[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14321]
[[Page Unknown]]
[Federal Register: June 20, 1994]
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DEPARTMENT OF DEFENSE
48 CFR Parts 211, 227, and 252
Defense Federal Acquisition Regulation Supplement; Rights in
Technical Data
AGENCY: Department of Defense (DoD).
ACTION: Proposed Rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement to prescribe the technical data regulations
required by 10 U.S.C. 2320, Rights in Technical Data. The proposed
regulations are intended to establish a balance between the interests
of data developers and data users, encourage creativity, encourage
firms to offer DoD new technology, and facilitate dual use development.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before August 19, 1994 to be considered
during formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to: Deputy
Director Major Policy Initiatives, 1200 S. Fern St., Arlington, VA
22202-2808, ATTN: Ms. Angelena Moy, OUSD (A&T)/DDP. Please cite DAR
Case 91-312 on all correspondence related to this proposed rule.
FOR FURTHER INFORMATION CONTACT:
Ms. Angelena Moy, (703) 604-5385/5386.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule publishes for public comment regulations that
adopt the recommendations of the Government-Industry Technical Data
Advisory Committee established pursuant to the National Defense
Authorization Act for Fiscal Years 1992 and 1993 (Pub. L. 102-190).
The Act required the Secretary of Defense to form a Government-
Industry advisory committee to develop recommended regulations to
supersede the interim regulations which presently implement
requirements of 10 U.S.C. 2320, Rights in Technical Data. Committee
meetings began in July 1992 and ended in December 1993. The committee
concluded that the existing regulations are a disincentive to companies
that create new technology with their own funding to provide that
technology to the Defense Department. The committee believes this
proposed regulation establishes a balance between data developers' and
data users' interests and will encourage creativity, encourage firms to
offer DoD new technology, and facilitate dual use development. The
protection of privately developed data is crucial, particularly for
developers that have limited product lines.
This proposed rule revises and retitles Defense FAR Supplement
Subpart 227.4, Rights in Technical Data; adds a new Subpart 227.5,
Rights in Computer Software and Computer Software Documentation; amends
Subpart 211.70, Acquisition and Distribution of Commercial Products;
and, amends Part 252, Solicitation Provisions and Contract Clauses.
Significant differences from the exiting regulations are summarized
below.
a. License Rights
This proposed rule identifies any government rights in technical
data or computer software as specific, nonexclusive, license rights the
contractor has granted the Government. The standard license rights are
defined in the proposed clauses at 252.227-7013, ``Rights in Technical
Data--Noncommercial Items'' and 252.227-7014, ``Rights in Noncommercial
Computer Software and Computer Software Documentation.'' The rule
provides that the contractor retains all rights not granted to the
Government.
b. Non-Standard License Rights
This proposed rule permits the negotiation of nonstandard license
rights whenever the parties agree that the standard rights are not
appropriate for a particular procurement.
c. Elimination of ``Required for Performance'' Criterion
Existing DFARS regulations permit DoD to obtain unlimited rights in
technical data if development was ``required for the performance of a
government contract or subcontract.'' This proposed rule eliminates
that criterion.
d. Clarification of Indirect Cost Treatment
10 U.S.C. 2320 requires implementing regulations to define the
treatment of indirect costs. The existing regulations require indirect
costs of development to be considered government funded if development
was required for the performance of a government contract. This
proposed rule provides for all development accomplished with costs
charged to indirect cost pools to be considered development
accomplished at private expense.
e. Standard Government Purpose Rights
The existing rule gives the government unlimited rights in
technical data that pertain to items, components, or processes
developed with a mix of private and government funds unless the
developer requests the exclusive right to commercialize and a license
can be negotiated. It does not permit negotiations when the government
anticipates the data will be needed for reprocurement. This proposed
rule replaces those criteria with a standard license, applicable in all
mixed funding situations, which is intended to recognize mixed funded
development. The license allows the government to use the data for
governmental purposes, including competition, but does not allow
commercial use. Government purpose rights will be effective for five
years following award of the development contract or subcontract or
such other period as the parties negotiate. The Government has
unlimited rights in the data upon expiration of the government purpose
rights period.
f. Segregation of Development Costs
This proposed rule allows private expense determinations to be made
at the lowest practicable level when determining rights in technical
data or computer software.
g. Commercial Items (Other Than Commercial Computer Software and
Commercial Computer Software Documentation)
The clause at 252.211-7015, ``Technical Data and Computer
Software--Commercial Items is removed. This proposed regulation adds a
clause at 252.227-7015, ``Technical Data--Commercial Items'' that
generally requires DoD to acquire only the technical data pertaining to
commercial items or processes that are customarily provided to the
public.
h. Separate Treatment for Computer Software
A new Subpart 227.5, ``Rights in Computer Software and Computer
Software Documentation'' and a new clause, 252.227-7014, ``Rights in
Noncommercial Computer Software and Computer Software Documentation''
are proposed to separate Computer software from technical data. This
separation increases the volume of the regulations but provides greater
flexibility to deal with new statutory requirements or technological
advancements that affect either technical data or computer software
only or affect both to varying degrees. The term computer software
documentation is defined in these regulations to mean owner's manuals,
user's manuals, installation instructions, and similar items that
explain the capabilities of the software or provide instructions for
use. Therefore, although computer software documentation is a form of
technical data (10 U.S.C. 2302(4), most applicable requirements are
contained in the software Subpart and clause.
i. Software Related Definitions
(1) The definitions of ``computer program'', ``computer software'',
and ``computer software documentation'' are revised. Definitions of
``developed'' are added for computer programs, software, and
documentation.
(2) The definition of ``restricted rights'' is revised. The
existing rule's right to use software with the computer for which it
was acquired is replaced by the right to use a program with one
computer at one time. The Government's rights to transfer programs,
modify restricted rights software, and permit others to use or modify
software for the Government in specific situations, are clarified.
j. Commercial Computer Software and Commercial Computer Software
Documentation
This proposed rule provides that the Government shall have only the
rights specified in the license under which the commercial computer
software or documentation is obtained. A contract clause is not
prescribed.
k. Use and Nondisclosure Agreements
The standard nondisclosure agreement contained in the existing rule
is amended. The proposed agreement covers third party use and
disclosure of all data or software in which the Government's rights are
restricted. The proposed regulations permit the use of class
nondisclosure agreements.
l. Contracts Under the Small Business Innovative Research Program
Alternate 1 to the clause at 252.227-7013 of the existing rule is
replaced by a new clause, 252.227-7018, ``Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovative
Research Programs.'' A single clause, rather than separate technical
data and computer software clauses each with alternate provisions,
reduces contractual burdens on these small businesses. Data generated
under these contracts is required to be protected for five years
instead of the four year statutory requirement.
B. Regulatory Flexibility Act
This proposed rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This proposed rule
modifies the circumstances under which the Government may release or
disclose technical data or computer software to interested persons or
permit those persons to use the technical data or computer software. An
initial Regulatory Flexibility Analysis (IRFA), that updates the IRFA
submitted for DAR Case 87-303 on March 29, 1988, has been prepared and
will be provided to the Chief Counsel for Advocacy for the Small
Business Administration. Comments are invited. Comments from small
entities will be considered in accordance with 5 U.S.C. 610. Such
comments must be submitted separately and cite DAR Case 91-312 in
correspondence.
C. Paperwork Reduction Act
This proposed rule implements information collection requirements
under 10 U.S.C. 2321 and requires the submission of other information
to comply with requirements in 10 U.S.C. 2320 that are within the
meaning of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. A
request for clearance, superseding the analysis performed for DAR Case
87-303, will be submitted to OMB.
List of Subjects in 48 CFR Parts 211, 227, and 252
Government procurement.
Claudia L. Naugle,
Deputy Director, Defense Acquisition Regulations Council.
Therefore, it is proposed to amend 48 CFR parts 211, 227, and 252
as follows:
1. The authority citation for 48 CFR parts 211, 227, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Part 1.
PART 211--ACQUISITION AND DISTRIBUTION OF COMMERCIAL PRODUCTS
211.70 [Amended]
2. Subpart 211.70 is amended by revising the words ``product'' to
read ``item'' and ``products'' to read ``items'' wherever they appear,
except in section 211.7004-1(m) where the phrase ``standard commercial
items'' remains unchanged.
3. Section 211.7001 is amended by removing paragraphs (c) and (d),
by redesignating paragraphs (e) and (f) as (c) and (d), respectively,
and by revising paragraph (a) to read as follows:
211.7001 Definitions.
* * * * *
(a) The terms commercial products, existing or prior source and
minor modification are defined in the provision at 252.211-7012,
Certifications--Commercial Products--Competitive Acquisitions.
* * * * *
Sec. 211.7004-1 [Amended]
4. Section 211.7004-1(h) is removed and reserved.
5. Section 211.7005 is amended by removing paragraph (a)(29) and by
redesignating paragraphs (a)(30) through (a)(33) as paragraphs (a)(29)
through (32) respectively.
6. Section 211.7005 is amended by removing paragraphs (b)(34) and
(35); by redesignating paragraphs (b)(36) through (51) as paragraphs
(b)(34) through (49), respectively; by redesignating paragraphs (b)(52)
through (54) as paragraphs (b)(51) through (53), respectively; and by
adding a new paragraph (b)(50) to read as follows:
Sec. 211.7005 contract clauses.
* * * * *
(b) * * *
(50) 252.227-7015 Technical Data--Commercial Items
Subpart 227.4--Rights in Technical Data
7. Subpart 227.4 is revised to read as follows:
Sec.
227.4 Rights in technical data.
227.400 Scope of subpart.
227.401 Definitions.
227.402 Commercial Items or processes.
227.402-1 Policy.
227.402-2 Rights in technical data.
227.402-3 Contract clause.
227.403 Noncommercial items or processes.
227.403-1 Policy.
227.403-2 Acquisition of technical data.
227.403-3 Early identification of technical data to be furnished to
the Government with restrictions on use, reproduction, or
disclosure.
227.403-4 License rights.
227.403-5 Government rights.
227.403-6 Contract clauses.
227.403-7 Use and non-disclosure agreement.
227.403-8 Deferred delivery and deferred ordering of technical
data.
227.403-9 Copyright.
227.403-10 Contractor identification and marking of technical data
to be furnished with restrictive markings.
227.403-11 Contractor procedures and records.
227.403-12 Government right to establish conformity of markings.
227.403-13 Government right to review, verify, challenge, and
validate asserted restrictions.
227.403-14 Conformity, acceptance, and warranty of technical data.
227.403-15 Subcontractor rights in technical data.
227.403-16 Providing technical data to foreign governments, foreign
contractors, or international organizations.
227.403-17 Overseas contracts with foreign sources.
227.404 Contracts under the Small Business Innovative Research
Program.
227.405 Contracts for the acquisition of existing works.
227.405-1 General.
227.405-2 Acquisition of existing works without modification.
227.405-3 Acquisition of modified existing works.
227.406 Contracts for special works.
227.407 Contracts for architect-engineer services.
227.407-1 Architectural designs and data clauses for architect-
engineer or construction contracts.
227.407-2 Contracts for construction supplies and research and
development work.
227.407-3 Approval of restricted designs.
227.408 Contractor data repositories.
227.4 Rights in technical data.
227.400 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures for the acquisition of
technical data and the rights to use, modify, reproduce, release,
perform, display, or disclose technical data. It implements
requirements in the following laws and Executive Order:
10 U.S.C. 2302(4)
10 U.S.C. 2305 (subsection (d)(4))
10 U.S.C. 2320
10 U.S.C. 2321
10 U.S.C. 2325
Executive Order 12591 (Subsection 1(b)(6)).
(b) Does not apply to computer software or technical data that is
computer software documentation (see 227.5).
227.401 Definitions.
(a) As used in this subpart, unless otherwise specifically
indicated, the terms offeror and contractor include an offeror's or
contractor's subcontractors, suppliers, or potential subcontractors or
suppliers at any tier.
(b) The terms Commercial items and minor modification, as that term
is used with commercial items, are defined in the clause at 252.227-
7015, ``Rights in Technical Data--Commercial Items.''
(c) Other terms used in this subpart are defined in the clause at
252.227-7013, ``Rights in Technical Data--Noncommercial Items.''
227.402 Commercial items or processes.
227.402-1 Policy.
(a) DoD shall acquire only the technical data customarily provided
to the public with a commercial item or process, except technical
data--
(1) Required for repair or maintenance of commercial items or
processes, or for the proper installation, operating, or handling of a
commercial item, either as a stand alone unit or as a part of a
military system, when such data are not customarily provided to
commercial users or the data provided to commercial users is not
sufficient for military requirements; or,
(2) That describe the modifications made to a commercial item or
process in order to meet the requirements of a Government solicitation.
(b) To encourage offerors and contractors to offer or use
commercial products to satisfy military requirements, offerors and
contractors shall not be required to--
(1) Except for the technical data described in 227.402-1(a),
furnish technical information related to commercial items or processes
that is not customarily provided to the public;
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release, or disclose technical data pertaining
to commercial items or processes except for a transfer of rights
mutually agreed upon.
227.402-2 Rights in technical data.
(a) The clause at 252.227-7015, ``Rights in Technical Data--
Commercial Items'' provides the Government specific license rights in
technical data pertaining to commercial items or processes. Generally,
DoD may use, modify, duplicate, release, or disclose such data only
within the Government. The data may not be used to manufacture
additional quantities of the commercial items and, except for emergency
repair or overhaul, may not be released or disclosed to, or used by,
third parties without the contractor's express permission.
(b) If additional rights are needed, contracting activities must
negotiate with the contractor to determine if there are acceptable
terms for transferring such rights. The specific additional rights
granted to the Government shall be enumerated in the contract license
agreement or an addendum thereto.
227.402-3 Contract clause.
Use the clause at 252.227-7015, ``Rights in Technical Data--
Commercial Items'', in all solicitations and contracts when the
contractor will be required to deliver technical data pertaining to
commercial items or processes.
227.403 Noncommercial items or processes.
227.403-1 Policy.
(a) DoD policy is to acquire only the technical data, and the
rights in that data, necessary to satisfy agency needs.
(b) Solicitations and contracts shall--
(1) Specify the technical data to be delivered under a contract and
delivery schedules for the data;
(2) Establish or reference procedures for determining the
acceptability of technical data;
(3) Establish separate contract line items, to the extent
practicable, for the technical data to be delivered under a contract
and require offerors and contractors to price separately each
deliverable data item;
(4) Require offerors to identify, to the extent practicable,
technical data to be furnished with restrictions on the Government's
rights and require contractor's to identify technical data to be
delivered with such restrictions prior to delivery.
(c) Offerors shall not be required, 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 at private expense
except for the data identified at 227.403-5(a) (2) and (a)(4) through
(9).
(d) Offerors and contractors shall not be prohibited or discouraged
from furnishing or offering to furnish items, components, or processes
developed at private expense solely because the Government's rights to
use, release, or disclose technical data pertaining to those items may
be restricted.
(e) As provided in 10 U.S.C. 2305, solicitations for major systems
development contracts shall not require offerors to submit proposals
that would permit the Government to acquire competitively items
identical to items developed at private expense unless a determination
is made at a level above the contracting officer that:
(1) The offeror will not be able to satisfy program schedule or
delivery requirements; or,
(2) The offeror's proposal to meet mobilization requirements does
not satisfy mobilization needs.
227.403-2 Acquisition of technical data.
(a) Procedures for acquiring technical data are contained in DoD
5010.12, DoD Data Management Program. Contracting officers shall work
closely with data managers and requirements personnel to assure that
data requirements included in solicitations are consistent with the
policy expressed in 227.403-1.
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's minimum needs for
technical data. Data needs must be established giving consideration to
the contractor's economic interests in data pertaining to items,
components, or processes that have been developed at private expense;
the Government's costs to acquire, maintain, store, retrieve, and
protect the data; reprocurement needs; repair, maintenance and overhaul
philosophies; spare and repair part considerations; and, whether
procurement of the items, components, or processes can be accomplished
on a form, fit, or function basis. Reprocurement needs may not be a
sufficient reason to acquire detailed manufacturing or process data
when replacement items or spare parts can be acquired using performance
specifications, form, fit and function data, or when there are a
sufficient number of alternate sources which can reasonably be expected
to provide such items on a performance specification or form, fit, or
function basis.
(2) When reviewing offers received in response to a solicitation or
other request for data, data managers must balance the original
assessment of the Government's data needs with data prices contained in
the offer.
(c) Contracting officers are responsible for assuring that, to the
maximum extent practicable, solicitations and contracts--
(1) Identify the type and quantity of the technical data to be
delivered under the contract and the format and media in which the data
will be delivered;
(2) As required by 10 U.S.C. 2320, establish each deliverable data
item as a separate contract line item (this requirement may be
satisfied by listing each deliverable data item on an Exhibit to the
contract);
(3) Identify the prices established for each separately priced
deliverable data item under a fixed price type contract;
(4) Include delivery schedules and acceptance criteria for each
deliverable data item; and,
(5) Specifically identify the place of delivery for each
deliverable item of technical data.
227.403-3 Early identification of technical data to be furnished to
the Government with restrictions on use, reproduction or disclosure.
(a) 10 U.S.C. 2320 requires, to the maximum extent practicable, an
identification prior to delivery of any technical data to be delivered
to the Government with restrictions on use.
(b) Use the provision at 252.227-7017, ``Identification and
Assertion of Use, Release, or Disclosure Restrictions'' in all
solicitations that include the clause at 252.227-7013, ``Rights in
Technical Data--Noncommercial Items.'' The provision requires offerors
to identify any technical data for which restrictions, other than
copyright, on use, release, or disclosure are asserted and to attach
the identification and assertions to the offer.
(c) Subsequent to contract award, to clause at 252.227-7013,
``Rights in Technical Data--Noncommercial Items'', permits a
contractor, under certain conditions, to make additional assertions of
use, release, or disclosure restrictions. The prescription for the use
of that clause and its alternate is at 227.403-6(a).
227.403-4 License rights.
(a) Grant of license. The Government obtains rights in technical
data, including a copyright license, under an irrevocable license
granted or obtained for the Government by the contractor. The
contractor or licensor retains all rights in the data not granted to
the Government. For technical data that pertain to items, components,
or processes, the scope of the license is generally determined by the
source of funds used to develop the item, component, or process. When
the technical data do not pertain to items, components, or processes,
the scope of the license is determined by the source of funds used to
create the data.
(1) Technical data pertaining to items, components, or processes.
Contractors or licensors may, with some exceptions (see 227.403-5(a)(2)
and (a) (4) through (9)), restrict the Government's rights to use,
release, or disclose technical data pertaining to items, components, or
processes developed exclusively at private expense (limited rights).
They may not restrict the Government's rights in items, components, or
processes developed exclusively at Government expense (unlimited
rights) without the Government's approval. When an item, component, or
process is developed with mixed funding, the Government may use,
release, or disclose the data pertaining to such items, components, or
processes within the Government without restriction but may release or
disclose the data outside the Government only for Government purposes
(government purpose rights).
(2) Technical data that do not pertain to items, components, or
processes. Technical data may be created during the performance of a
contract for a conceptual design or similar effort that does not
require the development, manufacture, construction, or production of
items, components or processes. The Government generally obtains
unlimited rights in such data when the data were created exclusively
with Government funds, government purpose rights when the data were
created with mixed funding, and limited rights when the data was
created exclusively at private expense.
(b) Source of funds determination. The determination of the source
of development funds for technical data pertaining to items,
components, or processes should be made at any practical sub-item or
sub-component level or for any segregable portion of a process.
Contractors may assert limited rights in a segregable sub-item, sub-
component, or portion of a process which otherwise qualifies for
limited rights under the clause at 252.227-7013, ``Rights in Technical
Data.''
227.403-5 Government rights.
The standard license rights that a licensor grants to the
Government are unlimited rights, government purpose rights, or limited
rights. Those rights are defined in the clause at 252.227-7013. In
unusual situations, the standard rights may not satisfy the
Government's needs or the Government may be willing to accept lesser
rights in data in return for other consideration. In those cases, a
special license may be negotiated. However, the licensor is not
obligated to provide the Government greater rights and the contracting
officer is not required to accept lesser rights than the rights
provided in the standard grant of license. The situations under which a
particular grant of license applies are enumerated in paragraphs (a)
through (d) of this subsection.
(a) Unlimited rights. The Government obtains unlimited rights in
technical data that are--
(1) Data pertaining to an item, component, or process which has
been or will be developed exclusively with Government funds;
(2) Studies, analyses, test data, or similar data produced in the
performance of a contract when the study, analysis, test, or similar
work was specified as an element of performance;
(3) Created exclusively with government funds in the performance of
a contract that does not require the development, manufacture,
construction, or production of items, components, or processes.
(4) Form, fit, and function data;
(5) Necessary for installation, operation, maintenance, or training
purposes (other than detailed manufacturing or process data);
(6) Corrections or changes to technical data furnished to the
contractor by the Government;
(7) Publicly available or have been released or disclosed by the
contractor or 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 software to
another party or the sale or transfer of some or all of a business
entity or its assets to another party;
(8) Data in which the Government has obtained unlimited rights
under another Government contract or as a result of negotiations; or,
(9) Data furnished to the Government, under a Government contract
or subcontract thereunder, with--
(i) Government purpose license rights or limited rights and the
restrictive condition(s) has/have expired; or
(ii) Government purpose rights and the contractor's exclusive right
to use such data for commercial purposes has expired.
(b) Government purpose rights. (1) The Government obtains
government purpose rights in technical data--
(i) That pertain to items, components, or processes developed with
mixed funding except when the Government is entitled to unlimited
rights as provided in 227.403-5 (a)(2) and (a)(4) through (9); or,
(ii) 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.
(2) The period during which government purpose rights are effective
is negotiable. The clause at 252.227-7013 provides a nominal five year
period. Either party may request a different period. Changes to the
government purpose rights period may be made at any time prior to
delivery of the technical data without consideration from either party.
Longer periods should be negotiated when a five year period does not
provide sufficient time to apply the data for commercial purposes or
when necessary to recognize subcontractors' interests in the data.
(3) The government purpose rights period commences upon execution
of the contract, subcontract, letter contract (or similar contractual
instrument), contract modification, or option exercise that required
the development. Upon expiration of the Government rights period, the
Government has unlimited rights in the data including the right to
authorize others to use the data for commercial purposes.
(4) During the government purpose rights period, the Government may
not use, or authorize other persons to use, technical data marked with
government purpose rights legends for commercial purposes. The
Government shall not release or disclose data in which it has
government purpose rights to any person, or authorize others to do so,
unless--
(i) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227.403-7; or
(ii) The intended recipient is a Government contractor receiving
access to 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.''
(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 non-disclosure 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 non-
disclosure restrictions. Public announcements in the Commerce Business
Daily or other publications must provide notice of the use and non-
disclosure 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
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) Limited rights. (1) The Government obtains limited rights in
technical data--
(i) That pertain to items, components, or processes developed
exclusively at private expense except when the Government is entitled
to unlimited rights as provided in 227.403-5 (a)(2) and (a)(4) through
(9); or,
(ii) 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.
(2) Data in which the Government has limited rights may not be
used, released, or disclosed outside the Government without the
permission of the contractor asserting the restriction except for a
use, release or disclosure that is--
(i) Necessary for emergency repair and overhaul; or,
(ii) To a foreign government, other than detailed manufacturing or
process data, when use, release, or disclosure is in the interest of
the United States and is required for evaluational or informational
purposes:
(3) The person asserting limited rights must be notified of the
Government's intent to release, disclose, or authorize others to use
such data prior to release or disclosure of the data except
notification of an intended release, disclosure, or use for emergency
repair or overhaul which shall be made as soon as practicable.
(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 227.403-5(c)(2) (i) or (ii), the intended recipient must complete
the use and non-disclosure agreement at 227.403-7 prior to release or
disclosure of the limited rights data.
(d) Specifically negotiated license rights. (1) Negotiate specific
licenses when the parties agree to modify the standard license rights
granted to the Government or when the Government wants to obtain rights
in data in which it does not have rights. When negotiating to obtain,
relinquish, or increase the Government's rights in technical data,
consider the acquisition strategy for the item, component, or process,
including logistics support and other factors which may have relevance
for a particular procurement. The Government may accept lesser rights
when it has unlimited or government purpose rights in data but may not
accept less than limited rights in such data. The negotiated license
rights must stipulate what rights the Government has to release or
disclose the data to other persons or to authorize others to use the
data. Identify all negotiated rights in a license agreement made part
of the contract.
(2) When the Government needs additional rights in data acquired
with government purpose or limited rights, the contracting officer must
negotiate with the contractor to determine whether there are acceptable
terms for transferring such rights. Generally, such negotiations should
be conducted only when there is a need to disclose the data outside the
Government or if the additional rights are required for competitive
reprocurement and the anticipated savings expected to be obtained
through competition are estimated to exceed the acquisition cost of the
additional rights. Prior to negotiating for additional rights in
limited rights data, consider alternatives such as--
(i) Using performance specifications and form, fit, and function
data to acquire or develop functionally equivalent items, components,
or processes;
(ii) Obtaining a contractor's contractual commitment to qualify
additional sources and maintain adequate competition among the sources;
(iii) Reverse engineering, or providing items from Government
inventories to contractors who request the items to facilitate the
development of equivalent items through reverse engineering.
Sec. 227.403-6 Contract clauses.
(a) Use the clause at 252.227-7013, ``Rights in Technical Data--
Noncommercial Items'' in solicitations and contracts when the
successful offeror(s) will be required to deliver technical data to the
Government. Do not use the clause when the only deliverable items are
computer software or computer software documentation (see 227.5),
commercial items (see 227.402-3), existing works (see 227.405), or
special works (see 227.406); in Architect-Engineer and construction
contracts (see 227.407); or, when contracting under the Small Business
Innovative Research Program (see 227.404).
(b) Use the clause with its Alternate I in research contracts when
the contracting officer determines, in consultation with counsel, that
public dissemination by the contractor would be--
(1) In the interest of the Government; and,
(2) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(c) Use the clause at 252.227-7016, ``Rights in Bid or Proposal
Data'', in solicitations and contracts when the Government anticipates
a need to use, subsequent to contract award, technical data included in
a bid or proposal that are not required to be delivered under the
contract.
(d) Use the clause at 252.227-7025, ``Limitations on the Use or
Disclosure of Government Furnished Information Marked with Restrictive
Legends'', in solicitations and contracts when it is anticipated that
the Government will provide the contractors, for performance of its
contract, technical data marked with another contractor's government
restrictive legends.
(e) Use the provision at 252.227-7028, ``Technical Data or Computer
Software Previously Delivered to the Government'', in solicitations
when the resulting contract will require the contractor to deliver
technical data. The provision requires offerors to identify any
technical data specified in the solicitation as deliverable data items
that are the same or substantially the same as data items the offeror
has delivered or is obligated to deliver, either as a contractor or
subcontractor, under any other federal agency contract.
(f) Use the following clauses in solicitations and contracts that
include the clause at 252.227-7013:
(1) 252.227-7030, ``Technical Data--Withholding of Payment'';
(2) 252.227-7036, ``Certification of Technical Data Conformity'';
and,
(3) 252.227-7037, ``Validation of Asserted Restrictions''
(paragraph (d) of the clause contains information that must be included
in a challenge).
227.403-7 Use and non-disclosure agreement
(a) Except as provided in 227.403-7(b), 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 non-disclosure agreement at
227.403-7(c) 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 computer software
subject to restricted rights must be stipulated in an attachment to the
use and non-disclosure agreement.
(2) For an intended release, disclosure, or authorized use of
technical data or computer software subject to special license rights,
modify paragraph 1.(c) of the use and nondisclosure agreement 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.
(b) The requirement for use and non-disclosure agreements does not
apply to Government contractors which require access to a third party's
data or software for the 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.''
(c) The prescribed ``Use and Non-disclosure Agreement'' is:
Use and Non-disclosure Agreement
The undersigned, ________ (Insert Name) ________, an authorized
representative of the ________ (Insert Company Name) ________,
(which is hereinafter referred to as the ``Recipient'') requests the
Government to provide the Recipient with technical data or computer
software (hereinafter referred to as ``Data'') in which the
Government's use, modification, reproduction, release, performance,
display or disclosure rights are restricted. Those Data are
identified in an attachment to this Agreement. In consideration for
receiving such Data, the Recipient agrees to use the Data strictly
in accordance with this Agreement:
(1) The Recipient shall--
(a) Use, modify, reproduce, release, perform, display, or
disclose Data marked with government purpose rights or SBIR data
rights lends only for government purposes and shall not do so for
any commercial purpose. The Recipient shall not release, perform,
display, or disclose these Data, without the express written
permission of the contractor whose name appears in the restrictive
legend (the ``Contractor''), to any person other than its
subcontractors or suppliers, or prospective subcontractors or
suppliers, who require these Data to submit offers for, or perform,
contracts with the Recipient. The Recipient shall require its
subcontractors or suppliers, or prospective subcontractors or
suppliers, to sign a use and non-disclosure agreement prior to
disclosing or releasing these Data to such persons. Such agreement
must be consistent with the terms of this agreement.
(b) Use, modify, reproduce, release, perform, display, or
disclose technical data marked with limited rights 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 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, timeshare,
or use of 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 restrict 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 227.403-7(a)(2). Omit if
none of the Data requested is marked with Special license rights
legends).
(2) The Recipient agrees to adopt or establish operating
procedures and physical security measures designed to protect these
Data from inadvertent release or disclosure to unauthorized third
parties.
(3) The Recipient agrees to accept these Data ``as is'' without
any Government representation as to suitability for intended use or
warranty whatsoever. This disclaimer does not affect any obligation
the Government may have regarding Data specified in a contract for
the performance of that contract.
(4) The Recipient may enter into any agreement directly with the
Contractor with respect to the use, modification, reproduction,
release, performance, display, or disclosure of these Data.
(5) The Recipient agrees to indemnify and hold harmless the
Government, its agents, and employees from very 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.
(6) The Recipient is executing this Agreement for the benefit of
the Contractor. The Contractor is a third party beneficiary of this
Agreement who, in addition to any other rights it may have, is
intended to have the rights of direct action against the Recipient
or any other person to whom the Recipient has released or disclosed
the Data, to seek damages from any breach of this Agreement or to
otherwise enforce this Agreement.
(7) The Recipient agrees to destroy these Data, and all copies
of the Data in its possession, no later than 30 days after the date
shown in paragraph (8) of this Agreement, to have all persons to
whom it released the Data do so by that date, and to notify the
Contractor that the Data have been destroyed.
(8) This Agreement shall be effective for the period commencing
with the Recipient's execution of the Agreement and ending upon
________ (Insert Date) ________. The obligations imposed by this
agreement shall survive the expiration or termination of this
agreement.
________________________
Recipient's Business Name
By________________________
Authorized Representative________________________
Representative's Typed Name and Title Date:
----------------------------------------------------------------------
(End of Use and Non-disclosure Agreement)
227.403-8 Deferred delivery and deferred ordering of technical data.
(a) Deferred delivery. Use the clause at 252.227-7026, ``Deferred
Delivery of Technical Data and Computer Software'', when it is in the
Government's interests to defer the delivery of technical data. The
clause permits the contracting officer to require the delivery of data
identified as ``deferred delivery'' data at any time until two years
after acceptance by the Government of all items (other than technical
data items) under the contract or contract termination, whichever is
later. The obligation of subcontractors or suppliers to deliver such
technical data expires two years after the date the prime contractor
accepts the last item from the subcontractor or supplier for use in the
performance of the contract. The contract must specify which technical
data is subject to deferred delivery. The contracting officer shall
notify the contractor sufficiently in advance of the desired delivery
date for such data to permit timely delivery of the data.
(b) Deferred ordering. Use the clause at 252.227-7027, ``Deferred
Ordering of Technical Data or Computer Software'', when a firm
requirement technical data has not been established prior to contract
award but there is a potential need for the data. Under this clause,
the contracting officer may order any technical data that has been
generated in the performance of the contract or any subcontract
thereunder at any time until three years after acceptance of all items
(other than technical data) under the contract or contract termination,
whichever is later. The obligation of subcontractors to deliver such
technical data expires three years after the date the contractor
accepts the last item under the subcontract. When the data are ordered,
the delivery dates shall be negotiated and the contractor compensated
only for converting the technical data into the prescribed form,
reproduction costs, and delivery costs.
227.403-9 Copyright.
(a) Copyright license. (1) The clause at 252.227-7013, ``Rights in
Technical Data--Noncommercial Items'', requires 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 clause. 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 fewer rights than the standard limited rights license in
technical data.
(2) The clause at 252.227-7013 does 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 227.405 or 227.406 for copyright considerations when
acquiring existing or special works.
227.403-10 Contractor identification and marking of technical data to
be furnished with restrictive markings.
(a) Identification requirements. (1) The solicitation provision at
252.227-7017, ``Identification and Assertion of Use, Release, or
Disclosure Restrictions'', requires offerors to identify to the
contracting officer, prior to contract award, any technical data that
the offeror asserts should be provided to the Government with
restrictions on use, modification, reproduction, release or disclosure.
This requirement does not apply to restrictions based solely on
copyright. The notification and identification must be submitted as an
attachment to the offer. If an offeror fails to submit the Attachment
or fails to complete the Attachment in accordance with the requirements
of the solicitation provision, such failure shall constitute a minor
informality. Provide offerors an opportunity to remedy a minor
informality in accordance with the procedures at FAR 14.405 or 15.607.
An offeror's failure to correct the informality within the time
prescribed by the contracting officer shall render the offer ineligible
for award.
(2) The procedures for correcting minor informalities shall not be
used to obtain information regarding asserted restrictions or an
offeror's suggested asserted rights category. Questions regarding the
justification for an asserted restriction or asserted rights category
must be pursued in accordance with the procedures at 227.403-13.
(3) The restrictions asserted by a successful offeror shall be
attached to its contract unless, in accordance with the procedures at
227.403-13, the parties have agreed that an asserted restriction is not
justified. The contract Attachment shall provide the same information
regarding identification of the technical data, the asserted rights
category, the basis for the assertion, and the name of the person
asserting the restrictions as required by paragraph (d) of the
solicitation provision. Subsequent to contract award, the clause at
252.227-7013, ``Rights in Technical Data--Noncommercial Items'' permits
the contractor to make additional assertions under certain conditions.
The additional assertions must be made in accordance with the
procedures and in the format prescribed by that clause.
(4) neither the pre- or post-award assertions made by the
contractor nor the fact that certain assertions are identified in the
Attachment to the contract, determine the respective rights of the
parties. As provided at 227.403-13, the Government has the right to
review, verify, challenge and validate restrictive markings.
(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, offerors shall not be prohibited from offering products
for which the offeror is entitled to provide the Government limited
rights in the technical data pertaining to such products and offerors
shall not be required, either as a condition or being responsive to a
solicitation or as a condition for award, to sell or otherwise
relinquish any greater rights in technical data when the offeror to
entitled to provide the technical data with limited rights.
(b) Contractor marking requirements. the clause at 252.227-7013,
``Rights in Technical Data--Noncommercial Items'' requires--
(1) A contractor who desires to restrict the Government's rights in
technical data to place restrictive markings on the data, provides
instructions for the placement of the restrictive markings, and
authorizes the use of certain restrictive markings.
(2) The 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 pre-existing rights in that data
unless the parties have agreed otherwise or restrictions on the
Government's rights to use, modify, reproduce, release, 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.
(c) Unmarked technical data. (1) Technical data delivered or
otherwise provided under a contract without restrictive markings shall
be presumed to have been delivered with unlimited rights and may be
released or disclosed without restriction. To the extent practicable,
if a contractor has requested permission (see 227.403-10(c)(2)) to
correct an inadvertent omission of markings, do not release or disclose
the technical data pending evaluation of the request.
(2) A contractor may request permission to have appropriate legends
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 data, or any extension of that time
approved by the contracting officer. The person making the request
must:
(i) Identify the technical data that should have been marked; and,
(ii) 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 the ``Rights in
Technical Data--Non-commercial Items'' clause at 252.227-7013; and,
(iii) 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) Contracting officers should grant permission to mark only if
the technical data were not distributed outside the Government or were
distributed outside the Government with restrictions on further use or
disclosure.
227.403-11 Contractor procedures and records.
(a) The clause at 252.227-7013, ``Rights in Technical Data--
Noncommercial Items'', requires 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.
(b) The clause at 252.227-7037, ``Validation of Asserted
Restrictions'', requires contractors and their subcontractors at any
tier to maintain records sufficient to justify the validity of
restrictive markings on technical data delivered or to be delivered
under a Government contract.
227.403-12 Government right to establish conformity of markings.
(a) Nonconforming markings. (1) Authorized markings are identified
in the clause at 252.227-7013, ``Rights in Technical Data.'' 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 clause at 252.227-7013 is also a nonconforming marking.
(2) The correction of nonconforming markings on technical data is
not subject to 252.227-7037, ``Validation of Asserted Restrictions''.
To the extent practicable, the contracting officer should return
technical data bearing nonconforming markings to the person who has
placed the nonconforming markings on such data to provide that person
an opportunity to correct or strike the nonconforming marking at that
person's expense. If the person who has placed the nonconforming
marking on the technical data fails to correct the nonconformity and
return the corrected data within 60 days following the person's receipt
of the data, the contracting officer may correct or strike the
nonconformity at that person's expense. When it is impracticable to
return technical data for correction, contracting officers may
unilaterally correct any nonconforming markings at Government expense.
Prior to correction of the nonconformity, the data may be used in
accordance with the proper restrictive marking.
(b) Unjustified markings. (1) An unjustified marking is an
authorized marking that does not depict accurately restrictions
applicable to the Government's use, modification, reproduction,
release, performance, display, or disclosure of the marked technical
data. For example, a limited rights legend placed on technical data
pertaining to items, components, or processes that were developed under
a Government contract either exclusively at Government expense or with
mixed funding (situations under which the Government obtains unlimited
or government purpose rights) is an unjustified marking.
(2) Contracting officers have the right to review and challenge the
validity of unjustified markings. However, at any time during
performance of a contract and notwithstanding the existence of a
challenge, the contracting officer and the person who has asserted a
restrictive marking may agree that the restrictive marking is not
justified. Upon such agreement, the contracting officer may, at his or
her election, either--
(i) Strike or correct the unjustified marking at that person's
expense; or,
(ii) Return the technical data to the person asserting the
restriction for correction at that person's expense. If the data are
returned and that person fails to correct or strike the unjustified
restriction and return the corrected data to the contracting officer
within sixty (60) days following receipt of the data, the unjustified
marking shall be corrected or stricken at that person's expense.
227.403-13 Government right to review, verify, challenge and validate
asserted restrictions.
(a) General. An offeror's assertion(s) of restrictions on the
Government's rights to use, modify, reproduce, release, or disclose
technical data do not, by themselves, determine the extent of the
Government's rights in the technical data. Under 10 U.S.C. 2321, the
Government has the right to challenge asserted restrictions when there
are reasonable grounds to question the validity of the assertion and
continued adherence to the assertion would make it impractical to later
procure competitively the item to which the data pertain.
(b) Pre-award considerations. The challenge procedures required by
10 U.S.C. 2321 could significantly delay awards under competitive
procurements. Therefore, avoid challenging asserted restrictions prior
to a competitive contract award unless resolution of the assertion is
essential for successful completion of the procurement.
(c) Challenge and validation. Contracting officers must have
reasonable grounds to challenge the current validity of an asserted
restriction. Before issuing a challenge to an asserted restriction,
carefully consider all available information pertaining to the
assertion. All challenges must be made in accordance with the
provisions of the clause at 252.227-7037, ``Validation of Asserted
Restrictions''.
(1) Challenge period. Asserted restrictions should be reviewed
before acceptance of technical data deliverable under the contract.
Assertions must be challenged within 3 years after final payment under
the contract or three years after delivery of the data, whichever is
later. However, restrictive markings may be challenged at any time if
the technical data--
(i) Are publicly available without restrictions;
(ii) Have been provided to the United States without restriction;
or,
(iii) Have been otherwise made available without restriction other
than a release or disclosure resulting from the sale, transfer, or
other assignment of interest in the software to another party or the
sale or transfer of some or all of a business entity or its assets to
another party.
(2) Pre-challenge requests for information. (i) After consideration
of the situations described in 227.403-13(c)(3), contracting officers
may request the person asserting a restriction to furnish a written
explanation of the facts and supporting documentation for the assertion
in sufficient detail to enable the contracting officer to determine the
validity of the assertion. Additional supporting documentation may be
requested when the explanation provided by the person making the
assertion does not, in the contracting officer's opinion, establish the
validity of the assertion.
(ii) If the person asserting the restriction fails to respond to
the contracting officer's request for information or additional
supporting documentation or if the information submitted does not
justify the asserted restriction, a challenge should be considered.
(3) Transacting matters directly with subcontractors. The clause at
252.227-7037 obtains the contractor's agreement that the Government may
transact matters under the clause directly with a subcontractor, at any
tier, without creating or implying privity of contract. Contracting
officers should permit a subcontractor or supplier to transact
challenge and validation matters directly with the Government when--
(i) A subcontractor's or supplier's business interests in its
technical data would be compromised if the data were disclosed to a
higher tier contractor; or,
(ii) There is reason to believe that the contractor will not
respond in a timely manner to a challenge and a failure to respond
would jeopardize a subcontractor's or supplier's right to assert
restrictions; or,
(iii) Requested to do so by a subcontractor or supplier.
(4) Challenge notice. Do not issue a challenge notice unless there
are reasonable grounds to question the validity of an assertion.
Assertions may be challenged whether or not supporting documentation
was requested from the person asserting the restriction. Challenge
notices must be in writing and issued to the contractor or, after
consideration of the situations described in 227.403-13(c)(3), the
person asserting the restriction. The challenge notice must include the
information in paragraph (d) of the clause at 252.227-7037,
``Validation of Asserted Restrictions.''
(5) Extension of response time. The contracting officer, at his or
her discretion, may extend the time for response contained in a
challenge notice, as appropriate, if the contractor submits a timely
written request showing the need for additional time to prepare a
response.
(6) Contracting officer's final decision. Contracting officers must
issue a final decision for each challenged assertion, whether or not
the assertion has been justified.
(i) A contracting officer's final decision that an assertion is not
justified must be issued as soon as practicable following the failure
of the person asserting the restriction to respond to the contracting
officer's challenge within sixty (60) days, or any extension to that
time granted by the contracting officer.
(ii) A contracting officer who, following a challenge and response
by the person asserting the restriction, determines that an asserted
restriction is justified, shall issue a final decision sustaining the
validity of the asserted restriction. If the asserted restriction was
made subsequent to submission of the contractor's offer, add the
asserted restriction to the contract Attachment.
(iii) A contracting officer who determines that the validity of an
asserted restriction has not been justified shall issue a contracting
officer's final decision within the time frames prescribed in 252.227-
7037, ``Validation of Asserted Restrictions.'' As provided in paragraph
(f) of that clause, the Government is obligated to continue to respect
the asserted restrictions through final disposition of any appeal
unless the Agency Head notifies the person asserting the restriction
that urgent or compelling circumstances do not permit the Government to
continue to respect the asserted restriction.
(7) Multiple challenges to an asserted restriction. When more than
one contracting officer challenges an asserted restriction, the
contracting officer who made the earliest challenge is responsible for
coordinating the Government challenges. That contracting officer shall
consult with all other contracting officers making challenges, verify
that all challenges apply to the same asserted restriction and, after
consulting with the contractor, subcontractor, or supplier asserting
the restriction, issue a schedule that provides that person a
reasonable opportunity to respond to each challenge.
(8) Validation. Only a contracting officer's final decision, or
actions of an agency board of contract appeals or a court of competent
jurisdiction, that sustain the validity of an asserted restriction
constitute validation of the asserted restriction.
227.403-14 Conformity, acceptance, and warranty of technical data.
(a) Statutory requirements. 10 U.S.C. 2320--
(1) Requires contractors to furnish written assurance at the time
technical data are delivered or are made available to the Government
that the technical data are complete, accurate, and satisfy the
requirements of the contract concerning such data;
(2) Provides for the establishment of remedies applicable to
technical data found to be incomplete, inadequate, or not to satisfy
the requirements of the contract concerning such data; and,
(3) Authorizes agency heads to withhold payments (or exercise such
other remedies and agency head considers appropriate) during any period
if the contractor does not meet the requirements of the contract
pertaining to the delivery of technical data.
(b) Conformity and acceptance. (1) Solicitations and contracts
requiring the delivery of technical data shall specify the requirements
the data must satisfy to be acceptable. Contracting officers, or their
authorized representatives, are responsible for determining whether
technical data tendered for acceptance conform to the contractual
requirements.
(2) The clause at 252.227-7030, ``Technical Data--Withholding of
Payment'' provides for withholding up to ten percent of the contract
price pending correction or replacement of the nonconforming technical
data or negotiation of an equitable reduction in contract price. The
amount subject to withholding may be expressed as a fixed dollar amount
or as a percentage of the contract price. In either case, the amount
shall be determined giving consideration to the relative value and
importance of the data. for example--
(i) When the sole purpose of a contract is to produce the data, the
relative value of that data may considerably higher than the value of
data produced under a contract where the production of the data is a
secondary objective; or,
(ii) When the Government will maintain or repair items, repair and
maintenance data may have a considerably higher relative value than
data that merely describe the item or provide performance
characteristics.
(3) Do not accept technical data that do not conform to the
contractual requirements in all respects. Except for nonconforming
restrictive markings (see 227.403-14(b)(4)), correction or replacement
of nonconforming data, or an equitable reduction in contract price when
correction or replacement of the nonconforming data is not practicable
or is not in the Government's interests, shall be accomplished in
accordance with--
(i) The provisions of a contract clause providing for inspection
and acceptance of deliverables and remedies for nonconforming
deliverables; or,
(ii) The procedures at FAR 46.407(c) through (g), if the contract
does not contain an inspection clause providing remedies for
nonconforming deliverables.
(4) Follow the procedures at 227.403-12(a)(2) if nonconforming
markings are the sole reason technical data fail to conform to
contractual requirements. The clause at 252.227-7030 may be used to
withhold an amount from payment, consistent with the terms of the
clause, pending correction of the nonconforming markings.
(c) Warranty. (1) The intended use of the technical data and the
cost, if any, to obtain the warranty should be considered before
deciding to obtain a data warranty (see FAR 46.703). The fact that a
particular item, component, or process is or is not warranted is not a
consideration in determining whether or not to obtain a warranty for
the technical data that pertain to the item, component, or process. For
example, a data warranty should be considered if the Government intends
to repair or maintain an item and defective repair or maintenance data
would impair the Government's effective use of the item or result in
increased costs to the Government.
(2) As prescribed in 246.710, use the clause at 252.246-7001,
``Warranty of Data'', and its alternates, or a substantially similar
clause when the Government needs a specific warranty of technical data.
227.403-15 Subcontractor rights in technical data.
(a) 10 U.S.C. 2320 provides subcontractors at all tiers the same
protection for their rights in data as is provided to prime
contractors. The clauses at 252.227-7013, ``Rights in Technical Data--
Noncommercial Items'', and 252.227-7037, ``Validation of Asserted
Restrictions'', implement the statutory requirements.
(b) 10 U.S.C. 2321 permits a subcontractor to transact directly
with the Government matters relating to the validation of its asserted
restrictions on the Government's rights to use or disclose technical
data. The clause at 252.227-7037, ``Validation of Asserted
Restrictions'' obtains a contractor's agreement that the direct
transaction of validation or challenge matters with subcontractors at
any tier does not establish or imply privity of contract. When a
subcontractor or supplier exercises its right to transact validation
matters directly with the Government, contracting officers shall deal
directly with such persons, as provided at 227.403-13(c)(3).
(c) Require prime contractors whose contracts include the following
clauses to include those clauses, without modification except for
appropriate identification of the parties, in contracts with
subcontractors or suppliers, at all tiers, who will be furnishing
technical data in response to a government requirement.
(1) 252.227-7013, ``Rights in Technical Data--Noncommercial
Items'';
(2) 252.227-7025, ``Limitations on the Use or Disclosure of
Government Furnished Information Marked with Restrictive Legends.
(3) 252.227-7028, ``Technical Data or Computer Software Previously
Delivered to the Government''; and,
(4) 252.227-7037, ``Validation of Asserted Restrictions''.
(d) Do not require contractors to have their subcontractors or
suppliers at any tier relinquish rights in technical data to the
contractor, a higher tier subcontractor, or to the Government, as a
condition for award of any contract, subcontract, purchase order, or
similar instrument except for the rights obtained by the Government
under the ``Rights in Technical Data--Noncommercial Items'' clause
contained in the contractor's contract with the Government.
227.403-16 Providing technical data to foreign governments, foreign
contractors, or international organizations.
Technical data may be released or disclosed to foreign governments,
foreign contractors, or international organizations only if release or
disclosure is otherwise permitted both by Federal export controls and
other national security laws or regulations. Subject to such laws and
regulations, the Department of Defense--
(a) May release or disclose technical data in which it has obtained
unlimited rights to such foreign entities or authorize the use of such
data by those entities.
(b) Shall not release or disclose technical data for which
restrictions on use, release, or disclosure have been asserted to
foreign entities, or authorize the use of technical data by those
entities, unless the intended recipient is subject to the same
provisions as included in the use and non-disclosure agreement at
227.403-7 and the requirements of the clause at 252.227-7013 governing
use, modification, reproduction, release, performance, display, or
disclosure of such data have been satisfied.
227.403-17 Overseas contracts with foreign sources.
(a) The clause at 252.227-7032, ``Rights in Technical Data and
Computer Software (Foreign)'' may be used in contracts with foreign
contractors to be performed overseas, except Canadian purchases (see
227.403-17(c)) in lieu of the clause at 252.227-7013, ``Rights in
Technical Data--Noncommercial Items'' when the Government requires the
unrestricted right to use, modify, reproduce, release, or disclose any
technical data to be delivered under the contract. Do not use the
clause in contracts for Existing or Special Works.
(b) The clause at 252.227-7032 may be modified to accommodate the
needs of a specific overseas procurement situation, provided the
Government obtains rights to the technical data that are not less than
the rights the Government would have obtained under the data rights
clause prescribed in this Part for a comparable procurement performed
within the United States or its possessions.
(c) Contracts for Canadian purchases shall include the appropriate
data rights clause prescribed in this Part for a comparable procurement
performed within the United States or its possessions.
227.404 Contracts under the Small Business Innovative Research
Program.
(a) Use the clause at 252.227-7018, ``Rights in Technical Data and
Computer Software--Small Business Innovative Research Program'', when
technical data or computer software will be generated during
performance of contracts under the Small Business Innovative Research
(SBIR) program.
(b) Under that clause, the Government obtains a royalty free
license to use technical data marked with an SBIR Data Rights legend
only for Government purposes during the period commencing with contract
award and ending 5 years after completion of the project under which
the data were generated. Upon expiration of the 5 year restrictive
license, the Government has unlimited rights in the SBIR data. During
the license period, the Government may not release or disclose SBIR
data to any person other than--
(1) For evaluational purposes.
(2) As expressly permitted by the contractor; or,
(3) A use, release, or disclosure that is necessary for emergency
repair or overhaul of items operated by the Government.
(c) Do not make any release or disclosure permitted by 227.404(b)
unless, prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227-403-7.
(d) Use the clause with its Alternate I in research contracts when
the contracting officer determines, in consultation with counsel, that
public dissemination by the contractor would be--
(1) In the interest of the Government; and,
(2) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(e) Use the following provision and clauses in SBIR solicitations
and contracts that include the clause at 252.227-7018:
(1) 252.227-7017, ``Identification and Assertion of Use, Release,
or Disclosure Restrictions'';
(2) 252.227-7019, ``Validation of Asserted Restrictions--Computer
Software'';
(3) 252.227-7030, ``Technical Data--Withholding of Payment'';
(4) 252.227-7036, ``Certification of Technical Data Conformity'';
and,
(5) 252.227-7037, ``Validation of Asserted Restrictions''
(paragraph (d) of the clause contains information that must be included
in a challenge).
(f) Use the following clauses and provision in SBIR solicitations
and contracts in accordance with the guidance at 227.403-6 (c), (d),
and (e)
(1) 252.227-7016, ``Rights in Bid or Proposal Data'';
(2) 252.227-7025, ``Limitations on the Use or Disclosure of
Government Furnished Information Marked with Restrictive Legends''; and
(3) 252.227-7028, Technical Data or Computer Software Previously
Delivered to the Government.''
Sec. 227.405 Contracts for the acquisition of existing works.
Sec. 227.405-1 General.
(a) Existing works include motion pictures, television recordings,
video recordings, and other audiovisual works in any medium; sound
recordings in any medium; musical, dramatic, and literary works;
pantomimes and choreographic works; pictorial, graphic, and sculptural
works; and, works of a similar nature. Usually, these or similar works
were not first created, developed, generated, originated, prepared, or
produced under a Government contract. Therefore, the Government must
obtain a license in the work if it intends to reproduce the work,
distribute copies of the work, prepare derivative works, or perform or
display the work publicly. When the Government is not responsible for
the content of an existing work, it should require the copyright owner
to indemnify the Government for liabilities that may arise out of the
content, performance, use, or disclosure of such data.
(b) Follow the procedures at 227.406 for works which will be first
created, developed, generated, originated, prepared, or produced under
a Government contract and the Government needs to control distribution
of the work or has a specific need to obtain indemnity for liabilities
that may arise out of the creation, content, performance, use, or
disclosure of the work or from libelous or other unlawful material
contained in the work. Follow the procedures at 227.403 when the
Government does not need to control distribution of such works or
obtain such indemnities.
Sec. 227.405-2 Acquisition of existing works without modification.
(a) Use the clause at 252.227-7021, ``Rights in Data--Existing
Works'' in lieu of the clause at 252.227-7013, ``Rights in Technical
Data--Noncommercial Items'', in solicitations and contracts exclusively
for existing works when:
(1) The existing works will be acquired without modification; and,
(2) The Government requires the right to reproduce, prepare
derivative works, or publicly perform or display the existing works;
or,
(3) The Government has a specific need to obtain indemnity for
liabilities that may arise out of the content, performance, use, or
disclosure of such data.
(b) The clause at 252.227-7021, ``Rights in Data--Existing Works'',
provides the Government, and others acting on its behalf, a paid-up,
non-exclusive, irrevocable, worldwide license to reproduce, prepare
derivative works and publicly perform or display the works called for
by a contract and to authorize others to do so for Government purposes.
(c) A contract clause is not required to acquire existing works
such as books, magazines and periodicals in any storage or retrieval
medium, when the Government will not reproduce the books, magazines or
periodicals, or prepare derivative works.
Sec. 227.405-3 Acquisition of modified existing works.
Use the clause at 252.227-7020, ``Rights in Data--Special Works'',
in solicitations and contracts for modified existing works in lieu of
the clause at 252.227-7021, ``Rights in Data--Existing Works.''
Sec. 227.406 Contracts for special works.
(a) Use the clause at 252.227-7020, ``Rights in Special Works'' in
solicitations and contracts where the Government has a specific need to
control the distribution of works first produced, created, or generated
in the performance of a contract and required to be delivered under
that contract, including controlling distribution by obtaining an
assignment of copyright, or a specific need to obtain indemnity for
liabilities that may arise out of the content, performance, use, or
disclosure of such works. Use the clause--
(1) In lieu of the clause at 252.227-7013, ``Rights in Technical
Data--Noncommercial Items'', when the Government must own or control
copyright in all works first produced, created, or generated and
required to be delivered under a contract.
(2) In addition to the clause at 252.227-7013, ``Rights in
Technical Data--Noncommercial Items'' when the Government must own or
control copyright in a portion of a work first produced, created, or
generated and required to be delivered under a contract. The specific
portion in which the Government must own or control copyright must be
identified in a special contract requirement.
(b) Although the Government obtains an assignment of copyright and
unlimited rights in a special work under the clause at 252.227-7020,
the contractor retains use and disclosure rights in that work. If the
Government needs to restrict a contractor's rights to use or disclose a
special work, it must also negotiate a special license which
specifically restricts the contractor's use or disclosure rights.
(c) The clause at 252.227-7020 does not permit a contractor to
incorporate into a special work any works copyrighted by others unless
the contractor obtains the contracting officer's permission to do so
and obtains for the Government a non-exclusive, paid up, world-wide
license to make and distribute copies of that work, to prepare
derivative works, to perform or display publicly any portion of the
work, and to permit others to do so for government purposes. Grant
permission only when the Government's requirements cannot be satisfied
unless the third party work is included in the deliverable work.
(d) Examples of works which may be procured under the ``Rights in
Special Works'' clause include, but are not limited, to audiovisual
works, computer data bases, computer software documentation, scripts,
soundtracks, musical compositions, and adaptations; histories of
departments, agencies, services or units thereof; surveys of Government
establishments; instructional works or guidance to Government officers
and employees on the discharge of their official duties; reports,
books, studies, surveys or similar documents; collections of data
containing information pertaining to individuals that, if disclosed,
would violate the right of privacy or publicity of the individuals to
whom the information relates; or, investigative reports.
227.407 Contracts for architect-engineer services.
This section sets forth policies and procedures, pertaining to
data, copyrights, and restricted designs unique to the acquisition of
construction and architect-engineer services.
227.407-1 Architectural designs and data clauses for architect-
engineer or construction contracts.
(a) Except as provided in 227.407-1(b), use the clause at 252.227-
7022, ``Government Rights (Unlimited)'', in solicitations and contracts
for architect-engineer services and for construction involving
architect-engineer services.
(b) When the purpose of a contract for architect-engineer services
or for construction involving architect-engineer services is to obtain
a unique architectural design of a building, a monument, or
construction of similar nature, which for artistic, aesthetic or other
special reasons the Government does not want duplicated, the Government
may acquire exclusive control of the data pertaining to the design by
including the clause at 252.227-7023, ``Drawings and Other Data to
Become Property of Government'', in solicitations and contracts.
(c) The Government shall obtain unlimited rights in shop drawings
for construction. In solicitations and contracts calling for delivery
of shop drawings, include the clause at 252.227-7033, Rights in Shop
Drawings.
227.407-2 Contracts for construction supplies and research and
development work.
The provisions and clauses required by 227.407-1 shall not be used
when the acquisition is limited to--
(a) Construction supplies or materials;
(b) Experimental, developmental, or research work, or test and
evaluation studies of structures, equipment, processes, or materials
for use in construction; or,
(c) Both.
227.407-3 Approval of restricted designs.
The clause at 252.227-7024, ``Notice and Approval of Restricted
Designs'', may be included in architect-engineer contracts to permit
the Government to make informed decisions concerning noncompetitive
aspects of the design.
227.408 Contractor data repositories.
(a) Contractor data repositories may be established when permitted
by agency procedures. The contractual instrument establishing the data
repository must require, as a minimum, the data repository management
contractor to--
(1) Establish and maintain adequate procedures for protecting
technical data delivered to or stored at the repository from
unauthorized release or disclosure;
(2) Establish and maintain adequate procedures for controlling the
release or disclosure of technical data from the repository to third
parties consistent with the Government's rights in such data;
(3) When required by the contracting officer, deliver data to the
Government on paper or in other specified media;
(4) Be responsible for maintaining the currency of data delivered
directly by Government contractors or subcontractors to the repository;
(5) Obtain use and non-disclosure agreements (see 227.403-7) from
all persons to whom government purpose rights data is released or
disclosed; and,
(6) Indemnify the Government from any liability to data owners or
licensors resulting from, or as a consequence, of a release or
disclosure of technical data made by the data repository contractor or
its officers, employees, agents, or representatives.
(b) If the contractor is or will be the data repository manager,
the contractor's data management and distribution responsibilities must
be identified in the contract or the contract must reference the
agreement between the Government and the contractor that establishes
those responsibilities.
(c) If the contractor is not and will not be the data repository
manager, do not require a contractor or subcontractor to deliver
technical data marked with limited rights legends to a data repository
managed by another contractor unless the contractor or subcontractor
who has asserted limited rights agrees to release the data to the
repository or has authorized, in writing, the Government to do so.
(d) Repository procedures may provide for the acceptance, delivery,
and subsequent distribution of technical data in storage media other
than paper, including direct electronic exchange of data between two
computers. The procedures must provide for the identification of any
portions of the data provided with restrictive legends, when
appropriate. The acceptance criteria must be consistent with the
authorized delivery format.
Subpart 227.5--Rights in Computer Software and Computer Software
Documentation
8. A new subpart 227.5 is added to read as follows:
227.5 Rights in computer software and computer software documentation
Sec.
227.500 Scope of subpart.
227.501 Definitions.
227.502 Commercial computer software and commercial computer
software documentation.
227.502-1 Policy.
227.502-2 Obtaining commercial computer software or commercial
computer software documentation.
227.502-3 Rights in commercial computer software or commercial
computer software documentation.
227.502-4 Contract clause.
227.503 Noncommercial computer software and computer software
documentation.
227.503-1 Policy.
227.503-2 Acquisition of noncommercial computer software and
computer software documentation.
227.503-3 Early identification of computer software or computer
software documentation to be furnished to the Government with
restrictions on use, reproduction, or disclosure.
227.503-4 License rights.
227.503-5 Government rights.
227.503-6 Contract clauses.
227.503-7 [Reserved]
227.503-8 Deferred delivery and deferred ordering of computer
software and computer software documentation.
227.503-9 Copyright.
227.503-10 Contractor identification and marking of computer
software or computer software documentation to be furnished with
restrictive markings.
227.503-11 Contractor procedures and records.
227.503-12 Government right to establish conformity of markings.
227.503-13 Government right to review, verify, challenge, and
validate asserted restrictions.
227.503-14 Conformity, acceptance, and warranty of computer
software and computer software documentation.
227.503-15 Subcontractor rights in computer software or computer
software documentation.
227.503-16 Providing computer software or computer software
documentation to foreign governments, foreign contractors, or
international organizations.
227.503-17 Overseas contracts with foreign sources.
227.504 Contracts under the Small Business Innovative Research
Program.
227.505 Contracts for special works.
227.506 Contracts for architect-engineer services.
227.507 Contractor data repositories.
227.5 Rights in computer software or computer software documentation.
227.500 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures for the acquisition of
computer software and computer software documentation, and the rights
to use, modify, reproduce, release, perform, display, or disclosure
such software or documentation. It implements requirements in the
following laws and Executive Order:
10 U.S.C. 2302(4)
10 U.S.C. 2305 (subsection (d)(4))
10 U.S.C. 2320
10 U.S.C. 2321
10 U.S.C. 2325
Executive Order 12591 (subsection 1(b)(6))
(b) Does not apply to computer software or computer software
documentation acquired under GSA schedule contracts.
227.501 Definitions.
(a) As used in this subpart, unless otherwise specifically
indicated, the terms offeror and contractor include an offeror's or
contractor's subcontractors, suppliers, or potential subcontractors or
suppliers at any tier.
(b) Other terms used in this subpart are defined in the clause at
252.227-7014, ``Rights in Computer Software and Computer Software
Documentation.''
227.502 Commercial computer software and commercial computer software
documentation.
227.502-1 Policy.
(a) Commercial computer software or commercial computer software
documentation shall be acquired under the licenses customarily provided
to the public unless such licenses are inconsistent with Federal
procurement law or do not otherwise satisfy user needs.
(b) Commercial computer software and commercial computer software
documentation shall be obtained competitively, to the maximum extent
practicable, using firm fixed price contracts or firm fixed priced
orders under available pricing schedules.
(c) Offerors and contractors shall not be required to--
(1) Furnish technical information related to commercial computer
software or commercial computer software documentation that is not
customarily provided to the public except for information documenting
the specific modifications made to such software or documentation to
meet the requirements of a DoD solicitation;
(2) Relinquish to, or otherwise provide, the Government rights to
use, modify, reproduce, release or disclose commercial computer
software or commercial computer software documentation except for a
transfer of rights mutually agreed upon.
227.502-2 Obtaining commercial computer software or commercial
computer software documentation.
Commercial computer software or commercial computer software
documentation shall be acquired, to the maximum extent practicable,
using the procedures at 211.70.
227.502-3 Rights in commercial computer software or commercial
computer software documentation.
(a) The Government shall have only the rights specified in the
license under which the commercial computer software or commercial
computer software documentation was obtained.
(b) If the Government has a need for rights not conveyed under the
license customarily provided to the public, the Government must
negotiate with the contractor to determine if there are acceptable
terms for transferring such rights. The specific rights granted to the
Government shall be enumerated in the contract license agreement or an
addendum thereto.
227.502-4 Contract clause.
A specific contract clause governing the Government's rights in
commercial computer software or commercial computer software
documentation is not prescribed. As required by 227.502-3, the
Governments rights to use, modify, reproduce, release, perform,
display, or disclose computer software or computer software
documentation shall be identified in a license agreement.
227.503 Noncommercial computer software and noncommercial computer
software documentation.
227.503-1 Policy
(a) DoD policy is to acquire only the computer software and
computer software documentation, and the rights in such software or
documentation, necessary to satisfy agency needs.
(b) Solicitations and contracts shall--
(1) Specify the computer software or computer software
documentation to be delivered under a contract and the delivery
schedules for the software or documentation;
(2) Establish or reference procedures for determining the
acceptability of computer software or computer software documentation;
(3) Establish separate contract line items, to the extent
practicable, for the computer software or computer software
documentation to be delivered under a contract and require offerors and
contractors to price separately each deliverable data item;
(4) Require offerors to identify, to the extent practicable,
computer software or computer software documentation to be furnished
with restrictions on the Government's rights and require contractor's
to identify computer software or computer software documentation to be
delivered with such restrictions prior to delivery.
(c) Offerors shall not be required, 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 computer software
developed exclusively at private expense except for the software
identified at 227.503-5(a) (3) through (6).
(d) Offerors and contractors shall not be prohibited or discouraged
from furnishing or offering to furnish computer software developed
exclusively at private expense solely because the Government's rights
to use, release, or disclose the software may be restricted.
227.503-2 Acquisition of noncommercial computer software and computer
software documentation.
(a) Contracting officers shall work closely with data managers and
requirements personnel to assure that computer software and computer
software documentation requirements included in solicitations are
consistent with the policy expressed in 27.503-1.
(b)(1) Data managers or other requirements personnel are
responsible for identifying the Government's minimum needs. In addition
to desired software performance, compatibility, or other technical
considerations, needs determinations should consider such factors as
multiple site or shared use requirements, whether the Government's
software maintenance philosophy will require the right to modify or
have third parties modify the software, and any special computer
software documentation requirements.
(2) When reviewing offers received in response to a solicitation or
other request for computer software or computer software documentation,
data managers must balance the original assessment of the Government's
needs with prices offered.
(c) Contracting officers are responsible for assuring that, to the
maximum extent practicable, solicitations and contracts--
(1) Identify the types of computer software and the quantity of
computer programs and computer software documentation to be delivered,
any requirements for multiple user at one site or multiple site
licenses, and the format and media in which the software or
documentation will be delivered;
(2) Establish each type of computer software or computer software
documentation to be delivered as a separate contract line item (this
requirement may be satisfied by an Exhibit to the contract);
(3) Identify the prices established for each separately priced
deliverable item of computer software or computer software
documentation under a fixed price type contract;
(4) Include delivery schedules and acceptance criteria for each
deliverable item; and,
(5) Specifically identify the place of delivery for each
deliverable item.
227.503-3 Early identification of computer software or computer
software documentation to be furnished to the Government with
restrictions on use, reproduction or disclosure.
(a) Use the provision at 252.227-7017, ``Identification and
Assertion of Use, Release, or Disclosure Restrictions'' in all
solicitations that include the clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation.'' The provision requires offerors to identify any
computer software or computer software documentation for which
restrictions, other than copyright, on use, modification, reproduction,
release, performance, display, or disclosure are asserted and to attach
the identification and assertion to the offer.
(b) Subsequent to contract award, the clause at 252.227-7014,
``Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation'' permits a contractor, under certain
conditions, to make additional assertions of restrictions. The
prescriptions for the use of that clause and its alternates are at
227.503-6(a)(1).
227.503-4 License rights.
(a) Grant of license. The Government obtains rights in computer
software or computer software documentation, including a copyright
license, under an irrevocable license granted or obtained by the
contractor which developed the software or documentation or the
licensor of the software or documentation if the development contractor
is not the licensor. The contractor or licensor retains all rights in
the software or documentation not granted to the Government. The scope
of a computer software license is generally determined by the source of
funds used to develop the software. Contractors or licensors may, with
some exceptions, restrict the Government's rights to use, release, or
disclose computer software developed exclusively or partially at
private expense (see 227.503-5 (b) and (c)). They may not, without the
Government's agreement (see 227.503-5(d)) restrict the Government's
rights in computer software developed exclusively with Government funds
or in computer software documentation required to be delivered under a
contract.
(b) Source of funds determination. The determination of the source
of funds used to develop computer software should be made at the lowest
practicable segregable portion of the software or documentation (eg., a
software sub-routine that performs a specific function). Contractors
may assert restricted rights in a segregable portion of computer
software which otherwise qualifies for restricted rights under the
clause at 252.227-7014, ``Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.''
227.503-5 Government rights.
The standard license rights in computer software that a licensor
grants to the Government are unlimited rights, government purpose
rights, or restricted rights. The standard license in computer software
documentation conveys unlimited rights. Those rights are defined in the
clause at 252.227-7014. In unusual situations, the standard rights may
not satisfy the Government's needs or the Government may be willing to
accept lesser rights in return for other consideration. In those cases,
a special license may be negotiated. However, the licensor is not
obligated to provide the Government greater rights and the contracting
officer is not required to accept lesser rights than the rights
provided in the standard grant of license. The situations under which a
particular grant of license applies are enumerated in paragraphs (a)
through (d) of this subsection.
(a) Unlimited rights. The Government obtains an unlimited rights
license in--
(1) Computer software developed exclusively with government funds;
(2) Computer software documentation required to be delivered under
this contract;
(3) Corrections or changes to computer software or computer
software documentation furnished to the contractor by the government;
(4) Computer software or computer software documentation that is
otherwise publicly available or has been released or disclosed by the
contractor or 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 software to
another party or the sale or transfer of some or all of a business
entity or its assets to another party;
(5) Computer software or computer software documentation obtained
with unlimited rights under another government contract or as a result
of negotiations; or,
(6) Computer software or computer software documentation furnished
to the government, under a government contract or subcontract with--
(i) Restricted rights in computer software, limited rights in
technical data, or government purpose license rights and the
restrictive conditions have expired; or,
(ii) Government purpose rights and the contractor's exclusive right
to use such software or documentation for commercial purposes has
expired.
(b) Government purpose rights. (1) Except as provided at 227.503-
5(a), the Government obtains government purpose rights in computer
software developed with mixed funding.
(2) The period during which government purpose rights are effective
is negotiable. The clause at 252.227-7014 provides a nominal five year
period. Either party may request a different period. Changes to the
government purpose rights period may be made at any time prior to
delivery of the software without consideration from either party.
Longer periods should be negotiated when a five year period does not
provide sufficient time to commercialize the software form for software
developed by subcontractors, when necessary to recognize the
subcontractors' interests in the software.
(3) The government purpose rights period commences upon execution
of the contract, subcontract, letter contract (or similar contractual
instrument), contract modification, or option exercise that required
development of the computer software. Upon expiration of the government
purpose rights period, the Government has unlimited rights in the
software including the right to permit or authorize others to use the
data for commercial purposes.
(4) During the government purpose rights period, the Government may
not use, or authorize other persons to use, computer software marked
with government purpose rights legends for commercial purposes. The
Government shall not release or disclose, or authorize others to
release or disclose, computer software in which it has government
purpose rights to any person unless--
(i) Prior to release or disclosure, the intended recipient is
subject to the use and non-disclosure agreement at 227.403-7; or,
(ii) The intended recipient 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.''
(5) When computer software 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 such clause in lieu of requiring the contractor to complete a
use and non-disclosure agreement.
(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 non-disclosure restrictions. Public
announcements in the Commerce Business Daily or other publications must
provide notice of the use and non-disclosure 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.
(c) Restricted rights. (1) The Government obtains restricted rights
in noncommercial computer software required to be delivered or
otherwise provided to the government under this contract that were
developed exclusively at private expense.
(2) Contractors are not required to provide the Government
additional rights in computer software delivered or otherwise provided
to the Government with restricted rights. When the Government has a
need for additional rights, the Government must negotiate with the
contractor to determine if there are acceptable terms for transferring
such rights. List or describe all software in which the contractor has
granted the Government additional rights in a license agreement made
part of the contract (see 227.503-5(d)). The license shall enumerate
the specific additional rights granted to the Government.
(d) Specifically negotiated license rights. Negotiate specific
licenses when the parties agree to modify the standard license rights
granted to the Government or when the Government wants to obtain rights
in computer software in which it does not have rights. When negotiating
to obtain, relinquish, or increase the Government's rights in computer
software, consider the planned software maintenance philosophy,
anticipated time or user sharing requirements, and other factors which
may have relevance for a particular procurement. If negotiating to
relinquish rights in computer software documentation, consider the
administrative burden associated with protecting documentation subject
to restrictions from unauthorized release or disclosure. The negotiated
license rights must stipulate the rights granted the Government to use,
modify, reproduce, release, perform, display, or disclose the software
or documentation and the extent to which the Government may authorize
others to do so. Identify all negotiated rights in a license agreement
made part of the contract.
(e) Rights in derivative computer software or computer software
documentation. The clause at 252.227-7014 protects the Government's
rights in computer software, computer software documentation, or
portions thereof that the contractor subsequently uses to prepare
derivative software or subsequently embeds or includes in other
software or documentation. The Government retains the rights it
obtained under the development contract in the unmodified portions of
the derivative software or documentation.
Sec. 227.503-6 Contract clauses.
(a)(1) Use the clause at 252.227-7014, ``Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation''
in solicitations and contracts when the successful offeror(s) will be
required to deliver computer software or computer software
documentation. Do not use the clause when the only deliverable items
are technical data (other than computer software documentation),
commercial computer software of commercial computer software
documentation, commercial items (see 227.402-3), special works (see
277.505), contracts under the Small Business Innovative Research
Program (see 227.404), or in Architect-Engineer and construction
contracts (see 227.407).
(2) Use the clause with the Alternate I in research contracts when
the contracting officer determines, in consultation with counsel, that
public dissemination by the contractor would be--
(i) In the interest of the Government; and,
(ii) Facilitated by the Government relinquishing its right to
publish the work for sale, or to have others publish the work for sale
on behalf of the Government.
(b) Use the clause at 252.227-7019, ``Validation of Asserted
Restrictions--Computer Software'' in solicitations and contracts that
include the clause at 252.227-7014. The clause provides procedures for
the validation of asserted restrictions on the Government's rights to
use, release, or disclose computer software.
(c) Use the clause at 252.227-7037, ``Validation of Asserted
Restrictions'', in solicitations and contracts that include the clause
at 252.227-7014 when the contractor will be required to deliver
noncommercial computer software documentation (technical data). The
clause implements statutory requirements under 10 U.S.C. 2321.
Paragraph (d) of the clause contains information that must be included
in a formal challenge.
(d) Use the clause at 252.227-7016, ``Rights in Bid or Proposal
Data'', in solicitations and contracts when the Government anticipates
a need to use, subsequent to contract award, computer software or
computer software documentation included in a bid or proposal that are
not required to be delivered under the contract.
(e) Use the clause at 252.227-7025, ``Limitations on the Use or
Disclosure of Government Furnished Information Marked with Restrictive
Legends'', in solicitations and contracts when it is anticipated that
the Government will provide the contractor, for performance of its
contract, computer software or computer software documentation marked
with another contractor's restrictive legend(s).
(f) Use the provision at 252.227-7028, ``Technical Data or Computer
Software Previously Delivered to the Government'', in solicitations
when the resulting contract will require the contractor to deliver
computer software or computer software documentation. The provision
requires offerors to identify any software or documentation specified
in the solicitation as deliverable items that are the same or
substantially the same as software or documentation which the offeror
has delivered or is obligated to deliver, either as a contractor or
subcontractor, under any other federal agency contract.
227.503-7 [Reserved]
227.503-8 Deferred delivery and deferred ordering of computer software
and computer software documentation.
(a) Deferred delivery. Use the clause at 252.227-7026, ``Deferred
Delivery of Technical Data and Computer Software'', when it is in the
Government's interests to defer the delivery of computer software or
computer software documentation. The clause permits the contracting
officer to require the delivery of data identified as ``deferred
delivery'' data or computer software at any time until two years after
acceptance by the Government of all items (other than technical data or
computer software) under the contract or contract termination,
whichever is later. The obligation of subcontractors or suppliers to
deliver such data expires two years after the date the prime contractor
accepts the last item from the subcontractor or supplier for use in the
performance of the contract. The contract must specify the computer
software or computer software documentation that is subject to deferred
delivery. The contracting officer shall notify the contractor
sufficiently in advance of the desired delivery date for such software
or documentation to permit timely delivery.
(b) Deferred ordering. Use the clause at 252.227-7027, ``Deferred
Ordering of Technical Data or Computer Software'', when a firm
requirement for software or documentation has not been established
prior to contract award but there is a potential need for computer
software or computer software documentation. Under this clause, the
contracting officer may order any computer software or computer
software documentation generated in the performance of the contract or
any subcontract thereunder at any time until three years after
acceptance of all items (other than technical data or computer
software) under the contract or contract termination, whichever is
later. The obligation of subcontractors to deliver such technical data
or computer software expires three years after the date the contractor
accepts the last item under the subcontract. When the software or
documentation are ordered, the delivery dates shall be negotiated and
the contractor compensated only for converting the software or
documentation into the prescribed form, reproduction costs, and
delivery costs.
227.503-9 Copyright.
(a) Copyright license. (1) The clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'', requires 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. 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 clause. When
non-standard license rights in computer software or computer software
documentation will be negotiated, negotiate the extent of the copyright
license concurrent with negotiations for the data rights license. Do
not negotiate copyright licenses for computer software that provide
less rights than the standard restricted rights in computer software
license. For computer software documentation, do not negotiate a
copyright license that provides less rights than the standard limited
rights in technical data license.
(2) The clause at 252.227-7013 does 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 227.505 for
copyright considerations when acquiring special works.
227.503-10 Contractor identification and marking of computer software
or computer software documentation to be furnished with restrictive
markings.
(a) Identification requirements. (1) The solicitation provision at
252.227-7017, ``Identification and Assertion of Use, Release, or
Disclosure Restrictions'', requires offerors to identify prior to
contract award, any computer software or computer software
documentation that an offeror asserts should be provided to the
Government with restrictions on use, modification, reproduction,
release or disclosure. This requirement does not apply to restrictions
based solely on copyright. The notification and identification must be
submitted as an attachment to the offer. If an offeror fails to submit
the Attachment or fails to complete the Attachment in accordance with
the requirements of the solicitation provision, such failure shall
constitute a minor informality. Provide offerors an opportunity to
remedy a minor informality in accordance with the procedures at FAR
14.405 or 15.607. An offeror's failure to correct an informality within
the time prescribed by the contracting officer shall render the offer
ineligible for award.
(2) The procedures for correcting minor informalities shall not be
used to obtain information regarding asserted restrictions or an
offeror's suggested asserted rights category. Questions regarding the
justification for an asserted restriction or asserted rights category
must be pursued in accordance with the procedures at 227.503-13.
(3) The restrictions asserted by a successful offeror shall be
attached to its contract unless, in accordance with the procedures at
227.503-13, the parties have agreed that an asserted restriction is not
justified. The contract Attachment shall provide the same information
regarding identification of the computer software or computer software
documentation, the asserted rights category, the basis for the
assertion, and the name of the person asserting the restrictions as
required by paragraph (d) of the solicitation provision. Subsequent to
the contract award, the clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'', permits a contractor to make additional assertions
under certain conditions. The additional assertions must be made in
accordance with the procedures and in the format prescribed by that
clause.
(4) Neither the pre- or post-award assertions made by the
contractor nor the fact that certain assertions are identified in the
Attachment to the contract, determine the respective rights of the
parties. As provided at 227.503-13, the Government has the right to
review, verify, challenge and validate restrictive markings.
(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 computer software or
computer software documentation.
(b) Contractor marking requirements. The clause at 252.227-7014,
``Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation'' requires--
(1) 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, provides
instructions for the placement of the restrictive markings, and
authorizes the use of certain restrictive markings. When it is
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.
(2) The 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, reproduce, 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.
(c) Unmarked computer software or computer software documentation.
(1) Computer software or computer software documentation delivered or
otherwise provided under a contract without restrictive markings shall
be presumed to have been delivered with unlimited rights and may be
released or disclosed without restriction. To the extent practicable,
if a contractor has requested permission (see 227.503-10(c)(2)) to
correct an inadvertent omission of markings, do not release or disclose
the software or documentation pending evaluation of the request.
(2) A contractor may request permission to have appropriate legends
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 person making the request must:
(i) Identify the software or documentation that should have been
marked; and,
(ii) 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 the ``Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation'' clause at 252.227-7014;
and,
(iii) 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) Contracting officers should grant permission to mark only if
the software or documentation were not distributed outside the
Government or were distributed outside the Government with restrictions
on further use or disclosure.
227.503-11 Contractor procedures and records.
(a) The clause at 252.227-7014, ``Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation'' requires 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.
(b) The clause at 252.227-7019, ``Validation of Asserted
Restrictions--Computer Software'', requires contractors and their
subcontractors or suppliers at any tier to maintain records sufficient
to justify the validity of markings that assert restrictions on the
use, modification, reproduction, release, performance, display, or
disclosure of computer software.
227.503-12 Government right to establish conformity of markings.
(a) Nonconforming markings. (1) Authorized markings are identified
in the clause at 252.227-7014, ``Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation.'' 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 clause at 252.227-7014 is also a nonconforming marking.
(2) The correction of nonconforming markings on computer software
is not subject to 252.227-7019, ``Validation of Asserted Restrictions--
Computer Software'' and the correction of non-conforming markings on
computer software documentation (technical data) is not subject to
252.227-7037, ``Validation of Asserted Restrictions''. To the extent
practicable, the contracting officer should return computer software or
computer software documentation bearing nonconforming markings to the
person who has placed the nonconforming markings on the software or
documentation to provide that person an opportunity to correct or
strike the nonconforming markings at that person's expense. If that
person fails to correct the nonconformity and return the corrected
software or documentation within 60 days following the person's receipt
of the software or documentation, the contracting officer may correct
or strike the nonconformity at that person's expense. When it is
impracticable to return computer software or computer software
documentation for correction, contracting officers may unilaterally
correct any nonconforming markings at Government expense. Prior to
correction, the software or documentation may be used in accordance
with the proper restrictive marking.
(b) Unjustified markings. (1) An unjustified marking is an
authorized marking that does not depict accurately restrictions
applicable to the Government's use, modification, reproduction,
release, or disclosure of the marked computer software or computer
software documentation. For example, a restricted rights legend placed
on computer software developed under a Government contract either
exclusively at Government expense or with mixed funding (situations
under which the Government obtains unlimited or government purpose
rights) is an unjustified marking.
(2) Contracting officers have the right to review and challenge the
validity of unjustified markings. However, at any time during
performance of a contract and notwithstanding the existence of a formal
challenge, the contracting officer and the person who has asserted a
restrictive marking may agree that the restrictive marking is not
justified. Upon such agreement, the contracting officer may, at his or
her election, either--
(i) Strike or correct the unjustified marking at that person's
expense; or,
(ii) Return the computer software or computer software
documentation to the person asserting the restriction for correction at
that person's expense. If the software or documentation are returned
and that person fails to correct or strike the unjustified restriction
and return the corrected software or documentation to the contracting
officer within sixty (60) days following receipt of the software or
documentation, the unjustified marking shall be corrected or stricken
at that person's expense.
227.503-13 Government right to review, verify, challenge and validate
asserted restrictions.
(a) General. An offeror's or contractor's assertion(s) of
restrictions on the Government's rights to use, modify, reproduce,
release, or disclose computer software or computer software
documentation do not, by themselves, determine the extent of the
Government's rights in such software or documentation. The Government
may require an offeror or contractor to submit sufficient information
to permit an evaluation of a particular asserted restriction and may
challenge asserted restrictions when there are reasonable grounds to
believe that an assertion is not valid.
(b) Requests for information. Contracting officers should have a
reason to suspect that an asserted restriction might not be correct
prior to requesting information. When requesting information, provide
the offeror or contractor the reason(s) for suspecting that an asserted
restriction might not be correct. A need for additional license rights
is not, by itself, a sufficient basis for requesting information
concerning an asserted restriction. Follow the procedures at 227.503-
5(d) when additional license rights are needed but there is no basis to
suspect that an asserted restriction right not be valid.
(c) Transacting matters directly with subcontractors. The clause at
252.227-7019 obtains the contractor's agreement that the Government may
transact matters under the clause directly with a subcontractor or
supplier at any tier, without creating or implying privity of contract.
Contracting officers should permit a subcontractor or supplier to
transact challenge and validation matters directly with the Government
when--
(1) A subcontractor's or supplier's business interests in its
technical data would be compromised if the data were disclosed to a
higher tier contractor; or,
(2) There is reason to believe that the contractor will not respond
in a timely manner to a challenge and an untimely response would
jeopardize a subcontractor's or supplier's right to assert
restrictions; or,
(3) Requested to do so by a subcontractor or supplier.
(d) Challenging asserted restrictions. (1) Pre-award
considerations. The challenge procedures in the clause at 252.227-7019,
``Validation of Asserted Restrictions--Computer Software'' could
significantly delay competitive procurements. Therefore, avoid
challenging asserted restrictions prior to a competitive contract award
unless resolution of the assertion is essential for successful
completion of the procurement.
(2) Computer software documentation. Computer software
documentation is technical data.
Challenges to asserted restrictions on the Government's rights to
use, modify, reproduce, release, perform, display, or disclose computer
software documentation must be made in accordance with the ``Validation
of Asserted Restrictions'' clause, 252.227-7037, and the guidance at
227.403-13. The procedures in that clause implement requirements
contained in 10 U.S.C. 2321. Resolution of questions regarding the
validity of asserted restrictions using the process described at
227.403-12(b)(2) is strongly encouraged.
(3) Computer software.
(i) Asserted restrictions should be reviewed before acceptance of
the computer software deliverable under a contract. The Government's
right to challenge an assertion expires 3 years after final payment
under the contract or three years after delivery of the software,
whichever is later. Those limitations on the Government's challenge
rights do not apply to software that is publicly available, has been
furnished to the Government without restrictions, or has been otherwise
made available without restrictions.
(ii) Contracting officers must have reasonable grounds to challenge
the current validity of an asserted restriction. Before challenging an
asserted restriction, carefully consider all available information
pertaining to the asserted restrictions.
Resolution of questions regarding the validity of asserted
restrictions using the process described at 227.503-12(b)(2) is
strongly encouraged. After consideration of the situations described in
227.503-13(c), contracting officers may request the person asserting a
restriction to furnish a written explanation of the facts and
supporting documentation for the assertion in sufficient detail to
enable the contracting officer to determine the validity of the
assertion. Additional supporting documentation may be requested when
the explanation provided by that person does not, in the contracting
officer's opinion, establish the validity of the assertion.
(iii) Assertions may be challenged whether or not supporting
documentation was requested. Challenges must be in writing and issued
to the person asserting in restriction.
(4) Extension of response time. The contracting officer, at his or
her discretion, may extend the time for response contained in a
challenge, as appropriate, if the contractor submits a timely written
request showing the need for additional time to prepare a response.
(e) Validating or denying asserted restrictions. (1) Contracting
officers must promptly issue a final decision denying or sustaining the
validity of each challenged assertion unless the parties have agreed on
the disposition of the assertion. When a final decision denying the
validity of an asserted restriction is made following a timely response
to a challenge, the Government is obligated to continue to respect the
asserted restrictions through final disposition of any appeal unless
the Agency Head notifies the person asserting the restriction that
urgent or compelling circumstances do not permit the Government to
continue to respect the asserted restriction. See 252.227-7019(g) for
restrictions applicable following a determination of urgent and
compelling circumstances.
(2) Only a contracting officer's final decision, or actions of an
agency Board of Contract Appeals or a court of competent jurisdiction,
that sustain the validity of an asserted restriction constitute
validation of the restriction.
(f) Multiple challenges to an asserted restriction. When more than
one contracting officer challenges an asserted restriction, the
contracting officer who made the earliest challenge is responsible for
coordinating the Government challenges. That contracting officer shall
consult with all other contracting officers making challenges, verify
that all challenges apply to the same asserted restriction and, after
consulting with the contractor, subcontractor, or supplier asserting
the restriction, issue a schedule that provides that person a
reasonable opportunity to respond to each challenge.
Sec. 227.503-14 Conformity, acceptance, and warranty of computer
software and computer software documentation.
(a) Computer software documentation. Computer software
documentation is technical data. See 227.403-14 for appropriate
guidance and statutory requirements.
(b) Computer software. (1) Conformity and acceptance. Solicitations
and contracts requiring the delivery of computer software shall specify
the requirements the software must satisfy to be acceptable.
Contracting officers, or their authorized representatives, are
responsible for determining whether computer software tendered for
acceptance conforms to the contractual requirements. Except for
nonconforming restrictive markings (follow the procedures at 227.503-
12(a) if nonconforming markings are the sole reason computer software
tendered for acceptance fails to conform to contractual requirements),
do not accept software that does not conform in all respects to
applicable contractual requirements. Correction or replacement of
nonconforming software, or an equitable reduction in contract price
when correction or replacement of the nonconforming data is not
practicable or is not in the Government's interests, shall be
accomplished in accordance with--
(i) The provisions of a contract clause providing for inspection
and acceptance of deliverables and remedies for nonconforming
deliverables; or,
(ii) The procedures at FAR 46.407(c) through (g), if the contract
does not contain an inspection clause providing remedies for
nonconforming deliverables.
(2) Warranties.
(i) Weapon systems. Computer software that is a component of a
weapon system or major subsystem should be warranted as part of the
weapon system warranty. Follow the procedures at 246.770.
(ii) Non-weapon systems. Approval of the chief of the contracting
office must be obtained to use a computer software warranty other than
a weapon system warranty. Consider the factors at FAR 46.703 in
deciding whether to obtain a computer software warranty. When approval
for a warranty has been obtained, the clause at 252.246-7001,
``Warranty of Data'', and its alternates, may be appropriately modified
for use with computer software or a procurement specific clause may be
developed.
Sec. 227.503.15 Subcontractor rights in computer software or computer
software documentation.
(a) Subcontractors and suppliers at all tiers should be provided
the same protection for their rights in computer software or computer
software documentation as is provided to prime contractors.
(b) The clauses at 252.227-7019, ``Validation of Asserted
Restrictions--Computer Software'' and 252.227-7037, ``Validation of
Asserted Restrictions'', obtain a contractor's agreement that the
Government's transaction of validation or challenge matters directly
with subcontractors at any tier does not establish or imply privity of
contract. When a subcontractor or supplier exercises its right to
transact validation matters directly with the Government, contracting
officers shall deal directly with such persons, as provided at 227.503-
13(c) for computer software and 227.403-13(c)(3) for computer software
documentation (technical data).
(c) Require prime contractors whose contracts include the following
clauses to include those clauses, without modification except for
appropriate identification of the parties, in contracts with
subcontractors or suppliers who will be furnishing computer software in
response to a Government requirement (See 227.403-15(c) for clauses
required when subcontractors or suppliers will be furnishing computer
software documentation (technical data))--
(1) 252.227-7014, ``Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation'';
(2) 252,227-7019, ``Validation of Asserted Restrictions--Computer
Software'';
(3) 252.227.7025, ``Limitations on the Use or Disclosure of
Government Furnished Information Marked with Restrictive Legends'';
and,
(4) 252.227.7028, ``Technical Data or Computer Software Previously
Delivered to the Government''.
(d) Do not require contractors to have their subcontractors or
suppliers at any tier relinquish rights in technical data to the
contractor, a higher tier subcontractor, or to the Government, as a
condition for award of any contract, subcontract, purchase order, or
similar instrument except for the rights obtained by the Government
under the provisions of the ``Rights in Computer Software and Computer
Software Documentation'' clause contained in the contractor's contract
with the Government.
227.503-16 Providing computer software or computer software
documentation to foreign governments, foreign contractors, or
international organizations.
Computer software or computer software documentation may be
released or disclosed to foreign governments, foreign contractors, or
international organizations only if release or disclosure is otherwise
permitted both by Federal export controls and other national security
laws or regulations. Subject to such laws and regulations, the
Department of Defense--
(a) May release or disclose computer software or computer software
documentation in which it has obtained unlimited rights to such persons
or authorize the use of such data by those persons.
(b) Shall not release or disclose computer software or computer
software documentation for which restrictions on use, release, or
disclosure have been asserted to such persons, or authorize the use of
such data by those persons, unless the intended recipient is subject to
the same provisions as included in the use and non-disclosure agreement
at 227.403-7 and the requirements of the clause at 252.227-7014
governing use, release, or disclosure of such data have been satisfied.
227.503-17 Overseas contracts with foreign sources.
(a) The clause at 252.227-7032, ``Rights in Technical Data and
Computer Software (Foreign)'' may be used in contracts with foreign
contractors to be performed overseas, except Canadian purchases (see
252.503-17(c)) in lieu of the clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'' when the Government requires the unrestricted right to
use, modify, reproduce, release, or disclose any computer software or
computer software documentation to be delivered under the contract. Do
not use the clause in contracts for Special Works.
(b) The clause at 252.227-7032 may be modified to accommodate the
needs of a specific overseas procurement situation, provided the
Government obtains rights to the computer software or computer software
documentation that are not less than the rights the Government would
have obtained under the data rights clause prescribed in this Part for
a comparable procurement performed within the United States or its
possessions.
(c) Contracts for Canadian purchases shall include the appropriate
data rights clause prescribed in this Part for a comparable procurement
performed within the United States or its possessions.
227.504 Contracts under the Small Business Innovative Research
Program.
When contracting under the Small Business Innovative Research
Program, follow the procedures at 227.404.
227.505 Contracts for special works.
(a) Use the clause at 252.227-7020, ``Rights in Data--Special
Works'' in solicitations and contracts where the Government has a
specific need to control the distribution of computer software or
computer software documentation first produced, created, or generated
in the performance of a contract and required to be delivered under
that contract, including controlling distribution by obtaining an
assignment of copyright, or a specific need to obtain indemnity for
liabilities that may arise out of the content, performance, use, or
disclosure of such software or documentation. Use the clause--
(1) In lieu of the clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'', when the Government must own or control copyright in
all computer software or computer software documentation first
produced, created, or generated and required to be delivered under a
contract.
(2) In addition to the clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'', when the Government must own or control copyright in
some of the computer software or computer software documentation first
produced, created, or generated and required to be delivered under a
contract. The specific software or documentation in which the
Government must own or control copyright must be identified in a
special contract requirement.
(b) Although the Government obtains an assignment of copyright and
unlimited rights in the computer software or computer software
documentation delivered as a special work under the clause at 252.227-
7020, the contractor retains use and disclosure rights in that software
or documentation. If the Government needs to restrict a contractor's
rights to use or disclose the information contained in a special work,
it must also negotiate a special license which specifically restricts
the contractor's use or disclosure rights.
(c) The clause at 252.227-7020 does not permit a contractor to
incorporate into a special work any work copyrighted by others unless
the contractor obtains the contracting officer's permission to do so
and obtains for the Government a non-exclusive, paid up, world-wide
license to make and distribute copies of that work, to prepare
derivative works, to perform or display any portion of that work, and
to permit others to do so for government purposes. Grant permission
only when the Government's requirements cannot be satisfied unless the
third party work is included in the deliverable work.
(d) Examples of other works which may be procured under this clause
include, but are not limited to, audiovisual works, scripts,
soundtracks, musical compositions, and adaptations; histories of
departments, agencies, services or units thereof; surveys of Government
establishments; instructional works or guidance to Government officers
and employees on the discharge of their official duties; reports,
books, studies, surveys or similar documents; collections of data
containing information pertaining to individuals that, if disclosed,
would violate the right of privacy or publicity of the individuals to
whom the information relates; or, investigative reports.
227.506 Contracts for architect-engineer services.
Follow 227.407 when contracting for architect-engineer services.
227.507 Contractor data repositories.
Follow 227.408 when it is in the Government's interests to have a
data repository include computer software or to have a separate
computer software repository. Contractual instruments establishing the
repository requirements must appropriately reflect the repository
manager's software responsibilities.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
9. Sections 252.211-7000 through 252.211-7014 and sections 252.211-
7018 through 252.211-7021 are amended by revising the word ``item'' to
read ``product'' wherever it appears.
10. Section 252.211-7006(a) is revised to read as follows:
252.211-7006 Title and risk of loss--commercial items.
* * * * *
(a) Except for technical data or commercial computer software,
title to products furnished under this contract shall pass to the
Government upon final acceptance, regardless of when or where the
Government takes physical possession, unless this contract
specifically provides for earlier passage of title. Title to
technical data or commercial computer software shall remain with the
contractor unless otherwise specified in this contract.
* * * * *
11. Section 252.211-7012 is amended by revising paragraph (b); by
revising paragraph (c)(1); by redesignating paragraph (c)(2) as
paragraph (c)(4); and by adding new paragraphs (c)(2) and (c)(3) to
read as follows:
252.211-7012 Certifications--commercial items--competitive
acquisitions.
* * * * *
(b) Definitions:
As used in this provision:
(1) The term commercial products includes commercial computer
software, commercial computer software documentation, and other
commercial items.
(2) Commercial items means items, other than computer software,
developed or regularly used for other than Government purposes
that--
(i) Have been sold, leased, or licensed to the public; or,
(ii) Have been offered for sale, lease, or license to the
public; or,
(iii) Have 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 the resulting
contract; or,
(iv) Satisfy a criterion expressed in (b)(2) (i), or (ii) or
(iii) and would require only minor modification to meet the
requirements of the procuring agency.
(3) Commercial computer software means software developed or
regularly used for non-governmental purposes which--
(i) Has been sold, leased, or licensed to the public; or,
(ii) Has been offered for sale, lease, or license to the public;
or,
(iii) 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 the resulting
contract; or,
(iv) Satisfy a criterion expressed in (b)(2) (i), or (ii) or
(iii) and would require only minor modification to meet the
requirements of the procuring agency.
(4) 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
recomplied. Computer software does not include computer databases or
computer software documentation.
(5) Commercial 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 commercial computer software or
provide instructions for using the commercial computer software.
(6) 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.
(7) Computer program means a set of instructions, rules, or
other routines, recorded in a form that is capable of causing a
computer to perform a specific operation or series of operations.
(8) Minor modification means:
(i) For commercial items, a modification that does not
significantly alter the nongovernmental function or essential
physical characteristics of an item or component, or change the
purpose of a process, or is of the type customarily performed in the
commercial market place.
(ii) For commercial computer software, 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 marker place.
(9) Existing or prior source means entities that are furnishing
or previously furnished items or software to the Government, in
accordance with Government unique product descriptions, drawings, or
specifications, that have not been sold to the public and are being
replaced by commercial items or commercial computer software.
(c) The offeror (insert name of offeror) hereby certifies that:
(1) The product(s) offered are commercial items or commercial
computer software documentation that satisfy the criteria at
paragraph--
______ (b)(2)(i);
______ (b)(2)(ii);
______ (b)(2)(iii); or
______ (b)(2)(iv) of this provision.
The product(s) offered are commercial computer software that
satisfy the criteria at paragraph(s)--
______ (b)(3)(i);
______ (b)(3)(ii);
______ (b)(3)(iii); or
______ (b)(3)(iv) of this provision.
(3) The product(s) offered in response to this solicitation is
(are)--
______ Identical to the product(s) previously furnished to the
Government; or,
______ A minor modification of a product(s) previously furnished
to the Government.
* * * * *
252.211-7015 [Removed and Reserved]
12. Section 252.211-7015 is removed and reserved.
252.211-7016 [Removed and Reserved]
13. Section 252.211-7016 is removed and reserved.
252.211-7017 [Removed and Reserved]
14. Section 252.211-7017 is removed and reserved.
252.222-7021 [Amended]
15. Section 252.211-7021(b)(1) is amended by adding an additional
clause at the end of the clause list reading ``252.227-7015 Technical
Data--Commercial Items.''
16. Section 252.227-7013 is revised to read as follows:
252.227-7013 Rights in technical data--Noncommercial items.
As prescribed in 227.403-6(a), use the following clause:
RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS (XXX 1994)
(a) Definitions. As used in this clause:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) Development 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.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) 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.
(8) Developed exclusively with government funds means
development was not accomplished exclusively or partially at private
expense.
(9) 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.
(10) Form, fit, and function data means technical data that
describes 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.
(11) 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.
(12) Government purpose rights means the rights to--
(i) Use, modify, reproduce, release, perform, display, or
disclose technical data within the government without restriction;
and,
(ii) Release or disclose technical data outside the government
and authorize persons to whom release or disclosure has been to use,
modify, reproduced, release, perform, display, or disclose that data
for United States government purposes.
(13) 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 by persons outside the government if
reproduction, release, disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or,
(ii) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or use of such data by,
a foreign government that is in the interest of the Government and
is required for evaluation or informational purposes; and,
(iii) Subject to a prohibition on the further reproduction,
release, disclosure, or use of the technical data; and,
(iv) The contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, or use.
(14) Technical data means recorded information, regardless of
the form or method of the recording, of a scientific or technical
nature (including computer software documentation). The term does
not include computer software or data incidental to contract
administration, such as financial and/or management information.
(15) 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) Rights in technical data. The contractor grants or shall
obtain for the government the following royalty free, worldwide,
nonexclusive, irrevocable license rights in technical data other
than computer software documentation (see 252.227-7014 for rights in
computer software documentation):
(1) Unlimited rights. The Government shall have unlimited rights
in technical data that are--
(i) Data pertaining to an item, component, or process which has
been or will be developed exclusively with government funds;
(ii) Studies, analyses, test data, or similar data produced for
this contract, when the study, analysis, test, or similar work was
specified as an element of performance.
(iii) Created exclusively with government funds in the
performance of a contract that does not require the development,
manufacture, construction, or production of items, components, or
processes.
(iv) Form, fit, and function data;
(v) Necessary for installation, operation, maintenance, or
training purposes (other than detailed manufacturing or process
data);
(vi) Corrections or changes to technical data furnished to the
contractor by the Government;
(vii) Otherwise publicly available or have been released or
disclosed by the contractor or 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 to another party or the sale or
transfer of some or all of a business entity or its assets to
another party;
(viii) Data in which the Government has obtained unlimited
rights under another government contract or as a result of
negotiations; or
(ix) Data furnished to the government, under this or any other
government contract or subcontract thereunder, with:
(A) Government purpose license rights or limited rights and the
restrictive condition(s) has/have expired; or,
(B) Government purpose rights and the contractor's exclusive
right to use such data for commercial purposes has expired.
(2) Government purpose rights. (i) The Government shall have
government purpose rights for a five 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 (b)(ii) and (b)(iv)
through (b)(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 five 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 (b)(2)(i)(B). Upon expiration of the five 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 non-disclosure agreement at 227.403-7; or,
(B) The recipient is a government contractor receiving access to
the data for performance of a government contract that contains the
clause at 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 (f)(2) of
this clause.
(3) Limited Rights. (i) Except as provided in subparagraphs
(b)(1)(ii) and (b)(1)(iv) through (b)(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 (f) 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.
(ii) The Government shall require a recipient of limited rights
data for emergency repair or overhaul to destroy the data and all
copies in its possession promptly following completion of the
emergency repair/overhaul and to notify the Contractor that the data
have been destroyed.
(iii) The contractor, its subcontractors, and suppliers are not
required to provide the Government additional rights to use, modify,
reproduce, release, or disclose technical data furnished to the
Government with limited rights. However, if the Government desires
to obtain additional rights in technical data in which it has
limited rights, the contractor agrees to promptly enter into
negotiations with the contracting officer to determine whether there
are acceptable terms for transferring such rights. All technical
data in which the contractor has granted the Government additional
rights shall be listed or described in a license agreement made part
of the contract. The license shall enumerate the additional rights
granted the Government in such data.
(4) Specifically negotiated license rights. The standard license
rights granted to the Government under subparagraphs (b)(1) through
(b)(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 paragraph (a)(13) 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 pre-
existing 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 paragraphs (a)(13) or (b)(2)(iii) of
this clause, in accordance with the terms of a license negotiated
under (b)(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.
(c) Contractor rights in technical data. All rights not granted
to the government are retained by the contractor.
(d) Third party copyrighted data. The contractor shall not,
without the written approval of the contracting officer, incorporate
any copyrighted data in the technical data to be delivered under
this contract unless the contractor is the copyright owner or has
obtained for the Government the license rights necessary to perfect
a license or licenses in the deliverable data of the appropriate
scope set forth in paragraph (b) of this clause, and has affixed a
statement of the license or licenses obtained on behalf of the
Government and other persons to the data transmittal document.
(e) Identification and delivery of data to be furnished with
restrictions on use, release, or disclosure. (1) This paragraph does
not apply to restrictions based solely on copyright.
(2) Except as provided in subparagraph (e)(3) of this clause,
technical data that the contractor asserts should be furnished to
the Government with restrictions on use, release, or disclosure are
identified in an Attachment to this contract (``the Attachment'').
The contractor shall not deliver any data with restrictive markings
unless the data are listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new
information or inadvertent omissions unless the inadvertent
omissions would have materially affected the source selection
decision. Such identification and assertion shall be submitted to
the contracting officer as soon as practicable prior to the
scheduled date for delivery of the data, in the following format,
and signed by an official authorized to contractually obligate the
contractor:
``Identification and Assertion of Restrictions on the Government's
Use, Release, or Disclosure of Technical Data. The contractor
asserts for itself, or the persons identified below, that the
Government's rights to use, release, or disclose the following
technical data should be restricted--
Technical Data to Name of Person
be furnished With Basis for Asserted Rights Asserting
Restrictions* Assertion** Category*** Restrictions****
(LIST) (LIST) (LIST) (LIST)
*If the assertion is applicable to items, components, or
processes developed at private expense, identify both the data and
each such item, component, or process.
**Generally, the development of an item, component, or process
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 pertaining to such items,
components, or processes. 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.
***Enter asserted rights category (e.g., government purpose
license rights from a prior contract, rights in SBIR data generated
under another contract, limited or government purpose rights under
this or a prior contract, or specifically negotiated licenses).
* * * * Corporation, individual, or other person, as
appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature ________________''
(End of Identification and Assertion)
(4) When requested by the contracting officer, the contractor
shall provide sufficient information to enable the contracting
officer to evaluate the contractor's assertions. The contracting
officer reserves the right to add the contractor's assertions to the
Attachment and validate any listed assertion, at a later date, in
accordance with the procedures of the ``Validation of Restrictive
Markings on Technical Data'' clause of this contract.
(f) Marking requirements. The contractor, and its subcontractors
or suppliers, may only assert restrictions on the Government's
rights to use, modify, reproduce, release, or disclose technical
data to be delivered under this contract by marking the deliverable
data subject to restriction. Except as provided in paragraph (f)(5)
of this clause, only the following legends are authorized under this
contract: The Government purpose rights legend at subparagraph
(f)(2); the limited rights legend at subparagraph (f)(3) of this
clause; or, the special license rights legend at subparagraph
(f)(4); and/or 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 restrictions, such portions
shall be identified by circling, underscoring, with a note, or other
appropriate identifier. Reproductions of technical data or any
portions thereof subject to asserted restrictions shall also
reproduce the asserted restrictions.
(2) Goverrnment purpose rights markings. Data delivered or
otherwise furnished to the Government with Government purposes
rights shall be marked as follows:
``GOVERNMENT PURPOSE RIGHTS
Contract No.-----------------------------------------------------------
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 (b)(2) of the clause at 252.227-7013 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)
(3) Limited rights markings. Data delivered or otherwise
furnished to the Government with limited rights shall be marked with
the following legend:
``LIMITED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (b)(3) of the clause at 252.7013 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)
(4) Special license rights markings. (i) Data in which the
Government's rights stem from a specifically negotiated license
shall be marked with the following legend:
``Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these data are restricted by contract
no. ______ (Insert contract number) ______, license no. ______
(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 subparagraph (b)(5) of this clause).
(5) Pre-existing 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 marking procedures in
subparagraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the contractor and its subcontractors or suppliers
that will deliver technical data with other than unlimited rights,
shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by
the terms of this clause; and,
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data delivered under this
contract.
(h) Removal of unjustified and nonconforming markings. (1)
Unjustified technical data markings. The rights and obligations of
the parties regarding the validation of restrictive markings on
technical data furnished or to be furnished under this contract are
contained in the clause at 252.227-7037, ``Validation of Restrictive
Markings on Technical Data''. Notwithstanding any provision of this
contract concerning inspection and acceptance, the Government may
ignore or, at the Contractor's expense, correction or cancel a
marking if, in accordance with the procedures at 252.227-7037, a
restrictive marking is determined to be unjustified.
(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 252.227-7037. If the contracting officer
notifies the contractor of a nonconforming marking and the
contractor fails to remove or correct the such marking within sixty
(60) days, the Government may ignore or, at the Contractor's
expense, remove or correct any nonconforming marking.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(j) Limitation on charges for rights in technical data. (1) The
contractor shall not charge to this contract any cost, including,
but not limited to, license fees, royalties, or similar changes, for
rights in technical data to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or
greater rights in the data; or,
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1)--
(i) Includes costs charged by a subcontractor or supplier, at
any tier, or costs incurred by the contractor to acquire rights in
subcontractor or supplier technical data, if the subcontractor or
supplier has been paid for such rights under any other Government
contract or under a license conveying the rights to the Government;
(ii) Does not include the reasonable costs of reproducing,
handling, or mailing the documents or other media in which the
technical data will be delivered.
(k) Applicability to subcontractors or suppliers. (1) The
contractor shall ensure that the rights afforded its subcontractors
and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the
identification, assertion, and delivery processes of paragraph (e)
of this clause are recognized and protected.
(2) Whenever any technical data is to be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the contractor shall use this same clause in the
subcontract or other contractual instrument, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties. 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.
(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 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.
(4) The contractor and higher-tier subcontractors or suppliers
will not use their power to award contracts as economic leverage to
obtain rights in technical data 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 as an excuse for failing to satisfy its contractual obligation
to the Government.
(END OF CLAUSE)
ALTERNATE I (XXX 1994)
(l) Publication for sale.
(1) This paragraph only applies to technical data in which the
Government has obtained unlimited rights or a license to make an
unrestricted release of technical data.
(2) The Government shall not publish a deliverable technical
data item or items identified in this contract as being subject to
paragraph (l) of this clause or authorize others to publish such
data on its behalf if, prior to publication for sale by the
Government and within twenty-four (24) months following the date
specified in this contract for delivery of such data or the removal
of any national security or export control restrictions, whichever
is later, the Contractor publishes that item or items for sale and
promptly notifies the contracting officer of such publication(s).
Any such publication shall include a notice identifying the number
of this contract and the Government's rights in the published data.
(3) This limitation on the Government's right to publish for
sale shall continue as long as the data are reasonably available to
the public for purchase.
(END OF ALTERNATE I)
17. Section 252.227-7014 is added to read as follows:
252.227-7014 Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
As prescribed in 227.503-6(a)(1), use the following clause:
RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER
SOFTWARE DOCUMENTATION (XXX 1994)
(a) Definitions. As used in this clause:
(1) Commercial computer software means software developed or
regularly used for non-governmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) 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,
(iv) Satisfies a criterion expressed in (a)(1) (i), (ii), or
(iii) and would require only minor modification to meet the
requirements of this contract.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) Developed means that--
(i) 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;
(ii) 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,
(iii) 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.
(7) 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.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) 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.
(8) Developed exclusively with government funds means
development was not accomplished exclusively or partially at private
expense.
(9) 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.
(10) 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.
(11) Government purpose rights means the rights to--
(i) Use, modify, reproduce, release, perform, display, or
disclose computer software or computer software documentation within
the government without restriction; and,
(ii) 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.
(12) 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.
(13) Noncommercial computer software means software that does
not qualify as commercial computer software under (a)(1) of this
clause.
(14) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) 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;
(ii) 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.
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in subparagraphs
(a)(14)(i) and (iii) of this clause;
(B) Not release or disclose the modified software except as
provided in subparagraphs (a)(14)(ii), (v) and (vi) of this clause.
(v) Permit contractors or subcontractors performing service
contracts (see FAR 37.101) in support of this or a related contract
to use computer software to diagnose and correct deficiencies in a
computer program, to modify computer software to enable a computer
program to be combined with, adapted to, or merged with other
computer programs or when necessary to respond to urgent tactical
situations, provided that--
(A) the government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(B) Such contractors or subcontractors are subject to the use
and non-disclosure agreement at 227.403-7 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'';
(C) 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 subparagraph (a)(14)(iv) of this clause, for any other
purpose; and,
(D) Such use is subject to the limitation in subparagraph
(a)(14)(i) of this clause.
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient is subject to the use and non-
disclosure agreement at 227.403-7 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''; and
(B) 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 subparagraph (a)(14)(iv) of this clause, for any other
purpose.
(15) 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) Rights in computer software or computer software
documentation. The contractor grants or shall obtain for the
government the following royalty free, worldwide, nonexclusive,
irrevocable license rights in noncommercial computer software or
computer software documentation. All rights not granted to the
government are retained by the contractor.
(1) Unlimited rights. The government shall have unlimited rights
in:
(i) Computer software developed exclusively with government
funds;
(ii) Computer software documentation required to be delivered
under this contract;
(iii) Corrections or changes to computer software or computer
software documentation furnished to the contractor by the
government;
(iv) Computer software or computer software documentation that
is otherwise publicly available or has been released or disclosed by
the contractor or subcontractor without restriction on further use,
release or disclosure, other than a release or disclosure resulting
from the sale, transfer, or other assignment of interest in the
software to another party or the sale or transfer of some or all of
a business entity or its assets to another party;
(v) Computer software or computer software documentation
obtained with unlimited rights under another government contract or
as a result of negotiations; or,
(vi) Computer software or computer software documentation
furnished to the government, under this or any other government
contract or subcontract thereunder with--
(A) Restricted rights in computer software, limited rights in
technical data, or government purpose license rights and the
restrictive conditions have expired; or,
(B) Government purpose rights and the contractor's exclusive
right to use such software or documentation for commercial purposes
has expired.
(2) Government purpose rights.
(i) Except as provided in paragraph (b)(1) of this clause, the
government shall have government purpose rights in computer software
developed with mixed funding.
(ii) Government purpose rights shall remain in effect for a
period of five years unless a different period has been negotiated.
Upon expiration of the five 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 non-disclosure agreement at 227.403-7; 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 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 noncommercial 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
noncommercial 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 noncommercial 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 (b)(4) of this clause). The license shall
enumerate the additional rights granted the government.
(4) Specifically negotiated license rights. (i) The standard
license rights granted to the government under subparagraphs (b)(1)
through (b)(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
paragraph (a)(14) of this clause or lesser rights in computer
software documentation than are enumerated in paragraph (a)(13) of
the clause at 252.227-7013, Rights in Technical Data--Noncommercial
Items.
(ii) Any rights so negotiated shall be identified in a license
agreement made part 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 pre-existing 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 computer
software made in accordance with subparagraphs (a)(14), or
(b)(2)(iii) of this clause, in accordance with the terms of a
license negotiated under (b)(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.
(c) Rights in derivative computer software or computer software
documentation. The Government shall retain its rights in the
unchanged portions of any computer software or computer software
documentation delivered under this contract that the contractor uses
to prepare, or includes in, derivative computer software or computer
software documentation.
(d) Third party copyrighted computer software or computer
software documentation. The contractor shall not, without the
written approval of the contracting officer, incorporate any
copyrighted computer software or computer software documentation in
the software or documentation to be delivered under this contract
unless the contractor is the copyright owner or has obtained for the
Government the license rights necessary to perfect a license or
licenses in the deliverable software or documentation of the
appropriate scope set forth in paragraph (b) of this clause, and
prior to delivery of such--
(1) Computer software, has provided a statement of the license
rights obtained in a form acceptable to the contracting officer; or,
(2) Computer software documentation, has affixed to the
transmittal document a statement of the license rights obtained.
(e) Identification and delivery of computer software and
computer software documentation to be furnished with restrictions on
use, release, or disclosure.
(1) This paragraph does not apply to restrictions based solely
on copyright.
(2) Except as provided in subparagraph (e)(3) of this clause,
computer software that the contractor asserts should be furnished to
the government with restrictions on use, release, or disclosure is
identified in an Attachment to this contract (``the Attachment'').
The contractor shall not deliver any software with restrictive
markings unless the software is listed on the Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new
information or inadvertent omissions unless the inadvertent
omissions would have materially affected the source selection
decision. Such identification and assertion shall be submitted to
the contracting officer as soon as practicable prior to the
scheduled date for delivery of the software, in the following
format, and signed by an official authorized to contractually
obligate the contractor:
``Identification and Assertion of Restrictions on the Government's
Use, Release, or Disclosure of Computer Software. The contractor
asserts for itself, or the persons identified below, that the
Government's rights to use, release, or disclose the following
computer software should be restricted--
Computer Software
to be Furnished Basis for Asserted Rights Names of Person
With Assertion** Category*** Asserting
Restrictions* Restrictions****
(LIST) (LIST) (LIST) (LIST)
*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.
**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.
***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 software
generated under another contract, or specifically negotiated
licenses).
****Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature ________________''
(End of Identification and Assertion)
(4) When requested by the contracting officer, the contractor
shall provide sufficient information to enable the contracting
officer to evaluate the contractor's assertions. The contracting
officer reserves the right to add the contractor's assertions to the
Attachment and validate any listed assertion, at a later date, in
accordance with the procedures of the ``Validation of Asserted
Restrictions--Computer Software'' clause of this contract.
(f) Marking requirements. The contractor, and its subcontractors
or suppliers, may only assert restrictions on the government's
rights to use, modify, reproduce, release, or disclose computer
software by marking the deliverable software or documentation
subject to restriction. Except as provided in paragraph (f)(5) of
this clause, only the following legends are authorized under this
contract: the government purpose rights legend at subparagraph
(f)(2); the restricted rights legend at subparagraph (f)(3) of this
clause; or, the special license rights legend at subparagraph
(f)(4); and/or 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 storage
container or the software and each page, or portions thereof, of
printed materials containing computer software for which
restrictions are asserted. 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 shall not be inserted in the
software, or otherwise cause such interference or delay, 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) 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 No.-----------------------------------------------------------
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 (b)(2) of the clause at 252.227-7014 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)
(3) Restricted rights markings. Software delivered or otherwise
furnished to the Government with restricted rights shall be marked
with the following legend:
``RESTRICTED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (b)(3) of the clause at 252.277-7014 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)
(4) Special license rights markings. (i) Computer software or
computer software documentation in which the government's rights
stem from a specifically negotiated license shall be marked with the
following legend:
``Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
contract no. ______ (Insert contract number) ______, license no.
______ (Insert license identifier) ______. Any reproduction of
computer software, computer software documentation, 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 subparagraph (b)(5) of this clause).
(5) Pre-existing 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 marking
procedures in subparagraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the contractor and its subcontractors or suppliers
that will deliver computer software or computer software
documentation with other than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by
the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on computer software or computer software
documentation delivered under this contract.
(h) 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 of computer
software documentation furnished or to be furnished under this
contract are contained in the clauses at 252.227-7019, ``Validation
of Asserted Restrictions--Computer Software'' or 252.227-7037,
``Validation of Restrictive Markings on Technical Data'',
respectively. Notwithstanding any provision of this contract
concerning inspection and acceptance, the Government may ignore or,
at the Contractor's expense, correct or cancel 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 252.227-7019 or 252.227-
7037. If the contracting officer notifies the contractor of a
nonconforming marking or markings and the contractor fails to remove
or correct such markings within sixty (60) days, the Government may
ignore or, at the Contractor's expense, remove or correct any
nonconforming markings.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(j) Limitation on charges for rights in computer software or
computer software documentation. (1) The contractor shall not charge
to this contract any cost, including but not limited to license
fees, royalties, or similar charges, for rights in computer software
or computer software documentation to be delivered under this
contract when--
(i) The Government has acquired, by any means, the same or
greater rights in the software or documentation; or,
(ii) The software or documentation are available to the public
without restrictions.
(2) The limitation in paragraph (j)(1)--
(i) Includes costs charged by a subcontractor or supplier, at
any tier, or costs incurred by the contractor to acquire rights in
subcontractor or supplier computer software or computer software
documentation, if the subcontractor or supplier has been paid for
such rights under any other Government contract or under a license
conveying the rights to the Government;
(ii) Does not include the reasonable costs of reproducing,
handling, or mailing the documents or other media in which the
software or documentation will be delivered.
(k) Applicability to subcontractors or suppliers. (1) Whenever
any 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 same
clause in its subcontracts or other contractual instruments, and
require its subcontractors or suppliers to do so, without
alteration, except to identify the parties. 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 (e) 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.
(End of clause)
ALTERNATE I (XXX 1994)
As prescribed in 227.503-6(a)(2), add the following paragraph to
the basic clause:
(1) Publication for sale.
(1) This paragraph only applies to computer software or computer
software documentation in which the government has obtained
unlimited rights or a license to make an unrestricted release of the
software or documentation.
(2) The government shall not publish a deliverable item or items
of computer software or computer software documentation identified
in this contract as being subject to paragraph (l) of this clause or
authorize others to publish such software or documentation on its
behalf if, prior to publication for sale by the government and
within twenty-four (24) months following the date specified in this
contract for delivery of such software or documentation, or the
removal of any national security or export control restrictions,
whichever is later, the Contractor publishes that item or items for
sale and promptly notifies the contracting officer of such
publication(s). Any such publication shall include a notice
identifying the number of this contract and the government's rights
in the published software or documentation.
(3) This limitation on the government's right to publish for
sale shall continue as long as the software or documentation are
reasonably available to the public for purchase.
(END OF ALTERNATE I)
18. Section 252.227-7015 is added to read as follows:
252.227-7015 Technical data--commercial items.
As prescribed in 227.402-3, use the following clause:
TECHNICAL DATA--COMMERCIAL ITEMS (XXX 1994)
(a) Definitions. As used in this clause:
(1) Commercial items means items, other than computer software,
developed or regularly used for other than governmental purposes
that--
(i) Have been sold, leased, or licensed to the public; or,
(ii) Have been offered for sale, lease, or license to the
public; or,
(iii) Have not been offered, sold, leased, or licensed to the
public but will be available for commercial sale or license in time
to satisfy the delivery requirements of this contract; or,
(iv) Satisfy a criterion expressed in (b) (1), (2), or (3) and
would require only minor modification to meet the requirements of
the procuring agency.
(2) Contrator includes the contractor's subcontractors and
suppliers at any tier.
(3) Form, fit, and function data means technical data that
describes 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.
(4) Minor modification means a modification that does not
significantly alter the nongovernmental function or essential
physical characteristics of an item or component, or change the
purpose of a process, or is of the type customarily performed in the
commercial market place.
(5) Technical data means recorded information, regardless of the
form or method of recording, of a scientific or technical nature
(including computer software documentation). The term does not
include computer software or data incidental to contract
administration, such as financial and/or management information.
(b) License. (1) The Government shall have the unrestricted
right to use, modify, reproduce, release, or disclose technical
data, and to permit others to do so, that--
(i) Have been provided to the Government or others without
restrictions on use, modification, reproduction, release, or further
disclosure other than a release or disclosure resulting from the
sale, transfer, or other assignment of interest in the software to
another party or the sale or transfer of some or all of a business
entity or its assets to another party;
(ii) Are form, fit, and function data;
(iii) Are a correction or change to technical data furnished to
the contractor by the Government; or,
(iv) Have been provided to the Government under a prior contract
or licensing agreement through which the Government has acquired the
rights to use, modify, reproduce, release, or disclose the data
without restrictions.
(2) Except as provided in paragraph (b)(1) of this clause, the
Government may use, modify, reproduce, release, or disclose
technical data within the Government only. The Government shall
not--
(i) Use the technical data to manufacture additional quantities
of the commercial items; or,
(ii) Release, disclose, or authorize use of the technical data
outside the Government without the contractor's express permission
unless a release, disclosure or permitted use is necessary for
emergency repair or overhaul of the commercial items furnished under
this contract.
(c) Additional license rights. The contractor, its
subcontractors, and suppliers are not required to provide the
Government additional rights to use, modify, reproduce, release, or
disclose technical data. However, if the Government desires to
obtain additional rights in technical data, the contractor agrees to
promptly enter into negotiations with the contracting officer to
determine whether there are acceptable terms for transferring such
rights. All technical data in which the contractor has granted the
Government additional rights shall be listed or described in a
special license agreement made part of the contract. The license
shall enumerate the additional rights granted the Government in such
data.
(d) Release from liability. The contractor agrees that the
Government, and other persons to whom the Government may have
released or disclosed technical data delivered or otherwise
furnished under this contract, shall have no liability for any
release or disclosure of technical data that are not marked to
indicate that such data are licensed data subject to use,
modification, reproduction, release, performance, display, or
disclosure restrictions.
(End of Clause)
19. Section 252.227-7016 is added to read as follows:
252.227-7016 Rights in bid or proposal data
As prescribed in 227.403-6(c), 227.404(f), or 227.503-6(d), use the
following clause:
RIGHTS IN BID OR PROPOSAL DATA (XXX 1994)
(a) Definitions.
(1) As used in this clause the term data means technical data or
computer software.
(2) For contracts that require the delivery of technical data,
the terms technical data and computer software are defined in the
clause at 252.227-7013, ``Rights in Technical Data--Noncommercial
Items'' or, if this is a contract awarded under the under Small
business Innovative Research Program, the clause at 252.227-7018,
``Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovative Research Programs''.
(3) For contracts that do not require the delivery of technical
data, the term computer software is defined in the clause at
252.227-7014, ``Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation'' or, if this is a
contract awarded under the under the Small business Innovative
Research Program, the clause at 252.227-7018, ``Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovative Research Programs''.
(b) Prior to contract award--
(1) The offeror agrees that the Government may reproduce the bid
or proposal, or any portions thereof, to the extent necessary to
evaluate the offer.
(2) Except as provided in paragraph (d) of this clause, the
Government shall use information contained in the bid or proposal
only for evaluational purposes and may not disclose, directly or
indirectly, such information to any person including potential
evaluators, unless that person has been authorized by the Head of
the Agency, his or her designee, or the contracting officer to
receive such information.
(c) Subsequent to contract award--
(1) Except as provided in paragraphs (c)(2) and (d) of this
clause, the Government shall have the rights to use, modify,
reproduce, release, perform, display, or disclose information
contained in the contractor's bid or proposal within the Government.
The Government shall not release, perform, display, or disclose such
data outside the Government without the contractor's written
permission.
(2) The Government's rights in Data that are required to be
delivered under this contract are determined by the ``Rights in
Technical Data--Noncommercial Items'', ``Rights in Noncommercial
Computer Software and Noncommercial Computer Software
Documentation'', or ``Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research Programs''
clause(s) of this contract.
(d)(1) The Government's rights with respect to Data contained in
the contractor's bid or proposal that were provided to the
contractor by the Government are subject only to restrictions on
use, modification, reproduction, release, performance, display, or
disclosure, if any, imposed by the developer or licensor of such
Data.
(2) The Government's rights, including the right to permit
others to use, modify, reproduce, release, perform, display, or,
disclose bid or proposal Data, shall not be restricted in any manner
if such Data has been otherwise provided to the Government or to
other persons without restrictions on further release or disclosure
other than a release or disclosure resulting from the sale,
transfer, or other assignment of interest in the software to another
party or the sale or transfer of some or all of the business entity
or its assets to another party.
(e) The contractor shall include this clause in all subcontracts
or similar contractual instruments and require its subcontractors or
suppliers to do so without alteration, except to identify the
parties.
(END OF CLAUSE)
20. Section 252.227-7017 is added to read as follows:
252.227-7017 Identification and Assertion of Use, Release, or
Disclosure Restrictions.
As prescribed in 227.403-3(b), 227.404(e), or 227.503-3(a), use the
following provision:
IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE
RESTRICTIONS (XXX 1994)
(a) The terms used in this provision are defined in following
clause or clauses contained in this solicitation--
(1) If a successful offeror will be required to deliver
technical data, the clause at 252.227-7013, ``Rights in Technical
Data--Noncommercial Items'' or, if this solicitation contemplates a
contract under the Small Business Innovative Research Program, the
clause at 252.227-7018, ``Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research Programs''.
(2) If a successful offeror will not be required to deliver
technical data, the clause at 252.227-7014, ``Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation'' or, if this solicitation contemplates a contract
under the Small Business Innovative Research Program, the clause at
252.227-7018, ``Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovative Research Programs''.
(b) The notification and identification 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 Innovative Research Program, the notification and
identification requirements do not apply to technical data or
computer software that will be generated under the resulting
contract. Notification and identification is not required for
restrictions based solely on copyright.
(c) Offers submitted in response to this solicitation shall
identify, to the extent known at the time an offer is submitted to
the Government, the technical data or computer software that the
offeror, its subcontractors or suppliers, or potential
subcontractors or suppliers, assert should be furnished to the
Government with restrictions on use, release, or disclosure.
(d) The offeror's assertions, including the assertions of its
subcontractors or suppliers or potential subcontractors or
suppliers, shall be submitted as an attachment to its offer in the
following format, dated and signed by an official authorized to
contractually obligate the offeror.
``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 Name of Person
to be Furnished Basis for Asserted Rights Asserting
With Assertion** Category*** Restrictions****
Restrictions*
(LIST)***** (LIST) (LIST) (LIST)
*For technical data (other than computer software documentation)
pertaining to items, components, or processes developed at private
expense, identify both the deliverable technical data and each such
item, component, or process. For computer software or computer
software documentation identify the software or documentation.
**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.
***Enter asserted right category (e.g., Government purpose
license rights from a prior contract, rights in SBIR data generated
under another contract, limited, restricted, or government purpose
rights under this or a prior contract, or specially negotiated
licenses).
****Corporation, individual, or other person, as appropriate.
*****Enter ``none'' when all data or software will be submitted
without restrictions.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
----------------------------------------------------------------------
Signature __________________''
(End of Identification and Assertion)
(e) An offeror's failure to submit, complete, or sign the
notification and identification required by paragraph (d) of this
clause with its offer may render the offer ineligible for award.
(f) If the offeror is awarded a contract, the assertions
identified in paragraph (d) of this provision shall be listed in an
attachment to that contract. Upon request by the contracting
officer, the offeror shall provide sufficient information to enable
the contracting officer to evaluate any listed assertion.
(END OF PROVISION)
21. Section 252.227-7018 is revised to read as follows:
252.227-7018 Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovative Research Program.
As prescribed in 227.404(a), use the following clause:
RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE--SMALL
BUSINESS INNOVATIVE RESEARCH PROGRAM (XXX 1994)
(a) Definitions. As used in this clause:
(1) Commercial computer software means software developed or
regularly used for non-governmental purposes which--
(i) Has been sold, leased, or licensed to the public;
(ii) Has been offered for sale, lease, or license to the public;
(iii) 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,
(iv) Satisfies a criterion expressed in (a)(1) (i), (ii), or
(iii) and would require only minor modification to meet the
requirements of this contract.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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 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 meeting of
Title 35 of the United States Code.
(ii) 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.
(iii) 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.
(iv) 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.
(8) 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.
(i) Private expense determinations should be made at the lowest
practicable level.
(ii) 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.
(9) Developed exclusively with Government funds means develop
was not accomplished exclusively or partially at private expense.
(10) 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.
(11) 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.
(12) Generated means technical data or computer software first
created in the performance of this contract.
(13) 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 other to do
so.
(14) 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 permit the technical data to be
used by another party, except that the Government may reproduce,
release or disclose such data or permit the use or reproduction of
the data by persons outside the Government if reproduction, release,
disclosure, or use is--
(i) Necessary for emergency repair and overhaul; or,
(ii) A release or disclosure of technical data (other than
detailed manufacturing or process data) to, or use of such data by,
a foreign government that is in the interest of the Government and
is required for evaluational or informational purposes; and,
(iii) Subject to a prohibition on the further reproduction,
release, disclosure, or use of the technical data; and,
(iv) The contractor or subcontractor asserting the restriction
is notified of such reproduction, release, disclosure, or use.
(15) 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.
(16) Noncommercial computer software means software that does
not qualify as commercial computer software under (a)(1) of this
clause.
(17) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
(i) 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;
(ii) 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.
(iii) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in subparagraphs
(a)(17) (i) and (iii) of this clause;
(B) Not release or disclose the modified software except as
provided in subparagraphs (a)(17)(ii), (v) and (vi) of this clause.
(v) Permit contractors or subcontractors performing service
contracts (see FAR 37.101) in support of this or a related contract
to use computer software to diagnose and correct deficiencies in a
computer program, to modify computer software to enable a computer
program to be combined with, adapted to, or merged with other
computer programs or when necessary to respond to urgent tactical
situations, provided that--
(A) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made.
(B) Such contractors or subcontractors are subject to the non-
disclosure agreements at 227.403-7 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'';
(C) 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 subparagraph (a)(17)(iv) of this clause, for any other
purpose; and,
(D) Such use is subject to the limitation in subparagraph
(a)(17)(i) of this clause.
(vi) Permit contractors or subcontractors performing emergency
repairs or overhaul of items or components of items procured under
this or a related contract to use the computer software when
necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided
that--
(A) The intended recipient is subject to the non-disclosure
agreement at 227.403-7 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''; and,
(B) 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 subparagraph (a)(17)(iv) of this clause, for any other
purpose.
(18) SBIR data rights mean a royalty free license for the
Government, including its support service contractors, to use,
modify, reproduce, release, perform, display, or disclose technical
data or computer software generated and delivered under this
contract for any United States government purpose.
(19) Technical data means recorded information, regardless of
the form or method of the recording, of a scientific or technical
nature (including computer software documentation). The term does
not include computer software or data incidental to contract
administration, such as financial and/or management information.
(20) 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) 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 non-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, including computer software documentation, or
computer software 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) Data or software in which the Government has acquired
previously unlimited rights under another government contract or
through a specific license; and
(vi) SBIR data upon expiration of the SBIR data rights period.
(2) 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 (f)(1) of this clause, with the legend prescribed in
subparagraph (f)(2) of this clause.
(3) Restricted rights in computer software. The government shall
have restricted rights in noncommercial 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.
(4) SBIR data rights. (i) Except for technical data, including
computer software documentation, or computer software in which the
Government has unlimited rights under paragraph (b)(1) of this
clause, the Government shall have SBIR data rights in all technical
data or computer software generated under this contract during the
period commencing with contract award and ending upon the date five
years after completion of the project from which such data were
generated.
(ii) The Government may not release or disclose SBIR data to any
person, other than its support services contractors, except--
(A) As expressly permitted by the contractor;
(B) For evaluational purposes; or,
(C) A release, disclosure, or use that is necessary for
emergency repair or overhaul of items operated by the Government.
(iii) A release or disclosure of SBIR data to the Government's
support services contractors, or a release or disclosure under
paragraphs (b)(4)(ii)(B) or (c) of this clause, may be made only if,
prior to release or disclosure, the intended recipient is subject to
the use and non-disclosure agreement at 227.403-7 or is a Government
contractor receiving access to the technical data or 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.''
(5) Specifically negotiated license rights. The standard license
rights granted to the government under paragraphs (b)(1) through
(b)(4) 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 paragraph
(a)(14) of this clause or lesser rights in computer software than
are enumerated in paragraph (a)(17) of this clause. Any rights so
negotiated shall be identified in a license agreement made part of
this contract.
(6) 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 pre-existing
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.
(7) 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 paragraphs (a)(14), (a)(17), or (b)(4) of this
clause, or in accordance with the terms of a license negotiated
under paragraph (b)(5) 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.
(c) Rights in derivative computer software or computer software
documentation. The government shall retain its rights in the
unchanged portions of any computer software or computer software
documentation delivered under this contract that the contractor uses
to prepare, or includes in, derivative software or documentation.
(d) Third party copyrighted technical data and computer
software. The contractor shall not, without the written approval of
the contracting officer, incorporate any copyrighted technical data,
including computer software documentation, or computer software in
the data or software to be delivered under this contract unless the
contractor is the copyright owner or has obtained for the Government
the license rights necessary to perfect a license or licenses in the
deliverable data or software of the appropriate scope set forth in
paragraph (b) of this clause and, prior to delivery of such--
(1) Technical data, has affixed to the transmittal document a
statement of the license rights obtained; or,
(2) Computer software, has provided a statement of the license
rights obtained in a form acceptable to the contracting officer.
(e) Identification and delivery of technical data or computer
software to be furnished with restrictions on use, release, or
disclosure. (1) This paragraph does not apply to technical data or
computer software that were or will be generated under this contract
or to restrictions based solely on copyright.
(2) Except as provided in subparagraph (e)(3) of this clause,
technical data or computer software that the contractor asserts
should be furnished to the Government with restrictions on use,
release, or disclosure is identified in an Attachment to this
contract (``the Attachment''). The contractor shall not deliver any
technical data or computer software with restrictive markings unless
the technical data or computer software are listed on the
Attachment.
(3) In addition to the assertions made in the Attachment, other
assertions may be identified after award when based on new
information or inadvertent omissions unless the inadvertent
omissions would have materially affected the source selection
decision. Such identification and assertion shall be submitted to
the contracting officer as soon as practicable prior to the
scheduled date for delivery of the technical data or computer
software, in the following format, and signed by an official
authorized to contractually obligate the contractor:
``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 right to use, release, or disclose the
following technical data or computer software should be restricted--
Technical data or
computer software Name of Person
to be Furnished Basis for Asserted Rights Asserting
With Assertion** Category*** Restrictions****
Restrictions*
(LIST) (LIST) (LIST) (LIST)
*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.
**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.
***Enter asserted rights category (e.g., limited rights,
restricted rights, government purpose rights, or government purpose
license rights from a prior contract, SBIR data rights under another
contract, or specifically negotiated licenses).
****Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Trade-------------------------------------------------
Signature ________________
(End of Identification and Assertion)
(4) When requested by the contracting officer, the contractor
shall provide sufficient information to enable the contracting
officer to evaluate the contractor's assertions. The contracting
officer reserves the right to add the contractor's assertions to the
Attachment and validate any listed assertions, at a later date, in
accordance with the procedures of the ``Validation of Asserted
Restrictions--Computer Software, and/or ``Validation of Restrictive
Markings on Technical Data'' clauses of this contract.
(f) Marking requirements. The contractor, and its subcontractors
or suppliers, may only assert restrictions on the Government's
rights to use, modify, reproduce, release, 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 (f) (6) of this clause, only the
following markings are authorized under this contract: the limited
rights legend at subparagraph (f) (2) of this clause; the restricted
rights legend at subparagraph (f)(3), the SBIR data rights legend at
subparagraph (f)(4), or, the special license rights legend at
subparagraph (f)(5); and/or 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 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. Instructions that interfere with or delay
the operation of computer software in order to display a restrictive
legend or other license statement at any time prior to or during use
of the computer software shall not be inserted in the software, or
otherwise cause such interference or delay, unless the contracting
officer's written permission to deliver such software has been
obtained prior to delivery. Reproduction of technical data, computer
software, or any portions thereof subject to asserted restrictions
shall also reproduce the asserted restrictions.
(2) 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 with the following
legend:
``LIMITED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's right to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (b)(2) of the clause at 252.227-7018. Any reproduction of
technical data or portions thereof marked with this legend must also
produce 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)
(3) Restricted rights markings. Computer software delivered or
otherwise furnished to the Government with restricted rights shall
be marked with the following legend:
``RESTRICTED RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
----------------------------------------------------------------------
The Government's right to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (b)(3) of the clause at 252.227-7018. Any reproduction of
computer software or portions thereof marked with this legend must
also produce 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)
(4) SBIR data rights markings. Except for technical data or
computer software in which the Government has acquired unlimited
rights under subparagraph (b)(1) of this clause, or negotiated
special license rights as provided in subparagraph (b)(5) of this
clause, technical data or computer software generated under this
contract shall be marked with the following legend. The contractor
shall enter the expiration date for the SBIR data rights period on
the legend:
``SBIR DATA RIGHTS
Contract No.-----------------------------------------------------------
Contractor Name--------------------------------------------------------
Address----------------------------------------------------------------
----------------------------------------------------------------------
Expiration of SBIR Data Rights
Period-----------------------------------------------------------------
The Government's right 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 (b)(4) of the contract identified above. No
restrictions apply after the 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)
(5) 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 with the following
legend:
``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 no. ______ (Insert contract
number) ______, license no. ______, (Insert license identifier)
______. Any reproduction of technical data, computer software, 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 subparagraph (b)(6) of this clause).
(6) Pre-existing 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 marking
procedures in subparagraph (f)(1) of this clause shall be followed.
(g) Contractor procedures and records. Throughout performance of
this contract, the contractor, and its subcontractors or suppliers
that will deliver technical data or computer software with other
than unlimited rights, shall--
(1) Have, maintain, and follow written procedures sufficient to
assure that restrictive markings are used only when authorized by
the terms of this clause; and
(2) Maintain records sufficient to justify the validity of any
restrictive markings on technical data or computer software
delivered under this contract.
(h) 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 clauses at ``252.227-7037,
``Validation of Restrictive Markings on Technical Data'' or 252.227-
7019, ``Validation of Asserted Restrictions--Computer Software'',
respectively. Notwithstanding any provision of this contract
concerning inspection and acceptance, the Government may ignore or,
at the Contractor's expense, correct or cancel 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 252.227-7019 or 252.227-7037. If the
contracting officer notifies the contractor of a nonconforming
marking or markings and the contractor fails to remove or correct
such markings within sixty (60) days, the Government may ignore or,
at the Contractor's expense, remove or correct any nonconforming
markings.
(i) Relation to patents. Nothing contained in this clause shall
imply a license to the Government under any patent or be construed
as affecting the scope of any license or other right otherwise
granted to the Government under any patent.
(j) Limitation on charges for rights in technical data or
computer software. (1) The contractor shall not charge to this
contract any cost, including but not limited to, license fees,
royalties, or similar charges, for rights in technical data or
computer software to be delivered under this contract when--
(i) The Government has acquired, by any means, the same or
greater rights in the data or software; or,
(ii) The data are available to the public without restrictions.
(2) The limitation in paragraph (j)(1)--
(i) Includes costs charged by a subcontractor or supplier, at
any tier, or costs incurred by the contractor to acquire rights in
subcontractor or supplier technical data or computer software, if
the subcontractor or supplier has been paid for such rights under
any other Government contract or under a license conveying the
rights to the Government;
(ii) Does not include the reasonable costs of reproducing,
handling, or mailing the documents or other media in which the
technical data or computer software will be delivered.
(k) Applicability to subcontractors or suppliers. (1) The
contractor shall assure that the rights afforded its subcontractors
and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the
identification, assertion, and delivery processes required by
paragraph (e) of this clause are recognized and protected.
(2) Whenever any technical data or computer software is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the contractor shall use this same
clause in the subcontract or other contractual instrument, and
require its subcontractors or suppliers to do so, without
alteration, except to identify the parties. 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.
(End of clause)
ALTERNATE I (XXX 1994)
As prescribed in 227.404(c) or 227.504(c), add the following
paragraph to the basic clause:
(l) Publication for sale. (1) This paragraph applies only to
technical data or computer software delivered to the Government with
SBIR data rights.
(2) Upon expiration of the SBIR data rights period, the
Government will not exercise its right to publish or authorize
others to publish an item of technical data or computer software
identified in this contract as being subject to paragraph (l) of
this clause if the contractor, prior to the expiration of the SBIR
data rights period, or within two years following delivery of the
data or software item, or within twenty-four months following the
removal of any national security or export control restrictions,
whichever is later, publishes such data or software item(s) and
promptly notifies the contracting officer of such publication(s).
Any such publication(s) shall include a notice identifying the
number of this contract and the Government's rights in the published
data.
(3) This limitation on the Government's right to publish for
sale shall continue as long as the technical data or computer
software are reasonably available to the public for purchase.
(END OF ALTERNATE I)
22. Section 252.227-7019 is revised to read as follows:
252.227-7019 Validation of asserted restrictions--computer software.
As prescribed in 227.503-6(b), use the following clause:
VALIDATION OF ASSERTED RESTRICTIONS--COMPUTER SOFTWARE (XXX 1994)
(a) Definitions. (1) As used in this clause, unless otherwise
specifically indicated, the term Contractor means the contractor and
its subcontractors or suppliers.
(2) Other terms used in this clause are defined in the ``Rights
in Noncommercial Computer Software and Noncommercial Computer
Software Documentation'' clause, 252.227-7014, of this contract.
(b) Justification. The Contractor shall maintain records
sufficient to justify the validity of any markings that assert
restrictions on the Government's rights to use, modify, reproduce,
perform, display, release, or disclose computer software delivered
or required to be delivered under this contract and shall be
prepared to furnish to the contracting officer a written
justification for such restrictive markings in response to a request
for information under paragraph (d) or a challenge under paragraph
(f) of this clause.
(c) Direct contact with subcontractors or suppliers. The
Contractor agrees that the contracting officer may transact matters
under this clause directly with subcontractors or suppliers at any
tier who assert restrictions on the Government's right to use,
modify, reproduce, release, perform, display, or disclose computer
software. Neither this clause, nor any action taken by the
Government under this clause, creates or implies privity of contract
between the Government and the Contractor's subcontractors or
suppliers.
(d) Requests for information. (1) The contracting officer may
request the Contractor to provide sufficient information to enable
the contracting officer to evaluate the Contractor's asserted
restrictions. Such information shall be based upon the records
required by this clause or other information reasonably available to
the Contractor.
(2) Based upon the information provided, if the--
(i) Contractor agrees that an asserted restriction is not valid,
the contracting officer may--
(A) Strike or correct the unjustified marking at the
Contractor's expense; or,
(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 restriction and return the
corrected software to the contracting officer within sixty (60) days
following receipt of the software the contracting officer may
correct or strike the markings at that Contractor's expense.
(ii) Contracting officer concludes that the asserted restriction
is appropriate for this contract, he or she shall so notify the
Contractor in writing.
(3) The Contractor's failure to provide a timely response to a
contracting officer's request for information or failure to provide
sufficient information to enable the contracting officer to evaluate
an asserted restriction shall constitute reasonable grounds for
questioning the validity of an asserted restriction.
(e) Government right to challenge and validate asserted
restrictions. (1) The Government, when there are reasonable grounds
to do so, has the right to review and challenge the validity of any
restrictions asserted by the Contractor on the Government's rights
to use, modify, reproduce, release, perform, display, or disclose
computer software delivered, to be delivered under this contract, or
otherwise provided to the Government in the performance of this
contract. 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 three years after the date(s) the
software is delivered or otherwise furnished to the Government, or
three years following final payment under this contract, whichever
is later.
(2) The absence of a challenge to an asserted restriction shall
not constitute validation under this clause. Only a contracting
officer's final decision or actions of an agency Board of Contract
Appeals or a court of competent jurisdiction that sustain the
validity of an asserted restriction constitute validation of the
restriction.
(f) Challenge procedures. (1) A challenge must be in writing and
shall--
(i) State the specific grounds for challenging the asserted
restriction;
(ii) Require the Contractor to respond within sixty (60) days;
(iii) Require the Contractor to provide justification for the
assertion based upon records kept in accordance with paragraph (b)
of this clause and such other documentation that are reasonably
available to the Contractor, in sufficient detail to enable the
contracting officer to determine the validity of the asserted
restrictions; and,
(iv) State that a contracting officer's final decision, during
the three year period preceding this challenge, or action of a court
of competent jurisdiction or Board of Contract Appeals that
sustained the validity of an identical assertion made by the
Contractor (or a licensee) shall serve as justification for the
asserted restriction.
(2) The contracting officer shall extend the time for response
if the Contractor submits a written request showing the need for
additional time to prepare a response.
(3) The contracting officer may request additional supporting
documentation if, in his or her opinion, the Contractor's
explanation does not provide sufficient evidence to justify the
validity of the asserted restrictions. The Contractor agrees to
promptly respond to the contracting officer's request for additional
supporting documentation.
(4) Notwithstanding challenge by the contracting officer, the
parties may agree on the disposition of an asserted restriction at
any time prior to a contracting officer's final decision or, if the
Contractor has appealed that decision, filed suit, or provided
notice of an intent to file suit, at any time prior to a decision by
a court of competent jurisdiction or Board of Contract Appeals.
(5) If the Contractor fails to respond to the contracting
officer's request for information or additional information under
subparagraph (f)(1) of this clause, the contracting officer shall
issue a final decision, in accordance with the ``Disputes'' clause
of this contract, pertaining to the validity of the asserted
restriction.
(6) If the contracting officer, after reviewing the written
explanation furnished pursuant to subparagraph (f)(1) of this
clause, or any other available information pertaining to the
validity of an asserted restriction, determines that the asserted
restriction has--
(i) Not been justified, the contracting officer shall issue
promptly a final decision, in accordance with the ``Disputes''
clause of this contract, denying the validity of the asserted
restriction.
(ii) Been justified, the contracting officer shall issue
promptly a final decision, in accordance with the ``Disputes''
clause of this contract, validating the asserted restriction.
(7) A contractor receiving challenges to the same asserted
restriction(s) from more than one contracting officer shall notify
each contracting officer of the other challenges. The notice shall
also state which contracting officer initiated the first in time
unanswered challenge. The contracting officer who initiated the
first in time unanswered challenge, after consultation with the
other contracting officers who have challenged the restrictions and
the contractor, shall formulate and distribute a schedule that
provides the contractor a reasonable opportunity for responding to
each challenge.
(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 ninety (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 one year from the date of the contracting
officer's final decision if, within the first ninety (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 ninety (90) days; or, (B)
submitted, within ninety (90) days, a notice of intent to file suit
in an appropriate court and filed suite within one 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 ninety (90)
days from the date of the contracting officer's final decision; or,
(ii) File suit in an appropriate court within ninety (90) days
from such date; or,
(iii) File suit within one year after the date of the
contracting officer's final decision if the Contractor had provided
notice of intent to file suit within ninety (90) days following the
date of the contracting officer's final decision.
(3) The agency head, on a non-delegable 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
subparagraph (g)(1) of this clause, the Contractor agrees that the
agency may use, modify, reproduce, release, perform, display, or
disclose computer software marked with (i) government purpose
legends for any purpose, and authorize others to do so; or, (ii)
restricted or special license rights for government purposes only.
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 non-disclosure agreement at 227.403-7; 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.'' 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.
(h) Final disposition of appeal or suit. If the Contractor
appeals or files suit and if, upon final disposition of the appeal
or suit, the contracting officer's decision is--
(1) Sustained--:
(i) Any restrictive marking on such computer software shall be
struck or corrected at the Contractor's expense or ignored; and,
(ii) If the asserted restriction is found not to be
substantially justified, the Contractor shall be liable to the
Government for payment of the cost to the Government of reviewing
the asserted restriction and the fees and other expenses (as defined
in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in
challenging the restriction, unless special circumstances would make
such payment unjust.
(2) Not sustained--
(i) The Government shall be bound by the asserted restriction;
and,
(ii) If the challenge by the Government is found not to have
been made in good faith, the Government shall be liable to the
Contractor for payment of fees and other expenses (as defined in 28
U.S.C. 2412(d)(2)(A) incurred by the Contractor in defending the
restriction.
(i) Flowdown. The contractor shall insert this clause in all
contracts, purchase orders, and other similar instruments with its
subcontractors or suppliers, at any tier, who will be furnishing
computer software to the Government in the performance of this
contract. The clause may not be altered other than to identify the
appropriate parties.
(End of clause)
23. Section 252.227-7020 is revised to read as follows:
Sec. 252.227-7020 Rights in special works.
As prescribed in 227.405-3, 227.406(a) and 227.505(a), use the
following clause:
RIGHTS IN SPECIAL WORKS (XXX 1994)
(a) Applicability. The clause applies to works first created,
generated, or produced and required to be delivered under this
contract.
(b) Definitions. As used in this clause:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) Unlimited rights means the rights to use, modify, reproduce,
perform, display, release, or disclose a work in whole or in part,
in any manner, and for any purpose whatsoever, and to have or
authorize others to do to.
(6) The term works includes computer data bases, computer
software, or computer software documentation; literary, musical,
choreographic, or dramatic compositions; pantomimes; pictorial,
graphic, or sculptural compositions; motion pictures and other
audiovisual compositions; sound recordings in any medium; or, items
of similar nature.
(c) License rights. (1) The Government shall have unlimited
rights in works first produced, created, or generated and required
to be delivered under this contract.
(2) The contractor shall assign to the Government copyright in
all works first produced, created, or generated and required to be
delivered under this contract. The contractor, unless directed to
the contrary by the contracting officer, shall place the following
notice on such works:
``> (Year date of delivery) United States Government, as
represented by the Secretary of (department). All rights reserved.''
For phonorecords, the ``>'' marking shall be replaced by
a ``P''.
(3) The contractor grants to the Government a royalty free,
worldwide, nonexclusive, irrevocable license to reproduce, prepare
derivative works from, distribute, perform, or display, and to have
or authorize others to do so, the contractor's copyrighted works not
first produced created, or generated under this contract that have
been incorporated into the works deliverable under this contract.
(d) Third party copyrighted data. The contractor shall not
incorporate, without the written approval of the contracting
officer, any copyrighted works in the works to be delivered under
this contract unless the contractor is the copyright owner or has
obtained for the Government the license rights necessary to perfect
a license of the scope identified in paragraph (c)(3) of this clause
and, prior to delivery of such works--
(1) Has affixed to the transmittal document a statement of the
license rights obtained; or,
(2) For computer software, has provided a statement of the
license rights obtained in a form acceptable to the contracting
officer.
(e) Indemnification. The contractor shall indemnify and save and
hold harmless the government, against any liability, including costs
and expenses, (1) for violation of proprietary rights, copyrights,
or rights of privacy or publicity, arising out of the creation,
delivery, use, modification, reproduction, release, performance,
display, or disclosure of any works furnished under this contract,
or (2) based upon any libelous or other unlawful matter contained in
such works.
(f) Government furnished information. Paragraphs (d) and (e) of
this clause are not applicable to information furnished to the
contractor by the Government and incorporated in the works delivered
under this contract.
(End of clause)
252.227-7021 [Amended]
24. Section 252.227-7021 is amended by revising the introductory
text to read ``As prescribed in 227.405-2(a), use the following
clause:''.
252.227-7022 [Amended]
25. Section 252.227-7022 is amended by revising the introductory
text to read ``As prescribed in 227.407-1(a), use the following
clause:''.
252.227-7023 [Amended]
26. Section 252.227-7023 is amended by revising the introductory
text to read ``As prescribed in 227.407-1(b), use the following
clause:''.
252.227-7024 [Amended]
27. Section 252.227-7024 is amended by revising the introductory
text to read ``As prescribed in 227.407-3, use the following clause:''.
28. Section 252.227-7025 is added to read as follows:
252.227-7025 Limitations on the use or disclosure of Government
furnished information marked with restrictive legends.
As prescribed in 227-403-6(d) or 227.503-6(e), use the following
clause:
LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT FURNISHED
INFORMATION MARKED WITH RESTRICTIVE LEGENDS (XXX 1994)
(a)(1) For contracts requiring the delivery of technical data,
the terms limited rights and government purpose rights are defined
in the ``Rights in Technical Data--Noncommercial Items'' clause,
252.227-7013.
(2) For contracts that do not require the delivery of technical
data, the terms government purpose rights and restricted rights are
defined in the ``Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation'' clause, 252.227-
7014.
(3) For Small Business Innovative Research program contracts,
the terms limited rights and restricted rights are defined in the
clause at 252.227-7018, ``Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovative Research Programs.''
(b) Technical data or computer software provided to the
contractor as Government furnished information (GFI) under this
contract may be subject to restrictions on use, modification,
reproduction, release, performance, display, or further disclosure.
(1) GFI marked with limited or restricted rights legends. The
contractor shall use, modify, reproduce, perform, or display
technical data received from the Government with limited rights
legends or computer software received with restricted rights legends
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, release or disclose such data or software to
any person.
(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 non-disclosure agreement at DFARS 227.403-
7.
(3) GFI marked with specially negotiated license rights legends.
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 non-disclosure agreement at 227.403-7. The contractor shall
modify paragraph 1.(c) of the disclosure agreement to reflect the
recipient's obligations regarding use, modification, reproduction,
release, performance, display, and disclosure of the data or
software.
(c) Indemnification and creation of third party beneficiary
rights. The contractor agrees:
(1) 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 technical data or
computer software received from the Government with restrictive
legends by the contractor or any person to whom the contractor has
released or disclosed such data or software.
(2) That the party whose name appears on the restrictive legend,
in addition to any other rights it may have, is a third party
beneficiary who has the right of direct action against the
contractor, or any person to whom the contractor has released or
disclosed such data or software, for the unauthorized duplication,
release, or disclosure of technical data or computer software
subject to restrictive legends.
(END OF CLAUSE)
252.227-7026 [Amended]
29. Section 252.227-7026 is amended by revising the introductory
text to read ``As prescribed in 227.403-8(a), use the following
clause:''.
252.227-7027 [Amended]
30. Section 252.227-7027 is amended by revising the introductory
text to read ``As prescribed in 227.403-8(b), use the following
clause:''.
31. Section 252.227-7028 is revised to read as follows:
252.227-7028 Technical data or computer software previously delivered
to the Government.
As prescribed in 227.403-6(e) or 227.503-6(f), use the following
provision:
TECHNICAL DATA OR COMPUTER SOFTWARE PREVIOUSLY DELIVERED TO THE
GOVERNMENT (XXX 1994)
The offeror shall attach to its offer an identification of all
documents or others media incorporating technical data or computer
software it intends to deliver under this contract with other than
unlimited rights that are identical or substantially similar to
documents or other media that the offeror has produced for,
delivered to, or is obligated to deliver to the Government under any
contract or subcontract. The attachment shall identify--
(a) The contract number under which the data or software were
produced;
(b) The contract number under which, and the name and address of
the organization to whom, the data or software were most recently
delivered or will be delivered; and
(c) Any limitations on the Government's rights to use or
disclose the data or software, including, when applicable,
identification of the earliest date the limitations expire.
(End of Provision)
252.227-7029 [Removed]
32. Section 252.227-7029 is removed and reserved.
252.227-7030 [Amended]
33. Section 252.227-7030 is amended by revising the introductory
text to read ``As prescribed in 227.403-6(f)(1), use the following
clause:''.
252.227-7031 [Removed and Reserved]
34. Section 252.227-7031 is removed and reserved.
252.227-7032 [Removed and Reserved]
35. Section 252.227-7032 is removed and reserved.
252.227-7033 [Amended]
36. Section 252.227-7033 is amended by revising the introductory
text to read ``As prescribed in 227.407(c), use the following
clause:''.
252.227-7036 [Amended]
37. Section 252.227-7036 is amended by revising the introductory
text to read ``As prescribed in 227.403-6(f)(2), use the following
clause:''.
252.227-7037 [Amended]
38. Section 252.227-7037 is amended by revising the introductory
text to read ``As prescribed in 227.403]6(f)(3), use the following
clause:''.
[FR Doc. 94-14321 Filed 6-17-94; 8:45 am]
BILLING CODE 3810-01-M