Defense Federal Acquisition Regulation Supplement: Noncommercial Computer Software (DFARS Case 2018-D018), 4546-4551 [2022-01386]
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Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Proposed Rules
environmental health or safety risks
addressed by this action present a
disproportionate risk to children. The
change to the definition of PRR would
not affect the overall risk to children
posed by boiler emissions. This is
because the overall level of emissions,
or the emissions mix from boilers, are
not expected to change significantly
because of the change in definition of
PRR and these units remain subject to
the protective standards established
under CAA section 112.
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H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ because it is not likely to
have a significant adverse effect on the
supply, distribution or use of energy.
The selected NHSMs affected by this
proposed action would not be generated
in quantities sufficient to significantly
(adversely or positively) impact the
supply, distribution, or use of energy at
the national level. Even if 100% of the
available PRR were converted to energy
(an unlikely best-case scenario), that
would translate to a potential increase
of only 0.002% to 0.003% in the
national energy supply, and these
effects would be localized at recycling
paper mills.
I. National Technology Transfer and
Advancement Act (NTTAA)
This action involves technical
standards. The EPA proposes to use a
2% by weight limit on the amount of
non-fiber content allowed in paper
recycling residuals (PRR) when burned
as a non-waste fuel. This is based on a
voluntary consensus standard set by the
Institute of Scrap Recycling Industries
(ISRI) in their Scrap Specifications
Circular (2021); which identifies a 2%
prohibitive material content limit for
paper stock used for re-pulping paper.
See page 34; https://www.scrap2.org/
specs/. In the circular, prohibitive
material is material which by its
presence, in excess of the amount
allowed, will make the pack unusable as
the grade specified, as well as any
material that may be damaging to
equipment. In evaluating the grades of
paper identified in the circular, the
maximum allowance of prohibitive
materials in mixed paper (which
consists of all paper and paperboard of
various qualities not limited to the type
of fiber content) is 2%. The Agency
proposes that this prohibitive material
measure can provide an analogous
measure for allowable amounts of nonfiber materials (including polystyrene
foam, polyethlene film, other plastics,
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waxes, adhesives, dyes and inks, clays,
starches and other coating and filler
material) contained within PRR.
■
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action, if
finalized, would not have
disproportionately high and adverse
human health or environmental effects
on minority populations, low-income
populations and/or indigenous peoples,
as specified in Executive Order 12898
(59 FR 7629, February 16, 1994). The
proposed change in definition of PRR is
not expected to significantly change the
overall level of emissions, or the
emissions mix from boilers, and these
units remain subject to the protective
standards established under CAA
section 112.
However, if EPA were to grant the
petitioners’ requests, CTRT could be
combusted in biomass-only boilers,
including biomass boilers that are area
sources under the CAA. As discussed
earlier, these boilers would have higher
emissions when burning CTRT rather
than biomass. Emission standards for
dioxins, SO2, NOX, etc. for non-major
sources are addressed under the CAA
section 129 standards but are not
addressed by area source boiler
standards under CAA section 112 which
require only tune-ups. The risks from
increased emissions would most likely
be disproportionately borne by minority
and low-income communities. In areas
within three miles of boilers, the
minority share of the population was
found to be 33 percent, compared to the
national average of 25 percent. For these
same areas, the percent of the
population below the poverty line (16
percent) is also higher than the national
average (13 percent).
§ 241.2
List of Subjects in 40 CFR Part 241
Environmental protection, Air
pollution control, Waste treatment and
disposal, Non-Hazardous Secondary
Materials.
Michael S. Regan,
Administrator.
For the reasons stated in the
preamble, the EPA is proposing to
amend 40 CFR part 241 of the Code of
Federal Regulations as follows:
PART 241—SOLID WASTES USED AS
FUELS OR INGREDIENTS IN
COMBUSTION UNITS
1. The authority citation for part 241
continues to read as follows:
■
Authority: 42 U.S.C. 6903, 6912, 7429.
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2. Amend § 241.2 by revising the
definition of ‘‘paper recycling residuals’’
to read as follows:
Definitions.
*
*
*
*
*
Paper recycling residuals (PRR) means
the secondary material generated from
the recycling of paper, paperboard and
corrugated containers composed
primarily of fibers that are too small or
weak to be used to make new paper and
paperboard products. PRR that contain
more than 2% by weight of non-fiber
materials, including polystyrene foam,
polyethlene film, other plastics, waxes,
adhesives, dyes and inks, clays, starches
and other coating and filler material are
not PRR under this definition.
*
*
*
*
*
[FR Doc. 2022–01074 Filed 1–27–22; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 227, 237, 239, and 252
[Docket DARS–2019–0067]
RIN 0750–AK87
Defense Federal Acquisition
Regulation Supplement:
Noncommercial Computer Software
(DFARS Case 2018–D018)
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 2018 that requires DoD to consider
all noncommercial computer software
and related materials necessary to meet
the needs of the agency. In addition to
the request for written comments on this
proposed rule, DoD will hold a public
meeting to hear the views of interested
parties.
DATES:
Submission of Comments: Comments
on the proposed rule should be
submitted in writing to the address
shown below on or before March 29,
2022, to be considered in the formation
of a final rule.
Public Meeting: A virtual public
meeting will be held on March 3, 2022,
from 11:00 a.m. to 2:30 p.m. Eastern
time. DoD will also reserve 2:30 p.m. to
5:00 p.m. Eastern time on the same day,
SUMMARY:
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if DoD determines additional discussion
is necessary. The public meeting will
end at the stated time, or when the
discussion ends, whichever comes first.
Registration: Registration to attend the
public meeting must be received no
later than close of business on February
24, 2022. Information on how to register
for the public meeting may be found
under the heading SUPPLEMENTARY
INFORMATION section of this notice.
ADDRESSES:
Public Meeting: A virtual public
meeting will be held using Zoom video
conferencing software.
Submission of Comments: Submit
written comments identified by DFARS
Case 2018–D018, using any of the
following methods:
Æ Federal eRulemaking Portal:
https://www.regulations.gov. Search for
‘‘DFARS Case 2018–D018.’’ Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
‘‘DFARS Case 2018–D018’’ on any
attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D018 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT: Mr.
David E. Johnson, telephone 571–372–
6115.
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SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the
DFARS to implement section 871 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2018 (Pub.
L. 115–91). Section 871 established new
direction at 10 U.S.C. 2322a,
Requirement for consideration of certain
matters during acquisition of
noncommercial computer software. The
statute requires that DoD, as part of any
negotiation for such software, consider
all noncommercial computer software
and related materials necessary to meet
the needs of the agency. This rule
provides direction to DoD both to
improve acquisition planning and to
identify and negotiate for software
deliverables and license rights at a fair
and reasonable price before contract
award. DoD published an advance
notice of proposed rulemaking (ANPR)
on January 14, 2020, at 85 FR 2101 and
hosted a public meeting on February 18,
2020, to obtain the views of interested
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parties. DoD accepted public comments
through March 16, 2020. Two
respondents submitted public
comments in response to the ANPR.
II. Public Meeting
DoD is interested in continuing a
dialogue with experts and interested
parties in Government and the private
sector regarding amending the DFARS
to implement section 871 of the NDAA
for FY 2018, which requires DoD to
consider all noncommercial computer
software and related materials necessary
to meet the needs of the agency.
Registration: Individuals wishing to
participate in the virtual meeting must
register by February 24, 2022, to
facilitate entry to the meeting.
Registration for the virtual meeting will
be valid also for the additional
discussion time, if DoD determines
additional time is needed (see the DATES
section of this preamble). Interested
parties may register for the meeting by
sending the following information via
email to osd.dfars@mail.mil and include
‘‘Public Meeting, DFARS Case 2018–
D018’’ in the subject line of the message:
• Full name.
• Valid email address, which will be
used for admittance to the meeting.
• Valid telephone number, which
will serve as a secondary connection
method. Registrants must provide the
telephone number they plan on using to
connect to the virtual meeting.
• Company or organization name.
• Whether the individual desires to
make a presentation.
Pre-registered individuals will receive
instructions for connecting using the
Zoom video conferencing software not
more than one week before the meeting
is scheduled to commence.
Presentations: Presentations will be
limited to 5 minutes per company or
organization. This limit may be subject
to adjustment, depending on the
number of entities requesting to present,
in order to ensure adequate time for
discussion. If you wish to make a
presentation, please submit an
electronic copy of your presentation via
email to osd.dfars@mail.mil no later
than the registration date for the specific
meeting. Each presentation should be in
PowerPoint to facilitate projection
during the public meeting and should
include the presenter’s name, title,
organization affiliation, telephone
number, and email address on the cover
page.
Correspondence, Comments, and
Presentations: Please cite ‘‘Public
Meeting, DFARS Case 2018–D018’’ in
all correspondence related to the public
meeting. There will be no transcription
at the meeting. The submitted
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presentations will be the only record of
the public meeting and will be posted
to the following website at the
conclusion of the public meeting:
https://www.acq.osd.mil/dpap/dars/
technical_data_rights.html.
III. Discussion and Analysis
DoD reviewed the public comments
submitted in response to the ANPR in
the development of the proposed rule.
One respondent provided a comment
that indicated concurrence with the
rule. A discussion of the remaining
comments and the changes made to the
rule as a result of those comments are
provided as follows:
A. Summary of Significant Changes
From the ANPR
DFARS 227.7202–1 and 227.7203–2
were clarified in response to public
comments. New text was added to
DFARS 227.7203–2 to provide
additional guidance on assessing lifecycle needs. Several changes were made
to terms in the proposed rule as follows:
• The term ‘‘related data’’ was
replaced with related recorded
information;
• The description of required
software libraries was revised to further
clarify its scope; and
• The Government’s minimum needs
in DFARS 227.7103–2(b)(1) and
227.7203–2(b)(1) were clarified.
The proposed definition of data at
DFARS 227.001 was deleted. DFARS
227.7203–2(b)(1) was revised to align
with the text in DFARS 227.7103–
2(b)(1). The definition of restricted
rights was revised to permit the
Government to make and use a
reasonable number of copies of
computer software for the purposes
described in the contract clauses at
DFARS 252.227–7014, Rights in
Technical Data—Noncommercial Items,
and 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research (SBIR) Program.
B. Analysis of Public Comments
1. Proposed Rule Applies Program
Management Elements to Contracting
Personnel
Comment: The respondent expresses
concern that the rule addresses
functions that are normally performed
by program managers, engineers,
configuration managers, and other
program personnel and places those
responsibilities on contracting
personnel. The respondent recommends
that these requirements would be best
addressed within a program’s
intellectual property (IP) strategy.
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Response: DoD acknowledges that the
requirements for program personnel are
currently addressed in DoD instructions
(DoDIs), such as DoDI 5000.87,
Operation of the Software Acquisition
Pathway, and DoDI 5010.44, Intellectual
Property (IP) Acquisition and Licensing.
DFARS 227.7203–2(a) currently
provides for contracting officers to work
closely with program personnel when
developing requirements to meet the
Government’s needs. Currently, DFARS
227.7203–2(b) delineates the
responsibilities of data managers in
assessing life-cycle needs, and
227.7203–2(c) requires contracting
officers to ensure that solicitations and
contracts include certain requirements
for software deliverables. The rule
proposes to revise this language because
the statute impacts the direction related
to assessments of life-cycle needs,
solicitations, and contracts.
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2. Application to Commercial Computer
Software
Comment: The respondent asserts that
the plain language in paragraphs (a) and
(b) of 10 U.S.C. 2322a make it clear that
Congress intended for the provision to
only apply to noncommercial computer
software.
Response: Although the statute relates
to the acquisition of noncommercial
computer software, the statute also
discourages reliance on ‘‘external or
additional computer software or
technical data’’ with no limitations with
respect to commerciality. DoD revised
DFARS 227.7203–2(c)(6) to clarify that
the proposed rule is limited to
noncommercial computer software,
except in cases where the software relies
on additional internal or external
commercial computer software or
technical data. The proposed rule
permits reliance on additional internal
or external computer software when
such software is commercially available
with the necessary license rights.
DFARS 227.7202–1 and 227.7203–2
have been revised to address the
relationship between noncommercial
software and commercial software while
maintaining the policies set forth in
DFARS 227.7202–1(c).
3. Proposed Changes to DFARS
227.7203–2 Encourage Acquisition of
All Forms of Noncommercial Computer
Software in All Instances
Comment: The respondent expresses
concern that the proposed rule could be
interpreted as requiring the contracting
officer to acquire all forms of
noncommercial computer software in all
instances, rather than tailoring
acquisitions to meet DoD’s actual needs.
The respondent recommends an
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emphasis on the life-cycle needs for a
program or system, including software
maintenance.
Response: DFARS 227.7203–1(a)
provides that DoD may acquire only the
computer software and computer
software documentation, and the rights
in such software or documentation,
necessary to satisfy agency needs. This
direction remains unchanged. The
proposed rule does require the
assessment of life-cycle needs to address
acquisition of software at appropriate
times in the life cycle of a product,
program, or system.
4. DFARS 227.7203–2 Should Consider
Whether the Software Was Developed at
Private Expense
Comment: The respondent
recommends that the rule consider
whether the software was developed at
private expense to incentivize
investment of private funds into
noncommercial software development
to meet DoD needs. The respondent also
recommends DoD consider alternatives
to the delivery of source code and
related software design details.
Response: DoD concurs with the
comment and revised DFARS 227.7203–
2(b)(2)(ii) to include consideration of
alternatives to the delivery of source
code and related software design details
for privately developed noncommercial
computer software.
5. References to Necessary or Associated
License Rights May Be Subject to
Misinterpretation
Comment: The respondent states that
the proposed DFARS 227.7203–2 should
not refer to ‘‘necessary’’ or ‘‘associated’’
license rights when discussing the need
to acquire specific types of software.
There is a risk that this could be
misinterpreted as requiring a separate
licensing scheme that is not subject to
the existing noncommercial software
licensing policies in DFARS 227.7203–
1.
Response: Existing policies in DFARS
227.7203–1 and 227.7203–2 address
these concerns. Contracting officers
must ensure consistency with DFARS
227.7203–1(c), which prohibits a
contractor from being required to sell or
relinquish to DoD greater rights than
required under DFARS 227.7203–5(a)(3)
through (6).
6. New Terms Introduced in the ANPR
Comment: The respondent states a
concern that the proposed new
definition for data is not needed to
implement 10 U.S.C. 2322a and would
ultimately cause confusion within the
acquisition workforce. The respondent
also expresses concerns about the new
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term ‘‘related data’’ and recommends
‘‘related computer software
documentation’’ instead.
Response: DoD concurs and has
removed the definition of data from the
proposed rule. To avoid confusion about
the scope of the term ‘‘related data’’ and
better align with the broader scope of
the term ‘‘related materials’’ in 10 U.S.C.
2322a, ‘‘related data’’ has been changed
to ‘‘related recorded information,’’
which is more consistent with 10 U.S.C.
2302(4) and existing DFARS
terminology.
7. Use of Terms Consistent With Other
Acquisition Documents
Comment: The respondent asserts that
DFARS 227.7203–2 should use
terminology used in other acquisition
documents, such as those contained in
a Data Item Description (DID). The
respondent expresses concerns with the
terms ‘‘required software libraries’’ and
‘‘software revision history.’’
Response: The term ‘‘required
software libraries’’ is intended to
implement the term ‘‘required libraries’’
in 10 U.S.C. 2322a. DFARS 227.7203–
2(b)(2)(i) and 227.7203–2(c)(6)(ii) have
been revised to include examples of
required software libraries. The term
‘‘software revision history’’ has been
changed to ‘‘software version history’’
consistent with the term ‘‘software
version’’ used in the ‘‘Software Version
Description’’ DID, DI–IPSC–81442A.
8. Policy Changes to DFARS 239.101
Should Require a Written Determination
by the Head of the Contracting Activity
Comment: The respondent
recommends that a parenthetical should
be added to ensure the policy change of
DFARS 239.101 is only used where
there is a written determination by the
‘‘head of the contracting authority.’’
Response: DFARS 239.101(1)
currently requires a written
determination by the head of the
contracting activity.
9. Future Rulemaking Should Address
Recommendations Presented by the
2018 Government-Industry Advisory
Panel on Technical Data Rights
Comment: Although the respondent
acknowledges that this recommendation
is not within the scope of implementing
10 U.S.C. 2322a, the respondent
recommends that DoD’s future
rulemaking address the specific
Government-industry recommendations
included in the 2018 Report submitted
by the Government-Industry Advisory
Panel on Technical Data Rights (the
‘‘Section 813 Panel Final Report’’).
Response: To the extent that such
recommendations align with other
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proposed revisions made to implement
10 U.S.C. 2322a, DoD considered
recommendations in the Section 813
Panel Final Report. DoD is proposing
various DFARS revisions that adopt
recommendations made in the Section
813 Panel Final Report.
C. Other Changes
DFARS 227.7100 and 227.7200 were
revised to remove a reference to 10
U.S.C. 2325 that was revoked in 1994
(Pub. L. 103–355) and to correct the
citation to Executive Order 12591.
DFARS 227.7100 and 227.7200 were
also revised to emphasize the
importance of assessing life-cycle needs.
DFARS 227.7203–2(b)(2)(i)(B) through
(D) were revised to be consistent with
acquisition policies in section 3.2 of
DoDI 5000.87, which is closely aligned
with the subject matter of this case.
DFARS 227.7203–2(c)(6) was also
revised to clarify the contracting
officer’s responsibilities with respect to
this section. DFARS 237.102 was
revised to add references to 227.7202
and 227.7203, emphasizing the need to
consider this guidance in service
contracts.
The definition of technical data in the
contract clauses at DFARS 252.227–
7013, 252.227–7015, and 252.227–7018
has been revised to clarify the types of
information excluded from the
definition in 10 U.S.C. 2302.
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IV. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This proposed rule does not create
any new solicitation provisions or
contract clauses. It does not change the
applicability of any existing provisions
or clauses included in solicitations and
contracts valued at or below the
simplified acquisition threshold or for
commercial items, including
commercially available off-the-shelf
items.
V. Executive Orders 12866 and 13563
E.O.s 12866 and 13563 direct agencies
to assess all costs and benefits of
available regulatory alternatives and, if
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
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E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VI. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will send a copy of the interim or final
rule and the ‘‘Submission of Federal
Rules Under the Congressional Review
Act’’ form to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. This rule is not
anticipated to be a major rule under 5
U.S.C. 804.
VII. Regulatory Flexibility Act
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., because the statutory
requirements are directed at the internal
processes of the Government rather than
contractors. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows:
DoD is proposing to implement
section 871 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2018 (Pub. L. 115–91). Section
871 established new direction at 10
U.S.C. 2322a, Requirement for
consideration of certain matters during
acquisition of noncommercial computer
software. The statute requires that DoD,
as part of any negotiation for such
software, consider all noncommercial
computer software and related materials
necessary to meet the needs of the
agency.
The objective of the rule is to ensure
that the Government identifies and
acquires all software necessary to meet
its needs at appropriate times in the life
cycle of a product, program, or system.
The legal basis for the rule is section
871 of the NDAA for FY 2018.
The rule may impact small entities
that are awarded DoD contracts for
noncommercial computer software, to
include contracts under the Small
Business Innovation Research and
Technology Transfer Programs. Based
on data from the Federal Procurement
Data System (FPDS) and the Electronic
Data Access (EDA) for FY 2019 through
FY 2020, DoD estimates that an average
of 6,263 unique small entities are
awarded an average of 30,146 contract
actions for noncommercial software
annually.
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This proposed rule does not impose
any new reporting, recordkeeping or
other compliance requirements.
This proposed rule does not
duplicate, overlap, or conflict with any
other Federal rules.
There are no known alternatives
which would accomplish the stated
objectives of the applicable statute.
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 2018–D018), in
correspondence.
VIII. Paperwork Reduction Act
Although the Paperwork Reduction
Act (44 U.S.C. chapter 35) applies to
this rule, these changes to the DFARS
do not impose additional information
collection requirements to the
paperwork burden previously approved
under Office of Management and Budget
(OMB) Control Number 0704–0369,
entitled ‘‘DFARS Subpart 227.71, Rights
in Technical Data; and Subpart 227.72,
Rights in Computer Software and
Computer Software Documentation, and
related provisions and clauses.’’
List of Subjects in 48 CFR Parts 227,
237, 239, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 227, 237, 239,
and 252 are proposed to be amended as
follows:
■ 1. The authority citation for 48 CFR
parts 227, 237, 239, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 227—PATENTS, DATA, AND
COPYRIGHTS
2. Revise the heading for subpart
227.71 to read as follows:
■
Subpart 227.71—Technical Data and
Associated Rights
3. Amend section 227.7100 by
revising paragraph (a) to read as follows:
■
227.7100
Scope of subpart.
*
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*
(a) Prescribes policies and procedures
for the acquisition of technical data and
the rights to use, modify, reproduce,
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release, perform, display, or disclose
technical data. It implements the
following laws and Executive order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305(d)(4).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 7317.
(6) 17 U.S.C. 1301, et seq.
(7) Public Law 103–355.
(8) Executive Order 12591 (subsection
1(b)(7)).
*
*
*
*
*
■ 4. 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 lifecycle needs for technical data.
Technical data needs must be
established giving consideration to the
contractor’s economic interests in
technical data pertaining to items,
components, or processes that have
been developed at private expense; the
Government’s costs to acquire,
maintain, store, retrieve, and protect the
technical data; reprocurement needs;
repair, maintenance and overhaul
philosophies; spare and repair part
considerations; and whether
procurement of the items, components,
or processes can be accomplished on a
form, fit, or function basis. When it is
anticipated that the Government will
obtain unlimited or government purpose
rights in technical data that will be
required for competitive spare or repair
parts procurements, such data should be
identified as deliverable technical data
items. Reprocurement needs may not be
a sufficient reason to acquire detailed
manufacturing or process data when
items or components can be acquired
using performance specifications, form,
fit, and function data, or when there are
a sufficient number of alternate sources
that can reasonably be expected to
provide such items on a performance
specification or form, fit, or function
basis.
*
*
*
*
*
■ 5. Revise the heading for subpart
227.72 to read as follows:
jspears on DSK121TN23PROD with PROPOSALS1
*
Subpart 227.72—Computer Software,
Computer Software Documentation,
and Associated Rights
6. Revise section 227.7200 to read as
follows:
■
227.7200
Scope of subpart.
(a) This subpart—
(1) Prescribes policies and procedures
for the acquisition of computer software
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17:14 Jan 27, 2022
Jkt 256001
and computer software documentation,
and the rights to use, modify, reproduce,
release, perform, display, or disclose
such software or documentation. It
implements the following laws and
Executive order:
(i) 10 U.S.C. 2302(4).
(ii) 10 U.S.C. 2305(d)(4).
(iii) 10 U.S.C. 2320.
(iv) 10 U.S.C. 2321.
(v) 10 U.S.C. 2322a.
(vi) Executive Order 12591
(subsection 1(b)(7)).
(2) Does not apply to—
(i) Computer software or computer
software documentation acquired under
GSA schedule contracts; or
(ii) Releases of computer software or
computer software documentation to
litigation support contractors (see
subpart 204.74).
(b) See PGI 227.7200(b) for guidance
and information in DoD issuances.
■ 7. Amend section 227.7202–1 by
adding paragraph (d) to read as follows:
227.7202–1
Policy.
*
*
*
*
*
(d) When establishing contract
requirements and negotiation objectives
to meet agency needs, the Government
shall consider the factors identified in
227.7203–2(b) and (c) for commercial
computer software and computer
software documentation, as applicable
in paragraph (c) of this section.
■ 8. Amend section 227.7203–2 by—
■ a. Revising the section heading and
paragraphs (b) and (c)(4) and (5); and
■ b. Adding paragraph (c)(6).
The revisions and addition read as
follows:
227.7203–2 Acquisition of noncommercial
computer software and computer software
documentation and associated rights.
*
*
*
*
*
(b)(1) Data managers or other
requirements personnel are responsible
for identifying the Government’s lifecycle needs for computer software and
computer software documentation. See
PGI 227.7203–2(b) for further guidance
on assessing life-cycle needs. In
addition to desired software
performance, compatibility, or other
technical considerations, identification
of life-cycle needs should consider such
factors as—
(i) The contractor’s economic interests
in software that has been developed at
private expense;
(ii) The Government’s costs to
acquire, maintain, store, retrieve, and
protect the computer software and
computer software documentation;
(iii) Multiple site or shared use
requirements;
(iv) Whether the Government’s
software maintenance philosophy will
PO 00000
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Fmt 4702
Sfmt 4702
require the right to modify or have third
parties modify the software; and
(v) Any special computer software
documentation requirements.
(2)(i) Procurement planning. To the
maximum extent practicable, when
assessing the life-cycle needs, data
managers or other requirements
personnel will address in the
procurement planning and requirements
documents (e.g., acquisition plans,
purchase requests) the acquisition at
appropriate times in the life cycle of all
computer software, related recorded
information, and associated license
rights necessary to—
(A) Reproduce, build, or recompile
the software from its source code and
required software libraries (e.g.,
software libraries called, invoked, or
linked by the computer software source
code that are necessary for the operation
of the software);
(B) Conduct required computer
software testing and evaluation;
(C) Integrate and deploy computer
programs on relevant hardware
including developmental, operational,
diagnostic, training, or simulation
environments; and
(D) Sustain and support the software
over its life cycle.
(ii) Delivery of alternatives to source
code and related software design
details. The assessment of life-cycle
needs should consider alternatives to
the delivery of source code and related
software design details for privately
developed computer software as
necessary to meet the Government’s
needs, such as—
(A) Technical data and computer
software sufficient to implement a
modular open system approach or a
similar approach (see PGI 227.7203–
2(b)(2)(ii)(A) for guidance on
alternatives to source code and related
software design details);
(B) Access to technical data or
computer software; see PGI 227.7203–
2(b)(2)(ii)(B) and (C) for guidance on use
of access agreements to contractor
source code and related software design
details;
(C) Software support and maintenance
provided directly from the contractor; or
(D) Other contracting or licensing
mechanisms including priced options,
specially negotiated licenses, direct
licensing between contractors for
qualifying second sources, data escrow
agreements, deferred delivery solutions,
and subscription agreements. See PGI
227.7203–2(b)(2)(ii)(D) for guidance on
use of escrow agreements.
(3) When reviewing offers received in
response to a solicitation or other
request for computer software or
computer software documentation, data
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managers must balance the original
assessment of the Government’s needs
with prices offered.
(c) * * *
(4) Include delivery schedules and
acceptance criteria for each deliverable
item;
(5) Specifically identify the place of
delivery for each deliverable item; and
(6) Specify in the negotiated terms
that any required noncommercial
computer software, related recorded
information, and associated license
rights identified in the assessment of
life-cycle needs in paragraph (b) of this
section shall, to the extent appropriate—
(i) Include computer software
delivered in a digital format compatible
with applicable computer programs on
relevant system hardware;
(ii) Not rely on additional internal or
external noncommercial or commercial
technical data and software, unless such
technical data or software is—
(A) Included in the items to be
delivered with all necessary license
rights; or
(B) Commercially available with all
necessary license rights; and
(iii) Include sufficient information,
with all necessary license rights, to
support maintenance and understanding
of interfaces and software version
history when the negotiated terms do
not allow for the inclusion of the
external or additional noncommercial or
commercial technical data and software.
PART 237—SERVICE CONTRACTS
9. Add section 237.102–XX to read as
follows:
■
jspears on DSK121TN23PROD with PROPOSALS1
237.102–XX Acquisition of computer
software and computer software
documentation under services contracts.
17:14 Jan 27, 2022
Jkt 256001
10. Amend section 239.101 by adding
paragraph (4) to read as follows:
■
239.101
*
*
*
*
(4) See 227.7203 for policy on the
acquisition of noncommercial computer
software and noncommercial computer
software documentation.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
11. Amend section 252.227–7013 by
revising the section heading, the date of
the clause, and paragraph (a)(15) to read
as follows:
■
252.227–7013 Rights in Technical Data—
Noncommercial Items.
*
*
*
*
*
Rights in Technical Data—
Noncommercial Items (DATE)
(a) * * *
(15) 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
financial, administrative, cost or
pricing, or management information, or
information incidental to contract
administration.
*
*
*
*
*
■ 12. Amend section 252.227–7014 by
revising the section heading, the date of
the clause, and paragraph (a)(15)(iii) to
read as follows:
252.227–7014 Rights in Noncommercial
Computer Software and Noncommercial
Computer Software Documentation.
*
*
*
*
Rights in Noncommercial Computer
Software and Noncommercial
Computer Software Documentation
(DATE)
(a) * * *
(15) * * *
(iii) Make and use a reasonable
number of copies of the computer
software for safekeeping (archive),
backup, development, testing,
evaluation, integration, or modification
purposes, or diagnosing and correcting
deficiencies or vulnerabilities in a
computer program;
*
*
*
*
*
PO 00000
Frm 00039
13. Amend section 252.227–7015 by
revising the section heading, the date of
the clause, and paragraph (a)(5) to read
as follows:
■
252.227–7015 Technical Data—
Commercial Items.
Policy.
*
*
(a) See 227.7202 for policy on the
acquisition of commercial computer
software and commercial computer
software documentation for services
contracts that require the development
or modification of commercial computer
software.
(b) See 227.7203 for policy on the
acquisition of noncommercial computer
software and noncommercial computer
software documentation for services
contracts that require the development
or modification of noncommercial
computer software.
VerDate Sep<11>2014
PART 239—ACQUISITION OF
INFORMATION TECHNOLOGY
Fmt 4702
Sfmt 9990
*
*
*
*
*
Technical Data—Commercial Items
(DATE)
(a) * * *
(5) Technical data means recorded
information, regardless of the form or
method of recording, of a scientific or
technical nature (including computer
software documentation). The term does
not include computer software or
financial, administrative, cost or
pricing, or management information, or
information incidental to contract
administration.
*
*
*
*
*
■ 14. Amend section 252.227–7018 by
revising the section heading, the date of
the clause, and paragraphs (a)(18)(iii)
and (a)(20) to read as follows:
252.227–7018 Rights in Noncommercial
Technical Data and Computer Software—
Small Business Innovation Research (SBIR)
Program.
*
*
*
*
*
Rights in Noncommercial Technical
Data and Computer Software—Small
Business Innovation Research (SBIR)
Program (DATE)
(a) * * *
(18) * * *
(iii) Make and use a reasonable
number of copies of the computer
software for safekeeping (archive),
backup, development, testing,
evaluation, integration, or modification
purposes, or diagnosing and correcting
deficiencies or vulnerabilities in a
computer program;
*
*
*
*
*
(20) 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
financial, administrative, cost or
pricing, or management information, or
information incidental to contract
administration.
*
*
*
*
*
[FR Doc. 2022–01386 Filed 1–27–22; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Proposed Rules]
[Pages 4546-4551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01386]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 227, 237, 239, and 252
[Docket DARS-2019-0067]
RIN 0750-AK87
Defense Federal Acquisition Regulation Supplement: Noncommercial
Computer Software (DFARS Case 2018-D018)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(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 2018 that requires DoD to
consider all noncommercial computer software and related materials
necessary to meet the needs of the agency. In addition to the request
for written comments on this proposed rule, DoD will hold a public
meeting to hear the views of interested parties.
DATES:
Submission of Comments: Comments on the proposed rule should be
submitted in writing to the address shown below on or before March 29,
2022, to be considered in the formation of a final rule.
Public Meeting: A virtual public meeting will be held on March 3,
2022, from 11:00 a.m. to 2:30 p.m. Eastern time. DoD will also reserve
2:30 p.m. to 5:00 p.m. Eastern time on the same day,
[[Page 4547]]
if DoD determines additional discussion is necessary. The public
meeting will end at the stated time, or when the discussion ends,
whichever comes first.
Registration: Registration to attend the public meeting must be
received no later than close of business on February 24, 2022.
Information on how to register for the public meeting may be found
under the heading SUPPLEMENTARY INFORMATION section of this notice.
ADDRESSES:
Public Meeting: A virtual public meeting will be held using Zoom
video conferencing software.
Submission of Comments: Submit written comments identified by DFARS
Case 2018-D018, using any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2018-D018.'' Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2018-
D018'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2018-D018 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Mr. David E. Johnson, telephone 571-
372-6115.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement section 871 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018
(Pub. L. 115-91). Section 871 established new direction at 10 U.S.C.
2322a, Requirement for consideration of certain matters during
acquisition of noncommercial computer software. The statute requires
that DoD, as part of any negotiation for such software, consider all
noncommercial computer software and related materials necessary to meet
the needs of the agency. This rule provides direction to DoD both to
improve acquisition planning and to identify and negotiate for software
deliverables and license rights at a fair and reasonable price before
contract award. DoD published an advance notice of proposed rulemaking
(ANPR) on January 14, 2020, at 85 FR 2101 and hosted a public meeting
on February 18, 2020, to obtain the views of interested parties. DoD
accepted public comments through March 16, 2020. Two respondents
submitted public comments in response to the ANPR.
II. Public Meeting
DoD is interested in continuing a dialogue with experts and
interested parties in Government and the private sector regarding
amending the DFARS to implement section 871 of the NDAA for FY 2018,
which requires DoD to consider all noncommercial computer software and
related materials necessary to meet the needs of the agency.
Registration: Individuals wishing to participate in the virtual
meeting must register by February 24, 2022, to facilitate entry to the
meeting. Registration for the virtual meeting will be valid also for
the additional discussion time, if DoD determines additional time is
needed (see the DATES section of this preamble). Interested parties may
register for the meeting by sending the following information via email
to [email protected] and include ``Public Meeting, DFARS Case 2018-
D018'' in the subject line of the message:
Full name.
Valid email address, which will be used for admittance to
the meeting.
Valid telephone number, which will serve as a secondary
connection method. Registrants must provide the telephone number they
plan on using to connect to the virtual meeting.
Company or organization name.
Whether the individual desires to make a presentation.
Pre-registered individuals will receive instructions for connecting
using the Zoom video conferencing software not more than one week
before the meeting is scheduled to commence.
Presentations: Presentations will be limited to 5 minutes per
company or organization. This limit may be subject to adjustment,
depending on the number of entities requesting to present, in order to
ensure adequate time for discussion. If you wish to make a
presentation, please submit an electronic copy of your presentation via
email to [email protected] no later than the registration date for the
specific meeting. Each presentation should be in PowerPoint to
facilitate projection during the public meeting and should include the
presenter's name, title, organization affiliation, telephone number,
and email address on the cover page.
Correspondence, Comments, and Presentations: Please cite ``Public
Meeting, DFARS Case 2018-D018'' in all correspondence related to the
public meeting. There will be no transcription at the meeting. The
submitted presentations will be the only record of the public meeting
and will be posted to the following website at the conclusion of the
public meeting: https://www.acq.osd.mil/dpap/dars/technical_data_rights.html.
III. Discussion and Analysis
DoD reviewed the public comments submitted in response to the ANPR
in the development of the proposed rule. One respondent provided a
comment that indicated concurrence with the rule. A discussion of the
remaining comments and the changes made to the rule as a result of
those comments are provided as follows:
A. Summary of Significant Changes From the ANPR
DFARS 227.7202-1 and 227.7203-2 were clarified in response to
public comments. New text was added to DFARS 227.7203-2 to provide
additional guidance on assessing life-cycle needs. Several changes were
made to terms in the proposed rule as follows:
The term ``related data'' was replaced with related
recorded information;
The description of required software libraries was revised
to further clarify its scope; and
The Government's minimum needs in DFARS 227.7103-2(b)(1)
and 227.7203-2(b)(1) were clarified.
The proposed definition of data at DFARS 227.001 was deleted. DFARS
227.7203-2(b)(1) was revised to align with the text in DFARS 227.7103-
2(b)(1). The definition of restricted rights was revised to permit the
Government to make and use a reasonable number of copies of computer
software for the purposes described in the contract clauses at DFARS
252.227-7014, Rights in Technical Data--Noncommercial Items, and
252.227-7018, Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovation Research (SBIR) Program.
B. Analysis of Public Comments
1. Proposed Rule Applies Program Management Elements to Contracting
Personnel
Comment: The respondent expresses concern that the rule addresses
functions that are normally performed by program managers, engineers,
configuration managers, and other program personnel and places those
responsibilities on contracting personnel. The respondent recommends
that these requirements would be best addressed within a program's
intellectual property (IP) strategy.
[[Page 4548]]
Response: DoD acknowledges that the requirements for program
personnel are currently addressed in DoD instructions (DoDIs), such as
DoDI 5000.87, Operation of the Software Acquisition Pathway, and DoDI
5010.44, Intellectual Property (IP) Acquisition and Licensing. DFARS
227.7203-2(a) currently provides for contracting officers to work
closely with program personnel when developing requirements to meet the
Government's needs. Currently, DFARS 227.7203-2(b) delineates the
responsibilities of data managers in assessing life-cycle needs, and
227.7203-2(c) requires contracting officers to ensure that
solicitations and contracts include certain requirements for software
deliverables. The rule proposes to revise this language because the
statute impacts the direction related to assessments of life-cycle
needs, solicitations, and contracts.
2. Application to Commercial Computer Software
Comment: The respondent asserts that the plain language in
paragraphs (a) and (b) of 10 U.S.C. 2322a make it clear that Congress
intended for the provision to only apply to noncommercial computer
software.
Response: Although the statute relates to the acquisition of
noncommercial computer software, the statute also discourages reliance
on ``external or additional computer software or technical data'' with
no limitations with respect to commerciality. DoD revised DFARS
227.7203-2(c)(6) to clarify that the proposed rule is limited to
noncommercial computer software, except in cases where the software
relies on additional internal or external commercial computer software
or technical data. The proposed rule permits reliance on additional
internal or external computer software when such software is
commercially available with the necessary license rights. DFARS
227.7202-1 and 227.7203-2 have been revised to address the relationship
between noncommercial software and commercial software while
maintaining the policies set forth in DFARS 227.7202-1(c).
3. Proposed Changes to DFARS 227.7203-2 Encourage Acquisition of All
Forms of Noncommercial Computer Software in All Instances
Comment: The respondent expresses concern that the proposed rule
could be interpreted as requiring the contracting officer to acquire
all forms of noncommercial computer software in all instances, rather
than tailoring acquisitions to meet DoD's actual needs. The respondent
recommends an emphasis on the life-cycle needs for a program or system,
including software maintenance.
Response: DFARS 227.7203-1(a) provides that DoD may acquire only
the computer software and computer software documentation, and the
rights in such software or documentation, necessary to satisfy agency
needs. This direction remains unchanged. The proposed rule does require
the assessment of life-cycle needs to address acquisition of software
at appropriate times in the life cycle of a product, program, or
system.
4. DFARS 227.7203-2 Should Consider Whether the Software Was Developed
at Private Expense
Comment: The respondent recommends that the rule consider whether
the software was developed at private expense to incentivize investment
of private funds into noncommercial software development to meet DoD
needs. The respondent also recommends DoD consider alternatives to the
delivery of source code and related software design details.
Response: DoD concurs with the comment and revised DFARS 227.7203-
2(b)(2)(ii) to include consideration of alternatives to the delivery of
source code and related software design details for privately developed
noncommercial computer software.
5. References to Necessary or Associated License Rights May Be Subject
to Misinterpretation
Comment: The respondent states that the proposed DFARS 227.7203-2
should not refer to ``necessary'' or ``associated'' license rights when
discussing the need to acquire specific types of software. There is a
risk that this could be misinterpreted as requiring a separate
licensing scheme that is not subject to the existing noncommercial
software licensing policies in DFARS 227.7203-1.
Response: Existing policies in DFARS 227.7203-1 and 227.7203-2
address these concerns. Contracting officers must ensure consistency
with DFARS 227.7203-1(c), which prohibits a contractor from being
required to sell or relinquish to DoD greater rights than required
under DFARS 227.7203-5(a)(3) through (6).
6. New Terms Introduced in the ANPR
Comment: The respondent states a concern that the proposed new
definition for data is not needed to implement 10 U.S.C. 2322a and
would ultimately cause confusion within the acquisition workforce. The
respondent also expresses concerns about the new term ``related data''
and recommends ``related computer software documentation'' instead.
Response: DoD concurs and has removed the definition of data from
the proposed rule. To avoid confusion about the scope of the term
``related data'' and better align with the broader scope of the term
``related materials'' in 10 U.S.C. 2322a, ``related data'' has been
changed to ``related recorded information,'' which is more consistent
with 10 U.S.C. 2302(4) and existing DFARS terminology.
7. Use of Terms Consistent With Other Acquisition Documents
Comment: The respondent asserts that DFARS 227.7203-2 should use
terminology used in other acquisition documents, such as those
contained in a Data Item Description (DID). The respondent expresses
concerns with the terms ``required software libraries'' and ``software
revision history.''
Response: The term ``required software libraries'' is intended to
implement the term ``required libraries'' in 10 U.S.C. 2322a. DFARS
227.7203-2(b)(2)(i) and 227.7203-2(c)(6)(ii) have been revised to
include examples of required software libraries. The term ``software
revision history'' has been changed to ``software version history''
consistent with the term ``software version'' used in the ``Software
Version Description'' DID, DI-IPSC-81442A.
8. Policy Changes to DFARS 239.101 Should Require a Written
Determination by the Head of the Contracting Activity
Comment: The respondent recommends that a parenthetical should be
added to ensure the policy change of DFARS 239.101 is only used where
there is a written determination by the ``head of the contracting
authority.''
Response: DFARS 239.101(1) currently requires a written
determination by the head of the contracting activity.
9. Future Rulemaking Should Address Recommendations Presented by the
2018 Government-Industry Advisory Panel on Technical Data Rights
Comment: Although the respondent acknowledges that this
recommendation is not within the scope of implementing 10 U.S.C. 2322a,
the respondent recommends that DoD's future rulemaking address the
specific Government-industry recommendations included in the 2018
Report submitted by the Government-Industry Advisory Panel on Technical
Data Rights (the ``Section 813 Panel Final Report'').
Response: To the extent that such recommendations align with other
[[Page 4549]]
proposed revisions made to implement 10 U.S.C. 2322a, DoD considered
recommendations in the Section 813 Panel Final Report. DoD is proposing
various DFARS revisions that adopt recommendations made in the Section
813 Panel Final Report.
C. Other Changes
DFARS 227.7100 and 227.7200 were revised to remove a reference to
10 U.S.C. 2325 that was revoked in 1994 (Pub. L. 103-355) and to
correct the citation to Executive Order 12591. DFARS 227.7100 and
227.7200 were also revised to emphasize the importance of assessing
life-cycle needs.
DFARS 227.7203-2(b)(2)(i)(B) through (D) were revised to be
consistent with acquisition policies in section 3.2 of DoDI 5000.87,
which is closely aligned with the subject matter of this case. DFARS
227.7203-2(c)(6) was also revised to clarify the contracting officer's
responsibilities with respect to this section. DFARS 237.102 was
revised to add references to 227.7202 and 227.7203, emphasizing the
need to consider this guidance in service contracts.
The definition of technical data in the contract clauses at DFARS
252.227-7013, 252.227-7015, and 252.227-7018 has been revised to
clarify the types of information excluded from the definition in 10
U.S.C. 2302.
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This proposed rule does not create any new solicitation provisions
or contract clauses. It does not change the applicability of any
existing provisions or clauses included in solicitations and contracts
valued at or below the simplified acquisition threshold or for
commercial items, including commercially available off-the-shelf items.
V. Executive Orders 12866 and 13563
E.O.s 12866 and 13563 direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This is not a
significant regulatory action and, therefore, was not subject to review
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will send a copy of
the interim or final rule and the ``Submission of Federal Rules Under
the Congressional Review Act'' form to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. This rule is not
anticipated to be a major rule under 5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the statutory requirements are directed at the internal
processes of the Government rather than contractors. However, an
initial regulatory flexibility analysis has been performed and is
summarized as follows:
DoD is proposing to implement section 871 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91).
Section 871 established new direction at 10 U.S.C. 2322a, Requirement
for consideration of certain matters during acquisition of
noncommercial computer software. The statute requires that DoD, as part
of any negotiation for such software, consider all noncommercial
computer software and related materials necessary to meet the needs of
the agency.
The objective of the rule is to ensure that the Government
identifies and acquires all software necessary to meet its needs at
appropriate times in the life cycle of a product, program, or system.
The legal basis for the rule is section 871 of the NDAA for FY 2018.
The rule may impact small entities that are awarded DoD contracts
for noncommercial computer software, to include contracts under the
Small Business Innovation Research and Technology Transfer Programs.
Based on data from the Federal Procurement Data System (FPDS) and the
Electronic Data Access (EDA) for FY 2019 through FY 2020, DoD estimates
that an average of 6,263 unique small entities are awarded an average
of 30,146 contract actions for noncommercial software annually.
This proposed rule does not impose any new reporting, recordkeeping
or other compliance requirements.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known alternatives which would accomplish the stated
objectives of the applicable statute.
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 2018-D018), in
correspondence.
VIII. Paperwork Reduction Act
Although the Paperwork Reduction Act (44 U.S.C. chapter 35) applies
to this rule, these changes to the DFARS do not impose additional
information collection requirements to the paperwork burden previously
approved under Office of Management and Budget (OMB) Control Number
0704-0369, entitled ``DFARS Subpart 227.71, Rights in Technical Data;
and Subpart 227.72, Rights in Computer Software and Computer Software
Documentation, and related provisions and clauses.''
List of Subjects in 48 CFR Parts 227, 237, 239, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 227, 237, 239, and 252 are proposed to be
amended as follows:
0
1. The authority citation for 48 CFR parts 227, 237, 239, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
2. Revise the heading for subpart 227.71 to read as follows:
Subpart 227.71--Technical Data and Associated Rights
0
3. Amend section 227.7100 by revising paragraph (a) to read as follows:
227.7100 Scope of subpart.
* * * * *
(a) Prescribes policies and procedures for the acquisition of
technical data and the rights to use, modify, reproduce,
[[Page 4550]]
release, perform, display, or disclose technical data. It implements
the following laws and Executive order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305(d)(4).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 7317.
(6) 17 U.S.C. 1301, et seq.
(7) Public Law 103-355.
(8) Executive Order 12591 (subsection 1(b)(7)).
* * * * *
0
4. 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 life-cycle needs for
technical data. Technical data needs must be established giving
consideration to the contractor's economic interests in technical data
pertaining to items, components, or processes that have been developed
at private expense; the Government's costs to acquire, maintain, store,
retrieve, and protect the technical data; reprocurement needs; repair,
maintenance and overhaul philosophies; spare and repair part
considerations; and whether procurement of the items, components, or
processes can be accomplished on a form, fit, or function basis. When
it is anticipated that the Government will obtain unlimited or
government purpose rights in technical data that will be required for
competitive spare or repair parts procurements, such data should be
identified as deliverable technical data items. Reprocurement needs may
not be a sufficient reason to acquire detailed manufacturing or process
data when items or components can be acquired using performance
specifications, form, fit, and function data, or when there are a
sufficient number of alternate sources that can reasonably be expected
to provide such items on a performance specification or form, fit, or
function basis.
* * * * *
0
5. Revise the heading for subpart 227.72 to read as follows:
Subpart 227.72--Computer Software, Computer Software Documentation,
and Associated Rights
0
6. Revise section 227.7200 to read as follows:
227.7200 Scope of subpart.
(a) This subpart--
(1) Prescribes policies and procedures for the acquisition of
computer software and computer software documentation, and the rights
to use, modify, reproduce, release, perform, display, or disclose such
software or documentation. It implements the following laws and
Executive order:
(i) 10 U.S.C. 2302(4).
(ii) 10 U.S.C. 2305(d)(4).
(iii) 10 U.S.C. 2320.
(iv) 10 U.S.C. 2321.
(v) 10 U.S.C. 2322a.
(vi) Executive Order 12591 (subsection 1(b)(7)).
(2) Does not apply to--
(i) Computer software or computer software documentation acquired
under GSA schedule contracts; or
(ii) Releases of computer software or computer software
documentation to litigation support contractors (see subpart 204.74).
(b) See PGI 227.7200(b) for guidance and information in DoD
issuances.
0
7. Amend section 227.7202-1 by adding paragraph (d) to read as follows:
227.7202-1 Policy.
* * * * *
(d) When establishing contract requirements and negotiation
objectives to meet agency needs, the Government shall consider the
factors identified in 227.7203-2(b) and (c) for commercial computer
software and computer software documentation, as applicable in
paragraph (c) of this section.
0
8. Amend section 227.7203-2 by--
0
a. Revising the section heading and paragraphs (b) and (c)(4) and (5);
and
0
b. Adding paragraph (c)(6).
The revisions and addition read as follows:
227.7203-2 Acquisition of noncommercial computer software and computer
software documentation and associated rights.
* * * * *
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's life-cycle needs for
computer software and computer software documentation. See PGI
227.7203-2(b) for further guidance on assessing life-cycle needs. In
addition to desired software performance, compatibility, or other
technical considerations, identification of life-cycle needs should
consider such factors as--
(i) The contractor's economic interests in software that has been
developed at private expense;
(ii) The Government's costs to acquire, maintain, store, retrieve,
and protect the computer software and computer software documentation;
(iii) Multiple site or shared use requirements;
(iv) Whether the Government's software maintenance philosophy will
require the right to modify or have third parties modify the software;
and
(v) Any special computer software documentation requirements.
(2)(i) Procurement planning. To the maximum extent practicable,
when assessing the life-cycle needs, data managers or other
requirements personnel will address in the procurement planning and
requirements documents (e.g., acquisition plans, purchase requests) the
acquisition at appropriate times in the life cycle of all computer
software, related recorded information, and associated license rights
necessary to--
(A) Reproduce, build, or recompile the software from its source
code and required software libraries (e.g., software libraries called,
invoked, or linked by the computer software source code that are
necessary for the operation of the software);
(B) Conduct required computer software testing and evaluation;
(C) Integrate and deploy computer programs on relevant hardware
including developmental, operational, diagnostic, training, or
simulation environments; and
(D) Sustain and support the software over its life cycle.
(ii) Delivery of alternatives to source code and related software
design details. The assessment of life-cycle needs should consider
alternatives to the delivery of source code and related software design
details for privately developed computer software as necessary to meet
the Government's needs, such as--
(A) Technical data and computer software sufficient to implement a
modular open system approach or a similar approach (see PGI 227.7203-
2(b)(2)(ii)(A) for guidance on alternatives to source code and related
software design details);
(B) Access to technical data or computer software; see PGI
227.7203-2(b)(2)(ii)(B) and (C) for guidance on use of access
agreements to contractor source code and related software design
details;
(C) Software support and maintenance provided directly from the
contractor; or
(D) Other contracting or licensing mechanisms including priced
options, specially negotiated licenses, direct licensing between
contractors for qualifying second sources, data escrow agreements,
deferred delivery solutions, and subscription agreements. See PGI
227.7203-2(b)(2)(ii)(D) for guidance on use of escrow agreements.
(3) When reviewing offers received in response to a solicitation or
other request for computer software or computer software documentation,
data
[[Page 4551]]
managers must balance the original assessment of the Government's needs
with prices offered.
(c) * * *
(4) Include delivery schedules and acceptance criteria for each
deliverable item;
(5) Specifically identify the place of delivery for each
deliverable item; and
(6) Specify in the negotiated terms that any required noncommercial
computer software, related recorded information, and associated license
rights identified in the assessment of life-cycle needs in paragraph
(b) of this section shall, to the extent appropriate--
(i) Include computer software delivered in a digital format
compatible with applicable computer programs on relevant system
hardware;
(ii) Not rely on additional internal or external noncommercial or
commercial technical data and software, unless such technical data or
software is--
(A) Included in the items to be delivered with all necessary
license rights; or
(B) Commercially available with all necessary license rights; and
(iii) Include sufficient information, with all necessary license
rights, to support maintenance and understanding of interfaces and
software version history when the negotiated terms do not allow for the
inclusion of the external or additional noncommercial or commercial
technical data and software.
PART 237--SERVICE CONTRACTS
0
9. Add section 237.102-XX to read as follows:
237.102-XX Acquisition of computer software and computer software
documentation under services contracts.
(a) See 227.7202 for policy on the acquisition of commercial
computer software and commercial computer software documentation for
services contracts that require the development or modification of
commercial computer software.
(b) See 227.7203 for policy on the acquisition of noncommercial
computer software and noncommercial computer software documentation for
services contracts that require the development or modification of
noncommercial computer software.
PART 239--ACQUISITION OF INFORMATION TECHNOLOGY
0
10. Amend section 239.101 by adding paragraph (4) to read as follows:
239.101 Policy.
* * * * *
(4) See 227.7203 for policy on the acquisition of noncommercial
computer software and noncommercial computer software documentation.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
11. Amend section 252.227-7013 by revising the section heading, the
date of the clause, and paragraph (a)(15) to read as follows:
252.227-7013 Rights in Technical Data--Noncommercial Items.
* * * * *
Rights in Technical Data--Noncommercial Items (DATE)
(a) * * *
(15) 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 financial, administrative, cost or pricing, or
management information, or information incidental to contract
administration.
* * * * *
0
12. Amend section 252.227-7014 by revising the section heading, the
date of the clause, and paragraph (a)(15)(iii) to read as follows:
252.227-7014 Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
* * * * *
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation (DATE)
(a) * * *
(15) * * *
(iii) Make and use a reasonable number of copies of the computer
software for safekeeping (archive), backup, development, testing,
evaluation, integration, or modification purposes, or diagnosing and
correcting deficiencies or vulnerabilities in a computer program;
* * * * *
0
13. Amend section 252.227-7015 by revising the section heading, the
date of the clause, and paragraph (a)(5) to read as follows:
252.227-7015 Technical Data--Commercial Items.
* * * * *
Technical Data--Commercial Items (DATE)
(a) * * *
(5) Technical data means recorded information, regardless of the
form or method of recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or financial, administrative, cost or pricing, or
management information, or information incidental to contract
administration.
* * * * *
0
14. Amend section 252.227-7018 by revising the section heading, the
date of the clause, and paragraphs (a)(18)(iii) and (a)(20) to read as
follows:
252.227-7018 Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovation Research (SBIR) Program.
* * * * *
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research (SBIR) Program (DATE)
(a) * * *
(18) * * *
(iii) Make and use a reasonable number of copies of the computer
software for safekeeping (archive), backup, development, testing,
evaluation, integration, or modification purposes, or diagnosing and
correcting deficiencies or vulnerabilities in a computer program;
* * * * *
(20) 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 financial, administrative, cost or pricing, or
management information, or information incidental to contract
administration.
* * * * *
[FR Doc. 2022-01386 Filed 1-27-22; 8:45 am]
BILLING CODE 5001-06-P
