The Boeing Company
Docket: ASBCA 61387, ASBCA 61388
Decision date: 2022-12-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- )  
 )  
The Boeing Company ) ASBCA Nos. 61387, 61388 
 )   
Under Contract No. F33657-01-D-0026 )  
    
APPEARANCES FOR THE APPELLANT: Scott Felder, Esq. 
Scott M. McCaleb, Esq. 
Craig M. Smith, Esq. 
    Wiley Rein LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. 
   Deputy Chief Trial Attorney 
David K. Stark, Esq. 
Joel B. Lofgren, Esq. 
    Trial Attorneys 
  
ORDER OF DISMISSAL 
 
 The dispute has been settled.  The Settlement Agreement of the parties is 
attached as an exhibit to this Order.  The appeals are dismissed with prejudice. 
 
Dated:  December 6, 2022 
 
 
 
 
 
 
 
 
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed 
Services Board of Contract Appeals in ASBCA Nos. 61387, 61388, Appeal of The 
Boeing Company, rendered in conformance with the Board’s Charter. 
 
 Dated: 
 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals 

EXHIBIT 

 
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MUTUAL RELEASE AND SETTLEMENT AGREEMENT 
 
 This Mutual Release and Settlement Agreement (hereinafter “Agreement”) is entered into 
by the U.S. Department of the Air Force (hereinafter “the Air Force”) and The Boeing Company 
(hereinafter “Boeing” or “the Contractor,” and, collectively with the Air Force, the “Parties”), as 
of _____ November, 2022 (the “Effective Date”).   
 WHEREAS, in 2015, the Air Force awarded Boeing Delivery Order 0138 under Boeing’s 
Indefinite Delivery Indefinite Quantity Eagle TALON Contract No. F33657-01-D-0026 for the 
Technology Maturation and Risk Reduction phase of the Air Force’s F-15 Eagle Passive Active 
Warning Survivability System (“EPAWSS”) program (the “TMRR Contract”);  
 WHEREAS, in 2016, the Air Force awarded Bo eing a separate contract, Contract No. 
FA8634-17-C-2650, for the follow-on Engineering and Manufacturing Development phase of 
the EPAWSS program to modify existing F-15 aircraft to ensure compatibility with the new 
EPAWSS system (“the EMD Contract,” and, together with the TMRR Contract, the “EPAWSS 
Contracts”); 
 WHEREAS, Boeing submitted numerous non-co mmercial technical data deliverables to 
the Air Force under the EPAWSS Contracts with unlimited rights (the “EPAWSS Technical 
Data”); 
WHEREAS, Boeing marked the EPAWSS Technical Data with a proprietary marking to 
put third parties on notice that Boeing retained rights in the EPAWSS Technical Data (the 
“Disputed Legend”);  
 WHEREAS, on July 31, 2017, the Air Force issued a Contracting Officer’s Final 
Decision (“COFD”) for each of the EPAWSS Contracts, directing the removal of the Disputed 
Legend under DFARS 252.227-7013, R
IGHTS IN TECHNICAL DATA—N ONCOMMERCIAL ITEMS 
(NOV 1995), on the basis that the Disputed Legend was a nonconforming legend; 
 WHEREAS, Boeing appealed both COFDs to  the Armed Services Board of Contract 
Appeals (the “Board”), designated as Appeal Nos. 61387 and 61388 (the “Appeals”); 
 WHEREAS, Boeing requested entry of su mmary judgment on the question of whether 
Boeing may mark technical data in which it has given the Government unlimited rights with the 
Disputed Legend, which Boeing argued restricts the rights of third parties to use those data but 
expressly recognizes—and in no way impairs—the Government’s unlimited rights in those data; 
 WHEREAS, the Air Force opposed summary ju dgment arguing: (1) the Disputed Legend 
does impede the Air Force’s unlimited rights to the technical data; (2) allowing contractors to 
mark technical data with non-authorized technical data rights legends adds unnecessary 
confusion and uncertainty; (3) it is undisputed that Boeing has chosen to use a legend that is not 
one of the authorized legends in the Defense Federal Acquisition Regulation Supplement 
(“DFARS”); and (4) Boeing’s concerns about other intellectual property rights that might be 
implicated are unrelated to the dispute at issue; 
WHEREAS, on November 29, 2018, the Board denied Boeing’s motion for summary 
judgment, holding that the markings in DFARS 252.227-7013(f) “are the only permissible 
legends for limiting data rights and no other data rights legends are allowed[;]”  
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WHEREAS, on March 18, 2019, the Board entered a final decision denying Boeing’s 
appeals; 
 WHEREAS, Boeing appealed the denial of summary judgment and ensuing final decision 
to the Federal Circuit; 
 WHEREAS, on December 21, 2020, the Federal Ci rcuit issued a decision reversing the 
Board’s denial of summary judgment, vacating the final decision denying Boeing’s appeals, and 
remanding to the Board for further proceedings in the Appeals; 
 WHEREAS, one issue remanded to the Board was whether the Disputed Legend does or 
does not restrict the Government’s rights; and  
 WHEREAS, the Parties, to avoid the delay, expense, and uncertainty of further litigation, 
desire to settle the Appeals upon the terms and conditions set forth in this Agreement. 
 NOW, THEREFORE, in consideration of the mutual promises and agreements of the 
Parties hereto, each to the other, and other valuable consideration, the receipt and sufficiency of 
which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as 
follows: 
1. The Air Force agrees that, for the purpose of compromise, the following legend is 
acceptable for and may be affixed to the non-commercial technical data delivered under the 
EPAWSS Contracts, including the current Contract No. FA8634-21-C-2702, with unlimited 
rights to notify third parties of Boeing’s continuing ownership of such deliverables (the 
“Permissible Third-Party Legend”):   
THE DATA HEREIN ARE NONCOMMERCIAL TECHNICAL DATA DELIVERED TO THE 
U.S. GOVERNMENT WITH UNLIMITED RIGHTS 
Contract No.         
Contractor Name   The Boeing Company   
Contractor Address        
© [YYYY] Boeing.  The technical data herein are owned by The Boeing Company.  The U.S. 
Government authorizes non-U.S. Government recipients of these data to use these data for the 
performance of U.S. Government contracts or subcontracts.  Any other third-party use of these 
data requires permission from the U.S. Government or The Boeing Company. 
2. Except for the situation described below, Boeing shall be permitted, but not required, 
to remark previously delivered EPAWSS Technical Data by substituting the Permissible Third-
Party Legend for the Disputed Legend.  Regardless of whether or not Boeing remarks the 
previously delivered EPAWSS Technical Data, for the purposes of compromise, the Government 
shall accept all EPAWSS Technical Data that were rejected solely on the grounds that the data 
contained the Disputed Legend.  In consideration of this acceptance, Boeing agrees that (a) the 
Air Force may attach the Permissible Cover Page (Attachment 1) to such rejected deliverables in 
its possession and (b) to the extent Boeing re-delivers the rejected deliverables, it will attach the 
Permissible Cover Page thereto. 
2a. If any previously delivered EPAWSS Technical Data, or portion, is updated and 
redelivered to the Government by Boeing and is marked with a Disputed Legend, Boeing shall 
remark the data with the Permissible Third-Party Legend in lieu of the Disputed Legend. Boeing 

 
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shall not affix the Disputed Legend to any newly delivered or redelivered EPAWSS Technical 
Data.   
3. Boeing agrees that the Permissible Third-Party Legend does not limit in any way the 
Government’s ability to fully exercise its unlimited rights “in any manner, and for any purpose 
whatsoever, and to have or authorize others to do so.”  Boeing agrees the Government’s full 
exercise of its rights includes the right to retroactively grant permission to use. 
4. To minimize further disagreements on this subject between the Parties and to improve 
consistency of markings, the Parties agree to consider use of the Permissible Third-Party Legend 
for non-commercial, unlimited rights technical data delivered under other contracts between the 
Parties.  The Parties recognize that the Permissible Third-Party Legend may not be appropriate 
for all non-commercial technical data delivered or furnished with unlimited rights. The Parties 
will determine on a case-by-case basis whether the Permissible Third-Party Legend is 
appropriate given the nature of the data, the intended use(s) of the data, the intended 
dissemination of the data, other pre-existing agreements between the Parties regarding technical 
data markings, and any other appropriate considerations to include changes in law, regulations, 
or policy.  As such, nothing herein shall be construed to require Boeing to apply the Permissible 
Third-Party Legend to any technical data deliverables under any other contracts between the 
Parties; rather, the Parties shall memorialize any future agreement to use the Permissible Third-
Party Legend beyond the EPAWSS Contracts in one or more separate documents.   
5. For the convenience of the Parties, they will jointly request that the Board publish this 
Agreement as an addendum to its dismissal order to effectuate its dissemination to the public.  In 
no event, shall this paragraph create any monetary liabilities for the Government, or any of its 
departments, agencies, or instrumentalities. 
6.  For the purposes of this settlement, the Air Force takes no position on whether the 
Permissible Third-Party Legend does, or does not, preserve any proprietary or trade secret 
interests that Boeing might have, if any, in the underlying technical data.  The Air Force also 
takes no position on whether the Permissible Third-Party Legend does, or does not, create third-
party liability under DFARS 252.227-7025(c)(2) or other legal theories.  The Air Force reserves 
the right to adopt or take such positions in the future. 
7.   The Government shall have the unilateral right, without any duty of providing notice, 
to remove or strikethrough the Permissible Third-Party Legend in the event the Government 
authorizes the underlying data for release to the public. 
8. The Government shall reproduce the Permissible Third-Party Legend along with 
reproductions of the underlying technical data, except where such reproduction is impractical or 
would cause confusion.  However, in no event, shall any failure to reproduce, in whole or in part, 
the Permissible Third-Party Legend create any liabilities for the Government, or any of its 
departments, agencies, or instrumentalities.  Additionally, Boeing releases the Government and 
agrees that it shall not bring any causes of action against the Government, or any of its 
departments, agencies, or instrumentalities, from any claim or allegation that the Permissible 
Third-Party Legend constitutes or contains copyright management information.  
 9.  Except with regard to actions to enforce this Settlement Agreement, the Air Force 
hereby releases, acquits, forever discharges, and covenants not to sue Boeing, its affiliates, and 
their respective predecessors, successors, agents, resellers, attorneys, employees, officers, 

 
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directors, shareholders, and assigns, past and present, from any and all actions, causes of action, 
claims, demands, losses, expenses, damages, attorneys’ fees, costs, judgments, orders, and 
liabilities of whatever kind or nature, in law or equity or otherwise, and any other form of claim 
or compensation, in any way arising out of or relating to the application of the Disputed Legend 
to the EPAWSS Technical Data.  For clarity, this release does not relieve Boeing of any duty 
related to subject inventions, including the duty to disclose subject inventions, that are described 
in the underlying technical data. 
 10.  Except with regard to actions to en force this Settlement Agreement, Boeing, on 
behalf of itself, its affiliates, and their respective predecessors, successors, agents, resellers, 
attorneys, employees, officers, directors, shareholders, and assigns, past and present, hereby 
releases, acquits, forever discharges, and covenants not to sue the Government, or any of its 
departments, agencies, or instrumentalities, from any and all actions, causes of action, claims, 
demands, losses, expenses, damages, attorneys’ fees, costs, judgments, orders, and liabilities of 
whatever kind or nature, in law or equity or otherwise, and any other form of claim or 
compensation, in any way arising out of or relating to the application of the Disputed Legend to 
the EPAWSS Technical Data. 
 11. Nothing in this Agreement shall be constr ued to limit or interfere with (i) the right of 
any person to make a communication protected by law or regulation; or (ii) the right of the 
United States Department of Justice to investigate, bring suit, or prosecute violations of those 
United States laws as to which only the Department of Justice has authority to investigate, bring 
suit, prosecute, or release offenses.  
 12.  Within 60 calendar days of execution of th is Agreement, the Parties shall, by their 
counsel, execute and cause to be filed a stipulation requesting dismissal of the Appeals with 
prejudice.  Additionally, the Parties’ stipulation will jointly request that the Board publish this 
Agreement as an addendum to its dismissal order to effectuate its dissemination to the public.  
The Parties agree that nothing in this agreement is proprietary or otherwise would prevent the 
public release of this Agreement. 
 13.  Each Party shall be responsible for its own attorneys’ fees and costs in connection 
with this Agreement and the Appeals. 
 14. The signatories below represent and warrant that they each have the capacity, power, 
authority, and authorization to enter into this Agreement for the Parties hereto.  This Agreement 
is a valid and legally-binding obligation of the Parties and is fully enforceable against the Parties 
in accordance with its terms. 
 15.  This Agreement contains the entire ag reement and understanding between the Parties 
concerning the subject matter herein and supersedes and replaces all prior claims, settlement 
negotiations, and agreements, written or oral, concerning that subject matter.  All matters and 
issues raised by the parties are merged into and resolved by this Agreement.   
 16.  This Agreement shall be binding upon the Parties and may not be released, 
discharged, abandoned, supplemented, amended, changed, or modified in any manner, orally or 
otherwise, except by an instrument in writing of concurrent or subsequent date signed by a duly-
authorized representative of each of the Parties hereto.  This Agreement is binding upon and 
shall inure to the benefit of the Parties and their respective affiliates, successors, and assigns. 



 
 
Attachment 1 
 
In accordance with the Mutual Release and Settlement Agreement entered into on  
____ November, 2022 under Contract No. FA8634-17-C-2650, the Government has Unlimited 
Rights to the data herein and any conflicting legend on the data is superseded by this legend. 
 
THE DATA HEREIN ARE NONCOMMERCIAL TECHNICAL DATA DELIVERED TO THE 
U.S. GOVERNMENT WITH UNLIMITED RIGHTS 
Contract No.         
Contractor Name   The Boeing Company   
Contractor Address        
© [YYYY] Boeing.  The technical data herein are owned by The Boeing Company.  The U.S. 
Government authorizes non-U.S. Government recipients of these data to use these data for the 
performance of U.S. Government contracts or subcontracts.  Any other third-party use of these 
data requires permission from the U.S. Government or The Boeing Company. 
 
 
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