Better Buying Power

Better Buying Power Understanding and Leveraging Better Buying Power Data Rights in DoD Acquisitions

Understanding and Leveraging

Data Rights in DoD Acquisitions

The DMS is to be integrated with the program:

1

Army Guide for the Preparation of a Program Product Data Management Strategy

A B C

Pre-Systems

Acquisition

Systems

Acquisition

Sustainment

Materiel SolutionAnalysisTechnologyDevelopmentEngineeringand ManufacturingDevelopmentProductionand DeploymentOperationsand Support

DMS1

GUIDE

DMS

WORKSHEET

DATA

MANAGEMENT

STRATEGY

MILESTONE

P R O G R A M S T R A T E G I E S

Technology

Development

Strategy (TDS)

Systems

Engineering

Plan (SEP)

Acquisition

Strategy (AS)

Product

Support

Strategy (PSS) 

 

Statement A.

Approved for public release; distrubution is unlimited. arrows

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Have you develped your Data Management

Strategy (DMS)?

Program Managers shall assess the data required to 

design, manufacture, and sustain the system–including 

in-house uses, as well as competitive outsourcing–

in their sustainment planning and Acquisition Strategies. • Title 10, U.S. Code, Sections 2320 and 2321

• Defense Federal Acquisition Regulation Supplement 

 (DFARS):

 – 227.71 (Rights in Technical Data)

 – 227.72 (Rights in Computer Software and

 Computer Software Documentation)

 – 2252.227-7013, -7014, -7015, -7018

• OSD Policy Memo, Clarifying Guidance Regarding 

 Open Source Software (OSS), 16 Oct 2009

• DoDI 5000.02, Operation of the Defense Acquisition 

 System, Enclosure 12, Section 9, Dec. 2008

• DoD 5010,12-M, Procedures for the Acquisition and 

 Management of Technical Data, May 1993

 (under revision)

Additional Guidance

• Army Guide for the Preparation of a Program 

 Product Data Management Strategy

• Naval Open Architecture Contract Guidebook for 

 Program Managers

• Acquiring and Enforcing the Goverment’s Rights in 

Technical Data and Computer Software Under 

 Deartment of Defense Contracts, Air Force Space 

 and Missile Systems Center

Please visit

https://acc.dau.mil/oa

for additional information and resources

Department of Defense Open Systems Architecture

Data Rights Team Department of Defense Open Systems ArchitectureData Rights Team 

Data Management and

Data Rights Resources

Laws, Regulations, Policies, and Instructions

Prepared by the

Department of Defense

Open Systems Architecture

Data Rights Team 

January, 2013

Understanding and Leveraging

Data Rights in DoD Acquisitions
Unlimited Rights (UR)

Government Purpose Rights

(GPR)

Limited Rights (LR)

Restricted Rights (RR)

Negotiated License Rights

SBIR Data Rights

Commercial TD License

Rights

Commercial CS Licenses

Noncommercial TD and CS

Noncommercial TD and CS

Noncommercial TD only

Noncommercial CS only

Any/all TD and CS–

including commercial TD

and CS

Noncommercial TD and CS

Commercial TD only

Commercial CS only

Developed exclusively at

Government expense, and

certain types of data (e.g.,

FFF, OMIT, CSD)

Developed with mixed funding

Developed exclusively at

private expense

Developed exclusively at

private expense

Mutual agreement of the 

parties; use whenever the

standard categories do not

meet both parties’ needs

All TD or CS generated under

an SBIR contract

TD related to commercial items

(developed at private expense)

Any commercial CS or CS

documentation

All uses; no restrictions

For “Government Purposes”

only; no commercial use

Emergency repair or

overhaul2

Emergency repair/overhaul;

certain service/maintenance

contracts2

Cannot release or disclose

except to Government

support contractors

All uses; no restrictions

All uses; no restrictions

Unlimited; except may not

be used for manufacture

Only one computer at a

time; minimum backup

copies; modification3

As negotiated by the parties; however, must not be less than

LR in TD and must not be less than RR in noncommercial

CS (consult with legal counsel as other limits apply)

All uses; no restrictions

Unlimited in FFF and OMIT; other rights as negotiated

As specified in the commercial license customarily

offered to the public4

Rights

Category

Applies to

These Types of TD or CS Rights Criteria Permitted Uses Withinthe Government

Permitted Uses by

Third Parties Outside

the Government1

1

 All third party use under Government’s license is subject to Government authorization. For rights categories other than UR, releases or disclosures to third parties must be

 accompanied by either the Non-Disclosure Agreement (NDA) from DFARS 227.7103-7 or must occur under a contract containing DFARS 252.227-7025. A notice requirement also

 applies to releases of LR data and RR software.

2 In addition to the footnote 1 NDA and notice requirements, all authorized Covered Government Support Contractor recipients of LR data or RR software must sign an NDA directly with

 the owner of the data/software, unless the direct-NDA requirement is waived by the owner.

3 See DFARS 252.227-7014(a)(15) (March 2011) (or (a)(14) in previous versions) for more information.

4 Such licenses must be consistent with Federal procurement law and satisfy user needs. Understanding Intellectual Property Rights in DoD Acquisitions

 

 

 

 

 

 

 

 

 

 

 

 

Better Buying Power Understanding and Leveraging

Data Rights in DoD Acquisitions Better Buying Power Understanding and Leveraging Better Buying Power Data Rights in DoD Acquisitions

Understanding and Leveraging

Data Rights in DoD Acquisitions

Department of Defense Open Systems Architecture

Data Rights Team Department of Defense Open Systems ArchitectureData Rights Team Department of Defense Open Systems ArchitectureData Rights Team 

Data Delivery Requirements

The DFARS clauses do not require delivery of TD or CS–the Government must include specific delivery requirements 

in each contract. For TD, it is important to distinguish detailed design data from less detailed operation or maintenance 

data. For CS, it is important to distinguish executable code from source code and other design data.

Consider a priced option for contingency-based data delivery or data rights needs.

Data Rights Granted to the Government

The Government’s license rights to a contractor’s TD and CS generally depend upon the extent to which the 

Government funded the development of the technology, whether the technology is commercial or noncommercial, and 

any negotiations for mutually agreeable “special” license agreements. Some types of data qualify for Unlimited Rights 

regardless of development funding, such as “form, fit, and function data, ” (FFF) and data necessary for operation, 

maintenance, installation, and training (OMIT) purposes.

“Data Rights” → Rights in Technical Data (TD)

and Computer Software (CS)

 “Data Rights” is a shorthand way to refer to the

Government’s license rights in two major categories

of valuable intellectual property:

• Technical Data (TD) includes any recorded

 information of a scientific or technical nature (e.g., 

 product design or maintenance data, computer 

 databases, and computer software documentation 

 (CSD)).

• Computer software (CS) includes executable 

 code, source code, code listings, design details, 

 processes, flow charts, and related material.

Anticipating the Need for Data and Data Rights

 A Program Manager must ensure that all TD and CS

and related license rights required for procurement

and sustainment of a system are available throughout 

the system’s life cycle.

• Sustainment activities include reprocurement, 

 maintenance, repair, modifications or interfacing/ 

 interoperability activities, and upgrades or 

 technology insertion.

• Consider a Priced Option for any data deliverables 

 or data rights that you may need in the future, but 

 did not order up front.

Identify and Resolve Data and Data Rights 

Issues Prior to Contract Award

 Identify and resolve data delivery or data rights issues 

prior to contract award, by:

• Requiring Offerors to assert all restrictions on 

deliverable TD and CS–both commercial and 

noncommercial–up front, in their proposals;

• Evaluating the data and data rights packages 

being offered;

• Negotiating for mutually agreeable specialized 

license rights whenever the standard license 

categories do not meet both parties’ needs; and

• Challenging asserted restrictions if necessary to 

 account for Government investments.