The Boeing Company
Docket: ASBCA 61387, ASBCA 61388
Decision date: 2018-11-28

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
The Boeing Company ) 
) 
Under Contract Nos. F33657-0I-D-0026 ) 
FA8634-l 7-C-2650 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61387, 61388 
Scott M. McCaleb, Esq. 
Scott A. Felder, Esq. 
Craig Smith, Esq. 
Wiley Rein LLP 
Washington, DC 
Jeffrey P. Hildebrant, Esq. 
Air Force Deputy Chief Trial Attorney 
Chun-I Chiang, Esq. 
David K. Stark, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 
ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT 
Appellant, The Boeing Company (Boeing), moves for summary judgment, 
seeking the Board's interpretation as to whether the above-captioned contracts allow it 
to place certain marking legends on technical data. We deny the motion. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
Unless noted otherwise, the following facts are drawn from appellant's 
statement of undisputed material facts (ASUMF), with which the government has 
concurred (gov't opp'n at 1). 
On September 30, 2015, the Air Force awarded Boeing Delivery Order 0138 on 
Contract No. F33657-01-D-0026 to provide certain work under the F-15 Eagle 
Passive/Active Warning Survivability System (EPAWSS) program (R4, tab 9). The 
contract incorporated the November 1995 version of the Department of Defense Federal 
Acquisition Regulation Supplement (DFARS) clause 252.227-7013, RIGHTS IN 
TECHNICAL DATA-NONCOMMERCIAL ITEMS (Nov 1995) (R4, tab 3 at 37; ASUMF at 1). 
On November 3, 2016, the Air Force awarded Boeing Contract No. FA8634-l 7-C-2650 
for additional work under the EPA WSS program. The contract incorporated the February 
2014 version ofDFARS 252.227-7013. (R4, tab 18 at 1, 37; ASUMF at 1) 

Both contracts require Boeing to deliver technical data with unlimited 
government rights in that data (ASUMF at 1 ). The government concedes that Boeing 
retained ownership of the data (gov't opp'n at 15). 
During the course of performing the contracts, Boeing has submitted numerous 
"technical data deliverables" to the government (more than 50 according to Boeing's 
complaint) but the government has rejected or disapproved them, contending that the 
marking legends placed by Boeing on the data are nonconforming (ASUMF at 1, 3). 
What the parties refer to as Boeing's "current" legend is: 
NON-US GOVERNMENT NOTICE 
BOEING PROPRIETARY 
THIRD PARTY DISCLOSURE REQUIRES WRl1TEN APPROVAL 
COPYRIGHT 2016 BOEING 
UNPUBLISHED WORK - ALL RIGHTS RESERVED 
NON-US GOVERNMENT ENTITIES MAY USE ANO DISCLOSE ONLY AS 
PERMITTED IN WRITING BY BOEING OR BY THE US GOVERNMENT 
Current Boeing Marking Example 
A second legend that Boeing proposed to resolve the dispute prior to the contracting 
officer's final decision is as follows: 
UNLIMITED RIGHTS MARKING FOR THE HEADER ANO MEDIA OF THf COPY OF NON-fOMMfRC1A1 
COMPUTER SOFTWARE AND FIRST PAGE Of NON-COMM£RCIAL T[CHNICAL DATA HINC. 
OHI\IERE:O WITH UNLIMITED HIGH TS UNDER DOD PROCUREME"ff CONT RAUS 
i CONTAINS TECHNICAL DATA/COMPUTER SOFTWARE DELIVERED TO THE 
J U.S. GOVERNMENT WITH UNLIMITED RIGHTS 
' i 
I ContrAcl N, 
I ContraGtor N:rrc 
I Contractor Address 
I 
I 
[Such portions identified by SPECIFY HOW <Y [All PORTIONS]. 
Copynght [Year of Creation] RnP1ng anct,or its .SLpphiv as ~ppt1rahlP Nrw-: I -~ 
l Gcvernricnt rec;i:;ients may use Jnd disclose onl, as .:uthonzcd by Bocin,;:i er the 
' US Go,crnmcri~ 
Finally, the "current" legend from Boeing's subcontractor, BAE, is: 
2 

DAT A RIGHTS • Tnts Cini IS SUl>mltted to au part»s. exclUdlng tne us ~ment Wflh 
llmled nghts under the contrac1 $\Ol"flkwd tiereuldef. tn the went ttus documfflt/drawtng or 
porUon• ~. are IUbHquenUy required to be delt.,.red to the US Qovwnment ,n 
accordanee with the contrllct submitted ..-.Undw, uc:ept • oth11rwiM nottd. BAE Systems 
hN'&by gt'•nta ff't• UI ~vornmom full unlltntt.d rlgllt& fM :tit data and oornptJtDr ~ofltwatn 
contained h@rlin for U!~ on tl11!1 contract for till! program. Othl!lrw~f. u~ or tntro party 
<frscl011.Ke requires wnnen 1pprove1 1r0rn BAe Systems. test 
Current BAE Drawing Marking Example 
(R4, tab 1 at 6-7, tab 2 at 6-7; ASUMF at 2-3) 
On July 31, 2017, the contracting officer issued a final decision for each contract, 
in which she reproduced the legends above.* The contracting officer concluded that the 
legends were not authorized by the contracts. She contended that the only authorized 
legends are those found in DFARS 252.227-7013(f), namely, those for Government 
Purpose Rights, Limited Rights, and Specifically Negotiated Rights and that none of these 
include a propriety/third party notice. (R4, tab 1 at 3-4, tab 2 at 3-5; ASUMF at 2-3) 
The contracting officer concluded that, because the legends did not conform with 
DFARS 252.227-7013(f), Boeing must remove them at its own expense and re-submit 
the data (R4, tab 1 at 4, tab 2 at 5; ASUMF at 3). 
Boeing timely appealed the contracting officer's final decisions on October 27, 2017. 
DECISION 
Standard of Review 
Summary judgment is appropriate when there is no genuine issue of material fact 
and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 247-48 (1986). When considering a motion for summary 
judgment, the Board's function is not to weigh the evidence and determine the truth of 
the matter but to determine whether there is a genuine issue for trial. Id. at 249. We are 
required to view the record in the light most favorable to the nonmoving party, in this 
case the government. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 
587 (1986). 
* With respect to the second legend reproduced above, the final decisions also included 
similar language for a footer to be used on subsequent pages after the initial 
marking (R4, tab 1 at 7, tab 2 at 7). 
3 

The Rights in Technical Data Clause 
The Department of Defense has promulgated various regulations governing rights 
in technical data as a result of a statutory directive by Congress to protect the rights of 
both the government and contractors. Congress specified that the regulations should 
"define the legitimate interest of the United States and of a contractor or subcontractor in 
technical data pertaining to an item or process." l O U.S.C. § 2320(a)(l). Congress 
further specified that the regulations "may not impair any right of the United States or of 
any contractor or subcontractor with respect to patents or copyrights or any other right in 
technical data otherwise established by law." Id. 
The regulations promulgated by the Department of Defense include 
DFARS 227.7103-6, Contract clauses, which provides: "Use the clause at 252.227-7013, 
Rights in Technical Data-Noncommercial Items, in solicitations and contracts when the 
successful offeror(s) will be required to deliver to the Government technical data pertaining 
to noncommercial items." DFARS 227.7103-6(a). 
As described above, the contracts incorporated the 1995 and 2014 versions of 
DF ARS 252.227-7013. Neither party has identified any relevant differences between the 
1995 and 2014 versions. We follow the parties' practice of citing to the 2014 version. 
This clause has a number of provisions that are relevant to this dispute. First. it 
defines "Technical data" as: 
[R]ecorded information, regardless of the form or method 
of the recording, of a scientific or technical nature 
(including computer software documentation). The term 
does not include computer software or data incidental to 
contract administration, such as financial and/or 
management information. 
DFARS 252.227.7013(a)(l5). 
With respect to the contracts' unlimited data rights provisions, the clause 
provides: 
Unlimited rights means rights to use, modify, reproduce, 
perform, display, release, or disclose technical data in 
whole or in part, in any manner, and for any purpose 
whatsoever, and to have or authorize others to do so. 
4 

