Part 227 - PATENTS, DATA, AND

COPYRIGHTS

Subpart 227.3 - PATENT RIGHTS UNDER GOVERNMENT CONTRACTS

227.303 Contract clauses.

227.304 Procedures.

227.304-1 General.

Subpart 227.4 - RIGHTS IN DATA AND COPYRIGHTS

227.400 Scope of subpart.

Subpart 227.6 - FOREIGN LICENSE AND TECHNICAL ASSISTANCE AGREEMENTS

227.670 Scope.

227.671 General.

227.672 Policy.

227.673 Foreign license and technical assistance agreements between the Government and

domestic concerns.

227.674 Supply contracts between the Government and a foreign government or concern.

227.675 Foreign license and technical assistance agreements between a domestic concern and a

foreign government or concern.

227.675-1 International Traffic in Arms Regulations.

227.675-2 Review of agreements.

227.676 Foreign patent interchange agreements.

Subpart 227.70 - INFRINGEMENT CLAIMS, LICENSES, AND ASSIGNMENTS

227.7000 Scope.

227.7001 Policy.

227.7002 Statutes pertaining to administrative claims of infringement.

227.7003 Claims for copyright infringement.

227.7004 Requirements for filing an administrative claim for patent infringement.

227.7005 Indirect notice of patent infringement claims.

227.7006 Investigation and administrative disposition of claims.
227.7007 Notification and disclosure to claimants.

227.7008 Settlement of indemnified claims.

227.7009 Patent releases, license agreements, and assignments.

227.7009-1 Required clauses.

227.7009-2 Clauses to be used when applicable.

227.7009-3 Additional clauses—contracts except running royalty contracts.

227.7009-4 Additional clauses—contracts providing for payment of a running royalty.

227.7010 Assignments.

227.7011 Procurement of rights in inventions, patents, and copyrights.

227.7012 Contract format.

227.7013 Recordation.

Subpart 227.71 - TECHNICAL DATA AND ASSOCIATED RIGHTS

227.7100 Scope of subpart.

227.7101 Definitions.

227.7102 Commercial products, commercial, components, commercial services, or commercial

processes.

227.7102-1 Policy.

227.7102-2 Rights in technical data.

227.7102-3 Government right to review, verify, challenge, and validate asserted restrictions.

227.7102-4 Contract clauses.

227.7103 Other than commercial products, commercial services, or commercial processes.

227.7103-1 Policy.

227.7103-2 Acquisition of technical data.

227.7103-3 Early identification of technical data to be furnished to the Government with restrictions

on use, reproduction, or disclosure.

227.7103-4 License rights.

227.7103-5 Government rights.

227.7103-6 Contract clauses.

227.7103-7 Use and non-disclosure agreement.
227.7103-8 Deferred delivery and deferred ordering of technical data.

227.7103-9 Copyright.

227.7103-10 Contractor identification and marking of technical data to be furnished with restrictive

markings.

227.7103-11 Contractor procedures and records.

227.7103-12 Government right to establish conformity of markings.

227.7103-13 Government right to review, verify, challenge, and validate asserted restrictions.

227.7103-14 Conformity, acceptance, and warranty of technical data.

227.7103-15 Subcontractor rights in technical data.

227.7103-16 Providing technical data to foreign governments, foreign contractors, or international

organizations.

227.7103-17 Overseas contracts with foreign sources.

227.7104 Contracts under the Small Business Innovation Research (SBIR) Program.

227.7105 Contracts for the acquisition of existing works.

227.7105-1 General.

227.7105-2 Acquisition of existing works without modification.

227.7105-3 Acquisition of modified existing works.

227.7106 Contracts for special works.

227.7107 Contracts for architect-engineer services.

227.7107-1 Architectural designs and data clauses for architect-engineer or construction contracts.

227.7107-2 Contracts for construction supplies and research and development work.

227.7107-3 Approval of restricted designs.

227.7108 Contractor data repositories.

Subpart 227.72 - COMPUTER SOFTWARE, COMPUTER SOFTWARE DOCUMENTATION, AND

ASSOCIATED RIGHTS

227.7200 Scope of subpart.

227.7201 Definitions.

227.7202 Commercial computer software and commercial computer software documentation.

227.7202-1 Policy.
227.7202-2 Reserved.

227.7202-3 Rights in commercial computer software or commercial computer software

documentation.

227.7202-4 Contract clause.

227.7203 Other than commercial computer software and other than commercial computer software

documentation.

227.7203-1 Policy.

227.7203-2 Acquisition of other than commercial computer software and computer software

documentation and associated rights.

227.7203-3 Early identification of computer software or computer software documentation to be

furnished to the Government with restrictions on use, reproduction, or disclosure.

227.7203-4 License rights.

227.7203-5 Government rights.

227.7203-6 Contract clauses.

227.7203-8 Deferred delivery and deferred ordering of computer software and computer software

documentation.

227.7203-9 Copyright.

227.7203-10 Contractor identification and marking of computer software or computer software

documentation to be furnished with restrictive markings.

227.7203-11 Contractor procedures and records.

227.7203-12 Government right to establish conformity of markings.

227.7203-13 Government right to review, verify, challenge, and validate asserted restrictions.

227.7203-14 Conformity, acceptance, and warranty of computer software and computer software

documentation.

227.7203-15 Subcontractor rights in computer software or computer software documentation.

227.7203-16 Providing computer software or computer software documentation to foreign

governments, foreign contractors, or international organizations.

227.7203-17 Overseas contracts with foreign sources.

227.7204 Contracts under the Small Business Innovation Research Program.

227.7205 Contracts for special works.

227.7206 Contracts for architect-engineer services.

227.7207 Contractor data repositories.
Parent topic: Defense Federal Acquisition Regulation

Subpart 227.3 - PATENT RIGHTS UNDER GOVERNMENT

CONTRACTS

227.303 Contract clauses.

(1) Use the clause at 252.227-7039 , Patents—Reporting of Subject Inventions, in solicitations and

contracts containing the clause at FAR 52.227-11, Patent Rights—Ownership by the Contractor.

(2)(i) Use the clause at 252.227-7038 , Patent Rights—Ownership by the Contractor (Large

Business), instead of the clause at FAR 52.227-11, in solicitations and contracts for experimental,

developmental, or research work if—

(A) The contractor is other than a small business concern or nonprofit organization; and

(B) No alternative patent rights clause is used in accordance with FAR 27.303(c) or (e).

(ii) Use the clause with its Alternate I if—

(A) The acquisition of patent rights for the benefit of a foreign government is required under a treaty

or executive agreement;

(B) The agency head determines at the time of award that it would be in the national interest to

acquire the right to sublicense foreign governments or international organizations pursuant to any

existing or future treaty or agreement; or

(C) Other rights are necessary to effect a treaty or agreement, in which case Alternate I may be

appropriately modified.

(iii) Use the clause with its Alternate II in long-term contracts if necessary to effect treaty or

agreements to be entered into.

227.304 Procedures.

227.304-1 General.

Interim and final invention reports and notification of all subcontracts for experimental,

developmental, or research work may be submitted on DD Form 882, Report of Inventions and

Subcontracts.

Subpart 227.4 - RIGHTS IN DATA AND COPYRIGHTS

227.400 Scope of subpart.
DoD activities shall use the guidance in Subparts 227.71 and 227.72 instead of the guidance in FAR

Subpart 27.4.

Subpart 227.6 - FOREIGN LICENSE AND TECHNICAL

ASSISTANCE AGREEMENTS

227.670 Scope.

This subpart prescribes policy with respect to foreign license and technical assistance agreements.

227.671 General.

In furtherance of the Military Assistance Program or for other national defense purposes, the

Government may undertake to develop or encourage the development of foreign additional sources

of supply. The development of such sources may be accomplished by an agreement, often called a

foreign licensing agreement or technical assistance agreement, wherein a domestic concern,

referred to in this subpart as a “primary source,” agrees to furnish to a foreign concern or

government, herein referred to as a “second source;” foreign patent rights; technical assistance in

the form of data, know-how, trained personnel of the primary source, instruction and guidance of the

personnel of the second source, jigs, dies, fixtures, or other manufacturing aids, or such other

assistance, information, rights, or licenses as are needed to enable the second source to produce

particular supplies or perform particular services. Agreements calling for one or more of the

foregoing may be entered into between the primary source and the Government, a foreign

government, or a foreign concern. The consideration for providing such foreign license and technical

assistance may be in the form of a lump sum payment, payments for each item manufactured by the

second source, an agreement to exchange data and patent rights on improvements made to the

article or service, capital stock transactions, or any combination of these. The primary source's

bases for computing such consideration may include actual costs; charges for the use of patents,

data, or know-how reflecting the primary source's investment in developing and engineering and

production techniques; and the primary source's “price” for setting up a second source. Such

agreements often refer to the compensation to be paid as a royalty or license fee whether or not

patent rights are involved.

227.672 Policy.

It is Government policy not to pay in connection with its contracts, and not to allow to be paid in

connection with contracts made with funds derived through the Military Assistance Program or

otherwise through the United States Government, charges for use of patents in which it holds a

royalty-free license or charges for data which it has a right to use and disclose to others, or which is

in the public domain, or which the Government has acquired without restriction upon its use and

disclosure to others. This policy shall be applied by the Departments in negotiating contract prices

for foreign license technical assistance contracts (227.675) or supply contracts with second sources

(227.674); and in commenting on such agreements when they are referred to the Department of

Defense by the Department of State pursuant to Section 414 of the Mutual Security Act of 1954 as

amended (22 U.S.C. 1934) and the International Traffic in Arms Regulations (see 227.675 ).
227.673 Foreign license and technical assistance agreements between the

Government and domestic concerns.

(a) Contracts between the Government and a primary source to provide technical assistance or

patent rights to a second source for the manufacture of supplies or performance of services shall, to

the extent practicable, specify the rights in patents and data and any other rights to be supplied to

the second source. Each contract shall provide, in connection with any separate agreement between

the primary source and the second source for patent rights or technical assistance relating to the

articles or services involved in the contract, that—

(1) The primary source and his subcontractors shall not make, on account of any purchases by the

Government or by others with funds derived through the Military Assistance Program or otherwise

through the Government, any charge to the second source for royalties or amortization for patents

or inventions in which the Government holds a royalty-free license; or data which the Government

has the right to possess, use, and disclose to others; or any technical assistance provided to the

second source for which the Government has paid under a contract between the Government and

the primary source; and

(2) The separate agreement between the primary and second source shall include a statement

referring to the contract between the Government and the primary source, and shall conform to the

requirements of the International Traffic in Arms Regulations (see 227.675-1 ).

(b) The following factors, among others, shall be considered in negotiating the price to be paid the

primary source under contracts within (a) of this section:

(1) The actual cost of providing data, personnel, manufacturing aids, samples, spare parts, and the

like;

(2) The extent to which the Government has contributed to the development of the supplies or

services, and to the methods of manufacture or performance, through past contracts for research

and development or for manufacture of the supplies or performance of the services; and

(3) The Government's patent rights and rights in data relating to the supplies or services and to the

methods of manufacture or of performance.

227.674 Supply contracts between the Government and a foreign government

or concern.

In negotiating contract prices with a second source, including the redetermination of contract

prices, or in determining the allowability of costs under a cost-reimbursement contract with a

second source, the contracting officer:

(a) Shall obtain from the second source a detailed statement (see FAR 27.204-1(a)(2)) of royalties,

license fees, and other compensation paid or to be paid to a primary source (or any of his

subcontractors) for patent rights, rights in data, and other technical assistance provided to the

second source, including identification and description of such patents, data, and technical

assistance; and

(b) Shall not accept or allow charges which in effect are—
(1) For royalties or amortization for patents or inventions in which the Government holds a royaltyfree license; or

(2) For data which the Government has a right to possess, use, and disclose to others; or

(3) For any technical assistance provided to the second source for which the Government has paid

under a contract between the Government and a primary source.

227.675 Foreign license and technical assistance agreements between a

domestic concern and a foreign government or concern.

227.675-1 International Traffic in Arms Regulations.

Pursuant to Section 414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934), the

Department of State controls the exportation of data relating to articles designated in the United

States Munitions List as arms, ammunition, or munitions of war. (The Munitions List and pertinent

procedures are set forth in the International Traffic in Arms Regulations, 22 CFR, et seq.) Before

authorizing such exportation, the Department of State generally requests comments from the

Department of Defense. On request of the Office of the Assistant Secretary of Defense (International

Security Affairs), each Department shall submit comments thereon as the basis for a Department of

Defense reply to the Department of State.

227.675-2 Review of agreements.

(a) In reviewing foreign license and technical assistance agreements between primary and second

sources, the Department concerned shall, insofar as its interests are involved, indicate whether the

agreement meets the requirements of Sections 124.07-124.10 of the International Traffic in Arms

Regulations or in what respects it is deficient. Paragraphs (b) through (g) of this subsection provide

general guidance.

(b) When it is reasonably anticipated that the Government will purchase from the second source the

supplies or services involved in the agreement, or that Military Assistance Program funds will be

provided for the procurement of the supplies or services, the following guidance applies.

(1) If the agreement specifies a reduction in charges thereunder, with respect to purchases by or for

the Government or by others with funds derived through the Military Assistance Program or

otherwise through the Government, in recognition of the Government's rights in patents and data,

the Department concerned shall evaluate the amount of the reduction to determine whether it is fair

and reasonable in the circumstances, before indicating its approval.

(2) If the agreement does not specify any reduction in charges or otherwise fails to give recognition

to the Government's rights in the patents or data involved, approval shall be conditioned upon

amendment of the agreement to reflect a reduction, evaluated by the Department concerned as

acceptable to the Government, in any charge thereunder with respect to purchases made by or for

the Government or by others with funds derived through the Military Assistance Program or

otherwise through the Government, in accordance with Section 124.10 of the International Traffic in

Arms Regulations.
(3) If the agreement provides that no charge is to be made to the second source for data or patent

rights to the extent of the Government's rights, the Department concerned shall evaluate the

acceptability of the provision before indicating its approval.

(4) If time or circumstances do not permit the evaluation called for in (b)(1), (2), or (3) of this

subsection, the guidance in (c) of this subsection shall be followed.

(c) When it is not reasonably anticipated that the Government will purchase from the second source

the supplies or services involved in the agreement nor that Military Assistance Program funds will

be provided for the purchase of the supplies or services, then the following guidance applies.

(1) If the agreement provides for charges to the second source for data or patent rights, it may

suffice to fulfill the requirements of Section 124.10 insofar as the Department of Defense is

concerned if:

(i) The agreement requires the second source to advise the primary source when he has knowledge

of any purchase made or to be made from him by or for the Government or by others with funds

derived through the Military Assistance Program or otherwise through the Government;

(ii) The primary source separately agrees with the Government that upon such advice to him from

the second source or from the Government or otherwise as to any such a purchase or prospective

purchase, he will negotiate with the Department concerned an appropriate reduction in his charges

to the second source in recognition of any Government rights in patents or data; and

(iii) The agreement between the primary and second sources further provides that in the event of

any such purchase and resulting reduction in charges, the second source shall pass on this reduction

to the Government by giving the Government a corresponding reduction in the purchase price of the

article or service.

(2) If the agreement provides that no charge is to be made to the second source for data or patent

rights to the extent to which the Government has rights, the Department concerned shall:

(i) Evaluate the acceptability of the provision before indicating its approval; or

(ii) Explicitly condition its approval on the right to evaluate the acceptability of the provision at a

later time.

(d) When there is a technical assistance agreement between the primary source and the Government

related to the agreement between the primary and second sources that is under review, the latter

agreement shall reflect the arrangements contemplated with respect thereto by the Government's

technical assistance agreement with the primary source.

(e) Every agreement shall provide that any license rights transferred under the agreement are

subject to existing rights of the Government.

(f) In connection with every agreement referred to in (b) above, a request shall be made to the

primary source—

(1) To identify the patents, data, and other technical assistance to be provided to the second source

by the primary source or any of his subcontractors,

(2) To identify any such patents and data in which, to the knowledge of the primary source, the

Government may have rights, and
(3) To segregate the charges made to the second source for each such category or item of patents,

data, and other technical assistance.

Reviewing personnel shall verify this information or, where the primary source does not furnish it,

obtain such information from Governmental sources so far as practicable.

(g) The Department concerned shall make it clear that its approval of any agreement does not

necessarily recognize the propriety of the charges or the amounts thereof, or constitute approval of

any of the business arrangements in the agreement, unless the Department expressly intends by its

approval to commit itself to the fairness and reasonableness of a particular charge or charges. In

any event, a disclaimer should be made to charges or business terms not affecting any purchase

made by or for the Government or by others with funds derived through the Military Assistance

Program or otherwise through the Government.

227.676 Foreign patent interchange agreements.

(a) Patent interchange agreements between the United States and foreign governments provide for

the use of patent rights, compensation, free licenses, and the establishment of committees to review

and make recommendations on these matters. The agreements also may exempt the United States

from royalty and other payments. The contracting officer shall ensure that royalty payments are

consistent with patent interchange agreements.

(b) Assistance with patent rights and royalty payments in the United States European Command

(USEUCOM) area of responsibility is available from HQ USEUCOM, ATTN: ECLA, Unit 30400, Box

1000, APO AE 09128; Telephone: DSN 430-8001/7263, Commercial 49-0711-680-8001/7263; Telefax:

49-0711-680-5732.

Subpart 227.70 - INFRINGEMENT CLAIMS, LICENSES, AND

ASSIGNMENTS

227.7000 Scope.

This subpart prescribes policy, procedures, and instructions for use of clauses with respect to

processing licenses, assignments, and infringement claims.

227.7001 Policy.

Whenever a claim of infringement of privately owned rights in patented inventions or copyrighted

works is asserted against any Department or Agency of the Department of Defense, all necessary

steps shall be taken to investigate, and to settle administratively, deny, or otherwise dispose of such

claim prior to suit against the United States. This subpart 227.70 does not apply to licenses or

assignments acquired by the Department of Defense under the Patent Rights clauses.
227.7002 Statutes pertaining to administrative claims of infringement.

Statutes pertaining to administrative claims of infringement in the Department of Defense include

the following: the Foreign Assistance Act of 1961, 22 U.S.C. 2356 (formerly the Mutual Security Acts

of 1951 and 1954); the Invention Secrecy Act, 35 U.S.C. 181-188; 10 U.S.C. 3793; 28 U.S.C. 1498;

and 35 U.S.C. 286.

227.7003 Claims for copyright infringement.

The procedures set forth herein will be followed, where applicable, in copyright infringement claims.

227.7004 Requirements for filing an administrative claim for patent

infringement.

(a) A patent infringement claim for compensation, asserted against the United States under any of

the applicable statutes cited in 227.7002 , must be actually communicated to and received by a

Department, agency, organization, office, or field establishment within the Department of Defense.

Claims must be in writing and should include the following:

(1) An allegation of infringement;

(2) A request for compensation, either expressed or implied;

(3) A citation of the patent or patents alleged to be infringed;

(4) A sufficient designation of the alleged infringing item or process to permit identification, giving

the military or commercial designation, if known, to the claimant;

(5) A designation of at least one claim of each patent alleged to be infringed; or

(6) As an alternative to (a)(4) and (5) of this section, a declaration that the claimant has made a bona

fide attempt to determine the item or process which is alleged to infringe, but was unable to do so,

giving reasons, and stating a reasonable basis for his belief that his patent or patents are being

infringed.

(b) In addition to the information listed in (a) above, the following material and information is

generally necessary in the course of processing a claim of patent infringement. Claimants are

encouraged to furnish this information at the time of filing a claim to permit the most expeditious

processing and settlement of the claim.

(1) A copy of the asserted patent(s) and identification of all claims of the patent alleged to be

infringed.

(2) Identification of all procurements known to claimant which involve the alleged infringing item or

process, including the identity of the vendor or contractor and the Government procuring activity.

(3) A detailed identification of the accused article or process, particularly where the article or

process relates to a component or subcomponent of the item procured, an element by element

comparison of the representative claims with the accused article or process. If available, this
identification should include documentation and drawings to illustrate the accused article or process

in suitable detail to enable verification of the infringement comparison.

(4) Names and addresses of all past and present licenses under the patent(s), and copies of all

license agreements and releases involving the patent(s).

(5) A brief description of all litigation in which the patent(s) has been or is now involved, and the

present status thereof.

(6) A list of all persons to whom notices of infringement have been sent, including all departments

and agencies of the Government, and a statement of the ultimate disposition of each.

(7) A description of Government employment or military service, if any, by the inventor and/or patent

owner.

(8) A list of all Government contracts under which the inventor, patent owner, or anyone in privity

with him performed work relating to the patented subject matter.

(9) Evidence of title to the patent(s) alleged to be infringed or other right to make the claim.

(10) A copy of the Patent Office file of each patent if available to claimant.

(11) Pertinent prior art known to claimant, not contained in the Patent Office file, particularly

publications and foreign art.

In addition in the foregoing, if claimant can provide a statement that the investigation may be

limited to the specifically identified accused articles or processes, or to a specific procurement, it

may materially expedite determination of the claim.

(c) Any department receiving an allegation of patent infringement which meets the requirements of

this paragraph shall acknowledge the same and supply the other departments that may have an

interest therein with a copy of such communication and the acknowledgement thereof.

(1) For the Department of the Army—Chief, Patents, Copyrights, and Trademarks Division, U.S.

Army Legal Services Agency;

(2) For the Department of the Navy—the Patent Counsel for Navy, Office of Naval Research;

(3) For the Department of the Air Force—Chief, Patents Division, Office of the Judge Advocate

General;

(4) For the Defense Logistics Agency—the Office of Counsel;

(5) For the National Security Agency— the General Counsel;

(6) For the Defense Information Systems Agency—the Counsel;

(7) For the Defense Threat Reduction Agency—the General Counsel; and

(8) For the National Geospatial-Intelligence Agency—the Counsel.

(d) If a communication alleging patent infringement is received which does not meet the

requirements set forth in paragraph (c) of this section, the sender shall be advised in writing—
(1) That his claim for infringement has not been satisfactorily presented, and

(2) Of the elements considered necessary to establish a claim.

(e) A communication making a proffer of a license in which no infringement is alleged shall not be

considered as a claim for infringement.

227.7005 Indirect notice of patent infringement claims.

(a) A communication by a patent owner to a Department of Defense contractor alleging that the

contractor has committed acts of infringement in performance of a Government contract shall not be

considered a claim within the meaning of 227.7004 until it meets the requirements specified therein.

(b) Any Department receiving an allegation of patent infringement which meets the requirements of

227.7004 shall acknowledge the same and supply the other Departments (see 227.7004 (c)) which

may have an interest therein with a copy of such communication and the acknowledgement thereof.

(c) If a communication covering an infringement claim or notice which does not meet the

requirements of 227.7004 (a) is received from a contractor, the patent owner shall be advised in

writing as covered by the instructions of 227.7004 (d).

227.7006 Investigation and administrative disposition of claims.

An investigation and administrative determination (denial or settlement) of each claim shall be made

in accordance with instructions and procedures established by each Department, subject to the

following:

(a) When the procurement responsibility for the alleged infringing item or process is assigned to a

single Department or only one Department is the purchaser of the alleged infringing item or process,

and the funds of that Department only are to be charged in the settlement of the claim, that

Department shall have the sole responsibility for the investigation and administrative determination

of the claim and for the execution of any agreement in settlement of the claim. Where, however,

funds of another Department are to be charged, in whole or in part, the approval of such

Department shall be obtained as required by 208.7002 . Any agreement in settlement of the claim,

approved pursuant to 208.7002 shall be executed by each of the Departments concerned.

(b) When two or more Departments are the respective purchasers of alleged infringing items or

processes and the funds of those Departments are to be charged in the settlement of the claim, the

investigation and administrative determination shall be the responsibility of the Department having

the predominant financial interest in the claim or of the Department or Departments as jointly

agreed upon by the Departments concerned. The Department responsible for negotiation shall,

throughout the negotiation, coordinate with the other Departments concerned and keep them

advised of the status of the negotiation. Any agreement in the settlement of the claim shall be

executed by each Department concerned.

227.7007 Notification and disclosure to claimants.

When a claim is denied, the Department responsible for the administrative determination of the
claim shall so notify the claimant or his authorized representative and provide the claimant a

reasonable rationale of the basis for denying the claim. Disclosure of information or the rationale

referred to above shall be subject to applicable statutes, regulations, and directives pertaining to

security, access to official records, and the rights of others.

227.7008 Settlement of indemnified claims.

Settlement of claims involving payment for past infringement shall not be made without the consent

of, and equitable contribution by, each indemnifying contractor involved, unless such settlement is

determined to be in the best interests of the Government and is coordinated with the Department of

Justice with a view to preserving any rights of the Government against the contractors involved. If

consent of and equitable contribution by the contractors are obtained, the settlement need not be

coordinated with the Department of Justice.

227.7009 Patent releases, license agreements, and assignments.

This section contains clauses for use in patent release and settlement agreements, license

agreements, and assignments, executed by the Government, under which the Government acquires

rights. Minor modifications of language (e.g., pluralization of “Secretary” or “Contracting Officer”)

in multidepartmental agreements may be made if necessary.

227.7009-1 Required clauses.

(a) Covenant Against Contingent Fees. Insert the clause at FAR 52.203-5.

(b) Gratuities. Insert the clause at FAR 52.203-3.

(c) Assignment of Claims. Insert the clause at FAR 52.232-23.

(d) Disputes. Pursuant to FAR Subpart 33.2, insert the clause at FAR 52.233-1.

(e) Non-Estoppel. Insert the clause at 252.227-7000 .

227.7009-2 Clauses to be used when applicable.

(a) Release of past infringement. The clause at 252.227-7001, Release of Past Infringement, is an

example which may be modified or omitted as appropriate for particular circumstances, but only

upon the advice of cognizant patent or legal counsel. (See footnotes at end of clause.)

(b) Readjustment of payments. The clause at 252.227-7002, Readjustment of Payments, shall be

inserted in contracts providing for payment of a running royalty.

(c) Termination. The clause at 252.227-7003, Termination, is an example for use in contracts

providing for the payment of a running royalty. This clause may be modified or omitted as

appropriate for particular circumstances, but only upon the advice of cognizant patent or legal

counsel (see 227.7004(c)).
227.7009-3 Additional clauses—contracts except running royalty contracts.

The following clauses are examples for use in patent release and settlement agreements, and license

agreements not providing for payment by the Government of a running royalty.

(a) License Grant. Insert the clause at 252.227-7004 .

(b) License Term. Insert one of the clauses at 252.227-7005 Alternate I or Alternate II, as

appropriate.

227.7009-4 Additional clauses—contracts providing for payment of a running royalty.

The clauses set forth below are examples which may be used in patent release and settlement

agreements, and license agreements, when it is desired to cover the subject matter thereof and the

contract provides for payment of a running royalty.

(a) License grant—running royalty. No Department shall be obligated to pay royalties unless the

contract is signed on behalf of such Department. Accordingly, the License Grant clause at

252.227-7006 should be limited to the practice of the invention by or for the signatory Department

or Departments.

(b) License term—running royalty. The clause at 252.227-7007 is a sample form for expressing the

license term.

(c) Computation of royalties. The clause at 252.227-7008 providing for the computation of royalties,

may be of varying scope depending upon the nature of the royalty bearing article, the volume of

procurement, and the type of contract pursuant to which the procurement is to be accomplished.

(d) Reporting and payment of royalties.

(1) The contract should contain a provision specifying the office designated within the specific

Department involved to make any necessary reports to the contractor of the extent of use of the

licensed subject matter by the entire Department, and such office shall be charged with the

responsibility of obtaining from all procuring offices of that Department the information necessary to

make the required reports and corresponding vouchers necessary to make the required payments.

The clause at 252.227-7009 is a sample for expressing reporting and payment of royalties

requirements.

(2) Where more than one Department or Government Agency is licensed and there is a ceiling on the

royalties payable in any reporting period, the licensing Departments or Agencies shall coordinate

with respect to the pro rata share of royalties to be paid by each.

(e) License to other government agencies. When it is intended that a license on the same terms and

conditions be available to other departments and agencies of the Government, the clause at

252.227-7010 is an example which may be used.

227.7010 Assignments.

(a) The clause at 252.227-7011 is an example which may be used in contracts of assignment of
patent rights to the Government.

(b) To facilitate proof of contracts of assignments, the acknowledgement of the contractor should be

executed before a notary public or other officer authorized to administer oaths (35 U.S.C. 261).

227.7011 Procurement of rights in inventions, patents, and copyrights.

Even though no infringement has occurred or been alleged, it is the policy of the Department of

Defense to procure rights under patents, patent applications, and copyrights whenever it is in the

Government's interest to do so and the desired rights can be obtained at a fair price. The required

and suggested clauses at 252.227-7004 and 252.227-7010 shall be required and suggested clauses,

respectively, for license agreements and assignments made under this paragraph. The instructions

at 227.7010 concerning the applicability and use of those clauses shall be followed insofar as they

are pertinent.

227.7012 Contract format.

The format at 252.227-7012 appropriately modified where necessary, may be used for contracts of

release, license, or assignment.

227.7013 Recordation.

Executive Order No. 9424 of 18 February 1944 requires all executive Departments and agencies of

the Government to forward through appropriate channels to the Commissioner of Patents and

Trademarks, for recording, all Government interests in patents or applications for patents.

Subpart 227.71 - TECHNICAL DATA AND ASSOCIATED

RIGHTS

227.7100 Scope of subpart.

This subpart—

(a) Prescribes policies and procedures for the acquisition of technical data and the rights to use,

modify, reproduce, release, perform, display, or disclose technical data. It implements the following

laws and Executive Order:

(1) 10 U.S.C. 3013.

(2) 10 U.S.C. 3208(d)).

(3) 10 U.S.C. 3771-3775.

(4) 10 U.S.C. 3781–3786.
(5) 10 U.S.C. 8687.

(6) 17 U.S.C. 1301, et seq.

(7) Public. Law. 103-355.

(8) Executive Order 12591 (subsection 1(b)(7)).

(b) Does not apply to—

(1) Computer software or technical data that is computer software documentation (see subpart

227.72); or

(2) Releases of technical data to litigation support contractors (see subpart 204.74).

227.7101 Definitions.

(a) As used in this subpart, unless otherwise specifically indicated, the terms “offeror” and

“contractor” include an offeror's or contractor's subcontractors, suppliers, or potential

subcontractors or suppliers at any tier.

(b) Other terms used in this subpart are defined in the clause at 252.227-7013 , Rights in Technical

Data–Other Than Commercial Products and Commercial Services.

227.7102 Commercial products, commercial, components, commercial

services, or commercial processes.

227.7102-1 Policy.

(a) DoD shall acquire only the technical data customarily provided to the public with a commercial

product, commercial service, or commercial process, except technical data that—

(1) Are form, fit, or function data;

(2) Are required for repair or maintenance of commercial products or commercial processes, or for

the proper installation, operating, or handling of a commercial product, either as a stand alone unit

or as a part of a military system, when such data are not customarily provided to commercial users

or the data provided to commercial users is not sufficient for military purposes; or

(3) Describe the modifications made at Government expense to a commercial product, commercial

service, or commercial process in order to meet the requirements of a Government solicitation.

(b) To encourage offerors and contractors to offer or use commercial products to satisfy military

requirements, offerors and contractors shall not be required, except for the technical data described

in paragraph (a) of this subsection, to—

(1) Furnish technical information related to commercial products, commercial services, or processes

that is not customarily provided to the public; or
(2) Relinquish to, or otherwise provide, the Government rights to use, modify, reproduce, release,

perform, display, or disclose technical data pertaining to commercial products, commercial services,

or commercial processes except for a transfer of rights mutually agreed upon.

(c) The Government's rights in a vessel design, and in any useful article embodying a vessel design,

must be consistent with the Government's rights in technical data pertaining to the design (10

U.S.C. 8687; 17 U.S.C. 1301(a)(3)).

227.7102-2 Rights in technical data.

(a) The clause at 252.227-7015 , Technical Data–Commercial Products and Commercial Services,

provides the Government specific license rights in technical data pertaining to commercial products,

commercial services, or commercial processes. DoD may use, modify, reproduce, release, perform,

display, or disclose data only within the Government. The data may not be used to manufacture

additional quantities of the commercial items and, except for emergency repair or overhaul and for

covered Government support contractors, may not be released or disclosed to, or used by, third

parties without the contractor's written permission. Those restrictions do not apply to the technical

data described in 227.7102-1 (a).

(b) If additional rights are needed, contracting activities must negotiate with the contractor to

determine if there are acceptable terms for transferring such rights. The specific additional rights

granted to the Government shall be enumerated in a license agreement made part of the contract.

227.7102-3 Government right to review, verify, challenge, and validate asserted

restrictions.

Follow the procedures at 227.7103-13 and the clause at 252.227-7037 , Validation of Restrictive

Markings on Technical Data, regarding the validation of asserted restrictions on technical data

related to commercial products or commercial services.

227.7102-4 Contract clauses.

(a)(1) Except as provided in paragraph (b) of this subsection, use the clause at 252.227-7015 ,

Technical Data–Commercial Products and Commercial Services, in solicitations and contracts,

including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial

products and commercial services, when the contractor will be required to deliver technical data

pertaining to commercial products, commercial components, or commercial services, or commercial

processes.

(2) Use the clause at 252.227-7015 with its Alternate I in solicitations and contracts, including

solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products

and commercial services, for the development or delivery of a vessel design or any useful article

embodying a vessel design.

(b) In accordance with the clause prescription at 227.7103-6 (a), use the clause at 252.227-7013 ,

Rights in Technical Data–Other Than Commercial Products and Commercial Services, in addition to

the clause at 252.227-7015 , if the Government will have paid for any portion of the development
costs of a commercial product or commercial service. The clause at 252.227-7013 will govern the

technical data pertaining to any portion of a commercial product or commercial service that was

developed in any part at Government expense, and the clause at 252.227-7015 will govern the

technical data pertaining to any portion of a commercial product or commercial service that was

developed exclusively at private expense.

(c) Use the clause at 252.227-7037 , Validation of Restrictive Markings on Technical Data, in

solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products

and commercial services that include the clause at 252.227-7015 or the clause at 252.227-7013 .

227.7103 Other than commercial products, commercial services, or

commercial processes.

227.7103-1 Policy.

(a) DoD policy is to acquire only the technical data, and the rights in that data, necessary to satisfy

agency needs.

(b) Solicitations and contracts shall -

(1) Specify the technical data to be delivered under a contract and delivery schedules for the data;

(2) Establish or reference procedures for determining the acceptability of technical data;

(3) Establish separate contract line items, to the extent practicable, for the technical data to be

delivered under a contract and require offerors and contractors to price separately each deliverable

data item; and

(4) Require offerors to identify, to the extent practicable, technical data to be furnished with

restrictions on the Government's rights and require contractors to identify technical data to be

delivered with such restrictions prior to delivery.

(c) Offerors shall not be required, either as a condition of being responsive to a solicitation or as a

condition for award, to sell or otherwise relinquish to the Government any rights in technical data

related to items, components or processes developed at private expense except for the data

identified at 227.7103-5(a)(2) and (a)(4) through (9).

(d) Offerors and contractors shall not be prohibited or discouraged from furnishing or offering to

furnish items, components, or processes developed at private expense solely because the

Government's rights to use, modify, release, reproduce, perform, display, or disclose technical data

pertaining to those items may be restricted.

(e) As provided in 10 U.S.C. 3208, solicitations for major systems development contracts shall not

require offerors to submit proposals that would permit the Government to acquire competitively

items identical to items developed at private expense unless a determination is made at a level above

the contracting officer that -

(1) The offeror will not be able to satisfy program schedule or delivery requirements; or

(2) The offeror's proposal to meet mobilization requirements does not satisfy mobilization needs.
(f) For acquisitions involving major weapon systems or subsystems of major weapon systems, the

acquisition plan shall address acquisition strategies that provide for technical data and the

associated license rights in accordance with 207.106(S-70).

(g) The Government's rights in a vessel design, and in any useful article embodying a vessel design,

must be consistent with the Government's rights in technical data pertaining to the design (10

U.S.C. 8687; 17 U.S.C. 1301(a)(3)).

227.7103-2 Acquisition of technical data.

(a) Contracting officers shall work closely with data managers and requirements personnel to assure

that data requirements included in solicitations are consistent with the policy expressed in

227.7103-1 .

(b)(1) Data managers or other requirements personnel are responsible for identifying the

Government's life-cycle needs for technical data. Technical data needs must be established giving

consideration to the offeror’s economic interests in technical data pertaining to items, components,

or processes that have been developed at private expense (including the economic interests of small

businesses and nontraditional contractors); the Government's costs to acquire, maintain, store,

retrieve, and protect the technical data; reprocurement needs; repair, maintenance, and overhaul

philosophies; spare and repair part considerations; and whether procurement of the items,

components, or processes can be accomplished on a form, fit, or function basis. When it is

anticipated that the Government will obtain unlimited or government purpose rights in technical

data that will be required for competitive spare or repair parts procurements, such data should be

identified as deliverable technical data items. Reprocurement needs may not be a sufficient reason

to acquire detailed manufacturing or process data when items or components can be acquired using

performance specifications, form, fit, and function data, or when there are a sufficient number of

alternate sources that can reasonably be expected to provide such items on a performance

specification or form, fit, or function basis.

(2) When reviewing offers received in response to a solicitation or other request for data, data

managers must balance the original assessment of the Government's data needs with data prices

contained in the offer.

(c) Contracting officers are responsible for ensuring that, wherever practicable, solicitations and

contracts—

(1) Identify the type and quantity of the technical data to be delivered under the contract and the

format and media in which the data will be delivered;

(2) Establish each deliverable data item as a separate contract line item (this requirement may be

satisfied by listing each deliverable data item on an exhibit to the contract);

(3) Identify the prices established for each deliverable data item under a fixed-price type contract;

(4) Include delivery schedules and acceptance criteria for each deliverable data item; and

(5) Specifically identify the place of delivery for each deliverable item of technical data.
227.7103-3 Early identification of technical data to be furnished to the Government with

restrictions on use, reproduction, or disclosure.

(a) 10 U.S.C. 3772(a) requires, to the maximum extent practicable, an identification prior to delivery

of any technical data to be delivered to the Government with restrictions on use.

(b) Use the provision at 252.227-7017 , Identification and Assertion of Use, Release, or Disclosure

Restrictions, in all solicitations that include the clause at 252.227-7013 , Rights in Technical

Data—Other Than Commercial Products and Commercial Services. The provision requires offerors to

identify any technical data for which restrictions, other than copyright, on use, release, or disclosure

are asserted and to attach the identification and assertions to the offer.

(c) Subsequent to contract award, the clause at 252.227-7013 permits a contractor, under certain

conditions, to make additional assertions of use, release, or disclosure restrictions. The prescription

for the use of that clause and its alternate is at 227.7103-6 (a) and (b).

227.7103-4 License rights.

(a) Grant of license. The Government obtains rights in technical data, including a copyright license,

under an irrevocable license granted or obtained for the Government by the contractor. The

contractor or licensor retains all rights in the data not granted to the Government. For technical

data that pertain to items, components, or processes, the scope of the license is generally

determined by the source of funds used to develop the item, component, or process. When the

technical data do not pertain to items, components, or processes, the scope of the license is

determined by the source of funds used to create the data.

(1) Technical data pertaining to items, components, or processes. Contractors or licensors may, with

some exceptions (see 227.7103-5 (a)(2) and (a)(4) through (9)), restrict the Government's rights to

use, modify, release, reproduce, perform, display or disclose technical data pertaining to items,

components, or processes developed exclusively at private expense (limited rights). They may not

restrict the Government's rights in items, components, or processes developed exclusively at

Government expense (unlimited rights) without the Government's approval. When an item,

component, or process is developed with mixed funding, the Government may use, modify, release,

reproduce, perform, display or disclose the data pertaining to such items, components, or processes

within the Government without restriction but may release or disclose the data outside the

Government only for government purposes (government purpose rights).

(2) Technical data that do not pertain to items, components, or processes. Technical data may be

created during the performance of a contract for a conceptual design or similar effort that does not

require the development, manufacture, construction, or production of items, components or

processes. The Government generally obtains unlimited rights in such data when the data were

created exclusively with Government funds, government purpose rights when the data were created

with mixed funding, and limited rights when the data were created exclusively at private expense.

(b) Source of funds determination. The determination of the source of development funds for

technical data pertaining to items, components, or processes should be made at any practical subitem or sub-component level or for any segregable portion of a process. Contractors may assert

limited rights in a segregable sub-item, sub-component, or portion of a process which otherwise

qualifies for limited rights under the clause at 252.227-7013 , Rights in Technical

Data–Noncommercial Items.
227.7103-5 Government rights.

The standard license rights that a licensor grants to the Government are unlimited rights,

government purpose rights, or limited rights. Those rights are defined in the clause at 252.227-7013

, Rights in Technical Data–Other Than Commercial Products and Commercial Services. In unusual

situations, the standard rights may not satisfy the Government's needs or the Government may be

willing to accept lesser rights in data in return for other consideration. In those cases, a special

license may be negotiated. However, the licensor is not obligated to provide the Government greater

rights and the contracting officer is not required to accept lesser rights than the rights provided in

the standard grant of license. The situations under which a particular grant of license applies are

enumerated in paragraphs (a) through (d) of this section.

(a) Unlimited rights. The Government obtains unlimited rights in technical data that are—

(1) Data pertaining to an item, component, or process which has been or will be developed

exclusively with Government funds;

(2) Studies, analyses, test data, or similar data produced in the performance of a contract when the

study, analysis, test, or similar work was specified as an element of performance;

(3) Created exclusively with Government funds in the performance of a contract that does not

require the development, manufacture, construction, or production of items, components, or

processes;

(4) Form, fit, and function data;

(5) Necessary for installation, operation, maintenance, or training purposes (other than detailed

manufacturing or process data);

(6) Corrections or changes to technical data furnished to the contractor by the Government;

(7) Publicly available or have been released or disclosed by the contractor or subcontractor without

restrictions on further use, release or disclosure other than a release or disclosure resulting from

the sale, transfer, or other assignment of interest in the software to another party or the sale or

transfer of some or all of a business entity or its assets to another party;

(8) Data in which the Government has obtained unlimited rights under another Government contract

or as a result of negotiations; or

(9) Data furnished to the Government, under a Government contract or subcontract thereunder,

with—

(i) Government purpose license rights or limited rights and the restrictive condition(s) has/have

expired; or

(ii) Government purpose rights and the contractor's exclusive right to use such data for commercial

purposes has expired.

(b) Government purpose rights.

(1) The Government obtains government purpose rights in technical data—

(i) That pertain to items, components, or processes developed with mixed funding except when the
Government is entitled to unlimited rights as provided in paragraphs (a)(2) and (a)(4) through (9) of

this subsection; or

(ii) Created with mixed funding in the performance of a contract that does not require the

development, manufacture, construction, or production of items, components, or processes.

(2) The period during which government purpose rights are effective is negotiable. The clause at

252.227-7013 provides a nominal five-year period. Either party may request a different period.

Changes to the government purpose rights period may be made at any time prior to delivery of the

technical data without consideration from either party. Longer periods should be negotiated when a

five-year period does not provide sufficient time to apply the data for commercial purposes or when

necessary to recognize subcontractors' interests in the data.

(3) The government purpose rights period commences upon execution of the contract, subcontract,

letter contract (or similar contractual instrument), contract modification, or option exercise that

required the development. Upon expiration of the Government rights period, the Government has

unlimited rights in the data including the right to authorize others to use the data for commercial

purposes.

(4) During the government purpose rights period, the Government may not use, or authorize other

persons to use, technical data marked with government purpose rights legends for commercial

purposes. The Government shall not release or disclose data in which it has government purpose

rights to any person, or authorize others to do so, unless—

(i) Prior to release or disclosure, the intended recipient is subject to the use and non-disclosure

agreement at 227.7103-7 ; or

(ii) The intended recipient is a Government contractor receiving access to the data for performance

of a Government contract that contains the clause at 252.227-7025 , Limitations on the Use or

Disclosure of Government-Furnished Information Marked with Restrictive Legends.

(5) When technical data marked with government purpose rights legends will be released or

disclosed to a Government contractor performing a contract that does not include the clause at

252.227-7025 , the contract may be modified, prior to release or disclosure, to include that clause in

lieu of requiring the contractor to complete a use and non-disclosure agreement.

(6) Contracting activities shall establish procedures to assure that technical data marked with

government purpose rights legends are released or disclosed, including a release or disclosure

through a Government solicitation, only to persons subject to the use and non-disclosure

restrictions. Public announcements in the Commerce Business Daily or other publications must

provide notice of the use and non-disclosure requirements. Class use and non-disclosure agreements

(e.g., agreements covering all solicitations received by the XYZ company within a reasonable period)

are authorized and may be obtained at any time prior to release or disclosure of the government

purpose rights data. Documents transmitting government purpose rights data to persons under class

agreements shall identify the technical data subject to government purpose rights and the class

agreement under which such data are provided.

(c) Limited rights.

(1) The Government obtains limited rights in technical data—

(i) That pertain to items, components, or processes developed exclusively at private expense except

when the Government is entitled to unlimited rights as provided in paragraphs (a)(2) and (a)(4)
through (9) of this subsection; or

(ii) Created exclusively at private expense in the performance of a contract that does not require the

development, manufacture, construction, or production of items, components, or processes.

(2) Data in which the Government has limited rights may not be used, released, or disclosed outside

the Government without the permission of the contractor asserting the restriction except for a use,

release, or disclosure that is—

(i) Necessary for emergency repair and overhaul;

(ii) To a covered Government support contractor; or

(iii) To a foreign government, other than detailed manufacturing or process data, when use, release,

or disclosure is in the interest of the United States and is required for evaluational or informational

purposes.

(3) The person asserting limited rights must be notified of the Government's intent to release,

disclose, or authorize others to use such data prior to release or disclosure of the data except

notification of an intended release, disclosure, or use for emergency repair or overhaul which shall

be made as soon as practicable.

(4) When the person asserting limited rights permits the Government to release, disclose, or have

others use the data subject to restrictions on further use, release, or disclosure, or for a release

under paragraph (c)(2)(i), (ii), or (iii) of this subsection, the intended recipient must complete the

use and non-disclosure agreement at 227.7103-7 , or receive the data for performance of a

Government contract that contains the clause at 252.227-7025 , Limitations on the Use or Disclosure

of Government-Furnished Information Marked with Restrictive Legends, prior to release or

disclosure of the limited rights data.

(d) Specifically negotiated license rights.

(1) Negotiate specific licenses when the parties agree to modify the standard license rights granted

to the Government or when the Government wants to obtain rights in data in which it does not have

rights. When negotiating to obtain, relinquish, or increase the Government's rights in technical data,

consider the acquisition strategy for the item, component, or process, including logistics support and

other factors which may have relevance for a particular procurement. The Government may accept

lesser rights when it has unlimited or government purpose rights in data but may not accept less

than limited rights in such data. The negotiated license rights must stipulate what rights the

Government has to release or disclose the data to other persons or to authorize others to use the

data. Identify all negotiated rights in a license agreement made part of the contract.

(2) When the Government needs additional rights in data acquired with government purpose or

limited rights, the contracting officer must negotiate with the contractor to determine whether there

are acceptable terms for transferring such rights. Generally, such negotiations should be conducted

only when there is a need to disclose the data outside the Government or if the additional rights are

required for competitive reprocurement and the anticipated savings expected to be obtained

through competition are estimated to exceed the acquisition cost of the additional rights. Prior to

negotiating for additional rights in limited rights data, consider alternatives such as—

(i) Using performance specifications and form, fit, and function data to acquire or develop

functionally equivalent items, components, or processes;
(ii) Obtaining a contractor's contractual commitment to qualify additional sources and maintain

adequate competition among the sources; or

(iii) Reverse engineering, or providing items from Government inventories to contractors who

request the items to facilitate the development of equivalent items through reverse engineering.

227.7103-6 Contract clauses.

(a) Use the clause at 252.227-7013, Rights in Technical Data-Noncommercial Other Than

Commercial Products and Commercial Services, in solicitations and contracts, including solicitations

and contracts using FAR part 12 procedures for the acquisition of commercial products and

commercial services, when the successful offeror(s) will be required to deliver to the Government

technical data pertaining to other than commercial products or commercial services, or pertaining to

commercial products or commercial services for which the Government will have paid for any

portion of the development costs (in which case the clause at 252.227-7013 will govern the technical

data pertaining to any portion of a commercial product or commercial service that was developed in

any part at Government expense, and the clause at 252.227-7015 will govern the technical data

pertaining to any portion of a commercial product or commercial service that was developed

exclusively at private expense). Do not use the clause when the only deliverable items are computer

software or computer software documentation (see 227.72), commercial products or commercial

services developed exclusively at private expense (see 227.7102-4), existing works (see 227.7105 ),

special works (see 227.7106 ), or when contracting under the Small Business Innovation Research

Program (see 227.7104 ). Except as provided in 227.7107-2 , do not use the clause in architectengineer and construction contracts.

(b)(1) Use the clause at 252.227-7013 with its Alternate I in research solicitations and contracts,

including research solicitations and contracts using FAR part 12 procedures for the acquisition of

commercial products and commercial services, when the contracting officer determines, in

consultation with counsel, that public dissemination by the contractor would be—

(i) In the interest of the Government; and

(ii) Facilitated by the Government relinquishing its right to publish the work for sale, or to have

others publish the work for sale on behalf of the Government.

(2) Use the clause at 252.227-7013 with its Alternate II in solicitations and contracts, including

solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products

and commercial services, that are for the development or delivery of a vessel design or any useful

article embodying a vessel design.

(c) Use the clause at 252.227-7025 , Limitations on the Use or Disclosure of Government-Furnished

Information Marked with Restrictive Legends, in solicitations and contracts when it is anticipated

that the Government will provide the contractor (other than a litigation support contractor covered

by 252.204-7014 ), for performance of its contract, technical data marked with another contractor's

restrictive legend(s).

(d) Use the provision at 252.227-7028 , Technical Data or Computer Software Previously Delivered

to the Government, in solicitations when the resulting contract will require the contractor to deliver

technical data. The provision requires offerors to identify any technical data specified in the

solicitation as deliverable data items that are the same or substantially the same as data items the

offeror has delivered or is obligated to deliver, either as a contractor or subcontractor, under any
other federal agency contract.

(e) Use the following clauses in solicitations and contracts that include the clause at 252.227-7013 :

(1) 252.227-7016 , Rights in Bid or Proposal Information;

(2) 252.227-7030 , Technical Data–Withholding of Payment; and

(3) 252.227-7037 , Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause

contains information that must be included in a challenge).

227.7103-7 Use and non-disclosure agreement.

(a) Except as provided in paragraph (b) of this subsection, technical data or computer software

delivered to the Government with restrictions on use, modification, reproduction, release,

performance, display, or disclosure may not be provided to third parties unless the intended

recipient completes and signs the use and non-disclosure agreement at paragraph (c) of this

subsection prior to release, or disclosure of the data.

(1) The specific conditions under which an intended recipient will be authorized to use, modify,

reproduce, release, perform, display, or disclose technical data subject to limited rights or computer

software subject to restricted rights must be stipulated in an attachment to the use and nondisclosure agreement.

(2) For an intended release, disclosure, or authorized use of technical data or computer software

subject to special license rights, modify paragraph (1)(d) of the use and non-disclosure agreement to

enter the conditions, consistent with the license requirements, governing the recipient's obligations

regarding use, modification, reproduction, release, performance, display or disclosure of the data or

software.

(b) The requirement for use and non-disclosure agreements does not apply to Government

contractors which require access to a third party's data or software for the performance of a

Government contract that contains the clause at 252.227-7025 , Limitations on the Use or Disclosure

of Government-Furnished Information Marked with Restrictive Legends.

(c) The prescribed use and non-disclosure agreement is:

Use and Non-Disclosure Agreement

The undersigned, __________(Insert Name)__________, an authorized representative of the

__________(Insert Company Name)__________, (which is hereinafter referred to as the

“Recipient”) requests the Government to provide the Recipient with technical data or computer

software (hereinafter referred to as “Data”) in which the Government's use, modification,

reproduction, release, performance, display or disclosure rights are restricted. Those Data are

identified in an attachment to this Agreement. In consideration for receiving such Data, the

Recipient agrees to use the Data strictly in accordance with this Agreement:
(1) The Recipient shall—

(a) Use, modify, reproduce, release, perform, display, or disclose Data marked with government

purpose rights or SBIR data rights legends only for government purposes and shall not do so

for any commercial purpose. The Recipient shall not release, perform, display, or disclose these

Data, without the express written permission of the contractor whose name appears in the

restrictive legend (the “Contractor”), to any person other than its subcontractors or suppliers,

or prospective subcontractors or suppliers, who require these Data to submit offers for, or

perform, contracts with the Recipient. The Recipient shall require its subcontractors or

suppliers, or prospective subcontractors or suppliers, to sign a use and non-disclosure

agreement prior to disclosing or releasing these Data to such persons. Such agreement must be

consistent with the terms of this agreement.

(b) Use, modify, reproduce, release, perform, display, or disclose technical data marked with

limited rights legends only as specified in the attachment to this Agreement. Release,

performance, display, or disclosure to other persons is not authorized unless specified in the

attachment to this Agreement or expressly permitted in writing by the Contractor. The

Recipient shall promptly notify the Contractor of the execution of this Agreement and identify

the Contractor's Data that has been or will be provided to the Recipient, the date and place the

Data were or will be received, and the name and address of the Government office that has

provided or will provide the Data.

(c) Use computer software marked with restricted rights legends only in performance of

Contract Number __________(insert contract number(s))__________. The recipient shall not, for

example, enhance, decompile, disassemble, or reverse engineer the software; time share, or use

a computer program with more than one computer at a time. The recipient may not release,

perform, display, or disclose such software to others unless expressly permitted in writing by

the licensor whose name appears in the restrictive legend. The Recipient shall promptly notify

the software licensor of the execution of this Agreement and identify the software that has been

or will be provided to the Recipient, the date and place the software were or will be received,

and the name and address of the Government office that has provided or will provide the

software.

(d) Use, modify, reproduce, release, perform, display, or disclose Data marked with special

license rights legends (To be completed by the contracting officer. See 227.7103-7 (a)(2). Omit

if none of the Data requested is marked with special license rights legends).

(2) The Recipient agrees to adopt or establish operating procedures and physical security

measures designed to protect these Data from inadvertent release or disclosure to

unauthorized third parties.
(3) The Recipient agrees to accept these Data “as is” without any Government representation as

to suitability for intended use or warranty whatsoever. This disclaimer does not affect any

obligation the Government may have regarding Data specified in a contract for the performance

of that contract.

(4) The Recipient may enter into any agreement directly with the Contractor with respect to the

use, modification, reproduction, release, performance, display, or disclosure of these Data.

(5) The Recipient agrees to indemnify and hold harmless the Government, its agents, and

employees from every claim or liability, including attorneys fees, court costs, and expenses

arising out of, or in any way related to, the misuse or unauthorized modification, reproduction,

release, performance, display, or disclosure of Data received from the Government with

restrictive legends by the Recipient or any person to whom the Recipient has released or

disclosed the Data.

(6) The Recipient is executing this Agreement for the benefit of the Contractor. The Contractor

is a third party beneficiary of this Agreement who, in addition to any other rights it may have, is

intended to have the rights of direct action against the Recipient or any other person to whom

the Recipient has released or disclosed the Data, to seek damages from any breach of this

Agreement or to otherwise enforce this Agreement.

(7) The Recipient agrees to destroy these Data, and all copies of the Data in its possession, no

later than 30 days after the date shown in paragraph (8) of this Agreement, to have all persons

to whom it released the Data do so by that date, and to notify the Contractor that the Data have

been destroyed.

(8) This Agreement shall be effective for the period commencing with the Recipient's execution

of this Agreement and ending upon _________(Insert Date)_________. The obligations imposed by

this Agreement shall survive the expiration or termination of the Agreement.

Recipient's Business Name _________________________________

By____________________________

Authorized Representative

_________________________________

Date
Representative’s Typed Name _________________________________

and Title _________________________________

(End of use and non-disclosure agreement)

227.7103-8 Deferred delivery and deferred ordering of technical data.

(a) Deferred delivery. Use the clause at 252.227-7026 , Deferred Delivery of Technical Data or

Computer Software, when it is in the Government's interests to defer the delivery of technical data.

The clause permits the contracting officer to require the delivery of technical data identified as

“deferred delivery” data at any time until two years after acceptance by the Government of all items

(other than technical data or computer software) under the contract or contract termination,

whichever is later. The obligation of subcontractors or suppliers to deliver such technical data

expires two years after the date the prime contractor accepts the last item from the subcontractor or

supplier for use in the performance of the contract. The contract must specify which technical data

is subject to deferred delivery. The contracting officer shall notify the contractor sufficiently in

advance of the desired delivery date for such data to permit timely delivery.

(b) Deferred ordering. Use the clause at 252.227-7027 , Deferred Ordering of Technical Data or

Computer Software, when a firm requirement for a particular data item(s) has not been established

prior to contract award but there is a potential need for the data. Under this clause, the contracting

officer may order any data that has been generated in the performance of the contract or any

subcontract thereunder at any time until three years after acceptance of all items (other than

technical data or computer software) under the contract or contract termination, whichever is later.

The obligation of subcontractors to deliver such data expires three years after the date the

contractor accepts the last item under the subcontract. When the data are ordered, the delivery

dates shall be negotiated and the contractor compensated only for converting the data into the

prescribed form, reproduction costs, and delivery costs.

227.7103-9 Copyright.

(a) Copyright license.

(1) The clause at 252.227-7013, Rights in Technical Data - Other Than Commercial Products and

Commercial Services, requires a contractor to grant or obtain for the Government license rights

which permit the Government to reproduce data, distribute copies of the data, publicly perform or

display the data or, through the right to modify data, prepare derivative works. The extent to which

the Government, and others acting on its behalf, may exercise these rights varies for each of the

standard data rights licenses obtained under the clause. When non-standard license rights in

technical data will be negotiated, negotiate the extent of the copyright license concurrent with

negotiations for the data rights license. Do not negotiate a copyright license that provides less rights
than the standard limited rights license in technical data.

(2) The clause at 252.227-7013 does not permit a contractor to incorporate a third party's

copyrighted data into a deliverable data item unless the contractor has obtained an appropriate

license for the Government and, when applicable, others acting on the Government's behalf, or has

obtained the contracting officer's written approval to do so. Grant approval to use third party

copyrighted data in which the Government will not receive a copyright license only when the

Government's requirements cannot be satisfied without the third party material or when the use of

the third party material will result in cost savings to the Government which outweigh the lack of a

copyright license.

(b) Copyright considerations - acquisition of existing and special works. See 227.7105 or 227.7106

for copyright considerations when acquiring existing or special works.

227.7103-10 Contractor identification and marking of technical data to be furnished with

restrictive markings.

(a) Identification requirements.

(1) The solicitation provision at 252.227-7017 , Identification and Assertion of Use, Release, or

Disclosure Restrictions, requires offerors to identify to the contracting officer, prior to contract

award, any technical data that the offeror asserts should be provided to the Government with

restrictions on use, modification, reproduction, release or disclosure. This requirement does not

apply to restrictions based solely on copyright. The notification and identification must be submitted

as an attachment to the offer. If an offeror fails to submit the attachment or fails to complete the

attachment in accordance with the requirements of the solicitation provision, such failure shall

constitute a minor informality. Provide offerors an opportunity to remedy a minor informality in

accordance with the procedures at FAR 14.405 or 15.306. An offeror's failure to correct the

informality within the time prescribed by the contracting officer shall render the offer ineligible for

award.

(2) The procedures for correcting minor informalities shall not be used to obtain information

regarding asserted restrictions or an offeror's suggested asserted rights category. Questions

regarding the justification for an asserted restriction or asserted rights category must be pursued in

accordance with the procedures at 227.7103-13 .

(3) The restrictions asserted by a successful offeror shall be attached to its contract unless, in

accordance with the procedures at 227.7103-13 , the parties have agreed that an asserted

restriction is not justified. The contract attachment shall provide the same information regarding

identification of the technical data, the asserted rights category, the basis for the assertion, and the

name of the person asserting the restrictions as required by paragraph (d) of the solicitation

provision at 252.227-7017 . Subsequent to contract award, the clause at 252.227-7013 , Rights in

Technical Data–Other Than Commercial Products and Commercial Services, permits the contractor

to make additional assertions under certain conditions. The additional assertions must be made in

accordance with the procedures and in the format prescribed by that clause.

(4) Neither the pre- or post-award assertions made by the contractor, nor the fact that certain

assertions are identified in the attachment to the contract, determine the respective rights of the

parties. As provided at 227.7103-13 , the Government has the right to review, verify, challenge and

validate restrictive markings.
(5) Information provided by offerors in response to the solicitation provision may be used in the

source selection process to evaluate the impact on evaluation factors that may be created by

restrictions on the Government's ability to use or disclose technical data. However, offerors shall not

be prohibited from offering products for which the offeror is entitled to provide the Government

limited rights in the technical data pertaining to such products and offerors shall not be required,

either as a condition of being responsive to a solicitation or as a condition for award, to sell or

otherwise relinquish any greater rights in technical data when the offeror is entitled to provide the

technical data with limited rights.

(b) Contractor marking requirements. The clause at 252.227-7013 , Rights in Technical Data–Other

Than Commercial Products and Commercial Services—

(1) Requires a contractor that desires to restrict the Government's rights in technical data to place

restrictive markings on the data, provides instructions for the placement of the restrictive markings,

and authorizes the use of certain restrictive markings; and

(2) Requires a contractor to deliver, furnish, or otherwise provide to the Government any technical

data in which the Government has previously obtained rights with the Government's pre-existing

rights in that data unless the parties have agreed otherwise or restrictions on the Government's

rights to use, modify, reproduce, release, perform, display, or disclose the data have expired. When

restrictions are still applicable, the contractor is permitted to mark the data with the appropriate

restrictive legend for which the data qualified.

(c) Unmarked technical data.

(1) Technical data delivered or otherwise provided under a contract without restrictive markings

shall be presumed to have been delivered with unlimited rights and may be released or disclosed

without restriction. To the extent practicable, if a contractor has requested permission (see

paragraph (c)(2) of this subsection) to correct an inadvertent omission of markings, do not release or

disclose the technical data pending evaluation of the request.

(2) A contractor may request permission to have appropriate legends placed on unmarked technical

data at its expense. The request must be received by the contracting officer within six months

following the furnishing or delivery of such data, or any extension of that time approved by the

contracting officer. The person making the request must:

(i) Identify the technical data that should have been marked;

(ii) Demonstrate that the omission of the marking was inadvertent, the proposed marking is justified

and conforms with the requirements for the marking of technical data contained in the clause at

252.227-7013 ; and

(iii) Acknowledge, in writing, that the Government has no liability with respect to any disclosure,

reproduction, or use of the technical data made prior to the addition of the marking or resulting

from the omission of the marking.

(3) Contracting officers should grant permission to mark only if the technical data were not

distributed outside the Government or were distributed outside the Government with restrictions on

further use or disclosure.
227.7103-11 Contractor procedures and records.

(a) The clause at 252.227-7013 , Rights in Technical Data–Other Than Commercial Products and

Commercial Services, requires a contractor, and its subcontractors or suppliers that will deliver

technical data with other than unlimited rights, to establish and follow written procedures to assure

that restrictive markings are used only when authorized and to maintain records to justify the

validity of asserted restrictions on delivered data.

(b) The clause at 252.227-7037 , Validation of Restrictive Markings on Technical Data requires

contractors and their subcontractors at any tier to maintain records sufficient to justify the validity

of restrictive markings on technical data delivered or to be delivered under a Government contract.

227.7103-12 Government right to establish conformity of markings.

(a) Nonconforming markings.

(1) Authorized markings are identified in the clause at 252.227-7013 , Rights in Technical

Data–Other Than Commercial Products and Commercial Services. All other markings are

nonconforming markings. An authorized marking that is not in the form, or differs in substance,

from the marking requirements in the clause at 252.227-7013 is also a nonconforming marking.

(2) The correction of nonconforming markings on technical data is not subject to 252.227-7037 ,

Validation of Restrictive Markings on Technical Data. To the extent practicable, the contracting

officer should return technical data bearing nonconforming markings to the person who has placed

the nonconforming markings on such data to provide that person an opportunity to correct or strike

the nonconforming marking at that person's expense. If that person fails to correct the

nonconformity and return the corrected data within 60 days following the person's receipt of the

data, the contracting officer may correct or strike the nonconformity at that person's expense. When

it is impracticable to return technical data for correction, contracting officers may unilaterally

correct any nonconforming markings at Government expense. Prior to correction, the data may be

used in accordance with the proper restrictive marking.

(b) Unjustified markings.

(1) An unjustified marking is an authorized marking that does not depict accurately restrictions

applicable to the Government's use, modification, reproduction, release, performance, display, or

disclosure of the marked technical data. For example, a limited rights legend placed on technical

data pertaining to items, components, or processes that were developed under a Government

contract either exclusively at Government expense or with mixed funding (situations under which

the Government obtains unlimited or government purpose rights) is an unjustified marking.

(2) Contracting officers have the right to review and challenge the validity of unjustified markings.

However, at any time during performance of a contract and notwithstanding existence of a

challenge, the contracting officer and the person who has asserted a restrictive marking may agree

that the restrictive marking is not justified. Upon such agreement, the contracting officer may, at his

or her election, either—

(i) Strike or correct the unjustified marking at that person's expense; or

(ii) Return the technical data to the person asserting the restriction for correction at that person's
expense. If the data are returned and that person fails to correct or strike the unjustified restriction

and return the corrected data to the contracting officer within 60 days following receipt of the data,

the unjustified marking shall be corrected or stricken at that person's expense.

227.7103-13 Government right to review, verify, challenge, and validate asserted

restrictions.

(a) General. An offeror's assertion(s) of restrictions on the Government's rights to use, modify,

reproduce, release, or disclose technical data do not, by themselves, determine the extent of the

Government's rights in the technical data. Under 10 U.S.C. 3782 Government has the right to

challenge asserted restrictions when there are reasonable grounds to question the validity of the

assertion and continued adherence to the assertion would make it impractical to later procure

competitively the item to which the data pertain.

(b) Pre-award considerations. The challenge procedures required by 10 U.S.C. 3782 could

significantly delay awards under competitive procurements. Therefore, avoid challenging asserted

restrictions prior to a competitive contract award unless resolution of the assertion is essential for

successful completion of the procurement.

(c) Challenge considerations and presumption.

(1) Requirements to initiate a challenge. Contracting officers shall have reasonable grounds to

challenge the validity of an asserted restriction. Before issuing a challenge to an asserted restriction,

carefully consider all available information pertaining to the assertion.

(2) Commercial products and commercial services–presumption regarding development exclusively

at private expense. 10 U.S.C. 3772(a)(1) and 3784 establish a presumption and procedures

regarding validation of asserted restrictions for technical data related to commercial products or

commercial services on the basis of development exclusively at private expense. Contracting officers

shall presume that a commercial product or commercial service was developed exclusively at private

expense whether or not a contractor or subcontractor submits a justification in response to a

challenge notice. The contracting officer shall not challenge a contractor's assertion that a

commercial product or commercial service was developed exclusively at private expense unless the

Government can specifically state the reasonable grounds to question the validity of the assertion.

The challenge notice shall include sufficient information to reasonably demonstrate that the

commercial item was not developed exclusively at private expense. In order to sustain the challenge,

the contracting officer shall provide information demonstrating that the commercial product or

commercial service was not developed exclusively at private expense. The challenge notice and all

related correspondence shall be subject to handling procedures for classified information and

controlled unclassified information. A contractor's or subcontractor's failure to respond to the

challenge notice cannot be the sole basis for issuing a final decision denying the validity of an

asserted restriction.

(d) Challenge and validation. All challenges must be made in accordance with the provisions of the

clause at 252.227-7037 , Validation of Restrictive Markings on Technical Data.

(1) Challenge period. Asserted restrictions should be reviewed before acceptance of technical data

deliverable under the contract. Assertions must be challenged within three years after final payment

under the contract or three years after delivery of the data, whichever is later. However, restrictive

markings may be challenged at any time if the technical data—
(i) Are publicly available without restrictions;

(ii) Have been provided to the United States without restriction; or

(iii) Have been otherwise made available without restriction other than a release or disclosure

resulting from the sale, transfer, or other assignment of interest in the technical data to another

party or the sale or transfer of some or all of a business entity or its assets to another party.

(2) Pre-challenge requests for information.

(i) After consideration of the situations described in paragraph (d)(3) of this subsection, contracting

officers may request the person asserting a restriction to furnish a written explanation of the facts

and supporting documentation for the assertion in sufficient detail to enable the contracting officer

to ascertain the basis of the restrictive markings. Additional supporting documentation may be

requested when the explanation provided by the person making the assertion does not, in the

contracting officer's opinion, establish the validity of the assertion.

(ii) If the person asserting the restriction fails to respond to the contracting officer's request for

information or additional supporting documentation, or if the information submitted or any other

available information pertaining to the validity of a restrictive marking does not justify the asserted

restriction, a challenge should be considered.

(3) Transacting matters directly with subcontractors. The clause at 252.227-7037 obtains the

contractor's agreement that the Government may transact matters under the clause directly with a

subcontractor, at any tier, without creating or implying privity of contract. Contracting officers

should permit a subcontractor or supplier to transact challenge and validation matters directly with

the Government when—

(i) A subcontractor's or supplier's business interests in its technical data would be compromised if

the data were disclosed to a higher tier contractor;

(ii) There is reason to believe that the contractor will not respond in a timely manner to a challenge

and an untimely response would jeopardize a subcontractor's or supplier's right to assert

restrictions; or

(iii) Requested to do so by a subcontractor or supplier.

(4) Challenge notice. The contracting officer shall not issue a challenge notice unless there are

reasonable grounds to question the validity of an assertion. For commercial products or commercial

services, also see paragraph (c)(2) of this section. The contracting officer may challenge an assertion

whether or not supporting documentation was requested under paragraph (d)(2) of this section.

Challenge notices must be in writing and issued to the contractor or, after consideration of the

situations described in paragraph (d)(3) of this subsection, the person asserting the restriction. The

challenge notice must include the information in paragraph (e) of the clause at 252.227-7037 .

(5) Extension of response time. The contracting officer, at his or her discretion, may extend the time

for response contained in a challenge notice, as appropriate, if the contractor submits a timely

written request showing the need for additional time to prepare a response.

(6) Contracting officer's final decision. Contracting officers must issue a final decision for each

challenged assertion, whether or not the assertion has been justified.

(i) A contracting officer's final decision that an assertion is not justified must be issued as soon as
practicable following the failure of the person asserting the restriction to respond to the contracting

officer's challenge within 60 days, or any extension to that time granted by the contracting officer.

(ii) A contracting officer who, following a challenge and response by the person asserting the

restriction, determines that an asserted restriction is justified, shall issue a final decision sustaining

the validity of the asserted restriction. If the asserted restriction was made subsequent to

submission of the contractor's offer, add the asserted restriction to the contract attachment.

(iii) A contracting officer who determines that the validity of an asserted restriction has not been

justified shall issue a contracting officer's final decision within the time frames prescribed in

252.227-7037 . As provided in paragraph (g) of that clause, the Government is obligated to continue

to respect the asserted restrictions through final disposition of any appeal unless the agency head

notifies the person asserting the restriction that urgent or compelling circumstances do not permit

the Government to continue to respect the asserted restriction.

(7) Multiple challenges to an asserted restriction. When more than one contracting officer

challenges an asserted restriction, the contracting officer who made the earliest challenge is

responsible for coordinating the Government challenges. That contracting officer shall consult with

all other contracting officers making challenges, verify that all challenges apply to the same asserted

restriction and, after consulting with the contractor, subcontractor, or supplier asserting the

restriction, issue a schedule that provides that person a reasonable opportunity to respond to each

challenge.

(8) Validation. Only a contracting officer's final decision, or actions of an agency board of contract

appeals or a court of competent jurisdiction, that sustain the validity of an asserted restriction

constitute validation of the asserted restriction.

227.7103-14 Conformity, acceptance, and warranty of technical data.

(a) Statutory requirements. 10 U.S.C. 3772 -

(1) Provides for the establishment of remedies applicable to technical data found to be incomplete,

inadequate, or not to satisfy the requirements of the contract concerning such data; and

(2) Authorizes agency heads to withhold payments (or exercise such other remedies an agency head

considers appropriate) during any period if the contractor does not meet the requirements of the

contract pertaining to the delivery of technical data.

(b) Conformity and acceptance. (1) Solicitations and contracts requiring the delivery of technical

data shall specify the requirements the data must satisfy to be acceptable. Contracting officers, or

their authorized representatives, are responsible for determining whether technical data tendered

for acceptance conform to the contractual requirements.

(2) The clause at 252.227-7030, Technical Data - Withholding of Payment, provides for withholding

up to 10 percent of the contract price pending correction or replacement of the nonconforming

technical data or negotiation of an equitable reduction in contract price. The amount subject to

withholding may be expressed as a fixed dollar amount or as a percentage of the contract price. In

either case, the amount shall be determined giving consideration to the relative value and

importance of the data. For example -

(i) When the sole purpose of a contract is to produce the data, the relative value of that data may be
considerably higher than the value of data produced under a contract where the production of the

data is a secondary objective; or

(ii) When the Government will maintain or repair items, repair and maintenance data may have a

considerably higher relative value than data that merely describe the item or provide performance

characteristics.

(3) Do not accept technical data that do not conform to the contractual requirements in all respects.

Except for nonconforming restrictive markings (see paragraph (b)(4) of this subsection), correction

or replacement of nonconforming data or an equitable reduction in contract price when correction

or replacement of the nonconforming data is not practicable or is not in the Government's interests,

shall be accomplished in accordance with -

(i) The provisions of a contract clause providing for inspection and acceptance of deliverables and

remedies for nonconforming deliverables; or

(ii) The procedures at FAR 46.407(c) through (g), if the contract does not contain an inspection

clause providing remedies for nonconforming deliverables.

(4) Follow the procedures at 227.7103-12(a)(2) if nonconforming markings are the sole reason

technical data fail to conform to contractual requirements. The clause at 252.227-7030 may be used

to withhold an amount for payment, consistent with the terms of the clause, pending correction of

the nonconforming markings.

(c) Warranty. (1) The intended use of the technical data and the cost, if any, to obtain the warranty

should be considered before deciding to obtain a data warranty (see FAR 46.703). The fact that a

particular item, component, or process is or is not warranted is not a consideration in determining

whether or not to obtain a warranty for the technical data that pertain to the item, component, or

process. For example, a data warranty should be considered if the Government intends to repair or

maintain an item and defective repair or maintenance data would impair the Government's effective

use of the item or result in increased costs to the Government.

(2) As prescribed in 246.710, use the clause at 252.246-7001, Warranty of Data, and its alternates,

or a substantially similar clause when the Government needs a specific warranty of technical data.

227.7103-15 Subcontractor rights in technical data.

(a) 10 U.S.C. 3771 provides subcontractors at all tiers the same protection for their rights in data as

is provided to prime contractors. The clauses at 252.227-7013 , Rights in Technical Data–Other Than

Commercial Products and Commercial Services, and 252.227-7037 , Validation of Restrictive

Markings on Technical Data, implement the statutory requirements.

(b) 10 U.S.C. 3782 permits a subcontractor to transact directly with the Government matters

relating to the validation of its asserted restrictions on the Government's rights to use or disclose

technical data. The clause at 252.227-7037 obtains a contractor's agreement that the direct

transaction of validation or challenge matters with subcontractors at any tier does not establish or

imply privity of contract. When a subcontractor or supplier exercises its right to transact validation

matters directly with the Government, contracting officers shall deal directly with such persons, as

provided at 227.7103-13 (c)(3).

(c) Require prime contractors whose contracts include the following clauses to include those
clauses, without modification except for appropriate identification of the parties, in contracts with

subcontractors or suppliers, at all tiers, who will be furnishing technical data for other than

commercial products or commercial services in response to a Government requirement:

(1) 252.227-7013 , Rights in Technical Data–Other Than Commercial Products and Commercial

Services;

(2) 252.227-7025 , Limitations on the Use or Disclosure of Government-Furnished Information

Marked with Restrictive Legends;

(3) 252.227-7028 , Technical Data or Computer Software Previously Delivered to the Government;

and

(4) 252.227-7037 , Validation of Restrictive Markings on Technical Data.

(d) Do not require contractors to have their subcontractors or suppliers at any tier relinquish rights

in technical data to the contractor, a higher tier subcontractor, or to the Government, as a condition

for award of any contract, subcontract, purchase order, or similar instrument except for the rights

obtained by the Government under the Rights in Technical Data–Other Than Commercial Products

and Commercial Services clause contained in the contractor's contract with the Government.

227.7103-16 Providing technical data to foreign governments, foreign contractors, or

international organizations.

Technical data may be released or disclosed to foreign governments, foreign contractors, or

international organizations only if release or disclosure is otherwise permitted both by Federal

export controls and other national security laws or regulations. Subject to such laws and regulations,

the Department of Defense—

(a) May release or disclose technical data in which it has obtained unlimited rights to such foreign

entities or authorize the use of such data by those entities; and

(b) Shall not release or disclose technical data for which restrictions on use, release, or disclosure

have been asserted to foreign entities, or authorize the use of technical data by those entities, unless

the intended recipient is subject to the same provisions as included in the use and non-disclosure

agreement at 227.7103-7 and the requirements of the clause at 252.227-7013 , Rights in Technical

Data–Other Than Commercial Products and Commercial Services, governing use, modification,

reproduction, release, performance, display, or disclosure of such data have been satisfied.

227.7103-17 Overseas contracts with foreign sources.

(a) The clause at 252.227-7032 , Rights in Technical Data and Computer Software (Foreign), may be

used in contracts with foreign contractors to be performed overseas, except Canadian purchases

(see paragraph (c) of this subsection), in lieu of the clause at 252.227-7013 , Rights in Technical

Data–Other Than Commercial Products and Commercial Services, when the Government requires

the unrestricted right to use, modify, reproduce, perform, display, release, or disclose all technical

data to be delivered under the contract. Do not use the clause in contracts for existing or special

works.
(b) When the Government does not require unlimited rights, the clause at 252.227-7032 may be

modified to accommodate the needs of a specific overseas procurement situation. The Government

should obtain rights in the technical data that are not less than the rights the Government would

have obtained under the data rights clause(s) prescribed in this part for a comparable procurement

performed within the United States or its outlying areas.

(c) Contracts for Canadian purchases shall include the appropriate data rights clause prescribed in

this part for a comparable procurement performed within the United States or its outlying areas.

227.7104 Contracts under the Small Business Innovation Research (SBIR)

Program.

(a) Use the clause at 252.227-7018 , Rights in Other Than Commercial Technical Data and Computer

Software–Small Business Innovation Research (SBIR) Program, when technical data or computer

software will be generated during performance of contracts under the SBIR program.

(b) Under the clause at 252.227-7018 , the Government obtains SBIR data rights in technical data

and computer software generated under the contract and marked with the SBIR data rights legend.

SBIR data rights provide the Government limited rights in such technical data and restricted rights

in such computer software during the SBIR data protection period commencing with contract award

and ending five years after completion of the project under which the data were generated. Upon

expiration of the five-year restrictive license, the Government has unlimited rights in the SBIR

technical data and computer software.

(c) During the SBIR data protection period, the Government may not release or disclose SBIR

technical data or computer software to any person except as authorized for limited rights technical

data or restricted rights computer software, respectively.

(d) Use the clause at 252.227-7018 with its Alternate I in research contracts when the contracting

officer determines, in consultation with counsel, that public dissemination by the contractor would

be—

(1) In the interest of the Government; and

(2) Facilitated by the Government relinquishing its right to publish the work for sale, or to have

others publish the work for sale on behalf of the Government.

(e) Use the following provision and clauses in SBIR solicitations and contracts that include the

clause at 252.227-7018 :

(1) 252.227-7016 , Rights in Bid or Proposal Information;

(2) 252.227-7017 , Identification and Assertion of Use, Release, or Disclosure Restrictions;

(3) 252.227-7019 , Validation of Asserted Restrictions–Computer Software;

(4) 252.227-7030 , Technical Data–Withholding of Payment; and

(5) 252.227-7037 , Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause

contains information that must be included in a challenge).
(f) Use the following clauses and provision in SBIR solicitations and contracts in accordance with the

guidance at 227.7103-6 (c) and (d):

(1) 252.227-7025 , Limitations on the Use or Disclosure of Government-Furnished Information

Marked with Restrictive Legends; and

(2) 252.227-7028 , Technical Data or Computer Software Previously Delivered to the Government.

227.7105 Contracts for the acquisition of existing works.

227.7105-1 General.

(a) Existing works include motion pictures, television recordings, video recordings, and other

audiovisual works in any medium; sound recordings in any medium; musical, dramatic, and literary

works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; and works of

a similar nature. Usually, these or similar works were not first created, developed, generated,

originated, prepared, or produced under a Government contract. Therefore, the Government must

obtain a license in the work if it intends to reproduce the work, distribute copies of the work,

prepare derivative works, or perform or display the work publicly. When the Government is not

responsible for the content of an existing work, it should require the copyright owner to indemnify

the Government for liabilities that may arise out of the content, performance, use, or disclosure of

such data.

(b) Follow the procedures at 227.7106 for works which will be first created, developed, generated,

originated, prepared, or produced under a Government contract and the Government needs to

control distribution of the work or has a specific need to obtain indemnity for liabilities that may

arise out of the creation, content, performance, use, or disclosure of the work or from libelous or

other unlawful material contained in the work. Follow the procedures at 227.7103 when the

Government does not need to control distribution of such works or obtain such indemnities.

227.7105-2 Acquisition of existing works without modification.

(a) Use the clause at 252.227-7021 , Rights in Data–Existing Works, in lieu of the clause at

252.227-7013 , Rights in Technical Data–Other Than Commercial Products and Commercial

Services, in solicitations and contracts exclusively for existing works when—

(1) The existing works will be acquired without modification; and

(2) The Government requires the right to reproduce, prepare derivative works, or publicly perform

or display the existing works; or

(3) The Government has a specific need to obtain indemnity for liabilities that may arise out of the

content, performance, use, or disclosure of such data.

(b) The clause at 252.227-7021 provides the Government, and others acting on its behalf, a paid-up,

non-exclusive, irrevocable, world-wide license to reproduce, prepare derivative works and publicly

perform or display the works called for by a contract and to authorize others to do so for government

purposes.
(c) A contract clause is not required to acquire existing works such as books, magazines and

periodicals, in any storage or retrieval medium, when the Government will not reproduce the books,

magazines or periodicals, or prepare derivative works.

227.7105-3 Acquisition of modified existing works.

Use the clause at 252.227-7020 , Rights in Special Works, in solicitations and contracts for modified

existing works in lieu of the clause at 252.227-7021 , Rights in Data–Existing Works.

227.7106 Contracts for special works.

(a) Use the clause at 252.227-7020 , Rights in Special Works, in solicitations and contracts where

the Government has a specific need to control the distribution of works first produced, created, or

generated in the performance of a contract and required to be delivered under that contract,

including controlling distribution by obtaining an assignment of copyright, or a specific need to

obtain indemnity for liabilities that may arise out of the creation, delivery, use, modification,

reproduction, release, performance, display, or disclosure of such works. Use the clause—

(1) In lieu of the clause at 252.227-7013 , Rights in Technical Data–Other Than Commercial Products

and Commercial Services, when the Government must own or control copyright in all works first

produced, created, or generated and required to be delivered under a contract; or

(2) In addition to the clause at 252.227-7013 when the Government must own or control copyright in

a portion of a work first produced, created, or generated and required to be delivered under a

contract. The specific portion in which the Government must own or control copyright must be

identified in a special contract requirement.

(b) Although the Government obtains an assignment of copyright and unlimited rights in a special

work under the clause at 252.227-7020 , the contractor retains use and disclosure rights in that

work. If the Government needs to restrict a contractor's rights to use or disclose a special work, it

must also negotiate a special license which specifically restricts the contractor's use or disclosure

rights.

(c) The clause at 252.227-7020 does not permit a contractor to incorporate into a special work any

works copyrighted by others unless the contractor obtains the contracting officer's permission to do

so and obtains for the Government a non-exclusive, paid up, world-wide license to make and

distribute copies of that work, to prepare derivative works, to perform or display publicly any

portion of the work, and to permit others to do so for government purposes. Grant permission only

when the Government's requirements cannot be satisfied unless the third party work is included in

the deliverable work.

(d) Examples of works which may be procured under the Rights in Special Works clause include, but

are not limited, to audiovisual works, computer data bases, computer software documentation,

scripts, soundtracks, musical compositions, and adaptations; histories of departments, agencies,

services or units thereof; surveys of Government establishments; instructional works or guidance to

Government officers and employees on the discharge of their official duties; reports, books, studies,

surveys or similar documents; collections of data containing information pertaining to individuals

that, if disclosed, would violate the right of privacy or publicity of the individuals to whom the

information relates; or investigative reports.
227.7107 Contracts for architect-engineer services.

This section sets forth policies and procedures, pertaining to data, copyrights, and restricted designs

unique to the acquisition of construction and architect engineer services.

227.7107-1 Architectural designs and data clauses for architect-engineer or construction

contracts.

(a) Except as provided in paragraph (b) of this subsection and in 227.7107-2 , use the clause at

252.227-7022 , Government Rights (Unlimited), in solicitations and contracts for architect-engineer

services and for construction involving architect engineer services.

(b) When the purpose of a contract for architect-engineer services, or for construction involving

architect-engineer services, is to obtain a unique architectural design of a building, a monument, or

construction of similar nature, which for artistic, aesthetic or other special reasons the Government

does not want duplicated, the Government may acquire exclusive control of the data pertaining to

the design by including the clause at 252.227-7023 , Drawings and Other Data to Become Property

of Government, in solicitations and contracts.

(c) The Government shall obtain unlimited rights in shop drawings for construction. In solicitations

and contracts calling for delivery of shop drawings, include the clause at 252.227-7033 , Rights in

Shop Drawings.

227.7107-2 Contracts for construction supplies and research and development work.

Use the provisions and clauses required by 227.7103-6 and 227.7203-6 when the acquisition is

limited to—

(a) Construction supplies or materials;

(b) Experimental, developmental, or research work, or test and evaluation studies of structures,

equipment, processes, or materials for use in construction; or

(c) Both.

227.7107-3 Approval of restricted designs.

The clause at 252.227-7024 , Notice and Approval of Restricted Designs, may be included in

architect-engineer contracts to permit the Government to make informed decisions concerning

noncompetitive aspects of the design.

227.7108 Contractor data repositories.

(a) Contractor data repositories may be established when permitted by agency procedures. The

contractual instrument establishing the data repository must require, as a minimum, the data
repository management contractor to—

(1) Establish and maintain adequate procedures for protecting technical data delivered to or stored

at the repository from unauthorized release or disclosure;

(2) Establish and maintain adequate procedures for controlling the release or disclosure of technical

data from the repository to third parties consistent with the Government's rights in such data;

(3) When required by the contracting officer, deliver data to the Government on paper or in other

specified media;

(4) Be responsible for maintaining the currency of data delivered directly by Government contractors

or subcontractors to the repository;

(5) Obtain use and non-disclosure agreements (see 227.7103-7 ) from all persons to whom

government purpose rights data is released or disclosed; and

(6) Indemnify the Government from any liability to data owners or licensors resulting from, or as a

consequence of, a release or disclosure of technical data made by the data repository contractor or

its officers, employees, agents, or representatives.

(b) If the contractor is or will be the data repository manager, the contractor's data management and

distribution responsibilities must be identified in the contract or the contract must reference the

agreement between the Government and the contractor that establishes those responsibilities.

(c) If the contractor is not and will not be the data repository manager, do not require a contractor

or subcontractor to deliver technical data marked with limited rights legends to a data repository

managed by another contractor unless the contractor or subcontractor who has asserted limited

rights agrees to release the data to the repository or has authorized, in writing, the Government to

do so.

(d) Repository procedures may provide for the acceptance, delivery, and subsequent distribution of

technical data in storage media other than paper, including direct electronic exchange of data

between two computers. The procedures must provide for the identification of any portions of the

data provided with restrictive legends, when appropriate. The acceptance criteria must be

consistent with the authorized delivery format.

Subpart 227.72 - COMPUTER SOFTWARE, COMPUTER

SOFTWARE DOCUMENTATION, AND ASSOCIATED RIGHTS

227.7200 Scope of subpart.

(a)This subpart—

(1) Prescribes policies and procedures for the acquisition of computer software and computer

software documentation, and the rights to use, modify, reproduce, release, perform, display, or

disclose such software or documentation. It implements the following laws and Executive order:

(i) 10 U.S.C. 3013.
(ii) 10 U.S.C. 3208(d).

(iii) 10 U.S.C. 3771-3775.

(iv) 10 U.S.C. 3781-3786.

(v) 10 U.S.C. 4576.

(vi) Executive Order 12591 (subsection 1(b)(7)).

(2) Does not apply to—

(i) Computer software or computer software documentation acquired under GSA schedule contracts;

or

(ii) Releases of computer software or computer software documentation to litigation support

contractors (see subpart 204.74).

(b) See 227.7200 (b) for guidance and information in DoD issuances.

227.7201 Definitions.

(a) As used in this subpart, unless otherwise specifically indicated, the terms “offeror” and

“contractor” include an offeror's or contractor's subcontractors, suppliers, or potential

subcontractors or suppliers at any tier.

(b) Other terms used in this subpart are defined in the clause at 252.227-7014 , Rights in Other Than

Commercial Computer Software and Other Than Commercial Computer Software Documentation.

227.7202 Commercial computer software and commercial computer software

documentation.

227.7202-1 Policy.

(a) Commercial computer software or commercial computer software documentation shall be

acquired under the licenses customarily provided to the public unless such licenses are inconsistent

with Federal procurement law or do not otherwise satisfy user needs.

(b) Commercial computer software and commercial computer software documentation shall be

obtained competitively, to the maximum extent practicable, using firm-fixed-price contracts or firmfixed-priced orders under available pricing schedules.

(c) Offerors and contractors shall not be required to—

(1) Furnish technical information related to commercial computer software or commercial computer

software documentation that is not customarily provided to the public except for information

documenting the specific modifications made at Government expense to such software or

documentation to meet the requirements of a Government solicitation; or
(2) Relinquish to, or otherwise provide, the Government rights to use, modify, reproduce, release,

perform, display, or disclose commercial computer software or commercial computer software

documentation except for a transfer of rights mutually agreed upon.

(d) When establishing contract requirements and negotiation objectives to meet agency needs, the

Government should consider the factors identified in 227.7203-2(b) and (c) for commercial computer

software and computer software documentation, consistent with paragraph (c) of this section.

227.7202-2 Reserved.

227.7202-3 Rights in commercial computer software or commercial computer software

documentation.

(a) The Government shall have only the rights specified in the license under which the commercial

computer software or commercial computer software documentation was obtained.

(b) If the Government has a need for rights not conveyed under the license customarily provided to

the public, the Government must negotiate with the contractor to determine if there are acceptable

terms for transferring such rights. The specific rights granted to the Government shall be

enumerated in the contract license agreement or an addendum thereto.

227.7202-4 Contract clause.

A specific contract clause governing the Government's rights in commercial computer software or

commercial computer software documentation is not prescribed. As required by 227.7202-3 , the

Government’s rights to use, modify, reproduce, release, perform, display, or disclose computer

software or computer software documentation shall be identified in a license agreement.

227.7203 Other than commercial computer software and other than

commercial computer software documentation.

227.7203-1 Policy.

(a) DoD policy is to acquire only the computer software and computer software documentation, and

the rights in such software or documentation, necessary to satisfy agency needs.

(b) Solicitations and contracts shall—

(1) Specify the computer software or computer software documentation to be delivered under a

contract and the delivery schedules for the software or documentation;

(2) Establish or reference procedures for determining the acceptability of computer software or

computer software documentation;

(3) Establish separate contract line items, to the extent practicable, for the computer software or
computer software documentation to be delivered under a contract and require offerors and

contractors to price separately each deliverable data item; and

(4) Require offerors to identify, to the extent practicable, computer software or computer software

documentation to be furnished with restrictions on the Government's rights and require contractors

to identify computer software or computer software documentation to be delivered with such

restrictions prior to delivery.

(c) Offerors shall not be required, either as a condition of being responsive to a solicitation or as a

condition for award, to sell or otherwise relinquish to the Government any rights in computer

software developed exclusively at private expense except for the software identified at

227.7203-5(a)(3) through (6).

(d) Offerors and contractors shall not be prohibited or discouraged from furnishing or offering to

furnish computer software developed exclusively at private expense solely because the

Government's rights to use, modify, release, reproduce, perform, display, or disclose the software

may be restricted.

(e) For acquisitions involving major weapon systems or subsystems of major weapon systems, the

acquisition plan shall address acquisition strategies that provide for computer software and

computer software documentation, and the associated license rights, in accordance with

207.106(S-70).

227.7203-2 Acquisition of other than commercial computer software and computer

software documentation and associated rights.

(a) Contracting officers shall work closely with data managers and requirements personnel to assure

that computer software and computer software documentation requirements included in solicitations

are consistent with the policy expressed in 227.7203-1 .

(b)(1) Data managers or other requirements personnel are responsible for identifying the

Government’s life-cycle needs for computer software and computer software documentation . See

PGI 227.7203-2(b) for further guidance on assessing life-cycle needs. In addition to desired software

performance, compatibility, or other technical considerations, identification of life-cycle needs

should consider such factors as —

(i) The offeror’s economic interests in software that has been developed at private expense

(including the economic interests of small businesses and nontraditional contractors);

(ii) The Government’s costs to develop, acquire, maintain, store, retrieve, and protect the computer

software and computer software documentation;

(iii) Multiple site or shared use requirements;

(iv) Whether the Government’s software maintenance philosophy will require the right to modify or

have third parties modify the software,; and

(v) Any special computer software documentation requirements.

(2)(i) Procurement planning. To the maximum extent practicable, when assessing the life-cycle

needs, data managers or other requirements personnel will address in the procurement planning
and requirements documents (e.g., acquisition plans, purchase requests) the acquisition at

appropriate times in the life cycle of all computer software, related recorded information, and

associated license rights necessary to—

(A) Reproduce, build, or recompile the software from its source code and required software libraries

(e.g., software libraries called, invoked, or linked by the computer software source code that are

necessary for the operation of the software);

(B) Conduct required computer software testing and evaluation;

(C) Integrate and deploy computer programs on relevant hardware including developmental,

operational, diagnostic, training, or simulation environments; and

(D) Sustain and support the software over its life cycle.

(ii) Alternatives to delivery of source code and related software design details. The assessment of

life-cycle needs should consider alternatives to the delivery of source code and related software

design details for privately developed computer software as necessary to meet the Government’s

needs, such as—

(A) Technical data and computer software sufficient to implement a modular open system approach

or a similar approach (see PGI 227.7203-2(b)(2)(ii)(A) (DFARS/PGI view) for guidance on alternatives

to source code and related software design details);

(B) Access to technical data or computer software, including access agreements for cloud-based or

subscription-based software products or services; see PGI 227.7203-2(b)(2)(ii)(B) and (C)

(DFARS/PGI view) for guidance on use of access agreements to contractor source code and related

software design details;

(C) Software support and maintenance provided directly from the contractor; or

(D) Other contracting or licensing mechanisms including priced options, specially negotiated

licenses, direct licensing between contractors for qualifying second sources, data escrow

agreements, deferred delivery solutions, and subscription agreements. See PGI

227.7203-2(b)(2)(ii)(D) (DFARS/PGI view) for guidance on use of escrow agreements.

(3) When reviewing offers received in response to a solicitation or other request for computer

software or computer software documentation, data managers must balance the original assessment

of the Government's needs with prices offered.

(c) Contracting officers are responsible for ensuring that, wherever practicable, solicitations and

contracts—

(1) Identify the types of computer software and the quantity of computer programs and computer

software documentation to be delivered, any requirements for multiple users at one site or multiple

site licenses, and the format and media in which the software or documentation will be delivered;

(2) Establish each type of computer software or computer software documentation to be delivered as

a separate contract line item (this requirement may be satisfied by an exhibit to the contract);

(3) Identify the prices established for each separately priced deliverable item of computer software

or computer software documentation under a fixed-price type contract;
(4) Include delivery schedules and acceptance criteria for each deliverable item;

(5) Specifically identify the place of delivery for each deliverable item; and

(6) Specify in the negotiated terms that any required other than commercial computer software,

related recorded information, and associated license rights identified in the assessment of life-cycle

needs in paragraph (b) of this section shall to the extent appropriate—

(i) Include computer software delivered in a digital format compatible with applicable computer

programs on relevant system hardware;

(ii) Not rely on additional internal or external other than commercial or commercial technical data

and software, unless such technical data or software is—

(A) Included in the items to be delivered with license rights sufficient to meet the Government’s

needs; or

(B) Commercially available with license rights sufficient to meet the Government’s needs; and

(iii) Include sufficient information, with license rights sufficient to meet the Government’s needs, to

support maintenance and understanding of interfaces and software version history when the

negotiated terms do not allow for the inclusion of the external or additional other than commercial

or commercial technical data and software.

227.7203-3 Early identification of computer software or computer software documentation

to be furnished to the Government with restrictions on use, reproduction, or disclosure.

(a) Use the provision at 252.227-7017 , Identification and Assertion of Use, Release, or Disclosure

Restrictions, in all solicitations that include the clause at 252.227-7014 , Rights in Other Than

Commercial Computer Software and Other Than Commercial Computer Software Documentation.

The provision requires offerors to identify any computer software or computer software

documentation for which restrictions, other than copyright, on use, modification, reproduction,

release, performance, display, or disclosure are asserted and to attach the identification and

assertion to the offer.

(b) Subsequent to contract award, the clause at 252.227-7014 permits a contractor, under certain

conditions, to make additional assertions of restrictions. The prescriptions for the use of that clause

and its alternates are at 227.7203-6 (a).

227.7203-4 License rights.

(a) Grant of license. The Government obtains rights in computer software or computer software

documentation, including a copyright license, under an irrevocable license granted or obtained by

the contractor which developed the software or documentation or the licensor of the software or

documentation if the development contractor is not the licensor. The contractor or licensor retains

all rights in the software or documentation not granted to the Government. The scope of a computer

software license is generally determined by the source of funds used to develop the software.

Contractors or licensors may, with some exceptions, restrict the Government's rights to use, modify,

reproduce, release, perform, display, or disclose computer software developed exclusively or
partially at private expense (see 227.7203-5 (b) and (c)). They may not, without the Government's

agreement (see 227.7203-5 (d)), restrict the Government's rights in computer software developed

exclusively with Government funds or in computer software documentation required to be delivered

under a contract.

(b) Source of funds determination. The determination of the source of funds used to develop

computer software should be made at the lowest practicable segregable portion of the software or

documentation (e.g., a software sub-routine that performs a specific function). Contractors may

assert restricted rights in a segregable portion of computer software which otherwise qualifies for

restricted rights under the clause at 252.227-7014 , Rights in Other Than Commercial Computer

Software and Other Than Commercial Computer Software Documentation.

227.7203-5 Government rights.

The standard license rights in computer software that a licensor grants to the Government are

unlimited rights, government purpose rights, or restricted rights. The standard license in computer

software documentation conveys unlimited rights. Those rights are defined in the clause at

252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial

Computer Software Documentation. In unusual situations, the standard rights may not satisfy the

Government's needs or the Government may be willing to accept lesser rights in return for other

consideration. In those cases, a special license may be negotiated. However, the licensor is not

obligated to provide the Government greater rights and the contracting officer is not required to

accept lesser rights than the rights provided in the standard grant of license. The situations under

which a particular grant of license applies are enumerated in paragraphs (a) through (d) of this

subsection.

(a) Unlimited rights. The Government obtains an unlimited rights license in—

(1) Computer software developed exclusively with Government funds;

(2) Computer software documentation required to be delivered under a Government contract;

(3) Corrections or changes to computer software or computer software documentation furnished to

the contractor by the Government;

(4) Computer software or computer software documentation that is otherwise publicly available or

has been released or disclosed by the contractor or subcontractor without restrictions on further

use, release or disclosure other than a release or disclosure resulting from the sale, transfer, or

other assignment of interest in the software to another party or the sale or transfer of some or all of

a business entity or its assets to another party;

(5) Computer software or computer software documentation obtained with unlimited rights under

another Government contract or as a result of negotiations; or

(6) Computer software or computer software documentation furnished to the Government, under a

Government contract or subcontract with—

(i) Restricted rights in computer software, limited rights in technical data, or government purpose

license rights and the restrictive conditions have expired; or

(ii) Government purpose rights and the contractor's exclusive right to use such software or
documentation for commercial purposes has expired.

(b) Government purpose rights.

(1) Except as provided in paragraph (a) of this subsection, the Government obtains government

purpose rights in computer software developed with mixed funding.

(2) The period during which government purpose rights are effective is negotiable. The clause at

252.227-7014 provides a nominal five-year period. Either party may request a different period.

Changes to the government purpose rights period may be made at any time prior to delivery of the

software without consideration from either party. Longer periods should be negotiated when a fiveyear period does not provide sufficient time to commercialize the software or, for software

developed by subcontractors, when necessary to recognize the subcontractors' interests in the

software.

(3) The government purpose rights period commences upon execution of the contract, subcontract,

letter contract (or similar contractual instrument), contract modification, or option exercise that

required development of the computer software. Upon expiration of the government purpose rights

period, the Government has unlimited rights in the software including the right to authorize others

to use the data for commercial purposes.

(4) During the government purpose rights period, the Government may not use, or authorize other

persons to use, computer software marked with government purpose rights legends for commercial

purposes. The Government shall not release or disclose, or authorize others to release or disclose,

computer software in which it has government purpose rights to any person unless—

(i) Prior to release or disclosure, the intended recipient is subject to the use and non-disclosure

agreement at 227.7103-7 ; or

(ii) The intended recipient is a Government contractor receiving access to the software for

performance of a Government contract that contains the clause at 252.227-7025 , Limitations on the

Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

(5) When computer software marked with government purpose rights legends will be released or

disclosed to a Government contractor performing a contract that does not include the clause at

252.227-7025 , the contract may be modified, prior to release or disclosure, to include such clause in

lieu of requiring the contractor to complete a use and non-disclosure agreement.

(6) Contracting activities shall establish procedures to assure that computer software or computer

software documentation marked with government purpose rights legends are released or disclosed,

including a release or disclosure through a Government solicitation, only to persons subject to the

use and non-disclosure restrictions. Public announcements in the Commerce Business Daily or other

publications must provide notice of the use and non-disclosure requirements. Class use and nondisclosure agreements (e.g., agreements covering all solicitations received by the XYZ company

within a reasonable period) are authorized and may be obtained at any time prior to release or

disclosure of the government purpose rights software or documentation. Documents transmitting

government purpose rights software or documentation to persons under class agreements shall

identify the specific software or documentation subject to government purpose rights and the class

agreement under which such software or documentation are provided.

(c) Restricted rights.

(1) The Government obtains restricted rights in other than commercial computer software, required
to be delivered or otherwise provided to the Government under a contract, that was developed

exclusively at private expense.

(2) Contractors are not required to provide the Government additional rights in computer software

delivered or otherwise provided to the Government with restricted rights. When the Government has

a need for additional rights, the Government must negotiate with the contractor to determine if

there are acceptable terms for transferring such rights. List or describe all software in which the

contractor has granted the Government additional rights in a license agreement made part of the

contract (see paragraph (d) of this subsection). The license shall enumerate the specific additional

rights granted to the Government.

(d) Specifically negotiated license rights. Negotiate specific licenses when the parties agree to

modify the standard license rights granted to the Government or when the Government wants to

obtain rights in computer software in which it does not have rights. When negotiating to obtain,

relinquish, or increase the Government's rights in computer software, consider the planned software

maintenance philosophy, anticipated time or user sharing requirements, and other factors which

may have relevance for a particular procurement. If negotiating to relinquish rights in computer

software documentation, consider the administrative burden associated with protecting

documentation subject to restrictions from unauthorized release or disclosure. The negotiated

license rights must stipulate the rights granted the Government to use, modify, reproduce, release,

perform, display, or disclose the software or documentation and the extent to which the Government

may authorize others to do so. Identify all negotiated rights in a license agreement made part of the

contract.

(e) Rights in derivative computer software or computer software documentation. The clause at

252.227-7014 protects the Government's rights in computer software, computer software

documentation, or portions thereof that the contractor subsequently uses to prepare derivative

software or subsequently embeds or includes in other software or documentation. The Government

retains the rights it obtained under the development contract in the unmodified portions of the

derivative software or documentation.

227.7203-6 Contract clauses.

(a)(1) Use the clause at 252.227-7014, Rights in Other Than Commercial Computer Software and

Other Than Commercial Computer Software Documentation, in solicitations and contracts when the

successful offeror(s) will be required to deliver computer software or computer software

documentation. Do not use the clause when the only deliverable items are technical data (other than

computer software documentation), commercial computer software or commercial computer

software documentation, commercial products, commercial services (see 227.7102-3), special works

(see 227.7205), or contracts under the Small Business Innovation Research Program (see 227.7104).

Except as provided in 227.7107-2, do not use the clause in architect-engineer and construction

contracts.

(2) Use the clause at 252.227-7014 with its Alternate I in research contracts when the contracting

officer determines, in consultation with counsel, that public dissemination by the contractor would

be—

(i) In the interest of the Government; and

(ii) Facilitated by the Government relinquishing its right to publish the work for sale, or to have

others publish the work for sale on behalf of the Government.
(b) Use the clause at 252.227-7016 , Rights in Bid or Proposal Information, in solicitations and

contracts that include the clause at 252.227-7014 .

(c) Use the clause at 252.227-7019 , Validation of Asserted Restrictions—Computer Software, in

solicitations and contracts that include the clause at 252.227-7014 . The clause provides procedures

for the validation of asserted restrictions on the Government's rights to use, release, or disclose

computer software.

(d) Use the clause at 252.227-7025 , Limitations on the Use or Disclosure of Government-Furnished

Information Marked with Restrictive Legends, in solicitations and contracts when it is anticipated

that the Government will provide the contractor (other than a litigation support contractor covered

by 252.204-7014 ), for performance of its contract, computer software or computer software

documentation marked with another contractor's restrictive legend(s).

(e) Use the provision at 252.227-7028 , Technical Data or Computer Software Previously Delivered

to the Government, in solicitations when the resulting contract will require the contractor to deliver

computer software or computer software documentation. The provision requires offerors to identify

any software or documentation specified in the solicitation as deliverable items that are the same or

substantially the same as software or documentation which the offeror has delivered or is obligated

to deliver, either as a contractor or subcontractor, under any other federal agency contract.

(f) Use the clause at 252.227-7037 , Validation of Restrictive Markings on Technical Data, in

solicitations and contracts that include the clause at 252.227-7014 when the contractor will be

required to deliver other than commercial computer software documentation (technical data). The

clause implements statutory requirements under 10 U.S.C. 3781-3786. Paragraph (e) of the clause

contains information that must be included in a formal challenge.

227.7203-8 Deferred delivery and deferred ordering of computer software and computer

software documentation.

(a) Deferred delivery. Use the clause at 252.227-7026 , Deferred Delivery of Technical Data or

Computer Software, when it is in the Government's interests to defer the delivery of computer

software or computer software documentation. The clause permits the contracting officer to require

the delivery of data identified as “deferred delivery” data or computer software at any time until two

years after acceptance by the Government of all items (other than technical data or computer

software) under the contract or contract termination, whichever is later. The obligation of

subcontractors or suppliers to deliver such data expires two years after the date the prime

contractor accepts the last item from the subcontractor or supplier for use in the performance of the

contract. The contract must specify the computer software or computer software documentation that

is subject to deferred delivery. The contracting officer shall notify the contractor sufficiently in

advance of the desired delivery date for such software or documentation to permit timely delivery.

(b) Deferred ordering. Use the clause at 252.227-7027 , Deferred Ordering of Technical Data or

Computer Software, when a firm requirement for software or documentation has not been

established prior to contract award but there is a potential need for computer software or computer

software documentation. Under this clause, the contracting officer may order any computer software

or computer software documentation generated in the performance of the contract or any

subcontract thereunder at any time until three years after acceptance of all items (other than

technical data or computer software) under the contract or contract termination, whichever is later.

The obligation of subcontractors to deliver such technical data or computer software expires three
years after the date the contractor accepts the last item under the subcontract. When the software

or documentation are ordered, the delivery dates shall be negotiated and the contractor

compensated only for converting the software or documentation into the prescribed form,

reproduction costs, and delivery costs.

227.7203-9 Copyright.

(a) Copyright license.

(1) The clause at 252.227-7014, Rights in Other Than Commercial Computer Software and Other

Than Commercial Computer Software Documentation, requires a contractor to grant, or obtain for

the Government license rights which permit the Government to reproduce the software or

documentation, distribute copies, perform or display the software or documentation and, through

the right to modify data, prepare derivative works. The extent to which the Government, and others

acting on its behalf, may exercise these rights varies for each of the standard data rights licenses

obtained under the clause. When non-standard license rights in computer software or computer

software documentation will be negotiated, negotiate the extent of the copyright license concurrent

with negotiations for the data rights license. Do not negotiate copyright licenses for computer

software that provide less rights than the standard restricted rights in computer software license.

For computer software documentation, do not negotiate a copyright license that provides less rights

than the standard limited rights in technical data license.

(2) The clause at 252.227-7013, Rights in Technical Than Commercial Products and Commercial

Services, does not permit a contractor to incorporate a third party's copyrighted software into a

deliverable software item unless the contractor has obtained an appropriate license for the

Government and, when applicable, others acting on the Government's behalf, or has obtained the

contracting officer's written approval to do so. Grant approval to use third party copyrighted

software in which the Government will not receive a copyright license only when the Government's

requirements cannot be satisfied without the third party material or when the use of the third party

material will result in cost savings to the Government which outweigh the lack of a copyright

license.

(b) Copyright considerations-special works. See 227.7205 for copyright considerations when

acquiring special works.

227.7203-10 Contractor identification and marking of computer software or computer

software documentation to be furnished with restrictive markings.

(a) Identification requirements.

(1) The solicitation provision at 252.227-7017 , Identification and Assertion of Use, Release, or

Disclosure Restrictions, requires offerors to identify, prior to contract award, any computer software

or computer software documentation that an offeror asserts should be provided to the Government

with restrictions on use, modification, reproduction, release, or disclosure. This requirement does

not apply to restrictions based solely on copyright. The notification and identification must be

submitted as an attachment to the offer. If an offeror fails to submit the attachment or fails to

complete the attachment in accordance with the requirements of the solicitation provision, such

failure shall constitute a minor informality. Provide offerors an opportunity to remedy a minor

informality in accordance with the procedures at FAR 14.405 or 15.306(a). An offeror's failure to
correct an informality within the time prescribed by the contracting officer shall render the offer

ineligible for award.

(2) The procedures for correcting minor informalities shall not be used to obtain information

regarding asserted restrictions or an offeror's suggested asserted rights category. Questions

regarding the justification for an asserted restriction or asserted rights category must be pursued in

accordance with the procedures at 227.7203-13 .

(3) The restrictions asserted by a successful offeror shall be attached to its contract unless, in

accordance with the procedures at 227.7203-13 , the parties have agreed that an asserted

restriction is not justified. The contract attachment shall provide the same information regarding

identification of the computer software or computer software documentation, the asserted rights

category, the basis for the assertion, and the name of the person asserting the restrictions as

required by paragraph (d) of the solicitation provision at 252.227-7017 . Subsequent to contract

award, the clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other

Than Commercial Computer Software Documentation, permits a contractor to make additional

assertions under certain conditions. The additional assertions must be made in accordance with the

procedures and in the format prescribed by that clause.

(4) Neither the pre- or post-award assertions made by the contractor nor the fact that certain

assertions are identified in the attachment to the contract, determine the respective rights of the

parties. As provided at 227.7203-13 , the Government has the right to review, verify, challenge and

validate restrictive markings.

(5) Information provided by offerors in response to the solicitation provision at 252.227-7017 may be

used in the source selection process to evaluate the impact on evaluation factors that may be

created by restrictions on the Government's ability to use or disclose computer software or computer

software documentation.

(b) Contractor marking requirements. The clause at 252.227-7014 , Rights in Other Than

Commercial Computer Software and Other Than Commercial Computer Software Documentation—

(1) Requires a contractor who desires to restrict the Government's rights in computer software or

computer software documentation to place restrictive markings on the software or documentation,

provides instructions for the placement of the restrictive markings, and authorizes the use of certain

restrictive markings. When it is anticipated that the software will or may be used in combat or

situations which simulate combat conditions, do not permit contractors to insert instructions into

computer programs that interfere with or delay operation of the software to display a restrictive

rights legend or other license notice; and

(2) Requires a contractor to deliver, furnish, or otherwise provide to the Government any computer

software or computer software documentation in which the Government has previously obtained

rights with the Government's pre-existing rights in that software or documentation unless the

parties have agreed otherwise or restrictions on the Government's rights to use, modify, reproduce,

release, or disclose the software or documentation have expired. When restrictions are still

applicable, the contractor is permitted to mark the software or documentation with the appropriate

restrictive legend.

(c) Unmarked computer software or computer software documentation.

(1) Computer software or computer software documentation delivered or otherwise provided under a

contract without restrictive markings shall be presumed to have been delivered with unlimited rights
and may be released or disclosed without restriction. To the extent practicable, if a contractor has

requested permission (see paragraph (c)(2) of this subsection) to correct an inadvertent omission of

markings, do not release or disclose the software or documentation pending evaluation of the

request.

(2) A contractor may request permission to have appropriate legends placed on unmarked computer

software or computer software documentation at its expense. The request must be received by the

contracting officer within six months following the furnishing or delivery of such software or

documentation, or any extension of that time approved by the contracting officer. The person

making the request must—

(i) Identify the software or documentation that should have been marked;

(ii) Demonstrate that the omission of the marking was inadvertent, the proposed marking is justified

and conforms with the requirements for the marking of computer software or computer software

documentation contained in the clause at 252.227-7014 ; and

(iii) Acknowledge, in writing, that the Government has no liability with respect to any disclosure,

reproduction, or use of the software or documentation made prior to the addition of the marking or

resulting from the omission of the marking.

(3) Contracting officers should grant permission to mark only if the software or documentation were

not distributed outside the Government or were distributed outside the Government with restrictions

on further use or disclosure.

227.7203-11 Contractor procedures and records.

(a) The clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other

Than Commercial Computer Software Documentation, requires a contractor, and its subcontractors

or suppliers that will deliver computer software or computer software documentation with other

than unlimited rights, to establish and follow written procedures to assure that restrictive markings

are used only when authorized and to maintain records to justify the validity of restrictive markings.

(b) The clause at 252.227-7019 , Validation of Asserted Restrictions—Computer Software, requires

contractors and their subcontractors or suppliers at any tier to maintain records sufficient to justify

the validity of markings that assert restrictions on the use, modification, reproduction, release,

performance, display, or disclosure of computer software.

227.7203-12 Government right to establish conformity of markings.

(a) Nonconforming markings.

(1) Authorized markings are identified in the clause at 252.227-7014 , Rights in Other Than

Commercial Computer Software and Other Than Commercial Computer Software Documentation. All

other markings are nonconforming markings. An authorized marking that is not in the form, or

differs in substance, from the marking requirements in the clause at 252.227-7014 is also a

nonconforming marking.

(2) The correction of nonconforming markings on computer software is not subject to 252.227-7019 ,
Validation of Asserted Restrictions—Computer Software, and the correction of nonconforming

markings on computer software documentation (technical data) is not subject to 252.227-7037 ,

Validation of Restrictive Markings on Technical Data. To the extent practicable, the contracting

officer should return computer software or computer software documentation bearing

nonconforming markings to the person who has placed the nonconforming markings on the software

or documentation to provide that person an opportunity to correct or strike the nonconforming

markings at that person's expense. If that person fails to correct the nonconformity and return the

corrected software or documentation within 60 days following the person's receipt of the software or

documentation, the contracting officer may correct or strike the nonconformity at that person's

expense. When it is impracticable to return computer software or computer software documentation

for correction, contracting officers may unilaterally correct any nonconforming markings at

Government expense. Prior to correction, the software or documentation may be used in accordance

with the proper restrictive marking.

(b) Unjustified markings.

(1) An unjustified marking is an authorized marking that does not depict accurately restrictions

applicable to the Government's use, modification, reproduction, release, or disclosure of the marked

computer software or computer software documentation. For example, a restricted rights legend

placed on computer software developed under a Government contract either exclusively at

Government expense or with mixed funding (situations under which the Government obtains

unlimited or government purpose rights) is an unjustified marking.

(2) Contracting officers have the right to review and challenge the validity of unjustified markings.

However, at any time during performance of a contract and notwithstanding existence of a

challenge, the contracting officer and the person who has asserted a restrictive marking may agree

that the restrictive marking is not justified. Upon such agreement, the contracting officer may, at his

or her election, either—

(i) Strike or correct the unjustified marking at that person's expense; or

(ii) Return the computer software or computer software documentation to the person asserting the

restriction for correction at that person's expense. If the software or documentation are returned

and that person fails to correct or strike the unjustified restriction and return the corrected software

or documentation to the contracting officer within 60 days following receipt of the software or

documentation, the unjustified marking shall be corrected or stricken at that person's expense.

227.7203-13 Government right to review, verify, challenge, and validate asserted

restrictions.

(a) General. An offeror's or contractor's assertion(s) of restrictions on the Government's rights to

use, modify, reproduce, release, or disclose computer software or computer software documentation

do not, by themselves, determine the extent of the Government's rights in such software or

documentation. The Government may require an offeror or contractor to submit sufficient

information to permit an evaluation of a particular asserted restriction and may challenge asserted

restrictions when there are reasonable grounds to believe that an assertion is not valid.

(b) Requests for information. Contracting officers should have a reason to suspect that an asserted

restriction might not be correct prior to requesting information. When requesting information,

provide the offeror or contractor the reason(s) for suspecting that an asserted restriction might not

be correct. A need for additional license rights is not, by itself, a sufficient basis for requesting
information concerning an asserted restriction. Follow the procedures at 227.7203-5 (d) when

additional license rights are needed but there is no basis to suspect that an asserted restriction

might not be valid.

(c) Transacting matters directly with subcontractors. The clause at 252.227-7019 , Validation of

Asserted Restrictions—Computer Software, obtains the contractor's agreement that the Government

may transact matters under the clause directly with a subcontractor or supplier, at any tier, without

creating or implying privity of contract. Contracting officers should permit a subcontractor or

supplier to transact challenge and validation matters directly with the Government when—

(1) A subcontractor's or supplier's business interests in its technical data would be compromised if

the data were disclosed to a higher tier contractor;

(2) There is reason to believe that the contractor will not respond in a timely manner to a challenge

and an untimely response would jeopardize a subcontractor's or supplier's right to assert

restrictions; or

(3) Requested to do so by a subcontractor or supplier.

(d) Challenging asserted restrictions.

(1) Pre-award considerations. The challenge procedures in the clause at 252.227-7019 could

significantly delay competitive procurements. Therefore, avoid challenging asserted restrictions

prior to a competitive contract award unless resolution of the assertion is essential for successful

completion of the procurement.

(2) Computer software documentation. Computer software documentation is technical data.

Challenges to asserted restrictions on the Government's rights to use, modify, reproduce, release,

perform, display, or disclose computer software documentation must be made in accordance with

the clause at 252.227-7037 , Validation of Restrictive Markings on Technical Data, and the guidance

at 227.7103-13 . The procedures in the clause at 252.227-7037 implement requirements contained in

10 U.S.C. 3781-3786. Resolution of questions regarding the validity of asserted restrictions using the

process described at 227.7103-12 (b)(2) is strongly encouraged.

(3) Computer software.

(i) Asserted restrictions should be reviewed before acceptance of the computer software deliverable

under a contract. The Government's right to challenge an assertion expires three years after final

payment under the contract or three years after delivery of the software, whichever is later. Those

limitations on the Government's challenge rights do not apply to software that is publicly available,

has been furnished to the Government without restrictions, or has been otherwise made available

without restrictions.

(ii) Contracting officers must have reasonable grounds to challenge the current validity of an

asserted restriction. Before challenging an asserted restriction, carefully consider all available

information pertaining to the asserted restrictions. Resolution of questions regarding the validity of

asserted restrictions using the process described at 227.7203-12 (b)(2) is strongly encouraged. After

consideration of the situations described in paragraph (c) of this subsection, contracting officers

may request the person asserting a restriction to furnish a written explanation of the facts and

supporting documentation for the assertion in sufficient detail to enable the contracting officer to

determine the validity of the assertion. Additional supporting documentation may be requested when

the explanation provided by that person does not, in the contracting officer's opinion, establish the

validity of the assertion.
(iii) Assertions may be challenged whether or not supporting documentation was requested.

Challenges must be in writing and issued to the person asserting the restriction.

(4) Extension of response time. The contracting officer, at his or her discretion, may extend the time

for response contained in a challenge, as appropriate, if the contractor submits a timely written

request showing the need for additional time to prepare a response.

(e) Validating or denying asserted restrictions.

(1) Contracting officers must promptly issue a final decision denying or sustaining the validity of

each challenged assertion unless the parties have agreed on the disposition of the assertion. When a

final decision denying the validity of an asserted restriction is made following a timely response to a

challenge, the Government is obligated to continue to respect the asserted restrictions through final

disposition of any appeal unless the agency head notifies the person asserting the restriction that

urgent or compelling circumstances do not permit the Government to continue to respect the

asserted restriction. See 252.227-7019 (g) for restrictions applicable following a determination of

urgent and compelling circumstances.

(2) Only a contracting officer's final decision, or actions of an agency Board of Contract Appeals or a

court of competent jurisdiction, that sustain the validity of an asserted restriction constitute

validation of the restriction.

(f) Multiple challenges to an asserted restriction. When more than one contracting officer challenges

an asserted restriction, the contracting officer who made the earliest challenge is responsible for

coordinating the Government challenges. That contracting officer shall consult with all other

contracting officers making challenges, verify that all challenges apply to the same asserted

restriction and, after consulting with the contractor, subcontractor, or supplier asserting the

restriction, issue a schedule that provides that person a reasonable opportunity to respond to each

challenge.

227.7203-14 Conformity, acceptance, and warranty of computer software and computer

software documentation.

(a) Computer software documentation. Computer software documentation is technical data. See

227.7103-14 for appropriate guidance and statutory requirements.

(b) Computer software.

(1) Conformity and acceptance. Solicitations and contracts requiring the delivery of computer

software shall specify the requirements the software must satisfy to be acceptable. Contracting

officers, or their authorized representatives, are responsible for determining whether computer

software tendered for acceptance conforms to the contractual requirements. Except for

nonconforming restrictive markings (follow the procedures at 227.7203-12 (a) if nonconforming

markings are the sole reason computer software tendered for acceptance fails to conform to

contractual requirements), do not accept software that does not conform in all respects to applicable

contractual requirements. Correction or replacement of nonconforming software, or an equitable

reduction in contract price when correction or replacement of the nonconforming data is not

practicable or is not in the Government's interests, shall be accomplished in accordance with—

(i) The provisions of a contract clause providing for inspection and acceptance of deliverables and

remedies for nonconforming deliverables; or
(ii) The procedures at FAR 46.407(c) through (g), if the contract does not contain an inspection

clause providing remedies for nonconforming deliverables.

(2) Warranties.

(i) Weapon systems. Computer software that is a component of a weapon system or major subsystem

should be warranted as part of the weapon system warranty. Follow the procedures at 246.7.

(ii) Non-weapon systems. Approval of the chief of the contracting office must be obtained to use a

computer software warranty other than a weapon system warranty. Consider the factors at FAR

46.703 in deciding whether to obtain a computer software warranty. When approval for a warranty

has been obtained, the clause at 252.246-7001 , Warranty of Data, and its alternates, may be

appropriately modified for use with computer software or a procurement specific clause may be

developed.

227.7203-15 Subcontractor rights in computer software or computer software

documentation.

(a) Subcontractors and suppliers at all tiers should be provided the same protection for their rights

in computer software or computer software documentation as are provided to prime contractors.

(b) The clauses at 252.227-7019 , Validation of Asserted Restrictions—Computer Software, and

252.227-7037 , Validation of Restrictive Markings on Technical Data, obtain a contractor's

agreement that the Government's transaction of validation or challenge matters directly with

subcontractors at any tier does not establish or imply privity of contract. When a subcontractor or

supplier exercises its right to transact validation matters directly with the Government, contracting

officers shall deal directly with such persons, as provided at 227.7203-13 (c) for computer software

and 227.7103-13 (c)(3) for computer software documentation (technical data).

(c) Require prime contractors whose contracts include the following clauses to include those

clauses, without modification except for appropriate identification of the parties, in contracts with

subcontractors or suppliers who will be furnishing computer software in response to a Government

requirement (see 227.7103-15 (c) for clauses required when subcontractors or suppliers will be

furnishing computer software documentation (technical data)):

(1) 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than

Commercial Computer Software Documentation;

(2) 252.227-7019 , Validation of Asserted Restrictions–Computer Software;

(3) 252.227-7025 , Limitations on the Use or Disclosure of Government Furnished Information

Marked with Restrictive Legends; and

(4) 252.227-7028 , Technical Data or Computer Software Previously Delivered to the Government.

(d) Do not require contractors to have their subcontractors or suppliers at any tier relinquish rights

in technical data to the contractor, a higher tier subcontractor, or to the Government, as a condition

for award of any contract, subcontract, purchase order, or similar instrument except for the rights

obtained by the Government under the provisions of the Rights in Other Than Commercial Computer

Software and Other Than Commercial Computer Software Documentation clause contained in the

contractor's contract with the Government.
227.7203-16 Providing computer software or computer software documentation to foreign

governments, foreign contractors, or international organizations.

Computer software or computer software documentation may be released or disclosed to foreign

governments, foreign contractors, or international organizations only if release or disclosure is

otherwise permitted both by Federal export controls and other national security laws or regulations.

Subject to such laws and regulations, the Department of Defense—

(a) May release or disclose computer software or computer software documentation in which it has

obtained unlimited rights to such foreign entities or authorize the use of such data by those entities;

and

(b) Shall not release or disclose computer software or computer software documentation for which

restrictions on use, release, or disclosure have been asserted to such foreign entities or authorize

the use of such data by those entities, unless the intended recipient is subject to the same provisions

as included in the use and non-disclosure agreement at 227.7103-7 and the requirements of the

clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than

Commercial Computer Software Documentation, governing use, modification, reproduction, release,

performance, display, or disclosure of such data have been satisfied.

227.7203-17 Overseas contracts with foreign sources.

(a) The clause at 252.227-7032 , Rights in Technical Data and Computer Software (Foreign), may be

used in contracts with foreign contractors to be performed overseas, except Canadian purchases

(see paragraph (c) of this subsection) in lieu of the clause at 252.227-7014 , Rights in Other Than

Commercial Computer Software and Other Than Commercial Computer Software Documentation,

when the Government requires the unrestricted right to use, modify, reproduce, release, perform,

display, or disclose all computer software or computer software documentation to be delivered

under the contract. Do not use the clause in contracts for special works.

(b) When the Government does not require unlimited rights, the clause at 252.227-7032 may be

modified to accommodate the needs of a specific overseas procurement situation. The Government

should obtain rights to the computer software or computer software documentation that are not less

than the rights the Government would have obtained under the software rights clause(s) prescribed

in this part for a comparable procurement performed within the United States or its outlying areas.

(c) Contracts for Canadian purchases shall include the appropriate software rights clause prescribed

in this part for a comparable procurement performed within the United States or its outlying areas.

227.7204 Contracts under the Small Business Innovation Research Program.

When contracting under the Small Business Innovation Research Program, follow the procedures at

227.7104 .

227.7205 Contracts for special works.

(a) Use the clause at 252.227-7020 , Rights in Special Works, in solicitations and contracts where
the Government has a specific need to control the distribution of computer software or computer

software documentation first produced, created, or generated in the performance of a contract and

required to be delivered under that contract, including controlling distribution by obtaining an

assignment of copyright, or a specific need to obtain indemnity for liabilities that may arise out of

the creation, delivery, use, modification, reproduction, release, performance, display, or disclosure

of such software or documentation. Use the clause—

(1) In lieu of the clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and

Other Than Commercial Computer Software Documentation, when the Government must own or

control copyright in all computer software or computer software documentation first produced,

created, or generated and required to be delivered under a contract; or

(2) In addition to the clause at 252.227-7014 when the Government must own or control copyright in

some of the computer software or computer software documentation first produced, created, or

generated and required to be delivered under a contract. The specific software or documentation in

which the Government must own or control copyright must be identified in a special contract

requirement.

(b) Although the Government obtains an assignment of copyright and unlimited rights in the

computer software or computer software documentation delivered as a special work under the

clause at 252.227-7020 , the contractor retains use and disclosure rights in that software or

documentation. If the Government needs to restrict a contractor's rights to use or disclose a special

work, it must also negotiate a special license which specifically restricts the contractor's use or

disclosure rights.

(c) The clause at 252.227-7020 does not permit a contractor to incorporate into a special work any

work copyrighted by others unless the contractor obtains the contracting officer's permission to do

so and obtains for the Government a non-exclusive, paid up, world-wide license to make and

distribute copies of that work, to prepare derivative works, to perform or display any portion of that

work, and to permit others to do so for government purposes. Grant permission only when the

Government's requirements cannot be satisfied unless the third party work is included in the

deliverable work.

(d) Examples of other works which may be procured under the clause at 252.227-7020 include, but

are not limited to, audiovisual works, scripts, soundtracks, musical compositions, and adaptations;

histories of departments, agencies, services or units thereof; surveys of Government establishments;

instructional works or guidance to Government officers and employees on the discharge of their

official duties; reports, books, studies, surveys or similar documents; collections of data containing

information pertaining to individuals that, if disclosed, would violate the right of privacy or publicity

of the individuals to whom the information relates; or investigative reports.

227.7206 Contracts for architect-engineer services.

Follow 227.7107 when contracting for architect-engineer services.

227.7207 Contractor data repositories.

Follow 227.7108 when it is in the Government's interests to have a data repository include computer

software or to have a separate computer software repository. Contractual instruments establishing
the repository requirements must appropriately reflect the repository manager's software

responsibilities.