[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)] [Rules and Regulations] [Pages 10499-10515] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-5079] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY 10 CFR Part 600 48 CFR Parts 915, 927, 952, and 970 RIN 1991-AB33 Assistance Regulations; Acquisition Regulations; Revisions to Rights in Data Regulations AGENCY: Department of Energy. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Energy (DOE) is amending its Financial Assistance and Acquisition Regulations to effect changes to its rights in technical data regulations to reflect a greater reliance upon the rights in technical data coverage in the Federal Acquisition Regulation and to recognize the requirements relating to technology transfer activities at certain DOE laboratories. EFFECTIVE DATE: This rule is effective April 3, 1998. FOR FURTHER INFORMATION CONTACT: Robert M. Webb, U.S. Department of Energy, Office of Procurement and Assistance Management, 1000 Independence Avenue, SW., Washington, D.C. 20585, (202) 586-8264. Judson Hightower, U.S. Department of Energy, Office of Assistant General Counsel for Technology, Transfer and Intellectual Property, 1000 Independence Avenue, SW., Washington, D.C. 20585, (202) 586-2813. SUPPLEMENTARY INFORMATION: I. Background. II. Discussion of Comments. III. Procedural Requirements. A. Review Under Executive Order 12866. B. Review Under Executive Order 12988. C. Review Under the Regulatory Flexibility Act. D. Review Under the Paperwork Reduction Act. E. Review Under the National Environmental Policy Act. F. Review Under Executive Order 12612. G. Review Under Small Business Regulatory Enforcement Fairness Act of 1996. H. Review Under the Unfunded Mandate Reform Act of 1995. I. Background This final rule promulgates regulations published for comment on March 31, 1997, at 62 FR 15138. These new regulations delete the coverage of rights in technical data, including regulations, solicitation provisions, and contract clauses currently in the Department of Energy Acquisition Regulation (DEAR). The new coverage relies substantially on the rights in technical data regulations, provisions, and clauses in the Federal Acquisition Regulation (FAR), except where other coverage is appropriate to fulfill DOE's statutory duties to disseminate data produced in its research, development and demonstration programs. Coverage in Subpart 970.27 of the DEAR has been written to reflect the considerations relating to and use of two alternate rights in technical data clauses in DOE's management and operating contracts. Finally, these regulations relocate material on the handling of proposal data by non-Federal evaluators and reflects the effect on their selection of section 6002 of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355). This final rule supersedes Acquisition Letters No. 87-5, 88-1, and 91-7. II. Discussion of Comments Eleven commenters responded to the proposed rule. Five of the commenters were DOE management and operating contractors; two others were universities; two were trade associations, and the remaining two were DOE employees. The comments have been considered and disposed of as described below. Material from 10 CFR Part 600 has been added at the outset of the presentation of the regulatory changes of this final rule though those changes were not part of the proposed rule. DOE has a practice of inviting public comment on significant policies that are added to a final rule that were not within scope of the notice of proposed rulemaking. DOE has decided not to reopen the comment period in this case, because the changes to 10 CFR Part 600 are not significant. DOE's financial assistance policies on rights in technical data have always followed the policies applicable to procurement. There is no reason to think that the changes made by today's final rule should be altered for financial assistance. These changes to 10 CFR Part 600 merely correct references to the Rights in Data-General clause to conform to the Department of Energy Acquisition Regulation coverage of this final rule and call for the use of paragraph (d)(3) that appears in the DEAR in lieu of the one that has appeared at 600.27(b)(2)(i)(C). In the time since the publication of the proposed rule, Part 15 of the Federal Acquisition Regulation has been rewritten and material that had been at 15.413-2 dealing with the handling of proposal data and the use of non-Federal evaluators was deleted. The proposed rule contained alterations, for DOE's purposes, to paragraphs (e) and (f) of the FAR coverage as it then existed. We believe that the FAR material that was deleted has value to DOE contracting officers, and, as a result, this final rule publishes the substance of the former FAR and proposed DEAR provisions dealing with the handling of proposal data and use of non- Federal evaluators in DOE procurements at subsection 915.207-70. One commenter suggested that DOE should identify the employers of non-Federal evaluators. We did not make a change. The notice of use of non-Federal evaluators is sufficient to allow [[Page 10500]] potential proposers to assess any risks of compromising proprietary data. Another commenter suggested several additions to the nondisclosure agreement at 915.413-2(f)(b). We did not make a change, believing the agreement as recited in the proposed rule to be sufficient to inform the non-Federal evaluator of his or her responsibilities to maintain the propriety of the material being evaluated. We have included subsections 927.402-1(b) and 927.403, though they were not published in the proposed rule. We have made minor modifications to these two provisions to change references that result from the publication of this final rule, including substituting the terms ``limited rights data'' and ``restricted computer software'' for ``confidential data'' each time the latter term appeared. This substitution was also made throughout the remainder of the rule, including the clauses. Several commenters questioned the use of the phrase ``to acquire permission [from DOE] to assert copyright in any technical data or computer software'' or variations as used throughout this final rule. The basis for these questions is the recognition that under current copyright law, the drafter of the document or creator of the software has an automatic copyright in the data. The use of this phrase recognizes that right but controls the copyright of data first produced in the performance of a DOE contract by requiring permission from DOE before the contractor can assert the copyright. This phrase and the process as used in these regulations conforms to the phrase and the process used throughout the data regulations and clauses of the Federal Acquisition Regulation. By oversight, this phrase was not used in the proposed rule in paragraph (d)(3) of 927.409(a). That provision has been altered to bring it into conformity with the remainder of the regulations and clauses. A commenter requested a clarification of the prohibition against a Federal prime contractor's using economic leverage ``to inequitably acquire rights in a subcontractor's confidential data'' stated in the proposed rule at subsection 927.404(k)(2). We have made a change to prohibit the use of economic leverage to acquire rights in a subcontractor's limited rights data or restricted computer software for the contractor's private use, and the contractor shall not acquire such rights in standard commercial items on behalf of the Government without the prior approval of DOE patent counsel. This same proscription has been stated at 970.406(c)(3) with regard to DOE management and operating contracts and has been discussed in the subcontracts paragraphs of the clauses at 970.5204-82 and 970.5204-83. This same provision has been added to 970.2706(c) and has been reflected in the clauses at 970.5204-82 and 970.5204-83. In addition, in each of those instances, a provision has been added to require the prior approval of DOE Patent Counsel where a management and operating contract proposes to acquire limited rights data or restricted computer software from a subcontractor using other than Alternate II or Alternate III, respectively, to the Rights in Data--General clause at FAR 52.227-14 as amended in accordance with DEAR 927.409(a). One commenter expressed concern over a possible interpretation of a requirement for contractor licensing as discussed at paragraph 927.404(l) and Alternate VI implying a license in patents. No such license is intended and, in fact, is expressly denied in paragraph (i) of the Rights in Data--General clause at FAR 52.227-14. Paragraph (a) of 927.409 has been altered to allow contracting officers to use Alternate IV in contracts for basic and applied research with educational institutions where software is not a specified deliverable. Also, one commenter noticed that at 927.409(a) we failed to include a definition for ``form, fit, and function data.'' We have added the definition, using the FAR wording. Another commenter questioned the changing of the FAR definitions of ``data'' and ``technical data,'' relocating the exception for contract administration data from ``data,'' as in the FAR, to ``technical data.'' We continue to believe our proposed definitions more accurately reflect the true meaning of the terms, but, upon study of the Rights in Data--General clause at FAR 52.227-14, have chosen to use the FAR definitions of these two terms both for contracts that are not management and operating contracts and for the clauses at 970.5204-82 and 970.5204-83 for management and operating contracts. Other commenters questioned the simplifying of the definitions for ``limited rights data'' and ``restricted computer software.'' This simplification combines two definitions and avoids the FAR definition where ``limited rights'' are defined but do not recite verbatim the limited rights that appear in Alternate II or, in the case of ``restricted computer software,'' Alternate III. The revised definitions avoid any potential for ambiguity by referencing the applicable rights as they may appear in the clause. A commenter noticed that the definitions recited at 927.409(a) already include Alternate I. Therefore, we have deleted the separate instruction to use Alternate I. Another commenter suggested that we have altered the definition of unlimited rights that was provided in the FAR. That commenter says ``DOE has deleted the phrase `by or on behalf of the Government.' '' The FAR definition includes no such phrase. This rule differs from the FAR in the definition of ``unlimited rights'' only by the addition of ``, including by electronic means,'' in recognition of the increasing use of electronic means to disseminate data. At subparagraph (a)(2)(vi) we have altered the instruction for use of the clause at 970.5204-82 to require its inclusion in contracts for the management or operation of a DOE facility or site in addition to DOE management and operation contracts. It is critical that DOE assure its ownership of data relating to management or operation of a facility or site in the same manner that has historically existed for the management and operating contracts. This same principle has been dealt with expressly in the subcontract instructions in paragraph (d) of the clause at 970.5204-82 and paragraph (f) of the clause at 970.5204-83, now requiring the application of the clause at 970.5204-82 in subcontracts for the management or operation of a DOE facility or site. A commenter has questioned why we apparently merely repeat paragraph (h) of FAR 27.409. That FAR citation calls for use of the Additional Data Requirements clause at FAR 52.227-16 ``normally.'' DOE requires the use of that clause any time the clause at FAR 52.227-14 is used. Paragraph (h) as included in the DEAR as a result of this rule does not include the word ``normally.'' Another commenter objected to the proposed prescription at 927.409(s) for use of the Rights in Proposal Data clause at FAR 52.227- 23. The Department chooses to take unlimited rights in proposal data as a condition of award of its contracts, believing that effective contract administration requires the use of the clause as proposed. The clause provides for the offeror's identifying and thereby exempting allegedly proprietary data included in the proposal from these unlimited rights. Furthermore, the clause will affect only the awardee. We have made no change. Two commenters suggest that the paragraph at 970.2705 is misplaced and should be moved to regulations dealing [[Page 10501]] with organizational conflicts of interest. We disagree. The paragraph already was in the DEAR at 970.2705 as paragraph (c) rather than paragraph (b). The issue dealt with is limitations on use of contract data in proposals of the parent or affiliates of a DOE management and operating contractor. A general recognition of controlling the flow of data between the management and operating (M&O) contractor and its parent is discussed at 970.0905. We have made no change. Those same commenters object to the proposed paragraph at 970.2705(c), saying it imposes restrictions on private use of what is otherwise data available in the public domain by DOE M&O contractors. Paragraph (c) is intended merely to reflect the conditions for the private use of contract data as provided in the two data rights clauses for DOE management and operating contractors. Those contractors are allowed to use contract data for private purposes but must respect restrictive markings of data acquired from third parties. We have deleted the proposed 970.2705(c), relying on the appropriate clause to control with no need for further explanation. We have recognized the possibility of instances in which a DOE management and operating contractor or a contractor that manages or operates a DOE facility or site should be required to grant a limited license to responsible third parties or the Government in background limited rights data or restricted computer software. In the proposed rule this recognition was limited to contracts using the Rights in Data-General clause at 48 CFR 52.227-14 as amended by 48 CFR 927.209(a) with Alternate VI being prescribed for use when appropriate. We have added a discussion at 970.2706(d)(2) to discuss this subject treatment in the data clauses for use in DOE management and operating contracts and contracts for the management or operation of a DOE facility or site. A commenter questioned the proposed paragraph (e) of 970.2706 in the context of paragraph (c) of the Rights in Data--Facilities clause at 970.5204-82. The commenter notes that 970.2706(e) recognizes the right to assert copyright in data first produced in performance of the contract as a valuable tool; yet, as proposed the facilities clause does not apparently require the M&O contractor to acquire DOE permission to copyright software. This clause would be used in M&O contracts that do not have technology transfer as a part of their performance obligations while those who have a technology transfer obligation are required under the clause at 970.5204-83 to acquire such permission. This situation results from an oversight in the use of the term technical data. Paragraph (c) of the clause at 970.5204-82 has been altered to require the contractor to acquire permission from DOE to assert copyright in technical data or computer software. In all cases describing the DOE's license in data produced under the contract where permission has been granted to assert copyright, we have used ``paid up'' throughout, replacing the term ``royalty free'' wherever it appeared in both the clauses at 970.5204-82 and 970.5204-83. One commenter suggested that the Government's unlimited rights in paragraph (b)(1) of both data clauses for management and operating contracts should be modified to recognize exceptions for limited rights data and restricted computer software. We agree and have made the change. Another commenter requested that the term ``specifically used'' as used in the same paragraph (b)(1) of those M&O data clauses be defined. We disagree, believing the term to be self-defining. Additionally, it should be noted that the FAR already uses the term in subparagraph (b)(2)(i) of the Rights in Data--General clause at FAR 52.227-14. Four commenters question the right of ownership of the Government as stated in paragraph (b)(1)(i) of the clauses at 970.5204-82 and 970.5204-83. Generally, the concept of ownership is not meaningful in the context of data. However, these clauses are intended to be included in DOE's management and operating contracts, contracts under which the contractors are responsible for the management and operation of large reservations and many and varied facilities that are Government-owned and that fall under safety and health and national security stewardship responsibilities of DOE. The data necessary to the operation of those facilities must be readily available in the context of continuing and future operations, whether involving the past, current, or future operations of the incumbent contractor or the future operations of a successor contractor. To this end, ready access to any such data and unlimited rights in any other data specifically used is necessary. We understand the questions raised but have made no change in this regard. In subparagraph (b)(1)(ii) of the clauses at 970.5204-82 and 970.5204-83, we have recognized as an exception to the reservation of unlimited rights, limited rights data, restricted rights computer software, data produced under a statutory program that establishes the treatment of data, and, as appropriate, data produced in conjunction with DOE's work for others program. In the clause at 970.5204-83 we have also excluded data produced under a Cooperative Research and Development Agreement where that agreement so provides. Two commenters suggest that the copyright licenses granted the United States in any scientific or technical works as expressed in paragraph (d)(1) of the clause at 970.5204-83 should be repeated verbatim in the notice stated in paragraph (d)(2). We agree and have made the technical adjustments to bring this about. Two commenters object to the requirement of paragraph (e)(1)(i)(C) of the clause at 970.5204-83 that a contractor include in any request for the right to assert copyright ``whether the data is subject to an international treaty or agreement,'' saying that the contractor may not have such knowledge. We have made a change recognizing that the contractor's obligation in this regard is subject to the contractor's best knowledge. We have recognized under paragraph (e)(1) that the right of the contractor to assert copyright in data produced under a Cooperative Research and Development Agreement will be controlled by that agreement. Two commenters express a concern with regard to the current form of paragraph (e)(1)(i)(F) of the same clause that the requirement for the contractor to obtain the permission of ``all other funding sources'' prior to making the request. They question whether this requires a second permission if the contractor has in place an agreement that provides for such permission. Where an agreement between the contractor and any funding sources provides the necessary permission, states that such permission is not necessary, or allows each participant to copyright its data developed under the agreement, a special request is not necessary, and a mere statement of the applicable situation will satisfy the requirement as stated. Two commenters recommend that the third sentence of the paragraph at (e)(1)(ii) of the clause at 970.5204-83 end after the phrase ``Intellectual Property'' and that the remaining phrase ``where data are determined to be subject to export controls'' become the introductory phrase to a new fourth sentence that would allow the contractor to obtain permission to copyright data subject to export controls and assert that copyright to the extent provided by export control statutes and regulations. We have made this change. [[Page 10502]] Several commenters have raised concerns about the system of the Department's granting permission to assert copyright contained in the clause at 970.5204-83, particularly in various subparagraphs of paragraph (e)(3). That system provides for the contractor's request to be for a five-year period with provision for extensions in increments of five years where that permission leads to commercialization of the data, generally computer software, that is the subject of the request. Some commenters state that commercialization is less likely where the permission is limited to a five-year period and extensions are subject to further requests for permission. Firms interested in commercializing such data often make their interest conditional upon periods longer than five years. In recognition of this possibility and to remove the potential for this process to impede commercialization of valuable contract data, we have changed the provisions of the clause to allow for requests for specific periods longer than five years where it can be shown that the longer period will aid commercialization. Additionally, where justified, extensions may also be requested for periods longer than five years with the same showing without regard to the length of the original permission. We have also named in subparagraph (e)(3)(i) of the clause at 970.5204-83 the central depository for receipt of software from contractors and dissemination of software materials to the public, the Energy Science and Technology Software Center, to avoid any ambiguity in contractors' responsibilities for delivery to DOE of software developed under a DOE contract. One commenter objected to the length of the copyright acknowledgment prescribed at paragraph (e)(3)(v) of the clause at 970.5204-83. We have made changes to simplify and shorten the notice. One commenter opined that the disclaimer of the notice at paragraph (e)(4) of 970.5204-83 be capitalized. We agree and have made the change. In addition, we have added a paragraph (e)(5) to allow contractors to request from DOE permission to mark technical data with a restrictive legend similar to the one authorized for computer software, limiting their use pending disposition of a request to assert copyright. Two commenters made suggestions about paragraph (f) of the clause at 970.5204-83, dealing with the treatment of rights in data in subcontracts under management and operating contracts, involving technology transfer. One suggests that the flowdown obligations are too specific. We have made this change since the introductory language allows the contracting officer to vary the subcontract obligations where appropriate. We have made corresponding changes to paragraph (f) of the clause at 970.5204-83 and paragraph (d) of the clause at 970.5204-82 to assure that they expressly comply with the explanatory regulatory coverage at 970.2706(c)(1). The second suggestion was a request that there be ``an option for the M&O contractor to acquire ownership of copyright in software developed under a subcontract, or at least an exclusive license,'' where a subcontract was for software development. Nothing in the clause as drafted precludes such an arrangement, where appropriate. In addition, the requirement for application of the clause at 970.5204-82 in certain subcontracts discussed earlier has been reflected in both clauses. Two commenters object to the limited rights legend used in the clauses at 970.5204-82 and 970.5204-83, saying that paragraph (e) of the notice allows for the possibility that data developed at private expense could be released ``to a foreign government, or instrumentality thereof, as the interests of the United States Government may require, for information or evaluation, or for emergency repair or overhaul work by such government.'' The possibility exists but only for the purposes enunciated in the legend. The notice, including the language that is the subject of the comments, is the standard FAR limited rights legend of Alternate II to the clause at FAR 52.227-14. Finally, commenters noticed several typographical errors. We appreciate their observations and have made the appropriate corrections. III. Procedural Requirements A. Review Under Executive Order 12866 Today's regulatory action has been determined not to be a ``significant regulatory action'' under Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB). B. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, ``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, these regulations meet the relevant standards of Executive Order 12988. C. Review Under the Regulatory Flexibility Act This final rule has been reviewed under the Regulatory Flexibility Act of 1980, Pub. L. 96-354, that requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and that is likely to have significant economic impact on a substantial number of small entities. The contracts to which this rulemaking would apply are agreements that contemplate the creation of technical data. Normally, such contracts, and any resulting subcontracts, would be cost reimbursement type contracts. Thus, there would not be an adverse economic impact on contractors or subcontractors. Accordingly, DOE certifies that this final rule will not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared. D. Review Under the Paperwork Reduction Act No additional information or record keeping requirements are imposed by this rulemaking. Accordingly, no OMB clearance is required under the [[Page 10503]] Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). E. Review Under the National Environmental Policy Act DOE has concluded that promulgation of this final rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). Specifically, this final rule is categorically excluded from NEPA review because the amendments to the DEAR would be strictly procedural (categorical exclusion A6). Therefore, this final rule does not require an environmental impact statement or environmental assessment pursuant to NEPA. F. Review Under Executive Order 12612 Executive Order 12612 (52 FR 41685, October 30, 1987) requires that regulations, rules, legislation, and any other policy actions be reviewed for any substantial direct effects on States, on the relationship between the Federal Government and the States, or in the distribution of power and responsibilities among the various levels of Government. If there are sufficient substantial direct effects, then the Executive Order requires the preparation of a federalism assessment to be used in all decisions involved in promulgating and implementing a policy action. This final rule merely reflects current practice relating to rights in technical data. States which contract with DOE will be subject to this rule. However, DOE has determined that this rule will not have a substantial direct effect on the institutional interests or traditional functions of the States. G. Review Under Small Business Regulatory Enforcement Fairness Act of 1996 As required by 5 U.S.C. 801, DOE will report to Congress promulgation of the rule prior to its effective date. The report will state that it has been determined that the rule is not a ``major rule'' as defined by 5 U.S.C. 804(3). H. Review Under the Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a Federal Mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking only affects private sector entities, and the impact is less than $100 million. List of Subjects 10 CFR Part 600 Administrative practice and procedure. 48 CFR Parts 915, 927, 952, and 970 Government procurement. Issued in Washington, D.C. on February 20, 1998. Richard H. Hopf, Deputy Assistant Secretary for Procurement and Assistance Management. For the reasons set out in the preamble, Part 600 of Title 10 and Chapter 9 of Title 48 of the Code of Federal Regulations, respectively, are amended as set forth below. 10 CFR PART 600--FINANCIAL ASSISTANCE RULES 1. The authority citation for Part 600 of Title 10 continues to read as follows: Authority: 42 U.S.C. 7254, 7256, 13525; 31 U.S.C. 6301-6308, unless otherwise noted. 2. In Sec. 600.27, paragraph (b)(2)(i)(C) is removed, paragraph (b)(2)(i)(D) is redesignated as paragraph (b)(2)(i)(C), paragraph (b)(2)(i)(B) is amended by adding after ``non-profit organizations,'' the phrase ``the clause referred to in paragraph (b)(2)(i)(A) of this section shall be revised by deleting paragraph (d)(3) and inserting the following paragraph (c) in lieu of paragraph (c) of that clause:'', and paragraph (b)(2)(i)(A) is revised to read as follows: Sec. 600.27 Patent and data provisions. (b) * * * (2) * * * (i) Rights in data--General. (A) Incorporate 48 CFR 52.227-14 with its Alternate V and with the definitional paragraph (a) and paragraph (d)(3) of 48 CFR 927.409(a)(1). Solicitations shall also include the Representation of Limited Rights Data and Restricted Computer Software provision at 48 CFR 52.227-15. Contracting officers shall treat rights in data matters in accordance with 48 CFR 927.4. * * * * * Title 48 of the Code of Federal Regulations PART 915--CONTRACTING BY NEGOTIATION 3. The authority citation for Part 915 continues to read as follows: Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c). 4. Subsection 915.207-70 is added as follows: 915.207-70 Handling of proposals during evaluation. (a) Proposals furnished to the Government are to be used for evaluation purposes only. Disclosure outside the Government for evaluation is permitted only to the extent authorized by, and in accordance with the procedures in this subsection. (b) While the Government's limited use of proposals does not require that the proposal bear a restrictive notice, proposers should, if they desire to maximize protection of their trade secrets or confidential or privileged commercial and financial information contained in them, apply the restrictive notice prescribed in paragraph (e) of the provision at 52.215-1 to such information. In any event, information contained in proposals will be protected to the extent permitted by law, but the Government assumes no liability for the use or disclosure of information (data) not made subject to such notice in accordance with paragraph (e) of the provision at 48 CFR 52.215-1. (c) If proposals are received with more restrictive conditions than those in paragraph (e) of the provision at 48 CFR 52.215-1, the contracting officer or coordinating officer shall inquire whether the submitter is willing to accept the conditions of paragraph (e). If the submitter does not, the contracting officer or coordinating officer shall, after consultation with counsel, either return the proposal or accept it as marked. Contracting officers shall not exclude from consideration any proposals merely because they contain an authorized or agreed to notice, nor shall they be prejudiced by such notice. (d) Release of proposal information (data) before decision as to the award of a contract, or the transfer of valuable and sensitive information between competing offerors during the competitive phase of the acquisition process, would seriously disrupt the Government's decision-making process and undermine the integrity of the competitive acquisition process, thus adversely affecting the Government's ability to solicit competitive proposals and award a contract which would best meet the Government's needs and serve the public interest. Therefore, to the extent permitted by law, none of the information (data) contained in proposals, except as authorized in this subsection, is to be disclosed outside the Government before the Government's decision as to the award [[Page 10504]] of a contract. In the event an outside evaluation is to be obtained, it shall be only to the extent authorized by, and in accordance with the procedures of, this subsection. (e)(1) In order to maintain the integrity of the procurement process and to assure that the propriety of proposals will be respected, contracting officers shall assure that the following notice is affixed to each solicited proposal prior to distribution for evaluation: Government Notice for Handling Proposals This proposal shall be used and disclosed for evaluation purposes only, and a copy of this Government notice shall be applied to any reproduction or abstract thereof. Any authorized restrictive notices which the submitter places on this proposal shall also be strictly complied with. Disclosure of this proposal outside the Government for evaluation purposes shall be made only to the extent authorized by, and in accordance with, the procedures in DEAR subsection 915.207-70. (End of Notice) (2) The notice at FAR 15.609(d) for unsolicited proposals shall be affixed to a cover sheet attached to each such proposal upon receipt by DOE. Use of the notice neither alters any obligation of the Government, nor diminishes any rights in the Government to use or disclose data or information. (f)(1) Normally, evaluations of proposals shall be performed only by employees of the Department of Energy. As used in this section, ``proposals'' includes the offers in response to requests for proposals, sealed bids, program opportunity announcements, program research and development announcements, or any other method of solicitation where the review of proposals or bids is to be performed by other than peer review. In certain cases, in order to gain necessary expertise, employees of other agencies may be used in instances in which they will be available and committed during the period of evaluation. Evaluators or advisors who are not Federal employees, including employees of DOE management and operating contractors, may be used where necessary. Where such non-Federal employees are used as evaluators, they may only participate as members of technical evaluation committees. They may not serve as members of the Source Evaluation Board or equivalent board or committee. (2)(i) Pursuant to section 6002 of Pub. L. 103-355, a determination is required for every competitive procurement as to whether sufficient DOE personnel with the necessary training and capabilities are available to evaluate the proposals that will be received. This determination, discussed at FAR 37.204, shall be made in the memorandum appointing the technical evaluation committee by the Source Selection Official, in the case of Source Evaluation Board procurements, or by the Contracting Officer in all other procurements. (ii) Where it is determined such qualified personnel are not available within DOE but are available from other Federal agencies, a determination to that effect shall be made by the same officials in the same memorandum. Should such qualified personnel not be available, a determination to use non-Federal evaluators or advisors must be made in accordance with paragraph (f)(3) of this subsection. (3) The decision to employ non-Federal evaluators or advisors, including employees of DOE management and operating contractors, in Source Evaluation Board procurements must be made by the Source Selection Official with the concurrence of the Head of the Contracting Activity. In all other procurements, the decision shall be made by the senior program official or designee with the concurrence of the Head of the Contracting Activity. In a case where multiple solicitations are part of a single program and would call for the same resources for evaluation, a class determination to use non-Federal evaluators may be made by the DOE Procurement Executive. (4) Where such non-Federal evaluators or advisors are to be used, the solicitation shall contain a provision informing prospective offerors that non-Federal personnel may be used in the evaluation of proposals. (5) The nondisclosure agreement as it appears in paragraph (f)(6) of this subsection shall be signed before DOE furnishes a copy of the proposal to non-Federal evaluators or advisors, and care should be taken that the required handling notice described in paragraph (e) of this subsection is affixed to a cover sheet attached to the proposal before it is disclosed to the evaluator or advisor. In all instances, such persons will be required to comply with nondisclosure of information requirements and requirements involving Procurement Integrity, see FAR 3.104; with requirements to prevent the potential for personal conflicts of interest; or, where a non-Federal evaluator or advisor is acquired under a contract with an entity other than the individual, with requirements to prevent the potential for organizational conflicts of interest. (6) Non-Federal evaluators or advisors shall be required to sign the following agreement prior to having access to any proposal: Nondisclosure Agreement Whenever DOE furnishes a proposal for evaluation, I, the recipient, agree to use the information contained in the proposal only for DOE evaluation purposes and to treat the information obtained in confidence. This requirement for confidential treatment does not apply to information obtained from any source, including the proposer, without restriction. Any notice or restriction placed on the proposal by either DOE or the originator of the proposal shall be conspicuously affixed to any reproduction or abstract thereof and its provisions strictly complied with. Upon completion of the evaluation, it is agreed all copies of the proposal and abstracts, if any, shall be returned to the DOE office which initially furnished the proposal for evaluation. Unless authorized by the Contracting Officer, I agree that I shall not contact the originator of the proposal concerning any aspect of its elements. Recipient:------------------------------------------------------------- Date:------------------------------------------------------------------ (End of Agreement) (g) The submitter of any proposal shall be provided notice adequate to afford an opportunity to take appropriate action before release of any information (data) contained therein pursuant to a request under the Freedom of Information Act (5 U.S.C. 552); and, time permitting, the submitter should be consulted to obtain assistance in determining the eligibility of the information (data) in question as an exemption under the Act. (See also Subpart 24.2, Freedom of Information Act.) 5. Subpart 915.3, Source Selection, is added to read as follows: 915.3 Source selection. 915.305 Proposal evaluation. (DOE coverage--paragraph (d)) (d) Personnel from DOE, other Government agencies, consultants, and contractors, including those who manage or operate Government-owned facilities, may be used in the evaluation process as evaluators or advisors when their services are necessary and available. When personnel outside the Government, including those of contractors who operate or manage Government-owned facilities, are to be used as evaluators or advisors, approval and nondisclosure procedures as required by 48 CFR (DEAR) 915.207-70 shall be followed and a notice of the use of non-Federal evaluators shall be included in the solicitation. In all instances, such personnel will be required to comply with DOE conflict of interest and nondisclosure requirements. [[Page 10505]] PART 927--PATENTS, DATA, AND COPYRIGHTS 6. The authority citation for Part 927 continues to read as follows: Authority: Sec. 644 of the Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7254); Sec. 148 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2168); Federal Nonnuclear Energy Research and Development Act of 1974, Sec. 9 (42 U.S.C. 5908); Atomic Energy Act of 1954, as amended, Sec. 152 (42 U.S.C. 2182); Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1987, as amended, Sec. 3131(a), (42 U.S.C. 7261a.) 927.300 [Amended] 7. Section 927.300(b) is amended by replacing the phrase ``41 CFR 9-9.109'' as it appears in the second sentence with ``10 CFR part 784.'' 927.303 [Amended] 8. Subsection 927.303(b) is amended by inserting the phrase ``, pursuant to 10 CFR part 784,'' after ``advance waiver'' in the first sentence and after ``identified invention'' in the second sentence. 927.370 [Removed and reserved] 9. Remove and reserve section 927.370. 927.401 [Removed] 10. Section 927.401 is removed. 11. In section 927.402-1, paragraphs (c) through (g) are removed, paragraph (h) is redesignated as paragraph (c) , and paragraph (b) is revised to read as follows: 927.402-1 General. * * * * * (b) It is important to keep a clear distinction between contract requirements for the delivery of technical data and rights in technical data. The legal rights which the Government acquires in technical data in DOE contracts, other than management and operating contracts (see 970.2705) and other contracts involving the production of data necessary for the management or operation of DOE facilities or a DOE site, are set forth in Rights in Data--General clause at 48 CFR 52.227- 14 as modified in accordance with 927.409 of this subpart. In those contracts involving the production of data necessary for the management or operation of DOE facilities or a DOE site, after consultation with Patent Counsel the clause at 970.5204-82 shall be used. However, those clauses do not obtain for the Government delivery of any data whatsoever. Rather, known requirements for the technical data to be delivered by the contractor shall be set forth as part of the contract. The Additional Technical Data Requirements clause at 48 CFR 52.227-16 may be used along with the Rights in Data--General clause to enable the contracting officer to require the contractor to furnish additional technical data, the requirement for which was not known at the time of contracting. There is, however, a built-in limitation on the kind of technical data which a contractor may be required to deliver under either the contract or the Additional Technical Data Requirements clause. This limitation is found in the withholding provision of paragraph (g) of the Rights in Data--General clause at 48 CFR 52.227- 14, as amended at 48 CFR 927.409(a), which provides that the Contractor need not furnish limited rights data or restricted computer software. Unless Alternate II or III to the Rights in Data--General clause is used, it is specifically intended that the contractor may withhold limited rights data or restricted computer software even though a requirement for technical data specified in the contract or called for delivery pursuant to the Additional Technical Data Requirements clause would otherwise require the delivery of such data. 927.402-3 [Removed] 12. Subsection 927.402-3 is removed. 13. Section 927.403 is revised to read as follows: 927.403 Negotiations and deviations. Contracting officers shall contact Patent Counsel assisting their contracting activity or the Assistant General Counsel for Technology Transfer and Intellectual Property for assistance in selecting, negotiating, or approving appropriate data and copyright clauses in accordance with the procedures set forth in this subpart and 48 CFR part 27.4. In particular, contracting officers shall seek the prompt and timely advice of Patent Counsel regarding any situation not in conformance with this subpart and prescribed clauses, including the inclusion or modification of alternate paragraphs of the Rights in Data clause at 48 CFR 52.227-14, as amended at 48 CFR 927.409(a), the exclusion of specific items from said clause, the exclusion of the Additional Technical Data Requirements clause at 48 CFR 52.227-16, and the inclusion of any special provisions in a particular contract. 14. Section 927.404 is added to read as follows: 927.404 Rights in Technical Data in Subcontracts. (DOE coverage-- paragraphs (g), (k), (l), and (m).) (g)(4) Contractors are required by paragraph (d)(3) of the clause at FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1), to acquire permission from DOE to assert copyright in any computer software first produced in the performance of the contract. This requirement reflects DOE's established software distribution program, recognized at FAR 27.404(g)(2), and the Department's statutory dissemination obligations. When a contractor requests permission to assert copyright in accordance with paragraph (d)(3) of the Rights in Data--General clause as prescribed for use at 48 CFR 927.409(a)(1), Patent Counsel shall predicate its decision on the considerations reflected in paragraph (e) of the clause at 970.5204-82 Rights in Data--Technology Transfer. (k) Subcontracts. (1)(i) It is the responsibility of prime contractors and higher tier subcontractors, in meeting their obligations with respect to contract data, to obtain from their subcontractor the rights in, access to, and delivery of such data on behalf of the Government. Accordingly, subject to the policy set forth in this subpart, and subject to the approval of the contracting officer, where required, selection of appropriate technical data provisions for subcontracts is the responsibility of the prime contractors or higher-tier subcontractors. In many, but not all instances, use of the Rights in Technical Data clause of FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1), in a subcontract will provide for sufficient Government rights in and access to technical data. The inspection rights afforded in Alternate V of that clause normally should be obtained only in first-tier subcontracts having as a purpose the conduct of research, development, or demonstration work or the furnishing of supplies for which there are substantial technical data requirements as reflected in the prime contract. (ii) If a subcontractor refuses to accept technical data provisions affording rights in and access to technical data on behalf of the Government, the contractor shall so inform the contracting officer in writing and not proceed with the award of the subcontract without written authorization of the contracting officer. (iii) In prime contracts (or higher-tier subcontracts) which contain the Additional Technical Data Requirements clause at FAR 52.227-16, it is the further responsibility of the contractor (or higher-tier subcontractor) to determine whether inclusion of such [[Page 10506]] clause in a subcontract is required to satisfy technical data requirements of the prime contract (or higher-tier subcontract). (2) As is the case for DOE in its determination of technical data requirements, the Additional Technical Data Requirements clause at FAR 52.227-16 should not be used at any subcontracting tier where the technical data requirements are fully known. Normally, the clause will be used only in subcontracts having as a purpose the conduct of research, development, or demonstration work. Prime contractors and higher-tier subcontractors shall not use their power to award subcontracts as economic leverage to acquire rights in the subcontractor's limited rights data or restricted computer software for their private use, and they shall not acquire rights to limited rights data or restricted computer software on behalf of the Government for standard commercial items without the prior approval of Patent Counsel. (l) Contractor licensing. In many contracting situations the achievement of DOE's objectives would be frustrated if the Government, at the time of contracting, did not obtain on behalf of responsible third parties and itself limited license rights in and to limited rights data or restricted computer software or both necessary for the practice of subject inventions or data first produced or delivered in the performance of the contract. Where the purpose of the contract is research, development, or demonstration, contracting officers should consult with program officials and Patent Counsel to consider whether such rights should be acquired. No such rights should be obtained from a small business or non-profit organization, unless similar rights in background inventions of the small business or non-profit organization have been authorized in accordance with 35 U.S.C. 202(f). In all cases when the contractor has agreed to include a provision assuring commercial availability of background patents, consideration should be given to securing for the Government and responsible third parties at reasonable royalties and under appropriate restrictions, co-extensive license rights for data which are limited rights data and restricted computer software. When such license rights are deemed necessary, the Rights in Data-General clause at FAR 52.227-14 should be supplemented by the addition of Alternate VI as provided at 48 CFR 952.227-14. Alternate VI will normally be sufficient to cover limited rights data and restricted computer software for items and processes that were used in the contract and are necessary in order to insure widespread commercial use or practical utilization of a subject of the contract. The expression ``subject of the contract'' is intended to limit the licensing required in Alternate VI to the fields of technology specifically contemplated in the contract effort and may be replaced by a more specific statement of the fields of technology intended to be covered in the manner described in the patent clause at 48 CFR 952.227- 13 pertaining to ``Background Patents.'' Where, however, limited rights data and restricted computer software cover the main purpose or basic technology of the research, development, or demonstration effort of the contract, rather than subcomponents, products, or processes which are ancillary to the contract effort, the limitations set forth in subparagraphs (k)(1) through (k)(4) of Alternate VI of 48 CFR 952.227- 14 should be modified or deleted. Paragraph (k) of 48 CFR 952.227-14 further provides that limited rights data or restricted computer software may be specified in the contract as being excluded from or not subject to the licensing requirements thereof. This exclusion can be implemented by limiting the applicability of the provisions of paragraph (k) of 48 CFR 952.227-14 to only those classes or categories of limited rights data and restricted computer software determined as being essential for licensing. Although contractor licensing may be required under paragraph (k) of 48 CFR 952.227-14, the final resolution of questions regarding the scope of such licenses and the terms thereof, including provisions for confidentiality, and reasonable royalties, is then left to the negotiation of the parties. (m) Access to restricted data. In contracts involving access to certain categories of DOE-owned Category C-24 restricted data, as set forth in 10 CFR part 725, DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including its related data and technology. Accordingly, in contracts where access to such restricted data is to be provided to contractors, Alternate VII shall be incorporated into the rights in technical data clause of the contract. In addition, in any other types of contracting situations in which the contractor may be given access to restricted data, appropriate limitations on the use of such data must be specified. 15. Subsection 927.404-70 is added to read as follows: 927.404-70 Statutory Programs. Occasionally, Congress enacts legislation that authorizes or requires the Department to protect from public disclosure specific data first produced in the performance of the contract. Examples of such programs are ``the Metals Initiative'' and section 3001(d) of the Energy Policy Act. In such cases DOE Patent Counsel is responsible for providing the appropriate contractual provisions for protecting the data in accordance with the statute. Generally, such clauses will be based upon the Rights in Data-General clause prescribed for use at 48 CFR 927.409(a) with appropriate modifications to define and protect the ``protected data'' in accordance with the applicable statute. When contracts under such statutes are to be awarded, contracting officers must acquire from Patent Counsel the appropriate contractual provisions. Additionally, the contracting officer must consult with DOE program personnel and Patent Counsel to identify data first produced in the performance of the contract that will be recognized by the parties as protected data and what data will be made available to the public notwithstanding the statutory authority to withhold the data from public dissemination. 16. Section 927.408 is added to read as follows: 927.408 Cosponsored research and development activities. Because of the Department of Energy's statutory duties to disseminate data first produced under its contracts for research, development, and demonstration, the provisions of FAR 27.408 do not apply to cosponsored or cost shared contracts. 17. Section 927.409 is added to read as follows: 927.409 Solicitation provisions and contract clauses. (DOE coverage- paragraphs (a), (h), (s), and (t)). (a)(1) The contracting officer shall insert the clause at FAR 52.227-14, Rights in Data-General, substituting the following paragraph (a) and including the following paragraph (d)(3) and Alternate V in solicitations and contracts if it is contemplated that data will be produced, furnished, or acquired under the contract; except contracting officers are authorized to use Alternate IV rather than paragraph (d)(3) in contracts for basic or applied research with educational institutions except where software is specified for delivery or except where other special circumstances exist: (a) Definitions. [[Page 10507]] (1) Computer data bases, as used in this clause, means a collection of data in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software. (2) Computer software, as used in this clause, means (i) computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations and (ii) data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled. The term does not include computer data bases. (3) Data, as used in this clause, means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. For the purposes of this clause, the term does not include data incidental to the administration of this contract, such as financial, administrative, cost and pricing, or management information. (4) Form, fit, and function data, as used in this clause, means data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, as well as data identifying source, size, configuration, mating, and attachment characteristics, functional characteristics, and performance requirements; except that for computer software it means data identifying source, functional characteristics, and performance requirements but specifically excludes the source code, algorithm, process, formulae, and flow charts of the software. (5) Limited rights data, as used in this clause, means data, other than computer software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged. The Government's rights to use, duplicate, or disclose limited rights data are as set forth in the Limited Rights Notice of subparagraph (g)(2) of this section if included in this clause. (6) Restricted computer software, as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is published copyrighted computer software, including minor modifications of any such computer software. The Government's rights to use, duplicate, or disclose restricted computer software are as set forth in the Restricted Rights Notice of subparagraph (g)(3) of this section if included in this clause. (7) Technical data, as used in this clause, means recorded data, regardless of form or characteristic, that are of a scientific or technical nature. Technical data does not include computer software, but does include manuals and instructional materials and technical data formatted as a computer data base. (8) Unlimited rights, as used in this clause, means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, including by electronic means, and perform publicly and display publicly, in any manner, including by electronic means, and for any purpose whatsoever, and to have or permit others to do so. * * * * * (d)(3) The Contractor agrees not to assert copyright in computer software first produced in the performance of this contract without prior written permission of the DOE Patent Counsel assisting the contracting activity. When such permission is granted, the Patent Counsel shall specify appropriate terms, conditions, and submission requirements to assure utilization, dissemination, and commercialization of the data. The Contractor, when requested, shall promptly deliver to Patent Counsel a duly executed and approved instrument fully confirmatory of all rights to which the Government is entitled. (2) However, rights in data in these specific situations will be treated as described, where the contract is-- (i) For the production of special works of the type set forth in FAR 27.405(a), but the clause at FAR 52.227-14, Rights in Data-General, shall be included in the contract and made applicable to data other than special works, as appropriate (See paragraph (i) of FAR 27.409); (ii) For the acquisition of existing data works, as described in FAR 27.405(b) (See paragraph (j) of FAR 27.409); (iii) To be performed outside the United States, its possessions, and Puerto Rico, in which case agencies may prescribe different clauses (See paragraph (n) of FAR 27.409); (iv) For architect-engineer services or construction work, in which case contracting officers shall utilize the clause at FAR 52.227-17, Rights in Data-Special Works; (v) A Small Business Innovation Research contract (See paragraph (l) of FAR 27.409); (vi) For management and operation of a DOE facility (See 970.2705) or other contracts involving the production of data necessary for the management or operation of DOE facilities or a DOE site, after consultation with Patent Counsel (See 927.402-1(b)); or (vii) Awarded pursuant to a statute expressly providing authority for the protection of data first produced thereunder from disclosure or dissemination. (See 927.404-70). (h) The contracting officer shall insert the clause at FAR 52.227- 16, Additional Data Requirements, in solicitations and contracts involving experimental, developmental, research, or demonstration work (other than basic or applied research to be performed solely by a university or college where the contract amount will be $500,000 or less) unless all the requirements for data are believed to be known at the time of contracting and specified in the contract. See FAR 27.406(b). This clause may also be used in other contracts when considered appropriate. * * * * * (s) Contracting officers shall incorporate the solicitation provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all requests for proposals. (t) Contracting officers shall include the solicitation provision at 952.227-84 in all solicitations involving research, developmental, or demonstration work. Subpart 927.70--[Removed and Reserved] 18. Subpart 927.70 consisting of 927.7000 through 927.7005 is removed and reserved. PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 19. The authority citation for Part 952 continues to read as follows: Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c). 952.227-13 [Amended] 20. Subsection 952.227-13 is amended in paragraph (a) of the clause by inserting the sentence ``See 10 CFR part 784.'' at the end of the definition of ``DOE patent waiver regulations'' and in subparagraph (c)(1)(ii) introductory text of the clause by inserting ``(10 CFR part 784)'' after the phrase ``patent waiver regulations''. 21. Subsection 952.227-14 of Part 952 is added to read as follows: 952.227-14 Rights in data-general. (DOE coverage-alternates VI and VII) Alternate VI (Feb 1998) As prescribed at 48 CFR 927.404(l) insert Alternate VI to require the contractor to license data regarded as limited rights data or restricted computer software to the Government and third parties at reasonable royalties upon request by the Department of Energy. (k) Contractor Licensing. Except as may be otherwise specified in this contract as data not subject to this paragraph, the contractor agrees that upon written application by DOE, it will grant to the Government and responsible third parties, for purposes of practicing a subject of this contract, a nonexclusive license in any limited rights data or restricted computer software on terms and conditions reasonable under the circumstances including appropriate provisions for confidentiality; provided, however, the contractor shall not be obliged to license any such data if the contractor [[Page 10508]] demonstrates to the satisfaction of the Secretary of Energy or designee that: (1) Such data are not essential to the manufacture or practice of hardware designed or fabricated, or processes developed, under this contract; (2) Such data, in the form of results obtained by their use, have a commercially competitive alternate available or readily introducible from one or more other sources; (3) Such data, in the form of results obtained by their use, are being supplied by the contractor or its licensees in sufficient quantity and at reasonable prices to satisfy market needs, or the contractor or its licensees have taken effective steps or within a reasonable time are expected to take effective steps to so supply such data in the form of results obtained by their use; or (4) Such data, in the form of results obtained by their use, can be furnished by another firm skilled in the art of manufacturing items or performing processes of the same general type and character necessary to achieve the contract results. (End of Alternate) Alternate VII (Feb 1998) As prescribed in 48 CFR 927.404(m) make the change described in Alternate VII to limit the contractor's use of DOE restricted data. Insert the parenthetical phrase ``(except Restricted Data in category C-24, 10 CFR part 725, in which DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including related data and technology).'' after the phrase ``data first produced or specifically used by the Contractor in the performance of this contract'' in paragraph (b)(2)(i) of the clause at FAR 52.227-14. (End of Alternate) 952.227-73 through 952.227-83 [Removed] 22. In Part 952, subsections 952.227-73, 952.227-75, 952.227-76, 952.227-77, 952.227-78, 952.227-79, and 952.227-83 are removed. 23. Subsection 952.227-84 is revised to read as follows: 952.227-84 Notice of right to request patent waiver. Include this provision in all appropriate solicitations in accordance with 48 CFR 927.409(t). Right to Request Patent Waiver (Feb 1998) Offerors have the right to request a waiver of all or any part of the rights of the United States in inventions conceived or first actually reduced to practice in performance of the contract that may be awarded as a result of this solicitation, in advance of or within 30 days after the effective date of contracting. Even where such advance waiver is not requested or the request is denied, the contractor will have a continuing right under the contract to request a waiver of the rights of the United States in identified inventions, i.e., individual inventions conceived or first actually reduced to practice in performance of the contract. Domestic small businesses and domestic nonprofit organizations normally will receive the patent rights clause at DEAR 952.227-11 which permits the contractor to retain title to such inventions, except under contracts for management or operation of a Government-owned research and development facility or under contracts involving exceptional circumstances or intelligence activities. Therefore, small businesses and nonprofit organizations normally need not request a waiver. See the patent rights clause in the draft contract in this solicitation. See DOE's patent waiver regulations at 10 CFR part 784. (End of Provision) PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS 24. The authority citation for Part 970 continues to read: Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 2201), sec. 644 of the Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7254). 25. Section 970.2705 is revised to read as follows: 970.2705 Rights in data--general. (a) Rights in data relating to the performance of the contract and to all facilities are significant in assuring continuity of the management and operation of DOE facilities. It is crucial in assuring DOE's continuing ability to perform its statutory missions that DOE obtain rights to all data produced or specifically used by its management and operating contractors and appropriate subcontractors. In order to obtain the necessary rights in technical data, DOE contracting officers shall assure that management and operating contracts contain either the Rights in Data clause at 48 CFR 970.5204-82 or the clause at 48 CFR 970.5204-83. Selection of the appropriate clause is dependent upon whether technology transfer is a mission of the management and operating contract pursuant to the National Competitiveness Technology Transfer Act of 1989 (Pub. L. 101-189, as amended). If technology transfer is not a mission of the management and operating contractor, the clause at 48 CFR 970.5204-82 will be used. In those instances in which technology transfer is a mission, the clause at 48 CFR 970.5204- 83 will be used. (b) Employees of the management and operating contractor may not be used to assist in the preparation of a proposal or bid for the performance of services, which are similar or related to those being performed under the contract, by the contractor or its parent or affiliate organization for commercial customers unless the employee has been separated from work under the DOE contract for such period as the Head of the Contracting Activity or designee shall have directed. 26. Revise Section 970.2706 as follows: 970.2706 Rights in technical data--procedures. (a) The clauses at 48 CFR 970.5204-82 and 48 CFR 970.5204-83 both provide generally for Government ownership and for unlimited rights in the Government for all data first produced in the performance of the contract and unlimited rights in data specifically used in the performance of the contract. Both clauses provide that, subject to patent, security, and other provisions of the contract, the contractor may use contract data for its private purposes. The contractor, under either clause, must treat any data furnished by DOE or acquired from other Government agencies or private entities in the performance of their contracts in accordance with any restrictive legends contained therein. (b) Since both clauses secure access to and, if requested, delivery of technical data used in the performance of the contract, there is generally no need to use the Additional Technical Data Requirements clause at FAR 52.227-16 in the management and operating contract. (c)(1) Paragraph (d) of the clause at 48 CFR 970.5204-82 and paragraph (f) of the clause at 48 CFR 970.5204-83 provide for the inclusion in subcontracts of the Rights in Technical Data--General clause at FAR 52.227-14, with Alternate V, and modified in accordance with DEAR 927.409. Those clauses also provide for the inclusion in appropriate subcontracts Alternates II, III, and IV to the clause at FAR 52.227-14 with DOE's prior approval and the inclusion of the Additional Technical Data Requirements clause at FAR 52.227-16 in all subcontracts for research, development, or demonstration and all other subcontracts having special requirements for the production or delivery of data. In subcontracts, including subcontracts for related support services, involving the design or operation of any plants or facilities or specially designed equipment for such plants or facilities that are managed or operated by the contractor under its contract with DOE, the management and operating contractor shall use the Rights in Data-- Facilities clause at 48 CFR 970.5204-82. (2) Where, however, a subcontract is to be awarded by the management and operating contractor in connection with a program, as discussed at 927.404-70, [[Page 10509]] which provides statutory authority to protect from public disclosure, data first produced under contracts awarded pursuant to the program, contracting officers shall ensure that the M&O contractor includes in that subcontract the rights in data clause provided by DOE Patent Counsel, consistent with any accompanying guidance. (3) Management and operating contractors and higher-tier subcontractors shall not use their power to award subcontracts as economic leverage to acquire rights in a subcontractor's limited rights data or restricted computer software for their private use, nor may they acquire rights in a subcontractor's limited rights data or restricted computer software except through the use of Alternate II or III to the clause at FAR 52.227-14, respectively, without the prior approval of DOE Patent Counsel. (d)(1) Paragraphs (e) and (f) of the clause at 48 CFR 970.5204-82 and paragraphs (g) and (h) of the clause at 48 CFR 970.5204-83 provide for the contractor's granting a nonexclusive license in any limited rights data and restricted computer software specifically used in performance of the contract. (2) In certain instances the objectives of DOE would be frustrated if the Government did not obtain, at the time of contracting, limited license rights on behalf of responsible third parties and the Government in and to limited rights data or restricted computer software or both necessary for the practice of subject inventions or data first produced or delivered in the performance of the contract. This situation may arise in the performance of management and operating contracts and contracts for the management or operation of a DOE facility or site. Contracting officers should consult with program officials and Patent Counsel. No such rights should be obtained from a small business or non-profit organization, unless similar rights in background inventions of the small business or non-profit organization have been authorized in accordance with 35 U.S.C. 202(f). Where such a background license is in DOE's interest, a provision that provides substantially as Alternate VI at 48 CFR 952.227-14 should be added to the appropriate clause, 48 CFR 970.5204-82 or 48 CFR 970.5204-83. (e) The Rights in Data-Technology Transfer clause at 48 CFR 970.5204-83 differs from the clause at 48 CFR 970.5204-82 in the context of its more detailed treatment of copyright. In management and operating contracts that have technology transfer as a mission, the right to assert copyright in data first produced under the contract will be a valuable right, and commercialization of such data, including computer software, will assist the M&O contractor in advancing the technology transfer mission of the contract. The clause at 48 CFR 970.5204-83 provides for DOE approval of DOE's taking a limited copyright license for a period of five years, and, in certain rare cases, specified longer periods in order to contribute to commercialization of the data. (f) Contracting officers should consult with Patent Counsel to assure that requirements regarding royalties and conflicts of interest associated with asserting copyright in data first produced under the contract are appropriately addressed in the Technology Transfer Mission clause of the management and operating contract. Where it is not otherwise clear which DOE program funded the development of a computer software package, such as where the development was funded out of a contractor's overhead account, the DOE program which was the primary source of funding for the entire contract is deemed to have administrative responsibility. This issue may arise, among others, in the decision whether to grant the contractor permission to assert copyright. See paragraph (e) of the Rights in Data-Technology Transfer clause at 970.5204-83. (g) In management and operating contracts involving access to DOE- owned Category C-24 restricted data, as set forth in 10 CFR part 725, DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including its related restricted data and technology. Alternate I to each clause shall be used where access to Category C-24 restricted data is contemplated in the performance of a contract. 27. Section 970.2707 is added to read as follows: 970.2707 Rights in data clauses. (a) Contracting officers shall insert the clause at 48 CFR 970.5204-82, Rights in Data-Facilities, in management and operating contracts which do not contain the clause at 48 CFR 970.5204-40, Technology Transfer Mission. (b) Contracting officers shall insert the clause at 970.5204-83, Rights in Data-Technology Transfer, in management and operating contracts which contain the clause at 970.5204-40, Technology Transfer Mission. (c) In accordance with 48 CFR 970.2706(g), in contracts where access to Category C-24 restricted data, as set forth in 10 CFR part 725, is to be provided to contractors, Contracting Officers shall incorporate Alternate I of the appropriate rights in data clause prescribed in paragraph (a) or (b) of this section. 28. Subsection 970.5204-82 is added to read as follows: 970.5204-82 Rights in data--facilities. Insert the following clause in the management and operating contracts in accordance with 48 CFR 970.2707. Rights in Data--Facilities (Feb 1998) (a) Definitions. (1) Computer data bases, as used in this clause, means a collection of data in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software. (2) Computer software, as used in this clause, means (i) computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations and (ii) data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled. The term does not include computer data bases. (3) Data, as used in this clause, means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term ``data'' does not include data incidental to the administration of this contract, such as financial, administrative, cost and pricing, or management information. (4) Limited rights data, as used in this clause, means data, other than computer software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged. The Government's rights to use, duplicate, or disclose limited rights data are as set forth in the Limited Rights Notice of subparagraph (e) of this clause. (5) Restricted computer software, as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is published copyrighted computer software, including minor modifications of any such computer software. The Government's rights to use, duplicate, or disclose restricted computer software are as set forth in the Restricted Rights Notice of paragraph (f) of this clause. (6) Technical data, as used in this clause, means recorded data, regardless of form or characteristic, that are of a scientific or technical nature. Technical data does not include computer software, but does include manuals and instructional materials and technical data formatted as a computer data base. (7) Unlimited rights, as used in this clause, means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, including by electronic means, and perform publicly and display publicly, in any manner, including by electronic means, and [[Page 10510]] for any purpose whatsoever, and to have or permit others to do so. (b) Allocation of Rights. (1) The Government shall have: (i) Ownership of all technical data and computer software first produced in the performance of this Contract; (ii) Unlimited rights in technical data and computer software specifically used in the performance of this Contract, except as provided herein regarding copyright, limited rights data, or restricted computer software, or except for other data specifically protected by statute for a period of time or, where, approved by DOE, appropriate instances of the DOE Work for Others Program; (iii) The right to inspect technical data and computer software first produced or specifically used in the performance of this Contract at all reasonable times. The Contractor shall make available all necessary facilities to allow DOE personnel to perform such inspection; (iv) The right to have all technical data and computer software first produced or specifically used in the performance of this Contract delivered to the Government or otherwise disposed of by the Contractor, either as the Contracting Officer may from time to time direct during the progress of the work or in any event as the Contracting Officer shall direct upon completion or termination of this Contract. The Contractor agrees to leave a copy of such data at the facility or plant to which such data relate, and to make available for access or to deliver to the Government such data upon request by the Contracting Officer. If such data are limited rights data or restricted computer software, the rights of the Government in such data shall be governed solely by the provisions of paragraph (e) of this clause (``Rights in Limited Rights Data'') or paragraph (f) of this clause (``Rights in Restricted Computer Software''); and (v) The right to remove, cancel, correct, or ignore any markings not authorized by the terms of this Contract on any data furnished hereunder if, in response to a written inquiry by DOE concerning the propriety of the markings, the Contractor fails to respond thereto within 60 days or fails to substantiate the propriety of the markings. In either case DOE will notify the Contractor of the action taken. (2) The Contractor shall have: (i) The right to withhold limited rights data and restricted computer software unless otherwise provided in accordance with the provisions of this clause; and (ii) The right to use for its private purposes, subject to patent, security or other provisions of this Contract, data it first produces in the performance of this Contract, except for data in DOE's Uranium Enrichment Technology, including diffusion, centrifuge, and atomic vapor laser isotope separation, provided the data requirements of this Contract have been met as of the date of the private use of such data. (3) The Contractor agrees that for limited rights data or restricted computer software or other technical, business or financial data in the form of recorded information which it receives from, or is given access to by, DOE or a third party, including a DOE Contractor or subcontractor, and for technical data or computer software it first produces under this Contract which is authorized to be marked by DOE, the Contractor shall treat such data in accordance with any restrictive legend contained thereon. (c) Copyrighted Material. (1) The Contractor shall not, without prior written authorization of the Patent Counsel, assert copyright in any technical data or computer software first produced in the performance of this contract. To the extent such authorization is granted, the Government reserves for itself and others acting on its behalf, a nonexclusive, paid-up, irrevocable, world-wide license for Governmental purposes to publish, distribute, translate, duplicate, exhibit, and perform any such data copyrighted by the Contractor. (2) The Contractor agrees not to include in the technical data or computer software delivered under the contract any material copyrighted by the Contractor and not to knowingly include any material copyrighted by others without first granting or obtaining at no cost a license therein for the benefit of the Government of the same scope as set forth in paragraph (c)(1) of this clause. If the Contractor believes that such copyrighted material for which the license cannot be obtained must be included in the technical data or computer software to be delivered, rather than merely incorporated therein by reference, the Contractor shall obtain the written authorization of the Contracting Officer to include such material in the technical data or computer software prior to its delivery. (d) Subcontracting. (1) Unless otherwise directed by the Contracting Officer, the Contractor agrees to use in subcontracts in which technical data or computer software is expected to be produced or in subcontracts for supplies that contain a requirement for production or delivery of data in accordance with the policy and procedures of 48 CFR (FAR) Subpart 27.4 as supplemented by 48 CFR (DEAR) 927.401 through 927.409, the clause entitled ``Rights in Data-General'' at 48 CFR 52.227-14 modified in accordance with 927.409(a) and including Alternate V. Alternates II through IV of that clause may be included as appropriate with the prior approval of DOE Patent Counsel, and the Contractor shall not acquire rights in a subcontractor's limited rights data or restricted computer software, except through the use of Alternates II or III, respectively, without the prior approval of DOE Patent Counsel. The clause at FAR 52.227-16, Additional Data Requirements, shall be included in subcontracts in accordance with DEAR 927.409(h). The contractor shall use instead the Rights in Data-Facilities clause at DEAR 970.5204-82 in subcontracts, including subcontracts for related support services, involving the design or operation of any plants or facilities or specially designed equipment for such plants or facilities that are managed or operated under its contract with DOE. (2) It is the responsibility of the Contractor to obtain from its subcontractors technical data and computer software and rights therein, on behalf of the Government, necessary to fulfill the Contractor's obligations to the Government with respect to such data. In the event of refusal by a subcontractor to accept a clause affording the Government such rights, the Contractor shall: (i) Promptly submit written notice to the Contracting Officer setting forth reasons or the subcontractor's refusal and other pertinent information which may expedite disposition of the matter, and (ii) Not proceed with the subcontract without the written authorization of the Contracting Officer. (3) Neither the Contractor nor higher-tier subcontractors shall use their power to award subcontracts as economic leverage to acquire rights in a subcontractor's limited rights data or restricted computer software for their private use. (e) Rights in Limited Rights Data. Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up license by or for the Government, in any limited rights data of the Contractor specifically used in the performance of this Contract, provided, however, that to the extent that any limited rights data when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the ``Limited Rights Notice'' set forth. All such limited rights data shall be marked with the following ``Limited Rights Notice'': Limited Rights Notice These data contain ``limited rights data,'' furnished under Contract No. ______________ with the United States Department of Energy which may be duplicated and used by the Government with the express limitations that the ``limited rights data'' may not be disclosed outside the Government or be used for purposes of manufacture without prior permission of the Contractor, except that further disclosure or use may be made solely for the following purposes: (a) Use (except for manufacture) by support services contractors within the scope of their contracts; (b) This ``limited rights data'' may be disclosed for evaluation purposes under the restriction that the ``limited rights data'' be retained in confidence and not be further disclosed; (c) This ``limited rights data'' may be disclosed to other contractors participating in the Government's program of which this Contract is a part for information or use (except for manufacture) in connection with the work performed under their contracts and under the restriction that the ``limited rights data'' be retained in confidence and not be further disclosed; (d) This ``limited rights data'' may be used by the Government or others on its behalf for emergency repair or overhaul work under the restriction that the ``limited rights data'' be retained in confidence and not be further disclosed; and (e) Release to a foreign government, or instrumentality thereof, as the interests of the [[Page 10511]] United States Government may require, for information or evaluation, or for emergency repair or overhaul work by such government. This Notice shall be marked on any reproduction of this data in whole or in part. (End of Notice) (f) Rights in Restricted Computer Software. (1) Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up, license by or for the Government, in any restricted computer software of the Contractor specifically used in the performance of this Contract, provided, however, that to the extent that any restricted computer software when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the ``Restricted Rights Notice'' set forth below. All such restricted computer software shall be marked with the following ``Restricted Rights Notice'': Restricted Rights Notice-Long Form (a) This computer software is submitted with restricted rights under Department of Energy Contract No. ______________ . It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice. (b) This computer software may be: (1) Used or copied for use in or with the computer or computers for which it was acquired, including use at any Government installation to which such computer or computers may be transferred; (2) Used, copied for use, in a backup or replacement computer if any computer for which it was acquired is inoperative or is replaced; (3) Reproduced for safekeeping (archives) or backup purposes; (4) Modified, adapted, or combined with other computer software, provided that only the portions of the derivative software consisting of the restricted computer software are to be made subject to the same restricted rights; and (5) Disclosed to and reproduced for use by contractors under a service contract (of the type defined in FAR 37.101) in accordance with subparagraphs (b)(1) through (4) of this Notice, provided the Government makes such disclosure or reproduction subject to these restricted rights. (c) Notwithstanding the foregoing, if this computer software has been published under copyright, it is licensed to the Government, without disclosure prohibitions, with the rights set forth in the restricted rights notice above. (d) This Notice shall be marked on any reproduction of this computer software, in whole or in part. (End of Notice) (2) Where it is impractical to include the Restricted Rights Notice on restricted computer software, the following short-form Notice may be used in lieu thereof: Restricted Rights Notice--Short Form Use, reproduction, or disclosure is subject to restrictions set forth in the Long Form Notice of DOE Contract No. ______________ with (name of Contractor ). (End of Notice) (3) If the software is embedded, or if it is commercially impractical to mark it with human readable text, then the symbol R and the clause date (mo/yr), in brackets or a box, a [R-mo/yr], may be used. This will be read to mean restricted computer software, subject to the rights of the Government as described in the Long Form Notice, in effect as of the date indicated next to the symbol. The symbol shall not be used to mark human readable material. In the event this Contract contains any variation to the rights in the Long Form Notice, then the contract number must also be cited. (4) If restricted computer software is delivered with the copyright notice of 17 U.S.C. 401, the software will be presumed to be published copyrighted computer software licensed to the Government without disclosure prohibitions and with unlimited rights, unless the Contractor includes the following statement with such copyright notice ``Unpublished-rights reserved under the Copyright Laws of the United States.'' (g) Relationship to patents. Nothing contained in this clause creates or is intended to imply a license to the Government in any patent or is intended to be construed as affecting the scope of any licenses or other rights otherwise granted to the Government under any patent. (End of Clause) Alternate I (Feb 1998): In accordance with 970.2706(g), insert the phrase ``and except Restricted Data in category C-24, 10 CFR part 725, in which DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including related data and technology'' after ``laser isotope separation'' and before the comma in paragraph (b)(2)(ii) of the clause at 970.5204-83, as appropriate. (End of Alternate) 29. Subsection 970.5204-83 is added to read as follows: 970.5204-83 Rights in Data-Technology Transfer. Insert the following clause in management and operating contracts in accordance with 48 CFR 970.2707. Rights in Data-Technology Transfer (Feb 1998) (a) Definitions. (1) Computer data bases, as used in this clause, means a collection of data in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software. (2) Computer software, as used in this clause, means (i) computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations and (ii) data comprising source code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the computer program to be produced, created, or compiled. The term does not include computer data bases. (3) Data, as used in this clause, means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term ``data'' does not include data incidental to the administration of this contract, such as financial, administrative, cost and pricing, or management information. (4) Limited rights data, as used in this clause, means data, other than computer software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged. The Government's rights to use, duplicate, or disclose limited rights data are as set forth in the Limited Rights Notice of paragraph (g) of this clause. (5) Restricted computer software, as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is published copyrighted computer software, including minor modifications of any such computer software. The Government's rights to use, duplicate, or disclose restricted computer software are as set forth in the Restricted Rights Notice of subparagraph (h) of this clause. (6) Technical data, as used in this clause, means recorded data, regardless of form or characteristic, that are of a scientific or technical nature. Technical data does not include computer software, but does include manuals and instructional materials and technical data formatted as a computer data base. (7) Unlimited rights, as used in this clause, means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, including by electronic means, and perform publicly and display publicly, in any manner, including by electronic means, and for any purpose whatsoever, and to have or permit others to do so. (b) Allocation of Rights. (1) The Government shall have: (i) Ownership of all technical data and computer software first produced in the performance of this Contract; (ii) Unlimited rights in technical data and computer software specifically used in the performance of this Contract, except as provided herein regarding copyright, limited rights data, or restricted computer software, and except for data subject to the withholding provisions for protected Cooperative Research and Development Agreement (CRADA) information in accordance with Technology Transfer actions under this Contract, or other data specifically protected by statute for a period of time or, where, approved by DOE, appropriate instances of the DOE Work for Others Program; (iii) The right to inspect technical data and computer software first produced or specifically used in the performance of this Contract at all reasonable times. The [[Page 10512]] Contractor shall make available all necessary facilities to allow DOE personnel to perform such inspection; (iv) The right to have all technical data and computer software first produced or specifically used in the performance of this Contract delivered to the Government or otherwise disposed of by the Contractor, either as the Contracting Officer may from time to time direct during the progress of the work or in any event as the Contracting Officer shall direct upon completion or termination of this Contract. The Contractor agrees to leave a copy of such data at the facility or plant to which such data relate, and to make available for access or to deliver to the Government such data upon request by the Contracting Officer. If such data are limited rights data or restricted computer software. the rights of the Government in such data shall be governed solely by the provisions of paragraph (g) of this clause (``Rights in Limited Rights Data'') or paragraph (h) of this clause (``Rights in Restricted Computer Software''); and (v) The right to remove, cancel, correct, or ignore any markings not authorized by the terms of this Contract on any data furnished hereunder if, in response to a written inquiry by DOE concerning the propriety of the markings, the Contractor fails to respond thereto within 60 days or fails to substantiate the propriety of the markings. In either case DOE will notify the Contractor of the action taken. (2) The Contractor shall have: (i) The right to withhold limited rights data and restricted computer software unless otherwise provided in provisions of this clause; (ii) The right to use for its private purposes, subject to patent, security or other provisions of this Contract, data it first produces in the performance of this Contract, except for data in DOE's Uranium Enrichment Technology, including diffusion, centrifuge, and atomic vapor laser isotope separation, provided the data requirements of this Contract have been met as of the date of the private use of such data; and (iii) The right to assert copyright subsisting in scientific and technical articles as provided in paragraph (d) of this clause and the right to request permission to assert copyright subsisting in works other than scientific and technical articles as provided in paragraph (e) of this clause. (3) The Contractor agrees that for limited rights data or restricted computer software or other technical business or financial data in the form of recorded information which it receives from, or is given access to by DOE or a third party, including a DOE contractor or subcontractor, and for technical data or computer software it first produces under this Contract which is authorized to be marked by DOE, the Contractor shall treat such data in accordance with any restrictive legend contained thereon. (c) Copyright (General). (1) The Contractor agrees not to mark, register, or otherwise assert copyright in any data in a published or unpublished work, other than as set forth in paragraphs (d) and (e) of this clause. (2) Except for material to which the Contractor has obtained the right to assert copyright in accordance with either paragraph (d) or (e) of this clause, the Contractor agrees not to include in the data delivered under this Contract any material copyrighted by the Contractor and not to knowingly include any material copyrighted by others without first granting or obtaining at no cost a license therein for the benefit of the Government of the same scope as set forth in paragraph (d) of this clause. If the Contractor believes that such copyrighted material for which the license cannot be obtained must be included in the data to be delivered, rather than merely incorporated therein by reference, the Contractor shall obtain the written authorization of the Contracting Officer to include such material in the data prior to its delivery. (d) Copyrighted works (scientific and technical articles). (1) The Contractor shall have the right to assert, without prior approval of the Contracting Officer, copyright subsisting in scientific and technical articles composed under this contract or based on or containing data first produced in the performance of this Contract, and published in academic, technical or professional journals, symposia, proceedings, or similar works. When assertion of copyright is made, the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of Government sponsorship (including contract number) on the data when such data are delivered to the Government as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. The Contractor grants to the Government, and others acting on its behalf, a nonexclusive, paid-up, irrevocable, world-wide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. (2) The contractor shall mark each scientific or technical article first produced or composed under this Contract and submitted for journal publication or similar means of dissemination with a notice, similar in all material respects to the following, on the front reflecting the Government's non-exclusive, paid-up, irrevocable, world-wide license in the copyright. Notice: This manuscript has been authored by [insert the name of the Contractor] under Contract No. [insert the contract number] with the U.S. Department of Energy. The United States Government retains and the publisher, by accepting the article for publication, acknowledges that the United States Government retains a non- exclusive, paid-up, irrevocable, world-wide license to publish or reproduce the published form of this manuscript, or allow others to do so, for United States Government purposes. (End of Notice) (3) The title to the copyright of the original of unclassified graduate theses and the original of related unclassified scientific papers shall vest in the author thereof, subject to the right of DOE to retain duplicates of such documents and to use such documents for any purpose whatsoever without any claim on the part of the author or the contractor for additional compensation. (e) Copyrighted works (other than scientific and technical articles and data produced under a CRADA). The Contractor may obtain permission to assert copyright subsisting in technical data and computer software first produced by the Contractor in performance of this Contract, where the Contractor can show that commercialization would be enhanced by such copyright protection, subject to the following: (1) Contractor Request to Assert Copyright. (i) For data other than scientific and technical articles and data produced under a CRADA, the Contractor shall submit in writing to Patent Counsel its request to assert copyright in data first produced in the performance of this Contract pursuant to this clause. The right of the Contractor to copyright data first produced under a CRADA is as described in the individual CRADA. Each request by the Contractor must include: (A) The identity of the data (including any computer program) for which the Contractor requests permission to assert copyright, as well as an abstract which is descriptive of the data and is suitable for dissemination purposes, (B) The program under which it was funded, (C) Whether, to the best knowledge of the Contractor, the data is subject to an international treaty or agreement, (D) Whether the data is subject to export control, (E) A statement that the Contractor plans to commercialize the data in compliance with the clause of this contract entitled ``Technology Transfer Mission,'' within five (5) years after obtaining permission to assert copyright or, on a case-by-case basis, a specified longer period where the Contractor can demonstrate that the ability to commercialize effectively is dependent upon such longer period, and (F) For data other than computer software, a statement explaining why the assertion of copyright is necessary to enhance commercialization and is consistent with DOE's dissemination responsibilities. (ii) For data that is developed using other funding sources in addition to DOE funding, the permission to assert copyright in accordance with this clause must also be obtained by the Contractor from all other funding sources prior to the Contractor's request to Patent Counsel. The request shall include the Contractor's certification or other documentation acceptable to Patent Counsel demonstrating such permission has been obtained. (iii) Permission for the Contractor to assert copyright in excepted categories of data as determined by DOE will be expressly withheld. Such excepted categories include data whose release (A) would be detrimental to national security, i.e., involve classified information or data or sensitive information under Section 148 of the Atomic Energy Act of 1954, as amended, or are subject to export control for nonproliferation and other nuclear-related national security purposes, (B) would not enhance the appropriate transfer or dissemination and commercialization of such data, (C) would have a negative impact on U.S. industrial [[Page 10513]] competitiveness, (D) would prevent DOE from meeting its obligations under treaties and international agreements, or (E) would be detrimental to one or more of DOE's programs. Additional excepted categories may be added by the Assistant General Counsel for Technology Transfer and Intellectual Property. Where data are determined to be under export control restriction, the Contractor may obtain permission to assert copyright subject to the provisions of this clause for purposes of limited commercialization in a manner that complies with export control statutes and applicable regulations. In addition, notwithstanding any other provision of this Contract, all data developed with Naval Reactors' funding and those data that are classified fall within excepted categories. The rights of the Contractor in data are subject to the disposition of data rights in the treaties and international agreements identified under this Contract as well as those additional treaties and international agreements which DOE may from time to time identify by unilateral amendment to the Contract; such amendment listing added treaties and international agreements is effective only for data which is developed after the date such treaty or international agreement is added to this Contract. Also, the Contractor will not be permitted to assert copyright in data in the form of various technical reports generated by the Contractor under the Contract without first obtaining the advanced written permission of the Contracting Officer. (2) DOE Review and Response to Contractor's Request. The Patent Counsel shall use its best efforts to respond in writing within 90 days of receipt of a complete request by the Contractor to assert copyright in technical data and computer software pursuant to this clause. Such response shall either give or withhold DOE's permission for the Contractor to assert copyright or advise the Contractor that DOE needs additional time to respond and the reasons therefor. (3) Permission for Contractor to Assert Copyright. (i) For computer software, the Contractor shall furnish to the DOE designated, centralized software distribution and control point, the Energy Science and Technology Software Center, at the time permission to assert copyright is given under paragraph (e)(2) of this clause: (A) an abstract describing the software suitable for publication, (B) the source code for each software program, and (C) the object code and at least the minimum support documentation needed by a technically competent user to understand and use the software. The Patent Counsel, for good cause shown by the Contractor, may allow the minimum support documentation to be delivered within 60 days after permission to assert copyright is given or at such time the minimum support documentation becomes available. The Contractor acknowledges that the DOE designated software distribution and control point may provide a technical description of the software in an announcement identifying its availability from the copyright holder. (ii) Unless otherwise directed by the Contracting Officer, for data other than computer software to which the Contractor has received permission to assert copyright under paragraph (e)(2) of this clause above, the Contractor shall within sixty (60) days of obtaining such permission furnish to DOE's Office of Scientific and Technical Information (OSTI) a copy of such data as well as an abstract of the data suitable for dissemination purposes. The Contractor acknowledges that OSTI may provide an abstract of the data in an announcement to DOE, its contractors and to the public identifying its availability from the copyright holder. (iii) For a five year period or such other specified period as specifically approved by Patent Counsel beginning on the date the Contractor is given permission to assert copyright in data, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, prepare derivative works and perform publicly and display publicly, by or on behalf of the Government. Upon request, the initial period may be extended after DOE approval. The DOE approval will be based on the standard that the work is still commercially available and the market demand is being met. (iv) After the period approved by Patent Counsel for application of the limited Government license described in paragraph (e)(3)(iii) of this clause, or if, prior to the end of such period(s), the Contractor abandons commercialization activities pertaining to the data to which the Contractor has been given permission to assert copyright, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide license in such copyrighted data to reproduce, distribute copies to the public, prepare derivative works, perform publicly and display publicly, and to permit others to do so. (v) Whenever the Contractor asserts copyright in data pursuant to this paragraph (e), the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and also an acknowledgment of the Government sponsorship and license rights of paragraphs (e)(3) (iii) and (iv) of this clause. Such action shall be taken when the data are delivered to the Government, published, licensed or deposited for registration as a published work in the U.S. Copyright Office. The acknowledgment of Government sponsorship and license rights shall be as follows: Notice: These data were produced by (insert name of Contractor) under Contract No. ______________ with the Department of Energy. For (period approved by DOE Patent Counsel) from (date permission to assert copyright was obtained), the Government is granted for itself and others acting on its behalf a nonexclusive, paid-up, irrevocable worldwide license in this data to reproduce, prepare derivative works, and perform publicly and display publicly, by or on behalf of the Government. There is provision for the possible extension of the term of this license. Subsequent to that period or any extension granted, the Government is granted for itself and others acting on its behalf a nonexclusive, paid-up, irrevocable worldwide license in this data to reproduce, prepare derivative works, distribute copies to the public, perform publicly and display publicly, and to permit others to do so. The specific term of the license can be identified by inquiry made to Contractor or DOE. Neither the United States nor the United States Department of Energy, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any data , apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. (End of Notice) (vi) With respect to any data to which the Contractor has received permission to assert copyright, the DOE has the right, during the five (5) year or specified longer period approved by Patent Counsel as provided for in paragraph (e) of this clause, to request the Contractor to grant a nonexclusive, partially exclusive or exclusive license in any field of use to a responsible applicant(s) upon terms that are reasonable under the circumstances, and if the Contractor refuses such request, to grant such license itself, if the DOE determines that the Contractor has not made a satisfactory demonstration that either it or its licensee(s) is actively pursuing commercialization of the data as set forth in subparagraph (e)(1)(A) of this clause. Before licensing under this subparagraph (vi), DOE shall furnish the Contractor a written request for the Contractor to grant the stated license, and the Contractor shall be allowed thirty (30) days (or such longer period as may be authorized by the Contracting Officer for good cause shown in writing by the Contractor) after such notice to show cause why the license should not be granted. The Contractor shall have the right to appeal the decision of the DOE to grant the stated license to the Invention Licensing Appeal Board as set forth in 10 CFR 781.65--``Appeals''. (vii) No costs shall be allowable for maintenance of copyrighted data, primarily for the benefit of the Contractor and/or a licensee which exceeds DOE Program needs, except as expressly provided in writing by the Contracting Officer. The Contractor may use its net royalty income to effect such maintenance costs. (viii) At any time the Contractor abandons commercialization activities for data for which the Contractor has received permission to assert copyright in accordance with this clause, it shall advise OSTI and Patent Counsel and upon request assign the copyright to the Government so that the Government can distribute the data to the public. (4) The following notice may be placed on computer software prior to any publication and prior to the Contractor's obtaining permission from the Department of Energy to assert copyright in the computer software pursuant to paragraph (c)(3) of this section. Notice: This computer software was prepared by [insert the Contractor's name and the individual author], hereinafter the Contractor, under Contract [insert the Contract Number] with the Department of Energy (DOE). All rights in the computer [[Page 10514]] software are reserved by DOE on behalf of the United States Government and the Contractor as provided in the Contract. You are authorized to use this computer software for Governmental purposes but it is not to be released or distributed to the public. NEITHER THE GOVERNMENT NOR THE CONTRACTOR MAKES ANY WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LIABILITY FOR THE USE OF THIS SOFTWARE. This notice including this sentence must appear on any copies of this computer software. (End of Notice) (5) a similar notice can be used for data, other than computer software, upon approval of DOE Patent Counsel. (f) Subcontracting. (1) Unless otherwise directed by the Contracting Officer, the Contractor agrees to use in subcontracts in which technical data or computer software is expected to be produced or in subcontracts for supplies that contain a requirement for production or delivery of data in accordance with the policy and procedures of 48 CFR (FAR) Subpart 27.4 as supplemented by 48 CFR (DEAR) 927.401 through 927.409, the clause entitled ``Rights in Data-General'' at 48 CFR 52.227-14 modified in accordance with 927.409(a) and including Alternate V. Alternates II through IV of that clause may be included as appropriate with the prior approval of DOE Patent Counsel, and the Contractor shall not acquire rights in a subcontractor's limited rights data or restricted computer software, except through the use of Alternates II or III, respectively, without the prior approval of DOE Patent Counsel. The clause at FAR 52.227-16, Additional Data Requirements, shall be included in subcontracts in accordance with DEAR 927.409(h). The Contractor shall use instead the Rights in Data--Facilities clause at DEAR 970.5204-82 in subcontracts, including subcontracts for related support services, involving the design or operation of any plants or facilities or specially designed equipment for such plants or facilities that are managed or operated under its contract with DOE. (2) It is the responsibility of the Contractor to obtain from its subcontractors technical data and computer software and rights therein, on behalf of the Government, necessary to fulfill the Contractor's obligations to the Government with respect to such data. In the event of refusal by a subcontractor to accept a clause affording the Government such rights, the Contractor shall: (i) Promptly submit written notice to the Contracting Officer setting forth reasons or the subcontractor's refusal and other pertinent information which may expedite disposition of the matter, and (ii) Not proceed with the subcontract without the written authorization of the Contracting Officer. (3) Neither the Contractor nor higher-tier subcontractors shall use their power to award subcontracts as economic leverage to acquire rights in a subcontractor's limited rights data and restricted computer software for their private use. (g) Rights in Limited Rights Data. Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable nonexclusive, paid-up license by or for the Government, in any limited rights data of the Contractor specifically used in the performance of this Contract, provided, however, that to the extent that any limited rights data when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the ``Limited Rights Notice'' set forth below. All such limited rights data shall be marked with the following ``Limited Rights Notice:'' Limited Rights Notice These data contain ``limited rights data,'' furnished under Contract No. ______________ with the United States Department of Energy which may be duplicated and used by the Government with the express limitations that the ``limited rights data'' may not be disclosed outside the Government or be used for purposes of manufacture without prior permission of the Contractor, except that further disclosure or use may be made solely for the following purposes: (a) Use (except for manufacture) by support services contractors within the scope of their contracts; (b) This ``limited rights data'' may be disclosed for evaluation purposes under the restriction that the ``limited rights data'' be retained in confidence and not be further disclosed; (c) This ``limited rights data'' may be disclosed to other contractors participating in the Government's program of which this Contract is a part for information or use (except for manufacture) in connection with the work performed under their contracts and under the restriction that the ``limited rights data'' be retained in confidence and not be further disclosed; (d) This ``limited rights data'' may be used by the Government or others on its behalf for emergency repair or overhaul work under the restriction that the ``limited rights data'' be retained in confidence and not be further disclosed; and (e) Release to a foreign government, or instrumentality thereof, as the interests of the United States Government may require, for information or evaluation, or for emergency repair or overhaul work by such government. This Notice shall be marked on any reproduction of this data in whole or in part. (End of Notice) (h) Rights in Restricted Computer Software. (1) Except as may be otherwise specified in this Contract as data which are not subject to this paragraph, the Contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up, license by or for the Government, in any restricted computer software of the Contractor specifically used in the performance of this Contract; provided, however, that to the extent that any restricted computer software when furnished or delivered is specifically identified by the Contractor at the time of initial delivery to the Government or a representative of the Government, such data shall not be used within or outside the Government except as provided in the ``Restricted Rights Notice'' set forth below. All such restricted computer software shall be marked with the following ``Restricted Rights Notice:'' Restricted Rights Notice--Long Form (a) This computer software is submitted with restricted rights under Department of Energy Contract No. ______________ . It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice. (b) This computer software may be: (1) Used or copied for use in or with the computer or computers for which it was acquired, including use at any Government installation to which such computer or computers may be transferred; (2) Used, copied for use, in a backup or replacement computer if any computer for which it was acquired is inoperative or is replaced; (3) Reproduced for safekeeping (archives) or backup purposes; (4) Modified, adapted, or combined with other computer software, provided that only the portions of the derivative software consisting of the restricted computer software are to be made subject to the same restricted rights; and (5) Disclosed to and reproduced for use by contractors under a service contract (of the type defined in FAR 37.101) in accordance with subparagraphs (b)(1) through (4) of this Notice, provided the Government makes such disclosure or reproduction subject to these restricted rights. (c) Notwithstanding the foregoing, if this computer software has been published under copyright, it is licensed to the Government, without disclosure prohibitions, with the rights set forth in the restricted rights notice above. (d) This Notice shall be marked on any reproduction of this computer software, in whole or in part. (End of Notice) (2) Where it is impractical to include the Restricted Rights Notice on restricted computer software, the following short-form Notice may be used in lieu thereof: Restricted Rights Notice--Short Form Use, reproduction, or disclosure is subject to restrictions set forth in the Long Form Notice of DOE Contract No. ______________ with (name of Contractor). (End of Notice) (3) If the software is embedded, or if it is commercially impractical to mark it with human readable text, then the symbol R and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may be used. This will be read to mean restricted computer software, subject to the rights of the Government as described in the Long Form Notice, in effect as of the date indicated next to the symbol. The symbol shall not be used to mark human readable material. In the event this Contract contains any variation to the rights in the Long Form Notice, then the contract number must also be cited. (4) If restricted computer software is delivered with the copyright notice of 17 U.S.C. 401, the software will be presumed to [[Page 10515]] be published copyrighted computer software licensed to the Government without disclosure prohibitions and with unlimited rights, unless the Contractor includes the following statement with such copyright notice ``Unpublished-rights reserved under the Copyright Laws of the United States.'' (i) Relationship to patents. Nothing contained in this clause creates or is intended to imply a license to the Government in any patent or is intended to be construed as affecting the scope of any licenses or other rights otherwise granted to the Government under any patent. (End of Clause) Alternate I (Feb. 1998): In accordance with 970.2706(g), insert the phrase ``and except Restricted Data in category C-24, 10 CFR part 725, in which DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including related data and technology'' after ``laser isotope separation'' and before the comma in paragraph (b)(2)(ii) of the clause at 970.5204-83, as appropriate. (End of Alternate) [FR Doc. 98-5079 Filed 3-4-98; 8:45 am] BILLING CODE 6450-01-P