Defense Federal Acquisition Regulation Supplement: Small Business Innovation Research Program Data Rights (DFARS Case 2019-D043), 103338-103366 [2024-29226]
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103338 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 227, and 252
[Docket DARS–2020–0033]
RIN 0750–AK84
Defense Federal Acquisition
Regulation Supplement: Small
Business Innovation Research
Program Data Rights (DFARS Case
2019–D043)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement the data rights
portions of the Small Business
Innovation Research Program and Small
Business Technology Transfer Program
Policy Directives.
DATES: Effective January 17, 2025.
FOR FURTHER INFORMATION CONTACT: Mr.
David Johnson, telephone 202–913–
5764.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 87 FR 77680 on
December 19, 2022, to implement in the
DFARS the intellectual property (e.g.,
data rights) portions of the Small
Business Administration’s (SBA’s)
revised Small Business Innovation
Research (SBIR) Program and Small
Business Technology Transfer (STTR)
Program Policy Directive. DoD had
previously published an advance notice
of proposed rulemaking (ANPR) at 85
FR 53758 on August 31, 2020. Six
respondents submitted written public
comments in response to the proposed
rule.
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II. Discussion and Analysis
DoD reviewed the public comments
submitted in writing and discussed by
the attendees at the virtual public
meetings on February 2, 2023, and
March 2, 2023, in the development of
the final rule. A discussion of the
comments and the changes made to the
rule as a result of those comments is
provided, as follows:
A. Summary of Significant Changes
From the Proposed Rule
Based on the comments received, the
following DFARS guidance, contract
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clauses, and solicitation provisions are
revised:
• DFARS 227.7104–1 is revised to
further explain the scope of SBIR/STTR
Phase III work to which the SBIR/STTR
data rights clauses apply.
• DFARS 227.7104–2 is revised to
provide a list of applicable clauses and
policies that govern the Government’s
license rights in any data that are not
SBIR/STTR data.
• The following provision and
clauses are revised to ensure consistent
definitions of the term ‘‘SBIR/STTR
data’’ and the term ‘‘generated’’: DFARS
252.227–7013, Rights in Technical
Data—Other Than Commercial Products
or Commercial Services; 252.227–7014,
Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation; 252.227–7017,
Identification and Assertion of Use,
Release, or Disclosure Restrictions; and
252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program.
• DFARS 252.227–7018(c)(2)(ii)(B) is
revised to remove language that may
have been misinterpreted to imply that
special licenses may be negotiated prior
to contract award when the standard
license rights are SBIR/STTR data
rights.
• The provision at DFARS 252.227–
7040, Additional Preaward
Requirements for Small Business
Technology Transfer Program, and the
clause at DFARS 252.227–7041,
Additional Postaward Requirements for
Small Business Technology Transfer
Program, are revised to clarify STTR
program requirements regarding
consistency between the clause at
DFARS 252.227–7018 and written
agreements between the offeror and a
research institution, and regarding
written representations related to the
written agreements in preaward
submissions and postaward updates.
• Proposed changes to the marking
requirements related to restrictions on
third-party recipients of technical data
and computer software (in the clauses at
DFARS 252.227–7013, 252.227–7014,
and 252.227–7018) have been removed
from this rule. Proposed changes
regarding restrictive markings on
technical data related to commercial
technology in the clause at DFARS
252.227–7015, Technical Data—
Commercial Products and Commercial
Services, have also been removed from
this rule.
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B. Analysis of Public Comments
1. Restrictive Marking Requirements
Comment: Several respondents
provided comments and recommended
revisions to proposed changes to
restrictive marking requirements in
DFARS 252.227–7013, 252.227–7014,
252.227–7015, and 252.227–7018.
Response: As discussed in the ANPR,
DoD proposed revisions to address the
SBIR/STTR Policy Directive’s emphasis
on requiring restrictive markings for
SBIR/STTR data, while ensuring
appropriate procedures to address the
inadvertent omission of restrictive
markings by SBIR/STTR contractors.
These issues are addressed by clarifying
that the long-standing requirements for
identification and marking of
deliverable other than commercial
technical data and software, including
the procedures to address inadvertent
omission of restrictive markings, apply
to SBIR/STTR data. For example, this
final rule adds references to the clause
at DFARS 252.227–7018 at DFARS
227.7103–10 and 227.7103–12 for other
than commercial technical data and
DFARS 227.7203–10 and 227.7203–12
for other than commercial computer
software; and incorporating such
procedures into all associated clauses at
DFARS 252.227–7013, 252.227–7014,
and 252.227–7018).
As discussed in the proposed rule,
DoD proposed further revisions to
address additional related matters
regarding the absence of restrictive
markings (e.g., the lack of an unlimited
rights marking), and to address
additional public comments and recent
case precedent regarding requirements,
restrictions, and procedures for
correcting nonconforming markings, in
cases of commercial markings and
markings directed to non-Government,
third-party recipients of marked data.
The vast majority of the public
comments were directed to complex
matters related to these additional
markings issues, rather than the more
limited markings topics addressed in
the SBIR/STTR Policy Directive. To
expedite implementation of the primary
SBIR/STTR policy elements of this
DFARS case while enabling further
consideration of comments and
recommendations from the public on
proposed revisions directed to such
additional important marking
requirements in these clauses, these
regulatory changes related to marking
requirements have been removed from
this final rule (e.g., unlimited rights
markings, markings for commercial
technical data, and markings directed to
third-party recipients).
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2. Scope and Applicability of Clauses
and Scope of License Rights
a. Applicability Section of the Clauses
Comment: Several respondents
recommended removal or revision of the
proposed applicability sections in the
data rights clauses. A respondent
asserted that proposed applicability
sections of the clauses should indicate
that the SBIR/STTR clauses are no
longer applicable to SBIR/STTR data
once the related product becomes
commercial. Other respondents
recommended revisions to the proposed
applicability sections to remove
applicability of DFARS 252.227–7013 to
portions of a commercial item that was
developed in any part at Government
expense. Lastly, other respondents
recommended moving the applicability
sections to a later section of the clauses
to reduce the administrative burden on
contractors resulting from changes in
paragraph numbering in restrictive
markings.
Response: In view of DFARS drafting
conventions, DoD added applicability
sections to paragraph (b) of 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 reflect the existing
prescriptive guidance found in DFARS
227.7102–4, 227.7104, and the SBIR/
STTR Policy Directive, none of which
exclude or limit the applicability of the
SBIR/STTR program requirements once
the related product becomes
commercial. 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.
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b. Guidance on Scope of SBIR/STTR
Contracts, Including Phase III Work
Comment: One respondent asserted
that part 227 should be revised to define
the scope of SBIR/STTR contracts by
referencing the definition in the SBIR/
STTR Policy Directive. Another
respondent recommended clarifying the
scope of Phase III work.
Response: DoD has partially adopted
these recommendations. Based on
guidance from the SBIR/STTR Policy
Directive, DFARS 227.7104–1 is revised
to further clarify the scope of
applicability of SBIR/STTR data rights
and the scope of SBIR/STTR Phase III
work.
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c. Guidance on the SBIR Protection
Period
Comment: A respondent
recommended providing guidance on
how the SBIR protection period applies
to multiple awards at various SBIR
phases.
Response: DFARS 227.7104–2(a)(2)
provides the guidance recommended by
the respondent. In addition, DFARS
Procedures, Guidance, and Information
227.7104–2 provides examples and
guidance on how the SBIR or SBIR/
STTR protection period applies in each
example.
d. Guidance on Applicability of
Commercial Computer Software
Licenses
Comment: A respondent
recommended revising DFARS
227.7104–4 to discuss the applicability
of commercial computer software
licenses.
Response: DoD has adopted this
recommendation. DFARS 227.7104–2 is
revised to provide a list of applicable
clauses and policies that govern the
Government’s license rights in any data
that are not SBIR/STTR data. DFARS
227.7104–2 references commercial
computer software and the applicability
of licenses customarily provided to the
public, in accordance with DFARS
227.7202–3.
e. New STTR Provision and Clause
Comment: A respondent
recommended edits to DFARS 252.227–
7040 and DFARS 252.227–7041
regarding potential conflicts with
DFARS 252.227–7018 in the STTR
agreements and associated
representation.
Response: DoD has adopted this
recommendation. DFARS 252.227–7040
and DFARS 252.227–7041 are revised to
clarify requirements for written
agreements between the offeror and a
research institution, preaward
submissions, and postaward updates.
f. Consistent Inclusion of Definitions in
the Clauses
Comment: A respondent asserted that
DFARS 252.227–7013, 252.227–7014,
252.227–7017, and 252.227–7018
should consistently include definitions
of the term ‘‘SBIR/STTR’’ data and
‘‘generated’’ when referenced in the
clauses. In addition, a respondent
asserted that the definition of the term
‘‘generated’’ in the clause at DFARS
252.227–7013 should not reference
computer software.
Response: DFARS 252.227–7013,
252.227–7014, 252.227–7017, and
252.227–7018 are revised to ensure
consistent inclusion of the definitions of
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the terms ‘‘SBIR/STTR data’’ and
‘‘generated.’’ However, DoD has not
adopted the second recommendation.
For the sake of consistency, the
definition of the term ‘‘generated’’ is the
same in both DFARS 252.227–7013 and
252.227–7014.
g. License Rights in Computer Software
Documentation Under DFARS 252.227–
7018
Comment: A respondent asserted that
computer software documentation
should not be a separate category of
unlimited rights data in paragraph (c)(1)
of DFARS 252.227–7018. The
respondent asserted that the edits to
DFARS 252.227–7018 expand the scope
of the Government’s license rights in
computer software documentation.
Response: Under both DFARS
252.227–7014 and DFARS 252.227–
7018, the Government has an unlimited
rights license in computer software
documentation. The edits to DFARS
252.227–7018(c)(1) do not expand the
scope of the Government’s existing
license rights in computer software
documentation. For the sake of clarity,
these edits align the format of the
‘‘unlimited rights’’ license grant in
DFARS 252.227–7014 with DFARS
252.227–7018. The Government’s
unlimited rights license in computer
software documentation is based in the
requirements of 10 U.S.C. 3771(b)(3)
(see 60 FR 33464, 33467 (June 28,
1995)). The statute at 10 U.S.C. 3771
provides an unlimited rights license in
technical data necessary for operation,
maintenance, installation, or training
purposes. Computer software
documentation is technical data. It is
defined narrowly to include only
owner’s manuals, user’s manuals,
installation instructions, operating
instructions, and similar items that
explain the capabilities of computer
software or provide instructions for
using the software. Such data are
necessary for operation, maintenance,
installation, or training. Consequently,
under 10 U.S.C. 3771, a contractor may
not restrict the Government’s rights to
release or disclose computer software
documentation or to permit others to
use the data. Accordingly, these
revisions to DFARS 252.227–7018(c) are
aligned with the Government’s license
rights to computer software
documentation in 10 U.S.C. 3771 and
DFARS 252.227–7014.
h. Assertion Requirements
Comment: Several respondents
commented that the identification and
assertion requirements in DFARS
252.227–7017 should not be applied to
SBIR/STTR data. Another respondent
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recommended that this provision
should include permission for SBIR
contractors to add new assertions after
contract award.
Response: The assertion requirements
are necessary to identify and protect the
intellectual property interests of
contractors and subcontractors under
SBIR/STTR contracts, because they
provide a practical document that
specifically identifies deliverable
technical data and software to be
furnished with restrictions. These
procedures help ensure appropriate
protections for deliverable technical
data and software, and these protections
should be equally applicable to SBIR/
STTR data. In addition, these
procedures will help clarify the
protection period(s) applicable to
deliverable SBIR/STTR data (e.g., see
discussion at section II.2.c. of this
preamble). In addition, DFARS 252.227–
7018 already permits post-award
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.
guidance applicable to SBIR/STTR
offerors.
3. Evaluation of Proposals and PostAward Negotiations of SBIR/STTR Data
Rights
a. Restrictions on Prototypes
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a. Evaluation of Proposals in SBIR/STTR
Contracts
Comment: Respondents asserted that
the revisions to DFARS 227.7104–1(c)
are inconsistent with the SBIR/STTR
Policy Directive because they imply that
the Government may reject a proposal
due to SBIR data rights. A respondent
asserted that the effect of this language
will be inconsistent with the intent of
the SBIR/STTR Policy Directive and
may result in violations of the Directive.
Response: The rule revises DFARS
227.7104–1 to mirror the policies at
DFARS 227.7103–10(a)(5) and DFARS
227.7203–10(a)(5), and it adds crossreferences at DFARS 227.7104–1 to
policies at DFARS 227.7103–10 and
DFARS 227.7203–10. These instructions
expressly prohibit contracting officers
from requiring offerors to relinquish
SBIR/STTR data rights or from rejecting
offerors solely due to SBIR/STTR data
rights restrictions. The guidance 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
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b. Negotiation in SBIR/STTR Contracts
Comment: A respondent
recommended revisions to DFARS
252.227–7018(c)(2)(ii)(B). The
respondent asserted that the proposed
rule may be misinterpreted to imply that
special licenses may be negotiated prior
to contract award where the standard
license rights are SBIR/STTR data
rights.
Response: DFARS 252.227–
7018(c)(2)(ii)(B) is revised to remove
this language. In addition, DFARS
227.7104–2(c) is added to indicate that
the Government and the SBIR/STTR
contractor or subcontractor may
negotiate special license rights only
after contract award. Note that DFARS
Case 2018–D071, Negotiation of Price
for Technical Data and Preference for
Specially Negotiated Licenses,
addresses proposed DFARS revisions to
implement policies and procedures
regarding negotiation of special licenses,
including applicable SBIR/STTR
policies and procedures.
4. Guidance in the SBIR/STTR Policy
Directive Outside of the Scope of Part
227
Comment: Some respondents
recommended applying the marking
requirements to prototypes, end items,
or products themselves.
Response: The ANPR, proposed rule,
and this final rule recognize and
reference 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 respondents’
recommended revision to Part 227 and
the associated clauses.
b. Guidance From SBIR/STTR Policy
Directive Not Related to Data Rights
Comment: Respondents
recommended revising part 227 to
include guidance from the SBIR/STTR
Policy Directive that is not related to
data rights, including guidance on
agency notices of intent to award, SBA
notices of intent to appeal, SBA appeals,
suspensions of work, and sole-source
awards.
Response: The respondents’
recommendations are not related to
license rights to technical data or
software. Therefore, they are beyond the
scope of part 227 and this rule.
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C. Other Changes
Editorial changes were made,
including updates to comport with
DFARS content and formatting
conventions. The rule also adds crossreferences at DFARS 227.7104–1 for
SBIR/STTR technical data and software
to the policies at DFARS 227.7103–9
through 227.7103–12 and 227.7203–9
through 227.7203–12 related to other
than commercial technical data and
other than commercial computer
software. These policies have also been
revised to clarify their applicability to
SBIR/STTR data.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold, for Commercial Products
(Including Commercially Available Offthe-Shelf Items), and for Commercial
Services
The 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—Other Than Commercial Products
and Commercial Services; 252.227–
7014, Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation; 252.227–7015,
Technical Data—Commercial Products
and Commercial Services; 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 Other Than
Commercial 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 products, including
COTS items, and commercial services.
In addition, DFARS 252.227–7018
applies to contracts at or below the SAT
and for the acquisition of commercial
products, including COTS items, and
commercial services.
This rule also creates a new provision
and a new clause: (1) DFARS 252.227–
7040, Additional Preaward
Requirements for Small Business
Technology Transfer Program, and (2)
DFARS 252.227–7041, Additional
Postaward Requirements for Small
Business Technology Transfer Program.
The new provision and clause apply to
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acquisitions at or below the SAT and to
acquisitions of commercial products,
including COTS items, and commercial
services. Not applying this provision
and clause to contracts at or below the
SAT and for the acquisition of
commercial products, including COTS
items, and commercial services would
exclude contracts intended to be
covered by this rule and undermine the
overarching purpose of the rule.
Consequently, the rule applies to
contracts at or below the SAT and for
the acquisition of commercial products,
including COTS items, and commercial
services.
IV. 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 rule also provides the
Government with perpetual government
purpose rights license after the
expiration of the SBIR/STTR data
protection period, rather than unlimited
rights. In addition, the rule implements
STTR-unique requirements in the SBIR/
STTR Policy Directive related to
allocation of intellectual property rights
between partnering institutions and
contractors under the STTR program.
The 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.
This rule therefore impacts the
Government’s license rights in SBIR/
STTR data. The SBIR/STTR Policy
Directive emphasizes the need to protect
the intellectual property interests of
small businesses. This rule provides a
transparent and consistent framework
that protects the intellectual property
interests of our small-business industry
partners.
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V. Executive Order 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, as amended.
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VI. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will 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. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. and is summarized as follows:
DoD is amending 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 this rule are to implement the datarights 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 a 5-year period that can be
extended indefinitely;
• Perpetual government purpose
rights 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
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 the following DFARS
provision and clauses: 252.227–7013,
Rights in Technical Data—Other Than
Commercial Products and Commercial
Services; 252.227–7014, Rights in Other
Than Commercial Computer Software
and Other Than Commercial Computer
Software Documentation; 252.227–7015,
Technical Data—Commercial Products
and Commercial Services; 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 Other Than
Commercial Technical Data and
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Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer 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. The rule provides a
transparent and consistent framework
that protects the intellectual property
interests of our small-business industry
partners.
DoD received no comments in
response to the initial regulatory
flexibility analysis.
This 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) 2022 through FY 2024,
DoD estimates that 3,341 contractors
may be impacted by the changes in this
final rule. Of those entities,
approximately 3,258 (98 percent) are
small entities.
This rule imposes new reporting,
recordkeeping, or other compliance
requirements for small entities
participating in the STTR program. This
rule adds 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 rule requires STTR contractors to
submit both an updated written
agreement and an updated written
representation to the contracting officer
as occasioned by postaward
modifications of the written agreement.
Based on data from SBA for FY 2022
through FY 2024, DoD estimates that an
average of 618 unique small entities are
awarded an average of 359 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.
There are no known, significant,
alternative approaches that would meet
the requirements.
VIII. Paperwork Reduction Act
This final rule contains information
collection requirements that have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act (44 U.S.C. chapter 35).
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This information collection requirement
has been assigned OMB Control Number
0750–0010, Defense Federal Acquisition
Regulation Supplement Part 227,
Patents, Data, and Copyrights; Small
Business Technology Transfer Program.
List of Subjects in 48 CFR Parts 212,
227, and 252
Government procurement.
PART 227—PATENTS, DATA, AND
COPYRIGHTS
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
3. Amend section 227.7103–5—
a. In paragraph (b)(4) introductory
text, by removing ‘‘government may’’
and adding ‘‘Government may’’ in its
place;
■ b. In paragraph (b)(4)(i), by removing
‘‘non-disclosure’’ and adding
‘‘nondisclosure’’ in its place;
■ c. By revising paragraphs (b)(5) and (6)
and (c)(4).
The revisions read as follows:
■
■
Therefore, the Defense Acquisition
Regulations System amends 48 CFR
parts 212, 227, and 252 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 PRODUCTS AND
COMMERCIAL SERVICES
227.7103–5
2. Amend section 212.301 by revising
paragraph (f)(xii) to read as follows:
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial products and commercial
services.
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*
*
*
(f) * * *
(xii) Part 227—Patents, Data, and
Copyrights. (A) Use the clause at
252.227–7013, Rights in Technical
Data—Other Than Commercial Products
and Commercial Services, 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.
(B) Use the clause at 252.227–7015,
Technical Data—Commercial Products
and Commercial Services, as prescribed
in 227.7102–4(a)(1), to comply with 10
U.S.C. 3772(a). Use the clause with its
Alternate I as prescribed in 227.7102–
4(a)(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 Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, as
prescribed in 227.7104–4(a)(1).
(D) Use the clause at 252.227–7037,
Validation of Restrictive Markings on
Technical Data, as prescribed in
227.7102–4(c).
(E) Use the provision at 252.227–
7040, Additional Preaward
Requirements for Small Business
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Government rights.
*
■
*
Technology Transfer Program, as
prescribed in 227.7104–4(c)(1).
(F) Use the clause at 252.227–7041,
Additional Postaward Requirements for
Small Business Technology Transfer
Program, as prescribed in 227.7104–
4(c)(2).
*
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*
*
*
*
*
*
(b) * * *
(5) When technical data marked with
government purpose rights legends will
be released or disclosed to a
Government contractor performing a
contract that does not include the clause
at 252.227–7025, the contract may be
modified, prior to release or disclosure,
to include that clause in lieu of
requiring the contractor to complete a
use and nondisclosure agreement.
(6) Contracting activities shall
establish procedures to assure that
technical data marked with government
purpose rights legends are released or
disclosed, including a release or
disclosure through a Government
solicitation, only to persons subject to
the use and nondisclosure restrictions.
Public announcements in the System for
Award Management or other
publications must provide notice of the
use and nondisclosure requirements.
Class use and nondisclosure agreements
(e.g., agreements covering all
solicitations received by the XYZ
company within a reasonable period)
are authorized and may be obtained at
any time prior to release or disclosure
of the government purpose rights data.
Documents transmitting government
purpose rights data to persons under
class agreements shall identify the
technical data subject to government
purpose rights and the class agreement
under which such data are provided.
(c) * * *
(4) When the person asserting limited
rights permits the Government to
release, disclose, or have others use the
data subject to restrictions on further
use, release, or disclosure, or for a
release under paragraph (c)(2)(i), (ii), or
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(iii) of this section, the intended
recipient must complete the use and
nondisclosure agreement at 227.7103–7,
or receive the data for performance of a
Government contract that contains the
clause at 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends, prior to release or
disclosure of the limited rights data.
*
*
*
*
*
■ 4. Amend section 227.7103–6 in
paragraph (a) by revising the second
sentence and adding a new third
sentence to read 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
products or commercial services
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 and
paragraph (a);
■ b. In paragraph (b) and paragraph (c)
introductory text, by removing ‘‘nondisclosure’’ and adding ‘‘nondisclosure’’
in its place;
■ e. In the agreement ‘‘Use and NonDisclosure Agreement’’, by revising the
agreement heading, 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) Except as provided in paragraph
(b) of this section, technical data or
computer software delivered to the
Government with restrictions on use,
modification, reproduction, release,
performance, display, or disclosure may
not be provided to third parties, unless
the intended recipient completes and
signs the use and nondisclosure
agreement at paragraph (c) of this
section prior to release or disclosure of
the data.
(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
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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
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*
*
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(1) The Recipient shall—
(a) Use, modify, reproduce, release,
perform, display, or disclose Data
marked with government purpose rights
or SBIR/STTR data rights legends (after
expiration of the SBIR/STTR data
protection period provided in the SBIR/
STTR data rights legend) only for
government purposes and shall not do
so for any commercial purpose. The
Recipient shall not release, perform,
display, or disclose these Data, without
the express written permission of the
contractor whose name appears in the
restrictive legend (the ‘‘Contractor’’), to
any person other than its subcontractors
or suppliers, or prospective
subcontractors or suppliers, who require
these Data to submit offers for, or
perform, contracts with the Recipient.
The Recipient shall require its
subcontractors or suppliers, or
prospective subcontractors or suppliers,
to sign a use and 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 legends
or SBIR/STTR data rights legends 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
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rights legends 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
legend. 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
legends. [To be completed by the
contracting officer. See 227.7103–
7(a)(2). Omit if none of the data
requested is marked with special license
rights legends.]
*
*
*
*
*
(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
legends by the Recipient or any person
to whom the Recipient has released or
disclosed the Data.
*
*
*
*
*
(End of use and nondisclosure
agreement)
■ 6. Revise section 227.7103–9 to read
as follows:
227.7103–9
Copyright.
(a) Copyright license. (1) The clauses
at 252.227–7013, Rights in Technical
Data—Other Than Commercial Products
and Commercial Services, and 252.227–
7018, Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, require a
contractor to grant or obtain for the
Government license rights which permit
the Government to reproduce data,
distribute copies of the data, publicly
perform or display the data or, through
the right to modify data, prepare
derivative works. The extent to which
the Government, and others acting on its
behalf, may exercise these rights varies
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for each of the standard data rights
licenses obtained under the clauses.
When non-standard license rights in
technical data will be negotiated,
negotiate the extent of the copyright
license concurrent with negotiations for
the data rights license. Do not negotiate
a copyright license that provides less
rights than the standard limited rights
license in technical data.
(2) The clauses at 252.227–7013 and
252.227–7018 do not permit a contractor
to incorporate a third party’s
copyrighted data into a deliverable data
item unless the contractor has obtained
an appropriate license for the
Government and, when applicable,
others acting on the Government’s
behalf, or has obtained the contracting
officer’s written approval to do so. Grant
approval to use third-party copyrighted
data in which the Government will not
receive a copyright license only when
the Government’s requirements cannot
be satisfied without the third-party
material or when the use of the thirdparty material will result in cost savings
to the Government which outweigh the
lack of a copyright license.
(b) Copyright considerations—
acquisition of existing and special
works. See 227.7105 or 227.7106 for
copyright considerations when
acquiring existing or special works that
are not SBIR/STTR data.
■ 7. Amend section 227.7103–10—
■ a. In paragraph (a)(3), by revising the
third sentence;
■ b. By revising paragraphs (a)(5) and
(b);
■ c. In paragraph (c)(1), by removing
‘‘subsection’’ and adding ‘‘section’’ in
its place;
■ d. In paragraph (c)(2) introductory
text, by removing ‘‘six months’’ and
adding ‘‘6 months’’ in its place; and
■ e. In paragraph (c)(2)(ii), by removing
‘‘clause at 252.227–7013’’ and adding
‘‘clauses at 252.227–7013 and 252.227–
7018’’ in its place.
The revisions read as follows:
227.7103–10 Contractor identification and
marking of technical data to be furnished
with restrictive markings.
(a) * * *
(3) * * * Subsequent to contract
award, the clauses at 252.227–7013,
Rights in Technical Data—Other Than
Commercial Products and Commercial
Services, and 252.227–7018, Rights in
Other Than Commercial Technical Data
and Computer Software—Small
Business Innovation Research Program
and Small Business Technology
Transfer Program, permit the contractor
to make additional assertions under
certain conditions. * * *
*
*
*
*
*
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(5) Information provided by offerors
in response to the solicitation provision
may be used in the source selection
process to evaluate the impact on
evaluation factors that may be created
by restrictions on the Government’s
ability to use or disclose technical data.
However, contracting officers shall
not—
(i) Prohibit offerors from offering
products for which the offeror is
entitled to provide the technical data
with restrictions; or
(ii) Require offerors, either as a
condition of being responsive to a
solicitation or as a condition for award,
to sell or otherwise relinquish rights in
technical data except for the standard
rights specified in the applicable
clauses.
(b) Contractor marking requirements.
The clauses at 252.227–7013, Rights in
Technical Data—Other Than
Commercial Products and Commercial
Services, and 252.227–7018, Rights in
Other Than Commercial Technical Data
and Computer Software—Small
Business Innovation Research Program
and Small Business Technology
Transfer Program—
(1) Require a contractor that desires to
restrict the Government’s rights in
technical data to place restrictive
markings on the data, provide
instructions for the placement of the
restrictive markings, and authorize the
use of certain restrictive markings; and
(2) Require a contractor to deliver,
furnish, or otherwise provide to the
Government any technical data in
which the Government has previously
obtained rights with the Government’s
preexisting rights in that data unless the
parties have agreed otherwise or
restrictions on the Government’s rights
to use, modify, reproduce, release,
perform, display, or disclose the data
have expired. When restrictions are still
applicable, the contractor is permitted
to mark the data with the appropriate
restrictive legend for which the data
qualified.
*
*
*
*
*
■ 8. Amend section 227.7103–11—
■ a. By revising paragraph (a); and
■ b. In paragraph (b), by removing
‘‘Technical Data requires’’ and adding
‘‘Technical Data, requires’’ in its place.
The revision reads as follows:
and Small Business Technology
Transfer Program, require a contractor,
and its subcontractors or suppliers that
will deliver technical data with other
than unlimited rights, to establish and
follow written procedures to assure that
restrictive markings are used only when
authorized and to maintain records to
justify the validity of asserted
restrictions on delivered data.
*
*
*
*
*
■ 9. Amend section 227.7103–12 by
revising paragraph (a)(1) to read as
follows:
227.7103–11
records.
227.7104–1
Contractor procedures and
(a) The clauses at 252.227–7013,
Rights in Technical Data—Other Than
Commercial Products and Commercial
Services, and 252.227–7018, Rights in
Other Than Commercial Technical Data
and Computer Software—Small
Business Innovation Research Program
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19:18 Dec 17, 2024
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227.7103–12 Government right to
establish conformity of markings.
(a) * * *
(1) Authorized markings are identified
in the clauses at 252.227–7013, Rights
in Technical Data—Other Than
Commercial Products and Commercial
Services, and 252.227–7018, Rights in
Other Than Commercial Technical Data
and Computer Software—Small
Business Innovation Research Program
and Small Business Technology
Transfer Program. All other markings
are nonconforming markings. An
authorized marking that is not in the
form, or differs in substance, from the
marking requirements in the clauses at
252.227–7013 and 252.227–7018 is also
a nonconforming marking.
*
*
*
*
*
227.7103–16
[Amended]
10. Amend section 227.7103–16 in
paragraph (b) by removing ‘‘nondisclosure’’ and adding ‘‘nondisclosure’’
in its place.
■ 11. Revise section 227.7104 to read as
follows:
■
227.7104 Contracts under the Small
Business Innovation Research Program and
Small Business Technology Transfer
Program.
12. Add sections 227.7104–1,
227.7104–2, 227.7104–3, and 227.7104–
4 to read as follows:
*
*
*
*
*
■
Sec.
227.7104–1 Policy.
227.7104–2 Rights in SBIR or STTR data.
227.7104–3 STTR program requirements.
227.7104–4 Solicitation provisions and
contract clauses.
*
*
*
*
*
227.7104–2
Policy.
(a) Do 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 computer
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software generated under a SBIR/STTR
contract except for the standard rights
identified at 227.7104–2.
(b) Do not prohibit contractors and
offerors from furnishing or offering to
furnish items, components, or processes
developed under a SBIR/STTR contract
or computer software generated under a
SBIR/STTR contract solely because the
Government’s rights to use, modify,
release, reproduce, perform, display, or
disclose such computer software or
technical data pertaining to those items,
components, or processes may be
restricted.
(c) Consistent with the guidance in
this section, 227.7103–10(a)(5),
227.7203–10(a)(5), and other acquisition
guidance applicable to SBIR/STTR
solicitations, 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.
(d) SBIR/STTR data rights apply to
SBIR/STTR data that are delivered,
developed, or generated in the
performance of a contract or agreement
that is covered by SBIR/STTR policies,
including contracts and subcontracts
that include phase III work. Phase III
work refers to work that derives from,
extends, or completes an effort made
under prior SBIR/STTR contracts or
agreements, and is funded by sources
other than SBIR/STTR programs (see
PGI 227.7104–1).
(e) For SBIR/STTR data that is other
than commercial technical data, and
other than commercial computer
software and computer software
documentation, see—
(1) 227.7103–9 and 227.7203–9 for
guidance on copyright licenses;
(2) 227.7103–10 and 227.7203–10 for
guidance on contractor identification
and marking of technical data and
computer software to be furnished with
restrictive markings;
(3) 227.7103–11 and 227.7203–11 for
guidance on maintenance of contractor
records; and
(4) 227.7103–12 and 227.7203–12 for
guidance on nonconforming and
unjustified markings.
Sfmt 4700
Rights in SBIR or STTR data.
(a) Under the clause at 252.227–7018,
Rights in Other Than Commercial
Technical Data and Computer Software–
Small Business Innovation Research
Program and Small Business
Technology Transfer Program, the
Government obtains the following
standard license rights:
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(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, after 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 Government and contractor or
subcontractor may negotiate special
license rights only after contract award.
The Government shall not make
contract award conditional on the
contractor or subcontractor negotiating
or consenting to negotiate special
license rights. Negotiation of special
license rights is authorized only after
contract award by mutual agreement of
the parties.
(d) The Small Business
Administration’s SBIR and STTR
Program Policy Directive (effective May
3, 2023) 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.
(e) The clause at 252.227–7018
governs the Government’s license rights
in SBIR/STTR data. However, the
following clauses or guidance governs
the Government’s license rights in any
data that are not SBIR/STTR data:
(1) For technical data pertaining to
other than commercial products or
commercial services or to any portion of
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a commercial product or commercial
service that was developed in any part
at Government expense, the clause at
252.227–7013, Rights in Technical
Data—Other Than Commercial Products
and Commercial Services, governs such
technical data in accordance with
227.7102–4(b).
(2) For technical data pertaining to
any portion of a commercial product or
commercial service that was developed
exclusively at private expense, the
clause at 252.227–7015, Technical
Data—Commercial Products and
Commercial Services, governs such
technical data, in accordance with
227.7102–4(b).
(3) For other than commercial
computer software or computer software
documentation, the clause at 252.227–
7014, Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation, governs such software
and computer software documentation,
in accordance with 227.7203–6(a)(1).
(4) For commercial computer software
and computer software documentation,
the license customarily provided to the
public governs such software and
documentation, in accordance with
227.7202–3.
227.7104–3
STTR program requirements.
(a) Before award of a contract under
the STTR program requirements only,
the provision at 252.227–7040,
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
research institution that allocates any
rights in intellectual property and the
offeror’s written representation that the
offeror 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 252.227–7041,
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 252.227–7040.
(c) After contract award, for any
modification to the written agreement
between the contractor and research
institution, the contracting officer shall
review the agreement and
representation to ensure the modified
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agreement adheres to the requirements
of 252.227–7041. 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 Other Than Commercial
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 products and commercial
services, when SBIR/STTR data are
delivered, developed, or generated
during contract performance, and when
any portion of contract performance is
governed by SBIR or STTR policies (e.g.,
performance of one or more
subcontracts qualifies as a phase III
SBIR or STTR award). See 227.7104–
1(d) for guidance on contracts or
subcontracts governed by SBIR or STTR
policies.
(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–Other Than Commercial Products
and Commercial Services.
(ii) 252.227–7014, Rights in Other
Than Commercial Computer Software
and Other Than Commercial Computer
Software Documentation.
(iii) 252.227–7015, Technical Data—
Commercial Products and Commercial
Services.
(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 Marked with
Restrictive Legends.
(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
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(paragraph (e) of the clause contains
information that must be included in a
challenge).
(c)(1) Use the provision at 252.227–
7040, Additional Preaward
Requirements for Small Business
Technology Transfer Program, in
solicitations that contain the clause at
252.227–7041.
(2) Use the clause at 252.227–7041,
Additional Postaward Requirements for
Small Business Technology Transfer
Program, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial products and
commercial services, for acquisitions
under the STTR program.
227.7108
[Amended]
13. Amend section 227.7108 in
paragraph (a)(5) by removing ‘‘nondisclosure’’ and adding ‘‘nondisclosure’’
in its place.
■ 14. Amend section 227.7203–5—
■ a. In paragraph (b)(5), by removing
‘‘non-disclosure’’ and adding
‘‘nondisclosure’’ in its place; and
■ b. By revising paragraph (b)(6) to read
as follows:
■
227.7203–5
Government rights.
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*
*
*
*
*
(b) * * *
(6) Contracting activities shall
establish procedures to assure that
computer software or computer software
documentation marked with
government purpose rights legends are
released or disclosed, including a
release or disclosure through a
Government solicitation, only to
persons subject to the use and
nondisclosure restrictions. Public
announcements in the System for
Award Management or other
publications must provide notice of the
use and nondisclosure requirements.
Class use and non-disclosure
agreements (e.g., agreements covering
all solicitations received by the XYZ
company within a reasonable period)
are authorized and may be obtained at
any time prior to release or disclosure
of the government purpose rights
software or documentation. Documents
transmitting government purpose rights
software or documentation to persons
under class agreements shall identify
the specific software or documentation
subject to government purpose rights
and the class agreement under which
such software or documentation are
provided.
*
*
*
*
*
■ 15. Amend section 227.7203–6 by
revising the section heading to read as
follows:
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227.7203–6 Solicitation provisions and
contract clauses.
■
■
d. In paragraph (c)(2) introductory
text, by removing ‘‘six months’’ and
adding ‘‘6 months’’ in its place; and
■ e. In paragraph (c)(2)(ii), by removing
‘‘clause at 252.227–7014’’ and adding
‘‘clauses at 252.227–7014 and 252.227–
7018’’ in its place.
The revisions read as follows:
227.7203–9
227.7203–10 Contractor identification and
marking of computer software or computer
software documentation to be furnished
with restrictive markings.
*
*
*
*
*
16. Amend section 227.7203–9—
a. In paragraph (a)(1), by revising the
first sentence; and
■ b. By revising paragraphs (a)(2) and
(b).
The revisions read as follows:
Copyright.
(a) * * *
(1) The clauses at 252.227–7014,
Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation, and 252.227–7018,
Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, require a
contractor to grant, or obtain for the
Government license rights which permit
the Government to reproduce the
software or documentation, distribute
copies, perform or display the software
or documentation and, through the right
to modify data, prepare derivative
works. * * *
(2) The clauses at 252.227–7013,
Rights in Technical Data—Other Than
Commercial Products and Commercial
Services, and 252.227–7018, Rights in
Other Than Commercial Technical Data
and Computer Software—Small
Business Innovation Research Program
and Small Business Technology
Transfer Program, do not permit a
contractor to incorporate a third party’s
copyrighted software into a deliverable
software item unless the contractor has
obtained an appropriate license for the
Government and, when applicable,
others acting on the Government’s
behalf, or has obtained the contracting
officer’s written approval to do so. Grant
approval to use third-party copyrighted
software in which the Government will
not receive a copyright license only
when the Government’s requirements
cannot be satisfied without the thirdparty material or when the use of the
third-party material will result in cost
savings to the Government which
outweigh the lack of a copyright license.
(b) Copyright considerations—special
works. See 227.7205 for copyright
considerations when acquiring special
works that are not SBIR/STTR data.
■ 17. Amend section 227.7203–10—
■ a. In paragraph (a)(3), by revising the
third sentence;
■ b. By revising paragraphs (a)(5) and
(b);
■ c. In paragraph (c)(1), by removing
‘‘subsection’’ and adding ‘‘section’’ in
its place;
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■
(a) * * *
(3) * * * Subsequent to contract
award, the clauses at 252.227–7014,
Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation, and 252.227–7018,
Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, permit a
contractor to make additional assertions
under certain conditions. * * *
*
*
*
*
*
(5) Information provided by offerors
in response to the solicitation provision
at 252.227–7017 may be used in the
source selection process to evaluate the
impact on evaluation factors that may be
created by restrictions on the
Government’s ability to use or disclose
computer software or computer software
documentation. However, contracting
officers shall not—
(i) Prohibit offerors from offering
products for which the offeror is
entitled to provide the computer
software with restrictions; or
(ii) Require offerors, either as a
condition of being responsive to a
solicitation or as a condition for award,
to sell or otherwise relinquish rights in
computer software except for the
standard rights specified in the
applicable clauses.
(b) Contractor marking requirements.
The clauses at 252.227–7014, Rights in
Other Than Commercial Computer
Software and Other Than Commercial
Computer Software Documentation, and
252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer
Program—
(1) Require a contractor who desires
to restrict the Government’s rights in
computer software or computer software
documentation to place restrictive
markings on the software or
documentation, provide instructions for
the placement of the restrictive
markings, and authorize the use of
certain restrictive markings. When it is
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anticipated that the software will or may
be used in combat or situations which
simulate combat conditions, do not
permit contractors to insert instructions
into computer programs that interfere
with or delay operation of the software
to display a restrictive rights legend or
other license notice; and
(2) Require a contractor to deliver,
furnish, or otherwise provide to the
Government any computer software or
computer software documentation in
which the Government has previously
obtained rights with the Government’s
preexisting rights in that software or
documentation unless the parties have
agreed otherwise or restrictions on the
Government’s rights to use, modify,
produce, release, or disclose the
software or documentation have
expired. When restrictions are still
applicable, the contractor is permitted
to mark the software or documentation
with the appropriate restrictive legend.
*
*
*
*
*
■ 18. Amend section 227.7203–11 by
revising paragraph (a) to read as follows:
227.7203–11
records.
Contractor procedures and
(a) The clauses at 252.227–7014,
Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation, and 252.227–7018,
Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, require a
contractor, and its subcontractors or
suppliers that will deliver computer
software or computer software
documentation with other than
unlimited rights, to establish and follow
written procedures to assure that
restrictive markings are used only when
authorized and to maintain records to
justify the validity of restrictive
markings.
*
*
*
*
*
■ 19. Amend section 227.7203–12 by
revising paragraph (a)(1) to read as
follows:
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227.7203–12 Government right to
establish conformity of markings.
(a) * * *
(1) Authorized markings are identified
in the clauses at 252.227–7014, Rights
in Other Than Commercial Computer
Software and Other Than Commercial
Computer Software Documentation, and
252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program.
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All other markings are nonconforming
markings. An authorized marking that is
not in the form, or differs in substance,
from the marking requirements in the
clauses at 252.227–7014 and 252.227–
7018 is also a nonconforming marking.
*
*
*
*
*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
20. Amend section 252.227–7013—
a. By revising the introductory text
and clause date;
■ b. By revising paragraph (a);
■ c. By redesignating paragraphs (b)
through (k) as paragraphs (c) through (l),
respectively;
■ d. By adding a new paragraph (b);
■ e. By revising newly redesignated
paragraphs (c) introductory text, (c)(2),
(c)(3)(i) and (iv), and (c)(4) through
(c)(6);
■ f. In newly redesignated paragraph (e),
by removing ‘‘paragraph (b)’’ and adding
‘‘paragraph (c)’’ in its place;
■ g. In newly redesignated paragraph
(f)(2), by removing ‘‘(e)(3)’’ and adding
‘‘(f)(3)’’ in its place;
■ h. In newly redesignated paragraph
(f)(3)—
■ i. By removing ‘‘Identification and
Assertion of Restrictions on the
Government’s Use, Release, or
Disclosure of Technical Data.’’;
■ ii. By adding a heading to the table;
and
■ iii. In note 3, by removing ‘‘SBIR’’ and
adding ‘‘SBIR/STTR’’ in its place;
■ j. In newly redesignated paragraph
(f)(4), by removing ‘‘of the Validation of
Restrictive Markings on Technical Data’’
and adding ‘‘in the DFARS 252.227–
7037, Validation of Restrictive Markings
on Technical Data,’’ in its place;
■ k. By revising newly redesignated
paragraph (g);
■ l. In newly redesignated paragraph
(i)(1), 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;
■ m. By revising newly redesignated
paragraph (i)(2);
■ n. In newly redesignated paragraph
(k)(2), by removing ‘‘(j)(1)’’ and adding
‘‘(k)(1)’’ in its place;
■ o. By revising newly redesignated
paragraph (l);
■ p. In alternate I—
■ i. By revising the clause date and the
introductory text;
■ ii. By redesignating paragraph (l) as
paragraph (m);
■ iii. In newly redesignated paragraph
(m)(2), by removing ‘‘paragraph (l)’’ and
‘‘twenty-four (24)’’ and adding
■
■
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‘‘paragraph (m)’’ and ‘‘24’’ in their
places, respectively;
■ q. In alternate II by—
■ 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—
Other Than Commercial Products and
Commercial Services.
As prescribed in 227.7102–4(b) and
227.7103–6(a), use the following clause:
Rights in Technical Data—Other Than
Commercial Products or Commercial
Services (JAN 2025)
(a) Definitions. As used in this
clause—
Computer data base means a
collection of data recorded in a form
capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines recorded
in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae and related material
that would enable the software to be
reproduced, recreated, or recompiled.
Computer software does not include
computer data bases or computer
software documentation.
Computer software documentation
means owner’s manuals, user’s manuals,
installation instructions, operating
instructions, and other similar items,
regardless of storage medium, that
explain the capabilities of the computer
software or provide instructions for
using the software.
Covered Government support
contractor means a contractor (other
than a litigation support contractor
covered by 252.204–7014) under a
contract, the primary purpose of which
is to furnish independent and impartial
advice or technical assistance directly to
the Government in support of the
Government’s management and
oversight of a program or effort, rather
than to directly furnish an end item or
service to accomplish a program or
effort, provided that the contractor—
(1) Is not affiliated with the prime
contractor or a first-tier subcontractor on
the program or effort, or with any direct
competitor of such prime contractor or
any such first-tier subcontractor in
furnishing end items or services of the
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type developed or produced on the
program or effort; and
(2) Receives access to technical data
or computer software for performance of
a Government contract that contains the
clause at 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends.
Detailed manufacturing or process
data means technical data that describe
the steps, sequences, and conditions of
manufacturing, processing or assembly
used by the manufacturer to produce an
item or component or to perform a
process.
Developed means that an item,
component, or process exists and is
workable. Thus, the item or component
must have been constructed or the
process practiced. Workability is
generally established when the item,
component, or process has been
analyzed or tested sufficiently to
demonstrate to reasonable people
skilled in the applicable art that there is
a high probability that it will operate as
intended. Whether, how much, and
what type of analysis or testing is
required to establish workability
depends on the nature of the item,
component, or process, and the state of
the art. To be considered ‘‘developed,’’
the item, component, or process need
not be at the stage where it could be
offered for sale or sold on the
commercial market, nor must the item,
component, or process be actually
reduced to practice within the meaning
of Title 35 of the United States Code.
Developed exclusively at private
expense means development was
accomplished entirely with costs
charged to indirect cost pools, costs not
allocated to a Government contract, or
any combination thereof.
(1) Private expense determinations
should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when
total costs are greater than the firmfixed-price or ceiling price of the
contract, the additional development
costs necessary to complete
development shall not be considered
when determining whether
development was at Government,
private, or mixed expense.
Developed exclusively with
Government funds means development
was not accomplished exclusively or
partially at private expense.
Developed with mixed funding means
development was accomplished
partially with costs charged to indirect
cost pools and/or costs not allocated to
a government contract, and partially
with costs charged directly to a
government contract.
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Form, fit, and function data means
technical data that describe the required
overall physical, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item, component, or
process to the extent necessary to permit
identification of physically and
functionally interchangeable items.
Generated means, with regard to
technical data or computer software,
first created in the performance of this
contract.
Government purpose means any
activity in which the United States
Government is a party, including
cooperative agreements with
international or multi-national defense
organizations, or sales or transfers by
the United States Government to foreign
governments or international
organizations. Government purposes
include competitive procurement, but
do not include the rights to use, modify,
reproduce, release, perform, display, or
disclose technical data for commercial
purposes or authorize others to do so.
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose technical
data within the Government without
restriction; and
(2) Release or disclose technical data
outside the Government and authorize
persons to whom release or disclosure
has been made to use, modify,
reproduce, release, perform, display, or
disclose that data for United States
Government purposes.
Limited rights means the rights to use,
modify, reproduce, release, perform,
display, or disclose technical data, in
whole or in part, within the
Government. The Government may not,
without the written permission of the
party asserting limited rights, release or
disclose the technical data outside the
Government, use the technical data for
manufacture, or authorize the technical
data to be used by another party, except
that the Government may reproduce,
release, or disclose such data or
authorize the use or reproduction of the
data by persons outside the Government
if—
(1) The reproduction, release,
disclosure, or use is—
(i) Necessary for emergency repair and
overhaul; or
(ii) A release or disclosure to—
(A) A covered Government support
contractor in performance of its covered
Government support contract for use,
modification, reproduction,
performance, display, or release or
disclosure to a person authorized to
receive limited rights technical data; or
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(B) A foreign government, of technical
data other than detailed manufacturing
or process data, when use of such data
by the foreign government is in the
interest of the Government and is
required for evaluational or
informational purposes;
(2) The recipient of the technical data
is subject to a prohibition on the further
reproduction, release, disclosure, or use
of the technical data; and
(3) The contractor or subcontractor
asserting the restriction is notified of
such reproduction, release, disclosure,
or use.
Small Business Innovation Research/
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.
Technical data means recorded
information, regardless of the form or
method of the recording, of a scientific
or technical nature (including computer
software documentation). The term does
not include computer software or
financial, administrative, cost or
pricing, or management information, or
information incidental to contract
administration.
Unlimited rights means rights to use,
modify, reproduce, perform, display,
release, or disclose technical data in
whole or in part, in any manner, and for
any purpose whatsoever, and to have or
authorize others to do so.
(b) Applicability. (1) Except as
provided in paragraph (b)(2) of this
clause—
(i) This clause governs all technical
data pertaining to other than
commercial products or commercial
services or to any portion of a
commercial product or commercial
service that was developed in any part
at Government expense; and
(ii) The clause at Defense Federal
Acquisition Regulation Supplement
(DFARS) 252.227–7015, Technical
Data—Commercial Products and
Commercial Services, governs the
technical data pertaining to any portion
of a commercial product or commercial
service that was developed exclusively
at private expense.
(2) The clause at DFARS 252.227–
7018, Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, governs
technical data that are SBIR/STTR data.
*
*
*
*
*
(c) Rights in technical data. The
Contractor grants or shall obtain for the
Government the following royalty free,
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worldwide, nonexclusive, irrevocable
license rights in technical data other
than computer software documentation
(see the DFARS 252.227–7014, Rights in
Other Than Commercial Computer
Software and Other Than Commercial
Computer Software Documentation,
clause of this contract for rights in
computer software documentation):
*
*
*
*
*
(2) Government purpose rights. (i) The
Government shall have government
purpose rights for a 5-year period, or
such other period as may be negotiated,
in technical data—
(A) That pertain to items,
components, or processes developed
with mixed funding except when the
Government is entitled to unlimited
rights in such data as provided in
paragraphs (c)(1)(ii) and (c)(1)(iv)
through (c)(1)(ix) of this clause; or
(B) 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.
(ii) The 5-year period, or such other
period as may have been negotiated,
shall commence upon execution of the
contract, subcontract, letter contract (or
similar contractual instrument), contract
modification, or option exercise that
required development of the items,
components, or processes or creation of
the data described in paragraph
(c)(2)(i)(B) of this clause. Upon
expiration of the 5-year or other
negotiated period, the Government shall
have unlimited rights in the technical
data.
(iii) The Government shall not release
or disclose technical 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 GovernmentFurnished Information Marked with
Restrictive Legends.
(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 legend
prescribed in paragraph (g)(3) of this
clause.
*
*
*
*
*
(3) * * *
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(i) Except as provided in paragraphs
(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)
of this clause, the Government shall
have limited rights in technical data—
(A) Pertaining to items, components,
or processes developed exclusively at
private expense and marked with the
limited rights legend prescribed in
paragraph (g) of this clause; or
(B) Created exclusively at private
expense in the performance of a contract
that does not require the development,
manufacture, construction, or
production of items, components, or
processes.
*
*
*
*
*
(iv) The Contractor acknowledges
that—
(A) Limited rights data are authorized
to be released or disclosed to covered
Government support contractors;
(B) The Contractor will be notified of
such release or disclosure;
(C) The Contractor (or the party
asserting restrictions as identified in the
limited rights legend) may require each
such covered Government support
contractor to enter into a nondisclosure
agreement directly with the Contractor
(or the party asserting restrictions)
regarding the covered Government
support contractor’s use of such data, or
alternatively, that the Contractor (or
party asserting restrictions) may waive
in writing the requirement for a
nondisclosure agreement; and
(D) Any such nondisclosure
agreement shall address the restrictions
on the covered Government support
contractor’s use of the limited rights
data as set forth in the clause at DFARS
252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information Marked with Restrictive
Legends. The nondisclosure agreement
shall not include any additional terms
and conditions unless mutually agreed
to by the parties to the nondisclosure
agreement.
(4) Specifically negotiated license
rights. 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 technical
data, may be modified by mutual
agreement to provide such rights as the
parties consider appropriate but shall
not provide the Government lesser
rights than are enumerated in the
definition of ‘‘limited rights’’ of this
clause. Any rights so negotiated shall be
identified in a license agreement made
part of this contract.
(5) Prior government rights. Technical
data that will be delivered, furnished, or
otherwise provided to the Government
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under this contract, in which the
Government has previously obtained
rights shall be delivered, furnished, or
provided with the preexisting rights,
unless—
(i) The parties have agreed otherwise;
or
(ii) Any restrictions on the
Government’s rights to use, modify,
reproduce, release, perform, display, or
disclose the data have expired or no
longer apply.
(6) Release from liability. The
Contractor agrees to release the
Government from liability for any
release or disclosure of technical data
made in accordance with the definition
of ‘‘limited 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 data and to
seek relief solely from the party who has
improperly used, modified, reproduced,
released, performed, displayed, or
disclosed Contractor data marked with
restrictive legends.
*
*
*
*
*
(f) * * *
(3) * * *
Identification and Assertion of
Restrictions on the Government’s Use,
Release, or Disclosure of Technical
Data
*
*
*
*
*
(g) Marking requirements. The
Contractor, and its subcontractors or
suppliers, may only assert restrictions
on the Government’s rights to use,
modify, reproduce, release, perform,
display, or disclose technical data to be
delivered under this contract by
marking the deliverable data subject to
restriction. Except as provided in
paragraph (g)(6) of this clause, only the
following legends are authorized under
this contract: the government purpose
rights legend at paragraph (g)(3) of this
clause; the limited rights legend at
paragraph (g)(4) of this clause; the
special license rights legend at
paragraph (g)(5) of this clause; and a
notice of copyright as prescribed under
17 U.S.C. 401 or 402.
(1) General marking instructions. The
Contractor, or its subcontractors or
suppliers, shall conspicuously and
legibly mark the appropriate legend on
all technical data that qualify for such
markings. The authorized legends 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
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follow the marking procedures in
paragraph (g)(1) of this clause.
*
*
*
*
*
(i) * * *
(2) Nonconforming technical data
(End of legend)
markings. A nonconforming marking is
(4) Limited rights markings. Data
a marking placed on technical data
delivered or otherwise furnished to the
delivered or otherwise furnished to the
Government with limited rights shall be Government under this contract that is
marked as follows:
not in the format authorized by this
contract. Correction of nonconforming
Limited Rights
markings is not subject to the DFARS
Contract Number llllllllllll 252.227–7037, Validation of Restrictive
Contractor Name
llllllllllll Markings on Technical Data, clause of
Contractor Address lllllllllll
this contract. If the Contracting Officer
The Government’s rights to use,
notifies the Contractor of a
modify, reproduce, release, perform,
nonconforming marking and the
display, or disclose these technical data Contractor fails to remove or correct
are restricted by paragraph (c)(3) of the
such marking within 60 days, the
DFARS 252.227–7013, Rights in
Government may ignore or, at the
Technical Data—Other Than
Contractor’s expense, remove or correct
Commercial Products or Commercial
any nonconforming marking.
Services, clause contained in the above
*
*
*
*
*
identified contract. Any reproduction of
(l) Subcontractors or suppliers. (1)
technical data or portions thereof
The Contractor shall ensure that the
marked with this legend must also
rights afforded its subcontractors and
reproduce the markings. Any person,
suppliers under 10 U.S.C. 3771–3775,
other than the Government, who has
10 U.S.C. 3781–3786, 15 U.S.C.
been provided access to such data must
638(j)(1)(B)(iii) and (v), and the
promptly notify the above named
identification, assertion, and delivery
Contractor.
processes of paragraph (f) of this clause
are recognized and protected.
(End of legend)
(2) Whenever any technical data for
(5) Special license rights markings. (i) other than commercial products or
Data in which the Government’s rights
commercial services, or for commercial
stem from a specifically negotiated
products or commercial services
license shall be marked as follows:
developed in any part at Government
expense, are to be obtained from a
Special License Rights
subcontractor or supplier for delivery to
The Government’s rights to use,
the Government under this contract, the
modify, reproduce, release, perform,
Contractor shall use the following
display, or disclose these data are
clauses in the subcontract or other
restricted by Contract Number [Insert
contractual instrument, including
contract number], License Number
subcontracts or other contractual
[Insert license identifier]. Any
instruments for commercial products or
reproduction of technical data or
commercial services, and require its
portions thereof marked with this
subcontractors or suppliers to do so,
legend must also reproduce the
without alteration, except to identify the
markings.
parties;
(i)(A) Except as provided in paragraph
(End of legend)
(l)(2)(ii) of this clause, use this clause to
(ii) For purposes of this clause,
govern the technical data pertaining to
special licenses do not include
other than commercial products and
Government Purpose Rights
government purpose license rights
commercial services or to any portion of
a commercial product or commercial
Contract Number llllllllllll acquired under a prior contract (see
service that was developed in any part
Contractor Name
llllllllllll paragraph (c)(5) of this clause).
Contractor Address lllllllllll
(6) Preexisting data markings. If the
at Government expense.
Expiration Date lllllllllllll terms of a prior contract or license
(B) Use the clause at DFARS 252.227–
permitted the Contractor to restrict the
The Government’s rights to use,
7015, Technical Data—Commercial
Government’s rights to use, modify,
modify, reproduce, release, perform,
Products and Commercial Services, to
display, or disclose these technical data reproduce, release, perform, display, or
govern the technical data pertaining to
disclose technical data deliverable
are restricted by paragraph (c)(2) of the
any portion of a commercial product or
under this contract, and those
DFARS 252.227–7013, Rights in
commercial service that was developed
restrictions are still applicable, the
Technical Data—Other Than
exclusively at private expense.
(ii) Use the clause at DFARS 252.227–
Contractor may mark such data with the
Commercial Products or Commercial
appropriate restrictive legend for which 7018, Rights in Other Than Commercial
Services, clause contained in the above
Technical Data and Computer
the data qualified under the prior
identified contract. No restrictions
contract or license. The Contractor shall Software—Small Business Innovation
apply after the expiration date shown
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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.
(2) Omitted markings. (i) Technical
data delivered or otherwise provided
under this contract without restrictive
markings will be presumed to have been
delivered with unlimited rights. To the
extent practicable, if the Contractor has
requested permission (see paragraph
(g)(2)(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.
(3) Government purpose rights
markings. Data delivered or otherwise
furnished to the Government with
government purpose rights shall be
marked as follows:
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above. Any reproduction of technical
data or portions thereof marked with
this legend must also reproduce the
markings.
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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.
(4) Technical data required to be
delivered by a subcontractor or supplier
shall normally be delivered to the next
higher-tier contractor, subcontractor, or
supplier. However, when there is a
requirement in the prime contract for
data which may be submitted with other
than unlimited rights by a subcontractor
or supplier, then said subcontractor or
supplier may fulfill its requirement by
submitting such data directly to the
Government, rather than through a
higher-tier contractor, subcontractor, or
supplier.
(5) The Contractor and higher-tier
subcontractors or suppliers shall not use
their power to award contracts as
economic leverage to obtain rights in
technical data from their subcontractors
or suppliers.
(6) In no event shall the Contractor
use its obligation to recognize and
protect subcontractor or supplier rights
in technical data as an excuse for failing
to satisfy its contractual obligations to
the Government.
*
*
*
*
*
Alternate I (JAN 2025). As prescribed
in 227.7103–6(b)(1), add the following
paragraph (m) to the basic clause:
*
*
*
*
*
Alternate II (JAN 2025). 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:
*
*
*
*
*
■ 21. Amend section 252.227–7014—
■ a. By revising the clause date and
paragraph (a);
■ b. By redesignating paragraphs (b)
through (k) as paragraphs (c) through (l),
respectively;
■ c. By adding a new paragraph (b);
■ d. By revising newly redesignated
paragraphs (c)(2), (c)(3), (c)(4)(i), (c)(5)
introductory text, and (c)(6);
■ e. In newly redesignated paragraph (e)
introductory text, by removing
‘‘paragraph (b)’’ and adding ‘‘paragraph
(c)’’ in its place;
■ f. In newly redesignated paragraph
(f)(2), by removing ‘‘paragraph (e)(3)’’
and adding ‘‘paragraph (f)(3)’’ in its
place;
■ g. In newly redesignated paragraph
(f)(3)—
■ i. By removing ‘‘Identification and
Assertion of Restrictions on the
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19:18 Dec 17, 2024
Jkt 265001
Government’s Use, Release, or
Disclosure of Technical Data.’’;
■ ii. By revising newly redesignated
paragraph (f)(3) table;
■ h. In newly redesignated paragraph
(f)(4), by removing ‘‘of the Validation of
Asserted Restrictions—Computer
Software’’ and adding ‘‘in the DFARS
252.227–7019, Validation of Asserted
Restrictions—Computer Software,’’ in
its place;
■ i. By revising newly redesignated
paragraph (g);
■ j. By revising newly redesignated
paragraph (i);
■ k. In newly redesignated paragraph
(k)(2), by removing ‘‘(j)(1)’’ and adding
‘‘(k)(1)’’ in its place;
■ l. By revising newly redesignated
paragraph (l);
■ m. In alternate I—
■ i. By revising the clause date and the
introductory text;
■ ii. By redesignating paragraph (l) as
paragraph (m); and
■ iii. In newly redesignated paragraph
(m)(2), by removing ‘‘paragraph (l)’’ and
‘‘twenty-four (24)’’ and adding
‘‘paragraph (m)’’ and ‘‘24’’ in their
places, respectively.
The revisions and additions read as
follows:
252.227–7014 Rights in Other Than
Commercial Computer Software and Other
Than Commercial Computer Software
Documentation.
*
*
*
*
*
Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation (JAN 2025)
(a) Definitions. As used in this
clause—
Commercial computer software means
software developed or regularly used for
nongovernmental purposes which—
(1) Has been sold, leased, or licensed
to the public;
(2) Has been offered for sale, lease, or
license to the public;
(3) Has not been offered, sold, leased,
or licensed to the public but will be
available for commercial sale, lease, or
license in time to satisfy the delivery
requirements of this contract; or
(4) Satisfies a criterion expressed in
paragraph (1), (2), or (3) of this
definition and would require only
minor modification to meet the
requirements of this contract.
Computer database means a
collection of recorded data in a form
capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines, recorded
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in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae, and related material
that would enable the software to be
reproduced, recreated, or recompiled.
Computer software does not include
computer databases or computer
software documentation.
Computer software documentation
means owner’s manuals, user’s manuals,
installation instructions, operating
instructions, and other similar items,
regardless of storage medium, that
explain the capabilities of the computer
software or provide instructions for
using the software.
Covered Government support
contractor means a contractor (other
than a litigation support contractor
covered by 252.204–7014) under a
contract, the primary purpose of which
is to furnish independent and impartial
advice or technical assistance directly to
the Government in support of the
Government’s management and
oversight of a program or effort (rather
than to directly furnish an end item or
service to accomplish a program or
effort), provided that the contractor—
(1) Is not affiliated with the prime
contractor or a first-tier subcontractor on
the program or effort, or with any direct
competitor of such prime contractor or
any such first-tier subcontractor in
furnishing end items or services of the
type developed or produced on the
program or effort; and
(2) Receives access to technical data
or computer software for performance of
a Government contract that contains the
clause at 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends.
Developed means that—
(1) A computer program has been
successfully operated in a computer and
tested to the extent sufficient to
demonstrate to reasonable persons
skilled in the art that the program can
reasonably be expected to perform its
intended purpose;
(2) Computer software, other than
computer programs, has been tested or
analyzed to the extent sufficient to
demonstrate to reasonable persons
skilled in the art that the software can
reasonably be expected to perform its
intended purpose; or
(3) Computer software documentation
required to be delivered under a
contract has been written, in any
medium, in sufficient detail to comply
with requirements under that contract.
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Developed exclusively at private
expense means development was
accomplished entirely with costs
charged to indirect cost pools, costs not
allocated to a government contract, or
any combination thereof.
(1) Private expense determinations
should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when
total costs are greater than the firmfixed-price or ceiling price of the
contract, the additional development
costs necessary to complete
development shall not be considered
when determining whether
development was at government,
private, or mixed expense.
Developed exclusively with
government funds means development
was not accomplished exclusively or
partially at private expense.
Developed with mixed funding means
development was accomplished
partially with costs charged to indirect
cost pools and/or costs not allocated to
a government contract, and partially
with costs charged directly to a
government contract.
Generated means, with regard to
technical data or computer software,
first created in the performance of this
contract.
Government purpose means any
activity in which the United States
Government is a party, including
cooperative agreements with
international or multi-national defense
organizations or sales or transfers by the
United States Government to foreign
governments or international
organizations. Government purposes
include competitive procurement, but
do not include the rights to use, modify,
reproduce, release, perform, display, or
disclose computer software or computer
software documentation for commercial
purposes or authorize others to do so.
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose computer
software or computer software
documentation within the Government
without restriction; and
(2) Release or disclose computer
software or computer software
documentation outside the Government
and authorize persons to whom release
or disclosure has been made to use,
modify, reproduce, release, perform,
display, or disclose the software or
documentation for United States
government purposes.
Minor modification means a
modification that does not significantly
alter the nongovernmental function or
purpose of the software or is of the type
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19:18 Dec 17, 2024
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customarily provided in the commercial
marketplace.
Other than commercial computer
software means software that does not
qualify as commercial computer
software under the definition of
‘‘commercial computer software’’ of this
clause.
Restricted rights apply only to other
than commercial 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 a reasonable number of
copies of the computer software
required for the purposes of safekeeping
(archive), backup, modification, or other
activities authorized in paragraphs (1),
(2), and (4) through (7) of this definition;
(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
clause;
(5) Use, and 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
any such 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
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Government-Furnished Information
Marked with Restrictive Legends;
(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) Use, and 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 or overhaul, or to modify the
computer software to reflect the
emergency 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
Marked with Restrictive Legends;
(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) Use, modify, reproduce, perform,
display, or release or disclose computer
software to a person authorized to
receive restricted rights computer
software for management and oversight
of a program or effort, and 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
Marked with Restrictive Legends, 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
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(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.
Unlimited rights means rights to use,
modify, reproduce, release, perform,
display, or disclose computer software
or computer software documentation in
whole or in part, in any manner and for
any purpose whatsoever, and to have or
authorize others to do so.
(b) Applicability. This clause governs
all other than commercial computer
software or other than commercial
computer software documentation,
except that the clause at DFARS
252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
governs any computer software or
computer software documentation that
is SBIR/STTR data.
(c) * * *
(2) Government purpose rights.
(i) Except as provided in paragraph
(c)(1) of this clause, the Government
shall have government purpose rights in
computer software development with
mixed funding.
(ii) Government purpose rights shall
remain in effect for a period of 5 years
unless a different period has been
negotiated. Upon expiration of the 5year or other negotiated period, the
Government shall have unlimited rights
in the computer software or computer
software documentation. The
government purpose rights period shall
commence upon execution of the
contract, subcontract, letter contract (or
similar contractual instrument), contract
modification, or option exercise that
required development of the computer
software.
(iii) The Government shall not release
or disclose computer software in which
it has government purpose rights to any
other person unless—
(A) Prior to release or disclosure, the
intended recipient is subject to the use
and nondisclosure agreement at DFARS
227.7103–7; or
(B) The recipient is a Government
contractor receiving access to the
software or documentation for
performance of a Government contract
that contains the clause at DFARS
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252.227–7025, Limitations on the Use or
Disclosure of Government Furnished
Information Marked with Restrictive
Legends.
(3) Restricted rights. (i) The
Government shall have restricted rights
in other than commercial computer
software required to be delivered or
otherwise provided to the Government
under this contract that were developed
exclusively at private expense.
(ii) The Contractor, its subcontractors,
or suppliers are not required to provide
the Government additional rights in
other than commercial computer
software delivered or otherwise
provided to the Government with
restricted rights. However, if the
Government desires to obtain additional
rights in such software, the Contractor
agrees to promptly enter into
negotiations with the Contracting
Officer to determine whether there are
acceptable terms for transferring such
rights. All other than commercial
computer software in which the
Contractor has granted the Government
additional rights shall be listed or
described in a license agreement made
part of the contract (see paragraph (c)(4)
of this clause). The license shall
enumerate the additional rights granted
the Government.
(iii) The Contractor acknowledges
that—
(A) Restricted rights computer
software is authorized to be released or
disclosed to covered Government
support contractors;
(B) The Contractor will be notified of
such release or disclosure;
(C) The Contractor (or the party
asserting restrictions, as identified in
the restricted rights legend) may require
each such covered Government support
contractor to enter into a nondisclosure
agreement directly with the Contractor
(or the party asserting restrictions)
regarding the covered Government
support contractor’s use of such
software, or alternatively, that the
Contractor (or party asserting
restrictions) may waive in writing the
requirement for a nondisclosure
agreement; and
(D) Any such nondisclosure
agreement shall address the restrictions
on the covered Government support
contractor’s use of the restricted rights
software as set forth in the clause at
DFARS 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends. The nondisclosure
agreement shall not include any
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additional terms and conditions unless
mutually agreed to by the parties to the
nondisclosure agreement.
(4) * * *
(i) The standard license rights granted
to the Government under paragraphs
(c)(1) through (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—Other Than
Commercial Products and Commercial
Services, clause of this contract.
*
*
*
*
*
(5) Prior government rights. Computer
software or computer software
documentation that will be delivered,
furnished, or otherwise provided to the
Government under this contract, in
which the Government has previously
obtained rights shall be delivered,
furnished, or provided with the
preexisting rights, unless—
*
*
*
*
*
(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 legends.
*
*
*
*
*
(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:
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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
(2) Omitted markings. (i) Computer
Printed Name and Title
lllllllll software or computer software
Signature llllllllllllllll documentation delivered or otherwise
(End of identification and assertion)
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*
*
*
*
*
(g) Marking requirements. The
Contractor, and its subcontractors or
suppliers, may only assert restrictions
on the Government’s rights to use,
modify, reproduce, release, perform,
display, or disclose computer software
by marking the deliverable software or
documentation subject to restriction.
Except as provided in paragraph (g)(6)
of this clause, only the following
legends are authorized under this
contract: the government purpose rights
legend at paragraph (g)(3) of this clause;
the restricted rights legend at paragraph
(g)(4) of this clause; the special license
rights legend at paragraph (g)(5) of this
clause; and a notice of copyright as
prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The
Contractor, or its subcontractors or
suppliers, shall conspicuously and
legibly mark the appropriate legend on
all computer software that qualify for
such markings. The authorized legends
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
legend 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.
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provided under this contract without
restrictive markings will be presumed to
have been delivered with unlimited
rights. To the extent practicable, if the
Contractor has requested permission
(see paragraph (g)(2)(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.
(3) 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 llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
Expiration Date lllllllllllll
The Government’s rights to use,
modify, reproduce, release, perform,
display, or disclose this software are
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restricted by paragraph (c)(2) of the
DFARS 252.227–7014, Rights in Other
Than Commercial Computer Software
and Other Than Commercial 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 legend must
also reproduce the markings.
(End of legend)
(4) Restricted rights markings.
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)(3) of the
DFARS 252.227–7014, Rights in Other
Than Commercial Computer Software
and Other Than Commercial Computer
Software Documentation, clause
contained in the above identified
contract. Any reproduction of computer
software or portions thereof marked
with this legend 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 legend)
(5) 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
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marking must also reproduce the
markings.
(End of legend)
(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).
(6) 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 legend
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.
*
*
*
*
*
(i) Removal of unjustified and
nonconforming markings. (1)
Unjustified computer software or
computer software documentation
markings. The rights and obligations of
the parties regarding the validation of
restrictive markings on computer
software or computer software
documentation furnished or to be
furnished under this contract are
contained in the DFARS 252.227–7019,
Validation of Asserted Restrictions—
Computer Software, and the DFARS
252.227–7037, Validation of Restrictive
Markings on Technical Data, clauses of
this contract, respectively.
Notwithstanding any provision of this
contract concerning inspection and
acceptance, the Government may ignore
or, at the Contractor’s expense, correct
or strike a marking if, in accordance
with the procedures of those clauses, a
restrictive marking is determined to be
unjustified.
(2) Nonconforming computer software
or computer software documentation
markings. A nonconforming marking is
a marking placed on computer software
or computer software documentation
delivered or otherwise furnished to the
Government under this contract that is
not in the format authorized by this
contract. Correction of nonconforming
markings is not subject to the DFARS
252.227–7019, Validation of Asserted
Restrictions—Computer Software, or the
DFARS 252.227–7037, Validation of
Restrictive Markings on Technical Data,
clause of this contract. If the Contracting
Officer notifies the Contractor of a
nonconforming marking or markings
and the Contractor fails to remove or
correct such markings within 60 days,
the Government may ignore or, at the
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Contractor’s expense, remove or correct
any nonconforming markings.
*
*
*
*
*
(l) Subcontractors or suppliers. (1)(i)
Except as provided in paragraph
(l)(1)(ii) of this clause, whenever any
other than commercial 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 Other Than Commercial 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.
(2) The Contractor and higher tier
subcontractors or suppliers shall not use
their power to award contracts as
economic leverage to obtain rights in
computer software or computer software
documentation from their
subcontractors or suppliers.
(3) The Contractor shall ensure that
subcontractor or supplier rights are
recognized and protected in the
identification, assertion, and delivery
processes required by paragraph (f) of
this clause.
(4) In no event shall the Contractor
use its obligation to recognize and
protect subcontractor or supplier rights
in computer software or computer
software documentation as an excuse for
failing to satisfy its contractual
obligation to the Government.
*
*
*
*
*
Alternate I (JAN 2025). As prescribed
in 227.7203–6(a)(2), add the following
paragraph (m) to the basic clause:
*
*
*
*
*
■ 22. Amend section 252.227–7015—
■ a. By revising the clause date and
paragraph (a);
■ b. By redesignating paragraphs (b)
through (e) as paragraphs (c) through (f),
respectively;
■ c. By adding a new paragraph (b);
■ d. In newly redesignated paragraph
(c)(2) introductory text, by removing
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‘‘paragraph (b)(1)’’ and adding
‘‘paragraph (c)(1)’’ in its place;
■ e. By revising newly redesignated
paragraph (c)(3);
■ f. By revising newly redesignated
paragraph (f);
■ g. 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 addition read as
follows:
252.227–7015 Technical Data—
Commercial Products and Commercial
Services.
*
*
*
*
*
Technical Data—Commercial Products
and Commercial Services (JAN 2025)
(a) Definitions. As used in this
clause—
Commercial product and commercial
service includes commercial
components and commercial processes
but does not include commercial
computer software.
Covered Government support
contractor means a contractor (other
than a litigation support contractor
covered by 252.204–7014) under a
contract, the primary purpose of which
is to furnish independent and impartial
advice or technical assistance directly to
the Government in support of the
Government’s management and
oversight of a program or effort (rather
than to directly furnish an end item or
service to accomplish a program or
effort), provided that the contractor—
(1) Is not affiliated with the prime
contractor or a first-tier subcontractor on
the program or effort, or with any direct
competitor of such prime contractor or
any such first-tier subcontractor in
furnishing end items or services of the
type developed or produced on the
program or effort; and
(2) Receives access to technical data
or computer software for performance of
a Government contract that contains the
clause at 252.227–7025, Limitations on
the Use or Disclosure of GovernmentFurnished Information Marked with
Restrictive Legends.
Form, fit, and function data means
technical data that describe the required
overall physical, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item, component, or
process to the extent necessary to permit
identification of physically and
functionally interchangeable items.
Technical data means recorded
information, regardless of the form or
method of recording, of a scientific or
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technical nature (including computer
software documentation). The term does
not include computer software or
financial, administrative, cost or
pricing, or management information, or
information incidental to contract
administration.
(b) Applicability. This clause governs
the technical data pertaining to any
portion of a commercial product or
commercial service that was developed
exclusively at private expense. If the
commercial product or commercial
service was developed in any part at
Government expense—
(1) The clause at Defense Federal
Acquisition Regulation Supplement
(DFARS) 252.227–7018, Rights in Other
Than Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
governs 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—Other
Than Commercial Products and
Commercial Services, governs the
technical data pertaining to any portion
of a commercial product or commercial
service that was developed in any part
at Government expense and is not
covered under the SBIR or STTR
program.
(c) * * *
(3) The Contractor acknowledges
that—
(i) Technical data covered by
paragraph (c)(2) of this clause are
authorized to be released or disclosed to
covered Government support
contractors;
(ii) The Contractor will be notified of
such release or disclosure;
(iii) The Contractor (or the party
asserting restrictions as identified in a
restrictive legend) may require each
such covered Government support
contractor to enter into a nondisclosure
agreement directly with the Contractor
(or the party asserting restrictions)
regarding the covered Government
support contractor’s use of such data, or
alternatively, that the Contractor (or
party asserting restrictions) may waive
in writing the requirement for a
nondisclosure agreement; and
(iv) Any such nondisclosure
agreement shall address the restrictions
on the covered Government support
contractor’s use of the data as set forth
in the clause at DFARS 252.227–7025,
Limitations on the Use or Disclosure of
Government-Furnished Information
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Marked with Restrictive Legends. The
nondisclosure agreement shall not
include any additional terms and
conditions unless mutually agreed to by
the parties to the nondisclosure
agreement.
*
*
*
*
*
(f) Subcontractors or suppliers. (1)
The Contractor shall recognize and
protect the rights afforded its
subcontractors and suppliers under 10
U.S.C. 3771–3775, 10 U.S.C. 3781–3786,
and 15 U.S.C. 638(j)(1)(B)(iii) and (v).
(2) Whenever any technical data
related to commercial products or
commercial services 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 products or
commercial services, 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 product or commercial
service 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 product or
commercial service that was developed
in any part at Government expense:
(i) Use the clause at DFARS 252.227–
7013, Rights in Technical Data—Other
Than Commercial Products and
Commercial Services, to govern any
technical data that are not generated
during any portion of performance that
is covered under the SBIR or STTR
program.
(ii) Use the clause at 252.227–7018,
Rights in Other Than Commercial
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.
*
*
*
*
*
Alternate I (JAN 2025). As prescribed
in 227.7102–4(a)(2), add the following
definition of ‘‘Vessel design’’ in
alphabetical order to paragraph (a) and
add (c)(4) to the basic clause:
*
*
*
*
*
23. Amend section 252.227–7016 by
revising the introductory text and clause
date and paragraphs (a) and (c)(2) to
read as follows:
■
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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:
Rights in Bid or Proposal Information
(JAN 2025)
(a) Definitions. As used in this
clause—
Computer software is defined in—
(1) The 252.227–7014, Rights in Other
Than Commercial Computer Software
and Other Than Commercial 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 252.227–7018,
Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program, clause of
this contract.
Technical data is defined in—
(1) The 252.227–7013, Rights in
Technical Data—Other Than
Commercial Products and Commercial
Services, 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 252.227–7018,
Rights in Other Than Commercial
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—Other Than
Commercial Products and Commercial
Services; DFARS 252.227–7014, Rights
in Other Than Commercial Computer
Software and Other Than Commercial
Computer Software Documentation; or
DFARS 252.227–7018, Rights in Other
Than Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of this contract.
*
*
*
*
*
■ 24. Amend section 252.227–7017 by—
■ a. Revising the introductory text and
the provision date;
■ b. Revising paragraphs (a) and (b);
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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 (JAN
2025)
(a) Definitions. As used in this
provision—
Computer software is defined in—
(1) The 252.227–7014, Rights in Other
Than Commercial Computer Software
and Other Than Commercial 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 252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of this solicitation.
SBIR/STTR data is defined in the
252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software—Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
clause of this solicitation.
Technical data is defined in—
(1) The 252.227–7013, Rights in
Technical Data—Other Than
Commercial Products and Commercial
Services, 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 252.227–7018, Rights in Other Than
Commercial 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 Program (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 items, component, or process. For computer software or computer software
documentation identify the software or documentation.
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.
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Date llllllllllllllllll ■ g. In newly redesignated paragraph
Printed Name and Title
lllllllll (f)(2), by removing ‘‘paragraph (e)(3)’’
Signature llllllllllllllll and adding ‘‘paragraph (f)(3)’’ in its
(End of identification and assertion)
*
*
*
*
*
■ 25. Amend section 252.227–7018—
■ a. By revising the section heading,
introductory text, clause title, and
clause date;
■ b. By revising paragraph (a);
■ c. By redesignating paragraphs (b)
through (k) as paragraphs (c) through (l),
respectively;
■ d. By adding a new paragraph (b);
■ e. By revising newly redesignated
paragraph (c);
■ f. In newly redesignated paragraph (e)
introductory text, by removing
‘‘paragraph (b)’’ and adding ‘‘paragraph
(c)’’ in its place;
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place;
h. By revising the newly redesignated
paragraph (f)(3) table;
■ i. In newly redesignated paragraph
(f)(4), by removing ‘‘of the Validation of
Asserted Restrictions—Computer
Software and/or Validation of
Restrictive Markings on Technical Data’’
and adding ‘‘in the 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;
■ j. By revising newly redesignated
paragraphs (g) and (i);
■
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k. In newly redesignated paragraph
(k)(2) introductory text, by removing
‘‘(j)(1)’’ and adding ‘‘(k)(1)’’ in its place;
■ l. By revising newly redesignated
paragraph (l); and
■ m. By removing Alternate I.
The revisions and addition read as
follows:
■
252.227–7018 Rights in Other Than
Commercial Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technology Transfer Program.
As prescribed in 227.7104–4(a)(1), use
the following clause:
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Rights in Other Than Commercial
Technical Data and Computer
Software—Small Business Innovation
Research Program and Small Business
Technlogy Transfer Program (JAN
2025)
(a) Definitions. As used in this
clause—
Commercial computer software means
software developed or regularly used for
nongovernmental purposes which—
(1) Has been sold, leased, or licensed
to the public;
(2) Has been offered for sale, lease, or
license to the public;
(3) Has not been offered, sold, leased,
or licensed to the public but will be
available for commercial sale, lease, or
license in time to satisfy the delivery
requirements of this contract; or
(4) Satisfies a criterion expressed in
paragraph (1), (2), or (3) of this
definition and would require only
minor modification to meet the
requirements of this contract.
Computer database means a
collection of recorded data in a form
capable of being processed by a
computer. The term does not include
computer software.
Computer program means a set of
instructions, rules, or routines, recorded
in a form that is capable of causing a
computer to perform a specific
operation or series of operations.
Computer software means computer
programs, source code, source code
listings, object code listings, design
details, algorithms, processes, flow
charts, formulae, and related material
that would enable the software to be
reproduced, re-created, or recompiled.
Computer software does not include
computer databases or computer
software documentation.
Computer software documentation
means owner’s manuals, user’s manuals,
installation instructions, operating
instructions, and other similar items,
regardless of storage medium, that
explain the capabilities of the computer
software or provide instructions for
using the software.
Covered Government support
contractor means a contractor (other
than a litigation support contractor
covered by 252.204–7014) under a
contract, the primary purpose of which
is to furnish independent and impartial
advice or technical assistance directly to
the Government in support of the
Government’s management and
oversight of a program or effort (rather
than to directly furnish an end item or
service to accomplish a program or
effort), provided that the contractor—
(1) Is not affiliated with the prime
contractor or a first-tier subcontractor on
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the program or effort, or with any direct
competitor of such prime contractor or
any such first-tier subcontractor in
furnishing end items or services of the
type developed or produced on the
program or effort; and
(2) Receives access to the technical
data or computer 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 Marked with Restrictive
Legends.
Detailed manufacturing or process
data means technical data that describe
the steps, sequences, and conditions of
manufacturing, processing or assembly
used by the manufacturer to produce an
item or component or to perform a
process.
Developed means—
(1) (Applicable to technical data other
than computer software
documentation.) An item, component,
or process, exists and is workable. Thus,
the item or component must have been
constructed or the process practiced.
Workability is generally established
when the item, component, or process
has been analyzed or tested sufficiently
to demonstrate to reasonable people
skilled in the applicable art that there is
a high probability that it will operate as
intended. Whether, how much, and
what type of analysis or testing is
required to establish workability
depends on the nature of the item,
component, or process, and the state of
the art. To be considered ‘‘developed,’’
the item, component, or process need
not be at the stage where it could be
offered for sale or sold on the
commercial market, nor must the item,
component or process be actually
reduced to practice within the meaning
of Title 35 of the United States Code;
(2) A computer program has been
successfully operated in a computer and
tested to the extent sufficient to
demonstrate to reasonable persons
skilled in the art that the program can
reasonably be expected to perform its
intended purpose;
(3) Computer software, other than
computer programs, has been tested or
analyzed to the extent sufficient to
demonstrate to reasonable persons
skilled in the art that the software can
reasonably be expected to perform its
intended purpose; or
(4) Computer software documentation
required to be delivered under a
contract has been written, in any
medium, in sufficient detail to comply
with requirements under that contract.
Developed exclusively at private
expense means development was
accomplished entirely with costs
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charged to indirect cost pools, costs not
allocated to a government contract, or
any combination thereof.
(1) Private expense determinations
should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when
total costs are greater than the firmfixed-price or ceiling price of the
contract, the additional development
costs necessary to complete
development shall not be considered
when determining whether
development was at government,
private, or mixed expense.
Developed exclusively with
government funds means development
was not accomplished exclusively or
partially at private expense.
Developed with mixed funding means
development was accomplished
partially with costs charged to indirect
cost pools and/or costs not allocated to
a government contract, and partially
with costs charged directly to a
government contract.
Form, fit, and function data means
technical data that describe the required
overall physical, functional, and
performance characteristics (along with
the qualification requirements, if
applicable) of an item, component, or
process to the extent necessary to permit
identification of physically and
functionally interchangeable items.
Generated means, with respect to
technical data or computer software,
first created in the performance of this
contract.
Government purpose means any
activity in which the United States
Government is a party, including
cooperative agreements with
international or multi-national defense
organizations or sales or transfers by the
United States Government to foreign
governments or international
organizations. Government purposes
include competitive procurement, but
do not include the rights to use, modify,
reproduce, release, perform, display, or
disclose technical data or computer
software for commercial purposes or
authorize others to do so.
Government purpose rights means the
rights to—
(1) Use, modify, reproduce, release,
perform, display, or disclose technical
data 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.
Limited rights means the rights to use,
modify, reproduce, release, perform,
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display, or disclose technical data, in
whole or in part, within the
Government. The Government may not,
without the written permission of the
party asserting limited rights, release or
disclose the technical data outside the
Government, use the technical data for
manufacture, or authorize the technical
data to be used by another party, except
that the Government may reproduce,
release, or disclose such data or
authorize the use or reproduction of the
data by persons outside the Government
if—
(1) The reproduction, release,
disclosure, or use is—
(i) Necessary for emergency repair and
overhaul; or
(ii) A release or disclosure to—
(A) A covered Government support
contractor in performance of its covered
Government support contracts for use,
modification, reproduction,
performance, display, or release or
disclosure to a person authorized to
receive limited rights technical data; or
(B) A foreign government, of technical
data other than detailed manufacturing
or process data, when use of such data
by the foreign government is in the
interest of the Government and is
required for evaluational or
informational purposes;
(2) The recipient of the technical data
is subject to a prohibition on the further
reproduction, release, disclosure, or use
of the technical data; and
(3) The contractor or subcontractor
asserting the restriction is notified of
such reproduction, release, disclosure,
or use.
Minor modification means a
modification that does not significantly
alter the nongovernmental function or
purpose of computer software or is of
the type customarily provided in the
commercial marketplace.
Other than commercial computer
software means software that does not
qualify as commercial computer
software under the definition of
‘‘commercial computer software’’ of this
clause.
Restricted rights apply only to other
than commercial 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.
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Transferred programs remain subject to
the provisions of this clause;
(3) Make a reasonable number of
copies of the computer software
required for the purposes of safekeeping
(archive), backup, modification, or other
activities authorized in paragraphs (1),
(2), and (4) through (7) of this definition;
(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) Use, and 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
any such 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 GovernmentFurnished Information Marked with
Restrictive Legends;
(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 (a)(18)(iv) of this
clause, for any other purpose; and
(iv) Such use is subject to the
limitations in paragraphs (1) through (3)
of this definition;
(6) Use, and 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 emergency 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
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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 Marked with
Restrictive Legends;
(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) Use, modify, reproduce, perform,
display, or release or disclose computer
software to a person authorized to
receive restricted rights computer
software for management and oversight
of a program or effort, and 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
Marked with Restrictive Legends, 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 time period 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, after the
award, the agency and the Contractor
negotiate for some other protection
period for the SBIR/STTR data
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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.
Technical data means recorded
information, regardless of the form or
method of the recording, of a scientific
or technical nature (including computer
software documentation). The term does
not include computer software or
financial, administrative, cost or
pricing, or management information, or
information incidental to contract
administration.
Unlimited rights means rights to use,
modify, reproduce, release, perform,
display, or disclose, technical data or
computer software in whole or in part,
in any manner and for any purpose
whatsoever, and to have or authorize
others to do so.
(b) Applicability. This clause governs
all SBIR/STTR data. For any data that
are not SBIR/STTR data—
(1) The clause at Defense Federal
Acquisition Regulation Supplement
(DFARS) 252.227–7013, Rights in
Technical Data—Other Than
Commercial Products and Commercial
Services, governs the technical data
pertaining to other than commercial
products and commercial services or to
any portion of a commercial product or
commercial service that was developed
in any part at Government expense, and
the clause at DFARS 252.227–7015,
Technical Data—Commercial Products
and Commercial Services, governs the
technical data pertaining to any portion
of a commercial product or commercial
service that was developed exclusively
at private expense;
(2) The clause at DFARS 252.227–
7014, Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation, governs other than
commercial computer software and
other than commercial computer
software documentation; and
(3) A license consistent with DFARS
227.7202 governs commercial computer
software and commercial computer
software documentation.
(c) Rights in technical data and
computer software. The Contractor
grants or shall obtain for the
Government the following royalty-free,
worldwide, nonexclusive, irrevocable
license rights in technical data or other
than commercial computer software. All
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rights not granted to the Government are
retained by the Contractor.
(1) Unlimited rights. The Government
shall have unlimited rights in technical
data or computer software, including
such data generated under this contract,
that are—
(i) Form, fit, and function data;
(ii) Necessary for installation,
operation, maintenance, or training
purposes (other than detailed
manufacturing or process data);
(iii) Corrections or changes to
Government-furnished technical data or
computer software;
(iv) Otherwise publicly available or
have been released or disclosed by the
Contractor or a subcontractor without
restrictions on further use, release, or
disclosure other than a release or
disclosure resulting from the sale,
transfer, or other assignment of interest
in the technical data or computer
software to another party or the sale or
transfer of some or all of a business
entity or its assets to another party;
(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 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
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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 5year 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. This
Government purpose rights period
commences upon the expiration of the
SBIR/STTR data protection period.
(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 GovernmentFurnished Information Marked with
Restrictive Legends.
(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)(3) of this
clause.
(3) Limited rights. The Government
shall have limited rights in technical
data that were not generated under this
contract, pertain to items, components,
or processes developed exclusively at
private expense, and are marked, in
accordance with the marking
instructions in paragraph (g)(1) of this
clause, with the legend prescribed in
paragraph (g)(4) of this clause.
(4) Restricted rights in computer
software. The Government shall have
restricted rights in other than
commercial computer software required
to be delivered or otherwise furnished
to the Government under this contract
that were developed exclusively at
private expense and were not generated
under this contract.
(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
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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. After contract award, the
standard license rights granted to the
Government under paragraphs (c)(1)
through (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 enumerated
in the definition of ‘‘restricted rights’’ of
this clause. Any rights so negotiated
shall be identified in a license
agreement made part of this contract.
(7) Prior government rights. Technical
data, including computer software
documentation, or computer software
that will be delivered, furnished, or
otherwise provided to the Government
under this contract, in which the
Government has previously obtained
rights shall be delivered, furnished, or
provided with the preexisting rights,
unless—
(i) The parties have agreed otherwise;
or
(ii) Any restrictions on the
Government’s rights to use, modify,
release, perform, display, or disclose the
technical data or computer software
have expired or no longer apply.
(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,’’ ‘‘other than
commercial 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 legends.
(9) Covered Government support
contractors. The Contractor
acknowledges that—
(i) Limited rights technical data and
restricted rights computer software are
authorized to be released or disclosed to
covered Government support
contractors;
(ii) The Contractor will be notified of
such release or disclosure;
(iii) The Contractor may require each
such covered Government support
contractor to enter into a nondisclosure
agreement directly with the Contractor
(or the party asserting restrictions as
identified in a restrictive legend)
regarding the covered Government
support contractor’s use of such data or
software, or alternatively that the
Contractor (or party asserting
restrictions) may waive in writing the
requirement for a nondisclosure
agreement; and
(iv) Any such nondisclosure
agreement shall address the restrictions
on the covered Government support
contractor’s use of the data or software
as set forth in the clause at DFARS
252.227–7025, Limitations on the Use or
Disclosure of Government-Furnished
Information Marked with Restrictive
Legends. The nondisclosure agreement
shall not include any additional terms
and conditions unless mutually agreed
to by the parties to the nondisclosure
agreement.
*
*
*
*
*
(f) * * *
(3) * * *
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)
(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 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, or government purpose 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.
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Date llllllllllllllllll computer software to be delivered under
Printed Name and Title
lllllllll this contract by marking the deliverable
Signature llllllllllllllll data or software subject to restriction.
(End of identification and assertion)
*
*
*
*
*
(g) Marking requirements. The
Contractor, and its subcontractors or
suppliers, may only assert restrictions
on the Government’s rights to use,
modify, reproduce, release, perform,
display, or disclose technical data or
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Except as provided in paragraph (g)(8)
of this clause, only the following
markings are authorized under this
contract: the government purpose rights
marking at paragraph (g)(3) of this
clause; the limited rights legend at
paragraph (g)(4) of this clause; the
restricted rights legend at paragraph
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(g)(5) of this clause; the SBIR/STTR data
rights legend at paragraph (g)(6) of this
clause; or the special license rights
legend at paragraph (g)(7) of this clause;
and a notice of copyright as prescribed
under 17 U.S.C. 401 or 402.
(1) General marking instructions. The
Contractor, or its subcontractors or
suppliers, shall conspicuously and
legibly mark the appropriate legend to
all technical data and computer
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software that qualify for such markings.
The authorized legends shall be placed
on the 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
legend 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.
(2) 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)(2)(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
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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.
(3) 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 Other Than Commercial
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 legend)
(4) 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:
Government, who has been provided
access to such data must promptly
notify the above named Contractor.
(End of legend)
(5) 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 Other
Than Commercial 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 legend 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 legend)
(6) 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 legend:
SBIR/STTR Data Rights
Contract Number llllllllllll
Contractor Name
llllllllllll
Contractor Address lllllllllll
Contract Number llllllllllll Expiration of SBIR/STTR Data Protection PeContractor Name
llllllllllll riod llllllllllllllllll
Contractor Address lllllllllll Expiration of the Government Purpose Rights
Period lllllllllllllllll
The Government’s rights to use,
Limited Rights
modify, reproduce, release, perform,
display, or disclose these technical data
are restricted by paragraph (c)(3) of the
DFARS 252.227–7018, Rights in Other
Than Commercial 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 legend must also reproduce the
markings. Any person, other than the
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The Government’s rights to use,
modify, reproduce, release, perform,
display, or disclose technical data or
computer software marked with this
legend are restricted during the period
shown as provided in paragraph (c)(5) of
the DFARS 252.227–7018, Rights in
Other Than Commercial 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
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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103363
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 legend must also
reproduce the markings.
(End of legend)
(7) 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:
Special License Rights
khammond on DSK9W7S144PROD with RULES4
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
marking must also reproduce the
markings.
(End of legend)
(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).
(8) 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 legend 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.
*
*
*
*
*
(i) Removal of unjustified and
nonconforming markings. (1)
Unjustified markings. The rights and
obligations of the parties regarding the
validation of restrictive markings on
technical data or computer software
furnished or to be furnished under this
contract are contained in the DFARS
252.227–7037, Validation of Restrictive
Markings on Technical Data, and the
DFARS 252.227–7019, Validation of
Asserted Restrictions—Computer
Software, clauses of this contract,
respectively. Notwithstanding any
provision of this contract concerning
inspection and acceptance, the
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19:18 Dec 17, 2024
Jkt 265001
Government may ignore or, at the
Contractor’s expense, correct or strike a
marking if, in accordance with the
applicable procedures of those clauses,
a restrictive marking is determined to be
unjustified.
(2) Nonconforming markings. A
nonconforming marking is a marking
placed on technical data or computer
software delivered or otherwise
furnished to the Government under this
contract that is not in the format
authorized by this contract. Correction
of nonconforming markings is not
subject to the DFARS 252.227–7037,
Validation of Restrictive Markings on
Technical Data, or the DFARS 252.227–
7019, Validation of Asserted
Restrictions—Computer Software,
clause of this contract. If the Contracting
Officer notifies the Contractor of a
nonconforming marking or markings
and the Contractor fails to remove or
correct such markings within 60 days,
the Government may ignore or, at the
Contractor’s expense, remove or correct
any nonconforming markings.
*
*
*
*
*
(l) Subcontractors or suppliers. (1)
The Contractor shall assure that the
rights afforded its subcontractors and
suppliers under 10 U.S.C. 3771–3775,
10 U.S.C. 3781–3786, 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 other than
commercial 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 clause at DFARS 252.227–
7013, Rights in Technical Data—Other
Than Commercial Products and
Commercial Services, to govern the
technical data pertaining to other than
commercial products or commercial
services or to any portion of a
commercial product or commercial
service that was developed in any part
at Government expense, and use the
clause at DFARS 252.227–7015,
Technical Data—Commercial Products
and Commercial Services, to govern the
technical data pertaining to any portion
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of a commercial product or commercial
service that was developed exclusively
at private expense;
(B) Use the DFARS clause at 252.227–
7014, Rights in Other Than Commercial
Computer Software and Other Than
Commercial Computer Software
Documentation, to govern other than
commercial 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.
(3) Technical data required to be
delivered by a subcontractor or supplier
shall normally be delivered to the next
higher tier contractor, subcontractor, or
supplier. However, when there is a
requirement in the prime contract for
technical data which may be submitted
with other than unlimited rights by a
subcontractor or supplier, then said
subcontractor or supplier may fulfill its
requirement by submitting such
technical data directly to the
Government, rather than through a
higher tier contractor, subcontractor, or
supplier.
(4) The Contractor and higher tier
subcontractors or suppliers shall not use
their power to award contracts as
economic leverage to obtain rights in
technical data or computer software
from their subcontractors or suppliers.
(5) In no event shall the Contractor
use its obligation to recognize and
protect subcontractor or supplier rights
in technical data or computer software
as an excuse for failing to satisfy its
contractual obligation to the
Government.
*
*
*
*
*
■ 26. Amend section 252.227–7019—
■ a. By revising the introductory text
and clause date;
■ b. By revising paragraphs (a) and
(d)(2)(i)(B);
■ c. In paragraph (e)(1), by revising the
second sentence;
■ d. In paragraph (f)(1)(ii), by removing
‘‘sixty (60) days’’ and adding ‘‘60 days’’
in its place;
■ e. In paragraph (f)(1)(iv), by removing
‘‘three-year’’ and adding ‘‘3-year’’ in its
place;
■ f. In paragraph (f)(7), by removing
‘‘provides the contractor’’ and adding
‘‘provides the Contractor’’ in its place;
and
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103364 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations
■
g. By revising paragraph (g).
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:
khammond on DSK9W7S144PROD with RULES4
Validation of Asserted Restrictions—
Computer Software (JAN 2025)
(a) Definitions. As used in this
clause—
Contractor, unless otherwise
specifically indicated, means the
Contractor and its subcontractors or
suppliers.
Other terms are defined in the
252.227–7014, Rights in Other Than
Commercial Computer Software and
Other Than Commercial Computer
Software Documentation, clause of this
contract.
*
*
*
*
*
(d) * * *
(2) * * *
(i) * * *
(B) Return the computer software to
the Contractor for correction at the
Contractor’s expense. If the Contractor
fails to correct or strike the unjustified
restrictions and return the corrected
software to the Contracting Officer
within 60 days following receipt of the
software, the Contracting Officer may
correct or strike the markings at the
Contractor’s expense;
*
*
*
*
*
(e) * * *
(1) * * * Except for software that is
publicly available, has been furnished to
the Government without restrictions, or
has been otherwise made available
without restrictions, the Government
may exercise this right only within 3
years after the date(s) the software is
delivered or otherwise furnished to the
Government, or 3 years following final
payment under this contract, whichever
is later.
*
*
*
*
*
(g) Contractor appeal—Government
obligation. (1) The Government agrees
that, notwithstanding a Contracting
Officer’s final decision denying the
validity of an asserted restriction and
except as provided in paragraph (g)(3) of
this clause, it will honor the asserted
restriction—
(i) For a period of 90 days from the
date of the Contracting Officer’s final
decision to allow the Contractor to
appeal to the appropriate Board of
Contract Appeals or to file suit in an
appropriate court;
(ii) For a period of 1 year from the
date of the Contracting Officer’s final
decision if, within the first 90 days
following the Contracting Officer’s final
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19:18 Dec 17, 2024
Jkt 265001
decision, the Contractor has provided
notice of an intent to file suit in an
appropriate court; or
(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.
(2) The Contractor agrees that the
Government may strike, correct, or
ignore the restrictive markings if the
Contractor fails to—
(i) Appeal to a Board of Contract
Appeals within 90 days from the date of
the Contracting Officer’s final decision;
(ii) File suit in an appropriate court
within 90 days from such date; or
(iii) File suit within 1 year after the
date of the Contracting Officer’s final
decision if the Contractor had provided
notice of intent to file suit within 90
days following the date of the
Contracting Officer’s final decision.
(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 legends 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 Defense
Federal Acquisition Regulation
Supplement (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
Marked with Restrictive Legends. 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
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Fmt 4701
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asserted restrictions are ultimately
upheld.
*
*
*
*
*
■ 27. Amend section 252.227–7025—
■ a. By revising the introductory text
and clause date;
■ b. By adding paragraph (a)
introductory text;
■ c. By revising paragraphs (a)(3) and
(b)(1) through (4);
■ d. In paragraph (b)(5)(iii), by removing
‘‘thirty (30) days’’ and adding ‘‘30 days’’
in its place;
■ e. By revising paragraph (b)(5)(iv);
■ f. in paragraph (c)(2), by removing
‘‘third party beneficiary’’ and adding
‘‘third-party beneficiary’’ in its place;
■ g. In paragraph (d), by removing ‘‘nondisclosure’’ and adding ‘‘nondisclosure’’
in its place; and
■ h. 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 Marked with Restrictive
Legends.
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
Marked With Restrictive Legends (JAN
2025)
(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 Other
Than Commercial 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 legends. (i) The Contractor shall
use, modify, reproduce, perform, or
display technical data received from the
Government with limited rights legends,
computer software received with
restricted rights legends, or SBIR/STTR
technical data or computer software
received with SBIR/STTR data rights
legends (during the SBIR/STTR data
protection period) only in the
performance of this contract. The
Contractor shall not, without the
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express written permission of the party
whose name appears in the legend,
release or disclose such data or software
to any unauthorized person.
(ii) If the Contractor is a covered
Government support contractor, the
Contractor is also subject to the
additional terms and conditions at
paragraph (b)(5) of this clause.
(2) GFI marked with government
purpose rights legends. The Contractor
shall use technical data or computer
software received from the Government
with government purpose rights legends
for government purposes only. The
Contractor shall not, without the
express written permission of the party
whose name appears in the restrictive
legend, 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 legends. (i) The
Contractor shall use, modify, reproduce,
release, perform, or display technical
data or computer software received from
the Government with specially
negotiated license legends 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.
(ii) If the Contractor is a covered
Government support contractor, the
Contractor may also be subject to some
or all of the additional terms and
conditions at paragraph (b)(5) of this
clause, to the extent such terms and
conditions are required by the specially
negotiated license.
(4) GFI technical data marked with
commercial restrictive legends. (i) The
Contractor shall use, modify, reproduce,
perform, or display technical data that
are or pertain to a commercial product
or commercial service and are received
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19:18 Dec 17, 2024
Jkt 265001
from the Government with a commercial
restrictive legend (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
legend, use the technical data to
manufacture additional quantities of the
commercial products or commercial
services, or release or disclose such data
to any unauthorized person.
(ii) If the Contractor is a covered
Government support contractor, the
Contractor is also subject to the
additional terms and conditions at
paragraph (b)(5) of this clause.
(5) * * *
(iv) The Contractor will enter into a
nondisclosure agreement with the party
whose name appears in the legend, if
required to do so by that party, and that
any such nondisclosure agreement will
implement the restrictions on the
Contractor’s use of such data or software
as set forth in this clause. The
nondisclosure agreement shall not
include any additional terms and
conditions unless mutually agreed to by
the parties to the nondisclosure
agreement; and
*
*
*
*
*
(End of clause)
■ 28. Revise the 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:
*
*
*
*
*
■ 29. Revise the 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:
*
*
*
*
*
■ 30. Revise the section 252.227–7037
introductory text to read as follows:
252.227–7037 Validation of Restrictive
Markings on Technical Data.
As prescribed in 227.7102–4(c),
227.7103–6(e)(3), 227.7104–4(b)(7), or
227.7203–6(f), use the following clause:
*
*
*
*
*
■ 31. Add sections 252.227–7040 and
252.227–7041 to read as follows:
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252.227–7040 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 (JAN 2025)
(a) Definitions. As used in this
provision, the terms ‘‘research
institution’’ and ‘‘United States’’ have
the meaning given in the 252.227–7041,
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 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 terms or conditions that
conflict with the requirements of the
clause at 252.227–7018, Rights in Other
Than Commercial Technical Data and
Computer Software–Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
or this provision, including the rights of
the United States, the Offeror, and the
research institution 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 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
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paragraph (b) of this provision in an
attachment to that contract.
(End of provision)
252.227–7041 Additional Postaward
Requirements for Small Business
Technology Transfer Program.
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As prescribed in 227.7104–4(c)(2), use
the following clause:
Additional Postaward Requirements for
Small Business Technology Transfer
Program (JAN 2025)
(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 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 guidance at Federal Acquisition
Regulation 35.017.
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 (DFARS)
252.227–7040, Additional Preaward
Requirements for Small Business
Technology Transfer Program:
(1) The written agreement between
the Contractor and a research
institution.
(2) The Contractor’s written
representation that the Contractor is
satisfied with that written agreement,
which does not conflict with the clause
at DFARS 252.227–7018, Rights in
Other Than Commercial Technical Data
and Computer Software–Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
or this clause.
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(c) Postaward updates. The Contractor
shall not allow any modification to its
written agreement with the 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 research
institution, as modified; and
(ii) The written agreement, as
modified, does not conflict with the
clause at DFARS 252.227–7018, Rights
in Other Than Commercial Technical
Data and Computer Software–Small
Business Innovation Research Program
and Small Business Technology
Transfer Program, or this clause; and
(4) No terms and conditions that
conflict with the clause at DFARS
252.227–7018, Rights in Other Than
Commercial Technical Data and
Computer Software–Small Business
Innovation Research Program and Small
Business Technology Transfer Program,
or this clause, including the rights of the
United States, the Contractor, and the
research institution 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. 2024–29226 Filed 12–17–24; 8:45 am]
BILLING CODE 6001–FR–P
PO 00000
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 216
[Docket DARS–2024–0023]
RIN 0750–AL80
Defense Federal Acquisition
Regulation Supplement: Task Order
and Delivery Order Contracting for
Architectural and Engineering Services
(DFARS Case 2023–D007)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2023 that provides
directions for awarding architectural
and engineering service task orders and
delivery orders under multiple-award
contracts.
SUMMARY:
Effective December 18, 2024.
Ms.
Kimberly R. Ziegler, telephone 703–
901–3176.
SUPPLEMENTARY INFORMATION:
DATES:
FOR FURTHER INFORMATION CONTACT:
I. Background
DoD published a proposed rule in the
Federal Register at 89 FR 60853 on July
29, 2024, to implement section 802 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2023 (Pub.
L. 117–263), which amends 10 U.S.C.
3406. Section 802 added a requirement
at 10 U.S.C. 3406(h)(1) for DoD
contracting officers to use qualificationbased selections when awarding task
orders and delivery orders for
architectural and engineering (AE)
services in accordance with Federal
Acquisition Regulation (FAR) subpart
36.6 and 40 U.S.C. chapter 11 (The
Brooks Architect Engineer Act). Section
802 also added, at 10 U.S.C. 3406(h)(2),
direction that prevents contracting
officers from routinely requesting
additional information regarding
qualifications when awarding task
orders or delivery orders under a
multiple-award contract. Two
respondents submitted public
comments in response to the proposed
rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103338-103366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29226]
[[Page 103337]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
Part IV
Department of Defense
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Defense Acquisition Regulations System
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48 CFR Parts 212, 216, 225, et al.
Defense Federal Acquisition Regulation Supplement: Small Business
Innovation Research Program Data Rights (DFARS Case 2019-D043); Final
Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103338]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227, and 252
[Docket DARS-2020-0033]
RIN 0750-AK84
Defense Federal Acquisition Regulation Supplement: Small Business
Innovation Research Program Data Rights (DFARS Case 2019-D043)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending 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.
DATES: Effective January 17, 2025.
FOR FURTHER INFORMATION CONTACT: Mr. David Johnson, telephone 202-913-
5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 87 FR
77680 on December 19, 2022, to implement in the DFARS the intellectual
property (e.g., data rights) portions of the Small Business
Administration's (SBA's) revised Small Business Innovation Research
(SBIR) Program and Small Business Technology Transfer (STTR) Program
Policy Directive. DoD had previously published an advance notice of
proposed rulemaking (ANPR) at 85 FR 53758 on August 31, 2020. Six
respondents submitted written public comments in response to the
proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments submitted in writing and discussed
by the attendees at the virtual public meetings on February 2, 2023,
and March 2, 2023, in the development of the final rule. A discussion
of the comments and the changes made to the rule as a result of those
comments is provided, as follows:
A. Summary of Significant Changes From the Proposed Rule
Based on the comments received, the following DFARS guidance,
contract clauses, and solicitation provisions are revised:
DFARS 227.7104-1 is revised to further explain the scope
of SBIR/STTR Phase III work to which the SBIR/STTR data rights clauses
apply.
DFARS 227.7104-2 is revised to provide a list of
applicable clauses and policies that govern the Government's license
rights in any data that are not SBIR/STTR data.
The following provision and clauses are revised to ensure
consistent definitions of the term ``SBIR/STTR data'' and the term
``generated'': DFARS 252.227-7013, Rights in Technical Data--Other Than
Commercial Products or Commercial Services; 252.227-7014, Rights in
Other Than Commercial Computer Software and Other Than Commercial
Computer Software Documentation; 252.227-7017, Identification and
Assertion of Use, Release, or Disclosure Restrictions; and 252.227-
7018, Rights in Other Than Commercial Technical Data and Computer
Software--Small Business Innovation Research Program and Small Business
Technology Transfer Program.
DFARS 252.227-7018(c)(2)(ii)(B) is revised to remove
language that may have been misinterpreted to imply that special
licenses may be negotiated prior to contract award when the standard
license rights are SBIR/STTR data rights.
The provision at DFARS 252.227-7040, Additional Preaward
Requirements for Small Business Technology Transfer Program, and the
clause at DFARS 252.227-7041, Additional Postaward Requirements for
Small Business Technology Transfer Program, are revised to clarify STTR
program requirements regarding consistency between the clause at DFARS
252.227-7018 and written agreements between the offeror and a research
institution, and regarding written representations related to the
written agreements in preaward submissions and postaward updates.
Proposed changes to the marking requirements related to
restrictions on third-party recipients of technical data and computer
software (in the clauses at DFARS 252.227-7013, 252.227-7014, and
252.227-7018) have been removed from this rule. Proposed changes
regarding restrictive markings on technical data related to commercial
technology in the clause at DFARS 252.227-7015, Technical Data--
Commercial Products and Commercial Services, have also been removed
from this rule.
B. Analysis of Public Comments
1. Restrictive Marking Requirements
Comment: Several respondents provided comments and recommended
revisions to proposed changes to restrictive marking requirements in
DFARS 252.227-7013, 252.227-7014, 252.227-7015, and 252.227-7018.
Response: As discussed in the ANPR, DoD proposed revisions to
address the SBIR/STTR Policy Directive's emphasis on requiring
restrictive markings for SBIR/STTR data, while ensuring appropriate
procedures to address the inadvertent omission of restrictive markings
by SBIR/STTR contractors. These issues are addressed by clarifying that
the long-standing requirements for identification and marking of
deliverable other than commercial technical data and software,
including the procedures to address inadvertent omission of restrictive
markings, apply to SBIR/STTR data. For example, this final rule adds
references to the clause at DFARS 252.227-7018 at DFARS 227.7103-10 and
227.7103-12 for other than commercial technical data and DFARS
227.7203-10 and 227.7203-12 for other than commercial computer
software; and incorporating such procedures into all associated clauses
at DFARS 252.227-7013, 252.227-7014, and 252.227-7018).
As discussed in the proposed rule, DoD proposed further revisions
to address additional related matters regarding the absence of
restrictive markings (e.g., the lack of an unlimited rights marking),
and to address additional public comments and recent case precedent
regarding requirements, restrictions, and procedures for correcting
nonconforming markings, in cases of commercial markings and markings
directed to non-Government, third-party recipients of marked data. The
vast majority of the public comments were directed to complex matters
related to these additional markings issues, rather than the more
limited markings topics addressed in the SBIR/STTR Policy Directive. To
expedite implementation of the primary SBIR/STTR policy elements of
this DFARS case while enabling further consideration of comments and
recommendations from the public on proposed revisions directed to such
additional important marking requirements in these clauses, these
regulatory changes related to marking requirements have been removed
from this final rule (e.g., unlimited rights markings, markings for
commercial technical data, and markings directed to third-party
recipients).
[[Page 103339]]
2. Scope and Applicability of Clauses and Scope of License Rights
a. Applicability Section of the Clauses
Comment: Several respondents recommended removal or revision of the
proposed applicability sections in the data rights clauses. A
respondent asserted that proposed applicability sections of the clauses
should indicate that the SBIR/STTR clauses are no longer applicable to
SBIR/STTR data once the related product becomes commercial. Other
respondents recommended revisions to the proposed applicability
sections to remove applicability of DFARS 252.227-7013 to portions of a
commercial item that was developed in any part at Government expense.
Lastly, other respondents recommended moving the applicability sections
to a later section of the clauses to reduce the administrative burden
on contractors resulting from changes in paragraph numbering in
restrictive markings.
Response: In view of DFARS drafting conventions, DoD added
applicability sections to paragraph (b) of 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 reflect
the existing prescriptive guidance found in DFARS 227.7102-4, 227.7104,
and the SBIR/STTR Policy Directive, none of which exclude or limit the
applicability of the SBIR/STTR program requirements once the related
product becomes commercial. 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.
b. Guidance on Scope of SBIR/STTR Contracts, Including Phase III Work
Comment: One respondent asserted that part 227 should be revised to
define the scope of SBIR/STTR contracts by referencing the definition
in the SBIR/STTR Policy Directive. Another respondent recommended
clarifying the scope of Phase III work.
Response: DoD has partially adopted these recommendations. Based on
guidance from the SBIR/STTR Policy Directive, DFARS 227.7104-1 is
revised to further clarify the scope of applicability of SBIR/STTR data
rights and the scope of SBIR/STTR Phase III work.
c. Guidance on the SBIR Protection Period
Comment: A respondent recommended providing guidance on how the
SBIR protection period applies to multiple awards at various SBIR
phases.
Response: DFARS 227.7104-2(a)(2) provides the guidance recommended
by the respondent. In addition, DFARS Procedures, Guidance, and
Information 227.7104-2 provides examples and guidance on how the SBIR
or SBIR/STTR protection period applies in each example.
d. Guidance on Applicability of Commercial Computer Software Licenses
Comment: A respondent recommended revising DFARS 227.7104-4 to
discuss the applicability of commercial computer software licenses.
Response: DoD has adopted this recommendation. DFARS 227.7104-2 is
revised to provide a list of applicable clauses and policies that
govern the Government's license rights in any data that are not SBIR/
STTR data. DFARS 227.7104-2 references commercial computer software and
the applicability of licenses customarily provided to the public, in
accordance with DFARS 227.7202-3.
e. New STTR Provision and Clause
Comment: A respondent recommended edits to DFARS 252.227-7040 and
DFARS 252.227-7041 regarding potential conflicts with DFARS 252.227-
7018 in the STTR agreements and associated representation.
Response: DoD has adopted this recommendation. DFARS 252.227-7040
and DFARS 252.227-7041 are revised to clarify requirements for written
agreements between the offeror and a research institution, preaward
submissions, and postaward updates.
f. Consistent Inclusion of Definitions in the Clauses
Comment: A respondent asserted that DFARS 252.227-7013, 252.227-
7014, 252.227-7017, and 252.227-7018 should consistently include
definitions of the term ``SBIR/STTR'' data and ``generated'' when
referenced in the clauses. In addition, a respondent asserted that the
definition of the term ``generated'' in the clause at DFARS 252.227-
7013 should not reference computer software.
Response: DFARS 252.227-7013, 252.227-7014, 252.227-7017, and
252.227-7018 are revised to ensure consistent inclusion of the
definitions of the terms ``SBIR/STTR data'' and ``generated.'' However,
DoD has not adopted the second recommendation. For the sake of
consistency, the definition of the term ``generated'' is the same in
both DFARS 252.227-7013 and 252.227-7014.
g. License Rights in Computer Software Documentation Under DFARS
252.227-7018
Comment: A respondent asserted that computer software documentation
should not be a separate category of unlimited rights data in paragraph
(c)(1) of DFARS 252.227-7018. The respondent asserted that the edits to
DFARS 252.227-7018 expand the scope of the Government's license rights
in computer software documentation.
Response: Under both DFARS 252.227-7014 and DFARS 252.227-7018, the
Government has an unlimited rights license in computer software
documentation. The edits to DFARS 252.227-7018(c)(1) do not expand the
scope of the Government's existing license rights in computer software
documentation. For the sake of clarity, these edits align the format of
the ``unlimited rights'' license grant in DFARS 252.227-7014 with DFARS
252.227-7018. The Government's unlimited rights license in computer
software documentation is based in the requirements of 10 U.S.C.
3771(b)(3) (see 60 FR 33464, 33467 (June 28, 1995)). The statute at 10
U.S.C. 3771 provides an unlimited rights license in technical data
necessary for operation, maintenance, installation, or training
purposes. Computer software documentation is technical data. It is
defined narrowly to include only owner's manuals, user's manuals,
installation instructions, operating instructions, and similar items
that explain the capabilities of computer software or provide
instructions for using the software. Such data are necessary for
operation, maintenance, installation, or training. Consequently, under
10 U.S.C. 3771, a contractor may not restrict the Government's rights
to release or disclose computer software documentation or to permit
others to use the data. Accordingly, these revisions to DFARS 252.227-
7018(c) are aligned with the Government's license rights to computer
software documentation in 10 U.S.C. 3771 and DFARS 252.227-7014.
h. Assertion Requirements
Comment: Several respondents commented that the identification and
assertion requirements in DFARS 252.227-7017 should not be applied to
SBIR/STTR data. Another respondent
[[Page 103340]]
recommended that this provision should include permission for SBIR
contractors to add new assertions after contract award.
Response: The assertion requirements are necessary to identify and
protect the intellectual property interests of contractors and
subcontractors under SBIR/STTR contracts, because they provide a
practical document that specifically identifies deliverable technical
data and software to be furnished with restrictions. These procedures
help ensure appropriate protections for deliverable technical data and
software, and these protections should be equally applicable to SBIR/
STTR data. In addition, these procedures will help clarify the
protection period(s) applicable to deliverable SBIR/STTR data (e.g.,
see discussion at section II.2.c. of this preamble). In addition, DFARS
252.227-7018 already permits post-award 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.
3. Evaluation of Proposals and Post-Award Negotiations of SBIR/STTR
Data Rights
a. Evaluation of Proposals in SBIR/STTR Contracts
Comment: Respondents asserted that the revisions to DFARS 227.7104-
1(c) are inconsistent with the SBIR/STTR Policy Directive because they
imply that the Government may reject a proposal due to SBIR data
rights. A respondent asserted that the effect of this language will be
inconsistent with the intent of the SBIR/STTR Policy Directive and may
result in violations of the Directive.
Response: The rule revises DFARS 227.7104-1 to mirror the policies
at DFARS 227.7103-10(a)(5) and DFARS 227.7203-10(a)(5), and it adds
cross-references at DFARS 227.7104-1 to policies at DFARS 227.7103-10
and DFARS 227.7203-10. These instructions expressly prohibit
contracting officers from requiring offerors to relinquish SBIR/STTR
data rights or from rejecting offerors solely due to SBIR/STTR data
rights restrictions. The guidance 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.
b. Negotiation in SBIR/STTR Contracts
Comment: A respondent recommended revisions to DFARS 252.227-
7018(c)(2)(ii)(B). The respondent asserted that the proposed rule may
be misinterpreted to imply that special licenses may be negotiated
prior to contract award where the standard license rights are SBIR/STTR
data rights.
Response: DFARS 252.227-7018(c)(2)(ii)(B) is revised to remove this
language. In addition, DFARS 227.7104-2(c) is added to indicate that
the Government and the SBIR/STTR contractor or subcontractor may
negotiate special license rights only after contract award. Note that
DFARS Case 2018-D071, Negotiation of Price for Technical Data and
Preference for Specially Negotiated Licenses, addresses proposed DFARS
revisions to implement policies and procedures regarding negotiation of
special licenses, including applicable SBIR/STTR policies and
procedures.
4. Guidance in the SBIR/STTR Policy Directive Outside of the Scope of
Part 227
a. Restrictions on Prototypes
Comment: Some respondents recommended applying the marking
requirements to prototypes, end items, or products themselves.
Response: The ANPR, proposed rule, and this final rule recognize
and reference 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
respondents' recommended revision to Part 227 and the associated
clauses.
b. Guidance From SBIR/STTR Policy Directive Not Related to Data Rights
Comment: Respondents recommended revising part 227 to include
guidance from the SBIR/STTR Policy Directive that is not related to
data rights, including guidance on agency notices of intent to award,
SBA notices of intent to appeal, SBA appeals, suspensions of work, and
sole-source awards.
Response: The respondents' recommendations are not related to
license rights to technical data or software. Therefore, they are
beyond the scope of part 227 and this rule.
C. Other Changes
Editorial changes were made, including updates to comport with
DFARS content and formatting conventions. The rule also adds cross-
references at DFARS 227.7104-1 for SBIR/STTR technical data and
software to the policies at DFARS 227.7103-9 through 227.7103-12 and
227.7203-9 through 227.7203-12 related to other than commercial
technical data and other than commercial computer software. These
policies have also been revised to clarify their applicability to SBIR/
STTR data.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold, for Commercial Products (Including Commercially Available
Off-the-Shelf Items), and for Commercial Services
The 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--Other Than
Commercial Products and Commercial Services; 252.227-7014, Rights in
Other Than Commercial Computer Software and Other Than Commercial
Computer Software Documentation; 252.227-7015, Technical Data--
Commercial Products and Commercial Services; 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
Other Than Commercial 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 products, including COTS items, and
commercial services. In addition, DFARS 252.227-7018 applies to
contracts at or below the SAT and for the acquisition of commercial
products, including COTS items, and commercial services.
This rule also creates a new provision and a new clause: (1) DFARS
252.227-7040, Additional Preaward Requirements for Small Business
Technology Transfer Program, and (2) DFARS 252.227-7041, Additional
Postaward Requirements for Small Business Technology Transfer Program.
The new provision and clause apply to
[[Page 103341]]
acquisitions at or below the SAT and to acquisitions of commercial
products, including COTS items, and commercial services. Not applying
this provision and clause to contracts at or below the SAT and for the
acquisition of commercial products, including COTS items, and
commercial services would exclude contracts intended to be covered by
this rule and undermine the overarching purpose of the rule.
Consequently, the rule applies to contracts at or below the SAT and for
the acquisition of commercial products, including COTS items, and
commercial services.
IV. 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 rule also provides the Government
with perpetual government purpose rights license after the expiration
of the SBIR/STTR data protection period, rather than unlimited rights.
In addition, the rule implements STTR-unique requirements in the SBIR/
STTR Policy Directive related to allocation of intellectual property
rights between partnering institutions and contractors under the STTR
program. The 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.
This rule therefore impacts the Government's license rights in
SBIR/STTR data. The SBIR/STTR Policy Directive emphasizes the need to
protect the intellectual property interests of small businesses. This
rule provides a transparent and consistent framework that protects the
intellectual property interests of our small-business industry
partners.
V. Executive Order 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, as amended.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will 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. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
and is summarized as follows:
DoD is amending 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 this 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 a 5-year period that can be extended
indefinitely;
Perpetual government purpose rights 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 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 the following DFARS provision and clauses:
252.227-7013, Rights in Technical Data--Other Than Commercial Products
and Commercial Services; 252.227-7014, Rights in Other Than Commercial
Computer Software and Other Than Commercial Computer Software
Documentation; 252.227-7015, Technical Data--Commercial Products and
Commercial Services; 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 Other Than
Commercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
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. The rule provides
a transparent and consistent framework that protects the intellectual
property interests of our small-business industry partners.
DoD received no comments in response to the initial regulatory
flexibility analysis.
This 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) 2022 through FY 2024, DoD estimates that 3,341 contractors may be
impacted by the changes in this final rule. Of those entities,
approximately 3,258 (98 percent) are small entities.
This rule imposes new reporting, recordkeeping, or other compliance
requirements for small entities participating in the STTR program. This
rule adds 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 rule requires STTR contractors to submit both an
updated written agreement and an updated written representation to the
contracting officer as occasioned by postaward modifications of the
written agreement. Based on data from SBA for FY 2022 through FY 2024,
DoD estimates that an average of 618 unique small entities are awarded
an average of 359 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.
There are no known, significant, alternative approaches that would
meet the requirements.
VIII. Paperwork Reduction Act
This final rule contains information collection requirements that
have been approved by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
[[Page 103342]]
This information collection requirement has been assigned OMB Control
Number 0750-0010, Defense Federal Acquisition Regulation Supplement
Part 227, Patents, Data, and Copyrights; Small Business Technology
Transfer Program.
List of Subjects in 48 CFR Parts 212, 227, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System amends 48 CFR
parts 212, 227, and 252 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 PRODUCTS AND COMMERCIAL
SERVICES
0
2. Amend section 212.301 by revising paragraph (f)(xii) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(f) * * *
(xii) Part 227--Patents, Data, and Copyrights. (A) Use the clause
at 252.227-7013, Rights in Technical Data--Other Than Commercial
Products and Commercial Services, 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.
(B) Use the clause at 252.227-7015, Technical Data--Commercial
Products and Commercial Services, as prescribed in 227.7102-4(a)(1), to
comply with 10 U.S.C. 3772(a). Use the clause with its Alternate I as
prescribed in 227.7102-4(a)(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 Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program, as
prescribed in 227.7104-4(a)(1).
(D) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, as prescribed in 227.7102-4(c).
(E) Use the provision at 252.227-7040, Additional Preaward
Requirements for Small Business Technology Transfer Program, as
prescribed in 227.7104-4(c)(1).
(F) Use the clause at 252.227-7041, Additional Postaward
Requirements for Small Business Technology Transfer Program, as
prescribed in 227.7104-4(c)(2).
* * * * *
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
3. Amend section 227.7103-5--
0
a. In paragraph (b)(4) introductory text, by removing ``government
may'' and adding ``Government may'' in its place;
0
b. In paragraph (b)(4)(i), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place;
0
c. By revising paragraphs (b)(5) and (6) and (c)(4).
The revisions read as follows:
227.7103-5 Government rights.
* * * * *
(b) * * *
(5) When technical data marked with government purpose rights
legends will be released or disclosed to a Government contractor
performing a contract that does not include the clause at 252.227-7025,
the contract may be modified, prior to release or disclosure, to
include that clause in lieu of requiring the contractor to complete a
use and nondisclosure agreement.
(6) Contracting activities shall establish procedures to assure
that technical data marked with government purpose rights legends are
released or disclosed, including a release or disclosure through a
Government solicitation, only to persons subject to the use and
nondisclosure restrictions. Public announcements in the System for
Award Management or other publications must provide notice of the use
and nondisclosure requirements. Class use and nondisclosure agreements
(e.g., agreements covering all solicitations received by the XYZ
company within a reasonable period) are authorized and may be obtained
at any time prior to release or disclosure of the government purpose
rights data. Documents transmitting government purpose rights data to
persons under class agreements shall identify the technical data
subject to government purpose rights and the class agreement under
which such data are provided.
(c) * * *
(4) When the person asserting limited rights permits the Government
to release, disclose, or have others use the data subject to
restrictions on further use, release, or disclosure, or for a release
under paragraph (c)(2)(i), (ii), or (iii) of this section, the intended
recipient must complete the use and nondisclosure agreement at
227.7103-7, or receive the data for performance of a Government
contract that contains the clause at 252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends, prior to release or disclosure of the limited
rights data.
* * * * *
0
4. Amend section 227.7103-6 in paragraph (a) by revising the second
sentence and adding a new third sentence to read 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 products or commercial services 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 and paragraph (a);
0
b. In paragraph (b) and paragraph (c) introductory text, by removing
``non-disclosure'' and adding ``nondisclosure'' in its place;
0
e. In the agreement ``Use and Non-Disclosure Agreement'', by revising
the agreement heading, 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) Except as provided in paragraph (b) of this section, technical
data or computer software delivered to the Government with restrictions
on use, modification, reproduction, release, performance, display, or
disclosure may not be provided to third parties, unless the intended
recipient completes and signs the use and nondisclosure agreement at
paragraph (c) of this section prior to release or disclosure of the
data.
(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
[[Page 103343]]
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 or SBIR/STTR data rights
legends (after expiration of the SBIR/STTR data protection period
provided in the SBIR/STTR data rights legend) only for government
purposes and shall not do so for any commercial purpose. The Recipient
shall not release, perform, display, or disclose these Data, without
the express written permission of the contractor whose name appears in
the restrictive legend (the ``Contractor''), to any person other than
its subcontractors or suppliers, or prospective subcontractors or
suppliers, who require these Data to submit offers for, or perform,
contracts with the Recipient. The Recipient shall require its
subcontractors or suppliers, or prospective subcontractors or
suppliers, to sign a use and 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 legends or SBIR/STTR data
rights legends 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 legends 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 legend. 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 legends. [To be completed by
the contracting officer. See 227.7103-7(a)(2). Omit if none of the data
requested is marked with special license rights legends.]
* * * * *
(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 legends by the Recipient
or any person to whom the Recipient has released or disclosed the Data.
* * * * *
(End of use and nondisclosure agreement)
0
6. Revise section 227.7103-9 to read as follows:
227.7103-9 Copyright.
(a) Copyright license. (1) The clauses at 252.227-7013, Rights in
Technical Data--Other Than Commercial Products and Commercial Services,
and 252.227-7018, Rights in Other Than Commercial Technical Data and
Computer Software--Small Business Innovation Research Program and Small
Business Technology Transfer Program, require a contractor to grant or
obtain for the Government license rights which permit the Government to
reproduce data, distribute copies of the data, publicly perform or
display the data or, through the right to modify data, prepare
derivative works. The extent to which the Government, and others acting
on its behalf, may exercise these rights varies for each of the
standard data rights licenses obtained under the clauses. When non-
standard license rights in technical data will be negotiated, negotiate
the extent of the copyright license concurrent with negotiations for
the data rights license. Do not negotiate a copyright license that
provides less rights than the standard limited rights license in
technical data.
(2) The clauses at 252.227-7013 and 252.227-7018 do not permit a
contractor to incorporate a third party's copyrighted data into a
deliverable data item unless the contractor has obtained an appropriate
license for the Government and, when applicable, others acting on the
Government's behalf, or has obtained the contracting officer's written
approval to do so. Grant approval to use third-party copyrighted data
in which the Government will not receive a copyright license only when
the Government's requirements cannot be satisfied without the third-
party material or when the use of the third-party material will result
in cost savings to the Government which outweigh the lack of a
copyright license.
(b) Copyright considerations--acquisition of existing and special
works. See 227.7105 or 227.7106 for copyright considerations when
acquiring existing or special works that are not SBIR/STTR data.
0
7. Amend section 227.7103-10--
0
a. In paragraph (a)(3), by revising the third sentence;
0
b. By revising paragraphs (a)(5) and (b);
0
c. In paragraph (c)(1), by removing ``subsection'' and adding
``section'' in its place;
0
d. In paragraph (c)(2) introductory text, by removing ``six months''
and adding ``6 months'' in its place; and
0
e. In paragraph (c)(2)(ii), by removing ``clause at 252.227-7013'' and
adding ``clauses at 252.227-7013 and 252.227-7018'' in its place.
The revisions read as follows:
227.7103-10 Contractor identification and marking of technical data
to be furnished with restrictive markings.
(a) * * *
(3) * * * Subsequent to contract award, the clauses at 252.227-
7013, Rights in Technical Data--Other Than Commercial Products and
Commercial Services, and 252.227-7018, Rights in Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program, permit
the contractor to make additional assertions under certain conditions.
* * *
* * * * *
[[Page 103344]]
(5) Information provided by offerors in response to the
solicitation provision may be used in the source selection process to
evaluate the impact on evaluation factors that may be created by
restrictions on the Government's ability to use or disclose technical
data. However, contracting officers shall not--
(i) Prohibit offerors from offering products for which the offeror
is entitled to provide the technical data with restrictions; or
(ii) Require offerors, either as a condition of being responsive to
a solicitation or as a condition for award, to sell or otherwise
relinquish rights in technical data except for the standard rights
specified in the applicable clauses.
(b) Contractor marking requirements. The clauses at 252.227-7013,
Rights in Technical Data--Other Than Commercial Products and Commercial
Services, and 252.227-7018, Rights in Other Than Commercial Technical
Data and Computer Software--Small Business Innovation Research Program
and Small Business Technology Transfer Program--
(1) Require a contractor that desires to restrict the Government's
rights in technical data to place restrictive markings on the data,
provide instructions for the placement of the restrictive markings, and
authorize the use of certain restrictive markings; and
(2) Require a contractor to deliver, furnish, or otherwise provide
to the Government any technical data in which the Government has
previously obtained rights with the Government's preexisting rights in
that data unless the parties have agreed otherwise or restrictions on
the Government's rights to use, modify, reproduce, release, perform,
display, or disclose the data have expired. When restrictions are still
applicable, the contractor is permitted to mark the data with the
appropriate restrictive legend for which the data qualified.
* * * * *
0
8. Amend section 227.7103-11--
0
a. By revising paragraph (a); and
0
b. In paragraph (b), by removing ``Technical Data requires'' and adding
``Technical Data, requires'' in its place.
The revision reads as follows:
227.7103-11 Contractor procedures and records.
(a) The clauses at 252.227-7013, Rights in Technical Data--Other
Than Commercial Products and Commercial Services, and 252.227-7018,
Rights in Other Than Commercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, require a contractor, and its
subcontractors or suppliers that will deliver technical data with other
than unlimited rights, to establish and follow written procedures to
assure that restrictive markings are used only when authorized and to
maintain records to justify the validity of asserted restrictions on
delivered data.
* * * * *
0
9. Amend section 227.7103-12 by revising paragraph (a)(1) to read as
follows:
227.7103-12 Government right to establish conformity of markings.
(a) * * *
(1) Authorized markings are identified in the clauses at 252.227-
7013, Rights in Technical Data--Other Than Commercial Products and
Commercial Services, and 252.227-7018, Rights in Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program. All
other markings are nonconforming markings. An authorized marking that
is not in the form, or differs in substance, from the marking
requirements in the clauses at 252.227-7013 and 252.227-7018 is also a
nonconforming marking.
* * * * *
227.7103-16 [Amended]
0
10. Amend section 227.7103-16 in paragraph (b) by removing ``non-
disclosure'' and adding ``nondisclosure'' in its place.
0
11. Revise section 227.7104 to read as follows:
227.7104 Contracts under the Small Business Innovation Research
Program and Small Business Technology Transfer Program.
0
12. Add sections 227.7104-1, 227.7104-2, 227.7104-3, and 227.7104-4 to
read as follows:
* * * * *
Sec.
227.7104-1 Policy.
227.7104-2 Rights in SBIR or STTR data.
227.7104-3 STTR program requirements.
227.7104-4 Solicitation provisions and contract clauses.
* * * * *
227.7104-1 Policy.
(a) Do 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 computer software generated under a SBIR/STTR
contract except for the standard rights identified at 227.7104-2.
(b) Do not prohibit contractors and offerors from furnishing or
offering to furnish items, components, or processes developed under a
SBIR/STTR contract or computer software generated under a SBIR/STTR
contract solely because the Government's rights to use, modify,
release, reproduce, perform, display, or disclose such computer
software or technical data pertaining to those items, components, or
processes may be restricted.
(c) Consistent with the guidance in this section, 227.7103-
10(a)(5), 227.7203-10(a)(5), and other acquisition guidance applicable
to SBIR/STTR solicitations, 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.
(d) SBIR/STTR data rights apply to SBIR/STTR data that are
delivered, developed, or generated in the performance of a contract or
agreement that is covered by SBIR/STTR policies, including contracts
and subcontracts that include phase III work. Phase III work refers to
work that derives from, extends, or completes an effort made under
prior SBIR/STTR contracts or agreements, and is funded by sources other
than SBIR/STTR programs (see PGI 227.7104-1).
(e) For SBIR/STTR data that is other than commercial technical
data, and other than commercial computer software and computer software
documentation, see--
(1) 227.7103-9 and 227.7203-9 for guidance on copyright licenses;
(2) 227.7103-10 and 227.7203-10 for guidance on contractor
identification and marking of technical data and computer software to
be furnished with restrictive markings;
(3) 227.7103-11 and 227.7203-11 for guidance on maintenance of
contractor records; and
(4) 227.7103-12 and 227.7203-12 for guidance on nonconforming and
unjustified markings.
227.7104-2 Rights in SBIR or STTR data.
(a) Under the clause at 252.227-7018, Rights in Other Than
Commercial Technical Data and Computer Software-Small Business
Innovation Research Program and Small Business Technology Transfer
Program, the Government obtains the following standard license rights:
[[Page 103345]]
(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, after 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 Government and contractor or subcontractor may negotiate
special license rights only after contract award. The Government shall
not make contract award conditional on the contractor or subcontractor
negotiating or consenting to negotiate special license rights.
Negotiation of special license rights is authorized only after contract
award by mutual agreement of the parties.
(d) The Small Business Administration's SBIR and STTR Program
Policy Directive (effective May 3, 2023) 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.
(e) The clause at 252.227-7018 governs the Government's license
rights in SBIR/STTR data. However, the following clauses or guidance
governs the Government's license rights in any data that are not SBIR/
STTR data:
(1) For technical data pertaining to other than commercial products
or commercial services or to any portion of a commercial product or
commercial service that was developed in any part at Government
expense, the clause at 252.227-7013, Rights in Technical Data--Other
Than Commercial Products and Commercial Services, governs such
technical data in accordance with 227.7102-4(b).
(2) For technical data pertaining to any portion of a commercial
product or commercial service that was developed exclusively at private
expense, the clause at 252.227-7015, Technical Data--Commercial
Products and Commercial Services, governs such technical data, in
accordance with 227.7102-4(b).
(3) For other than commercial computer software or computer
software documentation, the clause at 252.227-7014, Rights in Other
Than Commercial Computer Software and Other Than Commercial Computer
Software Documentation, governs such software and computer software
documentation, in accordance with 227.7203-6(a)(1).
(4) For commercial computer software and computer software
documentation, the license customarily provided to the public governs
such software and documentation, in accordance with 227.7202-3.
227.7104-3 STTR program requirements.
(a) Before award of a contract under the STTR program requirements
only, the provision at 252.227-7040, 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 research institution that allocates any rights in
intellectual property and the offeror's written representation that the
offeror 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 252.227-7041, 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
252.227-7040.
(c) After contract award, for any modification to the written
agreement between the contractor and research institution, the
contracting officer shall review the agreement and representation to
ensure the modified agreement adheres to the requirements of 252.227-
7041. 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 Other Than
Commercial 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 products and commercial services, when SBIR/STTR data are
delivered, developed, or generated during contract performance, and
when any portion of contract performance is governed by SBIR or STTR
policies (e.g., performance of one or more subcontracts qualifies as a
phase III SBIR or STTR award). See 227.7104-1(d) for guidance on
contracts or subcontracts governed by SBIR or STTR policies.
(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-Other Than Commercial
Products and Commercial Services.
(ii) 252.227-7014, Rights in Other Than Commercial Computer
Software and Other Than Commercial Computer Software Documentation.
(iii) 252.227-7015, Technical Data--Commercial Products and
Commercial Services.
(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 Marked with Restrictive Legends.
(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
[[Page 103346]]
(paragraph (e) of the clause contains information that must be included
in a challenge).
(c)(1) Use the provision at 252.227-7040, Additional Preaward
Requirements for Small Business Technology Transfer Program, in
solicitations that contain the clause at 252.227-7041.
(2) Use the clause at 252.227-7041, Additional Postaward
Requirements for Small Business Technology Transfer Program, in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial products
and commercial services, for acquisitions under the STTR program.
227.7108 [Amended]
0
13. Amend section 227.7108 in paragraph (a)(5) by removing ``non-
disclosure'' and adding ``nondisclosure'' in its place.
0
14. Amend section 227.7203-5--
0
a. In paragraph (b)(5), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place; and
0
b. By revising paragraph (b)(6) to read as follows:
227.7203-5 Government rights.
* * * * *
(b) * * *
(6) Contracting activities shall establish procedures to assure
that computer software or computer software documentation marked with
government purpose rights legends are released or disclosed, including
a release or disclosure through a Government solicitation, only to
persons subject to the use and nondisclosure restrictions. Public
announcements in the System for Award Management or other publications
must provide notice of the use and nondisclosure requirements. Class
use and non-disclosure agreements (e.g., agreements covering all
solicitations received by the XYZ company within a reasonable period)
are authorized and may be obtained at any time prior to release or
disclosure of the government purpose rights software or documentation.
Documents transmitting government purpose rights software or
documentation to persons under class agreements shall identify the
specific software or documentation subject to government purpose rights
and the class agreement under which such software or documentation are
provided.
* * * * *
0
15. Amend section 227.7203-6 by revising the section heading to read as
follows:
227.7203-6 Solicitation provisions and contract clauses.
* * * * *
0
16. Amend section 227.7203-9--
0
a. In paragraph (a)(1), by revising the first sentence; and
0
b. By revising paragraphs (a)(2) and (b).
The revisions read as follows:
227.7203-9 Copyright.
(a) * * *
(1) The clauses at 252.227-7014, Rights in Other Than Commercial
Computer Software and Other Than Commercial Computer Software
Documentation, and 252.227-7018, Rights in Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
require a contractor to grant, or obtain for the Government license
rights which permit the Government to reproduce the software or
documentation, distribute copies, perform or display the software or
documentation and, through the right to modify data, prepare derivative
works. * * *
(2) The clauses at 252.227-7013, Rights in Technical Data--Other
Than Commercial Products and Commercial Services, and 252.227-7018,
Rights in Other Than Commercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, do not permit a contractor to incorporate
a third party's copyrighted software into a deliverable software item
unless the contractor has obtained an appropriate license for the
Government and, when applicable, others acting on the Government's
behalf, or has obtained the contracting officer's written approval to
do so. Grant approval to use third-party copyrighted software in which
the Government will not receive a copyright license only when the
Government's requirements cannot be satisfied without the third-party
material or when the use of the third-party material will result in
cost savings to the Government which outweigh the lack of a copyright
license.
(b) Copyright considerations--special works. See 227.7205 for
copyright considerations when acquiring special works that are not
SBIR/STTR data.
0
17. Amend section 227.7203-10--
0
a. In paragraph (a)(3), by revising the third sentence;
0
b. By revising paragraphs (a)(5) and (b);
0
c. In paragraph (c)(1), by removing ``subsection'' and adding
``section'' in its place;
0
d. In paragraph (c)(2) introductory text, by removing ``six months''
and adding ``6 months'' in its place; and
0
e. In paragraph (c)(2)(ii), by removing ``clause at 252.227-7014'' and
adding ``clauses at 252.227-7014 and 252.227-7018'' in its place.
The revisions read as follows:
227.7203-10 Contractor identification and marking of computer software
or computer software documentation to be furnished with restrictive
markings.
(a) * * *
(3) * * * Subsequent to contract award, the clauses at 252.227-
7014, Rights in Other Than Commercial Computer Software and Other Than
Commercial Computer Software Documentation, and 252.227-7018, Rights in
Other Than Commercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program, permit a contractor to make additional assertions
under certain conditions. * * *
* * * * *
(5) Information provided by offerors in response to the
solicitation provision at 252.227-7017 may be used in the source
selection process to evaluate the impact on evaluation factors that may
be created by restrictions on the Government's ability to use or
disclose computer software or computer software documentation. However,
contracting officers shall not--
(i) Prohibit offerors from offering products for which the offeror
is entitled to provide the computer software with restrictions; or
(ii) Require offerors, either as a condition of being responsive to
a solicitation or as a condition for award, to sell or otherwise
relinquish rights in computer software except for the standard rights
specified in the applicable clauses.
(b) Contractor marking requirements. The clauses at 252.227-7014,
Rights in Other Than Commercial Computer Software and Other Than
Commercial Computer Software Documentation, and 252.227-7018, Rights in
Other Than Commercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program--
(1) Require a contractor who desires to restrict the Government's
rights in computer software or computer software documentation to place
restrictive markings on the software or documentation, provide
instructions for the placement of the restrictive markings, and
authorize the use of certain restrictive markings. When it is
[[Page 103347]]
anticipated that the software will or may be used in combat or
situations which simulate combat conditions, do not permit contractors
to insert instructions into computer programs that interfere with or
delay operation of the software to display a restrictive rights legend
or other license notice; and
(2) Require a contractor to deliver, furnish, or otherwise provide
to the Government any computer software or computer software
documentation in which the Government has previously obtained rights
with the Government's preexisting rights in that software or
documentation unless the parties have agreed otherwise or restrictions
on the Government's rights to use, modify, produce, release, or
disclose the software or documentation have expired. When restrictions
are still applicable, the contractor is permitted to mark the software
or documentation with the appropriate restrictive legend.
* * * * *
0
18. Amend section 227.7203-11 by revising paragraph (a) to read as
follows:
227.7203-11 Contractor procedures and records.
(a) The clauses at 252.227-7014, Rights in Other Than Commercial
Computer Software and Other Than Commercial Computer Software
Documentation, and 252.227-7018, Rights in Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
require a contractor, and its subcontractors or suppliers that will
deliver computer software or computer software documentation with other
than unlimited rights, to establish and follow written procedures to
assure that restrictive markings are used only when authorized and to
maintain records to justify the validity of restrictive markings.
* * * * *
0
19. Amend section 227.7203-12 by revising paragraph (a)(1) to read as
follows:
227.7203-12 Government right to establish conformity of markings.
(a) * * *
(1) Authorized markings are identified in the clauses at 252.227-
7014, Rights in Other Than Commercial Computer Software and Other Than
Commercial Computer Software Documentation, and 252.227-7018, Rights in
Other Than Commercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program. All other markings are nonconforming markings. An
authorized marking that is not in the form, or differs in substance,
from the marking requirements in the clauses at 252.227-7014 and
252.227-7018 is also a nonconforming marking.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
20. Amend section 252.227-7013--
0
a. By revising the introductory text and clause date;
0
b. By revising paragraph (a);
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. By revising newly redesignated paragraphs (c) introductory text,
(c)(2), (c)(3)(i) and (iv), and (c)(4) through (c)(6);
0
f. In newly redesignated paragraph (e), by removing ``paragraph (b)''
and adding ``paragraph (c)'' in its place;
0
g. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
h. In newly redesignated paragraph (f)(3)--
0
i. By removing ``Identification and Assertion of Restrictions on the
Government's Use, Release, or Disclosure of Technical Data.'';
0
ii. By adding a heading to the table; and
0
iii. In note 3, by removing ``SBIR'' and adding ``SBIR/STTR'' in its
place;
0
j. In newly redesignated paragraph (f)(4), by removing ``of the
Validation of Restrictive Markings on Technical Data'' and adding ``in
the DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
k. By revising newly redesignated paragraph (g);
0
l. In newly redesignated paragraph (i)(1), 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
m. By revising newly redesignated paragraph (i)(2);
0
n. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and
adding ``(k)(1)'' in its place;
0
o. By revising newly redesignated paragraph (l);
0
p. In alternate I--
0
i. By revising the clause date and the introductory text;
0
ii. By redesignating paragraph (l) as paragraph (m);
0
iii. 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
q. 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--Other Than Commercial Products
and Commercial Services.
As prescribed in 227.7102-4(b) and 227.7103-6(a), use the following
clause:
Rights in Technical Data--Other Than Commercial Products or Commercial
Services (JAN 2025)
(a) Definitions. As used in this clause--
Computer data base means a collection of data recorded in a form
capable of being processed by a computer. The term does not include
computer software.
Computer program means a set of instructions, rules, or routines
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae and related material that would enable the
software to be reproduced, recreated, or recompiled. Computer software
does not include computer data bases or computer software
documentation.
Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
Covered Government support contractor means a contractor (other
than a litigation support contractor covered by 252.204-7014) under a
contract, the primary purpose of which is to furnish independent and
impartial advice or technical assistance directly to the Government in
support of the Government's management and oversight of a program or
effort, rather than to directly furnish an end item or service to
accomplish a program or effort, provided that the contractor--
(1) Is not affiliated with the prime contractor or a first-tier
subcontractor on the program or effort, or with any direct competitor
of such prime contractor or any such first-tier subcontractor in
furnishing end items or services of the
[[Page 103348]]
type developed or produced on the program or effort; and
(2) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
Detailed manufacturing or process data means technical data that
describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item or
component or to perform a process.
Developed means that an item, component, or process exists and is
workable. Thus, the item or component must have been constructed or the
process practiced. Workability is generally established when the item,
component, or process has been analyzed or tested sufficiently to
demonstrate to reasonable people skilled in the applicable art that
there is a high probability that it will operate as intended. Whether,
how much, and what type of analysis or testing is required to establish
workability depends on the nature of the item, component, or process,
and the state of the art. To be considered ``developed,'' the item,
component, or process need not be at the stage where it could be
offered for sale or sold on the commercial market, nor must the item,
component, or process be actually reduced to practice within the
meaning of Title 35 of the United States Code.
Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a Government contract, or any combination thereof.
(1) Private expense determinations should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at Government,
private, or mixed expense.
Developed exclusively with Government funds means development was
not accomplished exclusively or partially at private expense.
Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a government contract, and partially with costs charged
directly to a government contract.
Form, fit, and function data means technical data that describe the
required overall physical, functional, and performance characteristics
(along with the qualification requirements, if applicable) of an item,
component, or process to the extent necessary to permit identification
of physically and functionally interchangeable items.
Generated means, with regard to technical data or computer
software, first created in the performance of this contract.
Government purpose means any activity in which the United States
Government is a party, including cooperative agreements with
international or multi-national defense organizations, or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose technical data for commercial
purposes or authorize others to do so.
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or disclose
technical data within the Government without restriction; and
(2) Release or disclose technical data outside the Government and
authorize persons to whom release or disclosure has been made to use,
modify, reproduce, release, perform, display, or disclose that data for
United States Government purposes.
Limited rights means the rights to use, modify, reproduce, release,
perform, display, or disclose technical data, in whole or in part,
within the Government. The Government may not, without the written
permission of the party asserting limited rights, release or disclose
the technical data outside the Government, use the technical data for
manufacture, or authorize the technical data to be used by another
party, except that the Government may reproduce, release, or disclose
such data or authorize the use or reproduction of the data by persons
outside the Government if--
(1) The reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure to--
(A) A covered Government support contractor in performance of its
covered Government support contract for use, modification,
reproduction, performance, display, or release or disclosure to a
person authorized to receive limited rights technical data; or
(B) A foreign government, of technical data other than detailed
manufacturing or process data, when use of such data by the foreign
government is in the interest of the Government and is required for
evaluational or informational purposes;
(2) The recipient of the technical data is subject to a prohibition
on the further reproduction, release, disclosure, or use of the
technical data; and
(3) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
Small Business Innovation Research/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.
Technical data means recorded information, regardless of the form
or method of the recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or financial, administrative, cost or pricing, or
management information, or information incidental to contract
administration.
Unlimited rights means rights to use, modify, reproduce, perform,
display, release, or disclose technical data in whole or in part, in
any manner, and for any purpose whatsoever, and to have or authorize
others to do so.
(b) Applicability. (1) Except as provided in paragraph (b)(2) of
this clause--
(i) This clause governs all technical data pertaining to other than
commercial products or commercial services or to any portion of a
commercial product or commercial service that was developed in any part
at Government expense; and
(ii) The clause at Defense Federal Acquisition Regulation
Supplement (DFARS) 252.227-7015, Technical Data--Commercial Products
and Commercial Services, governs the technical data pertaining to any
portion of a commercial product or commercial service that was
developed exclusively at private expense.
(2) The clause at DFARS 252.227-7018, Rights in Other Than
Commercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, governs technical data that are SBIR/STTR data.
* * * * *
(c) Rights in technical data. The Contractor grants or shall obtain
for the Government the following royalty free,
[[Page 103349]]
worldwide, nonexclusive, irrevocable license rights in technical data
other than computer software documentation (see the DFARS 252.227-7014,
Rights in Other Than Commercial Computer Software and Other Than
Commercial Computer Software Documentation, clause of this contract for
rights in computer software documentation):
* * * * *
(2) Government purpose rights. (i) The Government shall have
government purpose rights for a 5-year period, or such other period as
may be negotiated, in technical data--
(A) That pertain to items, components, or processes developed with
mixed funding except when the Government is entitled to unlimited
rights in such data as provided in paragraphs (c)(1)(ii) and (c)(1)(iv)
through (c)(1)(ix) of this clause; or
(B) 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.
(ii) The 5-year period, or such other period as may have been
negotiated, shall commence upon execution of the contract, subcontract,
letter contract (or similar contractual instrument), contract
modification, or option exercise that required development of the
items, components, or processes or creation of the data described in
paragraph (c)(2)(i)(B) of this clause. Upon expiration of the 5-year or
other negotiated period, the Government shall have unlimited rights in
the technical data.
(iii) The Government shall not release or disclose technical 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 Marked with Restrictive Legends.
(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 legend prescribed in paragraph (g)(3) of this clause.
* * * * *
(3) * * *
(i) Except as provided in paragraphs (c)(1)(ii) and (c)(1)(iv)
through (c)(1)(ix) of this clause, the Government shall have limited
rights in technical data--
(A) Pertaining to items, components, or processes developed
exclusively at private expense and marked with the limited rights
legend prescribed in paragraph (g) of this clause; or
(B) Created exclusively at private expense in the performance of a
contract that does not require the development, manufacture,
construction, or production of items, components, or processes.
* * * * *
(iv) The Contractor acknowledges that--
(A) Limited rights data are authorized to be released or disclosed
to covered Government support contractors;
(B) The Contractor will be notified of such release or disclosure;
(C) The Contractor (or the party asserting restrictions as
identified in the limited rights legend) may require each such covered
Government support contractor to enter into a nondisclosure agreement
directly with the Contractor (or the party asserting restrictions)
regarding the covered Government support contractor's use of such data,
or alternatively, that the Contractor (or party asserting restrictions)
may waive in writing the requirement for a nondisclosure agreement; and
(D) Any such nondisclosure agreement shall address the restrictions
on the covered Government support contractor's use of the limited
rights data as set forth in the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends. The nondisclosure
agreement shall not include any additional terms and conditions unless
mutually agreed to by the parties to the nondisclosure agreement.
(4) Specifically negotiated license rights. 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 technical data, may be modified by
mutual agreement to provide such rights as the parties consider
appropriate but shall not provide the Government lesser rights than are
enumerated in the definition of ``limited rights'' of this clause. Any
rights so negotiated shall be identified in a license agreement made
part of this contract.
(5) Prior government rights. Technical data that will be delivered,
furnished, or otherwise provided to the Government under this contract,
in which the Government has previously obtained rights shall be
delivered, furnished, or provided with the preexisting rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
reproduce, release, perform, display, or disclose the data have expired
or no longer apply.
(6) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of technical
data made in accordance with the definition of ``limited 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 data and to seek
relief solely from the party who has improperly used, modified,
reproduced, released, performed, displayed, or disclosed Contractor
data marked with restrictive legends.
* * * * *
(f) * * *
(3) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data
* * * * *
(g) Marking requirements. The Contractor, and its subcontractors or
suppliers, may only assert restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose
technical data to be delivered under this contract by marking the
deliverable data subject to restriction. Except as provided in
paragraph (g)(6) of this clause, only the following legends are
authorized under this contract: the government purpose rights legend at
paragraph (g)(3) of this clause; the limited rights legend at paragraph
(g)(4) of this clause; the special license rights legend at paragraph
(g)(5) of this clause; and a notice of copyright as prescribed under 17
U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark the
appropriate legend on all technical data that qualify for such
markings. The authorized legends 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
[[Page 103350]]
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.
(2) Omitted markings. (i) Technical data delivered or otherwise
provided under this contract without restrictive markings will be
presumed to have been delivered with unlimited rights. To the extent
practicable, if the Contractor has requested permission (see paragraph
(g)(2)(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.
(3) 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--
Other Than Commercial Products or Commercial Services, 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 legend must also reproduce the
markings.
(End of legend)
(4) 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--
Other Than Commercial Products or Commercial Services, clause contained
in the above identified contract. Any reproduction of technical data or
portions thereof marked with this legend 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 legend)
(5) 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 legend must also reproduce the markings.
(End of legend)
(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).
(6) 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 legend 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.
* * * * *
(i) * * *
(2) Nonconforming technical data markings. A nonconforming marking
is a marking placed on technical data delivered or otherwise furnished
to the Government under this contract that is not in the format
authorized by this contract. Correction of nonconforming markings is
not subject to the DFARS 252.227-7037, Validation of Restrictive
Markings on Technical Data, clause of this contract. If the Contracting
Officer notifies the Contractor of a nonconforming marking and the
Contractor fails to remove or correct such marking within 60 days, the
Government may ignore or, at the Contractor's expense, remove or
correct any nonconforming marking.
* * * * *
(l) Subcontractors or suppliers. (1) The Contractor shall ensure
that the rights afforded its subcontractors and suppliers under 10
U.S.C. 3771-3775, 10 U.S.C. 3781-3786, 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 other than commercial products
or commercial services, or for commercial products or commercial
services 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
clauses in the subcontract or other contractual instrument, including
subcontracts or other contractual instruments for commercial products
or commercial services, 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 other than
commercial products and commercial services or to any portion of a
commercial product or commercial service that was developed in any part
at Government expense.
(B) Use the clause at DFARS 252.227-7015, Technical Data--
Commercial Products and Commercial Services, to govern the technical
data pertaining to any portion of a commercial product or commercial
service that was developed exclusively at private expense.
(ii) Use the clause at DFARS 252.227-7018, Rights in Other Than
Commercial Technical Data and Computer Software--Small Business
Innovation
[[Page 103351]]
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.
(4) Technical data required to be delivered by a subcontractor or
supplier shall normally be delivered to the next higher-tier
contractor, subcontractor, or supplier. However, when there is a
requirement in the prime contract for data which may be submitted with
other than unlimited rights by a subcontractor or supplier, then said
subcontractor or supplier may fulfill its requirement by submitting
such data directly to the Government, rather than through a higher-tier
contractor, subcontractor, or supplier.
(5) The Contractor and higher-tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in technical data from their subcontractors or suppliers.
(6) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in technical
data as an excuse for failing to satisfy its contractual obligations to
the Government.
* * * * *
Alternate I (JAN 2025). As prescribed in 227.7103-6(b)(1), add the
following paragraph (m) to the basic clause:
* * * * *
Alternate II (JAN 2025). 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
21. Amend section 252.227-7014--
0
a. By revising the clause date and paragraph (a);
0
b. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
c. By adding a new paragraph (b);
0
d. By revising newly redesignated paragraphs (c)(2), (c)(3), (c)(4)(i),
(c)(5) introductory text, and (c)(6);
0
e. In newly redesignated paragraph (e) introductory text, by removing
``paragraph (b)'' and adding ``paragraph (c)'' in its place;
0
f. In newly redesignated paragraph (f)(2), by removing ``paragraph
(e)(3)'' and adding ``paragraph (f)(3)'' in its place;
0
g. In newly redesignated paragraph (f)(3)--
0
i. By removing ``Identification and Assertion of Restrictions on the
Government's Use, Release, or Disclosure of Technical Data.'';
0
ii. By revising newly redesignated paragraph (f)(3) table;
0
h. In newly redesignated paragraph (f)(4), by removing ``of the
Validation of Asserted Restrictions--Computer Software'' and adding
``in the DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software,'' in its place;
0
i. By revising newly redesignated paragraph (g);
0
j. By revising newly redesignated paragraph (i);
0
k. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and
adding ``(k)(1)'' in its place;
0
l. By revising newly redesignated paragraph (l);
0
m. In alternate I--
0
i. By revising the clause date and the introductory text;
0
ii. By redesignating paragraph (l) as paragraph (m); and
0
iii. In newly redesignated paragraph (m)(2), by removing ``paragraph
(l)'' and ``twenty-four (24)'' and adding ``paragraph (m)'' and ``24''
in their places, respectively.
The revisions and additions read as follows:
252.227-7014 Rights in Other Than Commercial Computer Software and
Other Than Commercial Computer Software Documentation.
* * * * *
Rights in Other Than Commercial Computer Software and Other Than
Commercial Computer Software Documentation (JAN 2025)
(a) Definitions. As used in this clause--
Commercial computer software means software developed or regularly
used for nongovernmental purposes which--
(1) Has been sold, leased, or licensed to the public;
(2) Has been offered for sale, lease, or license to the public;
(3) Has not been offered, sold, leased, or licensed to the public
but will be available for commercial sale, lease, or license in time to
satisfy the delivery requirements of this contract; or
(4) Satisfies a criterion expressed in paragraph (1), (2), or (3)
of this definition and would require only minor modification to meet
the requirements of this contract.
Computer database means a collection of recorded data in a form
capable of being processed by a computer. The term does not include
computer software.
Computer program means a set of instructions, rules, or routines,
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, recreated, or recompiled. Computer software
does not include computer databases or computer software documentation.
Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
Covered Government support contractor means a contractor (other
than a litigation support contractor covered by 252.204-7014) under a
contract, the primary purpose of which is to furnish independent and
impartial advice or technical assistance directly to the Government in
support of the Government's management and oversight of a program or
effort (rather than to directly furnish an end item or service to
accomplish a program or effort), provided that the contractor--
(1) Is not affiliated with the prime contractor or a first-tier
subcontractor on the program or effort, or with any direct competitor
of such prime contractor or any such first-tier subcontractor in
furnishing end items or services of the type developed or produced on
the program or effort; and
(2) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
Developed means that--
(1) A computer program has been successfully operated in a computer
and tested to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the program can reasonably be expected
to perform its intended purpose;
(2) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the software can reasonably
be expected to perform its intended purpose; or
(3) Computer software documentation required to be delivered under
a contract has been written, in any medium, in sufficient detail to
comply with requirements under that contract.
[[Page 103352]]
Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a government contract, or any combination thereof.
(1) Private expense determinations should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at government,
private, or mixed expense.
Developed exclusively with government funds means development was
not accomplished exclusively or partially at private expense.
Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a government contract, and partially with costs charged
directly to a government contract.
Generated means, with regard to technical data or computer
software, first created in the performance of this contract.
Government purpose means any activity in which the United States
Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose computer software or computer
software documentation for commercial purposes or authorize others to
do so.
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or disclose
computer software or computer software documentation within the
Government without restriction; and
(2) Release or disclose computer software or computer software
documentation outside the Government and authorize persons to whom
release or disclosure has been made to use, modify, reproduce, release,
perform, display, or disclose the software or documentation for United
States government purposes.
Minor modification means a modification that does not significantly
alter the nongovernmental function or purpose of the software or is of
the type customarily provided in the commercial marketplace.
Other than commercial computer software means software that does
not qualify as commercial computer software under the definition of
``commercial computer software'' of this clause.
Restricted rights apply only to other than commercial 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 a reasonable number of copies of the computer software
required for the purposes of safekeeping (archive), backup,
modification, or other activities authorized in paragraphs (1), (2),
and (4) through (7) of this definition;
(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 clause;
(5) Use, and 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 any such 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 Marked with
Restrictive Legends;
(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) Use, and 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 or overhaul, or to modify the computer software to
reflect the emergency 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 Marked with Restrictive
Legends;
(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) Use, modify, reproduce, perform, display, or release or
disclose computer software to a person authorized to receive restricted
rights computer software for management and oversight of a program or
effort, and 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 Marked with Restrictive Legends, 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
[[Page 103353]]
(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.
Unlimited rights means rights to use, modify, reproduce, release,
perform, display, or disclose computer software or computer software
documentation in whole or in part, in any manner and for any purpose
whatsoever, and to have or authorize others to do so.
(b) Applicability. This clause governs all other than commercial
computer software or other than commercial computer software
documentation, except that the clause at DFARS 252.227-7018, Rights in
Other Than Commercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program, governs any computer software or computer software
documentation that is SBIR/STTR data.
(c) * * *
(2) Government purpose rights.
(i) Except as provided in paragraph (c)(1) of this clause, the
Government shall have government purpose rights in computer software
development with mixed funding.
(ii) Government purpose rights shall remain in effect for a period
of 5 years unless a different period has been negotiated. Upon
expiration of the 5-year or other negotiated period, the Government
shall have unlimited rights in the computer software or computer
software documentation. The government purpose rights period shall
commence upon execution of the contract, subcontract, letter contract
(or similar contractual instrument), contract modification, or option
exercise that required development of the computer software.
(iii) The Government shall not release or disclose computer
software in which it has government purpose rights to any other person
unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the use and nondisclosure agreement at DFARS 227.7103-7; or
(B) The recipient is a Government contractor receiving access to
the software or documentation 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 Marked with
Restrictive Legends.
(3) Restricted rights. (i) The Government shall have restricted
rights in other than commercial computer software required to be
delivered or otherwise provided to the Government under this contract
that were developed exclusively at private expense.
(ii) The Contractor, its subcontractors, or suppliers are not
required to provide the Government additional rights in other than
commercial computer software delivered or otherwise provided to the
Government with restricted rights. However, if the Government desires
to obtain additional rights in such software, the Contractor agrees to
promptly enter into negotiations with the Contracting Officer to
determine whether there are acceptable terms for transferring such
rights. All other than commercial computer software in which the
Contractor has granted the Government additional rights shall be listed
or described in a license agreement made part of the contract (see
paragraph (c)(4) of this clause). The license shall enumerate the
additional rights granted the Government.
(iii) The Contractor acknowledges that--
(A) Restricted rights computer software is authorized to be
released or disclosed to covered Government support contractors;
(B) The Contractor will be notified of such release or disclosure;
(C) The Contractor (or the party asserting restrictions, as
identified in the restricted rights legend) may require each such
covered Government support contractor to enter into a nondisclosure
agreement directly with the Contractor (or the party asserting
restrictions) regarding the covered Government support contractor's use
of such software, or alternatively, that the Contractor (or party
asserting restrictions) may waive in writing the requirement for a
nondisclosure agreement; and
(D) Any such nondisclosure agreement shall address the restrictions
on the covered Government support contractor's use of the restricted
rights software as set forth in the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends. The nondisclosure
agreement shall not include any additional terms and conditions unless
mutually agreed to by the parties to the nondisclosure agreement.
(4) * * *
(i) The standard license rights granted to the Government under
paragraphs (c)(1) through (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--Other Than Commercial Products and Commercial Services,
clause of this contract.
* * * * *
(5) Prior government rights. Computer software or computer software
documentation that will be delivered, furnished, or otherwise provided
to the Government under this contract, in which the Government has
previously obtained rights shall be delivered, furnished, or provided
with the preexisting rights, unless--
* * * * *
(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 legends.
* * * * *
(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:
[[Page 103354]]
----------------------------------------------------------------------------------------------------------------
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) Marking requirements. The Contractor, and its subcontractors or
suppliers, may only assert restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose computer
software by marking the deliverable software or documentation subject
to restriction. Except as provided in paragraph (g)(6) of this clause,
only the following legends are authorized under this contract: the
government purpose rights legend at paragraph (g)(3) of this clause;
the restricted rights legend at paragraph (g)(4) of this clause; the
special license rights legend at paragraph (g)(5) of this clause; and a
notice of copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark the
appropriate legend on all computer software that qualify for such
markings. The authorized legends 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 legend 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.
(2) Omitted markings. (i) Computer software or computer software
documentation delivered or otherwise provided under this contract
without restrictive markings will be presumed to have been delivered
with unlimited rights. To the extent practicable, if the Contractor has
requested permission (see paragraph (g)(2)(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.
(3) 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 Other Than Commercial
Computer Software and Other Than Commercial 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
legend must also reproduce the markings.
(End of legend)
(4) 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 Other Than Commercial
Computer Software and Other Than Commercial Computer Software
Documentation, clause contained in the above identified contract. Any
reproduction of computer software or portions thereof marked with this
legend 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 legend)
(5) 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
[[Page 103355]]
marking must also reproduce the markings.
(End of legend)
(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).
(6) 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 legend 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.
* * * * *
(i) Removal of unjustified and nonconforming markings. (1)
Unjustified computer software or computer software documentation
markings. The rights and obligations of the parties regarding the
validation of restrictive markings on computer software or computer
software documentation furnished or to be furnished under this contract
are contained in the DFARS 252.227-7019, Validation of Asserted
Restrictions--Computer Software, and the DFARS 252.227-7037, Validation
of Restrictive Markings on Technical Data, clauses of this contract,
respectively. Notwithstanding any provision of this contract concerning
inspection and acceptance, the Government may ignore or, at the
Contractor's expense, correct or strike a marking if, in accordance
with the procedures of those clauses, a restrictive marking is
determined to be unjustified.
(2) Nonconforming computer software or computer software
documentation markings. A nonconforming marking is a marking placed on
computer software or computer software documentation delivered or
otherwise furnished to the Government under this contract that is not
in the format authorized by this contract. Correction of nonconforming
markings is not subject to the DFARS 252.227-7019, Validation of
Asserted Restrictions--Computer Software, or the DFARS 252.227-7037,
Validation of Restrictive Markings on Technical Data, clause of this
contract. If the Contracting Officer notifies the Contractor of a
nonconforming marking or markings and the Contractor fails to remove or
correct such markings within 60 days, the Government may ignore or, at
the Contractor's expense, remove or correct any nonconforming markings.
* * * * *
(l) Subcontractors or suppliers. (1)(i) Except as provided in
paragraph (l)(1)(ii) of this clause, whenever any other than commercial
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 Other Than Commercial 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.
(2) The Contractor and higher tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in computer software or computer software documentation
from their subcontractors or suppliers.
(3) The Contractor shall ensure that subcontractor or supplier
rights are recognized and protected in the identification, assertion,
and delivery processes required by paragraph (f) of this clause.
(4) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in computer
software or computer software documentation as an excuse for failing to
satisfy its contractual obligation to the Government.
* * * * *
Alternate I (JAN 2025). As prescribed in 227.7203-6(a)(2), add the
following paragraph (m) to the basic clause:
* * * * *
0
22. Amend section 252.227-7015--
0
a. By revising the clause date and paragraph (a);
0
b. By redesignating paragraphs (b) through (e) as paragraphs (c)
through (f), respectively;
0
c. By adding a new paragraph (b);
0
d. In newly redesignated paragraph (c)(2) introductory text, by
removing ``paragraph (b)(1)'' and adding ``paragraph (c)(1)'' in its
place;
0
e. By revising newly redesignated paragraph (c)(3);
0
f. By revising newly redesignated paragraph (f);
0
g. 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 addition read as follows:
252.227-7015 Technical Data--Commercial Products and Commercial
Services.
* * * * *
Technical Data--Commercial Products and Commercial Services (JAN 2025)
(a) Definitions. As used in this clause--
Commercial product and commercial service includes commercial
components and commercial processes but does not include commercial
computer software.
Covered Government support contractor means a contractor (other
than a litigation support contractor covered by 252.204-7014) under a
contract, the primary purpose of which is to furnish independent and
impartial advice or technical assistance directly to the Government in
support of the Government's management and oversight of a program or
effort (rather than to directly furnish an end item or service to
accomplish a program or effort), provided that the contractor--
(1) Is not affiliated with the prime contractor or a first-tier
subcontractor on the program or effort, or with any direct competitor
of such prime contractor or any such first-tier subcontractor in
furnishing end items or services of the type developed or produced on
the program or effort; and
(2) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
Form, fit, and function data means technical data that describe the
required overall physical, functional, and performance characteristics
(along with the qualification requirements, if applicable) of an item,
component, or process to the extent necessary to permit identification
of physically and functionally interchangeable items.
Technical data means recorded information, regardless of the form
or method of recording, of a scientific or
[[Page 103356]]
technical nature (including computer software documentation). The term
does not include computer software or financial, administrative, cost
or pricing, or management information, or information incidental to
contract administration.
(b) Applicability. This clause governs the technical data
pertaining to any portion of a commercial product or commercial service
that was developed exclusively at private expense. If the commercial
product or commercial service was developed in any part at Government
expense--
(1) The clause at Defense Federal Acquisition Regulation Supplement
(DFARS) 252.227-7018, Rights in Other Than Commercial Technical Data
and Computer Software--Small Business Innovation Research Program and
Small Business Technology Transfer Program, governs 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--
Other Than Commercial Products and Commercial Services, governs the
technical data pertaining to any portion of a commercial product or
commercial service that was developed in any part at Government expense
and is not covered under the SBIR or STTR program.
(c) * * *
(3) The Contractor acknowledges that--
(i) Technical data covered by paragraph (c)(2) of this clause are
authorized to be released or disclosed to covered Government support
contractors;
(ii) The Contractor will be notified of such release or disclosure;
(iii) The Contractor (or the party asserting restrictions as
identified in a restrictive legend) may require each such covered
Government support contractor to enter into a nondisclosure agreement
directly with the Contractor (or the party asserting restrictions)
regarding the covered Government support contractor's use of such data,
or alternatively, that the Contractor (or party asserting restrictions)
may waive in writing the requirement for a nondisclosure agreement; and
(iv) Any such nondisclosure agreement shall address the
restrictions on the covered Government support contractor's use of the
data as set forth in the clause at DFARS 252.227-7025, Limitations on
the Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends. The nondisclosure agreement shall not include any
additional terms and conditions unless mutually agreed to by the
parties to the nondisclosure agreement.
* * * * *
(f) Subcontractors or suppliers. (1) The Contractor shall recognize
and protect the rights afforded its subcontractors and suppliers under
10 U.S.C. 3771-3775, 10 U.S.C. 3781-3786, and 15 U.S.C.
638(j)(1)(B)(iii) and (v).
(2) Whenever any technical data related to commercial products or
commercial services 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 products or commercial
services, 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 product or
commercial service 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 product or
commercial service that was developed in any part at Government
expense:
(i) Use the clause at DFARS 252.227-7013, Rights in Technical
Data--Other Than Commercial Products and Commercial Services, to govern
any technical data that are not generated during any portion of
performance that is covered under the SBIR or STTR program.
(ii) Use the clause at 252.227-7018, Rights in Other Than
Commercial 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.
* * * * *
Alternate I (JAN 2025). As prescribed in 227.7102-4(a)(2), add the
following definition of ``Vessel design'' in alphabetical order to
paragraph (a) and add (c)(4) to the basic clause:
* * * * *
0
23. Amend section 252.227-7016 by revising the introductory text and
clause date and paragraphs (a) and (c)(2) to 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 (JAN 2025)
(a) Definitions. As used in this clause--
Computer software is defined in--
(1) The 252.227-7014, Rights in Other Than Commercial Computer
Software and Other Than Commercial 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 252.227-7018, Rights in Other Than Commercial Technical
Data and Computer Software--Small Business Innovation Research Program
and Small Business Technology Transfer Program, clause of this
contract.
Technical data is defined in--
(1) The 252.227-7013, Rights in Technical Data--Other Than
Commercial Products and Commercial Services, 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 252.227-7018, Rights in Other Than Commercial 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--Other Than Commercial
Products and Commercial Services; DFARS 252.227-7014, Rights in Other
Than Commercial Computer Software and Other Than Commercial Computer
Software Documentation; or DFARS 252.227-7018, Rights in Other Than
Commercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this contract.
* * * * *
0
24. Amend section 252.227-7017 by--
0
a. Revising the introductory text and the provision date;
0
b. Revising paragraphs (a) and (b);
[[Page 103357]]
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 (JAN 2025)
(a) Definitions. As used in this provision--
Computer software is defined in--
(1) The 252.227-7014, Rights in Other Than Commercial Computer
Software and Other Than Commercial 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 252.227-7018, Rights in Other Than Commercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program, clause
of this solicitation.
SBIR/STTR data is defined in the 252.227-7018, Rights in Other Than
Commercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this solicitation.
Technical data is defined in--
(1) The 252.227-7013, Rights in Technical Data--Other Than
Commercial Products and Commercial Services, 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 252.227-7018, Rights in Other Than Commercial
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 Program (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 items,
component, or process. For computer software or computer software documentation identify the software or
documentation.
\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
25. Amend section 252.227-7018--
0
a. By revising the section heading, introductory text, clause title,
and clause date;
0
b. By revising paragraph (a);
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. By revising newly redesignated paragraph (c);
0
f. In newly redesignated paragraph (e) introductory text, by removing
``paragraph (b)'' and adding ``paragraph (c)'' in its place;
0
g. In newly redesignated paragraph (f)(2), by removing ``paragraph
(e)(3)'' and adding ``paragraph (f)(3)'' in its place;
0
h. By revising the newly redesignated paragraph (f)(3) table;
0
i. In newly redesignated paragraph (f)(4), by removing ``of the
Validation of Asserted Restrictions--Computer Software and/or
Validation of Restrictive Markings on Technical Data'' and adding ``in
the 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
j. By revising newly redesignated paragraphs (g) and (i);
0
k. In newly redesignated paragraph (k)(2) introductory text, by
removing ``(j)(1)'' and adding ``(k)(1)'' in its place;
0
l. By revising newly redesignated paragraph (l); and
0
m. By removing Alternate I.
The revisions and addition read as follows:
252.227-7018 Rights in Other Than Commercial Technical Data and
Computer Software--Small Business Innovation Research Program and Small
Business Technology Transfer Program.
As prescribed in 227.7104-4(a)(1), use the following clause:
[[Page 103358]]
Rights in Other Than Commercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business Technlogy
Transfer Program (JAN 2025)
(a) Definitions. As used in this clause--
Commercial computer software means software developed or regularly
used for nongovernmental purposes which--
(1) Has been sold, leased, or licensed to the public;
(2) Has been offered for sale, lease, or license to the public;
(3) Has not been offered, sold, leased, or licensed to the public
but will be available for commercial sale, lease, or license in time to
satisfy the delivery requirements of this contract; or
(4) Satisfies a criterion expressed in paragraph (1), (2), or (3)
of this definition and would require only minor modification to meet
the requirements of this contract.
Computer database means a collection of recorded data in a form
capable of being processed by a computer. The term does not include
computer software.
Computer program means a set of instructions, rules, or routines,
recorded in a form that is capable of causing a computer to perform a
specific operation or series of operations.
Computer software means computer programs, source code, source code
listings, object code listings, design details, algorithms, processes,
flow charts, formulae, and related material that would enable the
software to be reproduced, re-created, or recompiled. Computer software
does not include computer databases or computer software documentation.
Computer software documentation means owner's manuals, user's
manuals, installation instructions, operating instructions, and other
similar items, regardless of storage medium, that explain the
capabilities of the computer software or provide instructions for using
the software.
Covered Government support contractor means a contractor (other
than a litigation support contractor covered by 252.204-7014) under a
contract, the primary purpose of which is to furnish independent and
impartial advice or technical assistance directly to the Government in
support of the Government's management and oversight of a program or
effort (rather than to directly furnish an end item or service to
accomplish a program or effort), provided that the contractor--
(1) Is not affiliated with the prime contractor or a first-tier
subcontractor on the program or effort, or with any direct competitor
of such prime contractor or any such first-tier subcontractor in
furnishing end items or services of the type developed or produced on
the program or effort; and
(2) Receives access to the technical data or computer 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 Marked with Restrictive Legends.
Detailed manufacturing or process data means technical data that
describe the steps, sequences, and conditions of manufacturing,
processing or assembly used by the manufacturer to produce an item or
component or to perform a process.
Developed means--
(1) (Applicable to technical data other than computer software
documentation.) An item, component, or process, exists and is workable.
Thus, the item or component must have been constructed or the process
practiced. Workability is generally established when the item,
component, or process has been analyzed or tested sufficiently to
demonstrate to reasonable people skilled in the applicable art that
there is a high probability that it will operate as intended. Whether,
how much, and what type of analysis or testing is required to establish
workability depends on the nature of the item, component, or process,
and the state of the art. To be considered ``developed,'' the item,
component, or process need not be at the stage where it could be
offered for sale or sold on the commercial market, nor must the item,
component or process be actually reduced to practice within the meaning
of Title 35 of the United States Code;
(2) A computer program has been successfully operated in a computer
and tested to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the program can reasonably be expected
to perform its intended purpose;
(3) Computer software, other than computer programs, has been
tested or analyzed to the extent sufficient to demonstrate to
reasonable persons skilled in the art that the software can reasonably
be expected to perform its intended purpose; or
(4) Computer software documentation required to be delivered under
a contract has been written, in any medium, in sufficient detail to
comply with requirements under that contract.
Developed exclusively at private expense means development was
accomplished entirely with costs charged to indirect cost pools, costs
not allocated to a government contract, or any combination thereof.
(1) Private expense determinations should be made at the lowest
practicable level.
(2) Under fixed-price contracts, when total costs are greater than
the firm-fixed-price or ceiling price of the contract, the additional
development costs necessary to complete development shall not be
considered when determining whether development was at government,
private, or mixed expense.
Developed exclusively with government funds means development was
not accomplished exclusively or partially at private expense.
Developed with mixed funding means development was accomplished
partially with costs charged to indirect cost pools and/or costs not
allocated to a government contract, and partially with costs charged
directly to a government contract.
Form, fit, and function data means technical data that describe the
required overall physical, functional, and performance characteristics
(along with the qualification requirements, if applicable) of an item,
component, or process to the extent necessary to permit identification
of physically and functionally interchangeable items.
Generated means, with respect to technical data or computer
software, first created in the performance of this contract.
Government purpose means any activity in which the United States
Government is a party, including cooperative agreements with
international or multi-national defense organizations or sales or
transfers by the United States Government to foreign governments or
international organizations. Government purposes include competitive
procurement, but do not include the rights to use, modify, reproduce,
release, perform, display, or disclose technical data or computer
software for commercial purposes or authorize others to do so.
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or disclose
technical data 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.
Limited rights means the rights to use, modify, reproduce, release,
perform,
[[Page 103359]]
display, or disclose technical data, in whole or in part, within the
Government. The Government may not, without the written permission of
the party asserting limited rights, release or disclose the technical
data outside the Government, use the technical data for manufacture, or
authorize the technical data to be used by another party, except that
the Government may reproduce, release, or disclose such data or
authorize the use or reproduction of the data by persons outside the
Government if--
(1) The reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or
(ii) A release or disclosure to--
(A) A covered Government support contractor in performance of its
covered Government support contracts for use, modification,
reproduction, performance, display, or release or disclosure to a
person authorized to receive limited rights technical data; or
(B) A foreign government, of technical data other than detailed
manufacturing or process data, when use of such data by the foreign
government is in the interest of the Government and is required for
evaluational or informational purposes;
(2) The recipient of the technical data is subject to a prohibition
on the further reproduction, release, disclosure, or use of the
technical data; and
(3) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
Minor modification means a modification that does not significantly
alter the nongovernmental function or purpose of computer software or
is of the type customarily provided in the commercial marketplace.
Other than commercial computer software means software that does
not qualify as commercial computer software under the definition of
``commercial computer software'' of this clause.
Restricted rights apply only to other than commercial 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 a reasonable number of copies of the computer software
required for the purposes of safekeeping (archive), backup,
modification, or other activities authorized in paragraphs (1), (2),
and (4) through (7) of this definition;
(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) Use, and 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 any such 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 Marked with
Restrictive Legends;
(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 (a)(18)(iv) of this clause, for any other
purpose; and
(iv) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition;
(6) Use, and 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 emergency 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 Marked with Restrictive Legends;
(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) Use, modify, reproduce, perform, display, or release or
disclose computer software to a person authorized to receive restricted
rights computer software for management and oversight of a program or
effort, and 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 Marked with Restrictive Legends, 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 time period 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, after the award,
the agency and the Contractor negotiate for some other protection
period for the SBIR/STTR data
[[Page 103360]]
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.
Technical data means recorded information, regardless of the form
or method of the recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or financial, administrative, cost or pricing, or
management information, or information incidental to contract
administration.
Unlimited rights means rights to use, modify, reproduce, release,
perform, display, or disclose, technical data or computer software in
whole or in part, in any manner and for any purpose whatsoever, and to
have or authorize others to do so.
(b) Applicability. This clause governs all SBIR/STTR data. For any
data that are not SBIR/STTR data--
(1) The clause at Defense Federal Acquisition Regulation Supplement
(DFARS) 252.227-7013, Rights in Technical Data--Other Than Commercial
Products and Commercial Services, governs the technical data pertaining
to other than commercial products and commercial services or to any
portion of a commercial product or commercial service that was
developed in any part at Government expense, and the clause at DFARS
252.227-7015, Technical Data--Commercial Products and Commercial
Services, governs the technical data pertaining to any portion of a
commercial product or commercial service that was developed exclusively
at private expense;
(2) The clause at DFARS 252.227-7014, Rights in Other Than
Commercial Computer Software and Other Than Commercial Computer
Software Documentation, governs other than commercial computer software
and other than commercial computer software documentation; and
(3) A license consistent with DFARS 227.7202 governs commercial
computer software and commercial computer software documentation.
(c) Rights in technical data and computer software. The Contractor
grants or shall obtain for the Government the following royalty-free,
worldwide, nonexclusive, irrevocable license rights in technical data
or other than commercial computer software. All rights not granted to
the Government are retained by the Contractor.
(1) Unlimited rights. The Government shall have unlimited rights in
technical data or computer software, including such data generated
under this contract, that are--
(i) Form, fit, and function data;
(ii) Necessary for installation, operation, maintenance, or
training purposes (other than detailed manufacturing or process data);
(iii) Corrections or changes to Government-furnished technical data
or computer software;
(iv) Otherwise publicly available or have been released or
disclosed by the Contractor or a subcontractor without restrictions on
further use, release, or disclosure other than a release or disclosure
resulting from the sale, transfer, or other assignment of interest in
the technical data or computer software to another party or the sale or
transfer of some or all of a business entity or its assets to another
party;
(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 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. This Government purpose rights period commences upon the
expiration of the SBIR/STTR data protection period.
(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 Marked with Restrictive Legends.
(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)(3) of this clause.
(3) Limited rights. The Government shall have limited rights in
technical data that were not generated under this contract, pertain to
items, components, or processes developed exclusively at private
expense, and are marked, in accordance with the marking instructions in
paragraph (g)(1) of this clause, with the legend prescribed in
paragraph (g)(4) of this clause.
(4) Restricted rights in computer software. The Government shall
have restricted rights in other than commercial computer software
required to be delivered or otherwise furnished to the Government under
this contract that were developed exclusively at private expense and
were not generated under this contract.
(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
[[Page 103361]]
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. After contract award,
the standard license rights granted to the Government under paragraphs
(c)(1) through (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 enumerated in the definition of ``restricted rights''
of this clause. Any rights so negotiated shall be identified in a
license agreement made part of this contract.
(7) Prior government rights. Technical data, including computer
software documentation, or computer software that will be delivered,
furnished, or otherwise provided to the Government under this contract,
in which the Government has previously obtained rights shall be
delivered, furnished, or provided with the preexisting rights, unless--
(i) The parties have agreed otherwise; or
(ii) Any restrictions on the Government's rights to use, modify,
release, perform, display, or disclose the technical data or computer
software have expired or no longer apply.
(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,'' ``other than
commercial 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 legends.
(9) Covered Government support contractors. The Contractor
acknowledges that--
(i) Limited rights technical data and restricted rights computer
software are authorized to be released or disclosed to covered
Government support contractors;
(ii) The Contractor will be notified of such release or disclosure;
(iii) The Contractor may require each such covered Government
support contractor to enter into a nondisclosure agreement directly
with the Contractor (or the party asserting restrictions as identified
in a restrictive legend) regarding the covered Government support
contractor's use of such data or software, or alternatively that the
Contractor (or party asserting restrictions) may waive in writing the
requirement for a nondisclosure agreement; and
(iv) Any such nondisclosure agreement shall address the
restrictions on the covered Government support contractor's use of the
data or software as set forth in the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends. The nondisclosure
agreement shall not include any additional terms and conditions unless
mutually agreed to by the parties to the nondisclosure agreement.
* * * * *
(f) * * *
(3) * * *
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) (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 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, or government purpose 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) Marking requirements. The Contractor, and its subcontractors or
suppliers, may only assert restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose
technical data or computer software to be delivered under this contract
by marking the deliverable data or software subject to restriction.
Except as provided in paragraph (g)(8) of this clause, only the
following markings are authorized under this contract: the government
purpose rights marking at paragraph (g)(3) of this clause; the limited
rights legend at paragraph (g)(4) of this clause; the restricted rights
legend at paragraph (g)(5) of this clause; the SBIR/STTR data rights
legend at paragraph (g)(6) of this clause; or the special license
rights legend at paragraph (g)(7) of this clause; and a notice of
copyright as prescribed under 17 U.S.C. 401 or 402.
(1) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark the
appropriate legend to all technical data and computer
[[Page 103362]]
software that qualify for such markings. The authorized legends shall
be placed on the 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 legend 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.
(2) 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)(2)(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.
(3) 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
Other Than Commercial 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 legend)
(4) 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 Other Than
Commercial 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
legend 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 legend)
(5) 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 Other Than Commercial
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 legend 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 legend)
(6) 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 legend:
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 legend are restricted during the period shown as
provided in paragraph (c)(5) of the DFARS 252.227-7018, Rights in Other
Than Commercial 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
[[Page 103363]]
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 legend must also reproduce the markings.
(End of legend)
(7) 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:
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 marking must
also reproduce the markings.
(End of legend)
(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).
(8) 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 legend 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.
* * * * *
(i) Removal of unjustified and nonconforming markings. (1)
Unjustified markings. The rights and obligations of the parties
regarding the validation of restrictive markings on technical data or
computer software furnished or to be furnished under this contract are
contained in the DFARS 252.227-7037, Validation of Restrictive Markings
on Technical Data, and the DFARS 252.227-7019, Validation of Asserted
Restrictions--Computer Software, clauses of this contract,
respectively. Notwithstanding any provision of this contract concerning
inspection and acceptance, the Government may ignore or, at the
Contractor's expense, correct or strike a marking if, in accordance
with the applicable procedures of those clauses, a restrictive marking
is determined to be unjustified.
(2) Nonconforming markings. A nonconforming marking is a marking
placed on technical data or computer software delivered or otherwise
furnished to the Government under this contract that is not in the
format authorized by this contract. Correction of nonconforming
markings is not subject to the DFARS 252.227-7037, Validation of
Restrictive Markings on Technical Data, or the DFARS 252.227-7019,
Validation of Asserted Restrictions--Computer Software, clause of this
contract. If the Contracting Officer notifies the Contractor of a
nonconforming marking or markings and the Contractor fails to remove or
correct such markings within 60 days, the Government may ignore or, at
the Contractor's expense, remove or correct any nonconforming markings.
* * * * *
(l) Subcontractors or suppliers. (1) The Contractor shall assure
that the rights afforded its subcontractors and suppliers under 10
U.S.C. 3771-3775, 10 U.S.C. 3781-3786, 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 other than commercial 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 clause at DFARS 252.227-7013, Rights in Technical
Data--Other Than Commercial Products and Commercial Services, to govern
the technical data pertaining to other than commercial products or
commercial services or to any portion of a commercial product or
commercial service that was developed in any part at Government
expense, and use the clause at DFARS 252.227-7015, Technical Data--
Commercial Products and Commercial Services, to govern the technical
data pertaining to any portion of a commercial product or commercial
service that was developed exclusively at private expense;
(B) Use the DFARS clause at 252.227-7014, Rights in Other Than
Commercial Computer Software and Other Than Commercial Computer
Software Documentation, to govern other than commercial 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.
(3) Technical data required to be delivered by a subcontractor or
supplier shall normally be delivered to the next higher tier
contractor, subcontractor, or supplier. However, when there is a
requirement in the prime contract for technical data which may be
submitted with other than unlimited rights by a subcontractor or
supplier, then said subcontractor or supplier may fulfill its
requirement by submitting such technical data directly to the
Government, rather than through a higher tier contractor,
subcontractor, or supplier.
(4) The Contractor and higher tier subcontractors or suppliers
shall not use their power to award contracts as economic leverage to
obtain rights in technical data or computer software from their
subcontractors or suppliers.
(5) In no event shall the Contractor use its obligation to
recognize and protect subcontractor or supplier rights in technical
data or computer software as an excuse for failing to satisfy its
contractual obligation to the Government.
* * * * *
0
26. Amend section 252.227-7019--
0
a. By revising the introductory text and clause date;
0
b. By revising paragraphs (a) and (d)(2)(i)(B);
0
c. In paragraph (e)(1), by revising the second sentence;
0
d. In paragraph (f)(1)(ii), by removing ``sixty (60) days'' and adding
``60 days'' in its place;
0
e. In paragraph (f)(1)(iv), by removing ``three-year'' and adding ``3-
year'' in its place;
0
f. In paragraph (f)(7), by removing ``provides the contractor'' and
adding ``provides the Contractor'' in its place; and
[[Page 103364]]
0
g. By revising paragraph (g).
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 (JAN 2025)
(a) Definitions. As used in this clause--
Contractor, unless otherwise specifically indicated, means the
Contractor and its subcontractors or suppliers.
Other terms are defined in the 252.227-7014, Rights in Other Than
Commercial Computer Software and Other Than Commercial Computer
Software Documentation, clause of this contract.
* * * * *
(d) * * *
(2) * * *
(i) * * *
(B) Return the computer software to the Contractor for correction
at the Contractor's expense. If the Contractor fails to correct or
strike the unjustified restrictions and return the corrected software
to the Contracting Officer within 60 days following receipt of the
software, the Contracting Officer may correct or strike the markings at
the Contractor's expense;
* * * * *
(e) * * *
(1) * * * Except for software that is publicly available, has been
furnished to the Government without restrictions, or has been otherwise
made available without restrictions, the Government may exercise this
right only within 3 years after the date(s) the software is delivered
or otherwise furnished to the Government, or 3 years following final
payment under this contract, whichever is later.
* * * * *
(g) Contractor appeal--Government obligation. (1) The Government
agrees that, notwithstanding a Contracting Officer's final decision
denying the validity of an asserted restriction and except as provided
in paragraph (g)(3) of this clause, it will honor the asserted
restriction--
(i) For a period of 90 days from the date of the Contracting
Officer's final decision to allow the Contractor to appeal to the
appropriate Board of Contract Appeals or to file suit in an appropriate
court;
(ii) For a period of 1 year from the date of the Contracting
Officer's final decision if, within the first 90 days following the
Contracting Officer's final decision, the Contractor has provided
notice of an intent to file suit in an appropriate court; or
(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.
(2) The Contractor agrees that the Government may strike, correct,
or ignore the restrictive markings if the Contractor fails to--
(i) Appeal to a Board of Contract Appeals within 90 days from the
date of the Contracting Officer's final decision;
(ii) File suit in an appropriate court within 90 days from such
date; or
(iii) File suit within 1 year after the date of the Contracting
Officer's final decision if the Contractor had provided notice of
intent to file suit within 90 days following the date of the
Contracting Officer's final decision.
(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 legends 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 Defense Federal
Acquisition Regulation Supplement (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 Marked with Restrictive Legends. 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
27. Amend section 252.227-7025--
0
a. By revising the introductory text and clause date;
0
b. By adding paragraph (a) introductory text;
0
c. By revising paragraphs (a)(3) and (b)(1) through (4);
0
d. In paragraph (b)(5)(iii), by removing ``thirty (30) days'' and
adding ``30 days'' in its place;
0
e. By revising paragraph (b)(5)(iv);
0
f. in paragraph (c)(2), by removing ``third party beneficiary'' and
adding ``third-party beneficiary'' in its place;
0
g. In paragraph (d), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place; and
0
h. 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 Marked with Restrictive Legends.
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 Marked With Restrictive Legends (JAN 2025)
(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
Other Than Commercial 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 legends. (i) The Contractor shall use, modify, reproduce,
perform, or display technical data received from the Government with
limited rights legends, computer software received with restricted
rights legends, or SBIR/STTR technical data or computer software
received with SBIR/STTR data rights legends (during the SBIR/STTR data
protection period) only in the performance of this contract. The
Contractor shall not, without the
[[Page 103365]]
express written permission of the party whose name appears in the
legend, release or disclose such data or software to any unauthorized
person.
(ii) If the Contractor is a covered Government support contractor,
the Contractor is also subject to the additional terms and conditions
at paragraph (b)(5) of this clause.
(2) GFI marked with government purpose rights legends. The
Contractor shall use technical data or computer software received from
the Government with government purpose rights legends for government
purposes only. The Contractor shall not, without the express written
permission of the party whose name appears in the restrictive legend,
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 legends.
(i) The Contractor shall use, modify, reproduce, release, perform, or
display technical data or computer software received from the
Government with specially negotiated license legends 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.
(ii) If the Contractor is a covered Government support contractor,
the Contractor may also be subject to some or all of the additional
terms and conditions at paragraph (b)(5) of this clause, to the extent
such terms and conditions are required by the specially negotiated
license.
(4) GFI technical data marked with commercial restrictive legends.
(i) The Contractor shall use, modify, reproduce, perform, or display
technical data that are or pertain to a commercial product or
commercial service and are received from the Government with a
commercial restrictive legend (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 legend, use the
technical data to manufacture additional quantities of the commercial
products or commercial services, or release or disclose such data to
any unauthorized person.
(ii) If the Contractor is a covered Government support contractor,
the Contractor is also subject to the additional terms and conditions
at paragraph (b)(5) of this clause.
(5) * * *
(iv) The Contractor will enter into a nondisclosure agreement with
the party whose name appears in the legend, if required to do so by
that party, and that any such nondisclosure agreement will implement
the restrictions on the Contractor's use of such data or software as
set forth in this clause. The nondisclosure agreement shall not include
any additional terms and conditions unless mutually agreed to by the
parties to the nondisclosure agreement; and
* * * * *
(End of clause)
0
28. Revise the 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
29. Revise the 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:
* * * * *
0
30. Revise the section 252.227-7037 introductory text to read as
follows:
252.227-7037 Validation of Restrictive Markings on Technical Data.
As prescribed in 227.7102-4(c), 227.7103-6(e)(3), 227.7104-4(b)(7),
or 227.7203-6(f), use the following clause:
* * * * *
0
31. Add sections 252.227-7040 and 252.227-7041 to read as follows:
252.227-7040 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 (JAN 2025)
(a) Definitions. As used in this provision, the terms ``research
institution'' and ``United States'' have the meaning given in the
252.227-7041, 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 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 terms or conditions that conflict with the requirements of
the clause at 252.227-7018, Rights in Other Than Commercial Technical
Data and Computer Software-Small Business Innovation Research Program
and Small Business Technology Transfer Program, or this provision,
including the rights of the United States, the Offeror, and the
research institution 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
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
[[Page 103366]]
paragraph (b) of this provision in an attachment to that contract.
(End of provision)
252.227-7041 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 (JAN 2025)
(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 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 guidance at Federal
Acquisition Regulation 35.017.
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 (DFARS) 252.227-7040,
Additional Preaward Requirements for Small Business Technology Transfer
Program:
(1) The written agreement between the Contractor and a research
institution.
(2) The Contractor's written representation that the Contractor is
satisfied with that written agreement, which does not conflict with the
clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical
Data and Computer Software-Small Business Innovation Research Program
and Small Business Technology Transfer Program, or this clause.
(c) Postaward updates. The Contractor shall not allow any
modification to its written agreement with the 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
research institution, as modified; and
(ii) The written agreement, as modified, does not conflict with the
clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical
Data and Computer Software-Small Business Innovation Research Program
and Small Business Technology Transfer Program, or this clause; and
(4) No terms and conditions that conflict with the clause at DFARS
252.227-7018, Rights in Other Than Commercial Technical Data and
Computer Software-Small Business Innovation Research Program and Small
Business Technology Transfer Program, or this clause, including the
rights of the United States, the Contractor, and the research
institution 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. 2024-29226 Filed 12-17-24; 8:45 am]
BILLING CODE 6001-FR-P
