Defense Federal Acquisition Regulation Supplement: Small Business Innovation Research Data Rights (DFARS Case 2019-D043), 77680-77703 [2022-27196]
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personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT: Mr.
David E. Johnson, telephone 202–913–
5764.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 227 and 252
[Docket DARS–2020–0033]
RIN 0750–AK71
SUPPLEMENTARY INFORMATION:
Defense Federal Acquisition
Regulation Supplement: Small
Business Innovation Research Data
Rights (DFARS Case 2019–D043)
I. Background
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 the data-rights portions of
the Small Business Innovation Research
Program and Small Business
Technology Transfer Program Policy
Directives. DoD will hold a public
meeting to hear the views of interested
parties.
DATES: Comment due date: Comments
on the proposed rule should be
submitted in writing to the address
shown below on or before February 17,
2023, to be considered in the formation
of a final rule.
Public meeting date: A virtual public
meeting will be held on February 2,
2023, from 1 p.m. to 5 p.m., Eastern
time. The public meeting will end at the
stated time, or when the discussion
ends, whichever comes first.
Registration date: Registration to
attend the public meeting must be
received no later than close of business
on January 26, 2023. Information on
how to register for the public meeting
may be found under the SUPPLEMENTARY
INFORMATION section of this notice.
ADDRESSES: Public Meeting: A virtual
public meeting will be held using Zoom
video conferencing software.
Submission of Comments: Submit
comments identified by DFARS Case
2019–D043, using any of the following
methods:
Æ Federal eRulemaking Portal:
https://www.regulations.gov. Search for
‘‘DFARS Case 2019–D043.’’ Select
‘‘Comment’’ and follow the instructions
provided to submit a comment. Please
include ‘‘DFARS Case 2019–D043’’ on
any attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2019–D043 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
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SUMMARY:
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DoD is proposing to revise the DFARS
to implement the intellectual property
(e.g., data rights) portions of the revised
Small Business Innovation Research
(SBIR) Program and Small Business
Technology Transfer (STTR) Program
Policy Directives. The Small Business
Administration (SBA) published in the
Federal Register proposed amendments
to the SBIR Program and STTR Program
Policy Directives, which included
combining the two directives in a single
document, on April 7, 2016, at 81 FR
20483. The final combined SBIR/STTR
Policy Directive was published on April
2, 2019, at 84 FR 12794, and became
effective on May 2, 2019.
DoD published an advance notice of
proposed rulemaking (ANPR) on August
31, 2020, at 85 FR 53758, providing
draft DFARS revisions and requesting
written public comments. DoD hosted
public meetings to obtain the views of
interested parties regarding the ANPR
on January 14, 2021, and January 15,
2021.
The preamble to the ANPR provided
detailed explanations of revisions
related to—
• A single, non-extendable, 20-year
SBIR/STTR data protection period,
rather than a 5-year period that can be
extended indefinitely;
• Perpetual government purpose
rights (GPR) license rights after the
expiration of the SBIR/STTR data
protection period, rather than unlimited
rights; and
• Definitions that harmonize
terminology used in the Policy Directive
and the Federal Acquisition Regulation
(FAR) and DFARS implementations.
Eight respondents submitted public
comments in response to the ANPR.
II. Public Meeting
DoD is interested in continuing a
dialogue with experts and interested
parties in Government and the private
sector regarding amending the DFARS
to implement the SBIR/STTR Policy
Directive.
Registration: Individuals wishing to
participate in the virtual meeting must
register by January 26, 2023, to facilitate
entry to the meeting. Interested parties
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may register for the meeting by sending
the following information via email to
osd.dfars@mail.mil and including
‘‘Public Meeting, DFARS Case 2019–
D043’’ in the subject line of the message:
• Full name.
• Valid email address, which will be
used for admittance to the meeting.
• Valid telephone number, which
will serve as a secondary connection
method. Registrants must provide the
telephone number they plan on using to
connect to the virtual meeting.
• Company or organization name.
• Whether the individual desires to
make a presentation.
Pre-registered individuals will receive
instructions for connecting using the
Zoom video conferencing software not
more than one week before the meeting
is scheduled to commence.
Presentations: Presentations will be
limited to 5 minutes per company or
organization. This limit may be subject
to adjustment, depending on the
number of entities requesting to present,
in order to ensure adequate time for
discussion. If you wish to make a
presentation, please submit an
electronic copy of your presentation via
email to 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 2019–D043’’ in
all correspondence related to the public
meeting. There will be no transcription
at the meeting. The submitted
presentations will be the only record of
the public meeting and will be posted
to the following website at the
conclusion of the public meeting:
https://www.acq.osd.mil/dpap/dars/
technical_data_rights.html.
III. Discussion and Analysis
DoD reviewed the public comments in
the development of the proposed rule. A
discussion of the comments and the
changes made to the proposed rule in
response to those comments is
provided, as follows:
A. Summary of Significant Changes
from the ANPR
Edits are made to the proposed rule
based on the public comments. The
proposed rule clarifies DFARS
227.7104–1, 227.7104–2, and 227.7104–
3, and the following DFARS contract
clauses to reflect the objectives of the
SBIR/STTR Policy Directive—
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• 252.227–7013, Rights in Technical
Data—Noncommercial Items;
• 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation;
• 252.227–7015, Technical Data—
Commercial Items;
• 252.227–7016, Rights in Bid or
Proposal Information; and
• 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research (SBIR) Program.
Edits are made to the guidance at
DFARS 227.7104–1 that mirror the
policies at DFARS 227.7103–1(c) and
(d). These instructions prohibit
contracting officers from requiring
offerors to relinquish SBIR/STTR data
rights or from rejecting offerors solely
due to SBIR/STTR data rights
restrictions. Similar to the guidance at
DFARS 227.7103–10(a)(5), the proposed
rule also indicates that, during the
source selection process, the
Government may evaluate the impact of
restrictions on the Government’s ability
to use or disclose technical data or
computer software in a manner
consistent with acquisition preferences
and other guidance applicable to SBIR/
STTR offerors.
DFARS 252.227–7018 and the
associated guidance to contracting
officers are revised to indicate that the
term SBIR/STTR data encompasses all
technical data or computer software
developed or generated in the
performance of a phase I, II, or III SBIR/
STTR contract or subcontract.
The proposed rule also deletes the
Alternate I clause for DFARS 252.227–
7018. The clause is directed to the
Government’s publication of technical
data or software with a perpetual GPR
license, which conflicts with the scope
of that license.
In addition, the proposed rule updates
the marking requirements in DFARS
252.227–7018 to require an ‘‘unlimited
rights’’ marking for technical data or
software furnished to the Government
without restrictions. Because the current
marking paradigm does not include an
‘‘unlimited rights’’ marking,
Government personnel may be unsure
whether technical data or computer
software with no restrictive markings
has been provided with an ‘‘unlimited
rights’’ license or the restrictive marking
was inadvertently omitted. The SBIR/
STTR Policy Directive emphasizes the
need to protect the intellectual property
(IP) interests of small businesses. To
achieve this goal, DoD has updated its
marking requirements to resolve a longstanding gap that may negatively impact
the IP interests of small businesses. The
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proposed rule provides a transparent
and consistent framework that permits
the Government to easily identify and
resolve inadvertently omitted restrictive
markings. To ensure consistency
between DFARS 252.227–7018 and the
other noncommercial technical data and
software rights clauses, this revision has
also been applied to DFARS 252.227–
7013 and DFARS 252.227–7014 for
noncommercial technical data and
software. For similar reasons, the
‘‘omitted markings’’ procedures in
DFARS 252.227–7018 (which are
discussed in the guidance at DFARS
227.7103–10 and 227.7203–10) have
been applied to DFARS 252.227–7013
and DFARS 252.227–7014. This allows
DoD to better protect the IP interests of
all of its industry partners.
Lastly, the proposed rule includes
revisions to the requirements governing
restrictive markings to address concerns
raised in the public comments and
recent case precedent (see, e.g., The
Boeing Co. v. Secretary of the Air Force,
983 F.3d 1321 (Fed. Cir. 2020)). The
proposed revisions clarify the longstanding intent of the DFARS marking
requirements to limit restrictive
markings on noncommercial technical
data and software to those specified in
the clauses (including prohibiting
restrictive markings directed to nonGovernmental third parties) and add an
unlimited rights marking to mitigate
against the risk of loss of IP rights by an
inadvertent omission of restrictive
markings. The prohibition of
nonstandard markings, including
restrictive markings directed to thirdparty recipients, will reduce confusion
for Government personnel seeking to
understand the Government’s rights,
and avoids the need to make case-bycase determinations regarding whether a
nonstandard marking—
• Must be corrected as
nonconforming;
• Can be ignored as marking the
contractor intended to apply only to
non-Governmental third parties; or
• Otherwise is not intended to
identify and restrict the Government’s
rights.
This revision facilitates the
Government’s review of technical data
and software deliverables by increasing
standardization of noncommercial
restrictive markings throughout all DoD
contracts. In addition, these simplified
marking procedures may be more
understandable to small businesses that
are unfamiliar with DoD’s marking
requirements.
For similar reasons to avoid confusion
regarding the Government’s license
rights, the proposed rule also clarifies
the more open-ended marking
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requirement for commercial technical
data at DFARS 252.227–7015. The
revisions preserve the long-standing
approach allowing contractor discretion
to choose and use its favored restrictive
marking, consistent with commercial
practices or other contractor
preferences, while clarifying only that
the restrictive marking used must
accurately reflect the Government’s
license rights. The proposed revision
will prevent confusing restrictive
markings that do not comport with the
Government’s license rights, while
preserving flexibility for commercial
contractors in how they elect to mark
their technical data.
The proposed rule bolsters the
existing standards for marking
requirements while fostering efficiency,
transparency, and consistency for both
DoD and its contractors.
B. Analysis of Public Comments
1. Virtual Public Meetings
Comment: One respondent
recommended that the DAR Council
host a virtual public meeting to discuss
the substance of the ANPR.
Response: DoD hosted virtual public
meetings on January 14, 2021, and
January 15, 2021. The meetings received
positive feedback, and DoD plans to
host additional virtual public meetings
in the future.
2. Clarifying Definitions in DFARS
252.227–7018 and Related Clauses
a. Clarifying the Definition of ‘‘Data’’
Comment: A respondent asserted that
the definition of the term ‘‘data’’ implies
that the scope is broader than technical
data and computer software. The
respondent recommended removing this
term and replacing all instances of the
term ‘‘data’’ with technical data,
computer software, or both (as
applicable).
Response: DoD has adopted the
respondent’s recommendation.
b. Clarifying the Definition of ‘‘SBIR/
STTR Data’’
Comment: Several respondents
recommended revising the definition of
SBIR/STTR data. The respondents
recommended referencing SBIR
subcontracts in the definition. The
respondents also recommended
emphasizing that SBIR/STTR data
applies in the context of phase I, II, and
III contracts. Furthermore, the
respondents recommend referencing
agreements that are not governed by the
FAR, such as other transaction
agreements, grants, cooperative
agreements, and cooperative research
and development agreements. In
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addition, the respondents recommended
referencing instruments such as task
orders, delivery orders, and blanket
purchase agreements.
Response: DoD partially adopted the
respondents’ recommendations by
referencing phase I, II, and III SBIR/
STTR contracts in the definition of
SBIR/STTR data in DFARS 252.227–
7018 and the guidance at DFARS
227.7104–2(a)(2). Because the DFARS
governs FAR-based procurement
contracts only, DoD has not revised the
definition of SBIR/STTR data to include
references to instruments that are not
procurement contracts.
c. Clarifying Definitions in DFARS
252.227–7016
Comment: One respondent stated that
there are portions of paragraph (a) of
DFARS 252.227–7016 where the subject
of these sentences is unclear, and
recommended revising the clause to
resolve these ambiguities.
Response: DoD reviewed DFARS
252.227–7016, paragraph (a), and made
clarifying changes in response to the
comment.
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d. Definition of ‘‘Form, Fit, and
Function Data’’
Comment: A respondent
recommended revising the definition of
the term ‘‘form, fit, and function data’’
in DFARS 252.227–7018 to encompass
technical data identifying source,
functional characteristics, and
performance requirements for computer
software.
Response: This recommended
revision is related to DFARS Case 2021–
D005, which implements recent
statutory amendments in 10 U.S.C. 2320
and 2446a related to modular open
systems approaches. To ensure thorough
and consistent application of this
revision throughout DFARS 252.227–
7013, DFARS 252.227–7015, and
DFARS 252.227–7018, this revision will
be addressed in DFARS Case 2021–
D005.
e. Consistent Use of the Terms
‘‘Generated’’ and ‘‘Developed’’
Comment: One respondent noted that
the term ‘‘generated’’ is referenced in
DFARS 252.227–7013, but the term is
not defined. Therefore, the respondent
recommended revising DFARS 252.227–
7013 to incorporate the definition of
‘‘generated’’ in DFARS 252.227–7018.
Some respondents recommended
revising DFARS 252.227–7018(c)(5) and
the associated guidance at DFARS
227.7104 to reference technical data or
software ‘‘developed’’ under SBIR/STTR
contracts, to ensure consistent use of
this term through this clause. Lastly, a
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respondent recommended revising the
definition of the term ‘‘SBIR/STTR
data’’ to reference technical data or
computer software ‘‘first or originally’’
developed or generated under SBIR/
STTR contracts.
Response: DoD adopted these
suggested revisions except for the last
one, revising the definition of the term
‘‘SBIR/STTR data’’. DoD did not adopt
this suggested revision because it could
create confusion (e.g., ‘‘first created’’ is
already included in the definition of the
term ‘‘generated’’).
3. Resolving Inconsistencies with the
Perpetual Government Purpose Rights
License in DFARS 252.227–7018
In the ANPR, DoD revised DFARS
252.227–7018(c) to indicate that the
Government is granted a perpetual GPR
license after the SBIR/STTR protection
period has expired. Various respondents
noted ambiguities or inconsistencies
that resulted from this revision.
a. Alternate I Clause for DFARS
252.227–7018
Comment: One respondent asserted
that the Alternate I clause for DFARS
252.227–7018 encourages publication of
the SBIR/STTR data, inducing SBIR/
STTR firms to publish its data as a
requirement for the award. For this
reason, the respondent recommended
deletion of the Alternate I clause.
Another respondent recommended
revising the Alternate I clause to specify
the Government’s license rights after the
SBIR/STTR protection period expires.
Response: The perpetual GPR license
does not permit publication of SBIR/
STTR data after the SBIR/STTR
protection period expires. Because the
Alternate I clause no longer comports
with the Government’s license rights in
the proposed rule, DoD has proposed to
remove the Alternate I clause for DFARS
252.227–7018 in this proposed rule.
b. Clarifying the Scope of DFARS
252.227–7018(c)(1)(vi)
Comment: A respondent asserted that
the scope of the technical data and
software referenced in DFARS 252.227–
7018(c)(1)(vi) is unclear, in view of the
Government’s perpetual GPR license
after the SBIR/STTR protection period
expires.
Response: DoD has clarified the scope
of DFARS 252.227–7018(c)(1)(vi) to
reference ‘‘[t]echnical data or computer
software furnished to the Government,
under this or any other Government
contract or subcontract thereunder, with
license rights for which all restrictive
conditions on the Government have
expired.’’
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4. Restrictive Markings
a. Applicability of the Marking
Requirements to Prototypes and Other
Products
Comment: Some respondents
recommended applying the marking
requirements to prototypes, end items,
or products themselves.
Response: As discussed in the ANPR,
the proposed rule recognizes and
references the SBIR/STTR Policy
Directive guidance on prototypes in
DFARS 227.7104–2(c). Because the
license rights and marking requirements
prescribed in DFARS part 227 apply
only to technical data and computer
software rather than hardware, DoD has
not adopted the proposed revision to
part 227 and the associated clauses.
b. Clarifying References to Restrictive
Markings in DFARS 227.7104–1
Comment: One respondent asserted
that it is unclear whether the word
‘‘appropriately’’ in the phrase
‘‘appropriately marked with the SBIR/
STTR data rights legend’’ in DFARS
227.7104–1(a)(2) implies that the
marking: (1) conforms with the marking
requirements; or (2) is justified under
the license terms in DFARS 252.227–
7018. The respondent recommended
resolving this ambiguity by removing
the word ‘‘appropriately’’ in DFARS
227.7104–1(a)(2).
Response: DoD has adopted the
recommended revision to remove the
word ‘‘appropriately’’ in DFARS
227.7104–2(a)(2).
c. Protecting the IP Rights of Contractors
by Reducing the Risk of Inadvertent
Omission of Restrictive Markings
Comment: A respondent noted that
the SBIR/STTR program is intended to
foster innovation from small businesses.
The respondent asserted the current
marking requirements penalize small
businesses for making inadvertent
marking omissions, and the respondent
indicated that the proposed marking
requirements will discourage new
entrants from entering the SBIR/STTR
program. The respondent recommended
deletion of the ‘‘Omitted Markings’’
procedures in DFARS 252.227–
7018(g)(2), and suggested that the
Government provide templates for
guidance on restrictive markings on
technical data and software.
Response: Restrictive markings
provide a critical tool for protection of
the IP interests of DoD contractors,
facilitating proper handling of technical
data and software by the Government.
The ‘‘omitted markings’’ procedures in
DFARS 252.227–7018 provide
contractors with a mechanism for
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correcting inadvertently omitted
markings, to ensure that contractors
have ample opportunities to identify
restrictions on technical data or
software. These procedures are based on
the guidance on ‘‘Terms of Agreement
Under SBIR/STTR Awards’’ in the
SBIR/STTR Policy Directive, and are
consistent with long-standing DFARS
policy and procedures for omitted
markings on noncommercial technical
data and computer software (see DFARS
227.7103–10(c) and DFARS 227.7203–
10(c)). Deletion of these procedures
would be inconsistent with the
guidance in the Policy Directive and
established DoD noncommercial
marking policy and procedure.
DoD acknowledges the respondent’s
concerns about the risk of a contractor
unintentionally losing protection for its
IP rights by inadvertently omitting a
required restrictive legend. The risk of
inadvertent omission may also be
increased by the current lack of a
requirement for an ‘‘unlimited rights’’
marking, relying on the absence of a
restrictive marking to indicate that the
Government has unlimited rights. Under
this approach, contractor and
Government personnel may be unsure
whether technical data or computer
software delivered with no restrictive
markings has been intentionally
provided with ‘‘unlimited rights,’’ or
whether a restrictive marking was
inadvertently omitted. The proposed
rule resolves this long-standing issue
with the marking requirements by
adding an unlimited rights marking,
similar to an approach previously
proposed in DFARS Case 2010–
D001(see 75 FR 59412, 59448 September
27, 2010). The revisions establish a
marking requirement for all delivered
technical data and computer software
governed by the SBIR/STTR data rights
clause, eliminating the potential
confusion regarding whether unmarked
data or software is provided with
unlimited rights or whether a restrictive
marking was inadvertently omitted. The
proposed rule provides a transparent
and consistent framework that permits
both Government and contractor
personnel to easily identify and avoid
inadvertently omitted restrictive
markings, which improves protections
for contractors’ IP interests. To ensure
consistency and address this same
concern in the markings required for all
noncommercial technical data and
computer software, the unlimited rights
marking requirement has also been
applied to DFARS 252.227–7013 and
DFARS 252.227–7014. To minimize
administrative burdens for contractors,
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the unlimited rights marking is identical
in all of these clauses.
5. Narrowing or Clarifying the Scope of
Certain Categories of License Rights
a. Narrowing the Scope of the GPR
License and SBIR/STTR Data Rights
License
Comment: One respondent
recommended narrowing the GPR
license to only allow distribution to
covered Government support
contractors. Another respondent
recommended narrowing the scope of
the SBIR/STTR data rights license to
prohibit uses of SBIR/STTR data within
the Government that would ‘‘undermine
the small business concern or successor
firm’s future commercialization of the
associated technology.’’
Response: DoD has not adopted the
respondent’s recommended revisions
because the current scope of the SBIR/
STTR data rights comports with the
guidance set forth in the 2019 SBIR/
STTR Policy Directive. Furthermore, the
respondent’s recommendation does not
provide a clear scope of uses permitted
within the Government.
b. Clarifying the Scope of the GPR
License
Comment: A respondent
recommended that the proposed rule
provide examples of ‘‘competitive
procurements’’ to clarify the scope of
the GPR license.
Response: DoD has not adopted the
recommended revision because this
term is well known and is used in
various clauses. In addition, examples
of competitive procurements may be
misconstrued to narrow the scope of the
GPR license.
c. Restrictions on Third-Party Recipients
of SIBR/STTR Data
Comment: One of the respondents
recommended emphasizing restrictions
on third-party use of SBIR/STTR data in
DFARS 252.227–7018(a)(16)(ii).
Response: DoD has not adopted the
respondent’s recommended revisions
because the restrictions on use of SBIR/
STTR data by third-party recipients are
already specified in DFARS 252.227–
7018(c)(2)(iii).
d. Royalty-Free License Rights
Comment: A respondent
recommended revising the scope of the
SBIR/STTR data rights license to grant
a royalty-free license only upon
expiration of the SBIR/STTR data
protection period. The respondent also
recommended clarifying DFARS
252.227–7018(c) to describe how the
royalty-free license rights differ or
complement the Government’s license
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rights after the SBIR/STTR data
protection period expires.
Response: In DFARS 252.227–7018(c),
the grant of ‘‘royalty-free, worldwide,
nonexclusive, irrevocable license
rights’’ applies to all of the categories of
license rights in paragraph (c) of the
clause. DoD has not adopted the
recommended revisions, because the
Government’s license rights under this
clause comport with the guidance
provided in the 2019 SBIR/STTR Policy
Directive; and the scope of the
Government’s license rights, during and
after the SBIR/STTR protection period,
are already defined in DFARS 252.227–
7018 paragraphs (c)(2)(ii)(B) and (c)(5).
6. Restructuring Clauses and Revising
the Scope of the Applicability of
Clauses
Comment: A respondent
recommended removing any revisions
to the guidance at DFARS 227.7104
related to SBIR/STTR data that later is
considered commercial. The respondent
also recommended deleting the
applicability section in DFARS
252.227–7015(b); revising the
applicability sections in DFARS
252.227–7013(b) and DFARS 252.227–
7018(b); and retaining the original order
of the paragraphs in DFARS 252.227–
7013 and 252.227–7018. The respondent
also recommended adding an alternate
version of DFARS 252.227–7015 that
would recognize funding contributions
of the Government and the contractors.
Other respondents recommended
restructuring DFARS 252.227–7018 to
combine it with other license rights
clauses. One respondent recommended
clarification of the scope of the clauses
(as discussed in paragraph (b) of these
clauses) and the further explanation of
application of the prescribed license
rights.
Response: DoD added applicability
sections to the clauses and the
associated guidance to contracting
officers to clarify contractors’ and
contracting officers’ understanding of
the scope of DFARS 252.227–7013,
252.227–7014, 252.227–7015, and
252.227–7018. These revisions will
ensure proper application of the SBIR/
STTR data rights clause, as prescribed
in the SBIR/STTR Policy Directive, and
other clauses. For this reason, DoD has
not adopted the respondents’
recommendations for removal or
revision of the applicability sections. In
response to recommendations related to
substantial restructuring of the
aforementioned clauses and allocation
of licenses in DFARS 252.227–7015
based on funding contributions, these
revisions are out of scope for the current
case.
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7. Narrowing the Flowdown
Requirements in DFARS 252.227–7018
and Applicability of the Assertion
Requirements in DFARS 252.227–7017
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a. Assertion Requirements
Comment: One respondent asserted
that the identification and assertion
requirements in DFARS 252.227–7017
should not be applied to SBIR/STTR
data. The respondent provides the
following assertions to support this
position: (1) technical data and software
requirements are not known prior to
contract award; (2) the assertions
requirement is redundant because
Contract Data Requirements Lists
(CDRLs) already specify the applicable
distribution statement; and (3) some
details of software deliverables (such as
the software name and version) are
unknown prior to contract award.
Response: The assertion requirements
are necessary to identify and protect the
IP interests of contractors and
subcontractors under SBIR/STTR
contracts, because they provide a
practical document that specifically
identifies SBIR/STTR technical data and
software furnished with restrictions.
CDRLs (which should be included with
the solicitation) provide the technical
data and software requirements that will
allow contractors to identify SBIR/STTR
data with restrictions and provide
information to the Government on
license restrictions. This assertion
requirement allows the Government to
ask offerors or contractors questions
about assertions to efficiently resolve
any misconceptions about the
Government’s license rights. The
assertions should clearly identify the
technical data or software furnished
with restrictions so the Government can
understand what deliverables are being
referenced and cross-reference the
assertions table and the restrictive
markings on the deliverables. Assertions
tables and CDRLs are not redundant,
because distribution statements do not
provide specifics of license restrictions,
and assertions tables allow contracting
officer technical representatives to
cross-reference the asserted restrictions
with technical data and software
deliverables to ensure that they are
properly marked. DFARS 252.227–7018
permits revisions to the assertions table
‘‘when based on new information or
inadvertent omissions unless the
inadvertent omissions would have
materially affected the source selection
decision.’’ For these reasons, DoD has
not adopted the respondent’s
recommendations.
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b. Flowdown Requirements
Comment: A respondent asserted that
the flowdown requirements may
significantly increase administrative
burden on small businesses. Another
respondent recommended revising
DFARS 252.227–7013 and 252.227–
7014 to indicate that DFARS 252.227–
7018 will govern technical data that is
SBIR/STTR data. Some respondents
recommended revising the flowdown
requirements to require contractors to
insert DFARS 252.227–7018 in any
SBIR/STTR subcontracts as defined by
the SBA SBIR/STTR Policy Directive.
Response: These flowdown
requirements ensure that
subcontractors, including small
businesses, are afforded the same
protections as prime contractors. If there
are no subcontracts for the small
business prime contractor or the
subcontractors are not delivering
technical data, then the flowdown
requirements are not applicable.
Regardless of the flowdown
requirements, the prime contractor is
obligated to ensure that the Government
is granted the standard license rights
under the applicable clauses. The
flowdown requirement provides a
mechanism to facilitate this license
grant.
The DFARS 252.227–7013 definition
of ‘‘unlimited rights’’ in paragraph (a),
DFARS 252.227–7013 paragraph (b)(2),
the associated guidance for contracting
officers, and the mandatory flowdown
requirements in DFARS 252.227–7018
already include the suggested revisions.
The proposed rule instructs contracting
officers to use DFARS 252.227–7018
when SBIR/STTR data is delivered,
developed, or generated during contract
performance. In addition, the proposed
rule indicates that when a portion of
contract performance is governed by the
SBIR or STTR program (e.g.,
performance of one or more
subcontracts qualifies as a phase III
SBIR or STTR award), the clause at
252.227–7018 applies to the technical
data or computer software that is
governed by the SBIR or STTR program.
Furthermore, DFARS 252.227–
7013(b)(2) already indicates that DFARS
252.227–7018 governs SBIR/STTR data,
and the flowdown requirements in
DFARS 252.227–7018 already require
flowdown to subcontracts. For these
reasons, DoD has not adopted the
respondent’s recommendations.
8. Application of the SBIR/STTR
Protection Period
Comment: Some respondents
recommended clarification on
application of the 20-year SBIR/STTR
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data protection period. One of the
respondents recommended clarification
on how the SBIR/STTR data protection
period is applied for SBIR/STTR
contracts that predate the SBIR/STTR
Policy Directive, contracts that were
awarded with DFARS 252.227–7018,
Rights in Noncommercial Technical
Data and Computer Software—Small
Business Innovation Research (SBIR)
Program (MAR 2020) (DEVIATION
2020–O0007), and contracts that are
extensions or derivations from work
performed under those previous
contracts.
Response: The proposed rule
indicates that the SBIR/STTR data
‘‘protection period is not extended by
any subsequent SBIR/STTR contracts
under which any portion of that SBIR/
STTR data is used or delivered. The
SBIR/STTR data protection period of
any such subsequent SBIR/STTR
contract applies only to the SBIR/STTR
data that are developed or generated
under that subsequent contract.’’
However, DoD has adopted the
respondent’s recommendation by
further clarifying application of the
SBIR/STTR protection period in DFARS
252.227–7018(c)(5).
9. STTR Solicitation and Clause
Regarding Agreements Between
Contractors and Partnering Research
Institutions Allocating IP Rights
Comment: A respondent
recommended revising 252.227–70XX
and 252.227–70YY to only require draft
allocation agreements or agreements to
negotiate in good faith.
Response: The Government cannot
and should not rely upon a draft
agreement that is not legally binding or
an agreement to simply negotiate with
no contractual obligations. Therefore,
DoD has not adopted the respondent’s
recommendation.
10. Additional Comments and
Recommendations
a. Negative Impacts of the Updated
SBIR/STTR Data Protection Period
Comment: A respondent asserted that
the 20-year SBIR/STTR data protection
period negatively impacts the
Government’s use of software related to
large systems developed by DoD
program managers and laboratories.
Response: DoD notes that the updated
SBIR/STTR data protection period
limits extension of the protection
period. Such limitations do not exist in
the extant version of DFARS 252.227–
7018. Furthermore, notwithstanding
license restrictions on SBIR/STTR data,
DoD regularly achieves its technology
transition goals using SBIR/STTR data.
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b. Guidance on Source Selection
Procedures Related to SBIR/STTR Data
Rights
Comment: One respondent
recommended prescriptive guidance for
contracting officers that prohibits
deeming an offeror ineligible for
contract award due to license
restrictions on SBIR/STTR data.
Response: DoD adopted the
respondent’s recommendation in
DFARS 227.7104–1, which mirrors
existing language in DFARS 227.7103–
1(c) and (d) and 227.7103–10(a)(5).
tkelley on DSK125TN23PROD with PROPOSALS2
c. Recommendations Addressed by
Existing DFARS Guidance,
Recommendations Not Directed to
Contracting Officers, and
Recommendations Unrelated to License
Rights
Comment: A respondent
recommended specific language that
prohibits preferences or requirements
related to collaboration with Federal
laboratories or DoD sponsored or funded
entities. The respondent also
recommended revising the proposed
rule to include guidance that is directed
to policy or regulatory decision-makers
(rather than contracting officers). In
addition, the respondent recommended
prescriptive guidance that indicates that
the SBIR/STTR Policy Directive
supersedes DFARS prescriptive
guidance, provisions, and clauses. The
respondent also recommended
prescriptive guidance regarding
contractor copyright ownership; patent
rights for small businesses; prohibitions
against preaward license negotiations
related to SBIR/STTR data; and
improper uses of interagency
acquisitions that circumvent the DFARS
prescriptive guidance on SBIR/STTR
contracts.
Response: The respondent’s first
recommendation is related to technical
evaluation factor requirements that are
not related to license rights, which is
beyond the scope of this rule. In
response to the respondent’s second
recommendation, the DFARS should
only include guidance or requirements
for contracting officers rather than
guidance that is intended for policy or
regulatory decision-makers. In response
to the respondent’s third comment, the
proposed rule includes guidance,
provisions, and clauses that are
intended to fully implement IP portions
of the SBIR/STTR Policy Directive.
However, the SBIR/STTR Policy
Directive does not supersede DFARS
guidance for contracting officers,
provisions, and clauses. The
respondent’s other recommendations
are already addressed in existing
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guidance and clauses related to
postaward license negotiations
regarding SBIR/STTR data in DFARS
227.7104–2(a)(2); retention of rights by
the contractor in DFARS 252.227–
7018(c); patent rights for small
businesses in FAR 52.227–11; and
interagency acquisitions in FAR subpart
17.7. For these reasons, DoD has not
adopted the respondent’s
recommendations.
d. Liability and Reimbursement
Obligations
Comment: One respondent
recommended revising the ‘‘release from
liability’’ section in DFARS 252.227–
7018 to impose liability and
reimbursement obligations for the
Government related to damages caused
by unauthorized disclosure of technical
data or software.
Response: The Disputes clause and
the Contracts Disputes statute govern
claims related to breach of contract. In
addition, the recommended revisions
create open-ended funding obligations
for reimbursement of ‘‘all costs and
reasonable attorney fees’’, which are not
authorized by any existing policy,
statute, or regulation. For these reasons,
DoD has not adopted the respondent’s
recommendation.
e. Potential Topic for DoD Guidance and
Training
Comment: A respondent
recommended that DoD develop
guidance and workforce training on
examples of modifications or changes to
preexisting commercial and
noncommercial items made in the
performance of a DoD contract.
Response: Although DoD is
continuously improving its guidance
and training, this recommendation is
outside the scope of this rule.
C. Other Changes
Because the terms ‘‘legends’’ and
‘‘markings’’ are interchangeable, the
proposed rule changes all instances of
‘‘legends’’ to ‘‘markings’’ in part 227 and
the associated solicitations and clauses
for the sake of consistency. A minor
change is also made at DFARS
212.301(f)(xii)(A) for DFARS clause
252.227–7013 to add a cross-reference to
227.7102–4(b).
IV. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Items, Including Commercially
Available Off-the-Shelf (COTS) Items
The proposed rule clarifies the
following DFARS solicitation provision
and contract clauses to reflect the
objectives of the SBIR/STTR Policy
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Directive: 252.227–7013, Rights in
Technical Data-Noncommercial Items;
252.227–7014, Rights in Noncommercial
Computer Software and Noncommercial
Computer Software Documentation;
252.227–7015, Technical DataCommercial Items; 252.227–7016,
Rights in Bid or Proposal Information;
252.227–7017, Identification and
Assertion of Use, Release, or Disclosure
Restrictions; 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software-Small Business
Innovation Research Program and Small
Business Technology Transfer Program;
and 252.227–7025, Limitation on the
Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends.
DFARS clauses 252.227–7013,
252.227–7015, and 252.227–7037 will
continue to apply to contracts at or
below the SAT and for the acquisition
of commercial items, including COTS
items. In addition, DFARS 252.227–
7018 will apply to contracts at or below
the SAT and for the acquisition of
commercial items, including COTS
items.
This rule also proposes to create a
new provision and a new clause: (1)
DFARS 252.227–70XX, Additional
Preaward Requirements for Small
Business Technology Transfer Program,
and (2) DFARS 252.227–70YY,
Additional Postaward Requirements for
Small Business Technology Transfer
Program. The new provision and clause
will apply to acquisitions at or below
the SAT and to acquisitions of
commercial items, including COTS
items. Not applying this provision and
clause to contracts below the SAT and
for the acquisition of commercial items,
including COTS items, would exclude
contracts intended to be covered by this
rule and undermine the overarching
purpose of the rule. Consequently, DoD
plans to apply the rule to contracts
below the SAT and for the acquisition
of commercial items, including COTS
items.
V. Expected Impact of the Rule
The SBIR/STTR Policy Directive
updates the SBIR/STTR data protection
period to a single, non-extendable 20year period, rather than an extendable 5year period. The proposed rule also
provides the Government with
perpetual GPR license rights after the
expiration of the SBIR/STTR data
protection period, rather than unlimited
rights. In addition, the proposed rule
implements STTR-unique requirements
in the SBIR/STTR Policy Directive
related to allocation of IP rights between
partnering institutions and contractors
under the STTR program. The proposed
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rule removes an alternate clause for
DFARS 252.227–7018, which previously
allowed the Government to elect not to
exercise its right to publish or authorize
others to publish SBIR data. Lastly, the
proposed rule updates the marking
requirements in DFARS 252.227–7013,
252.227–7014, and 252.227–7018 to
require an ‘‘unlimited rights’’ marking
for technical data or software furnished
to the Government without restrictions.
The updated marking requirements
permit contractors to use only the
restrictive markings specified in the
clause. The proposed rule also revises
DFARS 252.227–7015 to indicate that
restrictive markings on commercial
technical data must accurately reflect
the Government’s license rights.
The proposed rule therefore impacts
the Government’s license rights in SBIR/
STTR data and the contractor’s marking
obligations. The SBIR/STTR Policy
Directive emphasizes the need to protect
the IP interests of small businesses. The
proposed rule provides a transparent
and consistent framework that permits
the Government to easily identify and
resolve inadvertently omitted restrictive
markings, which allows DoD to better
protect the IP interests of our smallbusiness industry partners.
tkelley on DSK125TN23PROD with PROPOSALS2
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VII. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. This rule is not
anticipated to be a major rule under 5
U.S.C. 804.
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VIII. Regulatory Flexibility Act
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., because the rule primarily
benefits small entities by emphasizing
protection of small entities’ intellectual
property, therefore balancing any
additional compliance requirements
under the rule. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows:
DoD is proposing to amend the
DFARS to implement the data-rights
portions of the revised SBA Small
Business Innovation Research (SBIR)
Program and Small Business
Technology Transfer (STTR) Program
Policy Directive. The final combined
SBA SBIR/STTR Policy Directive
became effective on May 2, 2019.
The objectives of the rule are to
implement the data-rights portions of
the SBA SBIR/STTR Policy Directive.
Accordingly, the rule provides the
following:
• A single, non-extendable, 20-year
SBIR/STTR data protection period,
rather than the extant 5-year period that
can be extended indefinitely;
• Perpetual government purpose
rights (GPR) license rights after the
expiration of the SBIR/STTR data
protection period, rather than unlimited
rights; and
• Definitions that harmonize
terminology used in the Policy Directive
and the Federal Acquisition Regulation
(FAR) and DFARS implementations.
The rule provides a new DFARS
solicitation provision and a contract
clause applicable to STTR awards where
no such coverage has existed. Further,
the rule updates DFARS provision and
clauses 252.227–7013, Rights in
Technical Data—Noncommercial Item;
252.227–7014, Rights in Noncommercial
Computer Software and Noncommercial
Computer Software Documentation;
252.227–7015, Technical Data–
Commercial Items, 252.227–7016;
Rights in Bid or Proposal Information;
252.227–7017, Identification and
Assertion of Use, Release, or Disclosure
Restrictions; 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research (SBIR) Program;
252.227–7019, Validation of Asserted
Restrictions—Computer Software; and
252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information Marked with Restrictive
Legends.
The SBIR/STTR Policy Directive
emphasizes the need to protect the
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intellectual property interests of small
businesses. To achieve this goal, DoD
has updated its marking requirements to
resolve a long-standing gap that may
negatively impact the intellectual
property interests of small businesses.
The proposed rule provides a
transparent and consistent framework
that permits the Government to easily
identify and resolve inadvertently
omitted restrictive markings, which
allows DoD to better protect the
intellectual property interests of our
small-business industry partners.
The legal basis for the rule is 41
U.S.C. 1303.
This proposed rule will apply to small
entities that have contracts with DoD
requiring delivery of data, including
technical data and computer software.
Based on data from Electronic Data
Access for fiscal year (FY) 2018 through
FY 2020, DoD estimates that 23,771
contractors may be impacted by the
changes in this proposed rule. Of those
entities, approximately 15,718 (66
percent) are small entities.
This proposed rule imposes new
reporting, recordkeeping, or other
compliance requirements for small
entities participating in the STTR
program. The changes in this proposed
rule add a requirement for offerors
responding to solicitations under the
STTR program to submit, to be eligible
for award, both a written agreement and
a written representation to the
contracting officer for review. Further,
the proposed rule requires STTR
contractors to submit both an updated
written agreement and an updated
written representation to the contracting
officer as occasioned. Based on data
from SBA for FY 2018 through FY 2020,
DoD estimates that an average of 302
unique small entities are awarded an
average of 444 STTR contract actions on
an annual basis. DoD estimates that
senior employees are necessary to
prepare the written agreement and
written representation because of the
complexity of the matter, and the
written representation requires
execution by an employee authorized to
bind the company.
This proposed rule does not
duplicate, overlap, or conflict with any
other Federal rules.
There are no known alternatives
which would accomplish the stated
objectives of this proposed rule.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
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610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2019–D043), in
correspondence.
IX. Paperwork Reduction Act
This rule contains information
collection requirements that require the
approval of the Office of Management
and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
Accordingly, DoD has submitted a
request for approval of a new
information collection requirement
concerning DFARS Case 2019–D043,
Small Business Innovation Research
Program Data Rights, to the Office of
Management and Budget.
tkelley on DSK125TN23PROD with PROPOSALS2
A. Estimated Public Reporting Burden
Public reporting burden for this
collection of information is estimated to
average 20 hours per response,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
The annual reporting burden is
estimated as follows:
Respondents: 302.
Responses per respondent: 1.5.
Total annual responses: 453.
Preparation hours per response: 20
hours.
Total response burden hours: 9,060.
B. Request for Comments Regarding
Paperwork Burden
Written comments and
recommendations on the proposed
information collection, including
suggestions for reducing this burden,
should be sent to Ms. Susan Minson at
the Office of Management and Budget,
Desk Officer for DoD, Room 10236, New
Executive Office Building, Washington,
DC 20503, or email Susan_M._Minson@
omb.eop.gov, with a copy to the Defense
Acquisition Regulations System, Attn:
David E. Johnson at osd.dfars@mail.mil.
Comments can be received from 30 to 60
days after the date of this notice, but
comments to OMB will be most useful
if received by OMB within 30 days after
the date of this notice. Public comments
are particularly invited on: whether this
collection of information is necessary
for the proper performance of functions
of the DFARS, and will have practical
utility; whether DoD’s estimate of the
public burden of this collection of
information is accurate, and based on
valid assumptions and methodology;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information
on those who are to respond, through
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the use of appropriate technological
collection techniques or other forms of
information technology.
To obtain a copy of the supporting
statement and associated collection
instruments, please email osd.dfars@
mail.mil. Include DFARS Case 2019–
D043 in the subject line of the message.
List of Subjects in 48 CFR Parts 212,
227, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 212, 227, and
252 are proposed to be amended as
follows:
■ 1. The authority citation for 48 CFR
parts 212, 227, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 212.301 by—
a. Revising paragraph (f)(xii)(A);
b. Redesignating paragraph (f)(xii)(C)
as paragraph (f)(xii)(D);
■ c. Adding a new paragraph (f)(xii)(C)
and paragraphs (f)(xii)(E) and (F).
The revision and additions read as
follows:
■
■
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
*
*
(f) * * *
(xii) * * * (A) Use the clause at
252.227–7013, Rights in Technical DataNoncommercial Items, as prescribed in
227.7102–4(b) and 227.7103–6(a). Use
the clause with its Alternate I as
prescribed in 227.7103–6(b)(1). Use the
clause with its Alternate II as prescribed
in 227.7103–6(b)(2), to comply with 10
U.S.C. 8687 and 17 U.S.C. 1301, et seq.
*
*
*
*
*
(C) Use the clause at 252.227–7018,
Rights in Noncommercial Technical
Data and Computer Software–Small
Business Innovation Research Program
and Small Business Technology
Transfer Program, as prescribed in
227.7104–4(a)(1).
*
*
*
*
*
(E) Use the provision at 252.227–
70XX, Additional Preaward
Requirements for Small Business
Technology Transfer Program, as
prescribed in 227.7104–4(c)(1).
(F) Use the clause at 252.227–70YY,
Additional Postaward Requirements for
Small Business Technology Transfer
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Program, as prescribed in 227.7104–
4(c)(2).
*
*
*
*
*
PART 227—PATENTS, DATA, AND
COPYRIGHTS
227.7103–5
[Amended]
3. Amend section 227.7103–5—
a. In paragraph (b)(4) introductory
text, by removing the words
‘‘government’’ and ‘‘legends’’ and
adding ‘‘Government’’ and ‘‘markings’’
in their places, respectively;
■ b. In paragraph (b)(4)(i), by removing
‘‘non-disclosure’’ and adding
‘‘nondisclosure’’ in its place;
■ c. In paragraph (b)(4)(ii), by removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Markings’’ in its place;
■ d. In paragraph (b)(5), by removing
‘‘legends’’, ‘‘252–227–7025’’, and ‘‘nondisclosure’’ and adding ‘‘markings’’,
‘‘252.227–7025’’, and ‘‘nondisclosure’’
in their places, respectively;
■ e. In paragraph (b)(6), by removing
‘‘legends’’ and ‘‘non-disclosure’’
wherever it appears, and adding
‘‘markings’’ and ‘‘nondisclosure’’ in
their places, respectively; and removing
‘‘Commerce Business Daily’’ and adding
‘‘System for Award Management’’ in its
place; and
■ f. In paragraph (c)(4) by removing
‘‘non-disclosure’’ and ‘‘Information
Marked with Restrictive Legends’’ and
adding ‘‘nondisclosure’’ and
‘‘Information with Restrictive Markings’’
in their places, respectively.
■ 4. Amend section 227.7103–6—
■ a. In paragraph (a), by revising the
second sentence and adding a new third
sentence; and
■ b. In paragraph (c), by removing
‘‘Information Marked with Restrictive
Legends’’ and ‘‘legend(s)’’ and adding
‘‘Information with Restrictive Markings’’
and ‘‘marking(s)’’ in their places,
respectively.
The revision reads as follows:
■
■
227.7103–6
Contract clauses.
(a) * * * Do not use the clause when
the only deliverable items are computer
software or computer software
documentation (see 227.72), commercial
items developed exclusively at private
expense (see 227.7102–4), existing
works (see 227.7105), or special works
(see 227.7106). When contracting under
the Small Business Innovation Research
(SBIR) Program or the Small Business
Technology Transfer (STTR) Program,
see 227.7104–4(a). * * *
*
*
*
*
*
■ 5. Amend section 227.7103–7—
■ a. By revising the section heading;
■ b. In paragraph (a) introductory text,
by removing ‘‘subsection’’, ‘‘parties’’,
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and ‘‘non-disclosure’’ and adding
‘‘section’’, ‘‘parties,’’, and
‘‘nondisclosure’’ in their places;
■ c. Revising paragraphs (a)(1) and (2);
■ d. In paragraph (b), by removing ‘‘nondisclosure’’ and ‘‘Information Marked
with Restrictive Legends’’ and adding
‘‘nondisclosure’’ and ‘‘Information with
Restrictive Markings’’ in their places,
respectively;
■ e. In paragraph (c) introductory text by
removing ‘‘non-disclosure’’ and adding
‘‘nondisclosure’’ in its place;
■ f. In the agreement ‘‘Use and NonDisclosure Agreement’’, by revising the
agreement title, and paragraphs (1) and
(5) of the agreement and the
parenthetical clause at the end of the
agreement.
The revisions read as follows:
227.7103–7 Use and nondisclosure
agreement.
(a) * * *
(1) The specific conditions under
which an intended recipient will be
authorized to use, modify, reproduce,
release, perform, display, or disclose
technical data subject to limited rights,
or SBIR/STTR data rights, or computer
software subject to restricted rights or
SBIR/STTR data rights must be
stipulated in an attachment to the use
and nondisclosure agreement.
(2) For an intended release,
disclosure, or authorized use of
technical data or computer software
subject to special license rights, modify
paragraph (1)(d) of the use and
nondisclosure agreement in paragraph
(c) of this section to enter the
conditions, consistent with the license
requirements, governing the recipient’s
obligations regarding use, modification,
reproduction, release, performance,
display, or disclosure of the data or
software.
*
*
*
*
*
Use and Nondisclosure Agreement
tkelley on DSK125TN23PROD with PROPOSALS2
*
*
*
*
*
(1) The Recipient shall—
(a) Use, modify, reproduce, release,
perform, display, or disclose Data
marked with government purpose rights
markings or SBIR/STTR data rights
markings (after expiration of the SBIR/
STTR data protection period provided
in the SBIR/STTR data rights marking)
only for government purposes and shall
not do so for any commercial purpose.
The Recipient shall not release, perform,
display, or disclose these Data, without
the express written permission of the
contractor whose name appears in the
restrictive marking (the ‘‘Contractor’’),
to any person other than its
subcontractors or suppliers, or
prospective subcontractors or suppliers,
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who require these Data to submit offers
for, or perform, contracts with the
Recipient. The Recipient shall require
its subcontractors or suppliers, or
prospective subcontractors or suppliers,
to sign a use and nondisclosure
agreement prior to disclosing or
releasing these Data to such persons.
Such agreement must be consistent with
the terms of this agreement.
(b) Use, modify, reproduce, release,
perform, display, or disclose technical
data marked with limited rights or
SBIR/STTR data rights markings only as
specified in the attachment to this
Agreement. Release, performance,
display, or disclosure to other persons is
not authorized unless specified in the
attachment to this Agreement or
expressly permitted in writing by the
Contractor. The Recipient shall
promptly notify the Contractor of the
execution of this Agreement and
identify the Contractor’s Data that has
been or will be provided to the
Recipient, the date and place the Data
were or will be received, and the name
and address of the Government office
that has provided or will provide the
Data.
(c) Use computer software marked
with restricted rights or SBIR/STTR data
rights markings only in performance of
Contract Number [Insert contract
number(s)]. The recipient shall not, for
example, enhance, decompile,
disassemble, or reverse engineer the
software; time share, or use a computer
program with more than one computer
at a time. The recipient may not release,
perform, display, or disclose such
software to others unless expressly
permitted in writing by the licensor
whose name appears in the restrictive
marking. The Recipient shall promptly
notify the software licensor of the
execution of this Agreement and
identify the software that has been or
will be provided to the Recipient, the
date and place the software were or will
be received, and the name and address
of the Government office that has
provided or will provide the software.
(d) Use, modify, reproduce, release,
perform, display, or disclose Data
marked with special license rights
markings. [To be completed by the
contracting officer. See 227.7103–
7(a)(2). Omit if none of the data
requested is marked with special license
rights markings.]
*
*
*
*
*
(5) The Recipient agrees to indemnify
and hold harmless the Government, its
agents, and employees from every claim
or liability, including attorneys’ fees,
court costs, and expenses arising out of,
or in any way related to, the misuse or
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unauthorized modification,
reproduction, release, performance,
display, or disclosure of Data received
from the Government with restrictive
markings by the Recipient or any person
to whom the Recipient has released or
disclosed the Data.
*
*
*
*
*
(End of use and nondisclosure
agreement)
227.7103–10
[Amended]
6. Amend section 227.7103–10—
a. In paragraph (b)(2), by removing
‘‘pre-existing’’ and ‘‘legend’’ and adding
‘‘preexisting’’ and ‘‘marking’’ in their
places, respectively;
■ b. In paragraph (c)(2), by removing
‘‘legends’’ and ‘‘six months’’ and adding
‘‘markings’’ and ‘‘6 months’’ in their
places, respectively; and
■ c. In paragraph (c)(3), by removing
‘‘use or disclosure’’ and adding ‘‘use or
disclosure that are consistent with the
proposed restrictive marking’’ in its
place.
■
■
227.7103–12
[Amended]
7. Amend section 227.7103–12
paragraph (b)(1) by removing ‘‘legends’’
and adding ‘‘markings’’ in its place.
■
227.7103–15
[Amended]
8. Amend section 227.7103–15—
a. In paragraph (c) introductory text,
by removing ‘‘non-commercial’’ and
adding ‘‘noncommercial’’ in its place;
and
■ b. In paragraph (c)(2), by removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Markings’’ in its place.
■
■
227.7103–16
[Amended]
9. Amend section 227.7103–16 in
paragraph (b) by removing ‘‘nondisclosure’’ and adding ‘‘nondisclosure’’
in its place.
■ 10. Revise section 227.7104. to read as
follows:
■
227.7104 Contracts under the Small
Business Innovation Research (SBIR)
Program and Small Business Technology
Transfer (STTR) Program.
11. Add new sections 227.7104–1,
227.7104–2, 227.7104–3, and 227.7104–
4 to read as follows:
■
227.7104–1
Policy.
(a) Contracting officers shall not
require an offeror, either as a condition
of being responsive to a solicitation or
as a condition for award, to sell or
otherwise relinquish to the Government
any rights in technical data related to
items, components, or processes
developed under a SBIR/STTR contract
or any rights in software generated
under a SBIR/STTR contract except for
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the technical data and computer
software identified at 227.7104–2.
(b) Contracting officers shall not
prohibit offerors and contractors from
furnishing or offering to furnish items,
components, or processes developed
under a SBIR/STTR contract or software
generated under a SBIR/STTR contract
solely because the Government’s rights
to use, modify, release, reproduce,
perform, display, or disclose technical
data pertaining to those items may be
restricted.
(c) In a manner consistent with the
guidance in this section and acquisition
preferences applicable to SBIR/STTR
offerors, the Government may use
information provided by offerors in
response to a solicitation in the source
selection process to evaluate the impact
of proposed restrictions on the
Government’s ability to use or disclose
technical data or computer software.
However, contracting officers shall not
prohibit offerors from offering products
for which the offeror is entitled to
provide the technical data or computer
software with restrictions. Contracting
officers also shall not require offerors,
either as a condition of being responsive
to a solicitation or as a condition for
award, to sell or otherwise relinquish
any greater rights in technical data or
computer software when the offeror is
entitled to provide the technical data or
computer software with restrictions.
tkelley on DSK125TN23PROD with PROPOSALS2
227.7104–2
Rights in SBIR or STTR data.
(a) Under the clause at 252.227–7018,
Rights in Noncommercial Technical
Data and Computer Software–Small
Business Innovation Research Program
and Small Business Technology
Transfer Program, the Government
obtains the following standard license
rights:
(1) Unlimited rights in the technical
data and computer software listed in
paragraph (c)(1) of the clause.
(2) SBIR/STTR data rights in all other
technical data and computer software
developed or generated under the phase
I, II, or III SBIR/STTR contract or
subcontract and marked with the SBIR/
STTR data rights marking. SBIR/STTR
data rights provide the Government
limited rights in such technical data and
restricted rights in such computer
software during the SBIR/STTR data
protection period commencing on the
date of contract award and ending 20
years after that date unless, subsequent
to the award, the agency and the
contractor negotiate for some other
protection period for the SBIR/STTR
data. Upon expiration of the SBIR/STTR
data protection period, the Government
has government purpose rights in the
SBIR/STTR data. These government
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purpose rights do not expire. See
252.227–7018 for the definition of the
SBIR/STTR data protection period and
PGI 227.7104–2 for additional guidance
on the SBIR/STTR data protection
period.
(b) During the SBIR/STTR data
protection period, the Government may
not release or disclose technical data or
computer software that is subject to
SBIR/STTR data rights to any person
except as authorized for limited rights
technical data or restricted rights
computer software, respectively.
(c) The Small Business
Administration’s SBIR and STTR
Program Policy Directive (effective May
2, 2019) provides for special
consideration regarding the handling
(e.g., disclosure, reverse engineering) of
prototypes generated under SBIR and
STTR awards, to avoid effects that may
appear to be inconsistent with the SBIR
and STTR program objectives and to
allow the SBIR/STTR awardee to retain
rights in SBIR/STTR data during the
SBIR/STTR data protection period.
227.7104–3
STTR program requirements.
(a) Before award of a contract under
the STTR program requirements only,
the provision at 252.227–70XX,
Additional Preaward Requirements for
Small Business Technology Transfer
Program, requires offerors to submit, as
part of their proposal, a written
agreement between the offeror and a
partnering research institution that
allocates any rights in intellectual
property and the offeror’s written
representation that it is satisfied with
the agreement. The contracting officer
shall review the agreement to ensure it
does not conflict with the requirements
of the solicitation or any right to carry
out follow-on research. If such conflicts
exist and cannot be resolved, the
submitted proposal is not eligible for
award.
(b) At contract award for STTR
program requirements, in accordance
with the clause at 252.227–70YY,
Additional Postaward Requirements for
Small Business Technology Transfer
Program, the contracting officer shall
attach to the contract the accepted
written agreement and representation
provided by the contractor pursuant to
the provision at 252.227–70XX.
(c) After contract award, for any
modification to the written agreement
between the contractor and partnering
research institution, the contracting
officer shall review the agreement and
representation to ensure the modified
agreement adheres to the requirements
of 252.227–70YY. If acceptable, the
contracting officer shall attach the
modified agreement to the contract.
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77689
227.7104–4 Solicitation provisions and
contract clauses.
(a)(1) Use the clause at 252.227–7018,
Rights in Noncommercial Technical
Data and Computer Software–Small
Business Innovation Research Program
and Small Business Technology
Transfer Program, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
when SBIR/STTR data are delivered,
developed, or generated during contract
performance, and when any portion of
contract performance is governed by the
SBIR or STTR program (e.g.,
performance of one or more
subcontracts qualifies as a phase III
SBIR or STTR award).
(2) For the remainder of the technical
data or computer software that is
delivered, developed, or generated
under the contract, use the following
clauses as applicable, in accordance
with the prescriptions for those clauses:
(i) 252.227–7013, Rights in Technical
Data-Noncommercial Items.
(ii) 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation.
(iii) 252.227–7015, Technical DataCommercial Items.
(b) Use the following provision in
solicitations and the following clauses
in solicitations and contracts that
include the clause at 252.227–7018, in
accordance with the prescriptions for
the provision and clauses:
(1) 252.227–7016, Rights in Bid or
Proposal Information.
(2) 252.227–7017, Identification and
Assertion of Use, Release, or Disclosure
Restrictions.
(3) 252.227–7019, Validation of
Asserted Restrictions–Computer
Software.
(4) 252.227–7025, Limitations on the
Use or Disclosure of GovernmentFurnished Information with Restrictive
Markings.
(5) 252.227–7028, Technical Data or
Computer Software Previously
Delivered to the Government.
(6) 252.227–7030, Technical Data–
Withholding of Payment.
(7) 252.227–7037, Validation of
Restrictive Markings on Technical Data
(paragraph (e) of the clause contains
information that must be included in a
challenge).
(c)(1) Use the provision at 252.227–
70XX, Additional Preaward
Requirements for Small Business
Technology Transfer Program, in
solicitations that contain the clause at
252.227–70YY.
(2) Use the clause at 252.227–70YY,
Additional Postaward Requirements for
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Small Business Technology Transfer
Program, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, for
acquisitions under the STTR Program.
227.7108
[Amended]
12. Amend section 227.7108—
a. In paragraph (a)(5), by removing
‘‘non-disclosure’’ and adding
‘‘nondisclosure’’ in its place; and
■ b. In paragraphs (c) and (d), by
removing ‘‘legends’’ and adding
‘‘markings’’ in their places.
■
■
227.7203–5
[Amended]
13. Amend section 227.7203–5—
a. In paragraph (b)(4) introductory
text, by removing ‘‘legends’’ and adding
‘‘markings’’ in its place;
■ b. In paragraph (b)(4)(ii), by removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Markings’’ in its place;
■ c. In paragraph (b)(5), by removing
‘‘legends’’ and ‘‘non-disclosure’’ and
adding ‘‘markings’’ and ‘‘nondisclosure’’
in their places, respectively; and
■ d. In paragraph (b)(6), by removing
‘‘legends’’ and ‘‘non-disclosure’’
wherever it appears and adding
‘‘markings’’ and ‘‘nondisclosure’’ in
their places, respectively; and removing
‘‘Commerce Business Daily’’ and adding
‘‘System for Award Management’’ in its
place.
[Amended]
14. Amend section 227.7203–6—
a. In the section heading, by removing
‘‘Contract clauses’’ and adding
‘‘Solicitation provisions and contract
clauses’’ in its place; and
■ b. In paragraph (d), by removing
‘‘Information Marked with Restrictive
Legends’’ and ‘‘legend(s)’’ and adding
‘‘Information with Restrictive Markings’’
and ‘‘marking(s)’’ in their places,
respectively.
■
■
227.7203–10
[Amended]
15. Amend section 227.7203–10—
a. In paragraph (b)(1), by removing
‘‘legend’’ and adding ‘‘marking’’ in its
place; and
■ b. In paragraph (b)(2), by removing
‘‘pre-existing’’ and ‘‘legend’’ and adding
‘‘preexisting’’ and ‘‘marking’’ in their
places, respectively;
■ c. In paragraph (c)(2) introductory
text, by removing ‘‘legends’’ and ‘‘six
months’’ and adding ‘‘markings’’ and ‘‘6
months’’ in their places, respectively;
and
■ d. In paragraph (c)(3), by removing
‘‘use or disclosure’’ and adding ‘‘use or
disclosure that are consistent with the
proposed restrictive marking’’ in its
place.
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■
■
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[Amended]
16. Amend section 227.7203–12 in
paragraph (a)(1) by removing ‘‘legend’’
and adding ‘‘marking’’ in its place.
■
227.7203–15
[Amended]
17. Amend section 227.7203–15 in
paragraph (c)(3) by removing
‘‘Information Marked with Restrictive
Legends’’ and adding ‘‘Information with
Restrictive Markings’’ in its place.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
■
■
227.7203–6
227.7203–12
18. Amend section 252.227–7013—
a. By revising the section heading,
introductory text, and clause date;
■ b. In paragraph (a)—
■ i. Removing the designations for
paragraphs (a)(1) through (16) and
placing the definitions in alphabetical
order;
■ ii. In the defined term ‘‘Covered
Government support contractor’’—
■ A. In the introductory text, by
removing ‘‘effort (rather than to directly
furnish an end item or service to
accomplish a program or effort)’’ and
adding ‘‘effort, rather than to directly
furnish an end item or service to
accomplish a program or effort’’ in its
place;
■ B. By redesignating paragraphs (i) and
(ii) as (1) and (2) respectively; and
■ C. In newly redesignated paragraph
(2) by removing ‘‘Information Marked
with Restrictive Legends’’ and adding
‘‘Information with Restrictive Markings’’
in its place;
■ iii. In the defined term ‘‘Developed
exclusively at private expense’’
■ A. introductory text, by removing
‘‘government’’ and adding
‘‘Government’’ in its place, and
■ B. By redesignating paragraphs (i) and
(ii) as paragraphs (1) and (2),
respectively;
■ iv. In the defined term ‘‘Developed
exclusively with government funds’’, by
removing ‘‘government’’ and adding
‘‘Government’’ in its place;
■ v. By adding, in alphabetical order,
the definition of ‘‘Generated’’;
■ vi. By revising the definition of
‘‘Government purpose rights’’;
■ vii. In the defined term ‘‘Limited
rights’’ by—
■ A. Redesignating paragraphs (i)
introductory text, (ii), and (iii) as
paragraphs (1) introductory text, (2), and
(3), respectively;
■ B. In the newly redesignated
paragraph (1) by redesignating
paragraphs (1)(A) and (B) introductory
text as paragraphs (1)(i) and (ii)
introductory text, respectively; and
■ C. In the newly redesignated
paragraph (1)(ii) by redesignating
■
■
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paragraphs (1)(ii)(1) and (2) as
paragraphs (1)(ii)(A) and (B),
respectively;
■ viii. By adding, in alphabetical order,
the definition of ‘‘Small Business
Innovation Research/Small Business
Technology Transfer (SBIR/STTR)
data’’;
■ c. By redesignating paragraphs (b)
through (k) as paragraphs (c) through (l),
respectively;
■ d. By adding a new paragraph (b);
■ e. In newly redesignated paragraph (c)
introductory text, by removing ‘‘the
Rights in Noncommercial Computer
Software and Noncommercial Software
Documentation’’ and adding ‘‘the
DFARS 252.227–7014, Rights in
Noncommercial Computer Software
Documentation,’’ in its place;
■ f. In newly redesignated paragraph
(c)(2)(i) introductory text, by removing
‘‘five-year’’ and adding ‘‘5-year’’ in its
place;
■ g. In newly redesignated paragraph
(c)(2)(i)(A), by removing ‘‘(b)(1)(ii) and
(b)(1)(iv) through (b)(1)(ix)’’ and adding
‘‘(c)(1)(ii) and (c)(1)(iv) through
(c)(1)(ix)’’ in its place;
■ h. In newly redesignated paragraph
(c)(2)(ii), by removing ‘‘five-year’’,
wherever it appears, and ‘‘(b)(2)(i)(B)’’
and adding ‘‘5-year’’ and ‘‘(c)(2)(i)(B)’’
in their places, respectively;
■ i. In newly redesignated paragraph
(c)(2)(iii)(A), by removing ‘‘nondisclosure’’ and ‘‘227.7103–7 of the
Defense Federal Acquisition Regulation
Supplement (DFARS)’’ and adding
‘‘nondisclosure’’ and ‘‘DFARS
227.7103–7’’ in their places,
respectively;
■ j. In newly redesignated paragraph
(c)(2)(iii)(B), by removing ‘‘Information
Marked with Restrictive Legends’’ and
adding ‘‘Information with Restrictive
Markings’’ in its place;
■ k. In newly redesignated paragraph
(c)(2)(iv), by removing ‘‘legend’’ and
‘‘(f)(2)’’ and adding ‘‘marking’’ and
‘‘(g)(2)’’ in their places, respectively;
■ l. In newly redesignated paragraph
(c)(3)(i) introductory text, by removing
‘‘(b)(1)(ii) and (b)(1)(iv) through
(b)(1)(ix)’’ and adding ‘‘(c)(1)(ii) and
(c)(1)(iv) through (c)(1)(ix)’’ in its place;
■ m. In newly redesignated paragraph
(c)(3)(i)(A), by removing ‘‘legend’’ and
‘‘(f)’’ and adding ‘‘marking’’ and ‘‘(g)’’ in
their places, respectively;
■ n. In newly redesignated paragraph
(c)(3)(iv)(C), by removing ‘‘legend’’ and
‘‘non-disclosure’’ wherever it appears
and adding ‘‘marking’’ and
‘‘nondisclosure’’ in their places,
respectively;
■ o. In newly redesignated paragraph
(c)(3)(iv)(D), by removing ‘‘nondisclosure’’ wherever it appears,
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‘‘252.227–7025’’, and ‘‘Information
Marked with Restrictive Legends’’ and
adding ‘‘nondisclosure’’, ‘‘DFARS
252.227–7025’’, and ‘‘Information with
Restrictive Markings’’ in their places,
respectively;
■ p. In newly redesignated paragraph
(c)(4), by removing ‘‘(b)(1) through
(b)(3)’’ and ‘‘in paragraph (a)(14)’’ and
adding ‘‘(c)(1) through (c)(3)’’ and ‘‘in
the definition of ‘‘limited rights’’ ’’ in
their places, respectively;
■ q. In newly redesignated paragraph
(c)(5) introductory text, by removing
‘‘pre-existing’’ and adding ‘‘preexisting’’
in its place;
■ r. In newly redesignated paragraph
(c)(6), by removing ‘‘paragraph (a)(14) or
(b)(2)(iii)’’, ‘‘(b)(4)’’, and ‘‘legends’’ and
adding ‘‘the definition of ‘‘limited
rights’’ or paragraph (c)(2)(iii)’’, ‘‘(c)(4)’’,
and ‘‘markings’’ in their places,
respectively;
■ s. In newly redesignated paragraph (e),
by removing ‘‘paragraph (b)’’ and adding
‘‘paragraph (c)’’ in its place;
■ t. In newly redesignated paragraph
(f)(2), by removing ‘‘(e)(3)’’ and adding
‘‘(f)(3)’’ in its place;
■ u. In newly redesignated paragraph
(f)(3), by —
■ A. Adding a heading to the table; and
■ B. in note 3, by removing ‘‘SBIR’’ and
adding ‘‘SBIR/STTR’’ in its place;
■ v. In paragraph (f)(4), by removing
‘‘Validation of Restrictive Markings on
Technical Data’’ and adding ‘‘DFARS
252.227–7037, Validation of Restrictive
Markings on Technical Data,’’ in its
place;
■ w. By revising newly redesignated
paragraph (g);
■ x. In newly redesignated paragraph
(i)(1) and (2), by removing ‘‘Validation
of Restrictive Markings on Technical
Data’’ and adding ‘‘DFARS 252.227–
7037, Validation of Restrictive Markings
on Technical Data,’’ in its place;
■ y. In newly redesignated paragraph
(k)(2), by removing ‘‘(j)(1)’’ and adding
‘‘(k)(1)’’ in its place;
■ z. By revising newly redesignated
paragraph (l) heading and paragraphs
(l)(1) and (2);
■ aa. By redesignating paragraphs (l)(3),
(l)(4), and (l)(5) as paragraphs (l)(4),
(l)(5), and (l)(6), respectively;
■ bb. By adding a new paragraph (l)(3);
■ cc. In alternate I—
■ i. By revising the clause date and in
the introductory text removing
‘‘paragraph (l)’’ and adding ‘‘paragraph
(m)’’ in its place;
■ ii. In newly redesignated paragraph
(m)(2), by removing ‘‘paragraph (l)’’ and
‘‘twenty-four (24)’’ and adding
‘‘paragraph (m)’’ and ‘‘24’’ in their
places, respectively;
■ dd. In alternate II by—
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i. Revising the clause date and the
introductory text; and
■ ii. Redesignating paragraphs (a)(17)
and (b)(7) as paragraphs (a) and (c)(7),
respectively.
The revisions and additions read as
follows:
■
252.227–7013 Rights in Technical Data—
Noncommercial Items.
As prescribed in 227.7102–4(b) and
227.7103–6(a), use the following clause:
Rights In Technical Data—Noncommercial
Items (Date)
(a) * * *
Generated means, with regard to technical
data or computer software, first created in the
performance of this contract.
*
*
*
*
*
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose technical data
within the Government without restriction;
and
(2) Release or disclose technical data
outside the Government and authorize
persons to whom release or disclosure has
been made to use, modify, reproduce, release,
perform, display, or disclose that data for
United States Government purposes.
*
*
*
*
*
Small Business Innovation Research/Small
Business Technology Transfer (SBIR/STTR)
data means all technical data or computer
software developed or generated in the
performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
*
*
*
*
*
(b) Applicability. (1) Except as provided in
paragraph (b)(2) of this clause, this clause
will govern all technical data pertaining to
noncommercial items or to any portion of a
commercial item that was developed in any
part at Government expense, and the clause
at Defense Federal Acquisition Regulation
Supplement (DFARS) 252.227–7015,
Technical Data—Commercial Items, will
govern the technical data pertaining to any
portion of a commercial item that was
developed exclusively at private expense.
(2) The clause at DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program, will
govern technical data that are SBIR/STTR
data.
*
*
*
*
*
(f) * * *
(3) * * *
Identification and Assertion of Restrictions
on the Government’s Use, Release, or
Disclosure of Technical Data
*
*
*
*
*
(g)(1) Marking requirements. The
Contractor, and its subcontractors or
suppliers, shall apply asserted restrictions on
technical data delivered under this contract
only by marking such technical data. Except
as provided in paragraph (g)(9) of this clause,
only the following restrictive markings are
authorized under this contract:
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(i) The unlimited rights markings at
paragraph (g)(5) of this clause.
(ii) The government purpose rights
marking at paragraph (g)(6) of this clause.
(iii) The limited rights marking at
paragraph (g)(7) of this clause.
(iv) The special license rights marking at
paragraph (g)(8) of this clause.
(v) A notice of copyright in the format
prescribed under 17 U.S.C. 401 or 402.
(2) Other restrictive markings. Any other
restrictive markings, including markings that
describe restrictions placed on third-party
recipients of the technical data, are not
authorized and are nonconforming markings
governed by paragraph (i)(2) of this clause.
(3) General marking instructions. The
Contractor, or its subcontractors or suppliers,
shall conspicuously and legibly mark the
appropriate restrictive marking on all
technical data that qualify for such markings.
The authorized restrictive markings shall be
placed on the transmittal document or
storage container and, for printed material,
each page of the printed material containing
technical data for which restrictions are
asserted. When only portions of a page of
printed material are subject to the asserted
restrictions, such portions shall be identified
by circling, underscoring, with a note, or
other appropriate identifier. Technical data
transmitted directly from one computer or
computer terminal to another shall contain a
notice of asserted restrictions. Reproductions
of technical data or any portions thereof
subject to asserted restrictions shall also
reproduce the asserted restrictions.
(4) Omitted markings. (i) Technical data
delivered or otherwise provided under this
contract without restrictive markings shall be
presumed to have been delivered with
unlimited rights. To the extent practicable, if
the Contractor has requested permission (see
paragraph (g)(4)(ii) of this clause) to correct
an inadvertent omission of markings, the
Contracting Officer will not release or
disclose the technical data pending
evaluation of the request.
(ii) The Contractor may request permission
to have conforming and justified restrictive
markings placed on unmarked technical data
at its expense. The request must be received
by the Contracting Officer within 6 months
following the furnishing or delivery of such
technical data, or any extension of that time
approved by the Contracting Officer. The
Contractor shall—
(A) Identify the technical data that should
have been marked;
(B) Demonstrate that the omission of the
marking was inadvertent, the proposed
marking is justified and conforms with the
requirements for the marking of technical
data contained in this clause; and
(C) Acknowledge, in writing, that the
Government has no liability with respect to
any disclosure, reproduction, or use of the
technical data made prior to the addition of
the marking or resulting from the omission of
the marking.
(5) Unlimited rights markings. Technical
data or computer software delivered or
otherwise furnished to the Government with
unlimited rights shall be marked as follows:
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Unlimited Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
The Government has unlimited rights in
this technical data or computer software
pursuant to DFARS 252.227–7013, Rights in
Technical Data—Noncommercial Items;
DFARS 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation; or DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of the above identified contract, as
applicable. This marking must be included in
any reproduction of this technical data,
computer software, or portions thereof.
(End of marking)
(6) Government purpose rights markings.
Data delivered or otherwise furnished to the
Government with government purpose rights
shall be marked as follows:
tkelley on DSK125TN23PROD with PROPOSALS2
Government Purpose Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
Expiration Date lllllllllllll
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose these technical data are restricted by
paragraph (c)(2) of the DFARS 252.227–7013,
Rights in Technical Data—Noncommercial
Items, clause contained in the above
identified contract. No restrictions apply
after the expiration date shown above. Any
reproduction of technical data or portions
thereof marked with this marking must also
reproduce the markings.
(End of marking)
(7) Limited rights markings. Data delivered
or otherwise furnished to the Government
with limited rights shall be marked as
follows:
disclose these data are restricted by Contract
Number [Insert contract number], License
Number [Insert license identifier]. Any
reproduction of technical data or portions
thereof marked with this marking must also
reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special
licenses do not include government purpose
license rights acquired under a prior contract
(see paragraph (c)(5) of this clause).
(9) Preexisting data markings. If the terms
of a prior contract or license permitted the
Contractor to restrict the Government’s rights
to use, modify, reproduce, release, perform,
display, or disclose technical data deliverable
under this contract, and those restrictions are
still applicable, the Contractor may mark
such data with the appropriate restrictive
marking for which the data qualified under
the prior contract or license. The Contractor
shall follow the marking procedures in
paragraph (g)(1) of this clause.
*
*
*
*
Limited Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose these technical data are restricted by
paragraph (c)(3) of the DFARS 252.227–7013,
Rights in Technical Data—Noncommercial
Items, clause contained in the above
identified contract. Any reproduction of
technical data or portions thereof marked
with this marking must also reproduce the
markings. Any person, other than the
Government, who has been provided access
to such data must promptly notify the above
named Contractor.
(End of marking)
(8) Special license rights markings. (i) Data *
*
*
*
in which the Government’s rights stem from
Alternate I (Date)
a specifically negotiated license shall be
marked as follows:
*
*
*
*
Special License Rights
The Government’s rights to use, modify,
reproduce, release, perform, display, or
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*
(l) Subcontractors or suppliers.
(1) The Contractor shall ensure that the
rights afforded its subcontractors and
suppliers under 10 U.S.C. 2320, 10 U.S.C.
2321, 15 U.S.C. 638(j)(1)(B)(iii) and (v), and
the identification, assertion, and delivery
processes of paragraph (f) of this clause are
recognized and protected.
(2) Whenever any technical data for
noncommercial items, or for commercial
items developed in any part at Government
expense, are to be obtained from a
subcontractor or supplier for delivery to the
Government under this contract, the
Contractor shall use the following clause(s)
in the subcontract or other contractual
instrument, including subcontracts or other
contractual instruments for commercial
items, and require its subcontractors or
suppliers to do so, without alteration, except
to identify the parties:
(i)(A) Except as provided in paragraph
(l)(2)(ii) of this clause, use this clause to
govern the technical data pertaining to
noncommercial items or to any portion of a
commercial item that was developed in any
part at Government expense.
(B) Use the clause at DFARS 252.227–7015,
Technical Data—Commercial Items, to
govern the technical data pertaining to any
portion of a commercial item that was
developed exclusively at private expense.
(ii) Use the clause at DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program, to
govern technical data that are SBIR/STTR
data.
(3) No other clause shall be used to enlarge
or diminish the Government’s, the
Contractor’s, or a higher-tier subcontractor’s
or supplier’s rights in a subcontractor’s or
supplier’s technical data.
*
*
Alternate II (Date)
As prescribed in 227.7103–6(b)(2), add the
following definition of ‘‘Vessel design’’ in
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alphabetical order to paragraph (a) and add
paragraph (c)(7) to the basic clause:
*
*
*
*
*
19. Amend section 252.227–7014—
a. By revising the section heading,
introductory text, and the clause date;
■ b. In paragraph (a)—
■ i. By removing the designations for
paragraphs (a)(1) through (16) and
placing the definitions in alphabetical
order;
■ ii. In the defined term ‘‘Commercial
computer software’’, by—
■ A. Redesignating paragraphs (i)
through (iv) as paragraphs (1) through
(4), respectively; and
■ B. In newly redesignated paragraph
(4) by removing ‘‘(a)(1)(i), (ii), or (iii) of
this clause’’ and adding ‘‘(1), (2), or (3)
of this definition’’ in its place;
■ iii. In the defined term ‘‘Covered
Government support contractor’’, by—
■ A. Redesignating paragraphs (i) and
(ii) as paragraphs (1) and (2),
respectively; and
■ B. In newly redesignated paragraph
(2) by removing ‘‘Information Marked
with Restrictive Legends’’ and adding
‘‘Information with Restrictive Markings’’
in its place;
■ iv. In the defined term ‘‘Developed’’,
by redesignating paragraphs (i), (ii), and
(iii) as paragraphs (1), (2), and (3),
respectively;
■ v. In the defined terms ‘‘Developed
exclusively at private expense’’ and
‘‘Government purpose rights’’, by
redesignating paragraphs (i) and (ii) as
paragraphs (1) and (2), respectively;
■ vi. In the defined term
‘‘Noncommercial computer software’’,
by removing ‘‘under paragraph (a)(1) of
this clause’’ and adding ‘‘under the
definition of ‘‘commercial computer
software’’ of this clause’’ in its place;
■ vii. By revising the defined term
‘‘Restricted rights’’;
■ viii. By adding, in alphabetical order,
the definition ‘‘Small Business
Innovation Research/Small Business
Technology Transfer (SBIR/STTR)
data’’;
■ c. By redesignating paragraphs (b)
through (k) as paragraphs (c) through (l),
respectively;
■ d. By adding a new paragraph (b);
■ e. In newly redesignated paragraph (c)
introductory text, by removing ‘‘worldwide’’ and adding ‘‘worldwide’’ in its
place;
■ f. In newly redesignated paragraph
(c)(2)(i), by removing ‘‘(b)(1)’’ and
adding ‘‘(c)(1)’’ in its place;
■ g. In newly redesignated paragraph
(c)(2)(ii), by removing ‘‘five years’’ and
‘‘five-year’’ and adding ‘‘5 years’’ and
‘‘5-year’’ in their places, respectively;
■ h. In newly redesignated paragraph
(c)(2)(iii)(A), by removing ‘‘non■
■
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disclosure’’ and adding ‘‘nondisclosure’’
in its place;
■ i. In newly redesignated paragraph
(c)(2)(iii)(B), by removing ‘‘Information
Marked with Restrictive Legends’’ and
adding ‘‘Information with Restrictive
Markings’’ in its place;
■ j. In newly redesignated paragraph
(c)(3)(ii), by removing ‘‘(b)(4)’’ and
adding ‘‘(c)(4)’’ in its place;
■ k. In newly redesignated paragraph
(c)(3)(iii)(C), by removing ‘‘legend’’ and
‘‘non-disclosure’’ wherever it appears
and adding ‘‘marking’’ and
‘‘nondisclosure’’ in their places,
respectively;
■ l. In newly redesignated paragraph
(c)(3)(iii)(D), by removing ‘‘nondisclosure’’ wherever it appears,
‘‘252.227–7025’’, and ‘‘Information
Marked with Restrictive Legends’’ and
adding ‘‘nondisclosure’’, ‘‘DFARS
252.227–7025’’ and ‘‘Information with
Restrictive Markings’’, in their places,
respectively;
■ m. By revising paragraph (c)(4)(i);
■ n. In paragraph (c)(5) introductory
text, by removing ‘‘pre-existing’’ and
adding ‘‘preexisting’’ in its place;
■ o. By revising paragraph (c)(6);
■ p. In newly redesignated paragraph (e)
introductory text, by removing ‘‘(b)’’ and
adding ‘‘(c)’’ in its place;
■ q. In newly redesignated paragraph
(f)(2), by removing ‘‘(e)(3)’’ and adding
‘‘(f)(3)’’ in its place;
■ r. By revising newly redesignated
paragraph (f)(3) table;
■ s. In newly redesignated paragraph
(f)(4), by removing ‘‘Validation of
Asserted Restrictions—Computer
Software’’ and adding ‘‘DFARS
252.227–7019, Validation of Asserted
Restrictions—Computer Software,’’ in
its place;
■ t. By revising newly redesignated
paragraph (g);
■ u. In newly redesignated paragraph
(i)(1), by removing ‘‘Validation of
Asserted Restrictions—Computer
Software and the Validation of
Restrictive Markings on Technical Data’’
and adding ‘‘DFARS 252.227–7019,
Validation of Asserted Restrictions—
Computer Software, and the DFARS
252.227–7037, Validation of Restrictive
Markings on Technical Data,’’ in its
place;
■ v. In newly redesignated paragraph
(i)(2), by removing ‘‘Validation of
Asserted Restrictions—Computer
Software, or the Validation of
Restrictive Markings on Technical Data’’
and ‘‘sixty (60) days’’ and adding
‘‘DFARS 252.227–7019, Validation of
Asserted Restrictions—Computer
Software, or the DFARS 252.227–7037,
Validation of Restrictive Markings on
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Technical Data,’’ and ‘‘60 days’’ in their
places, respectively;
■ w. In newly redesignated paragraph
(k)(2) introductory text, by removing
‘‘(j)(1)’’ and adding ‘‘(k)(1)’’ in its place;
■ x. In newly redesignated paragraph (l),
by revising the heading and paragraph
(1);
■ y. In newly redesignated paragraph
(l)(3), by removing ‘‘(e)’’ and adding
‘‘(f)’’ in its place;
■ z. In alternate I—
■ i. By revising the clause date;
■ ii. In the introductory text, by
removing ‘‘(l)’’ and adding ‘‘(m)’’ in its
place;
■ iii. By redesignating paragraph (l) as
paragraph (m);
■ iv. In newly redesignated paragraph
(m)(2), by removing ‘‘(l)’’ and ‘‘twentyfour (24) months’’ and adding ‘‘(m)’’ and
‘‘24 months’’ in their places,
respectively.
The revisions and additions read as
follows:
252.227–7014 Rights in Noncommercial
Computer Software and Noncommercial
Computer Software Documentation.
As prescribed in 227.7203–6(a)(1), use
the following clause:
Rights in Noncommercial Computer
Software and Noncommercial Computer
Software Documentation (Date)
(a) * * *
Restricted rights apply only to
noncommercial computer software and mean
the Government’s rights to—
(1) Use a computer program with one
computer at one time. The program may not
be accessed by more than one terminal or
central processing unit or time shared unless
otherwise permitted by this contract;
(2) Transfer a computer program to another
Government agency without the further
permission of the Contractor if the transferor
destroys all copies of the program and related
computer software documentation in its
possession and notifies the licensor of the
transfer. Transferred programs remain subject
to the provisions of this clause;
(3) Make the minimum number of copies
of the computer software required for
safekeeping (archive), backup, or
modification purposes;
(4) Modify computer software provided
that the Government may—
(i) Use the modified software only as
provided in paragraphs (1) and (3) of this
definition; and
(ii) Not release or disclose the modified
software except as provided in paragraphs
(2), (5), (6) and (7) of this definition;
(5) Permit contractors or subcontractors
performing service contracts (see 37.101 of
the Federal Acquisition Regulation) in
support of this or a related contract to use
computer software to diagnose and correct
deficiencies in a computer program, to
modify computer software to enable a
computer program to be combined with,
adapted to, or merged with other computer
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77693
programs or when necessary to respond to
urgent tactical situations, provided that—
(i) The Government notifies the party
which has granted restricted rights that a
release or disclosure to particular contractors
or subcontractors was made;
(ii) Such contractors or subcontractors are
subject to the use and nondisclosure
agreement at 227.7103–7 of the Defense
Federal Acquisition Regulation Supplement
(DFARS) or are Government contractors
receiving access to the software for
performance of a Government contract that
contains the clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information with
Restrictive Markings;
(iii) The Government shall not permit the
recipient to decompile, disassemble, or
reverse engineer the software, or use software
decompiled, disassembled, or reverse
engineered by the Government pursuant to
paragraph (4) of this definition, for any other
purpose; and
(iv) Such use is subject to the limitations
in paragraphs (1) through (3) of this
definition;
(6) Permit contractors or subcontractors
performing emergency repairs or overhaul of
items or components of items procured under
this or a related contract to use the computer
software when necessary to perform the
repairs or overhaul, or to modify the
computer software to reflect the repairs or
overhaul made, provided that—
(i) The intended recipient is subject to the
use and nondisclosure agreement at DFARS
227.7103–7 or is a Government contractor
receiving access to the software for
performance of a Government contract that
contains the clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information with
Restrictive Markings;
(ii) The Government shall not permit the
recipient to decompile, disassemble, or
reverse engineer the software, or use software
decompiled, disassembled, or reverse
engineered by the Government pursuant to
paragraph (4) of this definition, for any other
purpose; and
(iii) Such use is subject to the limitations
in paragraphs (1) through (3) of this
definition; and
(7) Permit covered Government support
contractors in the performance of covered
Government support contracts that contain
the clause at 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information with Restrictive
Markings, to use, modify, reproduce,
perform, display, or release or disclose the
computer software to a person authorized to
receive restricted rights computer software,
provided that—
(i) The Government shall not permit the
covered Government support contractor to
decompile, disassemble, or reverse engineer
the software, or use software decompiled,
disassembled, or reverse engineered by the
Government pursuant to paragraph (4) of this
definition, for any other purpose; and
(ii) Such use is subject to the limitations
in paragraphs (1) through (4) of this
definition.
Small Business Innovation Research/Small
Business Technology Transfer (SBIR/STTR)
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data means all technical data or computer
software developed or generated in the
performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
*
*
*
*
*
(b) Applicability. This clause governs all
noncommercial computer software or
computer software documentation, except
that the clause at DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program, will
govern any computer software or computer
software documentation that is SBIR/STTR
data.
(c) * * *
(4) * * *
(i) The standard license rights granted to
the Government under paragraphs (c)(1)
through (c)(3) of this clause, including the
period during which the Government shall
have government purpose rights in computer
software, may be modified by mutual
agreement to provide such rights as the
parties consider appropriate but shall not
provide the Government lesser rights in
computer software than are enumerated in
the definition of ‘‘restricted rights’’ of this
clause, or lesser rights in computer software
documentation than are enumerated in the
definition of ‘‘limited rights’’ of the DFARS
252.227–7013, Rights in Technical Data—
Noncommercial Items, clause of this contract.
*
*
*
*
*
(6) Release from liability. The Contractor
agrees to release the Government from
liability for any release or disclosure of
computer software made in accordance with
the definition of ‘‘restricted rights’’ or
paragraph (c)(2)(iii) of this clause, in
accordance with the terms of a license
negotiated under paragraph (c)(4) of this
clause, or by others to whom the recipient
has released or disclosed the software, and to
seek relief solely from the party who has
improperly used, modified, reproduced,
released, performed, displayed, or disclosed
Contractor software marked with restrictive
markings.
*
*
*
*
*
(f) * * *
(3) * * *
Identification and Assertion of Restrictions
on the Government’s Use, Release, or
Disclosure of Computer Software
The Contractor asserts for itself, or the
persons identified below, that the
Government’s rights to use, release, or
disclose the following computer software
should be restricted:
Computer software to be furnished
with restrictions 1
Basis for assertion 2
Asserted rights category 3
Name of person asserting
restrictions 4
(LIST)
(LIST)
(LIST)
(LIST)
1 Generally,
development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government’s
rights to use, release, or disclose computer software.
2 Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific
reason for asserting that the Government’s rights should be restricted.
3 Enter asserted rights category (e.g., restricted or government purpose rights in computer software, government purpose license rights from a
prior contract, rights in SBIR/STTR data generated under another contract, or specifically negotiated licenses).
4 Corporation, individual, or other person, as appropriate.
Date llllllllllllllllll
Printed Name and Title
lllllllll
Signature llllllllllllllll
(End of identification and assertion)
tkelley on DSK125TN23PROD with PROPOSALS2
*
*
*
*
*
(g)(1) Marking requirements. The
Contractor, and its subcontractors or
suppliers, shall apply asserted restrictions on
computer software or computer software
documentation delivered under this contract
only by marking such software or
documentation. Except as provided in
paragraph (g)(9) of this clause, only the
following restrictive markings are authorized
under this contract:
(i) The unlimited rights marking at
paragraph (g)(5) of this clause;
(ii) The government purpose rights
marking at paragraph (g)(6) of this clause;
(iii) The restricted rights marking at
paragraph (g)(7) of this clause;
(iv) The special license rights marking at
paragraph (g)(8) of this clause; or
(v) A notice of copyright in the format
prescribed under 17 U.S.C. 401 or 402.
(2) Other restrictive markings. Any other
restrictive markings, including markings that
describe restrictions placed on third-party
recipients of the computer software or
computer software documentation, are not
authorized and shall be deemed
nonconforming markings governed by
paragraph (i)(2) of this clause.
(3) General marking instructions. The
Contractor, or its subcontractors or suppliers,
shall conspicuously and legibly mark the
appropriate restrictive marking on all
computer software that qualify for such
markings. The authorized restrictive marking
shall be placed on the transmitted document
or software storage container and each page,
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or portions thereof, of printed material
containing computer software for which
restrictions are asserted. Computer software
transmitted directly from one computer or
computer terminal to another shall contain a
notice of asserted restrictions. However,
instructions that interfere with or delay the
operation of computer software in order to
display a restrictive rights marking or other
license statement at any time prior to or
during use of the computer software, or
otherwise cause such interference or delay,
shall not be inserted in software that will or
might be used in combat or situations that
simulate combat conditions, unless the
Contracting Officer’s written permission to
deliver such software has been obtained prior
to delivery. Reproductions of computer
software or any portions thereof subject to
asserted restrictions, shall also reproduce the
asserted restrictions.
(4) Omitted markings. (i) Computer
software or computer software
documentation delivered or otherwise
provided under this contract without
restrictive markings shall be presumed to
have been delivered with unlimited rights.
To the extent practicable, if the Contractor
has requested permission (see paragraph
(g)(4)(ii) of this clause) to correct an
inadvertent omission of markings, the
Contracting Officer will not release or
disclose the software or documentation
pending evaluation of the request.
(ii) The Contractor may request permission
to have conforming and justified restrictive
markings placed on unmarked computer
software or computer software
documentation at its expense. The request
must be received by the Contracting Officer
within 6 months following the furnishing or
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delivery of such software or documentation,
or any extension of that time approved by the
Contracting Officer. The Contractor shall—
(A) Identify the software or documentation
that should have been marked;
(B) Demonstrate that the omission of the
marking was inadvertent, the proposed
marking is justified and conforms with the
requirements for the marking of computer
software or computer software
documentation contained in this clause; and
(C) Acknowledge, in writing, that the
Government has no liability with respect to
any disclosure, reproduction, or use of the
software or documentation made prior to the
addition of the marking or resulting from the
omission of the marking.
(5) Unlimited rights markings. Technical
data or computer software delivered or
otherwise furnished to the Government with
unlimited rights shall be marked as follows:
Unlimited Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
The Government has unlimited rights in
these technical data or this computer
software pursuant to the DFARS 252.227–
7013, Rights in Technical Data—
Noncommercial Items; DFARS 252.227–7014,
Rights in Noncommercial Computer Software
and Noncommercial Computer Software
Documentation; or DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of the above identified contract, as
applicable. This marking must be included in
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Contractor to restrict the Government’s rights
to use, modify, release, perform, display, or
disclose computer software or computer
software documentation and those
restrictions are still applicable, the
Contractor may mark such software or
documentation with the appropriate
restrictive marking for which the software
qualified under the prior contract or license.
The Contractor shall follow the marking
Government Purpose Rights
Contract Number llllllllllll procedures in paragraph (g)(1) of this clause.
*
*
*
*
Contractor Name
llllllllllll *
(l) Subcontractors or suppliers.
Contractor Address lllllllllll
(1)(i) Except as provided in paragraph
Expiration Date lllllllllllll
(l)(1)(ii) of this clause, whenever any
The Government’s rights to use, modify,
noncommercial computer software or
reproduce, release, perform, display, or
computer software documentation is to be
disclose this software are restricted by
paragraph (c)(2) of the DFARS 252.227–7014, obtained from a subcontractor or supplier for
Rights in Noncommercial Computer Software delivery to the Government under this
contract, the Contractor shall use this clause
and Noncommercial Computer Software
in its subcontracts or other contractual
Documentation, clause contained in the
instruments, and require its subcontractors or
above identified contract. No restrictions
suppliers to do so, without alteration, except
apply after the expiration date shown above.
to identify the parties.
Any reproduction of the software or portions
(ii) The Contractor shall use the clause at
thereof marked with this marking must also
reproduce the markings.
DFARS 252.227–7018, Rights in
Noncommercial Technical Data and
(End of marking)
Computer Software—Small Business
(7) Restricted rights markings. Software
Innovation Research Program and Small
delivered or otherwise furnished to the
Business Technology Transfer Program, to
Government with restricted rights shall be
govern computer software or computer
marked as follows:
software documentation that is SBIR/STTR
any reproduction of these technical data,
computer software, or portions thereof.
(End of marking)
(6) Government purpose rights markings.
Computer software delivered or otherwise
furnished to the Government with
government purpose rights shall be marked
as follows:
tkelley on DSK125TN23PROD with PROPOSALS2
Restricted Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose this software are restricted by
paragraph (c)(3) of the DFARS 252.227–7014,
Rights in Noncommercial Computer Software
and Noncommercial Computer Software
Documentation, clause contained in the
above identified contract. Any reproduction
of computer software or portions thereof
marked with this marking must also
reproduce the markings. Any person, other
than the Government, who has been provided
access to such software must promptly notify
the above named Contractor.
(End of marking)
(8) Special license rights markings. (i)
Computer software or computer
documentation in which the Government’s
rights stem from a specifically negotiated
license shall be marked as follows:
Special License Rights
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose this software are restricted by
Contract Number [Insert contract number],
License Number [Insert license identifier].
Any reproduction of computer software,
computer software documentation, or
portions thereof marked with this marking
must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special
licenses do not include government purpose
license rights acquired under a prior contract
(see paragraph (c)(5) of this clause).
(9) Preexisting markings. If the terms of a
prior contract or license permitted the
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data.
(iii) No other clause shall be used to
enlarge or diminish the Government’s, the
Contractor’s, or a higher tier subcontractor’s
or supplier’s rights in a subcontractor’s or
supplier’s computer software or computer
software documentation.
*
*
*
*
*
*
*
*
*
*
20. Amend section 252.227–7015—
a. By revising the section heading and
the clause date;
■ b. In paragraph (a)—
■ i. By removing the designations of
paragraphs (a)(1) through (5) and
placing in alphabetical order;
■ ii. In the defined term ‘‘Covered
Government support contractor’’, by —
■ A. Redesignating paragraphs (i) and
(ii) as paragraphs (1) and (2),
respectively; and
■ B. In newly redesignated paragraph
(2) removing ‘‘Information Marked with
Restrictive Legends’’ and adding
‘‘Information with Restrictive Markings’’
in its place;
■ iii. In the defined term ‘‘The term
item’’, by removing ‘‘The term item’’
and adding ‘‘Item’’ in its place;
■ c. By redesignating paragraphs (b)
through (e) as paragraphs (c) through (f),
respectively;
■ d. By adding a new paragraph (b);
■ e. In newly redesignated paragraph
(c)(2) introductory text, by removing
‘‘(b)(1)’’ and adding ‘‘(c)(1)’’ in its place;
■ f. In newly redesignated paragraph
(c)(3)(i), by removing ‘‘(b)(2)’’ and
adding ‘‘(c)(2)’’ in its place;
■
■
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g. In newly redesignated paragraph
(c)(3)(iii), by removing ‘‘restrictive
legend’’, ‘‘non-disclosure’’ and ‘‘an nondisclosure’’ and adding ‘‘restrictive
marking’’, ‘‘nondisclosure’’, and ‘‘a
nondisclosure’’ in their places,
respectively;
■ h. In newly redesignated paragraph
(c)(3)(iv), by removing ‘‘non-disclosure’’
wherever it appears and ‘‘252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
Marked with Restrictive Legends’’ and
adding ‘‘nondisclosure’’ and ‘‘DFARS
252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Markings’’
in their places, respectively;
■ i. In newly redesignated paragraph (e),
by adding a new sentence at the end of
the paragraph;
■ j. By revising newly redesignated
paragraph (f);
■ k. In Alternate I by—
■ i. Revising the clause date and the
introductory text; and
■ ii. Redesignating paragraphs (a)(6) and
(b)(4) as paragraphs (a) and (c)(4),
respectively;
The revisions and additions read as
follows:
■
252.227—7015 Technical Data—
Commercial Items.
*
*
*
*
*
Technical Data—Commercial Items (Date)
*
Alternate I (Date)
77695
*
*
*
*
(b) Applicability. This clause will govern
the technical data pertaining to any portion
of a commercial item that was developed
exclusively at private expense. If the
commercial item was developed in any part
at Government expense—
(1) The clause at Defense Federal
Acquisition Regulation Supplement (DFARS)
252.227–7018, Rights in Noncommercial
Technical Data and Computer Software—
Small Business Innovation Research Program
and Small Business Technology Transfer
Program, will govern technical data that are
generated during any portion of performance
that is covered under the Small Business
Innovation Research (SBIR) Program or Small
Business Technology Transfer (STTR)
Program; and
(2) The clause at DFARS 252.227–7013,
Rights in Technical Data—Noncommercial
Items, will govern the technical data
pertaining to any portion of a commercial
item that was developed in any part at
Government expense and is not covered
under the SBIR or STTR program.
*
*
*
*
*
(e) * * * The Contractor shall ensure that
restrictive markings on technical data
accurately reflect the rights granted to the
Government.
(f) Subcontractors or suppliers.
(1) The Contractor shall recognize and
protect the rights afforded its subcontractors
and suppliers under 10 U.S.C. 2320, 10
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Federal Register / Vol. 87, No. 242 / Monday, December 19, 2022 / Proposed Rules
U.S.C. 2321, and 15 U.S.C. 638(j)(1)(B)(iii)
and (v).
(2) Whenever any technical data related to
commercial items developed in any part at
private expense will be obtained from a
subcontractor or supplier for delivery to the
Government under this contract, the
Contractor shall use this clause in the
subcontract or other contractual instrument,
including subcontracts and other contractual
instruments for commercial items, and
require its subcontractors or suppliers to do
so, without alteration, except to identify the
parties. This clause will govern the technical
data pertaining to any portion of a
commercial item that was developed
exclusively at private expense, and the
Contractor shall use the following clauses to
govern the technical data pertaining to any
portion of a commercial item that was
developed in any part at Government
expense:
(i) Use the clause at DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program, to
govern technical data that are generated
during any portion of performance that is
covered under the SBIR or STTR program.
(ii) Use the clause at DFARS 252.227–7013,
Rights in Technical Data—Noncommercial
Items, to govern any technical data that are
not generated during any portion of
performance that is covered under the SBIR
or STTR program.
*
*
*
*
*
Alternate I (Date)
As prescribed in 227.7102–4(a)(2), add the
following definition of ‘‘Vessel design’’ in
alphabetical order to paragraph (a) and add
paragraph (c)(4) to the basic clause:
21. Amend section 252.227–7016 by—
a. Revising the section heading,
introductory text, and clause date;
■ b. Revising paragraph (a); and
■ c. Revising paragraph (c)(2).
The revisions read as follows:
■
■
252.227–7016
Information.
Rights in Bid or Proposal
As prescribed in 227.7103–6(e)(1),
227.7104–4(b)(1), or 227.7203–6(b), use
the following clause:
tkelley on DSK125TN23PROD with PROPOSALS2
Rights in Bid or Proposal Information (Date)
(a) Definitions. As used in this clause—
Computer software—
(1) Is defined in the 252.227–7014, Rights
in Noncommercial Computer Software and
Noncommercial Computer Software
Documentation, clause of this contract; or
(2) If this is a contract awarded under the
Small Business Innovation Research Program
or Small Business Technology Transfer
Program, the term is defined in the 252.227–
7018, Rights in Noncommercial Technical
Data and Computer Software—Small
Business Innovation Research Program and
Small Business Technology Transfer
Program, clause of this contract.
Technical data—
(1) Is defined in the 252.227–7013, Rights
in Technical Data—Noncommercial Items,
clause of this contract; or
(2) If this is a contract awarded under the
Small Business Innovation Research Program
or Small Business Technology Transfer
Program, the term is defined in the 252.227–
7018, Rights in Noncommercial Technical
Data and Computer Software—Small
Business Innovation Research Program and
Small Business Technology Transfer
Program, clause of this contract.
*
*
*
*
*
(c) * * *
(2) The Government’s right to use, modify,
reproduce, release, perform, display, or
disclose information that is technical data or
computer software required to be delivered
under this contract are determined by the
Defense Federal Acquisition Regulation
Supplement (DFARS) 252.227–7013, Rights
in Technical Data—Noncommercial Items;
DFARS 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation; or DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of this contract.
*
*
*
*
*
22. Amend section 252.227–7017 by—
a. Revising the section heading,
introductory text, and clause date;
■ b. Revising paragraphs (a) and (b);
■ c. Removing from paragraph (d)
introductory text ‘‘suppliers shall’’ and
adding ‘‘suppliers, shall’’ in its place;
and
■ d. Revising the paragraph (d) table.
The revisions read as follows:
■
■
252.227–7017 Identification and Assertion
of Use, Release, or Disclosure Restrictions.
As prescribed in 227.7103–3(b),
227.7104–4(b)(2), or 227.7203–3(a), use
the following provision:
Identification and Assertion of Use, Release,
or Disclosure Restrictions (Date)
(a) Definitions. As used in this provision—
Computer software—
(1) Is defined in the 252.227–7014, Rights
in Noncommercial Computer Software and
Noncommercial Computer Software
Documentation, clause of this solicitation; or
(2) If this solicitation contemplates a
contract under the Small Business Innovation
Research Program or Small Business
Technology Transfer Program, the term is
defined in the 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of this solicitation.
Technical data—
(1) Is defined in the 252.227–7013, Rights
in Technical Data—Noncommercial Items,
clause of this solicitation; or
(2) If this solicitation contemplates a
contract under the Small Business Innovation
Research Program or Small Business
Technology Transfer Program, the term is
defined in the 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of this solicitation.
(b) The identification and assertion
requirements in this provision apply only to
technical data, including computer software
documentation, or computer software to be
delivered with other than unlimited rights.
For contracts to be awarded under the Small
Business Innovation Research (SBIR)
Program or Small Business Technology
Transfer (STTR) Program), these
requirements apply to SBIR/STTR data that
will be generated under the resulting contract
and will be delivered with SBIR/STTR data
rights and to any other data that will be
delivered with other than unlimited rights.
Notification and identification are not
required for restrictions based solely on
copyright.
(d) * * *
Identification and Assertion of Restrictions
on the Government’s Use, Release, or
Disclosure of Technical Data or Computer
Software
The Offeror asserts for itself, or the persons
identified below, that the Government’s
rights to use, release, or disclose the
following technical data or computer
software should be restricted:
Technical data or computer
software to be furnished
with restrictions 1
Basis for assertion 2
Asserted rights category 3
Name of person asserting
restrictions 4
(LIST) 5
(LIST)
(LIST)
(LIST)
1 For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify both the deliverable technical data and each such item, component, or process. For computer software or computer software documentation identify the software or documentation.
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77697
2 Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other
than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The
Government’s rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether development was accomplished exclusively or partially at private expense. If development was not accomplished at private expense, or for computer software documentation, enter the specific basis for asserting restrictions.
3 Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR/STTR data generated under a
contract resulting from this solicitation or under another contract, limited, restricted, or government purpose rights under a contract resulting from
this solicitation or under a prior contract, or specially negotiated licenses).
4 Corporation, individual, or other person, as appropriate.
5 Enter ‘‘none’’ when all data or software will be submitted without restrictions.
Date llllllllllllllllll
Printed Name and Title
lllllllll
Signature llllllllllllllll
(End of identification and assertion)
*
*
*
*
*
23. Amend section 252.227–7018—
a. By revising the section heading,
introductory text, clause title, and date;
■ b. In paragraph (a)—
■ i. By removing designations for
paragraphs (a)(1) through (16) and
placing in alphabetical order;
■ ii. In the defined term ‘‘Commercial
computer software’’, by:
■ A. Redesignating paragraphs (i)
through (iv) as paragraphs (1) and (4),
respectively; and
■ B. In newly redesignated paragraph
(4) by removing ‘‘(a)(1)(i) or (iii) of this
clause’’ and adding ‘‘(1), (2), or (3) of
this definition’’ in its place;
■ iii. In the defined term ‘‘Covered
Government support contractor’’, by:
■ A. Redesignating paragraphs (i) and
(ii) as paragraphs (1) and (2),
respectively; and
■ B. In newly redesignated paragraph
(2) by removing ‘‘Information Marked
with Restrictive Legends’’ and adding
‘‘Information with Restrictive Markings’’
in its place;
■ iv. In the defined term ‘‘Developed’’,
by redesignating paragraphs (i) through
(iv) as paragraphs (1) through (4),
respectively;
■ v. In the defined term ‘‘Developed
exclusively at private expense’’, by
redesignating paragraphs (i) and (ii) as
paragraphs (1) and (2), respectively;
■ vi. Adding, in alphabetical order, the
definition of ‘‘Government purpose
rights’’;
■ vii. In the defined term ‘‘limited
rights’’, by:
■ A. Redesignating paragraphs (i)
through (iii) as paragraphs (1) through
(3), respectively;
■ B. In newly redesignated paragraph
(1) by redesignating paragraphs (1)(A)
and (B) as paragraphs (1)(i) and (ii),
respectively;
■ C. In newly redesignated paragraph
(1)(ii) by redesignating paragraphs
(1)(ii)(1) and (2) as paragraphs (1)(ii)(A)
and (B), respectively;
■ viii. In the defined term
‘‘Noncommercial computer software’’,
by removing ‘‘paragraph (a)(1) of this
clause’’ and adding ‘‘the ‘‘commercial
tkelley on DSK125TN23PROD with PROPOSALS2
■
■
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computer software’’ definition of this
clause’’ in its place;
■ ix. By revising the defined term
‘‘Restricted rights’’;
■ x. By adding, in alphabetical order,
definitions for ‘‘Small Business
Innovation Research/Small Business
Technology Transfer (SBIR/STTR) data’’
and ‘‘SBIR/STTR data protection
period’’;
■ xi. By removing the defined term
‘‘SBIR data rights’’ and adding, in
alphabetical order, the definition of
‘‘SBIR/STTR data rights’’;
■ c. By redesignating paragraphs (b)
through (k) as paragraphs (c) through (l),
respectively;
■ d. By adding a new paragraph (b);
■ e. In newly redesignated paragraph (c)
introductory text, by removing ‘‘worldwide’’ and adding ‘‘worldwide’’ in its
place;
■ f. In newly redesignated paragraph
(c)(1), by removing ‘‘data, including
computer software documentation, or
computer software generated under this
contract’’ and adding ‘‘data or computer
software, including such data generated
under this contract,’’ in its place;
■ g. In newly redesignated paragraph
(c)(1)(iv), by removing ‘‘use, release’’
and adding ‘‘use, release,’’ in its place.
■ h. By revising newly redesignated
paragraph (c)(1)(v);
■ i. By redesignating newly
redesignated paragraph (c)(1)(vi) as
paragraph (c)(1)(vii);
■ j. By adding a new paragraph
(c)(1)(vi);
■ k. By revising newly redesignated
paragraph (c)(1)(vii);
■ l. By redesignating newly
redesignated paragraphs (c)(2) through
(8) as paragraphs (c)(3) through (9),
respectively;
■ m. By adding a new paragraph (c)(2);
■ n. In newly redesignated paragraph
(c)(3), by removing ‘‘(f)(1)’’, ‘‘legend’’,
and ‘‘(f)(2)’’ and adding ‘‘(g)(1)’’,
‘‘restrictive marking’’, and ‘‘(g)(3)’’ in
their places, respectively;
■ o. By revising newly redesignated
paragraphs (c)(5) and (c)(6);
■ p. In newly redesignated paragraph
(c)(7) introductory text, by removing
‘‘pre-existing’’ and adding ‘‘preexisting’’
in its place;
■ q. By revising newly redesignated
paragraph (c)(8);
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r. In newly redesignated paragraph
(c)(9)(iii), by removing ‘‘nondisclosure’’, ‘‘legend’’, and ‘‘an nondisclosure’’ and adding
‘‘nondisclosure’’, ‘‘marking’’, and ‘‘a
nondisclosure’’ in their places,
respectively;
■ s. In newly redesignated paragraph
(c)(9)(iv), by removing ‘‘non-disclosure’’
wherever it appears, ‘‘252.227–7025’’,
and ‘‘Information Marked with
Restrictive Legends’’ and adding
‘‘nondisclosure’’, ‘‘DFARS 252.227–
7025’’, and ‘‘Information with
Restrictive Markings’’ in their places,
respectively;
■ t. In newly redesignated paragraph (e)
introductory text, by removing ‘‘(b)’’ and
adding ‘‘(c)’’ in its place;
■ u. In newly redesignated paragraph
(f)(2), by removing ‘‘(e)(3)’’ and adding
‘‘(f)(3)’’ in its place;
■ v. By revising the paragraph (f)(3)
table;
■ w. In newly redesignated paragraph
(f)(4), by removing ‘‘Validation of
Asserted Restrictions—Computer
Software and/or Validation of
Restrictive Markings on Technical Data’’
and adding ‘‘DFARS 252.227–7019,
Validation of Asserted Restrictions—
Computer Software, and/or DFARS
252.227–7037, Validation of Restrictive
Markings on Technical Data,’’ in its
place;
■ x. By revising paragraph (g);
■ y. In newly redesignated paragraph
(i)(1), by removing ‘‘Validation of
Restrictive Markings on Technical Data
and the Validation of Asserted
Restrictions—Computer Software’’ and
adding ‘‘DFARS 252.227–7037,
Validation of Restrictive Markings on
Technical Data, and the DFARS
252.227–7019, Validation of Asserted
Restrictions—Computer Software,’’ in
its place;
■ z. In newly redesignated paragraph
(i)(2), by removing ‘‘Validation of
Restrictive Markings on Technical Data
or the Validation of Asserted
Restrictions—Computer Software’’ and
‘‘(sixty (6)) days’’ and adding ‘‘DFARS
252.227–7037, Validation of Restrictive
Markings on Technical Data, or the
DFARS 252.227–7019, Validation of
Asserted Restrictions—Computer
Software,’’ and ‘‘60 days’’ in their
places, respectively;
■
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aa. In newly redesignated paragraph
(k)(2), by removing ‘‘(j)(1)’’ and adding
‘‘(k)(1)’’ in its place;
■ bb. In newly redesignated paragraph
(l), by revising the heading and
paragraphs (l)(1) and (2); and
■ cc. By removing Alternate I.
The revisions and additions read as
follows:
■
252.227–7018 Rights in Noncommercial
Technical Data and Computer Software—
Small Business Innovation Research
Program and Small Business Technology
Transfer Program.
As prescribed in 227.7104–4(a), use
the following clause:
Rights in Noncommercial Technical Data
and Computer Software—Small Business
Innovation Research Program and Small
Business Technlogy Transfer Program (Date)
(a) * * *
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose technical data
or computer software within the Government
without restriction; and
(2) Release or disclose technical data or
computer software outside the Government
and authorize persons to whom release or
disclosure has been made to use, modify,
reproduce, release, perform, display, or
disclose that data for United States
Government purposes.
tkelley on DSK125TN23PROD with PROPOSALS2
*
*
*
*
*
Restricted rights apply only to
noncommercial computer software and mean
the Government’s rights to—
(1) Use a computer program with one
computer at one time. The program may not
be accessed by more than one terminal or
central processing unit or time shared unless
otherwise permitted by this contract;
(2) Transfer a computer program to another
Government agency without the further
permission of the Contractor if the transferor
destroys all copies of the program and related
computer software documentation in its
possession and notifies the licensor of the
transfer. Transferred programs remain subject
to the provisions of this clause;
(3) Make the minimum number of copies
of the computer software required for
safekeeping (archive), backup, or
modification purposes;
(4) Modify computer software provided
that the Government may—
(i) Use the modified software only as
provided in paragraphs (1) and (3) of this
definition; and
(ii) Not release or disclose the modified
software except as provided in paragraphs
(2), (5), (6), and (7) of this definition;
(5) Permit contractors or subcontractors
performing service contracts (see 37.101 of
the Federal Acquisition Regulation) in
support of this or a related contract to use
computer software to diagnose and correct
deficiencies in a computer program, to
modify computer software to enable a
computer program to be combined with,
adapted to, or merged with other computer
programs or when necessary to respond to
urgent tactical situations, provided that—
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(i) The Government notifies the party
which has granted restricted rights that a
release or disclosure to particular contractors
or subcontractors was made;
(ii) Such contractors or subcontractors are
subject to the nondisclosure agreement at
227.7103–7 of the Defense Federal
Acquisition Regulation Supplement or are
Government contractors receiving access to
the software for performance of a
Government contract that contains the clause
at 252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Markings;
(iii) The Government shall not permit the
recipient to decompile, disassemble, or
reverse engineer the software, or use software
decompiled, disassembled, or reverse
engineered by the Government pursuant to
paragraph (4) of this definition, for any other
purpose; and
(iv) Such use is subject to the limitations
in paragraphs (1) through (3) of this
definition;
(6) Permit contractors or subcontractors
performing emergency repairs or overhaul of
items or components of items procured under
this or a related contract to use the computer
software when necessary to perform the
repairs or overhaul, or to modify the
computer software to reflect the repairs or
overhaul made, provided that—
(i) The intended recipient is subject to the
nondisclosure agreement at 227.7103–7 or is
a Government contractor receiving access to
the software for performance of a
Government contract that contains the clause
at 252.227–7025, Limitations on the Use or
Disclosure of Government Furnished
Information with Restrictive Markings;
(ii) The Government shall not permit the
recipient to decompile, disassemble, or
reverse engineer the software, or use software
decompiled, disassembled, or reverse
engineered by the Government pursuant to
paragraph (4) of this definition, for any other
purpose; and
(iii) Such use is subject to the limitations
in paragraphs (1) through (3) of this
definition; and
(7) Permit covered Government support
contractors in the performance of
Government contracts that contain the clause
at 252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Markings, to
use, modify, reproduce, perform, display, or
release or disclose the computer software to
a person authorized to receive restricted
rights computer software, provided that—
(i) The Government shall not permit the
covered Government support contractor to
decompile, disassemble, or reverse engineer
the software, or use software decompiled,
disassembled, or reverse engineered by the
Government pursuant to paragraph (4) of this
definition, for any other purpose; and
(ii) Such use is subject to the limitations
in paragraphs (1) through (4) of this
definition.
Small Business Innovation Research/Small
Business Technology Transfer (SBIR/STTR)
data means all technical data or computer
software developed or generated in the
performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
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SBIR/STTR data protection period means
the period of time during which the
Government is obligated to protect SBIR/
STTR data against unauthorized use and
disclosure in accordance with SBIR/STTR
data rights. The SBIR/STTR data protection
period begins on the date of award of the
contract under which the SBIR/STTR data
are developed or generated and ends 20 years
after that date unless, subsequent to the
award, the agency and the Contractor
negotiate for some other protection period for
the SBIR/STTR data developed or generated
under that contract.
SBIR/STTR data rights means the
Government’s rights, during the SBIR/STTR
data protection period, in SBIR/STTR data
covered by paragraph (c)(5) of this clause, as
follows:
(1) Limited rights in such SBIR/STTR
technical data; and
(2) Restricted rights in such SBIR/STTR
computer software.
*
*
*
*
*
(b) Applicability. This clause will govern
all SBIR/STTR data. For any data that are not
SBIR/STTR data—
(1) The Defense Federal Acquisition
Regulation Supplement (DFARS) clause at
252.227–7013, Rights in Technical Data—
Noncommercial Items, will govern the
technical data pertaining to noncommercial
items or to any portion of a commercial item
that was developed in any part at
Government expense, and the DFARS clause
at 252.227–7015, Technical Data—
Commercial Items, will govern the technical
data pertaining to any portion of a
commercial item that was developed
exclusively at private expense;
(2) The DFARS clause at 252.227–7014,
Rights in Noncommercial Computer Software
and Noncommercial Computer Software
Documentation, will govern noncommercial
computer software and computer software
documentation; and
(3) A license consistent with DFARS
227.7202 will govern commercial computer
software and commercial computer software
documentation.
*
*
*
*
*
(c) * * *
(1) * * *
(v) Technical data or computer software in
which the Government has acquired
previously unlimited rights under another
Government contract or as a result of
negotiations;
(vi) Technical data or computer software
furnished to the Government, under this or
any other Government contract or
subcontract thereunder, with license rights
for which all restrictive conditions on the
Government have expired; and
(vii) Computer software documentation
generated or required to be delivered under
this contract.
(2) Government purpose rights. (i) The
Government shall have government purpose
rights for the period specified in paragraph
(c)(2)(ii) of this clause in data that are—
(A) Not SBIR/STTR data, and are—
(1) Technical data pertaining to items,
components, or processes developed with
mixed funding, or are computer software
developed with mixed funding, except when
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the Government is entitled to unlimited
rights in such data as provided in paragraph
(c)(1) of this clause;
(2) Created with mixed funding in the
performance of a contract that does not
require the development, manufacture,
construction, or production of items,
components, or processes; or
(B) SBIR/STTR data, upon expiration of the
SBIR/STTR data protection period.
(ii)(A) For the non-SBIR/STTR data
described in paragraph (c)(2)(i)(A) of this
clause, the Government shall have
government purpose rights for a period of 5
years, or such other period as may be
negotiated. This period shall commence
upon award of the contract, subcontract,
letter contract (or similar contractual
instrument), or contract modification
(including a modification to exercise an
option) that required development of the
items, components, or processes, or creation
of the data described in paragraph
(c)(2)(i)(A)(2) of this clause. Upon expiration
of the 5-year or other negotiated period, the
Government shall have unlimited rights in
the data.
(B) For the SBIR/STTR data described in
paragraph (c)(2)(i)(B) of this clause, the
Government shall have government purpose
rights perpetually or for such other period as
may be negotiated. This Government purpose
rights period commences upon the expiration
of the SBIR/STTR data protection period.
Upon expiration of any such negotiated
government purpose rights period, the
Government shall have unlimited rights in
the data.
(iii) The Government shall not release or
disclose data in which it has government
purpose rights unless—
(A) Prior to release or disclosure, the
intended recipient is subject to the
nondisclosure agreement at DFARS
227.7103–7; or
(B) The recipient is a Government
contractor receiving access to the data for
performance of a Government contract that
contains the clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information with
Restrictive Markings.
(iv) The Contractor has the exclusive right,
including the right to license others, to use
technical data in which the Government has
obtained government purpose rights under
this contract for any commercial purpose
during the time period specified in the
government purpose rights marking
prescribed in paragraph (g)(2) of this clause.
*
*
*
*
*
(5) SBIR/STTR data rights. Except for
technical data, including computer software
documentation, or computer software in
which the Government has unlimited rights
under paragraph (c)(1) of this clause, the
Government shall have SBIR/STTR data
rights, during the SBIR/STTR data protection
period of this contract, in all SBIR/STTR data
developed or generated under this contract.
This protection period is not extended by any
subsequent SBIR/STTR contracts under
which any portion of that SBIR/STTR data is
used or delivered. The SBIR/STTR data
protection period of any such subsequent
SBIR/STTR contract applies only to the
SBIR/STTR data that are developed or
generated under that subsequent contract.
The SBIR/STTR data protection period is
governed by the version of this clause that is
incorporated in the contract under which the
SBIR/STTR data are developed or generated.
If the SBIR/STTR data were developed or
generated under a contract that included a
previous version of this clause, then the
SBIR/STTR data protection period is
governed by that previous version of this
clause.
(6) Specifically negotiated license rights.
The standard license rights granted to the
77699
Government under paragraphs (c)(1) through
(c)(5) of this clause may be modified by
mutual agreement to provide such rights as
the parties consider appropriate but shall not
provide the Government lesser rights in
technical data, including computer software
documentation, than are enumerated in the
definition of ‘‘limited rights’’ of this clause or
lesser rights in computer software than are
the definition of ‘‘restricted rights’’ of this
clause. Any rights so negotiated shall be
identified in a license agreement made part
of this contract.
*
*
*
*
*
(8) Release from liability. The Contractor
agrees to release the Government from
liability for any release or disclosure of
technical data, computer software, or
computer software documentation made in
accordance with the definitions of
‘‘Government purpose,’’ ‘‘noncommercial
computer software,’’ or paragraph (c)(5) of
this clause, or in accordance with the terms
of a license negotiated under paragraph (c)(6)
of this clause, or by others to whom the
recipient has released or disclosed the data,
software, or documentation and to seek relief
solely from the party who has improperly
used, modified, reproduced, released,
performed, displayed, or disclosed
Contractor data or software marked with
restrictive markings.
*
*
*
*
*
(f) * * *
Identification and Assertion of Restrictions
on the Government’s Use, Release, or
Disclosure of Technical Data or Computer
Software
The Contractor asserts for itself, or the
persons identified below, that the
Government’s rights to use, release, or
disclose the following technical data or
computer software should be restricted:
Technical data or Computer
software to be furnished
with restrictions 1
Basis for assertion 2
Asserted Rights category 3
Name of person asserting
restrictions 4
(LIST) 5
(LIST)
(LIST)
(LIST)
1 If
tkelley on DSK125TN23PROD with PROPOSALS2
the assertion is applicable to items, components, or processes developed at private expense, identify both the technical data and each
such item, component, or process.
2 Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government’s
rights to use, release, or disclose technical data or computer software. Indicate whether development was accomplished exclusively or partially at
private expense. If development was not at private expense enter the specific reason for asserting that the Government’s rights should be restricted.
3 Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or government purpose license rights from a
prior contract, SBIR/STTR data rights under this or another contract, or specifically negotiated licenses).
4 Corporation, individual, or other person, as appropriate.
(i) The unlimited rights marking at
Date llllllllllllllllll
Printed Name and Title
lllllllll paragraph (g)(5) of this clause.
Signature llllllllllllllll
(ii) The government purpose rights
marking at paragraph (g)(6) of this clause.
(End of identification and assertion)
(iii) The limited rights marking at
*
*
*
*
*
paragraph (g)(7) of this clause.
(g)(1) Marking requirements. The
(iv) The restricted rights marking at
Contractor, and its subcontractors or
suppliers, shall apply asserted restrictions on paragraph (g)(8) of this clause.
(v) The SBIR/STTR data rights marking at
technical data or computer software
paragraph (g)(9) of this clause.
delivered under this contract only by
(vi) The special license rights marking at
marking such technical data or software.
paragraph (g)(10) of this clause.
Except as provided in paragraph (g)(11) of
(vii) A notice of copyright in the format
this clause, only the following restrictive
markings are authorized under this contract:
prescribed under 17 U.S.C. 401 or 402.
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20:00 Dec 16, 2022
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(2) Other restrictive makings. Any other
restrictive markings, including markings that
describe restrictions placed on third-party
recipients of the technical data or computer
software, are not authorized and shall be
deemed nonconforming markings governed
by paragraph (i)(2) of this clause.
(3) General marking instructions. The
Contractor, or its subcontractors or suppliers,
shall conspicuously and legibly mark the
appropriate restrictive marking to all
technical data and computer software that
qualify for such markings. The authorized
restrictive markings shall be placed on the
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transmittal document or storage container
and, for printed material, each page of the
printed material containing technical data or
computer software for which restrictions are
asserted. When only portions of a page of
printed material are subject to the asserted
restrictions, such portions shall be identified
by circling, underscoring, with a note, or
other appropriate identifier. Technical data
or computer software transmitted directly
from one computer or computer terminal to
another shall contain a notice of asserted
restrictions. However, instructions that
interfere with or delay the operation of
computer software in order to display a
restrictive rights marking or other license
statement at any time prior to or during use
of the computer software, or otherwise cause
such interference or delay, shall not be
inserted in software that will or might be
used in combat or situations that simulate
combat conditions, unless the Contracting
Officer’s written permission to deliver such
software has been obtained prior to delivery.
Reproductions of technical data, computer
software, or any portions thereof subject to
asserted restrictions shall also reproduce the
asserted restrictions.
(4) Omitted markings. (i) Technical data,
computer software, or computer software
documentation delivered or otherwise
provided under this contract without
restrictive markings shall be presumed to
have been delivered with unlimited rights.
To the extent practicable, if the Contractor
has requested permission (see paragraph
(g)(4)(ii) of this clause) to correct an
inadvertent omission of markings, the
Contracting Officer will not release or
disclose the technical data, software, or
documentation pending evaluation of the
request.
(ii) The Contractor may request permission
to have conforming and justified restrictive
markings placed on unmarked technical data,
computer software, or computer software
documentation at its expense. The request
must be received by the Contracting Officer
within 6 months following the furnishing or
delivery of such technical data, software, or
documentation, or any extension of that time
approved by the Contracting Officer. The
Contractor shall—
(A) Identify the technical data, software, or
documentation that should have been
marked;
(B) Demonstrate that the omission of the
marking was inadvertent, the proposed
marking is justified and conforms with the
requirements for the marking of technical
data, computer software, or computer
software documentation contained in this
clause; and
(C) Acknowledge, in writing, that the
Government has no liability with respect to
any disclosure, reproduction, or use of the
technical data, software, or documentation
made prior to the addition of the marking or
resulting from the omission of the marking.
(5) Unlimited rights markings. Technical
data or computer software delivered or
otherwise furnished to the Government with
unlimited rights shall be marked as follows:
Unlimited Rights
Contract Number
VerDate Sep<11>2014
Contractor Name
llllllllllll
Contractor Address lllllllllll
The Government has unlimited rights in
these technical data or this computer
software pursuant to DFARS 252.227–7013,
Rights in Technical Data—Noncommercial
Items; DFARS 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation; or DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of the above identified contract, as
applicable. This marking must be included in
any reproduction of these technical data,
computer software, or portions thereof. (End
of marking)
(6) Government purpose rights markings.
Technical data or computer software
delivered or otherwise furnished to the
Government with government purpose rights
shall be marked as follows:
Government Purpose Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
Expiration Date lllllllllllll
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose these technical data or computer
software are restricted by paragraph (c)(2) of
the DFARS 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause contained in the above identified
contract. No restrictions apply after the
expiration date shown above. Any
reproduction of technical data or computer
software or portions thereof marked with this
restrictive marking must also reproduce the
markings.
(End of marking)
(8) Restricted rights markings. Computer
software delivered or otherwise furnished to
the Government with restricted rights shall
be marked as follows:
Restricted Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose this software are restricted by
paragraph (c)(4) of the DFARS 252.227–7018,
Rights in Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause contained in the above identified
contract. Any reproduction of computer
software or portions thereof marked with this
restrictive marking must also reproduce the
markings. Any person, other than the
Government, who has been provided access
to such software must promptly notify the
above named Contractor.
(End of marking)
(9) SBIR/STTR data rights markings.
Except for technical data or computer
software in which the Government has
acquired unlimited rights under paragraph
(c)(1) of this clause or negotiated special
license rights as provided in paragraph (c)(6)
of this clause, technical data or computer
software generated under this contract shall
be marked as follows. The Contractor shall
enter the expiration date for the SBIR/STTR
data protection period on the marking:
SBIR/STTR Data Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
Expiration of SBIR/STTR Data Protection Period llllllllllllllllll
Expiration of the Government Purpose Rights
Period lllllllllllllllll
(End of marking)
The Government’s rights to use, modify,
(7) Limited rights markings. Technical data reproduce, release, perform, display, or
not generated under this contract that pertain disclose technical data or computer software
marked with this restrictive marking are
to items, components, or processes
developed exclusively at private expense and restricted during the period shown as
provided in paragraph (c)(5) of the DFARS
delivered or otherwise furnished with
252.227–7018, Rights in Noncommercial
limited rights shall be marked as follows:
Technical Data and Computer Software—
Limited Rights
Small Business Innovation Research Program
Contract Number llllllllllll and Small Business Technology Transfer
Contractor Name
llllllllllll Program, clause contained in the above
Contractor Address lllllllllll identified contract. After the SBIR/STTR data
protection period expiration date shown
The Government’s rights to use, modify,
above, the Government has perpetual
reproduce, release, perform, display, or
government purpose rights as provided in
disclose these technical data are restricted by
paragraph (c)(4) of that clause, unless
paragraph (c)(3) of the DFARS 252.227–7018,
otherwise indicated by the government
Rights in Noncommercial Technical Data and purpose rights expiration date shown above.
Computer Software—Small Business
Any reproduction of technical data,
Innovation Research Program and Small
computer software, or portions thereof
Business Technology Transfer Program,
marked with this restrictive marking must
clause contained in the above identified
also reproduce the markings.
contract. Any reproduction of technical data
(End of marking)
or portions thereof marked with this
restrictive marking must also reproduce the
(10) Special license rights markings.
markings. Any person, other than the
(i) Technical data or computer software in
Government, who has been provided access
which the Government’s rights stem from a
specifically negotiated license shall be
to such data must promptly notify the above
marked as follows:
llllllllllll named Contractor.
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Special License Rights
The Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose this technical data or computer
software are restricted by Contract Number
[Insert contract number], License Number
[Insert license identifier]. Any reproduction
of technical data, computer software, or
portions thereof marked with this restrictive
marking must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special
licenses do not include government purpose
license rights acquired under a prior contract
(see paragraph (c)(7) of this clause).
(11) Preexisting data markings. If the terms
of a prior contract or license permitted the
Contractor to restrict the Government’s rights
to use, modify, reproduce, release, perform,
display, or disclose technical data or
computer software, and those restrictions are
still applicable, the Contractor may mark
such data or software with the appropriate
restrictive marking for which the data or
software qualified under the prior contract or
license. The Contractor shall follow the
marking procedures in paragraph (g)(1) of
this clause.
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*
*
*
*
*
(l) Subcontractors or suppliers. (1) The
Contractor shall assure that the rights
afforded its subcontractors and suppliers
under 10 U.S.C. 2320, 10 U.S.C. 2321, 15
U.S.C. 638(j)(1)(B)(iii) and (v), and the
identification, assertion, and delivery
processes required by paragraph (f) of this
clause are recognized and protected.
(2) Whenever any technical data or
computer software is to be obtained from a
subcontractor or supplier for delivery to the
Government under this contract, the
Contractor shall use the following clause(s)
in the subcontract or other contractual
instrument, and require its subcontractors or
suppliers to do so, without alteration, except
to identify the parties:
(i) Except as provided in paragraph (l)(2)(ii)
of this clause, use this clause to govern SBIR/
STTR data.
(ii) For data that are not SBIR/STTR data—
(A) Use the DFARS clause at 252.227–
7013, Rights in Technical Data—
Noncommercial Items, to govern the
technical data pertaining to noncommercial
items or to any portion of a commercial item
that was developed in any part at
Government expense, and use the DFARS
clause at 252.227–7015, Technical Data—
Commercial Items, to govern the technical
data pertaining to any portion of a
commercial item that was developed
exclusively at private expense;
(B) Use the DFARS clause at 252.227–7014,
Rights in Noncommercial Computer Software
and Noncommercial Computer Software
Documentation, to govern noncommercial
computer software and computer software
documentation; and
(C) Use the license under which the data
are customarily provided to the public, in
accordance with DFARS 227.7202, for
commercial computer software and
commercial computer software
documentation.
(iii) No other clause shall be used to
enlarge or diminish the Government’s, the
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Contractor’s, or a higher tier subcontractor’s
or supplier’s rights in a subcontractor’s or
supplier’s technical data or computer
software.
(B) Submitted, within 90 days, a notice of
intent to file suit in an appropriate court and
filed suit within 1 year.
*
(3)(i) The agency head, on a nondelegable
basis, may determine that urgent or
compelling circumstances do not permit
awaiting the filing of suit in an appropriate
court, or the rendering of a decision by a
court of competent jurisdiction or Board of
Contract Appeals. In that event, the agency
head shall notify the Contractor of the urgent
or compelling circumstances.
Notwithstanding paragraph (g)(1) of this
clause, the Contractor agrees that the agency
may use, modify, reproduce, release,
perform, display, or disclose computer
software marked with—
(A) Government purpose markings for any
purpose, and authorize others to do so; or
(B) Restricted or special license rights for
government purposes only.
(ii) The Government agrees not to release
or disclose such software unless, prior to
release or disclosure, the intended recipient
is subject to the use and nondisclosure
agreement at DFARS 227.7103–7, or is a
Government contractor receiving access to
the software for performance of a
Government contract that contains the clause
at DFARS 252.227–7025, Limitations on the
Use or Disclosure of Government-Furnished
Information with Restrictive Markings. The
agency head’s determination may be made at
any time after the date of the Contracting
Officer’s final decision and shall not affect
the Contractor’s right to damages against the
United States, or other relief provided by
law, if its asserted restrictions are ultimately
upheld.
*
*
*
*
■ 24. Amend section 252.227–7019—
■ a. By revising the section heading,
introductory text, and clause date;
■ b. By revising paragraph (a);
■ c. In paragraph (d)(2)(i)(B) by
removing ‘‘sixty (60) days’’ and the
period at the end of the paragraph and
adding ‘‘60 days’’ and a semicolon in
their places, respectively;
■ d. In paragraph (e)(1) by removing
‘‘three years’’ wherever it appears and
adding ‘‘3 years’’ in its place;
■ e. In paragraph (f)(1)(ii) by removing
‘‘sixty (60) days’’ and adding ‘‘60 days’’
in its place;
■ f. In paragraph (f)(1)(iv) by removing
‘‘three-year’’ and adding ‘‘3-year’’ in its
place;
■ g. In paragraph (f)(7) by removing
‘‘provides the contractor’’ and adding
‘‘provides the Contractor’’ in its place;
■ h. In paragraph (g)(1)(i), by removing
‘‘ninety (90) days’’ and adding ‘‘90
days’’ in its place;
■ i. In paragraph (g)(1)(ii), by removing
‘‘one year’’ and ‘‘ninety (90) days’’ and
adding ‘‘1 year’’ and ‘‘90 days’’ in their
places, respectively;
■ j. Revising paragraph (g)(1)(iii);
■ k. In paragraphs (g)(2)(i) and (ii), by
removing ‘‘ninety (90) days’’ and adding
‘‘90 days’’ in its place;
■ l. In paragraph (g)(2)(iii), by removing
‘‘one year’’ and ‘‘ninety (90) days’’ and
adding ‘‘1 year’’ and ‘‘90 days’’ in their
places, respectively; and
■ m. Revising paragraph (g)(3).
The revisions read as follows:
252.227–7019 Validation of Asserted
Restrictions—Computer Software.
As prescribed in 227.7104–4(b)(3) or
227.7203–6(c), use the following clause:
Validation of Asserted Restrictions—
Computer Software (Date)
(a) Definitions. As used in this clause—
Contractor, unless otherwise specifically
indicated, means the Contractor and its
subcontractors or suppliers.
Other terms used in this clause are defined
in the 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation, clause of this contract.
*
*
*
*
*
(g) * * *
(1) * * *
(iii) Until final disposition by the
appropriate Board of Contract Appeals or
court of competent jurisdiction, if the
Contractor has—
(A) Appealed to the Board of Contract
Appeals or filed suit in an appropriate court
within 90 days; or
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*
*
*
*
*
*
*
*
*
*
25. Amend section 252.227–7025—
a. By revising the section heading,
introductory text, and clause date;
■ b. By adding paragraph (a)
introductory text and revising paragraph
(a)(3);
■ c. By revising paragraph (b)(1)
heading, paragraphs (b)(1)(i), (b)(2), (3)
and (4);
■ d. In paragraph (b)(5) introductory
text, by removing ‘‘legends’’ and adding
‘‘markings’’ in its place;
■ e. In paragraph (b)(5)(iii), by removing
‘‘legend’’ and ‘‘thirty (30) days’’ and
adding ‘‘marking’’ and ‘‘30 days’’ in
their places, respectively;
■ f. In paragraph (b)(5)(iv), by removing
‘‘non-disclosure’’ wherever it appears
and ‘‘legend’’ and adding
‘‘nondisclosure’’ and ‘‘marking’’ in their
places, respectively;
■ g. In paragraph (b)(5)(v)(B), by
removing ‘‘legend’’ and adding
‘‘marking’’ in its place;
■ h. In paragraph (c)(1), by removing
‘‘legends’’ and adding ‘‘markings’’ in its
place’’;
■ i. In paragraph (c)(2), by removing
‘‘legend’’ and ‘‘legends’’ and adding
‘‘marking’’ and ‘‘markings’’ in their
places, respectively; and
■
■
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j. In paragraph (d), by removing ‘‘nondisclosure’’ and adding ‘‘nondisclosure’’
in its place; and
■ k. By adding ‘‘(End of clause)’’ at the
end of the clause.
The revisions and addition read as
follows:
■
252.227–7025 Limitations on the Use or
Disclosure of Government-Furnished
Information with Restrictive Markings.
As prescribed in 227.7103–6(c),
227.7104–4(b)(4), or 227.7203–6(d), use
the following clause:
*
Limitations on the Use or Disclosure of
Government-Furnished Information With
Restrictive Markings (Date)
(a) Definitions. As used in this clause—
*
*
*
*
*
(3) For Small Business Innovation Research
(SBIR) Program and Small Business
Technology Transfer (STTR) Program
contracts, the terms ‘‘covered Government
support contractor,’’ ‘‘government purpose
rights,’’ ‘‘limited rights,’’ ‘‘restricted rights,’’
and ‘‘SBIR/STTR data rights’’ are defined in
the clause at 252.227–7018, Rights in
Noncommercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program.
(b) * * *
(1) GFI marked with limited rights,
restricted rights, or SBIR/STTR data rights
markings. (i) The Contractor shall use,
modify, reproduce, perform, or display
technical data received from the Government
with limited rights markings, computer
software received with restricted rights
markings, or SBIR/STTR technical data or
computer software received with SBIR/STTR
data rights markings (during the SBIR/STTR
data protection period) only in the
performance of this contract. The Contractor
shall not, without the express written
permission of the party whose name appears
in the marking, release or disclose such data
or software to any unauthorized person.
tkelley on DSK125TN23PROD with PROPOSALS2
*
*
*
*
*
(2) GFI marked with government purpose
rights markings. The Contractor shall use
technical data or computer software received
from the Government with government
purpose rights markings for government
purposes only. The Contractor shall not,
without the express written permission of the
party whose name appears in the restrictive
marking, use, modify, reproduce, release,
perform, or display such data or software for
any commercial purpose or disclose such
data or software to a person other than its
subcontractors, suppliers, or prospective
subcontractors or suppliers, who require the
data or software to submit offers for, or
perform, contracts under this contract. Prior
to disclosing the data or software, the
Contractor shall require the persons to whom
disclosure will be made to complete and sign
the nondisclosure agreement at 227.7103–7
of the Defense Federal Acquisition
Regulation Supplement (DFARS).
(3) GFI marked with specially negotiated
license rights markings. (i) The Contractor
shall use, modify, reproduce, release,
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20:00 Dec 16, 2022
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perform, or display technical data or
computer software received from the
Government with specially negotiated license
markings only as permitted in the license.
Such data or software may not be released or
disclosed to other persons unless permitted
by the license and, prior to release or
disclosure, the intended recipient has
completed the nondisclosure agreement at
DFARS 227.7103–7. The Contractor shall
modify paragraph (1)(c) of the nondisclosure
agreement to reflect the recipient’s
obligations regarding use, modification,
reproduction, release, performance, display,
and disclosure of the data or software.
*
*
*
*
(4) GFI technical data marked with
commercial restrictive markings. (i) The
Contractor shall use, modify, reproduce,
perform, or display technical data that are or
pertain to a commercial item and are
received from the Government with a
commercial restrictive marking (i.e., marked
to indicate that such data are subject to use,
modification, reproduction, release,
performance, display, or disclosure
restrictions) only in the performance of this
contract. The Contractor shall not, without
the express written permission of the party
whose name appears in the marking, use the
technical data to manufacture additional
quantities of the commercial items, or release
or disclose such data to any unauthorized
person.
*
*
*
*
*
(End of clause)
26. Revise section 252.227–7028
heading and introductory text to read as
follows:
■
252.227–7028 Technical Data or Computer
Software Previously Delivered to the
Government.
As prescribed in 227.7103–6(d),
227.7104–4(b)(5), or 227.7203–6(e), use
the following provision:
*
*
*
*
*
■ 27. Revise section 252.227–7030
heading and introductory text to read as
follows:
252.227–7030 Technical Data—
Withholding of Payment.
As prescribed at 227.7103–6(e)(2) or
227.7104–4(b)(6), use the following
clause:
*
*
*
*
*
252.227–7037
[Amended]
28. Amend section 252.227–7037
introductory text by removing
‘‘,227.7104(c)(5)’’ and adding ‘‘,
227.7104–4(b)(7)’’ in its place.
■ 29. Add new sections 252.227–70XX
and 252.227–70YY to read as follows:
■
252.227–70XX Additional Preaward
Requirements for Small Business
Technology Transfer Program.
As prescribed in 227.7104–4(c)(1), use
the following provision:
PO 00000
Frm 00024
Fmt 4701
Sfmt 4702
Additional Preaward Requirements for
Small Business Technology Transfer
Program (Date)
(a) Definitions. As used in this provision,
the terms research institution and United
States have the meaning given in the
252.227–70YY, Additional Postaward
Requirements for Small Business Technology
Transfer Program, clause of this solicitation.
(b) Offers submitted in response to this
solicitation shall include the following:
(1) The written agreement between the
Offeror and a partnering research institution,
which shall contain—
(i) A specific allocation of ownership,
rights, and responsibilities for intellectual
property (including inventions, patents,
technical data, and computer software)
resulting from the Small Business
Technology Transfer (STTR) Program award;
(ii) Identification of which party to the
written agreement may obtain United States
or foreign patents or otherwise protect any
inventions that result from a STTR award;
and
(iii) No provisions that conflict with the
requirements of this solicitation, including
the rights of the United States and the Offeror
regarding intellectual property, and regarding
any right to carry out follow-on research.
(2) The Offeror’s written representation
that—
(i) The Offeror is satisfied with its written
agreement with the partnering research
institution; and
(ii) The written agreement does not conflict
with the requirements of this solicitation.
(c) The Offeror shall submit the written
representation required by paragraph (b)(2) of
this provision as an attachment to its offer,
dated and signed by an official authorized to
contractually obligate the Offeror.
(d) The Offeror’s failure to submit the
written agreement or written representation
required by paragraph (b) of this provision
with its offer may render the offer ineligible
for award.
(e) If the Offeror is awarded a contract, the
Contracting Officer will include the written
agreement and written representation
required by paragraph (b) of this provision in
an attachment to that contract.
(End of provision)
252.227–70YY Additional Postaward
Requirements for Small Business
Technology Transfer Program.
As prescribed in 227.7104–4(c)(2), use
the following clause:
Additional Postaward Requirements for
Small Business Technology Transfer
Program (Date)
(a) Definitions. As used in this clause—
Research institution means an institution
or entity that—
(1) Has a place of business located in the
United States;
(2) Operates primarily within the United
States or makes a significant contribution to
the U.S. economy through payment of taxes
or use of American products, materials or
labor; and
(3) Is either—
(i) A nonprofit institution that is owned
and operated exclusively for scientific or
E:\FR\FM\19DEP2.SGM
19DEP2
Federal Register / Vol. 87, No. 242 / Monday, December 19, 2022 / Proposed Rules
tkelley on DSK125TN23PROD with PROPOSALS2
educational purposes, no part of the net
earnings of which inures to the benefit of any
private shareholder or individual (section
4(3) of the Stevenson-Wydler Technology
Innovation Act of 1980); or
(ii) A Federally-funded research or
research and development center as
identified by the National Science
Foundation (https://www.nsf.gov/statistics/
ffrdclist/) in accordance with the Federal
Acquisition Regulation (FAR).
United States means the 50 States and the
District of Columbia, the territories and
possessions of the Government, the
Commonwealth of Puerto Rico, the Republic
of the Marshall Islands, the Federated States
of Micronesia, and the Republic of Palau.
(b) Preaward submissions. Attached to this
contract are the following documents,
submitted by the Contractor pursuant to
Defense Federal Acquisition Regulation
Supplement 252.227–70XX, Additional
Preaward Requirements for Small Business
Technology Transfer Program:
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20:00 Dec 16, 2022
Jkt 259001
(1) The written agreement between the
Contractor and a partnering research
institution.
(2) The Contractor’s written representation
that it is satisfied with that written
agreement, which does not conflict with the
requirements of this contract.
(c) Postaward updates. The Contractor
shall not allow any modification to its
written agreement with the partnering
research institution, unless the written
agreement, as modified, contains—
(1) A specific allocation of ownership,
rights, and responsibilities for intellectual
property (including inventions, patents,
technical data, and computer software)
resulting from performance of this contract;
(2) Identification of which party to the
written agreement may obtain United States
or foreign patents or otherwise protect any
inventions that result from a Small Business
Technology Transfer Program award;
(3) The Contractor’s written, dated, and
signed representation that—
PO 00000
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Fmt 4701
Sfmt 9990
77703
(i) The Contractor is satisfied with its
written agreement with the partnering
research institution, as modified; and
(ii) The written agreement, as modified,
does not conflict with the requirements of
this contract; and
(4) No provisions that conflict with the
requirements of this contract, including the
rights of the United States and the Contractor
regarding intellectual property, and regarding
any right to carry out follow-on research.
(d) Submission of updated agreement.
Within 30 days of execution of the modified
written agreement described in paragraph
(b)(1) of this clause, the Contractor shall
submit a copy of that updated written
agreement and the updated written
representation described in paragraph (b)(2)
of this clause to the Contracting Officer for
review and attachment to this contract.
(End of clause)
[FR Doc. 2022–27196 Filed 12–15–22; 8:45 am]
BILLING CODE 6820–ep–P
E:\FR\FM\19DEP2.SGM
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]]>Agencies
[Federal Register Volume 87, Number 242 (Monday, December 19, 2022)]
[Proposed Rules]
[Pages 77680-77703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27196]
[[Page 77679]]
Vol. 87
Monday,
No. 242
December 19, 2022
Part II
Department of Defense
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Defense Acquisition Regulations System
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48 CFR Parts 212, 227 and 252
Defense Federal Acquisition Regulation Supplement: Small Business
Innovation Research Data Rights (DFARS Case 2019-D043); Proposed Rule
Federal Register / Vol. 87 , No. 242 / Monday, December 19, 2022 /
Proposed Rules
[[Page 77680]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227 and 252
[Docket DARS-2020-0033]
RIN 0750-AK71
Defense Federal Acquisition Regulation Supplement: Small Business
Innovation Research Data Rights (DFARS Case 2019-D043)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement the data-rights portions of
the Small Business Innovation Research Program and Small Business
Technology Transfer Program Policy Directives. DoD will hold a public
meeting to hear the views of interested parties.
DATES: Comment due date: Comments on the proposed rule should be
submitted in writing to the address shown below on or before February
17, 2023, to be considered in the formation of a final rule.
Public meeting date: A virtual public meeting will be held on
February 2, 2023, from 1 p.m. to 5 p.m., Eastern time. The public
meeting will end at the stated time, or when the discussion ends,
whichever comes first.
Registration date: Registration to attend the public meeting must
be received no later than close of business on January 26, 2023.
Information on how to register for the public meeting may be found
under the SUPPLEMENTARY INFORMATION section of this notice.
ADDRESSES: Public Meeting: A virtual public meeting will be held using
Zoom video conferencing software.
Submission of Comments: Submit comments identified by DFARS Case
2019-D043, using any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2019-D043.'' Select ``Comment'' and follow the
instructions provided to submit a comment. Please include ``DFARS Case
2019-D043'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2019-D043 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Mr. David E. Johnson, telephone 202-
913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement the intellectual
property (e.g., data rights) portions of the revised Small Business
Innovation Research (SBIR) Program and Small Business Technology
Transfer (STTR) Program Policy Directives. The Small Business
Administration (SBA) published in the Federal Register proposed
amendments to the SBIR Program and STTR Program Policy Directives,
which included combining the two directives in a single document, on
April 7, 2016, at 81 FR 20483. The final combined SBIR/STTR Policy
Directive was published on April 2, 2019, at 84 FR 12794, and became
effective on May 2, 2019.
DoD published an advance notice of proposed rulemaking (ANPR) on
August 31, 2020, at 85 FR 53758, providing draft DFARS revisions and
requesting written public comments. DoD hosted public meetings to
obtain the views of interested parties regarding the ANPR on January
14, 2021, and January 15, 2021.
The preamble to the ANPR provided detailed explanations of
revisions related to--
A single, non-extendable, 20-year SBIR/STTR data
protection period, rather than a 5-year period that can be extended
indefinitely;
Perpetual government purpose rights (GPR) license rights
after the expiration of the SBIR/STTR data protection period, rather
than unlimited rights; and
Definitions that harmonize terminology used in the Policy
Directive and the Federal Acquisition Regulation (FAR) and DFARS
implementations.
Eight respondents submitted public comments in response to the
ANPR.
II. Public Meeting
DoD is interested in continuing a dialogue with experts and
interested parties in Government and the private sector regarding
amending the DFARS to implement the SBIR/STTR Policy Directive.
Registration: Individuals wishing to participate in the virtual
meeting must register by January 26, 2023, to facilitate entry to the
meeting. Interested parties may register for the meeting by sending the
following information via email to [email protected] and including
``Public Meeting, DFARS Case 2019-D043'' in the subject line of the
message:
Full name.
Valid email address, which will be used for admittance to
the meeting.
Valid telephone number, which will serve as a secondary
connection method. Registrants must provide the telephone number they
plan on using to connect to the virtual meeting.
Company or organization name.
Whether the individual desires to make a presentation.
Pre-registered individuals will receive instructions for connecting
using the Zoom video conferencing software not more than one week
before the meeting is scheduled to commence.
Presentations: Presentations will be limited to 5 minutes per
company or organization. This limit may be subject to adjustment,
depending on the number of entities requesting to present, in order to
ensure adequate time for discussion. If you wish to make a
presentation, please submit an electronic copy of your presentation via
email to [email protected] no later than the registration date for the
specific meeting. Each presentation should be in PowerPoint to
facilitate projection during the public meeting and should include the
presenter's name, title, organization affiliation, telephone number,
and email address on the cover page.
Correspondence, Comments, and Presentations: Please cite ``Public
Meeting, DFARS Case 2019-D043'' in all correspondence related to the
public meeting. There will be no transcription at the meeting. The
submitted presentations will be the only record of the public meeting
and will be posted to the following website at the conclusion of the
public meeting: https://www.acq.osd.mil/dpap/dars/technical_data_rights.html.
III. Discussion and Analysis
DoD reviewed the public comments in the development of the proposed
rule. A discussion of the comments and the changes made to the proposed
rule in response to those comments is provided, as follows:
A. Summary of Significant Changes from the ANPR
Edits are made to the proposed rule based on the public comments.
The proposed rule clarifies DFARS 227.7104-1, 227.7104-2, and 227.7104-
3, and the following DFARS contract clauses to reflect the objectives
of the SBIR/STTR Policy Directive--
[[Page 77681]]
252.227-7013, Rights in Technical Data--Noncommercial
Items;
252.227-7014, Rights in Noncommercial Computer Software
and Noncommercial Computer Software Documentation;
252.227-7015, Technical Data--Commercial Items;
252.227-7016, Rights in Bid or Proposal Information; and
252.227-7018, Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program.
Edits are made to the guidance at DFARS 227.7104-1 that mirror the
policies at DFARS 227.7103-1(c) and (d). These instructions prohibit
contracting officers from requiring offerors to relinquish SBIR/STTR
data rights or from rejecting offerors solely due to SBIR/STTR data
rights restrictions. Similar to the guidance at DFARS 227.7103-
10(a)(5), the proposed rule also indicates that, during the source
selection process, the Government may evaluate the impact of
restrictions on the Government's ability to use or disclose technical
data or computer software in a manner consistent with acquisition
preferences and other guidance applicable to SBIR/STTR offerors.
DFARS 252.227-7018 and the associated guidance to contracting
officers are revised to indicate that the term SBIR/STTR data
encompasses all technical data or computer software developed or
generated in the performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
The proposed rule also deletes the Alternate I clause for DFARS
252.227-7018. The clause is directed to the Government's publication of
technical data or software with a perpetual GPR license, which
conflicts with the scope of that license.
In addition, the proposed rule updates the marking requirements in
DFARS 252.227-7018 to require an ``unlimited rights'' marking for
technical data or software furnished to the Government without
restrictions. Because the current marking paradigm does not include an
``unlimited rights'' marking, Government personnel may be unsure
whether technical data or computer software with no restrictive
markings has been provided with an ``unlimited rights'' license or the
restrictive marking was inadvertently omitted. The SBIR/STTR Policy
Directive emphasizes the need to protect the intellectual property (IP)
interests of small businesses. To achieve this goal, DoD has updated
its marking requirements to resolve a long-standing gap that may
negatively impact the IP interests of small businesses. The proposed
rule provides a transparent and consistent framework that permits the
Government to easily identify and resolve inadvertently omitted
restrictive markings. To ensure consistency between DFARS 252.227-7018
and the other noncommercial technical data and software rights clauses,
this revision has also been applied to DFARS 252.227-7013 and DFARS
252.227-7014 for noncommercial technical data and software. For similar
reasons, the ``omitted markings'' procedures in DFARS 252.227-7018
(which are discussed in the guidance at DFARS 227.7103-10 and 227.7203-
10) have been applied to DFARS 252.227-7013 and DFARS 252.227-7014.
This allows DoD to better protect the IP interests of all of its
industry partners.
Lastly, the proposed rule includes revisions to the requirements
governing restrictive markings to address concerns raised in the public
comments and recent case precedent (see, e.g., The Boeing Co. v.
Secretary of the Air Force, 983 F.3d 1321 (Fed. Cir. 2020)). The
proposed revisions clarify the long-standing intent of the DFARS
marking requirements to limit restrictive markings on noncommercial
technical data and software to those specified in the clauses
(including prohibiting restrictive markings directed to non-
Governmental third parties) and add an unlimited rights marking to
mitigate against the risk of loss of IP rights by an inadvertent
omission of restrictive markings. The prohibition of nonstandard
markings, including restrictive markings directed to third-party
recipients, will reduce confusion for Government personnel seeking to
understand the Government's rights, and avoids the need to make case-
by-case determinations regarding whether a nonstandard marking--
Must be corrected as nonconforming;
Can be ignored as marking the contractor intended to apply
only to non-Governmental third parties; or
Otherwise is not intended to identify and restrict the
Government's rights.
This revision facilitates the Government's review of technical data
and software deliverables by increasing standardization of
noncommercial restrictive markings throughout all DoD contracts. In
addition, these simplified marking procedures may be more
understandable to small businesses that are unfamiliar with DoD's
marking requirements.
For similar reasons to avoid confusion regarding the Government's
license rights, the proposed rule also clarifies the more open-ended
marking requirement for commercial technical data at DFARS 252.227-
7015. The revisions preserve the long-standing approach allowing
contractor discretion to choose and use its favored restrictive
marking, consistent with commercial practices or other contractor
preferences, while clarifying only that the restrictive marking used
must accurately reflect the Government's license rights. The proposed
revision will prevent confusing restrictive markings that do not
comport with the Government's license rights, while preserving
flexibility for commercial contractors in how they elect to mark their
technical data.
The proposed rule bolsters the existing standards for marking
requirements while fostering efficiency, transparency, and consistency
for both DoD and its contractors.
B. Analysis of Public Comments
1. Virtual Public Meetings
Comment: One respondent recommended that the DAR Council host a
virtual public meeting to discuss the substance of the ANPR.
Response: DoD hosted virtual public meetings on January 14, 2021,
and January 15, 2021. The meetings received positive feedback, and DoD
plans to host additional virtual public meetings in the future.
2. Clarifying Definitions in DFARS 252.227-7018 and Related Clauses
a. Clarifying the Definition of ``Data''
Comment: A respondent asserted that the definition of the term
``data'' implies that the scope is broader than technical data and
computer software. The respondent recommended removing this term and
replacing all instances of the term ``data'' with technical data,
computer software, or both (as applicable).
Response: DoD has adopted the respondent's recommendation.
b. Clarifying the Definition of ``SBIR/STTR Data''
Comment: Several respondents recommended revising the definition of
SBIR/STTR data. The respondents recommended referencing SBIR
subcontracts in the definition. The respondents also recommended
emphasizing that SBIR/STTR data applies in the context of phase I, II,
and III contracts. Furthermore, the respondents recommend referencing
agreements that are not governed by the FAR, such as other transaction
agreements, grants, cooperative agreements, and cooperative research
and development agreements. In
[[Page 77682]]
addition, the respondents recommended referencing instruments such as
task orders, delivery orders, and blanket purchase agreements.
Response: DoD partially adopted the respondents' recommendations by
referencing phase I, II, and III SBIR/STTR contracts in the definition
of SBIR/STTR data in DFARS 252.227-7018 and the guidance at DFARS
227.7104-2(a)(2). Because the DFARS governs FAR-based procurement
contracts only, DoD has not revised the definition of SBIR/STTR data to
include references to instruments that are not procurement contracts.
c. Clarifying Definitions in DFARS 252.227-7016
Comment: One respondent stated that there are portions of paragraph
(a) of DFARS 252.227-7016 where the subject of these sentences is
unclear, and recommended revising the clause to resolve these
ambiguities.
Response: DoD reviewed DFARS 252.227-7016, paragraph (a), and made
clarifying changes in response to the comment.
d. Definition of ``Form, Fit, and Function Data''
Comment: A respondent recommended revising the definition of the
term ``form, fit, and function data'' in DFARS 252.227-7018 to
encompass technical data identifying source, functional
characteristics, and performance requirements for computer software.
Response: This recommended revision is related to DFARS Case 2021-
D005, which implements recent statutory amendments in 10 U.S.C. 2320
and 2446a related to modular open systems approaches. To ensure
thorough and consistent application of this revision throughout DFARS
252.227-7013, DFARS 252.227-7015, and DFARS 252.227-7018, this revision
will be addressed in DFARS Case 2021-D005.
e. Consistent Use of the Terms ``Generated'' and ``Developed''
Comment: One respondent noted that the term ``generated'' is
referenced in DFARS 252.227-7013, but the term is not defined.
Therefore, the respondent recommended revising DFARS 252.227-7013 to
incorporate the definition of ``generated'' in DFARS 252.227-7018. Some
respondents recommended revising DFARS 252.227-7018(c)(5) and the
associated guidance at DFARS 227.7104 to reference technical data or
software ``developed'' under SBIR/STTR contracts, to ensure consistent
use of this term through this clause. Lastly, a respondent recommended
revising the definition of the term ``SBIR/STTR data'' to reference
technical data or computer software ``first or originally'' developed
or generated under SBIR/STTR contracts.
Response: DoD adopted these suggested revisions except for the last
one, revising the definition of the term ``SBIR/STTR data''. DoD did
not adopt this suggested revision because it could create confusion
(e.g., ``first created'' is already included in the definition of the
term ``generated'').
3. Resolving Inconsistencies with the Perpetual Government Purpose
Rights License in DFARS 252.227-7018
In the ANPR, DoD revised DFARS 252.227-7018(c) to indicate that the
Government is granted a perpetual GPR license after the SBIR/STTR
protection period has expired. Various respondents noted ambiguities or
inconsistencies that resulted from this revision.
a. Alternate I Clause for DFARS 252.227-7018
Comment: One respondent asserted that the Alternate I clause for
DFARS 252.227-7018 encourages publication of the SBIR/STTR data,
inducing SBIR/STTR firms to publish its data as a requirement for the
award. For this reason, the respondent recommended deletion of the
Alternate I clause. Another respondent recommended revising the
Alternate I clause to specify the Government's license rights after the
SBIR/STTR protection period expires.
Response: The perpetual GPR license does not permit publication of
SBIR/STTR data after the SBIR/STTR protection period expires. Because
the Alternate I clause no longer comports with the Government's license
rights in the proposed rule, DoD has proposed to remove the Alternate I
clause for DFARS 252.227-7018 in this proposed rule.
b. Clarifying the Scope of DFARS 252.227-7018(c)(1)(vi)
Comment: A respondent asserted that the scope of the technical data
and software referenced in DFARS 252.227-7018(c)(1)(vi) is unclear, in
view of the Government's perpetual GPR license after the SBIR/STTR
protection period expires.
Response: DoD has clarified the scope of DFARS 252.227-
7018(c)(1)(vi) to reference ``[t]echnical data or computer software
furnished to the Government, under this or any other Government
contract or subcontract thereunder, with license rights for which all
restrictive conditions on the Government have expired.''
4. Restrictive Markings
a. Applicability of the Marking Requirements to Prototypes and Other
Products
Comment: Some respondents recommended applying the marking
requirements to prototypes, end items, or products themselves.
Response: As discussed in the ANPR, the proposed rule recognizes
and references the SBIR/STTR Policy Directive guidance on prototypes in
DFARS 227.7104-2(c). Because the license rights and marking
requirements prescribed in DFARS part 227 apply only to technical data
and computer software rather than hardware, DoD has not adopted the
proposed revision to part 227 and the associated clauses.
b. Clarifying References to Restrictive Markings in DFARS 227.7104-1
Comment: One respondent asserted that it is unclear whether the
word ``appropriately'' in the phrase ``appropriately marked with the
SBIR/STTR data rights legend'' in DFARS 227.7104-1(a)(2) implies that
the marking: (1) conforms with the marking requirements; or (2) is
justified under the license terms in DFARS 252.227-7018. The respondent
recommended resolving this ambiguity by removing the word
``appropriately'' in DFARS 227.7104-1(a)(2).
Response: DoD has adopted the recommended revision to remove the
word ``appropriately'' in DFARS 227.7104-2(a)(2).
c. Protecting the IP Rights of Contractors by Reducing the Risk of
Inadvertent Omission of Restrictive Markings
Comment: A respondent noted that the SBIR/STTR program is intended
to foster innovation from small businesses. The respondent asserted the
current marking requirements penalize small businesses for making
inadvertent marking omissions, and the respondent indicated that the
proposed marking requirements will discourage new entrants from
entering the SBIR/STTR program. The respondent recommended deletion of
the ``Omitted Markings'' procedures in DFARS 252.227-7018(g)(2), and
suggested that the Government provide templates for guidance on
restrictive markings on technical data and software.
Response: Restrictive markings provide a critical tool for
protection of the IP interests of DoD contractors, facilitating proper
handling of technical data and software by the Government. The
``omitted markings'' procedures in DFARS 252.227-7018 provide
contractors with a mechanism for
[[Page 77683]]
correcting inadvertently omitted markings, to ensure that contractors
have ample opportunities to identify restrictions on technical data or
software. These procedures are based on the guidance on ``Terms of
Agreement Under SBIR/STTR Awards'' in the SBIR/STTR Policy Directive,
and are consistent with long-standing DFARS policy and procedures for
omitted markings on noncommercial technical data and computer software
(see DFARS 227.7103-10(c) and DFARS 227.7203-10(c)). Deletion of these
procedures would be inconsistent with the guidance in the Policy
Directive and established DoD noncommercial marking policy and
procedure.
DoD acknowledges the respondent's concerns about the risk of a
contractor unintentionally losing protection for its IP rights by
inadvertently omitting a required restrictive legend. The risk of
inadvertent omission may also be increased by the current lack of a
requirement for an ``unlimited rights'' marking, relying on the absence
of a restrictive marking to indicate that the Government has unlimited
rights. Under this approach, contractor and Government personnel may be
unsure whether technical data or computer software delivered with no
restrictive markings has been intentionally provided with ``unlimited
rights,'' or whether a restrictive marking was inadvertently omitted.
The proposed rule resolves this long-standing issue with the marking
requirements by adding an unlimited rights marking, similar to an
approach previously proposed in DFARS Case 2010-D001(see 75 FR 59412,
59448 September 27, 2010). The revisions establish a marking
requirement for all delivered technical data and computer software
governed by the SBIR/STTR data rights clause, eliminating the potential
confusion regarding whether unmarked data or software is provided with
unlimited rights or whether a restrictive marking was inadvertently
omitted. The proposed rule provides a transparent and consistent
framework that permits both Government and contractor personnel to
easily identify and avoid inadvertently omitted restrictive markings,
which improves protections for contractors' IP interests. To ensure
consistency and address this same concern in the markings required for
all noncommercial technical data and computer software, the unlimited
rights marking requirement has also been applied to DFARS 252.227-7013
and DFARS 252.227-7014. To minimize administrative burdens for
contractors, the unlimited rights marking is identical in all of these
clauses.
5. Narrowing or Clarifying the Scope of Certain Categories of License
Rights
a. Narrowing the Scope of the GPR License and SBIR/STTR Data Rights
License
Comment: One respondent recommended narrowing the GPR license to
only allow distribution to covered Government support contractors.
Another respondent recommended narrowing the scope of the SBIR/STTR
data rights license to prohibit uses of SBIR/STTR data within the
Government that would ``undermine the small business concern or
successor firm's future commercialization of the associated
technology.''
Response: DoD has not adopted the respondent's recommended
revisions because the current scope of the SBIR/STTR data rights
comports with the guidance set forth in the 2019 SBIR/STTR Policy
Directive. Furthermore, the respondent's recommendation does not
provide a clear scope of uses permitted within the Government.
b. Clarifying the Scope of the GPR License
Comment: A respondent recommended that the proposed rule provide
examples of ``competitive procurements'' to clarify the scope of the
GPR license.
Response: DoD has not adopted the recommended revision because this
term is well known and is used in various clauses. In addition,
examples of competitive procurements may be misconstrued to narrow the
scope of the GPR license.
c. Restrictions on Third-Party Recipients of SIBR/STTR Data
Comment: One of the respondents recommended emphasizing
restrictions on third-party use of SBIR/STTR data in DFARS 252.227-
7018(a)(16)(ii).
Response: DoD has not adopted the respondent's recommended
revisions because the restrictions on use of SBIR/STTR data by third-
party recipients are already specified in DFARS 252.227-
7018(c)(2)(iii).
d. Royalty-Free License Rights
Comment: A respondent recommended revising the scope of the SBIR/
STTR data rights license to grant a royalty-free license only upon
expiration of the SBIR/STTR data protection period. The respondent also
recommended clarifying DFARS 252.227-7018(c) to describe how the
royalty-free license rights differ or complement the Government's
license rights after the SBIR/STTR data protection period expires.
Response: In DFARS 252.227-7018(c), the grant of ``royalty-free,
worldwide, nonexclusive, irrevocable license rights'' applies to all of
the categories of license rights in paragraph (c) of the clause. DoD
has not adopted the recommended revisions, because the Government's
license rights under this clause comport with the guidance provided in
the 2019 SBIR/STTR Policy Directive; and the scope of the Government's
license rights, during and after the SBIR/STTR protection period, are
already defined in DFARS 252.227-7018 paragraphs (c)(2)(ii)(B) and
(c)(5).
6. Restructuring Clauses and Revising the Scope of the Applicability of
Clauses
Comment: A respondent recommended removing any revisions to the
guidance at DFARS 227.7104 related to SBIR/STTR data that later is
considered commercial. The respondent also recommended deleting the
applicability section in DFARS 252.227-7015(b); revising the
applicability sections in DFARS 252.227-7013(b) and DFARS 252.227-
7018(b); and retaining the original order of the paragraphs in DFARS
252.227-7013 and 252.227-7018. The respondent also recommended adding
an alternate version of DFARS 252.227-7015 that would recognize funding
contributions of the Government and the contractors. Other respondents
recommended restructuring DFARS 252.227-7018 to combine it with other
license rights clauses. One respondent recommended clarification of the
scope of the clauses (as discussed in paragraph (b) of these clauses)
and the further explanation of application of the prescribed license
rights.
Response: DoD added applicability sections to the clauses and the
associated guidance to contracting officers to clarify contractors' and
contracting officers' understanding of the scope of DFARS 252.227-7013,
252.227-7014, 252.227-7015, and 252.227-7018. These revisions will
ensure proper application of the SBIR/STTR data rights clause, as
prescribed in the SBIR/STTR Policy Directive, and other clauses. For
this reason, DoD has not adopted the respondents' recommendations for
removal or revision of the applicability sections. In response to
recommendations related to substantial restructuring of the
aforementioned clauses and allocation of licenses in DFARS 252.227-7015
based on funding contributions, these revisions are out of scope for
the current case.
[[Page 77684]]
7. Narrowing the Flowdown Requirements in DFARS 252.227-7018 and
Applicability of the Assertion Requirements in DFARS 252.227-7017
a. Assertion Requirements
Comment: One respondent asserted that the identification and
assertion requirements in DFARS 252.227-7017 should not be applied to
SBIR/STTR data. The respondent provides the following assertions to
support this position: (1) technical data and software requirements are
not known prior to contract award; (2) the assertions requirement is
redundant because Contract Data Requirements Lists (CDRLs) already
specify the applicable distribution statement; and (3) some details of
software deliverables (such as the software name and version) are
unknown prior to contract award.
Response: The assertion requirements are necessary to identify and
protect the IP interests of contractors and subcontractors under SBIR/
STTR contracts, because they provide a practical document that
specifically identifies SBIR/STTR technical data and software furnished
with restrictions. CDRLs (which should be included with the
solicitation) provide the technical data and software requirements that
will allow contractors to identify SBIR/STTR data with restrictions and
provide information to the Government on license restrictions. This
assertion requirement allows the Government to ask offerors or
contractors questions about assertions to efficiently resolve any
misconceptions about the Government's license rights. The assertions
should clearly identify the technical data or software furnished with
restrictions so the Government can understand what deliverables are
being referenced and cross-reference the assertions table and the
restrictive markings on the deliverables. Assertions tables and CDRLs
are not redundant, because distribution statements do not provide
specifics of license restrictions, and assertions tables allow
contracting officer technical representatives to cross-reference the
asserted restrictions with technical data and software deliverables to
ensure that they are properly marked. DFARS 252.227-7018 permits
revisions to the assertions table ``when based on new information or
inadvertent omissions unless the inadvertent omissions would have
materially affected the source selection decision.'' For these reasons,
DoD has not adopted the respondent's recommendations.
b. Flowdown Requirements
Comment: A respondent asserted that the flowdown requirements may
significantly increase administrative burden on small businesses.
Another respondent recommended revising DFARS 252.227-7013 and 252.227-
7014 to indicate that DFARS 252.227-7018 will govern technical data
that is SBIR/STTR data. Some respondents recommended revising the
flowdown requirements to require contractors to insert DFARS 252.227-
7018 in any SBIR/STTR subcontracts as defined by the SBA SBIR/STTR
Policy Directive.
Response: These flowdown requirements ensure that subcontractors,
including small businesses, are afforded the same protections as prime
contractors. If there are no subcontracts for the small business prime
contractor or the subcontractors are not delivering technical data,
then the flowdown requirements are not applicable. Regardless of the
flowdown requirements, the prime contractor is obligated to ensure that
the Government is granted the standard license rights under the
applicable clauses. The flowdown requirement provides a mechanism to
facilitate this license grant.
The DFARS 252.227-7013 definition of ``unlimited rights'' in
paragraph (a), DFARS 252.227-7013 paragraph (b)(2), the associated
guidance for contracting officers, and the mandatory flowdown
requirements in DFARS 252.227-7018 already include the suggested
revisions. The proposed rule instructs contracting officers to use
DFARS 252.227-7018 when SBIR/STTR data is delivered, developed, or
generated during contract performance. In addition, the proposed rule
indicates that when a portion of contract performance is governed by
the SBIR or STTR program (e.g., performance of one or more subcontracts
qualifies as a phase III SBIR or STTR award), the clause at 252.227-
7018 applies to the technical data or computer software that is
governed by the SBIR or STTR program. Furthermore, DFARS 252.227-
7013(b)(2) already indicates that DFARS 252.227-7018 governs SBIR/STTR
data, and the flowdown requirements in DFARS 252.227-7018 already
require flowdown to subcontracts. For these reasons, DoD has not
adopted the respondent's recommendations.
8. Application of the SBIR/STTR Protection Period
Comment: Some respondents recommended clarification on application
of the 20-year SBIR/STTR data protection period. One of the respondents
recommended clarification on how the SBIR/STTR data protection period
is applied for SBIR/STTR contracts that predate the SBIR/STTR Policy
Directive, contracts that were awarded with DFARS 252.227-7018, Rights
in Noncommercial Technical Data and Computer Software--Small Business
Innovation Research (SBIR) Program (MAR 2020) (DEVIATION 2020-O0007),
and contracts that are extensions or derivations from work performed
under those previous contracts.
Response: The proposed rule indicates that the SBIR/STTR data
``protection period is not extended by any subsequent SBIR/STTR
contracts under which any portion of that SBIR/STTR data is used or
delivered. The SBIR/STTR data protection period of any such subsequent
SBIR/STTR contract applies only to the SBIR/STTR data that are
developed or generated under that subsequent contract.'' However, DoD
has adopted the respondent's recommendation by further clarifying
application of the SBIR/STTR protection period in DFARS 252.227-
7018(c)(5).
9. STTR Solicitation and Clause Regarding Agreements Between
Contractors and Partnering Research Institutions Allocating IP Rights
Comment: A respondent recommended revising 252.227-70XX and
252.227-70YY to only require draft allocation agreements or agreements
to negotiate in good faith.
Response: The Government cannot and should not rely upon a draft
agreement that is not legally binding or an agreement to simply
negotiate with no contractual obligations. Therefore, DoD has not
adopted the respondent's recommendation.
10. Additional Comments and Recommendations
a. Negative Impacts of the Updated SBIR/STTR Data Protection Period
Comment: A respondent asserted that the 20-year SBIR/STTR data
protection period negatively impacts the Government's use of software
related to large systems developed by DoD program managers and
laboratories.
Response: DoD notes that the updated SBIR/STTR data protection
period limits extension of the protection period. Such limitations do
not exist in the extant version of DFARS 252.227-7018. Furthermore,
notwithstanding license restrictions on SBIR/STTR data, DoD regularly
achieves its technology transition goals using SBIR/STTR data.
[[Page 77685]]
b. Guidance on Source Selection Procedures Related to SBIR/STTR Data
Rights
Comment: One respondent recommended prescriptive guidance for
contracting officers that prohibits deeming an offeror ineligible for
contract award due to license restrictions on SBIR/STTR data.
Response: DoD adopted the respondent's recommendation in DFARS
227.7104-1, which mirrors existing language in DFARS 227.7103-1(c) and
(d) and 227.7103-10(a)(5).
c. Recommendations Addressed by Existing DFARS Guidance,
Recommendations Not Directed to Contracting Officers, and
Recommendations Unrelated to License Rights
Comment: A respondent recommended specific language that prohibits
preferences or requirements related to collaboration with Federal
laboratories or DoD sponsored or funded entities. The respondent also
recommended revising the proposed rule to include guidance that is
directed to policy or regulatory decision-makers (rather than
contracting officers). In addition, the respondent recommended
prescriptive guidance that indicates that the SBIR/STTR Policy
Directive supersedes DFARS prescriptive guidance, provisions, and
clauses. The respondent also recommended prescriptive guidance
regarding contractor copyright ownership; patent rights for small
businesses; prohibitions against preaward license negotiations related
to SBIR/STTR data; and improper uses of interagency acquisitions that
circumvent the DFARS prescriptive guidance on SBIR/STTR contracts.
Response: The respondent's first recommendation is related to
technical evaluation factor requirements that are not related to
license rights, which is beyond the scope of this rule. In response to
the respondent's second recommendation, the DFARS should only include
guidance or requirements for contracting officers rather than guidance
that is intended for policy or regulatory decision-makers. In response
to the respondent's third comment, the proposed rule includes guidance,
provisions, and clauses that are intended to fully implement IP
portions of the SBIR/STTR Policy Directive. However, the SBIR/STTR
Policy Directive does not supersede DFARS guidance for contracting
officers, provisions, and clauses. The respondent's other
recommendations are already addressed in existing guidance and clauses
related to postaward license negotiations regarding SBIR/STTR data in
DFARS 227.7104-2(a)(2); retention of rights by the contractor in DFARS
252.227-7018(c); patent rights for small businesses in FAR 52.227-11;
and interagency acquisitions in FAR subpart 17.7. For these reasons,
DoD has not adopted the respondent's recommendations.
d. Liability and Reimbursement Obligations
Comment: One respondent recommended revising the ``release from
liability'' section in DFARS 252.227-7018 to impose liability and
reimbursement obligations for the Government related to damages caused
by unauthorized disclosure of technical data or software.
Response: The Disputes clause and the Contracts Disputes statute
govern claims related to breach of contract. In addition, the
recommended revisions create open-ended funding obligations for
reimbursement of ``all costs and reasonable attorney fees'', which are
not authorized by any existing policy, statute, or regulation. For
these reasons, DoD has not adopted the respondent's recommendation.
e. Potential Topic for DoD Guidance and Training
Comment: A respondent recommended that DoD develop guidance and
workforce training on examples of modifications or changes to
preexisting commercial and noncommercial items made in the performance
of a DoD contract.
Response: Although DoD is continuously improving its guidance and
training, this recommendation is outside the scope of this rule.
C. Other Changes
Because the terms ``legends'' and ``markings'' are interchangeable,
the proposed rule changes all instances of ``legends'' to ``markings''
in part 227 and the associated solicitations and clauses for the sake
of consistency. A minor change is also made at DFARS 212.301(f)(xii)(A)
for DFARS clause 252.227-7013 to add a cross-reference to 227.7102-
4(b).
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
The proposed rule clarifies the following DFARS solicitation
provision and contract clauses to reflect the objectives of the SBIR/
STTR Policy Directive: 252.227-7013, Rights in Technical Data-
Noncommercial Items; 252.227-7014, Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation; 252.227-
7015, Technical Data-Commercial Items; 252.227-7016, Rights in Bid or
Proposal Information; 252.227-7017, Identification and Assertion of
Use, Release, or Disclosure Restrictions; 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software-Small Business
Innovation Research Program and Small Business Technology Transfer
Program; and 252.227-7025, Limitation on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends.
DFARS clauses 252.227-7013, 252.227-7015, and 252.227-7037 will
continue to apply to contracts at or below the SAT and for the
acquisition of commercial items, including COTS items. In addition,
DFARS 252.227-7018 will apply to contracts at or below the SAT and for
the acquisition of commercial items, including COTS items.
This rule also proposes to create a new provision and a new clause:
(1) DFARS 252.227-70XX, Additional Preaward Requirements for Small
Business Technology Transfer Program, and (2) DFARS 252.227-70YY,
Additional Postaward Requirements for Small Business Technology
Transfer Program. The new provision and clause will apply to
acquisitions at or below the SAT and to acquisitions of commercial
items, including COTS items. Not applying this provision and clause to
contracts below the SAT and for the acquisition of commercial items,
including COTS items, would exclude contracts intended to be covered by
this rule and undermine the overarching purpose of the rule.
Consequently, DoD plans to apply the rule to contracts below the SAT
and for the acquisition of commercial items, including COTS items.
V. Expected Impact of the Rule
The SBIR/STTR Policy Directive updates the SBIR/STTR data
protection period to a single, non-extendable 20-year period, rather
than an extendable 5-year period. The proposed rule also provides the
Government with perpetual GPR license rights after the expiration of
the SBIR/STTR data protection period, rather than unlimited rights. In
addition, the proposed rule implements STTR-unique requirements in the
SBIR/STTR Policy Directive related to allocation of IP rights between
partnering institutions and contractors under the STTR program. The
proposed
[[Page 77686]]
rule removes an alternate clause for DFARS 252.227-7018, which
previously allowed the Government to elect not to exercise its right to
publish or authorize others to publish SBIR data. Lastly, the proposed
rule updates the marking requirements in DFARS 252.227-7013, 252.227-
7014, and 252.227-7018 to require an ``unlimited rights'' marking for
technical data or software furnished to the Government without
restrictions. The updated marking requirements permit contractors to
use only the restrictive markings specified in the clause. The proposed
rule also revises DFARS 252.227-7015 to indicate that restrictive
markings on commercial technical data must accurately reflect the
Government's license rights.
The proposed rule therefore impacts the Government's license rights
in SBIR/STTR data and the contractor's marking obligations. The SBIR/
STTR Policy Directive emphasizes the need to protect the IP interests
of small businesses. The proposed rule provides a transparent and
consistent framework that permits the Government to easily identify and
resolve inadvertently omitted restrictive markings, which allows DoD to
better protect the IP interests of our small-business industry
partners.
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VII. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. This rule is not
anticipated to be a major rule under 5 U.S.C. 804.
VIII. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule primarily benefits small entities by emphasizing
protection of small entities' intellectual property, therefore
balancing any additional compliance requirements under the rule.
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
DoD is proposing to amend the DFARS to implement the data-rights
portions of the revised SBA Small Business Innovation Research (SBIR)
Program and Small Business Technology Transfer (STTR) Program Policy
Directive. The final combined SBA SBIR/STTR Policy Directive became
effective on May 2, 2019.
The objectives of the rule are to implement the data-rights
portions of the SBA SBIR/STTR Policy Directive. Accordingly, the rule
provides the following:
A single, non-extendable, 20-year SBIR/STTR data
protection period, rather than the extant 5-year period that can be
extended indefinitely;
Perpetual government purpose rights (GPR) license rights
after the expiration of the SBIR/STTR data protection period, rather
than unlimited rights; and
Definitions that harmonize terminology used in the Policy
Directive and the Federal Acquisition Regulation (FAR) and DFARS
implementations.
The rule provides a new DFARS solicitation provision and a contract
clause applicable to STTR awards where no such coverage has existed.
Further, the rule updates DFARS provision and clauses 252.227-7013,
Rights in Technical Data--Noncommercial Item; 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; 252.227-7015, Technical Data-Commercial Items, 252.227-
7016; Rights in Bid or Proposal Information; 252.227-7017,
Identification and Assertion of Use, Release, or Disclosure
Restrictions; 252.227-7018, Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program;
252.227-7019, Validation of Asserted Restrictions--Computer Software;
and 252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
The SBIR/STTR Policy Directive emphasizes the need to protect the
intellectual property interests of small businesses. To achieve this
goal, DoD has updated its marking requirements to resolve a long-
standing gap that may negatively impact the intellectual property
interests of small businesses. The proposed rule provides a transparent
and consistent framework that permits the Government to easily identify
and resolve inadvertently omitted restrictive markings, which allows
DoD to better protect the intellectual property interests of our small-
business industry partners.
The legal basis for the rule is 41 U.S.C. 1303.
This proposed rule will apply to small entities that have contracts
with DoD requiring delivery of data, including technical data and
computer software. Based on data from Electronic Data Access for fiscal
year (FY) 2018 through FY 2020, DoD estimates that 23,771 contractors
may be impacted by the changes in this proposed rule. Of those
entities, approximately 15,718 (66 percent) are small entities.
This proposed rule imposes new reporting, recordkeeping, or other
compliance requirements for small entities participating in the STTR
program. The changes in this proposed rule add a requirement for
offerors responding to solicitations under the STTR program to submit,
to be eligible for award, both a written agreement and a written
representation to the contracting officer for review. Further, the
proposed rule requires STTR contractors to submit both an updated
written agreement and an updated written representation to the
contracting officer as occasioned. Based on data from SBA for FY 2018
through FY 2020, DoD estimates that an average of 302 unique small
entities are awarded an average of 444 STTR contract actions on an
annual basis. DoD estimates that senior employees are necessary to
prepare the written agreement and written representation because of the
complexity of the matter, and the written representation requires
execution by an employee authorized to bind the company.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known alternatives which would accomplish the stated
objectives of this proposed rule.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C.
[[Page 77687]]
610. Interested parties must submit such comments separately and should
cite 5 U.S.C. 610 (DFARS Case 2019-D043), in correspondence.
IX. Paperwork Reduction Act
This rule contains information collection requirements that require
the approval of the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. chapter 35). Accordingly, DoD has submitted a
request for approval of a new information collection requirement
concerning DFARS Case 2019-D043, Small Business Innovation Research
Program Data Rights, to the Office of Management and Budget.
A. Estimated Public Reporting Burden
Public reporting burden for this collection of information is
estimated to average 20 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 302.
Responses per respondent: 1.5.
Total annual responses: 453.
Preparation hours per response: 20 hours.
Total response burden hours: 9,060.
B. Request for Comments Regarding Paperwork Burden
Written comments and recommendations on the proposed information
collection, including suggestions for reducing this burden, should be
sent to Ms. Susan Minson at the Office of Management and Budget, Desk
Officer for DoD, Room 10236, New Executive Office Building, Washington,
DC 20503, or email [email protected], with a copy to the
Defense Acquisition Regulations System, Attn: David E. Johnson at
[email protected]. Comments can be received from 30 to 60 days after
the date of this notice, but comments to OMB will be most useful if
received by OMB within 30 days after the date of this notice. Public
comments are particularly invited on: whether this collection of
information is necessary for the proper performance of functions of the
DFARS, and will have practical utility; whether DoD's estimate of the
public burden of this collection of information is accurate, and based
on valid assumptions and methodology; ways to enhance the quality,
utility, and clarity of the information to be collected; and ways to
minimize the burden of the collection of information on those who are
to respond, through the use of appropriate technological collection
techniques or other forms of information technology.
To obtain a copy of the supporting statement and associated
collection instruments, please email [email protected]. Include DFARS
Case 2019-D043 in the subject line of the message.
List of Subjects in 48 CFR Parts 212, 227, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 227, and 252 are proposed to be
amended as follows:
0
1. The authority citation for 48 CFR parts 212, 227, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 by--
0
a. Revising paragraph (f)(xii)(A);
0
b. Redesignating paragraph (f)(xii)(C) as paragraph (f)(xii)(D);
0
c. Adding a new paragraph (f)(xii)(C) and paragraphs (f)(xii)(E) and
(F).
The revision and additions read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(xii) * * * (A) Use the clause at 252.227-7013, Rights in Technical
Data-Noncommercial Items, as prescribed in 227.7102-4(b) and 227.7103-
6(a). Use the clause with its Alternate I as prescribed in 227.7103-
6(b)(1). Use the clause with its Alternate II as prescribed in
227.7103-6(b)(2), to comply with 10 U.S.C. 8687 and 17 U.S.C. 1301, et
seq.
* * * * *
(C) Use the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software-Small Business Innovation Research
Program and Small Business Technology Transfer Program, as prescribed
in 227.7104-4(a)(1).
* * * * *
(E) Use the provision at 252.227-70XX, Additional Preaward
Requirements for Small Business Technology Transfer Program, as
prescribed in 227.7104-4(c)(1).
(F) Use the clause at 252.227-70YY, Additional Postaward
Requirements for Small Business Technology Transfer Program, as
prescribed in 227.7104-4(c)(2).
* * * * *
PART 227--PATENTS, DATA, AND COPYRIGHTS
227.7103-5 [Amended]
0
3. Amend section 227.7103-5--
0
a. In paragraph (b)(4) introductory text, by removing the words
``government'' and ``legends'' and adding ``Government'' and
``markings'' in their places, respectively;
0
b. In paragraph (b)(4)(i), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place;
0
c. In paragraph (b)(4)(ii), by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
d. In paragraph (b)(5), by removing ``legends'', ``252-227-7025'', and
``non-disclosure'' and adding ``markings'', ``252.227-7025'', and
``nondisclosure'' in their places, respectively;
0
e. In paragraph (b)(6), by removing ``legends'' and ``non-disclosure''
wherever it appears, and adding ``markings'' and ``nondisclosure'' in
their places, respectively; and removing ``Commerce Business Daily''
and adding ``System for Award Management'' in its place; and
0
f. In paragraph (c)(4) by removing ``non-disclosure'' and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'' and
``Information with Restrictive Markings'' in their places,
respectively.
0
4. Amend section 227.7103-6--
0
a. In paragraph (a), by revising the second sentence and adding a new
third sentence; and
0
b. In paragraph (c), by removing ``Information Marked with Restrictive
Legends'' and ``legend(s)'' and adding ``Information with Restrictive
Markings'' and ``marking(s)'' in their places, respectively.
The revision reads as follows:
227.7103-6 Contract clauses.
(a) * * * Do not use the clause when the only deliverable items are
computer software or computer software documentation (see 227.72),
commercial items developed exclusively at private expense (see
227.7102-4), existing works (see 227.7105), or special works (see
227.7106). When contracting under the Small Business Innovation
Research (SBIR) Program or the Small Business Technology Transfer
(STTR) Program, see 227.7104-4(a). * * *
* * * * *
0
5. Amend section 227.7103-7--
0
a. By revising the section heading;
0
b. In paragraph (a) introductory text, by removing ``subsection'',
``parties'',
[[Page 77688]]
and ``non-disclosure'' and adding ``section'', ``parties,'', and
``nondisclosure'' in their places;
0
c. Revising paragraphs (a)(1) and (2);
0
d. In paragraph (b), by removing ``non-disclosure'' and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'' and
``Information with Restrictive Markings'' in their places,
respectively;
0
e. In paragraph (c) introductory text by removing ``non-disclosure''
and adding ``nondisclosure'' in its place;
0
f. In the agreement ``Use and Non-Disclosure Agreement'', by revising
the agreement title, and paragraphs (1) and (5) of the agreement and
the parenthetical clause at the end of the agreement.
The revisions read as follows:
227.7103-7 Use and nondisclosure agreement.
(a) * * *
(1) The specific conditions under which an intended recipient will
be authorized to use, modify, reproduce, release, perform, display, or
disclose technical data subject to limited rights, or SBIR/STTR data
rights, or computer software subject to restricted rights or SBIR/STTR
data rights must be stipulated in an attachment to the use and
nondisclosure agreement.
(2) For an intended release, disclosure, or authorized use of
technical data or computer software subject to special license rights,
modify paragraph (1)(d) of the use and nondisclosure agreement in
paragraph (c) of this section to enter the conditions, consistent with
the license requirements, governing the recipient's obligations
regarding use, modification, reproduction, release, performance,
display, or disclosure of the data or software.
* * * * *
Use and Nondisclosure Agreement
* * * * *
(1) The Recipient shall--
(a) Use, modify, reproduce, release, perform, display, or disclose
Data marked with government purpose rights markings or SBIR/STTR data
rights markings (after expiration of the SBIR/STTR data protection
period provided in the SBIR/STTR data rights marking) only for
government purposes and shall not do so for any commercial purpose. The
Recipient shall not release, perform, display, or disclose these Data,
without the express written permission of the contractor whose name
appears in the restrictive marking (the ``Contractor''), to any person
other than its subcontractors or suppliers, or prospective
subcontractors or suppliers, who require these Data to submit offers
for, or perform, contracts with the Recipient. The Recipient shall
require its subcontractors or suppliers, or prospective subcontractors
or suppliers, to sign a use and nondisclosure agreement prior to
disclosing or releasing these Data to such persons. Such agreement must
be consistent with the terms of this agreement.
(b) Use, modify, reproduce, release, perform, display, or disclose
technical data marked with limited rights or SBIR/STTR data rights
markings only as specified in the attachment to this Agreement.
Release, performance, display, or disclosure to other persons is not
authorized unless specified in the attachment to this Agreement or
expressly permitted in writing by the Contractor. The Recipient shall
promptly notify the Contractor of the execution of this Agreement and
identify the Contractor's Data that has been or will be provided to the
Recipient, the date and place the Data were or will be received, and
the name and address of the Government office that has provided or will
provide the Data.
(c) Use computer software marked with restricted rights or SBIR/
STTR data rights markings only in performance of Contract Number
[Insert contract number(s)]. The recipient shall not, for example,
enhance, decompile, disassemble, or reverse engineer the software; time
share, or use a computer program with more than one computer at a time.
The recipient may not release, perform, display, or disclose such
software to others unless expressly permitted in writing by the
licensor whose name appears in the restrictive marking. The Recipient
shall promptly notify the software licensor of the execution of this
Agreement and identify the software that has been or will be provided
to the Recipient, the date and place the software were or will be
received, and the name and address of the Government office that has
provided or will provide the software.
(d) Use, modify, reproduce, release, perform, display, or disclose
Data marked with special license rights markings. [To be completed by
the contracting officer. See 227.7103-7(a)(2). Omit if none of the data
requested is marked with special license rights markings.]
* * * * *
(5) The Recipient agrees to indemnify and hold harmless the
Government, its agents, and employees from every claim or liability,
including attorneys' fees, court costs, and expenses arising out of, or
in any way related to, the misuse or unauthorized modification,
reproduction, release, performance, display, or disclosure of Data
received from the Government with restrictive markings by the Recipient
or any person to whom the Recipient has released or disclosed the Data.
* * * * *
(End of use and nondisclosure agreement)
227.7103-10 [Amended]
0
6. Amend section 227.7103-10--
0
a. In paragraph (b)(2), by removing ``pre-existing'' and ``legend'' and
adding ``preexisting'' and ``marking'' in their places, respectively;
0
b. In paragraph (c)(2), by removing ``legends'' and ``six months'' and
adding ``markings'' and ``6 months'' in their places, respectively; and
0
c. In paragraph (c)(3), by removing ``use or disclosure'' and adding
``use or disclosure that are consistent with the proposed restrictive
marking'' in its place.
227.7103-12 [Amended]
0
7. Amend section 227.7103-12 paragraph (b)(1) by removing ``legends''
and adding ``markings'' in its place.
227.7103-15 [Amended]
0
8. Amend section 227.7103-15--
0
a. In paragraph (c) introductory text, by removing ``non-commercial''
and adding ``noncommercial'' in its place; and
0
b. In paragraph (c)(2), by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place.
227.7103-16 [Amended]
0
9. Amend section 227.7103-16 in paragraph (b) by removing ``non-
disclosure'' and adding ``nondisclosure'' in its place.
0
10. Revise section 227.7104. to read as follows:
227.7104 Contracts under the Small Business Innovation Research (SBIR)
Program and Small Business Technology Transfer (STTR) Program.
0
11. Add new sections 227.7104-1, 227.7104-2, 227.7104-3, and 227.7104-4
to read as follows:
227.7104-1 Policy.
(a) Contracting officers shall not require an offeror, either as a
condition of being responsive to a solicitation or as a condition for
award, to sell or otherwise relinquish to the Government any rights in
technical data related to items, components, or processes developed
under a SBIR/STTR contract or any rights in software generated under a
SBIR/STTR contract except for
[[Page 77689]]
the technical data and computer software identified at 227.7104-2.
(b) Contracting officers shall not prohibit offerors and
contractors from furnishing or offering to furnish items, components,
or processes developed under a SBIR/STTR contract or software generated
under a SBIR/STTR contract solely because the Government's rights to
use, modify, release, reproduce, perform, display, or disclose
technical data pertaining to those items may be restricted.
(c) In a manner consistent with the guidance in this section and
acquisition preferences applicable to SBIR/STTR offerors, the
Government may use information provided by offerors in response to a
solicitation in the source selection process to evaluate the impact of
proposed restrictions on the Government's ability to use or disclose
technical data or computer software. However, contracting officers
shall not prohibit offerors from offering products for which the
offeror is entitled to provide the technical data or computer software
with restrictions. Contracting officers also shall not require
offerors, either as a condition of being responsive to a solicitation
or as a condition for award, to sell or otherwise relinquish any
greater rights in technical data or computer software when the offeror
is entitled to provide the technical data or computer software with
restrictions.
227.7104-2 Rights in SBIR or STTR data.
(a) Under the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software-Small Business Innovation Research
Program and Small Business Technology Transfer Program, the Government
obtains the following standard license rights:
(1) Unlimited rights in the technical data and computer software
listed in paragraph (c)(1) of the clause.
(2) SBIR/STTR data rights in all other technical data and computer
software developed or generated under the phase I, II, or III SBIR/STTR
contract or subcontract and marked with the SBIR/STTR data rights
marking. SBIR/STTR data rights provide the Government limited rights in
such technical data and restricted rights in such computer software
during the SBIR/STTR data protection period commencing on the date of
contract award and ending 20 years after that date unless, subsequent
to the award, the agency and the contractor negotiate for some other
protection period for the SBIR/STTR data. Upon expiration of the SBIR/
STTR data protection period, the Government has government purpose
rights in the SBIR/STTR data. These government purpose rights do not
expire. See 252.227-7018 for the definition of the SBIR/STTR data
protection period and PGI 227.7104-2 for additional guidance on the
SBIR/STTR data protection period.
(b) During the SBIR/STTR data protection period, the Government may
not release or disclose technical data or computer software that is
subject to SBIR/STTR data rights to any person except as authorized for
limited rights technical data or restricted rights computer software,
respectively.
(c) The Small Business Administration's SBIR and STTR Program
Policy Directive (effective May 2, 2019) provides for special
consideration regarding the handling (e.g., disclosure, reverse
engineering) of prototypes generated under SBIR and STTR awards, to
avoid effects that may appear to be inconsistent with the SBIR and STTR
program objectives and to allow the SBIR/STTR awardee to retain rights
in SBIR/STTR data during the SBIR/STTR data protection period.
227.7104-3 STTR program requirements.
(a) Before award of a contract under the STTR program requirements
only, the provision at 252.227-70XX, Additional Preaward Requirements
for Small Business Technology Transfer Program, requires offerors to
submit, as part of their proposal, a written agreement between the
offeror and a partnering research institution that allocates any rights
in intellectual property and the offeror's written representation that
it is satisfied with the agreement. The contracting officer shall
review the agreement to ensure it does not conflict with the
requirements of the solicitation or any right to carry out follow-on
research. If such conflicts exist and cannot be resolved, the submitted
proposal is not eligible for award.
(b) At contract award for STTR program requirements, in accordance
with the clause at 252.227-70YY, Additional Postaward Requirements for
Small Business Technology Transfer Program, the contracting officer
shall attach to the contract the accepted written agreement and
representation provided by the contractor pursuant to the provision at
252.227-70XX.
(c) After contract award, for any modification to the written
agreement between the contractor and partnering research institution,
the contracting officer shall review the agreement and representation
to ensure the modified agreement adheres to the requirements of
252.227-70YY. If acceptable, the contracting officer shall attach the
modified agreement to the contract.
227.7104-4 Solicitation provisions and contract clauses.
(a)(1) Use the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software-Small Business Innovation Research
Program and Small Business Technology Transfer Program, in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
when SBIR/STTR data are delivered, developed, or generated during
contract performance, and when any portion of contract performance is
governed by the SBIR or STTR program (e.g., performance of one or more
subcontracts qualifies as a phase III SBIR or STTR award).
(2) For the remainder of the technical data or computer software
that is delivered, developed, or generated under the contract, use the
following clauses as applicable, in accordance with the prescriptions
for those clauses:
(i) 252.227-7013, Rights in Technical Data-Noncommercial Items.
(ii) 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
(iii) 252.227-7015, Technical Data-Commercial Items.
(b) Use the following provision in solicitations and the following
clauses in solicitations and contracts that include the clause at
252.227-7018, in accordance with the prescriptions for the provision
and clauses:
(1) 252.227-7016, Rights in Bid or Proposal Information.
(2) 252.227-7017, Identification and Assertion of Use, Release, or
Disclosure Restrictions.
(3) 252.227-7019, Validation of Asserted Restrictions-Computer
Software.
(4) 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information with Restrictive Markings.
(5) 252.227-7028, Technical Data or Computer Software Previously
Delivered to the Government.
(6) 252.227-7030, Technical Data-Withholding of Payment.
(7) 252.227-7037, Validation of Restrictive Markings on Technical
Data (paragraph (e) of the clause contains information that must be
included in a challenge).
(c)(1) Use the provision at 252.227-70XX, Additional Preaward
Requirements for Small Business Technology Transfer Program, in
solicitations that contain the clause at 252.227-70YY.
(2) Use the clause at 252.227-70YY, Additional Postaward
Requirements for
[[Page 77690]]
Small Business Technology Transfer Program, in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, for acquisitions
under the STTR Program.
227.7108 [Amended]
0
12. Amend section 227.7108--
0
a. In paragraph (a)(5), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place; and
0
b. In paragraphs (c) and (d), by removing ``legends'' and adding
``markings'' in their places.
227.7203-5 [Amended]
0
13. Amend section 227.7203-5--
0
a. In paragraph (b)(4) introductory text, by removing ``legends'' and
adding ``markings'' in its place;
0
b. In paragraph (b)(4)(ii), by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
c. In paragraph (b)(5), by removing ``legends'' and ``non-disclosure''
and adding ``markings'' and ``nondisclosure'' in their places,
respectively; and
0
d. In paragraph (b)(6), by removing ``legends'' and ``non-disclosure''
wherever it appears and adding ``markings'' and ``nondisclosure'' in
their places, respectively; and removing ``Commerce Business Daily''
and adding ``System for Award Management'' in its place.
227.7203-6 [Amended]
0
14. Amend section 227.7203-6--
0
a. In the section heading, by removing ``Contract clauses'' and adding
``Solicitation provisions and contract clauses'' in its place; and
0
b. In paragraph (d), by removing ``Information Marked with Restrictive
Legends'' and ``legend(s)'' and adding ``Information with Restrictive
Markings'' and ``marking(s)'' in their places, respectively.
227.7203-10 [Amended]
0
15. Amend section 227.7203-10--
0
a. In paragraph (b)(1), by removing ``legend'' and adding ``marking''
in its place; and
0
b. In paragraph (b)(2), by removing ``pre-existing'' and ``legend'' and
adding ``preexisting'' and ``marking'' in their places, respectively;
0
c. In paragraph (c)(2) introductory text, by removing ``legends'' and
``six months'' and adding ``markings'' and ``6 months'' in their
places, respectively; and
0
d. In paragraph (c)(3), by removing ``use or disclosure'' and adding
``use or disclosure that are consistent with the proposed restrictive
marking'' in its place.
227.7203-12 [Amended]
0
16. Amend section 227.7203-12 in paragraph (a)(1) by removing
``legend'' and adding ``marking'' in its place.
227.7203-15 [Amended]
0
17. Amend section 227.7203-15 in paragraph (c)(3) by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Markings'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
18. Amend section 252.227-7013--
0
a. By revising the section heading, introductory text, and clause date;
0
b. In paragraph (a)--
0
i. Removing the designations for paragraphs (a)(1) through (16) and
placing the definitions in alphabetical order;
0
ii. In the defined term ``Covered Government support contractor''--
0
A. In the introductory text, by removing ``effort (rather than to
directly furnish an end item or service to accomplish a program or
effort)'' and adding ``effort, rather than to directly furnish an end
item or service to accomplish a program or effort'' in its place;
0
B. By redesignating paragraphs (i) and (ii) as (1) and (2)
respectively; and
0
C. In newly redesignated paragraph (2) by removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iii. In the defined term ``Developed exclusively at private expense''
0
A. introductory text, by removing ``government'' and adding
``Government'' in its place, and
0
B. By redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively;
0
iv. In the defined term ``Developed exclusively with government
funds'', by removing ``government'' and adding ``Government'' in its
place;
0
v. By adding, in alphabetical order, the definition of ``Generated'';
0
vi. By revising the definition of ``Government purpose rights'';
0
vii. In the defined term ``Limited rights'' by--
0
A. Redesignating paragraphs (i) introductory text, (ii), and (iii) as
paragraphs (1) introductory text, (2), and (3), respectively;
0
B. In the newly redesignated paragraph (1) by redesignating paragraphs
(1)(A) and (B) introductory text as paragraphs (1)(i) and (ii)
introductory text, respectively; and
0
C. In the newly redesignated paragraph (1)(ii) by redesignating
paragraphs (1)(ii)(1) and (2) as paragraphs (1)(ii)(A) and (B),
respectively;
0
viii. By adding, in alphabetical order, the definition of ``Small
Business Innovation Research/Small Business Technology Transfer (SBIR/
STTR) data'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing
``the Rights in Noncommercial Computer Software and Noncommercial
Software Documentation'' and adding ``the DFARS 252.227-7014, Rights in
Noncommercial Computer Software Documentation,'' in its place;
0
f. In newly redesignated paragraph (c)(2)(i) introductory text, by
removing ``five-year'' and adding ``5-year'' in its place;
0
g. In newly redesignated paragraph (c)(2)(i)(A), by removing
``(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix)'' and adding
``(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)'' in its place;
0
h. In newly redesignated paragraph (c)(2)(ii), by removing ``five-
year'', wherever it appears, and ``(b)(2)(i)(B)'' and adding ``5-year''
and ``(c)(2)(i)(B)'' in their places, respectively;
0
i. In newly redesignated paragraph (c)(2)(iii)(A), by removing ``non-
disclosure'' and ``227.7103-7 of the Defense Federal Acquisition
Regulation Supplement (DFARS)'' and adding ``nondisclosure'' and
``DFARS 227.7103-7'' in their places, respectively;
0
j. In newly redesignated paragraph (c)(2)(iii)(B), by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Markings'' in its place;
0
k. In newly redesignated paragraph (c)(2)(iv), by removing ``legend''
and ``(f)(2)'' and adding ``marking'' and ``(g)(2)'' in their places,
respectively;
0
l. In newly redesignated paragraph (c)(3)(i) introductory text, by
removing ``(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix)'' and adding
``(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)'' in its place;
0
m. In newly redesignated paragraph (c)(3)(i)(A), by removing ``legend''
and ``(f)'' and adding ``marking'' and ``(g)'' in their places,
respectively;
0
n. In newly redesignated paragraph (c)(3)(iv)(C), by removing
``legend'' and ``non-disclosure'' wherever it appears and adding
``marking'' and ``nondisclosure'' in their places, respectively;
0
o. In newly redesignated paragraph (c)(3)(iv)(D), by removing ``non-
disclosure'' wherever it appears,
[[Page 77691]]
``252.227-7025'', and ``Information Marked with Restrictive Legends''
and adding ``nondisclosure'', ``DFARS 252.227-7025'', and ``Information
with Restrictive Markings'' in their places, respectively;
0
p. In newly redesignated paragraph (c)(4), by removing ``(b)(1) through
(b)(3)'' and ``in paragraph (a)(14)'' and adding ``(c)(1) through
(c)(3)'' and ``in the definition of ``limited rights'' '' in their
places, respectively;
0
q. In newly redesignated paragraph (c)(5) introductory text, by
removing ``pre-existing'' and adding ``preexisting'' in its place;
0
r. In newly redesignated paragraph (c)(6), by removing ``paragraph
(a)(14) or (b)(2)(iii)'', ``(b)(4)'', and ``legends'' and adding ``the
definition of ``limited rights'' or paragraph (c)(2)(iii)'',
``(c)(4)'', and ``markings'' in their places, respectively;
0
s. In newly redesignated paragraph (e), by removing ``paragraph (b)''
and adding ``paragraph (c)'' in its place;
0
t. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
u. In newly redesignated paragraph (f)(3), by --
0
A. Adding a heading to the table; and
0
B. in note 3, by removing ``SBIR'' and adding ``SBIR/STTR'' in its
place;
0
v. In paragraph (f)(4), by removing ``Validation of Restrictive
Markings on Technical Data'' and adding ``DFARS 252.227-7037,
Validation of Restrictive Markings on Technical Data,'' in its place;
0
w. By revising newly redesignated paragraph (g);
0
x. In newly redesignated paragraph (i)(1) and (2), by removing
``Validation of Restrictive Markings on Technical Data'' and adding
``DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
y. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and
adding ``(k)(1)'' in its place;
0
z. By revising newly redesignated paragraph (l) heading and paragraphs
(l)(1) and (2);
0
aa. By redesignating paragraphs (l)(3), (l)(4), and (l)(5) as
paragraphs (l)(4), (l)(5), and (l)(6), respectively;
0
bb. By adding a new paragraph (l)(3);
0
cc. In alternate I--
0
i. By revising the clause date and in the introductory text removing
``paragraph (l)'' and adding ``paragraph (m)'' in its place;
0
ii. In newly redesignated paragraph (m)(2), by removing ``paragraph
(l)'' and ``twenty-four (24)'' and adding ``paragraph (m)'' and ``24''
in their places, respectively;
0
dd. In alternate II by--
0
i. Revising the clause date and the introductory text; and
0
ii. Redesignating paragraphs (a)(17) and (b)(7) as paragraphs (a) and
(c)(7), respectively.
The revisions and additions read as follows:
252.227-7013 Rights in Technical Data--Noncommercial Items.
As prescribed in 227.7102-4(b) and 227.7103-6(a), use the following
clause:
Rights In Technical Data--Noncommercial Items (Date)
(a) * * *
Generated means, with regard to technical data or computer
software, first created in the performance of this contract.
* * * * *
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or
disclose technical data within the Government without restriction;
and
(2) Release or disclose technical data outside the Government
and authorize persons to whom release or disclosure has been made to
use, modify, reproduce, release, perform, display, or disclose that
data for United States Government purposes.
* * * * *
Small Business Innovation Research/Small Business Technology
Transfer (SBIR/STTR) data means all technical data or computer
software developed or generated in the performance of a phase I, II,
or III SBIR/STTR contract or subcontract.
* * * * *
(b) Applicability. (1) Except as provided in paragraph (b)(2) of
this clause, this clause will govern all technical data pertaining
to noncommercial items or to any portion of a commercial item that
was developed in any part at Government expense, and the clause at
Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-
7015, Technical Data--Commercial Items, will govern the technical
data pertaining to any portion of a commercial item that was
developed exclusively at private expense.
(2) The clause at DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
will govern technical data that are SBIR/STTR data.
* * * * *
(f) * * *
(3) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data
* * * * *
(g)(1) Marking requirements. The Contractor, and its
subcontractors or suppliers, shall apply asserted restrictions on
technical data delivered under this contract only by marking such
technical data. Except as provided in paragraph (g)(9) of this
clause, only the following restrictive markings are authorized under
this contract:
(i) The unlimited rights markings at paragraph (g)(5) of this
clause.
(ii) The government purpose rights marking at paragraph (g)(6)
of this clause.
(iii) The limited rights marking at paragraph (g)(7) of this
clause.
(iv) The special license rights marking at paragraph (g)(8) of
this clause.
(v) A notice of copyright in the format prescribed under 17
U.S.C. 401 or 402.
(2) Other restrictive markings. Any other restrictive markings,
including markings that describe restrictions placed on third-party
recipients of the technical data, are not authorized and are
nonconforming markings governed by paragraph (i)(2) of this clause.
(3) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate restrictive marking on all technical data that
qualify for such markings. The authorized restrictive markings shall
be placed on the transmittal document or storage container and, for
printed material, each page of the printed material containing
technical data for which restrictions are asserted. When only
portions of a page of printed material are subject to the asserted
restrictions, such portions shall be identified by circling,
underscoring, with a note, or other appropriate identifier.
Technical data transmitted directly from one computer or computer
terminal to another shall contain a notice of asserted restrictions.
Reproductions of technical data or any portions thereof subject to
asserted restrictions shall also reproduce the asserted
restrictions.
(4) Omitted markings. (i) Technical data delivered or otherwise
provided under this contract without restrictive markings shall be
presumed to have been delivered with unlimited rights. To the extent
practicable, if the Contractor has requested permission (see
paragraph (g)(4)(ii) of this clause) to correct an inadvertent
omission of markings, the Contracting Officer will not release or
disclose the technical data pending evaluation of the request.
(ii) The Contractor may request permission to have conforming
and justified restrictive markings placed on unmarked technical data
at its expense. The request must be received by the Contracting
Officer within 6 months following the furnishing or delivery of such
technical data, or any extension of that time approved by the
Contracting Officer. The Contractor shall--
(A) Identify the technical data that should have been marked;
(B) Demonstrate that the omission of the marking was
inadvertent, the proposed marking is justified and conforms with the
requirements for the marking of technical data contained in this
clause; and
(C) Acknowledge, in writing, that the Government has no
liability with respect to any disclosure, reproduction, or use of
the technical data made prior to the addition of the marking or
resulting from the omission of the marking.
(5) Unlimited rights markings. Technical data or computer
software delivered or otherwise furnished to the Government with
unlimited rights shall be marked as follows:
[[Page 77692]]
Unlimited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government has unlimited rights in this technical data or
computer software pursuant to DFARS 252.227-7013, Rights in
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; or DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause of the above identified contract, as applicable. This marking
must be included in any reproduction of this technical data,
computer software, or portions thereof.
(End of marking)
(6) Government purpose rights markings. Data delivered or
otherwise furnished to the Government with government purpose rights
shall be marked as follows:
Government Purpose Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (c)(2) of the DFARS 252.227-7013, Rights in Technical
Data--Noncommercial Items, clause contained in the above identified
contract. No restrictions apply after the expiration date shown
above. Any reproduction of technical data or portions thereof marked
with this marking must also reproduce the markings.
(End of marking)
(7) Limited rights markings. Data delivered or otherwise
furnished to the Government with limited rights shall be marked as
follows:
Limited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (c)(3) of the DFARS 252.227-7013, Rights in Technical
Data--Noncommercial Items, clause contained in the above identified
contract. Any reproduction of technical data or portions thereof
marked with this marking must also reproduce the markings. Any
person, other than the Government, who has been provided access to
such data must promptly notify the above named Contractor.
(End of marking)
(8) Special license rights markings. (i) Data in which the
Government's rights stem from a specifically negotiated license
shall be marked as follows:
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these data are restricted by Contract
Number [Insert contract number], License Number [Insert license
identifier]. Any reproduction of technical data or portions thereof
marked with this marking must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (c)(5) of this clause).
(9) Preexisting data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data deliverable under this contract, and those
restrictions are still applicable, the Contractor may mark such data
with the appropriate restrictive marking for which the data
qualified under the prior contract or license. The Contractor shall
follow the marking procedures in paragraph (g)(1) of this clause.
* * * * *
(l) Subcontractors or suppliers.
(1) The Contractor shall ensure that the rights afforded its
subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321,
15 U.S.C. 638(j)(1)(B)(iii) and (v), and the identification,
assertion, and delivery processes of paragraph (f) of this clause
are recognized and protected.
(2) Whenever any technical data for noncommercial items, or for
commercial items developed in any part at Government expense, are to
be obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use the
following clause(s) in the subcontract or other contractual
instrument, including subcontracts or other contractual instruments
for commercial items, and require its subcontractors or suppliers to
do so, without alteration, except to identify the parties:
(i)(A) Except as provided in paragraph (l)(2)(ii) of this
clause, use this clause to govern the technical data pertaining to
noncommercial items or to any portion of a commercial item that was
developed in any part at Government expense.
(B) Use the clause at DFARS 252.227-7015, Technical Data--
Commercial Items, to govern the technical data pertaining to any
portion of a commercial item that was developed exclusively at
private expense.
(ii) Use the clause at DFARS 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, to govern technical data that are SBIR/STTR data.
(3) No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher-tier subcontractor's or
supplier's rights in a subcontractor's or supplier's technical data.
* * * * *
Alternate I (Date)
* * * * *
Alternate II (Date)
As prescribed in 227.7103-6(b)(2), add the following definition
of ``Vessel design'' in alphabetical order to paragraph (a) and add
paragraph (c)(7) to the basic clause:
* * * * *
0
19. Amend section 252.227-7014--
0
a. By revising the section heading, introductory text, and the clause
date;
0
b. In paragraph (a)--
0
i. By removing the designations for paragraphs (a)(1) through (16) and
placing the definitions in alphabetical order;
0
ii. In the defined term ``Commercial computer software'', by--
0
A. Redesignating paragraphs (i) through (iv) as paragraphs (1) through
(4), respectively; and
0
B. In newly redesignated paragraph (4) by removing ``(a)(1)(i), (ii),
or (iii) of this clause'' and adding ``(1), (2), or (3) of this
definition'' in its place;
0
iii. In the defined term ``Covered Government support contractor'',
by--
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively; and
0
B. In newly redesignated paragraph (2) by removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iv. In the defined term ``Developed'', by redesignating paragraphs (i),
(ii), and (iii) as paragraphs (1), (2), and (3), respectively;
0
v. In the defined terms ``Developed exclusively at private expense''
and ``Government purpose rights'', by redesignating paragraphs (i) and
(ii) as paragraphs (1) and (2), respectively;
0
vi. In the defined term ``Noncommercial computer software'', by
removing ``under paragraph (a)(1) of this clause'' and adding ``under
the definition of ``commercial computer software'' of this clause'' in
its place;
0
vii. By revising the defined term ``Restricted rights'';
0
viii. By adding, in alphabetical order, the definition ``Small Business
Innovation Research/Small Business Technology Transfer (SBIR/STTR)
data'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing
``world-wide'' and adding ``worldwide'' in its place;
0
f. In newly redesignated paragraph (c)(2)(i), by removing ``(b)(1)''
and adding ``(c)(1)'' in its place;
0
g. In newly redesignated paragraph (c)(2)(ii), by removing ``five
years'' and ``five-year'' and adding ``5 years'' and ``5-year'' in
their places, respectively;
0
h. In newly redesignated paragraph (c)(2)(iii)(A), by removing ``non-
[[Page 77693]]
disclosure'' and adding ``nondisclosure'' in its place;
0
i. In newly redesignated paragraph (c)(2)(iii)(B), by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Markings'' in its place;
0
j. In newly redesignated paragraph (c)(3)(ii), by removing ``(b)(4)''
and adding ``(c)(4)'' in its place;
0
k. In newly redesignated paragraph (c)(3)(iii)(C), by removing
``legend'' and ``non-disclosure'' wherever it appears and adding
``marking'' and ``nondisclosure'' in their places, respectively;
0
l. In newly redesignated paragraph (c)(3)(iii)(D), by removing ``non-
disclosure'' wherever it appears, ``252.227-7025'', and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'', ``DFARS
252.227-7025'' and ``Information with Restrictive Markings'', in their
places, respectively;
0
m. By revising paragraph (c)(4)(i);
0
n. In paragraph (c)(5) introductory text, by removing ``pre-existing''
and adding ``preexisting'' in its place;
0
o. By revising paragraph (c)(6);
0
p. In newly redesignated paragraph (e) introductory text, by removing
``(b)'' and adding ``(c)'' in its place;
0
q. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
r. By revising newly redesignated paragraph (f)(3) table;
0
s. In newly redesignated paragraph (f)(4), by removing ``Validation of
Asserted Restrictions--Computer Software'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software,'' in its
place;
0
t. By revising newly redesignated paragraph (g);
0
u. In newly redesignated paragraph (i)(1), by removing ``Validation of
Asserted Restrictions--Computer Software and the Validation of
Restrictive Markings on Technical Data'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software, and the
DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
v. In newly redesignated paragraph (i)(2), by removing ``Validation of
Asserted Restrictions--Computer Software, or the Validation of
Restrictive Markings on Technical Data'' and ``sixty (60) days'' and
adding ``DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software, or the DFARS 252.227-7037, Validation of Restrictive
Markings on Technical Data,'' and ``60 days'' in their places,
respectively;
0
w. In newly redesignated paragraph (k)(2) introductory text, by
removing ``(j)(1)'' and adding ``(k)(1)'' in its place;
0
x. In newly redesignated paragraph (l), by revising the heading and
paragraph (1);
0
y. In newly redesignated paragraph (l)(3), by removing ``(e)'' and
adding ``(f)'' in its place;
0
z. In alternate I--
0
i. By revising the clause date;
0
ii. In the introductory text, by removing ``(l)'' and adding ``(m)'' in
its place;
0
iii. By redesignating paragraph (l) as paragraph (m);
0
iv. In newly redesignated paragraph (m)(2), by removing ``(l)'' and
``twenty-four (24) months'' and adding ``(m)'' and ``24 months'' in
their places, respectively.
The revisions and additions read as follows:
252.227-7014 Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
As prescribed in 227.7203-6(a)(1), use the following clause:
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation (Date)
(a) * * *
Restricted rights apply only to noncommercial computer software
and mean the Government's rights to--
(1) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(2) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of
this clause;
(3) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(4) Modify computer software provided that the Government may--
(i) Use the modified software only as provided in paragraphs (1)
and (3) of this definition; and
(ii) Not release or disclose the modified software except as
provided in paragraphs (2), (5), (6) and (7) of this definition;
(5) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations, provided that--
(i) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(ii) Such contractors or subcontractors are subject to the use
and nondisclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement (DFARS) or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Markings;
(iii) The Government shall not permit the recipient to
decompile, disassemble, or reverse engineer the software, or use
software decompiled, disassembled, or reverse engineered by the
Government pursuant to paragraph (4) of this definition, for any
other purpose; and
(iv) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition;
(6) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(i) The intended recipient is subject to the use and
nondisclosure agreement at DFARS 227.7103-7 or is a Government
contractor receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Markings;
(ii) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (4) of this definition, for any other purpose;
and
(iii) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition; and
(7) Permit covered Government support contractors in the
performance of covered Government support contracts that contain the
clause at 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information with Restrictive Markings, to use,
modify, reproduce, perform, display, or release or disclose the
computer software to a person authorized to receive restricted
rights computer software, provided that--
(i) The Government shall not permit the covered Government
support contractor to decompile, disassemble, or reverse engineer
the software, or use software decompiled, disassembled, or reverse
engineered by the Government pursuant to paragraph (4) of this
definition, for any other purpose; and
(ii) Such use is subject to the limitations in paragraphs (1)
through (4) of this definition.
Small Business Innovation Research/Small Business Technology
Transfer (SBIR/STTR)
[[Page 77694]]
data means all technical data or computer software developed or
generated in the performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
* * * * *
(b) Applicability. This clause governs all noncommercial
computer software or computer software documentation, except that
the clause at DFARS 252.227-7018, Rights in Noncommercial Technical
Data and Computer Software--Small Business Innovation Research
Program and Small Business Technology Transfer Program, will govern
any computer software or computer software documentation that is
SBIR/STTR data.
(c) * * *
(4) * * *
(i) The standard license rights granted to the Government under
paragraphs (c)(1) through (c)(3) of this clause, including the
period during which the Government shall have government purpose
rights in computer software, may be modified by mutual agreement to
provide such rights as the parties consider appropriate but shall
not provide the Government lesser rights in computer software than
are enumerated in the definition of ``restricted rights'' of this
clause, or lesser rights in computer software documentation than are
enumerated in the definition of ``limited rights'' of the DFARS
252.227-7013, Rights in Technical Data--Noncommercial Items, clause
of this contract.
* * * * *
(6) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of computer
software made in accordance with the definition of ``restricted
rights'' or paragraph (c)(2)(iii) of this clause, in accordance with
the terms of a license negotiated under paragraph (c)(4) of this
clause, or by others to whom the recipient has released or disclosed
the software, and to seek relief solely from the party who has
improperly used, modified, reproduced, released, performed,
displayed, or disclosed Contractor software marked with restrictive
markings.
* * * * *
(f) * * *
(3) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Computer Software
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Computer software to be
furnished with restrictions Basis for assertion \2\ Asserted rights category Name of person asserting
\1\ \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST) (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions on the Government's rights to use, release, or disclose computer software.
\2\ Indicate whether development was exclusively or partially at private expense. If development was not at
private expense, enter the specific reason for asserting that the Government's rights should be restricted.
\3\ Enter asserted rights category (e.g., restricted or government purpose rights in computer software,
government purpose license rights from a prior contract, rights in SBIR/STTR data generated under another
contract, or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
* * * * *
(g)(1) Marking requirements. The Contractor, and its
subcontractors or suppliers, shall apply asserted restrictions on
computer software or computer software documentation delivered under
this contract only by marking such software or documentation. Except
as provided in paragraph (g)(9) of this clause, only the following
restrictive markings are authorized under this contract:
(i) The unlimited rights marking at paragraph (g)(5) of this
clause;
(ii) The government purpose rights marking at paragraph (g)(6)
of this clause;
(iii) The restricted rights marking at paragraph (g)(7) of this
clause;
(iv) The special license rights marking at paragraph (g)(8) of
this clause; or
(v) A notice of copyright in the format prescribed under 17
U.S.C. 401 or 402.
(2) Other restrictive markings. Any other restrictive markings,
including markings that describe restrictions placed on third-party
recipients of the computer software or computer software
documentation, are not authorized and shall be deemed nonconforming
markings governed by paragraph (i)(2) of this clause.
(3) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate restrictive marking on all computer software that
qualify for such markings. The authorized restrictive marking shall
be placed on the transmitted document or software storage container
and each page, or portions thereof, of printed material containing
computer software for which restrictions are asserted. Computer
software transmitted directly from one computer or computer terminal
to another shall contain a notice of asserted restrictions. However,
instructions that interfere with or delay the operation of computer
software in order to display a restrictive rights marking or other
license statement at any time prior to or during use of the computer
software, or otherwise cause such interference or delay, shall not
be inserted in software that will or might be used in combat or
situations that simulate combat conditions, unless the Contracting
Officer's written permission to deliver such software has been
obtained prior to delivery. Reproductions of computer software or
any portions thereof subject to asserted restrictions, shall also
reproduce the asserted restrictions.
(4) Omitted markings. (i) Computer software or computer software
documentation delivered or otherwise provided under this contract
without restrictive markings shall be presumed to have been
delivered with unlimited rights. To the extent practicable, if the
Contractor has requested permission (see paragraph (g)(4)(ii) of
this clause) to correct an inadvertent omission of markings, the
Contracting Officer will not release or disclose the software or
documentation pending evaluation of the request.
(ii) The Contractor may request permission to have conforming
and justified restrictive markings placed on unmarked computer
software or computer software documentation at its expense. The
request must be received by the Contracting Officer within 6 months
following the furnishing or delivery of such software or
documentation, or any extension of that time approved by the
Contracting Officer. The Contractor shall--
(A) Identify the software or documentation that should have been
marked;
(B) Demonstrate that the omission of the marking was
inadvertent, the proposed marking is justified and conforms with the
requirements for the marking of computer software or computer
software documentation contained in this clause; and
(C) Acknowledge, in writing, that the Government has no
liability with respect to any disclosure, reproduction, or use of
the software or documentation made prior to the addition of the
marking or resulting from the omission of the marking.
(5) Unlimited rights markings. Technical data or computer
software delivered or otherwise furnished to the Government with
unlimited rights shall be marked as follows:
Unlimited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government has unlimited rights in these technical data or
this computer software pursuant to the DFARS 252.227-7013, Rights in
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; or DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause of the above identified contract, as applicable. This marking
must be included in
[[Page 77695]]
any reproduction of these technical data, computer software, or
portions thereof.
(End of marking)
(6) Government purpose rights markings. Computer software
delivered or otherwise furnished to the Government with government
purpose rights shall be marked as follows:
Government Purpose Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (c)(2) of the DFARS 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause contained in the above identified contract. No restrictions
apply after the expiration date shown above. Any reproduction of the
software or portions thereof marked with this marking must also
reproduce the markings.
(End of marking)
(7) Restricted rights markings. Software delivered or otherwise
furnished to the Government with restricted rights shall be marked
as follows:
Restricted Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (c)(3) of the DFARS 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause contained in the above identified contract. Any reproduction
of computer software or portions thereof marked with this marking
must also reproduce the markings. Any person, other than the
Government, who has been provided access to such software must
promptly notify the above named Contractor.
(End of marking)
(8) Special license rights markings. (i) Computer software or
computer documentation in which the Government's rights stem from a
specifically negotiated license shall be marked as follows:
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
Contract Number [Insert contract number], License Number [Insert
license identifier]. Any reproduction of computer software, computer
software documentation, or portions thereof marked with this marking
must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (c)(5) of this clause).
(9) Preexisting markings. If the terms of a prior contract or
license permitted the Contractor to restrict the Government's rights
to use, modify, release, perform, display, or disclose computer
software or computer software documentation and those restrictions
are still applicable, the Contractor may mark such software or
documentation with the appropriate restrictive marking for which the
software qualified under the prior contract or license. The
Contractor shall follow the marking procedures in paragraph (g)(1)
of this clause.
* * * * *
(l) Subcontractors or suppliers.
(1)(i) Except as provided in paragraph (l)(1)(ii) of this
clause, whenever any noncommercial computer software or computer
software documentation is to be obtained from a subcontractor or
supplier for delivery to the Government under this contract, the
Contractor shall use this clause in its subcontracts or other
contractual instruments, and require its subcontractors or suppliers
to do so, without alteration, except to identify the parties.
(ii) The Contractor shall use the clause at DFARS 252.227-7018,
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program, to govern computer software or computer software
documentation that is SBIR/STTR data.
(iii) No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher tier subcontractor's or
supplier's rights in a subcontractor's or supplier's computer
software or computer software documentation.
* * * * *
Alternate I (Date)
* * * * *
0
20. Amend section 252.227-7015--
0
a. By revising the section heading and the clause date;
0
b. In paragraph (a)--
0
i. By removing the designations of paragraphs (a)(1) through (5) and
placing in alphabetical order;
0
ii. In the defined term ``Covered Government support contractor'', by
--
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively; and
0
B. In newly redesignated paragraph (2) removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iii. In the defined term ``The term item'', by removing ``The term
item'' and adding ``Item'' in its place;
0
c. By redesignating paragraphs (b) through (e) as paragraphs (c)
through (f), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c)(2) introductory text, by
removing ``(b)(1)'' and adding ``(c)(1)'' in its place;
0
f. In newly redesignated paragraph (c)(3)(i), by removing ``(b)(2)''
and adding ``(c)(2)'' in its place;
0
g. In newly redesignated paragraph (c)(3)(iii), by removing
``restrictive legend'', ``non-disclosure'' and ``an non-disclosure''
and adding ``restrictive marking'', ``nondisclosure'', and ``a
nondisclosure'' in their places, respectively;
0
h. In newly redesignated paragraph (c)(3)(iv), by removing ``non-
disclosure'' wherever it appears and ``252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding ``nondisclosure'' and ``DFARS 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Markings'' in their places, respectively;
0
i. In newly redesignated paragraph (e), by adding a new sentence at the
end of the paragraph;
0
j. By revising newly redesignated paragraph (f);
0
k. In Alternate I by--
0
i. Revising the clause date and the introductory text; and
0
ii. Redesignating paragraphs (a)(6) and (b)(4) as paragraphs (a) and
(c)(4), respectively;
The revisions and additions read as follows:
252.227--7015 Technical Data--Commercial Items.
* * * * *
Technical Data--Commercial Items (Date)
* * * * *
(b) Applicability. This clause will govern the technical data
pertaining to any portion of a commercial item that was developed
exclusively at private expense. If the commercial item was developed
in any part at Government expense--
(1) The clause at Defense Federal Acquisition Regulation
Supplement (DFARS) 252.227-7018, Rights in Noncommercial Technical
Data and Computer Software--Small Business Innovation Research
Program and Small Business Technology Transfer Program, will govern
technical data that are generated during any portion of performance
that is covered under the Small Business Innovation Research (SBIR)
Program or Small Business Technology Transfer (STTR) Program; and
(2) The clause at DFARS 252.227-7013, Rights in Technical Data--
Noncommercial Items, will govern the technical data pertaining to
any portion of a commercial item that was developed in any part at
Government expense and is not covered under the SBIR or STTR
program.
* * * * *
(e) * * * The Contractor shall ensure that restrictive markings
on technical data accurately reflect the rights granted to the
Government.
(f) Subcontractors or suppliers.
(1) The Contractor shall recognize and protect the rights
afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10
[[Page 77696]]
U.S.C. 2321, and 15 U.S.C. 638(j)(1)(B)(iii) and (v).
(2) Whenever any technical data related to commercial items
developed in any part at private expense will be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the Contractor shall use this clause in the subcontract or
other contractual instrument, including subcontracts and other
contractual instruments for commercial items, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties. This clause will govern the technical data
pertaining to any portion of a commercial item that was developed
exclusively at private expense, and the Contractor shall use the
following clauses to govern the technical data pertaining to any
portion of a commercial item that was developed in any part at
Government expense:
(i) Use the clause at DFARS 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, to govern technical data that are generated during any
portion of performance that is covered under the SBIR or STTR
program.
(ii) Use the clause at DFARS 252.227-7013, Rights in Technical
Data--Noncommercial Items, to govern any technical data that are not
generated during any portion of performance that is covered under
the SBIR or STTR program.
* * * * *
Alternate I (Date)
As prescribed in 227.7102-4(a)(2), add the following definition
of ``Vessel design'' in alphabetical order to paragraph (a) and add
paragraph (c)(4) to the basic clause:
0
21. Amend section 252.227-7016 by--
0
a. Revising the section heading, introductory text, and clause date;
0
b. Revising paragraph (a); and
0
c. Revising paragraph (c)(2).
The revisions read as follows:
252.227-7016 Rights in Bid or Proposal Information.
As prescribed in 227.7103-6(e)(1), 227.7104-4(b)(1), or 227.7203-
6(b), use the following clause:
Rights in Bid or Proposal Information (Date)
(a) Definitions. As used in this clause--
Computer software--
(1) Is defined in the 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause of this contract; or
(2) If this is a contract awarded under the Small Business
Innovation Research Program or Small Business Technology Transfer
Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this contract.
Technical data--
(1) Is defined in the 252.227-7013, Rights in Technical Data--
Noncommercial Items, clause of this contract; or
(2) If this is a contract awarded under the Small Business
Innovation Research Program or Small Business Technology Transfer
Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this contract.
* * * * *
(c) * * *
(2) The Government's right to use, modify, reproduce, release,
perform, display, or disclose information that is technical data or
computer software required to be delivered under this contract are
determined by the Defense Federal Acquisition Regulation Supplement
(DFARS) 252.227-7013, Rights in Technical Data--Noncommercial Items;
DFARS 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation; or DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, clause of this contract.
* * * * *
0
22. Amend section 252.227-7017 by--
0
a. Revising the section heading, introductory text, and clause date;
0
b. Revising paragraphs (a) and (b);
0
c. Removing from paragraph (d) introductory text ``suppliers shall''
and adding ``suppliers, shall'' in its place; and
0
d. Revising the paragraph (d) table.
The revisions read as follows:
252.227-7017 Identification and Assertion of Use, Release, or
Disclosure Restrictions.
As prescribed in 227.7103-3(b), 227.7104-4(b)(2), or 227.7203-3(a),
use the following provision:
Identification and Assertion of Use, Release, or Disclosure
Restrictions (Date)
(a) Definitions. As used in this provision--Computer software--
(1) Is defined in the 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause of this solicitation; or
(2) If this solicitation contemplates a contract under the Small
Business Innovation Research Program or Small Business Technology
Transfer Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this solicitation.
Technical data--
(1) Is defined in the 252.227-7013, Rights in Technical Data--
Noncommercial Items, clause of this solicitation; or
(2) If this solicitation contemplates a contract under the Small
Business Innovation Research Program or Small Business Technology
Transfer Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this solicitation.
(b) The identification and assertion requirements in this
provision apply only to technical data, including computer software
documentation, or computer software to be delivered with other than
unlimited rights. For contracts to be awarded under the Small
Business Innovation Research (SBIR) Program or Small Business
Technology Transfer (STTR) Program), these requirements apply to
SBIR/STTR data that will be generated under the resulting contract
and will be delivered with SBIR/STTR data rights and to any other
data that will be delivered with other than unlimited rights.
Notification and identification are not required for restrictions
based solely on copyright.
(d) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data or Computer Software
The Offeror asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the
following technical data or computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Technical data or computer
software to be furnished Basis for assertion \2\ Asserted rights category Name of person asserting
with restrictions \1\ \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST) \5\ (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ For technical data (other than computer software documentation) pertaining to items, components, or
processes developed at private expense, identify both the deliverable technical data and each such item,
component, or process. For computer software or computer software documentation identify the software or
documentation.
[[Page 77697]]
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions. For technical data, other than computer software documentation, development refers to
development of the item, component, or process to which the data pertain. The Government's rights in computer
software documentation generally may not be restricted. For computer software, development refers to the
software. Indicate whether development was accomplished exclusively or partially at private expense. If
development was not accomplished at private expense, or for computer software documentation, enter the
specific basis for asserting restrictions.
\3\ Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in
SBIR/STTR data generated under a contract resulting from this solicitation or under another contract, limited,
restricted, or government purpose rights under a contract resulting from this solicitation or under a prior
contract, or specially negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
\5\ Enter ``none'' when all data or software will be submitted without restrictions.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
* * * * *
0
23. Amend section 252.227-7018--
0
a. By revising the section heading, introductory text, clause title,
and date;
0
b. In paragraph (a)--
0
i. By removing designations for paragraphs (a)(1) through (16) and
placing in alphabetical order;
0
ii. In the defined term ``Commercial computer software'', by:
0
A. Redesignating paragraphs (i) through (iv) as paragraphs (1) and (4),
respectively; and
0
B. In newly redesignated paragraph (4) by removing ``(a)(1)(i) or (iii)
of this clause'' and adding ``(1), (2), or (3) of this definition'' in
its place;
0
iii. In the defined term ``Covered Government support contractor'', by:
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively; and
0
B. In newly redesignated paragraph (2) by removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iv. In the defined term ``Developed'', by redesignating paragraphs (i)
through (iv) as paragraphs (1) through (4), respectively;
0
v. In the defined term ``Developed exclusively at private expense'', by
redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively;
0
vi. Adding, in alphabetical order, the definition of ``Government
purpose rights'';
0
vii. In the defined term ``limited rights'', by:
0
A. Redesignating paragraphs (i) through (iii) as paragraphs (1) through
(3), respectively;
0
B. In newly redesignated paragraph (1) by redesignating paragraphs
(1)(A) and (B) as paragraphs (1)(i) and (ii), respectively;
0
C. In newly redesignated paragraph (1)(ii) by redesignating paragraphs
(1)(ii)(1) and (2) as paragraphs (1)(ii)(A) and (B), respectively;
0
viii. In the defined term ``Noncommercial computer software'', by
removing ``paragraph (a)(1) of this clause'' and adding ``the
``commercial computer software'' definition of this clause'' in its
place;
0
ix. By revising the defined term ``Restricted rights'';
0
x. By adding, in alphabetical order, definitions for ``Small Business
Innovation Research/Small Business Technology Transfer (SBIR/STTR)
data'' and ``SBIR/STTR data protection period'';
0
xi. By removing the defined term ``SBIR data rights'' and adding, in
alphabetical order, the definition of ``SBIR/STTR data rights'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing
``world-wide'' and adding ``worldwide'' in its place;
0
f. In newly redesignated paragraph (c)(1), by removing ``data,
including computer software documentation, or computer software
generated under this contract'' and adding ``data or computer software,
including such data generated under this contract,'' in its place;
0
g. In newly redesignated paragraph (c)(1)(iv), by removing ``use,
release'' and adding ``use, release,'' in its place.
0
h. By revising newly redesignated paragraph (c)(1)(v);
0
i. By redesignating newly redesignated paragraph (c)(1)(vi) as
paragraph (c)(1)(vii);
0
j. By adding a new paragraph (c)(1)(vi);
0
k. By revising newly redesignated paragraph (c)(1)(vii);
0
l. By redesignating newly redesignated paragraphs (c)(2) through (8) as
paragraphs (c)(3) through (9), respectively;
0
m. By adding a new paragraph (c)(2);
0
n. In newly redesignated paragraph (c)(3), by removing ``(f)(1)'',
``legend'', and ``(f)(2)'' and adding ``(g)(1)'', ``restrictive
marking'', and ``(g)(3)'' in their places, respectively;
0
o. By revising newly redesignated paragraphs (c)(5) and (c)(6);
0
p. In newly redesignated paragraph (c)(7) introductory text, by
removing ``pre-existing'' and adding ``preexisting'' in its place;
0
q. By revising newly redesignated paragraph (c)(8);
0
r. In newly redesignated paragraph (c)(9)(iii), by removing ``non-
disclosure'', ``legend'', and ``an non-disclosure'' and adding
``nondisclosure'', ``marking'', and ``a nondisclosure'' in their
places, respectively;
0
s. In newly redesignated paragraph (c)(9)(iv), by removing ``non-
disclosure'' wherever it appears, ``252.227-7025'', and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'', ``DFARS
252.227-7025'', and ``Information with Restrictive Markings'' in their
places, respectively;
0
t. In newly redesignated paragraph (e) introductory text, by removing
``(b)'' and adding ``(c)'' in its place;
0
u. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
v. By revising the paragraph (f)(3) table;
0
w. In newly redesignated paragraph (f)(4), by removing ``Validation of
Asserted Restrictions--Computer Software and/or Validation of
Restrictive Markings on Technical Data'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software, and/or
DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
x. By revising paragraph (g);
0
y. In newly redesignated paragraph (i)(1), by removing ``Validation of
Restrictive Markings on Technical Data and the Validation of Asserted
Restrictions--Computer Software'' and adding ``DFARS 252.227-7037,
Validation of Restrictive Markings on Technical Data, and the DFARS
252.227-7019, Validation of Asserted Restrictions--Computer Software,''
in its place;
0
z. In newly redesignated paragraph (i)(2), by removing ``Validation of
Restrictive Markings on Technical Data or the Validation of Asserted
Restrictions--Computer Software'' and ``(sixty (6)) days'' and adding
``DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data, or the DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software,'' and ``60 days'' in their places, respectively;
[[Page 77698]]
0
aa. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and
adding ``(k)(1)'' in its place;
0
bb. In newly redesignated paragraph (l), by revising the heading and
paragraphs (l)(1) and (2); and
0
cc. By removing Alternate I.
The revisions and additions read as follows:
252.227-7018 Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovation Research Program and Small Business
Technology Transfer Program.
As prescribed in 227.7104-4(a), use the following clause:
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technlogy
Transfer Program (Date)
(a) * * *
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or
disclose technical data or computer software within the Government
without restriction; and
(2) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to use, modify, reproduce, release,
perform, display, or disclose that data for United States Government
purposes.
* * * * *
Restricted rights apply only to noncommercial computer software
and mean the Government's rights to--
(1) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(2) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of
this clause;
(3) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(4) Modify computer software provided that the Government may--
(i) Use the modified software only as provided in paragraphs (1)
and (3) of this definition; and
(ii) Not release or disclose the modified software except as
provided in paragraphs (2), (5), (6), and (7) of this definition;
(5) Permit contractors or subcontractors performing service
contracts (see 37.101 of the Federal Acquisition Regulation) in
support of this or a related contract to use computer software to
diagnose and correct deficiencies in a computer program, to modify
computer software to enable a computer program to be combined with,
adapted to, or merged with other computer programs or when necessary
to respond to urgent tactical situations, provided that--
(i) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(ii) Such contractors or subcontractors are subject to the
nondisclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement or are Government contractors
receiving access to the software for performance of a Government
contract that contains the clause at 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information with
Restrictive Markings;
(iii) The Government shall not permit the recipient to
decompile, disassemble, or reverse engineer the software, or use
software decompiled, disassembled, or reverse engineered by the
Government pursuant to paragraph (4) of this definition, for any
other purpose; and
(iv) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition;
(6) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(i) The intended recipient is subject to the nondisclosure
agreement at 227.7103-7 or is a Government contractor receiving
access to the software for performance of a Government contract that
contains the clause at 252.227-7025, Limitations on the Use or
Disclosure of Government Furnished Information with Restrictive
Markings;
(ii) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (4) of this definition, for any other purpose;
and
(iii) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition; and
(7) Permit covered Government support contractors in the
performance of Government contracts that contain the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Markings, to use, modify,
reproduce, perform, display, or release or disclose the computer
software to a person authorized to receive restricted rights
computer software, provided that--
(i) The Government shall not permit the covered Government
support contractor to decompile, disassemble, or reverse engineer
the software, or use software decompiled, disassembled, or reverse
engineered by the Government pursuant to paragraph (4) of this
definition, for any other purpose; and
(ii) Such use is subject to the limitations in paragraphs (1)
through (4) of this definition.
Small Business Innovation Research/Small Business Technology
Transfer (SBIR/STTR) data means all technical data or computer
software developed or generated in the performance of a phase I, II,
or III SBIR/STTR contract or subcontract.
SBIR/STTR data protection period means the period of time during
which the Government is obligated to protect SBIR/STTR data against
unauthorized use and disclosure in accordance with SBIR/STTR data
rights. The SBIR/STTR data protection period begins on the date of
award of the contract under which the SBIR/STTR data are developed
or generated and ends 20 years after that date unless, subsequent to
the award, the agency and the Contractor negotiate for some other
protection period for the SBIR/STTR data developed or generated
under that contract.
SBIR/STTR data rights means the Government's rights, during the
SBIR/STTR data protection period, in SBIR/STTR data covered by
paragraph (c)(5) of this clause, as follows:
(1) Limited rights in such SBIR/STTR technical data; and
(2) Restricted rights in such SBIR/STTR computer software.
* * * * *
(b) Applicability. This clause will govern all SBIR/STTR data.
For any data that are not SBIR/STTR data--
(1) The Defense Federal Acquisition Regulation Supplement
(DFARS) clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, will govern the technical data pertaining to
noncommercial items or to any portion of a commercial item that was
developed in any part at Government expense, and the DFARS clause at
252.227-7015, Technical Data--Commercial Items, will govern the
technical data pertaining to any portion of a commercial item that
was developed exclusively at private expense;
(2) The DFARS clause at 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
will govern noncommercial computer software and computer software
documentation; and
(3) A license consistent with DFARS 227.7202 will govern
commercial computer software and commercial computer software
documentation.
* * * * *
(c) * * *
(1) * * *
(v) Technical data or computer software in which the Government
has acquired previously unlimited rights under another Government
contract or as a result of negotiations;
(vi) Technical data or computer software furnished to the
Government, under this or any other Government contract or
subcontract thereunder, with license rights for which all
restrictive conditions on the Government have expired; and
(vii) Computer software documentation generated or required to
be delivered under this contract.
(2) Government purpose rights. (i) The Government shall have
government purpose rights for the period specified in paragraph
(c)(2)(ii) of this clause in data that are--
(A) Not SBIR/STTR data, and are--
(1) Technical data pertaining to items, components, or processes
developed with mixed funding, or are computer software developed
with mixed funding, except when
[[Page 77699]]
the Government is entitled to unlimited rights in such data as
provided in paragraph (c)(1) of this clause;
(2) Created with mixed funding in the performance of a contract
that does not require the development, manufacture, construction, or
production of items, components, or processes; or
(B) SBIR/STTR data, upon expiration of the SBIR/STTR data
protection period.
(ii)(A) For the non-SBIR/STTR data described in paragraph
(c)(2)(i)(A) of this clause, the Government shall have government
purpose rights for a period of 5 years, or such other period as may
be negotiated. This period shall commence upon award of the
contract, subcontract, letter contract (or similar contractual
instrument), or contract modification (including a modification to
exercise an option) that required development of the items,
components, or processes, or creation of the data described in
paragraph (c)(2)(i)(A)(2) of this clause. Upon expiration of the 5-
year or other negotiated period, the Government shall have unlimited
rights in the data.
(B) For the SBIR/STTR data described in paragraph (c)(2)(i)(B)
of this clause, the Government shall have government purpose rights
perpetually or for such other period as may be negotiated. This
Government purpose rights period commences upon the expiration of
the SBIR/STTR data protection period. Upon expiration of any such
negotiated government purpose rights period, the Government shall
have unlimited rights in the data.
(iii) The Government shall not release or disclose data in which
it has government purpose rights unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the nondisclosure agreement at DFARS 227.7103-7; or
(B) The recipient is a Government contractor receiving access to
the data for performance of a Government contract that contains the
clause at DFARS 252.227-7025, Limitations on the Use or Disclosure
of Government-Furnished Information with Restrictive Markings.
(iv) The Contractor has the exclusive right, including the right
to license others, to use technical data in which the Government has
obtained government purpose rights under this contract for any
commercial purpose during the time period specified in the
government purpose rights marking prescribed in paragraph (g)(2) of
this clause.
* * * * *
(5) SBIR/STTR data rights. Except for technical data, including
computer software documentation, or computer software in which the
Government has unlimited rights under paragraph (c)(1) of this
clause, the Government shall have SBIR/STTR data rights, during the
SBIR/STTR data protection period of this contract, in all SBIR/STTR
data developed or generated under this contract. This protection
period is not extended by any subsequent SBIR/STTR contracts under
which any portion of that SBIR/STTR data is used or delivered. The
SBIR/STTR data protection period of any such subsequent SBIR/STTR
contract applies only to the SBIR/STTR data that are developed or
generated under that subsequent contract. The SBIR/STTR data
protection period is governed by the version of this clause that is
incorporated in the contract under which the SBIR/STTR data are
developed or generated. If the SBIR/STTR data were developed or
generated under a contract that included a previous version of this
clause, then the SBIR/STTR data protection period is governed by
that previous version of this clause.
(6) Specifically negotiated license rights. The standard license
rights granted to the Government under paragraphs (c)(1) through
(c)(5) of this clause may be modified by mutual agreement to provide
such rights as the parties consider appropriate but shall not
provide the Government lesser rights in technical data, including
computer software documentation, than are enumerated in the
definition of ``limited rights'' of this clause or lesser rights in
computer software than are the definition of ``restricted rights''
of this clause. Any rights so negotiated shall be identified in a
license agreement made part of this contract.
* * * * *
(8) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of technical
data, computer software, or computer software documentation made in
accordance with the definitions of ``Government purpose,''
``noncommercial computer software,'' or paragraph (c)(5) of this
clause, or in accordance with the terms of a license negotiated
under paragraph (c)(6) of this clause, or by others to whom the
recipient has released or disclosed the data, software, or
documentation and to seek relief solely from the party who has
improperly used, modified, reproduced, released, performed,
displayed, or disclosed Contractor data or software marked with
restrictive markings.
* * * * *
(f) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data or Computer Software
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following technical data or computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Technical data or Computer
software to be furnished Basis for assertion \2\ Asserted Rights category Name of person asserting
with restrictions \1\ \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST) \5\ (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components, or processes developed at private expense, identify
both the technical data and each such item, component, or process.
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions on the Government's rights to use, release, or disclose technical data or computer software.
Indicate whether development was accomplished exclusively or partially at private expense. If development was
not at private expense enter the specific reason for asserting that the Government's rights should be
restricted.
\3\ Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or
government purpose license rights from a prior contract, SBIR/STTR data rights under this or another contract,
or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
* * * * *
(g)(1) Marking requirements. The Contractor, and its
subcontractors or suppliers, shall apply asserted restrictions on
technical data or computer software delivered under this contract
only by marking such technical data or software. Except as provided
in paragraph (g)(11) of this clause, only the following restrictive
markings are authorized under this contract:
(i) The unlimited rights marking at paragraph (g)(5) of this
clause.
(ii) The government purpose rights marking at paragraph (g)(6)
of this clause.
(iii) The limited rights marking at paragraph (g)(7) of this
clause.
(iv) The restricted rights marking at paragraph (g)(8) of this
clause.
(v) The SBIR/STTR data rights marking at paragraph (g)(9) of
this clause.
(vi) The special license rights marking at paragraph (g)(10) of
this clause.
(vii) A notice of copyright in the format prescribed under 17
U.S.C. 401 or 402.
(2) Other restrictive makings. Any other restrictive markings,
including markings that describe restrictions placed on third-party
recipients of the technical data or computer software, are not
authorized and shall be deemed nonconforming markings governed by
paragraph (i)(2) of this clause.
(3) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate restrictive marking to all technical data and
computer software that qualify for such markings. The authorized
restrictive markings shall be placed on the
[[Page 77700]]
transmittal document or storage container and, for printed material,
each page of the printed material containing technical data or
computer software for which restrictions are asserted. When only
portions of a page of printed material are subject to the asserted
restrictions, such portions shall be identified by circling,
underscoring, with a note, or other appropriate identifier.
Technical data or computer software transmitted directly from one
computer or computer terminal to another shall contain a notice of
asserted restrictions. However, instructions that interfere with or
delay the operation of computer software in order to display a
restrictive rights marking or other license statement at any time
prior to or during use of the computer software, or otherwise cause
such interference or delay, shall not be inserted in software that
will or might be used in combat or situations that simulate combat
conditions, unless the Contracting Officer's written permission to
deliver such software has been obtained prior to delivery.
Reproductions of technical data, computer software, or any portions
thereof subject to asserted restrictions shall also reproduce the
asserted restrictions.
(4) Omitted markings. (i) Technical data, computer software, or
computer software documentation delivered or otherwise provided
under this contract without restrictive markings shall be presumed
to have been delivered with unlimited rights. To the extent
practicable, if the Contractor has requested permission (see
paragraph (g)(4)(ii) of this clause) to correct an inadvertent
omission of markings, the Contracting Officer will not release or
disclose the technical data, software, or documentation pending
evaluation of the request.
(ii) The Contractor may request permission to have conforming
and justified restrictive markings placed on unmarked technical
data, computer software, or computer software documentation at its
expense. The request must be received by the Contracting Officer
within 6 months following the furnishing or delivery of such
technical data, software, or documentation, or any extension of that
time approved by the Contracting Officer. The Contractor shall--
(A) Identify the technical data, software, or documentation that
should have been marked;
(B) Demonstrate that the omission of the marking was
inadvertent, the proposed marking is justified and conforms with the
requirements for the marking of technical data, computer software,
or computer software documentation contained in this clause; and
(C) Acknowledge, in writing, that the Government has no
liability with respect to any disclosure, reproduction, or use of
the technical data, software, or documentation made prior to the
addition of the marking or resulting from the omission of the
marking.
(5) Unlimited rights markings. Technical data or computer
software delivered or otherwise furnished to the Government with
unlimited rights shall be marked as follows:
Unlimited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government has unlimited rights in these technical data or
this computer software pursuant to DFARS 252.227-7013, Rights in
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; or DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause of the above identified contract, as applicable. This marking
must be included in any reproduction of these technical data,
computer software, or portions thereof. (End of marking)
(6) Government purpose rights markings. Technical data or
computer software delivered or otherwise furnished to the Government
with government purpose rights shall be marked as follows:
Government Purpose Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data or computer
software are restricted by paragraph (c)(2) of the DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, clause contained in the above
identified contract. No restrictions apply after the expiration date
shown above. Any reproduction of technical data or computer software
or portions thereof marked with this restrictive marking must also
reproduce the markings.
(End of marking)
(7) Limited rights markings. Technical data not generated under
this contract that pertain to items, components, or processes
developed exclusively at private expense and delivered or otherwise
furnished with limited rights shall be marked as follows:
Limited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (c)(3) of the DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause contained in the above identified contract. Any reproduction
of technical data or portions thereof marked with this restrictive
marking must also reproduce the markings. Any person, other than the
Government, who has been provided access to such data must promptly
notify the above named Contractor.
(End of marking)
(8) Restricted rights markings. Computer software delivered or
otherwise furnished to the Government with restricted rights shall
be marked as follows:
Restricted Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (c)(4) of the DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause contained in the above identified contract. Any reproduction
of computer software or portions thereof marked with this
restrictive marking must also reproduce the markings. Any person,
other than the Government, who has been provided access to such
software must promptly notify the above named Contractor.
(End of marking)
(9) SBIR/STTR data rights markings. Except for technical data or
computer software in which the Government has acquired unlimited
rights under paragraph (c)(1) of this clause or negotiated special
license rights as provided in paragraph (c)(6) of this clause,
technical data or computer software generated under this contract
shall be marked as follows. The Contractor shall enter the
expiration date for the SBIR/STTR data protection period on the
marking:
SBIR/STTR Data Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration of SBIR/STTR Data Protection Period-------------------------
Expiration of the Government Purpose Rights Period---------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose technical data or computer software
marked with this restrictive marking are restricted during the
period shown as provided in paragraph (c)(5) of the DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, clause contained in the above
identified contract. After the SBIR/STTR data protection period
expiration date shown above, the Government has perpetual government
purpose rights as provided in paragraph (c)(4) of that clause,
unless otherwise indicated by the government purpose rights
expiration date shown above. Any reproduction of technical data,
computer software, or portions thereof marked with this restrictive
marking must also reproduce the markings.
(End of marking)
(10) Special license rights markings.
(i) Technical data or computer software in which the
Government's rights stem from a specifically negotiated license
shall be marked as follows:
[[Page 77701]]
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this technical data or computer
software are restricted by Contract Number [Insert contract number],
License Number [Insert license identifier]. Any reproduction of
technical data, computer software, or portions thereof marked with
this restrictive marking must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (c)(7) of this clause).
(11) Preexisting data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data or computer software, and those restrictions
are still applicable, the Contractor may mark such data or software
with the appropriate restrictive marking for which the data or
software qualified under the prior contract or license. The
Contractor shall follow the marking procedures in paragraph (g)(1)
of this clause.
* * * * *
(l) Subcontractors or suppliers. (1) The Contractor shall assure
that the rights afforded its subcontractors and suppliers under 10
U.S.C. 2320, 10 U.S.C. 2321, 15 U.S.C. 638(j)(1)(B)(iii) and (v),
and the identification, assertion, and delivery processes required
by paragraph (f) of this clause are recognized and protected.
(2) Whenever any technical data or computer software is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use the
following clause(s) in the subcontract or other contractual
instrument, and require its subcontractors or suppliers to do so,
without alteration, except to identify the parties:
(i) Except as provided in paragraph (l)(2)(ii) of this clause,
use this clause to govern SBIR/STTR data.
(ii) For data that are not SBIR/STTR data--
(A) Use the DFARS clause at 252.227-7013, Rights in Technical
Data--Noncommercial Items, to govern the technical data pertaining
to noncommercial items or to any portion of a commercial item that
was developed in any part at Government expense, and use the DFARS
clause at 252.227-7015, Technical Data--Commercial Items, to govern
the technical data pertaining to any portion of a commercial item
that was developed exclusively at private expense;
(B) Use the DFARS clause at 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation, to govern noncommercial computer software and
computer software documentation; and
(C) Use the license under which the data are customarily
provided to the public, in accordance with DFARS 227.7202, for
commercial computer software and commercial computer software
documentation.
(iii) No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher tier subcontractor's or
supplier's rights in a subcontractor's or supplier's technical data
or computer software.
* * * * *
0
24. Amend section 252.227-7019--
0
a. By revising the section heading, introductory text, and clause date;
0
b. By revising paragraph (a);
0
c. In paragraph (d)(2)(i)(B) by removing ``sixty (60) days'' and the
period at the end of the paragraph and adding ``60 days'' and a
semicolon in their places, respectively;
0
d. In paragraph (e)(1) by removing ``three years'' wherever it appears
and adding ``3 years'' in its place;
0
e. In paragraph (f)(1)(ii) by removing ``sixty (60) days'' and adding
``60 days'' in its place;
0
f. In paragraph (f)(1)(iv) by removing ``three-year'' and adding ``3-
year'' in its place;
0
g. In paragraph (f)(7) by removing ``provides the contractor'' and
adding ``provides the Contractor'' in its place;
0
h. In paragraph (g)(1)(i), by removing ``ninety (90) days'' and adding
``90 days'' in its place;
0
i. In paragraph (g)(1)(ii), by removing ``one year'' and ``ninety (90)
days'' and adding ``1 year'' and ``90 days'' in their places,
respectively;
0
j. Revising paragraph (g)(1)(iii);
0
k. In paragraphs (g)(2)(i) and (ii), by removing ``ninety (90) days''
and adding ``90 days'' in its place;
0
l. In paragraph (g)(2)(iii), by removing ``one year'' and ``ninety (90)
days'' and adding ``1 year'' and ``90 days'' in their places,
respectively; and
0
m. Revising paragraph (g)(3).
The revisions read as follows:
252.227-7019 Validation of Asserted Restrictions--Computer Software.
As prescribed in 227.7104-4(b)(3) or 227.7203-6(c), use the
following clause:
Validation of Asserted Restrictions--Computer Software (Date)
(a) Definitions. As used in this clause--
Contractor, unless otherwise specifically indicated, means the
Contractor and its subcontractors or suppliers.
Other terms used in this clause are defined in the 252.227-7014,
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation, clause of this contract.
* * * * *
(g) * * *
(1) * * *
(iii) Until final disposition by the appropriate Board of
Contract Appeals or court of competent jurisdiction, if the
Contractor has--
(A) Appealed to the Board of Contract Appeals or filed suit in
an appropriate court within 90 days; or
(B) Submitted, within 90 days, a notice of intent to file suit
in an appropriate court and filed suit within 1 year.
* * * * *
(3)(i) The agency head, on a nondelegable basis, may determine
that urgent or compelling circumstances do not permit awaiting the
filing of suit in an appropriate court, or the rendering of a
decision by a court of competent jurisdiction or Board of Contract
Appeals. In that event, the agency head shall notify the Contractor
of the urgent or compelling circumstances. Notwithstanding paragraph
(g)(1) of this clause, the Contractor agrees that the agency may
use, modify, reproduce, release, perform, display, or disclose
computer software marked with--
(A) Government purpose markings for any purpose, and authorize
others to do so; or
(B) Restricted or special license rights for government purposes
only.
(ii) The Government agrees not to release or disclose such
software unless, prior to release or disclosure, the intended
recipient is subject to the use and nondisclosure agreement at DFARS
227.7103-7, or is a Government contractor receiving access to the
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, Limitations on the Use or Disclosure
of Government-Furnished Information with Restrictive Markings. The
agency head's determination may be made at any time after the date
of the Contracting Officer's final decision and shall not affect the
Contractor's right to damages against the United States, or other
relief provided by law, if its asserted restrictions are ultimately
upheld.
* * * * *
0
25. Amend section 252.227-7025--
0
a. By revising the section heading, introductory text, and clause date;
0
b. By adding paragraph (a) introductory text and revising paragraph
(a)(3);
0
c. By revising paragraph (b)(1) heading, paragraphs (b)(1)(i), (b)(2),
(3) and (4);
0
d. In paragraph (b)(5) introductory text, by removing ``legends'' and
adding ``markings'' in its place;
0
e. In paragraph (b)(5)(iii), by removing ``legend'' and ``thirty (30)
days'' and adding ``marking'' and ``30 days'' in their places,
respectively;
0
f. In paragraph (b)(5)(iv), by removing ``non-disclosure'' wherever it
appears and ``legend'' and adding ``nondisclosure'' and ``marking'' in
their places, respectively;
0
g. In paragraph (b)(5)(v)(B), by removing ``legend'' and adding
``marking'' in its place;
0
h. In paragraph (c)(1), by removing ``legends'' and adding ``markings''
in its place'';
0
i. In paragraph (c)(2), by removing ``legend'' and ``legends'' and
adding ``marking'' and ``markings'' in their places, respectively; and
[[Page 77702]]
0
j. In paragraph (d), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place; and
0
k. By adding ``(End of clause)'' at the end of the clause.
The revisions and addition read as follows:
252.227-7025 Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Markings.
As prescribed in 227.7103-6(c), 227.7104-4(b)(4), or 227.7203-6(d),
use the following clause:
Limitations on the Use or Disclosure of Government-Furnished
Information With Restrictive Markings (Date)
(a) Definitions. As used in this clause--
* * * * *
(3) For Small Business Innovation Research (SBIR) Program and
Small Business Technology Transfer (STTR) Program contracts, the
terms ``covered Government support contractor,'' ``government
purpose rights,'' ``limited rights,'' ``restricted rights,'' and
``SBIR/STTR data rights'' are defined in the clause at 252.227-7018,
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program.
(b) * * *
(1) GFI marked with limited rights, restricted rights, or SBIR/
STTR data rights markings. (i) The Contractor shall use, modify,
reproduce, perform, or display technical data received from the
Government with limited rights markings, computer software received
with restricted rights markings, or SBIR/STTR technical data or
computer software received with SBIR/STTR data rights markings
(during the SBIR/STTR data protection period) only in the
performance of this contract. The Contractor shall not, without the
express written permission of the party whose name appears in the
marking, release or disclose such data or software to any
unauthorized person.
* * * * *
(2) GFI marked with government purpose rights markings. The
Contractor shall use technical data or computer software received
from the Government with government purpose rights markings for
government purposes only. The Contractor shall not, without the
express written permission of the party whose name appears in the
restrictive marking, use, modify, reproduce, release, perform, or
display such data or software for any commercial purpose or disclose
such data or software to a person other than its subcontractors,
suppliers, or prospective subcontractors or suppliers, who require
the data or software to submit offers for, or perform, contracts
under this contract. Prior to disclosing the data or software, the
Contractor shall require the persons to whom disclosure will be made
to complete and sign the nondisclosure agreement at 227.7103-7 of
the Defense Federal Acquisition Regulation Supplement (DFARS).
(3) GFI marked with specially negotiated license rights
markings. (i) The Contractor shall use, modify, reproduce, release,
perform, or display technical data or computer software received
from the Government with specially negotiated license markings only
as permitted in the license. Such data or software may not be
released or disclosed to other persons unless permitted by the
license and, prior to release or disclosure, the intended recipient
has completed the nondisclosure agreement at DFARS 227.7103-7. The
Contractor shall modify paragraph (1)(c) of the nondisclosure
agreement to reflect the recipient's obligations regarding use,
modification, reproduction, release, performance, display, and
disclosure of the data or software.
* * * * *
(4) GFI technical data marked with commercial restrictive
markings. (i) The Contractor shall use, modify, reproduce, perform,
or display technical data that are or pertain to a commercial item
and are received from the Government with a commercial restrictive
marking (i.e., marked to indicate that such data are subject to use,
modification, reproduction, release, performance, display, or
disclosure restrictions) only in the performance of this contract.
The Contractor shall not, without the express written permission of
the party whose name appears in the marking, use the technical data
to manufacture additional quantities of the commercial items, or
release or disclose such data to any unauthorized person.
* * * * *
(End of clause)
0
26. Revise section 252.227-7028 heading and introductory text to read
as follows:
252.227-7028 Technical Data or Computer Software Previously Delivered
to the Government.
As prescribed in 227.7103-6(d), 227.7104-4(b)(5), or 227.7203-6(e),
use the following provision:
* * * * *
0
27. Revise section 252.227-7030 heading and introductory text to read
as follows:
252.227-7030 Technical Data--Withholding of Payment.
As prescribed at 227.7103-6(e)(2) or 227.7104-4(b)(6), use the
following clause:
* * * * *
252.227-7037 [Amended]
0
28. Amend section 252.227-7037 introductory text by removing
``,227.7104(c)(5)'' and adding ``, 227.7104-4(b)(7)'' in its place.
0
29. Add new sections 252.227-70XX and 252.227-70YY to read as follows:
252.227-70XX Additional Preaward Requirements for Small Business
Technology Transfer Program.
As prescribed in 227.7104-4(c)(1), use the following provision:
Additional Preaward Requirements for Small Business Technology Transfer
Program (Date)
(a) Definitions. As used in this provision, the terms research
institution and United States have the meaning given in the 252.227-
70YY, Additional Postaward Requirements for Small Business
Technology Transfer Program, clause of this solicitation.
(b) Offers submitted in response to this solicitation shall
include the following:
(1) The written agreement between the Offeror and a partnering
research institution, which shall contain--
(i) A specific allocation of ownership, rights, and
responsibilities for intellectual property (including inventions,
patents, technical data, and computer software) resulting from the
Small Business Technology Transfer (STTR) Program award;
(ii) Identification of which party to the written agreement may
obtain United States or foreign patents or otherwise protect any
inventions that result from a STTR award; and
(iii) No provisions that conflict with the requirements of this
solicitation, including the rights of the United States and the
Offeror regarding intellectual property, and regarding any right to
carry out follow-on research.
(2) The Offeror's written representation that--
(i) The Offeror is satisfied with its written agreement with the
partnering research institution; and
(ii) The written agreement does not conflict with the
requirements of this solicitation.
(c) The Offeror shall submit the written representation required
by paragraph (b)(2) of this provision as an attachment to its offer,
dated and signed by an official authorized to contractually obligate
the Offeror.
(d) The Offeror's failure to submit the written agreement or
written representation required by paragraph (b) of this provision
with its offer may render the offer ineligible for award.
(e) If the Offeror is awarded a contract, the Contracting
Officer will include the written agreement and written
representation required by paragraph (b) of this provision in an
attachment to that contract.
(End of provision)
252.227-70YY Additional Postaward Requirements for Small Business
Technology Transfer Program.
As prescribed in 227.7104-4(c)(2), use the following clause:
Additional Postaward Requirements for Small Business Technology
Transfer Program (Date)
(a) Definitions. As used in this clause--
Research institution means an institution or entity that--
(1) Has a place of business located in the United States;
(2) Operates primarily within the United States or makes a
significant contribution to the U.S. economy through payment of
taxes or use of American products, materials or labor; and
(3) Is either--
(i) A nonprofit institution that is owned and operated
exclusively for scientific or
[[Page 77703]]
educational purposes, no part of the net earnings of which inures to
the benefit of any private shareholder or individual (section 4(3)
of the Stevenson-Wydler Technology Innovation Act of 1980); or
(ii) A Federally-funded research or research and development
center as identified by the National Science Foundation (https://www.nsf.gov/statistics/ffrdclist/) in accordance with the Federal
Acquisition Regulation (FAR).
United States means the 50 States and the District of Columbia,
the territories and possessions of the Government, the Commonwealth
of Puerto Rico, the Republic of the Marshall Islands, the Federated
States of Micronesia, and the Republic of Palau.
(b) Preaward submissions. Attached to this contract are the
following documents, submitted by the Contractor pursuant to Defense
Federal Acquisition Regulation Supplement 252.227-70XX, Additional
Preaward Requirements for Small Business Technology Transfer
Program:
(1) The written agreement between the Contractor and a
partnering research institution.
(2) The Contractor's written representation that it is satisfied
with that written agreement, which does not conflict with the
requirements of this contract.
(c) Postaward updates. The Contractor shall not allow any
modification to its written agreement with the partnering research
institution, unless the written agreement, as modified, contains--
(1) A specific allocation of ownership, rights, and
responsibilities for intellectual property (including inventions,
patents, technical data, and computer software) resulting from
performance of this contract;
(2) Identification of which party to the written agreement may
obtain United States or foreign patents or otherwise protect any
inventions that result from a Small Business Technology Transfer
Program award;
(3) The Contractor's written, dated, and signed representation
that--
(i) The Contractor is satisfied with its written agreement with
the partnering research institution, as modified; and
(ii) The written agreement, as modified, does not conflict with
the requirements of this contract; and
(4) No provisions that conflict with the requirements of this
contract, including the rights of the United States and the
Contractor regarding intellectual property, and regarding any right
to carry out follow-on research.
(d) Submission of updated agreement. Within 30 days of execution
of the modified written agreement described in paragraph (b)(1) of
this clause, the Contractor shall submit a copy of that updated
written agreement and the updated written representation described
in paragraph (b)(2) of this clause to the Contracting Officer for
review and attachment to this contract.
(End of clause)
[FR Doc. 2022-27196 Filed 12-15-22; 8:45 am]
BILLING CODE 6820-ep-P