DFARS 252.227-7013(a)(l6). The government receives unlimited rights when, 
among other things, the item, component or process has been developed exclusively 
with government funds. DFARS 252.227-7013(b)(l)(i). 
The license granted to the government is nonexclusive. DFARS 252.227-7013(b). 
The contractor retains all rights not granted to the government. DFARS 252.227-7013(c). 
The clause specifies how the contractor should mark the data: 
Marking requirements. The Contractor, and its 
subcontractors or suppliers, may only assert restrictions on 
the Government's rights to use, modify, reproduce, release, 
perform, display, or disclose technical data to be delivered 
under this contract by marking the deliverable data subject 
to restriction.... [O]nly the following legends are 
authorized under this contract: the government purpose 
rights legend at paragraph (t)(2) of this clause; the limited 
rights legend at paragraph (t)(3) of this clause; or the 
special license rights legend at paragraph (f)(4) of this 
clause; and/or a notice of copyright as prescribed under 
17 U.S.C. 401 or 402. 
DFARS 252.227-7013(f). 
Finally, the clause defines and specifies procedures for managing nonconforming 
technical data markings: 
Nonconforming technical data markings. A 
nonconforming marking is a marking placed on technical 
data delivered or otherwise furnished to the Government 
under this contract that is not in the format authorized by 
this contract.... If the Contracting Officer notifies the 
Contractor of a nonconforming marking and the Contractor 
fails to remove or correct such marking within sixty (60) 
days, the Government may ignore or, at the Contractor's 
expense, remove or correct any nonconforming marking. 
DFARS 252.227-7013(h)(2). 
Boeing's Contentions 
Neither party has cited precedent where a court or board has addressed marking 
legends comparable to Boeing's. We begin by considering whether declaratory relief 
5 

is appropriate in this appeal, including whether there is a live dispute and whether a 
declaration will resolve that dispute. Alliant Techsystems, Inc. v. United States, 178 
F.3d 1260, 1271 (Fed. Cir. 1999). 
Boeing contends that the DF ARS clauses, as interpreted by the Air Force, fail to 
protect its intellectual property rights as required by 10 U.S.C. § 2320 (app. br. at 14 ). 
However, it does not dwell on what those rights are or how they would be protected by 
these legends. It contends that if it cannot place the legends on the data it "will be 
impaired in exercising its right to restrict who else may use or disclose technical data 
and under what circumstances they may do so." It then quotes the Supreme Court's 
opinion in Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011 (1984), for the 
proposition that "[w]ith respect to a trade secret, the right to exclude others is central to 
the very definition of the property interest." (App. br. at 14) Two pages later Boeing 
states that it "maintains that it has trade secret and other proprietary rights in the 
technical data delivered under the Contracts" (id. at 16). In its reply brief, Boeing states 
that markings like those under appeal "allow contractors to protect the technical data's 
nonpublic (and potential trade secret) status" and that "technical data do not lose their 
trade secret status when delivered with unlimited rights" ( app. reply br. at 11 ). Thus, 
Boeing seems to be focused on trade secrets. 
The Supreme Court's opinion in Monsanto actually casts significant doubt on 
Boeing's trade secret theory because the Court also stated that "[i]f an individual 
discloses his trade secret to others who are under no obligation to protect the 
confidentiality of the information, or otherwise publicly discloses the secret, his 
property right is extinguished." Monsanto, 467 U.S. at 1002; see Conax Florida Corp. 
v. United States, 824 F.2d 1124, 1128-30 (D.C. Cir. 1987) (contracting officer's 
reasonable determination that Navy received unlimited data rights meant that 
contractor had no trade secret to protect). As specified in the data rights clause, the 
government's unlimited rights allow it not only to "use, modify, reproduce, perform 
[or] display" the data but also to "release, or disclose" it and authorize third parties to 
do these same things. DFARS 252.227-7013(a)(l6). Thus, the government is under 
no obligation to protect the confidentiality of the data and can give it to whomever it 
chooses or even publish it on the Department's website. Monsanto and Conax Florida 
provide that Boeing does not possess a trade secret in such technical data. 
This leads to the question of whether Boeing has some other intellectual 
property right besides trade secrets. As stated, DFARS 252.227-7013(t) authorizes "a 
notice of copyright as prescribed under 17 U.S.C. 401 or 402" and, presumably for that 
reason, there is no dispute about Boeing placing a notice of copyright on the data. 
Patents are mentioned fleetingly in the parties' briefs but it suffices to say that the 
government has represented without objection that Boeing has not identified any 
patent at issue (gov't opp'n at 14), and it is not clear why the above legends would be 
necessary to protect patent rights. 
6 

The best that can be said for Boeing's position is that the government might not 
publish the data or provide it to anyone and that Boeing might still have something 
worth protecting, notwithstanding the grant of unlimited rights. But how this 
conjecture translates into a legally-cognizable property right is unclear. Until we 
identify with some precision the nature of Boeing's property right ( if any) we cannot 
determine if the Air Force is complying with the congressional mandate that it not 
"impair any right.. .of any contractor or subcontractor with respect to patents or 
copyrights or any other right in technical data otherwise established by law.'' 
10 U.S.C. § 2320(a)(l). Accordingly, whether the Air Force is in compliance with the 
statute will have to be resolved at a later time. 
The Government's Contentions 
The government contends it will be harmed by the proposed legends but it is 
difficult for us to assess how real its concerns are. As stated above, the government 
concurred with Boeing's proposed facts, and did not propose additional facts of its 
own. Somewhat confusingly, however, it states in the penultimate sentence of its brief 
that "to the extent Boeing disputes the Air Force's evidence that Boeing's proposed 
markings create a burden on the Government, which impedes the Government's 
unlimited rights, that dispute concerns a material fact and, therefore, precludes 
granting Boeing's motion." (Gov't opp'n at 15-16) 
In support of this contention, the Air Force submits a declaration from 
Michael E. Wills, a first-line supervisor in the Product Data Acquisition team at 
Robins Air Force Base, Georgia. Among other things, Mr. Wills testifies that: 
Deviations from the standard DF ARS marking legends, 
entailing nonconforming markings on unlimited rights 
technical data, can cause downstream confusion; 
non-standard legends can be confusing to programs and 
third parties. This confusion engenders added costs, time, 
and resources as programs and third parties try to 
determine what rights the Air Force has received. 
Members of my team and I have been involved in disputes 
with contractors concerning marking legends that lasted for 
up to three years. 
(Gov't opp'n, ex. 1, Wills Deel. ,i 11) 
Mr. Wills does not state with specificity what he finds confusing about 
Boeing's proposed marking legends, nor does he state whether he has encountered 
similar markings. While there are some differences in the language of the three 
markings at issue, Boeing's compromise legend clearly states that the government has 
7 

unlimited rights and can grant authority to others so it is not clear what type of 
"downstream confusion" this might cause. While one might think that a legend stating 
that the government has unlimited rights might be preferable to one that is silent on 
this issue, that apparently is not the Air Force's position. 
The Air Force further contends that '"[a]uthorizing' a third party to. use and 
distribute the data, as Boeing purports to require, would be highly burdensome on the 
Government and, therefore [would be] inconsistent with its unlimited rights" (gov't opp'n 
at 3-4). Despite this contention, the clause speaks of this very thing, defining unlimited 
rights to mean "rights to use, modify ... and to have or authorize others to do so." 
DFARS 252.227-7013(a)(l6) (emphasis added). The Air Force does not explain why it 
would be burdensome to do what a government-drafted clause expressly contemplates. 
In sum, while only Boeing has filed a motion for summary judgment, neither 
party has convinced us that it has a whole lot to lose from an adverse ruling. But the 
contracting officer has directed Boeing to remove the legends and it would appear that 
doing so would require Boeing to incur some costs, however minor. Thus, we conclude 
that there is a live dispute for us to resolve. See Alliant Techsystems, 178 F .3d at 1271. 
The Air Force Correctly Interpreted the Contract Language 
When interpreting a contract, "the language of [the] contract must be given that 
meaning that would be derived from the contract by a reasonably intelligent person 
acquainted with the contemporaneous circumstances." Metric Constructors, Inc. v. 
NASA, 169 F.3d 747, 752 (Fed. Cir. 1999) (quoting Hol-Gar Mfg. Corp. v. United 
States, 351 F.2d 972,975 (Ct. Cl. 1965)). We construe a contract "to effectuate its spirit 
and purpose giving reasonable meaning to all parts of the contract." LAI Servs., Inc. v. 
Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009) (quoting Hercules, Inc. v. United States, 
292 F.3d 1378, 1381 (Fed. Cir. 2002)). Contract terms that are plain and unambiguous 
must be given their plain and ordinary meaning and the Board may not resort to extrinsic 
evidence to interpret them. McAbee Construction, Inc. v. United States, 97 F.3d 143 L 
143 5 (Fed. Cir. 1996). 
Although we expressed uncertainty over the harm claimed by the government 
as a result of the markings, we also recognize that the government is generally entitled 
to strict compliance with its plans and specifications. TEG-Paradigm Environmental, 
Inc. v. United States, 465 F.3d 1329, 1342 (Fed. Cir. 2006). This is so even though it 
might be contrary to customary practice or the contractor's belief that the requirements. 
are wasteful or imprudent. R.B. Wright Construction Co. v. United States, 919 F .2d 
1569, 1572 (Fed. Cir. 1990). 
Much of the parties' dispute centers upon their competing interpretations of the 
two sentences in DFARS 252.227-7013(f) set forth above that specify the technical 
8 

data marking requirements. Boeing focuses on the first sentence, which provides that 
"[t]he Contractor ... may only assert restrictions on the Government's rights to use, 
modify, reproduce, release, perform, display, or disclose technical data to be delivered 
under this contract by marking the deliverable data subject to restriction." In Boeing's 
view, because it (Boeing) is not asserting restrictions on the government's right to use, 
modify, etc., this paragraph has no bearing on the dispute. 
The government focuses on the second sentence, which provides "only the 
following legends are authorized under this contract: the government purpose rights 
legend ... ; the limited rights legend ... ; or the special license rights legend ... ; and/or a notice 
of copyright as prescribed under 17 U.S.C. 40 l or 402." DFARS 252.227-70 l 3(f). The 
government contends that these are the only allowable legends concerning data rights. 
Boeing counters that this sentence should be read in light of the previous sentence to 
mean that these are the only permitted legends if the contractor seeks to limit the 
government's rights. 
We agree with the government. The sentence that the government relies on 
speaks not only of legends that limit the government's rights but also a notice of 
copyright that would, in fact, provide notice to or limit the actions of third parties. 
Thus, we read the sentence to mean that these are the only permissible legends for 
limiting data rights and no other data rights legends are allowed. 
Our interpretation is confirmed by the section of the clause addressing 
nonconforming technical data markings. DFARS 252.227- 70 l 3(h)(2) defines 
nonconforming markings as those "not in the format authorized by this contract." 
Accordingly, any legend not specified in the contract is nonconforming. Because there is 
no third party marking legend of the type proposed by Boeing, it falls under the definition of 
nonconforming. This is buttressed further by a separate regulation, DF ARS, 227. 7103-12. 
Government right to establish conformity of markings, which delivers the message with 
slightly more clarity. It provides that "[a]uthorized markings are identified in the clause at 
252.227-7013, Rights in Technical Data-Noncommercial Items. All other markings are 
nonconforming markings." DFARS 227.7103-12(a)(l) (emphasis added). While this 
regulation does not appear in the contracts, contractors are charged with constructive notice 
of pertinent regulations. Hunt Constr. Group, Inc. v. United States, 281 F.3d 1369, 1372-73 
(Fed. Cir. 2002) ("Although Hunt claims to have been unaware of section [FAR] 29.303(a) 
when it prepared its bid, and this section apparently was not included in the contract, it is 
not unfair to charge Hunt with constructive notice of pertinent regulations published in the 
Federal Register."). 
The Rights in Technical Data-Noncommercial Items clause has been the 
subject of critical commentary. See Postscript: Protecting Unlimited Rights Data, 
22 No. 5 NASH & CIBINIC REP. ,J 28; Protecting Unlimited Rights Data: The 
Inadequate Clauses, 18 No. 5 NASH & CIBINIC REP. ,i 21. The commentators lament 
9 

the clause's prohibition on markings such as those at issue, and suggest that 
contractors attempt to negotiate a special contract provision allowing them; they also 
propose amendments to the FAR and DF ARS. While their opinion is not binding on 
us, we share their interpretation of the contract language. 
Moreover, the contract language, the DFARS regulation cited above (227.7103-12). 
and this critical commentary demonstrate that there were ample warning signs for Boeing. 
A prudent contractor would have sought clarification prior to entering into the contract. if 
it interpreted the clause differently. See, e.g., Baldridge v. GPO, 513 F. App'x 965,968 
(Fed. Cir. 2013) (contract was unambiguous; crediting contractor's interpretation would 
only create a glaring ambiguity triggering the duty to clarify, which it failed to do). 
Finally, Boeing contends that DFARS 252.227-7013(f) cannot identify all 
permissible markings because other statutes or regulations provide for other markings, 
such as International Traffic in Arms Regulations (IT AR) 22 C.F .R. ch. I, subch. M 
(R4, tab 3 at 27-28; app. hr. at 12). We disagree because the existence of potential 
markings on other issues does not speak to the range of permissible markings 
concerning data rights. 
In summary, we agree with the Air Force that under the pertinent DFARS clauses. 
Boeing's marking legends are nonconforming. However, the issue of whether those 
clauses adequately protect Boeing's property rights as required by 10 U.S.C. § 2320(a)(l) 
cannot be resolved based on the current briefs and the record developed to date. 
CONCLUSION 
We deny Boeing's motion. The parties shall submit a joint status report within 
30 days proposing further proceedings. 
Dated: November 28, 2018 
(Signatures continued) 
10 
·'A~1\D~ 
MICHAEL N. O'CONNELL 
· Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
-~~.:~/-I-----r,·~--------U~T-Y_,_, -------------­
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 Nos. 61387, 61388, Appeals of 
The Boeing Company, rendered in conformance with the Board's Charter. 
Dated: 
11 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals