Alenia North America, Inc.
Docket: ASBCA 57935
Decision date: 2014-08-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Alenia North America, Inc. 
Under Contract No. FA8504-08-C-0007 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 57935 
Louis D. Victorino, Esq. 
Sheppard Mullin Richter & 
HamptonLLP 
Washington, DC 
Col Robert J. Preston II, USAF 
Acting Air Force Chief Trial Attorney 
Christine C. Piper, Esq. 
Skye Mathieson, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE LOPES 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
The Department of the Air Force (Air Force or government) moves for summary 
judgment on the appeal of appellant Alenia North America, Inc., (Alenia or appellant), 
alleging that the government has unlimited rights or government purpose rights to 
aircraft technical publications (technical manuals) delivered by appellant to the Air 
Force. For the reasons stated below, we deny the motion for summary judgment. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 29 September 2008, the Air Force and Alenia entered into letter Contract 
No. FA8504-08-C-0007 for Alenia to provide eighteen refurbished G222 aircraft and 
sustainment support for the Afghanistan National Army Air Corps (ANAAC). The 
letter contract was definitized as Contract No. FA8504-08-C-0007-PZ0001on23 April 
2009. (R4, tabs 1, 3, 6) 
2. Neither the letter contract nor the definitized contract contained any FAR or 
DFARS data rights clauses (R4, tabs 1, 3). Specifically, neither the letter contract nor 
the definitized contract contained the DFARS 252.227-7013, RIGHTS IN TECHNICAL 
DAT A - NONCOMMERCIAL ITEMS (Nov 1995) clause. 
3. Contract Line Item No. 0006 of the contracts, entitled "TECHNICAL SUPPORT 
(PUBLICATIONS AND MANUALS)," required delivery of a set of technical manuals 

with each aircraft, as specified in the Statement of Work (SOW) (R4, tab 1 at 5, tab 3 
at 78, tab 6at171, § 1.1.2.15.1). Section 1.1.2.15.1 of the SOW established these 
publications as item A004 of the Contract Data Requirements List (CDRL). Block 9 of 
CDRL A004, "DIST STATEMENT REQUIRED", was marked "C", with the additional 
note that distribution was to be "described in the DI-TMSS-8 l 670A." (R4, tab 2 at 46, 
tab 4 at 132) Distribution under Distribution Statement C is "Distribution authorized to 
US Government agencies and their contractors" (R4, tabs 2, 4). 
4. The SOW required Alenia to "provide rights and data for hardware ... as 
necessary to operate[,] maintain and support the G222 ... aircraft" (R4, tab 6 at 176). 
5. According to Alenia, the first aircraft and accompanying technical manuals 
were delivered in September 2009, and as of April 2012, 17 additional aircraft, each 
with a set of technical manuals had been delivered (compl. ii 16). Each technical 
manual contained the following restrictive marking: 
The content of this publication is intellectual property of 
Alenia Aeronautica S.p.A., a Finmeccanica Company. It 
must not be used for any purpose other than for which it is 
supplied. It must not be disclosed to unauthorized persons 
or reproduced without written authorization from the owner 
of the copyright. C 2009 Alenia Aeronautica S.p.A-A 
Finmeccanica Company. All rights reserved. 
(Compl. ii 14) 
6. On 20 April 2011, the Air Force contracting officer sent Alenia a letter 
objecting to the restrictive marking. The letter stated that it "serves to advise ANA 
[Alenia] that the USAF asserts Government Purpose Rights to technical data. T.O.s 
[technical manuals] were purchased for the express purpose of maintaining the G-222 
aircraft and supporting equipment and were developed for the 
USAF in support of [the] 
subject contract in accordance with DoD specifications." The letter also stated that: 
"The Government will not request 
authorization from ANA for actions taken to 
accomplish maintenance within the parameters of Government Purpose Rights. Should 
ownership of the G-222 fleet transfer, Government Purpose Rights and/or Unlimited 
Rights in Technical Data will transfer with the fleet." (R4, tab 27)1 
7. On 23 May 2011, Alenia replied to the Air Force, stating that it did not agree 
with the government's assertion of Government Purpose Rights, and provided 
1 The Board previously determined that the contracting officer's 20 April 2011 letter was 
a government claim under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. 
See Alenia North America, Inc., ASBCA No. 57935, 13 BCA ii 35,296 at 173,268. 
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background and supporting facts and argument for its view that "there is no basis by 
which the USAF can claim Government Purpose Rights." Alenia concluded that it 
considered the restrictive marking to be fully consistent with the contract. (R4, tab 28 
at 623, 628) 
8. In July and August 2011, the Air Force sent letters to Alenia, notifying Alenia 
that it required an additional 30 and 60 calendar days, respectively, to respond to what it 
characterized as Alenia's "challenge letter dated 23 May 2011" (R4, tabs 29, 30). On 
29 August 2011, Alenia replied to the Air Force, stating that, "It seems apparent from 
the parties' correspondence to date that the propriety of the Alenia data markings are in 
dispute" (R4, tab 31). 
9. On 21 October 2011, the Air Force contracting officer sent a final decision to 
Alenia, stating that 
"the Government has the right to review, verify, challenge and 
validate restrictive markings" and that 
"[t]he applicable FAR clauses, whether or not 
specified in the contract, are nonetheless included in the contract by virtue of the 
Christian Doctrine." The contracting officer stated that the government considered 
unlimited government rights to be the precise purpose for which the intellectual 
property was supplied. (R4, tab 32 at 632) The contracting officer further stated that 
the technical manuals are for maintenance and training purposes and did not exist prior 
to contract award. Further, pursuant to FAR 27.404-1 ( c ), the government has unlimited 
rights to the technical manuals because they were provided to the government for 
maintenance and training purposes. (Id. at 633) The contracting officer also stated that 
Alenia failed to identify the technical manuals as restricted data in its contract proposal, 
and that Alenia's restrictive marking on the technical manuals is in direct conflict with 
Distribution Statement C included in the contract CDRLs (id.). The contracting officer 
decided, in accordance with DF AR 252.227- 703 7, that data supplied under the contract 
shall contain only Distribution Statement C and directed Alenia to "remove their current 
restrictive statement from technical manual deliverables which have been or will be 
delivered on the subject contract" (id. at 634 ). 
10. On 13 January 2012, Alenia filed this appeal. 
DECISION 
The Parties' Arguments 
This motion for summary judgment seeks to deny Alenia's appeal because the 
government contends that, as a matter of law, it is entitled to unlimited rights or 
government purpose rights in the technical manuals (gov't mot. at 3). 
The Air Force argues that the holding in G.L. Christian & Associates v. United 
States, 312 F .2d 418 (Ct. Cl. 1963), reh 'g denied, 320 F .2d 345, cert. denied, 375 U.S. 
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954 (1963), often referred to as the Christian doctrine, and subsequent cases following 
the Christian doctrine require us to read the clause at DFARS 252.227-7013, RIGHTS IN 
TECHNICAL DAT A - NONCOMMERCIAL ITEMS (Nov 1995) (noncommercial data rights 
clause) into the contract (gov't mot. at 3). The Air Force argues that under the 
noncommercial data rights clause, the government is entitled to unlimited rights in 
technical data that constitutes form, fit and function data or that constitutes operations, 
maintenance, installation and testing (OMIT) data (id.). The Air Force believes that the 
technical manuals are form, fit and function data or OMIT data, and therefore that the 
government has unlimited rights in the technical manuals (id.). 
In the alternative, the Air Force argues that 10 U.S.C. § 2320, and DFARS 
regulations implementing this statute, provide a basis for the government having 
unlimited rights in the technical manuals, again because the manuals are form, fit and 
function data or OMIT data (gov't mot. at 3, 32). 
The Air Force further argues that it is entitled to unlimited rights in the technical 
manuals because the manuals were not properly marked in accordance with the marking 
instructions and the prescribed marking legends of the noncommercial data rights clause 
(gov't mot. at 3, 28). 
The Air Force also argues that Distribution Statement C contained in the contract 
CDRLs grants the government, at a minimum, government purpose rights in the 
technical manuals (gov't mot. at 3, 36). 
Alenia argues that the noncommercial data rights clause is not read into the 
contract by the Christian doctrine, and even if it is, the noncommercial data rights clause 
is not self-executing and does not grant the government unlimited rights in all data 
included in the technical manuals (app. resp. at 9, 10, 15, 19, 21). Alenia also argues 
that if the noncommercial data rights clause had been included in the contract, Alenia 
would have specifically negotiated license rights for the technical manuals; or 
negotiated the delivery of more limited technical manual content; or would not have 
entered into the contract (app. resp. at 7, 21, attach. 1, Schreiber decl. ~ 18, attach. 2, 
Hood decl. at 1, ~ 4). Alenia contends that ifthe contract had permitted the government 
to disclose the technical manuals to third parties not approved by Alenia, Alenia would 
have negotiated the content of the technical manual to remove sensitive data (app. resp. 
at 7). 
Alenia additionally argues that through the conduct of the parties during contract 
negotiations and performance, the Air Force and Alenia impliedly agreed to a special 
rights license that limits the government's use of the technical manuals in accordance 
with Alenia's restrictive marking on the technical manuals (app. resp. at 24). 
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Summary Judgment Standard 
Summary judgment is appropriate only where there are no genuine issues of 
material fact and the movant is entitled to judgment as a matter of law. The moving 
party bears the burden to show the absence of any issue of material fact. We resolve 
any significant doubt over factual issues, and draw all reasonable inferences, in favor of 
the party opposing summary judgment. Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390-91 (Fed. Cir. 1987). There is a genuine issue of material fact if a 
reasonable fact-finder could find in favor of the nonmovant based upon the evidence. 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); AshBritt, Inc., ASBCA 
Nos. 56145, 56250, 09-2 BCA if 34,300 at 169,434. 
As discussed below, the record is replete with genuine issues of material fact, 
which we need only address summarily in denying the motion. 
We consider whether the moving party - the Air Force - has met its burden to 
show the absence of any issue of material fact. We determine that the Air Force has not 
met its burden. 
The Air Force and Alenia disagree over whether each or all of the technical 
manuals, or segregable parts thereof, are form, fit and function data or OMIT data. The 
Air Force asserts that the aircraft manuals are, on their face, form, fit and function data 
and OMIT 
data (gov't reply br. at 3). We understand the Air Force's argument to be 
that the entireties of the technical manuals are form, fit and function data or OMIT data. 
Alenia asserts that the noncommercial data rights clause, even if read into the contract 
under the Christian doctrine, does not necessarily grant the government unlimited rights 
in all data included in the technical manuals (app. resp. at 9). Alenia argues that the 
technical manuals are not inherently form, fit and function data or OMIT data, and that 
the parties must address the data content (of the technical manuals) to define the scope 
of these terms in view of the technical manuals contents (app. resp. at 22-23). 
Therefore, the record shows that the Air Force and Alenia disagree over whether 
the technical manuals are form, fit and function data or OMIT data. Resolving any 
significant doubt over this factual issue, and drawing all reasonable inferences, in favor 
of Alenia, the Board determines that there is a genuine issue of material fact concerning 
whether each or all of the technical manuals, and segregable parts thereof, are form, fit 
and function data or OMIT data. 
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The Air Force and Alenia also disagree over whether each or all of technical 
manuals, or segregable parts thereof, were developed exclusively with government 
funds, exclusively at private expense or with mixed funding. The Air Force contracting 
officer stated that: 
[T]he USAF asserts Government Purpose Rights to 
technical data. T.O.s [technical manuals] were purchased 
for the express purpose of maintaining the G-222 aircraft 
and supporting equipment and were developed for the 
USAF in support of subject contract in accordance with 
DoD specifications .... 
. . . Should ownership of the G-222 fleet transfer, 
Government Purpose Rights and/or Unlimited Rights in 
Technical Data will transfer with the fleet .... 
(SOF ii 6) Alenia contends that the technical manuals were developed without any 
government funds, are confidential and proprietary to Alenia, and that the government is 
entitled only to the rights specified in the restrictive legend on the technical manuals 
(comp I. ii 32). According to Alenia, the technical manuals were in existence and in use 
at the time of award of the contract (app. resp. at 3, ii 2). Alenia disagrees that the Air 
Force has government purpose rights iri the technical manuals and considers its 
restrictive legend on the technical manuals to be fully consistent with the provisions of 
the contract (R4, tab 28 at 623, 628). 
Therefore, the Air Force and Alenia disagree over whether each or all of the 
technical manuals, or segregable parts thereof, were developed exclusively with 
government funds, exclusively at private expense or with mixed funding. Resolving 
any significant doubt over this factual issue, and drawing all reasonable inferences, in 
favor of Alenia, there is a genuine issue of material fact concerning whether each or all 
of the technical manuals, or segregable parts thereof, were developed exclusively with 
government funds, exclusively at private expense or with mixed funding. 
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CONCLUSION 
As there are disputed issues of material facts, the Air Force's motion for 
summary judgment is denied. 
Dated: 7 August 2014 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CRANE L. LOPES 
Administrative 
Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 57935, Appeal of Alenia 
North America, Inc., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals