, attachment, interface, functional, and
performance characteristics (along with the qualification requirements,
if applicable) of an item or process to the extent necessary to permit
identification of physically or functionally equivalent items or
processes. The term does not include computer software source code, or
detailed manufacturing or process data.
* * * * *
Restricted rights * * *
(5) Reproduce and release or disclose the computer software outside
the Government only if--
(i) The reproduction, release, or disclosure is necessary to
permit--
(A) Contractors or subcontractors performing service contracts (see
FAR 37.101) in support of this or a related contract to use computer
software to diagnose and correct deficiencies in a computer program, to
modify computer software to enable a computer program to be combined
with, adapted to, or merged with other computer programs or when
necessary to respond to urgent tactical situations;
(B) Contractors or subcontractors performing emergency repairs or
overhaul of items or components of items procured under this or a
related contract to use the computer software when necessary to perform
the repairs or overhaul, or to modify the computer software to reflect
the repairs or overhaul made;
(C) Covered Government support contractors in the performance of
covered Government support contracts to use, modify, reproduce,
perform, display, or release or disclose the computer software to a
person authorized to receive restricted rights computer software; or
(D) Contractors or subcontractors to use, modify, reproduce,
perform, display, or release or disclose segregation or reintegration
data to segregate computer software from, or reintegrate that software
(or functionally equivalent software) with, other computer software;
(ii) Each recipient contractor or subcontractor ensures that the
party that has granted restricted rights is notified of such release or
disclosure;
(iii) Such contractors or subcontractors are subject to the use and
non-disclosure agreement at DFARS 227.7103-7 or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Legends or Markings;
(iv) The Government shall not permit the recipient to use,
decompile, disassemble, or reverse engineer the software, or use
software decompiled, disassembled, or reverse engineered by the
Government pursuant to paragraph (a)(15)(iv) of this clause, for any
purpose other than those authorized in paragraph (a)(15)(v)(A); and
(v) The recipient's use of the computer software is subject to the
limitations in paragraphs (a)(15)(i) through (iv) of this clause.
Segregation or reintegration data means technical data or computer
software that is more detailed than form, fit, and function data and
that is necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes.
(1) Unless agreed otherwise by the Government and the contractor,
the nature, quality, and level of technical detail necessary for these
data or software shall be that required for persons reasonably skilled
in the art to perform such segregation or reintegration activities.
(2) The segregation or reintegration of any such an item or process
may be performed at any practical level, including down to the lowest
practicable segregable level, e.g., a subitem or subcomponent level, or
any segregable portion of a process, computer software (e.g., a
software subroutine that performs a specific function), or
documentation.
(3) The term--
(i) Includes data or software that describes in more detail (than
form, fit, and function data) the physical, logical, or operational
interface or similar functional interrelationship between the items or
processes; and
(ii) May include, but would not typically require, detailed
manufacturing or process data or computer software source code to
support such segregation or reintegration activities.
* * * * *
0
29. Amend section 252.227-7015 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its
place;
0
b. In paragraph (a)--
0
i. Removing paragraph number designations;
0
ii. Revising the definition of ``Commercial item'';
0
iii. Adding, in alphabetical order, the definition of ``Commercial
limited rights'';
0
iv. Adding, in alphabetical order, the definition of ``Commercial
unlimited rights'';
0
v. In the definition of ``Covered Government support contractor''
removing ``252.204-7014'' and adding ``the clause at DFARS 252.204-
7014, Limitations on the Use or Disclosure of Information by Litigation
Support Contractors'' in its place; redesignating paragraphs (i) and
(ii) as (1) and (2), respectively; and in the newly redesignated
paragraph (2) removing ``252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information Marked with Restrictive
Legends'' and adding ``DFARS 252.227-7025, Limitations on the Use or
Disclosure of Government-Furnished Information with Restrictive Legends
or Markings'' in its place;
0
vi. Revising the definition of ``Form, fit, and function data'';
0
vii. Removing ``The term item includes components or processes.''; and
0
viii. Adding, in alphabetical order, the definition of ``Segregation or
reintegration data'';
0
c. Revising the paragraph (b)(1) introductory text;
0
d. Revising paragraph (b)(2);
0
e. In paragraph (b)(3)(iv), removing ``252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished
[[Page 39497]]
Information with Restrictive Legends or Markings'' in its place;
0
f. Redesignating paragraph (e) as paragraph (f);
0
g. Adding a new paragraph (e);
0
h. In the newly redesignated paragraph (f), remove the last sentence of
paragraph (f)(2); and
0
i In Alternate II--
0
i. Revising the clause date and the introductory text; and
0
ii. In paragraph (a), removing ``(a)(6)'' and adding ``(a)'' in its
place.
The revisions and additions read as follows:
252.227-7015 Technical Data-Commercial Items.
* * * * *
Commercial item does not include commercial computer software (see
DFARS 227.7202 for coverage regarding commercial computer software
documentation).
Commercial limited rights means the rights to use, modify,
reproduce, release, perform, display, or disclose, in whole or in part
within the Government, technical data pertaining to commercial items.
The Government may not, without the written permission of the party
asserting commercial limited rights, release or disclose the technical
data outside the Government, use the technical data for manufacture of
additional quantities of the commercial items, or authorize the
technical data to be used by another party, except that the Government
may reproduce, release, or disclose such data or authorize the use or
reproduction of the data by persons outside the Government if--
(1) The reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul;
(ii) Necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes; and such reproduction, release, disclosure, or use involves
only segregation or reintegration data; or
(iii) A release or disclosure to--
(A) A covered Government support contractor, for use, modification,
reproduction, performance, display, or release or disclosure to
authorized person(s) in performance of a Government contract; or
(B) A foreign government, of technical data, other than detailed
manufacturing or process data, when use of such data by the foreign
government is in the interest of the Government and is required for
evaluational or informational purposes;
(2) The recipient of the technical data is subject to a prohibition
on the further reproduction, release, disclosure, or use of the
technical data; and
(3) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
Commercial unlimited rights means rights to use, modify, reproduce,
perform, display, release, or disclose technical data in whole or in
part, in any manner, and for any purpose whatsoever, and to have or
authorize others to do so.
* * * * *
Form, fit, and function data means technical data or computer
software that describes the required overall physical, logical,
configuration, mating, attachment, interface, functional, and
performance characteristics (along with the qualification requirements,
if applicable) of an item or process to the extent necessary to permit
identification of physically or functionally equivalent items or
processes. The term does not include computer software source code, or
detailed manufacturing or process data.
Segregation or reintegration data means technical data or computer
software that is more detailed than form, fit, and function data and
that is necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes.
(1) Unless agreed otherwise by the Government and the contractor,
the nature, quality, and level of technical detail necessary for these
data or software shall be that required for persons reasonably skilled
in the art to perform such segregation or reintegration activities.
(2) The segregation or reintegration of any such an item or process
may be performed at any practical level, including down to the lowest
practicable segregable level, e.g., a subitem or subcomponent level, or
any segregable portion of a process, computer software (e.g., a
software subroutine that performs a specific function), or
documentation.
(3) The term--
(i) Includes data or software that describes in more detail (than
form, fit, and function data) the physical, logical, or operational
interface or similar functional interrelationship between the items or
processes; and
(ii) May include, but would not typically require, detailed
manufacturing or process data or computer software source code to
support such segregation or reintegration activities.
* * * * *
(b) License. (1) The Government shall have commercial unlimited
rights in technical data that pertain to commercial items and--
* * * * *
(2) Except as provided in paragraphs (b)(1) and (e) of this clause,
the Government shall have commercial limited rights in technical data
pertaining to commercial items.
* * * * *
(e) Applicability to development at private expense. This clause
will govern the technical data pertaining to any portion of a
commercial item that was developed exclusively at private expense. The
clause at DFARS 252.227-7013, Rights in Technical Data-Noncommercial
Items, will govern the technical data pertaining to any portion of a
commercial item that was developed in any part at Government expense.
* * * * *
ALTERNATE I (DATE)
As prescribed in 227.7102-4(a)(2), add to the basic clause the
following definition of ``vessel design'' in paragraph (a) and the
following paragraph (b)(4):
* * * * *
0
30. Amend section 252.227-7018 by--
0
a. Removing the clause date ``(FEB 2014)'' and adding ``(DATE)'' in its
place;
0
b. In paragraph (a)--
0
i. Removing paragraph number designations;
0
ii. In the definition of ``Commercial computer software'' redesignating
paragraphs (i) through (iv) as (1) through (4), respectively;
0
iii. In the definition of ``Covered Government support contractor''
introductory text, removing ``252.204-7014'' and adding ``the clause at
DFARS 252.204-7014, Limitations on the Use or Disclosure of Information
by Litigation Support Contractors'' in its place; redesignating
paragraphs (i) and (ii) as (1) and (2), respectively; and in the newly
redesignated paragraph (2) removing ``252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information with
Restrictive Legends or Markings'' in its place;
0
iv. In the definition of ``Developed'' redesignating paragraphs (i)
thorough (iv) as (1) through (4), respectively;
0
v. In the definition of ``Developed exclusively at private expense''
introductory text, removing ``government'' and adding
[[Page 39498]]
``Government'' in its place; redesignating paragraphs (i) and (ii) as
(1) and (2), respectively; and in the newly redesignated paragraph (2)
removing ``government'' and adding ``Government'' in its place;
0
vi. In the definition of ``Developed exclusively with government
funds'' removing ``government'' and adding ``Government'' in its place;
0
vii. In the definition of ``Developed with mixed funding'' removing
``government'' and adding ``Government'' in its place in two places.
0
viii. Revising the definition of ``Form, fit and function data'';
0
ix. In the definition of ``Limited rights'' redesignating paragraph (i)
introductory text, paragraphs (ii), and (iii) as paragraph (1)
introductory text, paragraphs (2), and (3), respectively; in the newly
redesignated paragraph (1), redesignating paragraphs (1)(A) and (B)
introductory text as (1)(i) and (iii) introductory text, respectively;
adding paragraph (1)(ii); in the newly redesignated (1)(i), removing
``or''; in the newly redesignated (1)(iii), redesignating paragraphs
(1)(iii)(1) and (2) as (1)(iii)(A) and (B), respectively.
0
x. In the definition of ``Restricted rights'' redesignating paragraphs
(i), (ii), (iii), (iv) introductory text and (v) introductory text as
(1), (2), (3), (4) introductory text, and (5) introductory text,
respectively; removing paragraphs (vi) and (vii); in the newly
redesignated paragraph (4) redesignating paragraphs (4)(A) and (B) as
(4)(i) and (ii), respectively; in the newly redesignated paragraph
(4)(ii) removing ``(a)(18)(ii), (v), (vi) and (vii of this clause;)''
and adding ``(a)(18)(ii) or (v) of this clause; and''; and revising the
newly redesignated paragraph (5);
0
xi. In the definition of ``SBIR data rights'' redesignating paragraphs
(i) and (ii) as (1) and (2); and
0
xii. Adding, in alphabetical order, a definition for ``Segregation or
reintegration data'';
0
c. In paragraph (b)(8)(iv), removing ``252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding ``DFARS 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information with
Restrictive Legends or Markings'' in its place; and
0
d. In paragraph (f)(5)(ii), removing ``government'' and adding
``Government'' in its place.
The revisions and additions read as follows:
252.227-7018 Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovation Research (SBIR) Program.
* * * * *
Form, fit, and function data means technical data or computer
software that describes the required overall physical, logical,
configuration, mating, attachment, interface, functional, and
performance characteristics (along with the qualification requirements,
if applicable) of an item or process to the extent necessary to permit
identification of physically or functionally equivalent items or
processes. The term does not include computer software source code, or
detailed manufacturing or process data.
* * * * *
Limited rights * * *
(1) * * *
(ii) Necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes; and such reproduction, release, disclosure, or use involves
only segregation or reintegration data; or
* * * * *
Restrictive rights * * *
(5) Reproduce and release or disclose the computer software outside
the Government only if--
(i) The reproduction, release, or disclosure is necessary to--
(A) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in support
of this or a related contract to use computer software to diagnose and
correct deficiencies in a computer program, to modify computer software
to enable a computer program to be combined with, adapted to, or merged
with other computer programs or when necessary to respond to urgent
tactical situations;
(B) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under this
or a related contract to use the computer software when necessary to
perform the repairs or overhaul, or to modify the computer software to
reflect the repairs or overhaul made;
(C) Permit covered Government support contractors in the
performance of covered Government support contracts to use, modify,
reproduce, perform, display, or release or disclose the computer
software to a person authorized to receive restricted rights computer
software; or
(D) Permit contractors or subcontractors to use, modify, reproduce,
perform, display, or release or disclose segregation or reintegration
data to segregate computer software from, or reintegrate that software
(or functionally equivalent software) with, other computer software;
(ii) Each recipient contractor or subcontractor notifies the party
that has granted restricted rights that a release or disclosure was
made;
(iii) Such contractors or subcontractors are subject to the use and
non-disclosure agreement at DFARS 227.7103-7 or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Legends or Markings;
(iv) The Government shall not permit the recipient to use,
decompile, disassemble, or reverse engineer the software, or use
software decompiled, disassembled, or reverse engineered by the
Government pursuant to paragraph (a)(18)(iv) of this clause, for any
purpose other than those authorized in paragraph (a)(18)(v)(A); and
(v) The recipient's use of the computer software is subject to the
limitations in paragraphs (a)(18)(i) through (iv) of this clause.
* * * * *
Segregation or reintegration data means technical data or computer
software that is more detailed than form, fit, and function data and
that is necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes.
(1) Unless agreed otherwise by the Government and the contractor,
the nature, quality, and level of technical detail necessary for these
data or software shall be that required for persons reasonably skilled
in the art to perform such segregation or reintegration activities.
(2) The segregation or reintegration of any such an item or process
may be performed at any practical level, including down to the lowest
practicable segregable level, e.g., a subitem or subcomponent level, or
any segregable portion of a process, computer software (e.g., a
software subroutine that performs a specific function), or
documentation.
(3) The term--
(i) Includes data or software that describes in more detail (than
form, fit, and function data) the physical, logical, or operational
interface or similar functional interrelationship between the items or
processes; and
[[Page 39499]]
(ii) May include, but would not typically require, detailed
manufacturing or process data or computer software source code to
support such segregation or reintegration activities.
* * * * *
0
31. Amend section 252.227-7019 by--
0
a. Removing the clause date ``(SEP 2011)'' and adding ``(DATE)'' in its
place;
0
b. Revising paragraph (b);
0
c. In paragraph (d)(1), removing ``asserted restrictions'' and adding
``asserted restrictions (including as assertion under paragraph (c) of
DFARS 252.227-7029, Deferred Ordering of Technical Data or Computer
Software)'' in its place;
0
d. In paragraph (d)(2)(i)(B), removing ``restriction'' and adding
``marking'' in its place; removing ``sixty (60) days'' and adding ``60
days'' in its place; and removing ``the markings'' and adding ``the
marking'' in its place;
0
e. Revising paragraph (e)(1);
0
f. In paragraph (e)(2), removing ``sustain'' and adding ``sustains'' in
its place;
0
g. In paragraph (g)(1)(ii), removing ``sixty (60) days'' and adding
``60 days'' in its place;
0
h. In paragraph (g)(1)(iv), removing ``three-year'' and adding ``3-
year'' in its place;
0
i. In paragraph (h)(1)(i), removing ``ninety (90) days'' and adding
``90 days'' in its place;
0
j. In paragraph (h)(1)(ii), removing ``one year'' and adding ``1 year''
in its place; and removing ``ninety (90) days'' and adding ``90 days''
in its place;
0
k. In paragraph (h)(1)(iii), removing ``ninety (90) days'' and adding
``90 days'' in its place in two places; and removing ``one year'' and
adding ``1 year'' in its place;
0
l. In paragraph (h)(2)(i), removing ``ninety (90) days'' and adding
``90 days'';
0
m. In paragraph (h)(2)(ii), removing ``ninety (90) days'' and adding
``90 days'';
0
n. In paragraph (h)(2)(iii), removing ``one year'' and adding ``1
year'' in its place; and removing ``ninety (90) days'' and adding ``90
days'' in its place;
0
o. In paragraph (h)(3), removing ``government'' and adding
``Government'' in its place in two places; removing ``227.7103-7 of the
Defense Federal Acquisition Regulation Supplement (DFARS)'' and adding
``DFARS 227.7103-7'' in its place; and removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Legends or Markings'' in its place.
The revisions read as follows:
252.227-7019 Validation of Asserted Restrictions--Computer Software.
* * * * *
(b) Justification. The Contractor shall maintain records sufficient
to justify the validity of any asserted restrictions on the
Government's rights to use, modify, reproduce, perform, display,
release, or disclose computer software delivered, required to be
delivered, or otherwise provided to the Government under this contract
and shall be prepared to furnish to the Contracting Officer a written
justification for such asserted restrictions in response to a request
for information under paragraph (d) of this clause or a challenge under
paragraph (f) of this clause.
* * * * *
(e) * * *
(1) The Government, when there are reasonable grounds to do so, has
the right to review and challenge the validity of any restrictions
asserted by the Contractor on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose computer software
delivered, to be delivered under this contract, or otherwise provided
to the Government in the performance of this contract. The Government
may exercise this right within 6 years after the date(s) the software
is delivered or otherwise furnished to the Government, or 6 years
following final payment under this contract, whichever is later. The
Government may, however, challenge a restriction on the release,
disclosure or use of computer software at any time if such software--
(A) Is publicly available;
(B) Has been furnished to the United States without restriction;
(C) Has been otherwise made available without restriction; or
(D) Is the subject of a fraudulently asserted use or release
restriction.
* * * * *
0
32. Amend 252.227-7025 by--
0
a. Revising the heading, introductory text, clause title, and clause
date;
0
b. In paragraph (a)(1), removing ``252.227-7013'' and adding ``DFARS
252.227-7013'' in its place;
0
c. In paragraph (a)(2), removing ``government purpose rights,'' and
adding ``Government purpose rights,'' in its place and removing
``252.227-7014'' and adding ``DFARS 252.227-7014'' in its place;
0
d. In paragraph (a)(3), removing ``252.227-7018'' and adding ``DFARS
252.227-7018'';
0
e. Revising paragraph (b)(1)(i);
0
f. Redesignating paragraph (b)(1)(ii) as paragraph (b)(1)(iv);
0
g. Adding new paragraph (b)(1)(ii) and paragraph (b)(1)(iii);
0
h. In the newly redesignated (b)(1)(iv), removing ``(b)(5)'' and adding
``(b)(6)'' in its place; and adding a period at the end of the
sentence;
0
i. In paragraph (b)(2), removing ``government'' and adding
``Government'' in its place wherever it appears; and removing
``227.7103-7'' and adding ``DFARS 227.7103-7'' in its place;
0
j. In paragraph (b)(3)(i) removing ``227.7103-7'' and adding ``DFARS
227.7103-7'' in its place;
0
k. In paragraph (b)(3)(ii), removing ``(b)(5)'' and adding ``(b)(6)''
in its place;
0
l. Revising paragraph (b)(4);
0
m. Redesignating paragraph (b)(5) as (b)(6);
0
n. Adding new paragraph (b)(5);
0
o. In the newly redesignated (b)(6) introductory text, removing
``legends'' and adding ``legends or markings'' in its place;
0
p. Revising paragraph (b)(6)(iii); and
0
q. Adding paragraph (e).
The revisions and additions read as follows:
252.227-7025 Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Legends or Markings.
As prescribed in 227.7102-4(c), 227.7103-6(c), 227.7104(f)(1),
227.7202-4(b), or 227.7203-6(d), use the following clause:
LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED
INFORMATION WITH RESTRICTIVE LEGENDS OR MARKINGS (DATE)
* * * * *
(b) * * *
(1) * * *
(i) The Contractor shall use, modify, reproduce, perform, or
display technical data received from the Government with limited rights
legends, computer software received with restricted rights legends, or
SBIR technical data or computer software received with SBIR data rights
legends (during the SBIR data protection period) only in the
performance of this contract and only for activities authorized in the
license for recipients of the data or software. The Contractor shall
not, without the express written permission of the party whose name
appears in the legend, use the data or software for any unauthorized
purpose or release or disclose the data or software to any unauthorized
person.
(ii) The Contractor shall ensure that the party whose name appears
in the legend is notified prior to such
[[Page 39500]]
authorized release or disclosure, except that notice regarding--
(A) Covered Government support contractor activities shall be made
as soon as practicable, but not later than 30 days after such release
or disclosure; and
(B) Emergency repair or overhaul activities shall be made as soon
as practicable.
(iii) The Contractor shall destroy (or return to the Government at
the request of the Contracting Officer) the data or software and all
copies in its possession promptly following completion of the
authorized activities under this contract, and shall notify the party
whose name appears in the legend that the data or software has been
destroyed (or returned to the Government).
* * * * *
(4) GFI technical data marked with commercial restrictive markings.
(i) The Contractor shall use, modify, reproduce, perform, or
display technical data that is or pertains to a commercial item and is
received from the Government with commercial restrictive markings
(i.e., marked to indicate that such data are subject to use,
modification, reproduction, release, performance, display, or
disclosure restrictions) only in the performance of this contract and
only for activities authorized in the commercial limited rights license
(defined at DFARS 252.227-7015(a)(2)), or any additional specially
negotiated license rights (pursuant to 252.227-7015(c)), for recipients
of the technical data. The Contractor shall not, without the express
written permission of the party asserting such restrictions, use the
technical data to manufacture additional quantities of the commercial
items or for any other unauthorized purpose, or release or disclose
such data to any unauthorized person.
(ii) The Contractor shall ensure that the party asserting
restrictions is notified prior to such authorized release or
disclosure, except that notice regarding--
(A) Covered Government support contractor activities shall be made
as soon as practicable, but not later than 30 days after such release
or disclosure; and
(B) Emergency repair or overhaul activities shall be made as soon
as practicable.
(iii) The Contractor shall destroy (or return to the Government at
the request of the Contracting Officer) the data and all copies in its
possession promptly following completion of the authorized activities
under this contract, and shall notify the party asserting restrictions
that the data has been destroyed (or returned to the Government).
(iv) If the Contractor is a covered Government support contractor,
the Contractor is also subject to the additional terms and conditions
at paragraph (b)(6) of this clause.
(5) GFI commercial computer software marked with commercial
restrictive markings.
(i) The Contractor shall use, modify, reproduce, perform, or
display commercial computer software, or segregation or reintegration
data pertaining to commercial computer software, received from the
Government with commercial restrictive markings (i.e., marked to
indicate that such software are subject to use, modification,
reproduction, release, performance, display, or disclosure
restrictions) only in the performance of this contract and only for
activities, if any, that are authorized in the applicable commercial
license or any additional specially negotiated license rights (pursuant
to DFARS 227.7202-3). The Contractor shall not, without the express
written permission of the party asserting such restrictions, use the
computer software for any other unauthorized purpose, or release or
disclose such software to any unauthorized person.
(ii) The Contractor shall ensure that the party asserting
restrictions is notified prior to such authorized release or
disclosure.
(iii) The Contractor shall destroy (or return to the Government at
the request of the Contracting Officer) the software and all copies in
its possession promptly following completion of the authorized
activities under this contract, and shall notify the party asserting
restrictions that the data or software has been destroyed (or returned
to the Government).
(6) * * *
(iii) The Contractor will ensure that the party whose name appears
in the legend or marking is notified of the release or disclosure as
soon as practicable, but not later than 30 days after such release or
disclosure;
* * * * *
(e) The rights and obligations of the parties under this clause
shall survive the termination, expiration, or completion of this
contract.
252.227-7027 [Removed and Reserved.]
0
33. Remove and reserve section 252.227-7027.
0
34. Add section 252.227-7029 to read as follows:
252.227-7029 Deferred Ordering of Technical Data or Computer Software.
As prescribed at 227.7102-4(d), 227.7103-8(c)(2), 227.7104(e)(4),
227.7202-4(c), and 227.7203-8(c)(2), use the following clause:
DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE (DATE)
(a) Definitions. As used in this clause--
Applied research and development are defined at FAR 35.001.
Commercial computer software, computer software, computer software
documentation, detailed manufacturing or process data, developed,
developed exclusively at private expense, developed exclusively with
Government funds, developed with mixed funding, form, fit, and function
data, segregation or reintegration data, and technical data are defined
in the DFARS at--
(1) 252.227-7013, Rights in Technical Data--Noncommercial Items;
(2) 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation;
(3) 252.227-7015, Technical Data--Commercial Items; and
(4) 252.227-7018, Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program.
Commercially available off-the-shelf software means computer
software that is a commercially available off-the-shelf item.
Form, fit, and function data means technical data or computer
software that describes the required overall physical, logical,
configuration, mating, attachment, interface, functional, and
performance characteristics (along with the qualification requirements,
if applicable) of an item or process to the extent necessary to permit
identification of physically or functionally equivalent items or
processes. The term does not include computer software source code, or
detailed manufacturing or process data.
Segregation or reintegration data means technical data or computer
software that is more detailed than form, fit, and function data and
that is necessary for the segregation of an item or process from, or
the reintegration of that item or process (or a physically or
functionally equivalent item or process) with, other items or
processes.
(1) Unless agreed otherwise by the Government and the contractor,
the nature, quality, and level of technical detail necessary for these
data or software shall be that required for persons reasonably skilled
in the art to
[[Page 39501]]
perform such segregation or reintegration activities.
(2) The segregation or reintegration of any such an item or process
may be performed at any practical level, including down to the lowest
practicable segregable level, e.g., a subitem or subcomponent level, or
any segregable portion of a process, computer software (e.g., a
software subroutine that performs a specific function), or
documentation.
(3) The term--
(i) Includes data or software that describes in more detail (than
form, fit, and function data) the physical, logical, or operational
interface or similar functional interrelationship between the items or
processes; and
(ii) May include, but would not typically require, detailed
manufacturing or process data or computer software source code to
support such segregation or reintegration activities.
Technical data or computer software generated or utilized in the
performance of this contract or any subcontract hereunder means--
(1) Technical data or computer software developed in the
performance of this contract or any subcontract hereunder;
(2) Technical data pertaining to an item or process that is
developed, delivered, or incorporated into the design of a system, in
the performance of this contract or any subcontract hereunder;
(3) Computer software or computer software documentation pertaining
to computer software designed, developed, or delivered in the
performance of this contract or any subcontract hereunder;
(4) Technical data or computer software used to provide services in
the performance of this contract or any subcontract hereunder; or
(5) Technical data or computer software, other than commercially
available off-the-shelf software, necessary to access, use, reproduce,
modify, perform, display, release, or disclose any of the technical
data or computer software identified in paragraphs (1) through (4) of
this definition.
(b) In addition to technical data or computer software specified
elsewhere in this contract to be delivered or otherwise furnished
hereunder, the Government may at any time order technical data or
computer software as follows:
(1) Except as provided in paragraph (b)(2) of this clause, the
Government may require delivery of any technical data or computer
software generated or utilized in the performance of this contract or
any subcontract hereunder, upon a determination by the Government that
the technical data or computer software--
(i) Is needed for the purpose of development, production,
reprocurement, sustainment, modification, or upgrade (including through
competitive means) of--
(A) A major system or subsystem thereof;
(B) A weapon system or subsystem thereof;
(C) Any noncommercial item; or
(D) Any portion of a commercial item that was either developed
exclusively with Government funds or developed with mixed funding, or
that was a modification made at Government expense; and
(ii) Either--
(A) Pertains to an item or process that was either developed
exclusively with Government funds or developed with mixed funding;
(B) Was generated either exclusively with Government funds or with
mixed funding in cases when contract performance did not involve the
development of an item or process; or
(C) Is form, fit, and function data, or segregation or
reintegration data.
(2) For technical data or computer software resulting from basic
research or applied research, the Government is not required to make
the determination that such technical data or computer software is
needed for the purposes set forth at paragraph (b)(1)(i).
(c) If the Contractor asserts in writing to the Contracting Officer
that technical data or computer software that is or may be covered by a
determination in paragraph (b)(1)(ii)(A) or (B) of this clause pertains
to an item or process developed exclusively at private expense, the
contractor's assertion shall include information sufficient for the
Contracting officer to evaluate the assertion, and that assertion shall
be governed by the applicable procedures for validation of asserted
restrictions at DFARS 252.227-7019, Validation of Asserted
Restrictions--Computer Software, or 252.227-7037, Validation of
Asserted Restrictions on Technical Data. Any other assertion or
disagreement shall be governed by the applicable disputes clause.
(d) This clause shall not be interpreted as imposing an obligation
on the Contractor to preserve any technical data or computer software
covered by this clause for longer than a reasonable period. However,
this does not restrict the Government from including a contract
requirement for the Contractor to preserve such technical data or
computer software for a specific period.
(e) When technical data or computer software is ordered under
paragraph (b) of this clause, the Contractor shall be compensated only
for reasonable costs incurred for converting and delivering the
technical data or computer software into the required form.
(f) The Government's rights to use such technical data or computer
software shall be pursuant to the applicable rights in technical data
and computer software clause(s), or pursuant to DFARS 227.7202 in the
case of commercial computer software, in effect as of the date of award
of this contract.
(g) The Government may exercise its deferred ordering rights by any
means available for ordering technical data or computer software,
including unilateral contract modification. Nothing contained in this
clause shall be construed as altering or limiting the ability of the
Government to order technical data (including computer software
documentation) or computer software by mutual agreement with the
Contractor. The rights provided to the Government in this clause are in
addition to and do not limit any rights afforded to the Government by
any other clause of this contract.
(h) The Government is not foreclosed from requiring the delivery of
the technical data or computer software by a failure to challenge, in
accordance with the requirements of the applicable validation of
asserted restrictions or restrictive markings clause, the contractor's
assertion of a use or release restriction on the technical data or
computer software.
(i) The rights and obligations of the parties under this clause
shall survive the termination, expiration, or completion of this
contract.
(j) Flowdown. The Contractor or subcontractor shall insert this
clause in contractual instruments with its subcontractors or suppliers
at any tier, including subcontracts for commercial items, except for
subcontracts solely for commercial items that are not being acquired
for--
(1) A major system or subsystem thereof; or
(2) A weapon system or subsystem thereof.
(End of clause)
0
35. Amend section 252.227-7037 by--
0
a. Revising the heading, introductory text, clause title, and clause
date;
0
b. Revising paragraph (c);
0
c. Revising paragraph (d)(1);
0
d. Revising paragraph (d)(2);
0
e. In paragraph (d)(3), removing ``marking'' and adding ``asserted
restriction'' in its place wherever it appears; and removing ``item,
[[Page 39502]]
component, or process'' and adding ``item or process'' in its place;
0
f. Revising paragraph (e)(1) introductory text;
0
g. In paragraph (e)(1)(ii), removing ``sixty (60) days'' and adding
``60 days'' in its place;
0
h. Revising paragraph (e)(1)(iii);
0
i. In paragraph (e)(4), removing ``restrictive markings'' and adding
``asserted restrictions'' in its place;
0
j. In paragraph (g)(1), removing ``restrictive marking'' and adding
``asserted restriction'' in its place wherever it appears; and removing
``sixty (60) days'' and adding ``60 days'' in its place in two places;
0
k. In paragraph (g)(2)(i), removing ``restrictive marking'' and adding
``asserted restriction'' in its place; and removing ``sixty (60) days''
and adding ``60 days'' in its place in two places;
0
l. Revising paragraph (g)(2)(ii);
0
m. Revising paragraph (g)(2)(iii);
0
n. In paragraph (g)(2)(iv), removing ``restrictive markings'' and
adding ``asserted restrictions'' in its place in two places;
0
o. In paragraph (h)(1)(i), removing ``restrictive marking'' and adding
``restrictive marking supported by the asserted restrictions'' in its
place;
0
p. Revising paragraph (h)(1)(ii);
0
q. Revising paragraph (i);
0
r. Revising paragraph (j); and
0
s. Revising paragraph (k).
The revisions read as follows:
252.227-7037 Validation of Asserted Restrictions on Technical Data.
As prescribed in 227.7102-4(e), 227.7103-6(e)(3), 227.7104(e)(5),
or 227.7203-6(f), use the following clause:
VALIDATION OF ASSERTED RESTRICTIONS ON TECHNICAL DATA (DATE)
* * * * *
(c) Justification. The Contractor or subcontractor at any tier is
responsible for maintaining records sufficient to justify the validity
of its asserted restrictions on the rights of the Government and others
to use, duplicate, release or disclose technical data delivered;
required to be delivered, or otherwise provided to the Government under
the contract or subcontract. Except as provided in paragraph (b)(1) of
this clause, the Contractor or subcontractor shall be prepared to
furnish to the Contracting Officer a written justification for such
asserted restrictions in response to a challenge under paragraph (e) of
this clause.
(d) * * *
(1) The Contracting Officer may request the Contractor or
subcontractor to furnish a written explanation for any asserted
restriction on the right of the United States or others to use,
disclose, or release technical data, or an assertion under paragraph
(c) of DFARS 252.227-7029, Deferred Ordering of Technical Data or
Computer Software. If, upon review of the explanation submitted, the
Contracting Officer remains unable to ascertain the basis of the
asserted restriction, the Contracting Officer may further request the
Contractor or subcontractor to furnish additional information in the
records of, or otherwise in the possession of or reasonably available
to, the Contractor or subcontractor to justify the validity of any
asserted restriction on technical data delivered, to be delivered, or
otherwise provided to the Government under the contract or subcontract
(e.g., a statement of facts accompanied with supporting documentation).
The Contractor or subcontractor shall submit such written data as
requested by the Contracting Officer within the time required or such
longer period as may be mutually agreed.
(2) If the Contracting Officer, after reviewing the written data
furnished pursuant to paragraph (d)(1) of this clause, or any other
available information pertaining to the validity of an asserted
restriction, determines that reasonable grounds exist to question the
current validity of the asserted restriction and that continued
adherence to the asserted restriction would make impracticable the
subsequent competitive acquisition of the item or process to which the
technical data relates, the Contracting Officer shall follow the
procedures in paragraph (e) of this clause.
* * * * *
(e) * * *
(1) Notwithstanding any provision of this contract concerning
inspection and acceptance, if the Contracting Officer determines that a
challenge to the asserted restriction is warranted, the Contracting
Officer shall send a written challenge notice to the Contractor or
subcontractor making the asserted restriction. Such challenge shall--
* * * * *
(iii) State that a DoD Contracting Officer's final decision, issued
pursuant to paragraph (g) of this clause, sustaining the validity of a
prior asserted restriction identical to the current asserted
restriction, within the 3-year period preceding the current challenge,
shall serve as justification for the current asserted restriction if
the prior validated restriction was asserted by the same Contractor or
subcontractor (or any licensee of such Contractor or subcontractor) to
which such notice is being provided; and
* * * * *
(g) * * *
(2) * * *
(ii) The Government agrees that it will continue to be bound by the
asserted restriction for a period of 90 days from the issuance of the
Contracting Officer's final decision under paragraph (g)(2)(i) of this
clause. The Contractor or subcontractor agrees that, if it intends to
file suit in the United States Claims Court it will provide a notice of
intent to file suit to the Contracting Officer within 90 days from the
issuance of the Contracting Officer's final decision under paragraph
(g)(2)(i) of this clause. If the Contractor or subcontractor fails to
appeal, file suit, or provide a notice of intent to file suit to the
Contracting Officer within the 90-day period, the Government may cancel
or ignore the restrictive markings supported by the asserted
restriction, or may require delivery of the technical data or computer
software covered by the asserted restriction pursuant to DFARS 252.227-
7029, Deferred Ordering of Technical Data or Computer Software, and the
failure of the Contractor or subcontractor to take the required action
constitutes agreement with such Government action.
(iii) The Government agrees that it will continue to be bound by
the asserted restriction where a notice of intent to file suit in the
United States Claims Court is provided to the Contracting Officer
within 90 days from the issuance of the final decision under paragraph
(g)(2)(i) of this clause. The Government will no longer be bound, and
the Contractor or subcontractor agrees that the Government may strike
or ignore the restrictive markings supported by the asserted
restrictions, if the Contractor or subcontractor fails to file its suit
within 1 year after issuance of the final decision. Notwithstanding the
foregoing, where the head of an agency determines, on a nondelegable
basis, that urgent or compelling circumstances will not permit waiting
for the filing of a suit in the United States Claims Court, the
Contractor or subcontractor agrees that the agency may, following
notice to the Contractor or subcontractor, authorize release or
disclosure of the technical data. Such agency determination may be made
at any time after issuance of the final decision and will not affect
the Contractor's or subcontractor's right to damages against the United
States where its asserted restrictions are
[[Page 39503]]
ultimately upheld or to pursue other relief, if any, as may be provided
by law.
* * * * *
(h) * * *
(1) * * *
(ii) If the asserted restriction is found not to be substantially
justified, the Contractor or subcontractor, as appropriate, shall be
liable to the Government for payment of the cost to the Government of
reviewing the asserted restriction supporting the restrictive marking
and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A))
incurred by the Government in challenging the asserted restriction
supporting the restrictive marking, unless special circumstances would
make such payment unjust.
* * * * *
(i) Duration of right to challenge. The Government may review the
validity of any restriction on technical data, delivered, to be
delivered, or otherwise provided to the Government under a contract,
asserted by the Contractor or subcontractor. During the period within 6
years of final payment on a contract or within 6 years of delivery of
the technical data to the Government, whichever is later, the
Contracting Officer may review and make a written determination to
challenge the asserted restriction. The Government may, however,
challenge an asserted restriction on the release, disclosure or use of
technical data at any time if such technical data--
(1) Are publicly available;
(2) Have been furnished to the United States without restriction;
(3) Have been otherwise made available without restriction; or
(4) Are the subject of a fraudulently asserted use or release
restriction.
(j) Decision not to challenge. A decision by the Government, or a
determination by the Contracting Officer, to not challenge the asserted
restriction supporting a restrictive marking shall not constitute
``validation.'' Only the Contracting Officer's final decision or
actions of an agency Board of Contract Appeals or a court of competent
jurisdiction that sustains the validity of an asserted restriction
constitute validation of the restriction.
(k) Privity of contract. The Contractor or subcontractor agrees
that the Contracting Officer may transact matters under this clause
directly with subcontractors at any tier that assert restrictions on
the right of the United States or others to use, disclose or release
technical data. However, this clause neither creates nor implies
privity of contract between the Government and subcontractors.
* * * * *
[FR Doc. 2016-14266 Filed 6-15-16; 8:45 am]
BILLING CODE 5001-06-P
