252.227-7019 Validation of Asserted

Restrictions—Computer Software.

As prescribed in 227.7104 (e)(3) or 227.7203-6 (c), use the following clause:

VALIDATION OF ASSERTED RESTRICTIONS—COMPUTER SOFTWARE (JAN 2023)

(a) Definitions.

(1) As used in this clause, unless otherwise specifically indicated, the term “Contractor” means the

Contractor and its subcontractors or suppliers.

(2) Other terms used in this clause are defined in the Rights in Other Than Commercial Computer

Software and Other Than Commercial Computer Software Documentation clause of this contract.

(b) Justification. The Contractor shall maintain records sufficient to justify the validity of any

markings that assert restrictions on the Government's rights to use, modify, reproduce, perform,

display, release, or disclose computer software delivered or required to be delivered under this

contract and shall be prepared to furnish to the Contracting Officer a written justification for such

restrictive markings in response to a request for information under paragraph (d) or a challenge

under paragraph (f) of this clause.

(c) Direct contact with subcontractors or suppliers. The Contractor agrees that the Contracting

Officer may transact matters under this clause directly with subcontractors or suppliers at any tier

who assert restrictions on the Government's right to use, modify, reproduce, release, perform,

display, or disclose computer software. Neither this clause, nor any action taken by the Government

under this clause, creates or implies privity of contract between the Government and the

Contractor's subcontractors or suppliers.

(d) Requests for information.

(1) The Contracting Officer may request the Contractor to provide sufficient information to enable

the Contracting Officer to evaluate the Contractor's asserted restrictions. Such information shall be

based upon the records required by this clause or other information reasonably available to the

Contractor.

(2) Based upon the information provided, if the—

(i) Contractor agrees that an asserted restriction is not valid, the Contracting Officer may—

(A) Strike or correct the unjustified marking at the Contractor's expense; or

(B) Return the computer software to the Contractor for correction at the Contractor's expense. If the

Contractor fails to correct or strike the unjustified restriction and return the corrected software to

the Contracting Officer within sixty (60) days following receipt of the software, the Contracting

Officer may correct or strike the markings at that Contractor's expense.

(ii) Contracting Officer concludes that the asserted restriction is appropriate for this contract, the

Contracting Officer shall so notify the Contractor in writing.
(3) The Contractor's failure to provide a timely response to a Contracting Officer's request for

information or failure to provide sufficient information to enable the Contracting Officer to evaluate

an asserted restriction shall constitute reasonable grounds for questioning the validity of an asserted

restriction.

(e) Government right to challenge and validate asserted restrictions.

(1) The Government, when there are reasonable grounds to do so, has the right to review and

challenge the validity of any restrictions asserted by the Contractor on the Government's rights to

use, modify, reproduce, release, perform, display, or disclose computer software delivered, to be

delivered under this contract, or otherwise provided to the Government in the performance of this

contract. Except for software that is publicly available, has been furnished to the Government

without restrictions, or has been otherwise made available without restrictions, the Government may

exercise this right only within three years after the date(s) the software is delivered or otherwise

furnished to the Government, or three years following final payment under this contract, whichever

is later.

(2) The absence of a challenge to an asserted restriction shall not constitute validation under this

clause. 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) Challenge procedures.

(1) A challenge must be in writing and shall—

(i) State the specific grounds for challenging the asserted restriction;

(ii) Require the Contractor to respond within sixty (60) days;

(iii) Require the Contractor to provide justification for the assertion based upon records kept in

accordance with paragraph (b) of this clause and such other documentation that are reasonably

available to the Contractor, in sufficient detail to enable the Contracting Officer to determine the

validity of the asserted restrictions; and

(iv) State that a Contracting Officer's final decision, during the three-year period preceding this

challenge, or action of a court of competent jurisdiction or Board of Contract Appeals that sustained

the validity of an identical assertion made by the Contractor (or a licensee) shall serve as

justification for the asserted restriction.

(2) The Contracting Officer shall extend the time for response if the Contractor submits a written

request showing the need for additional time to prepare a response.

(3) The Contracting Officer may request additional supporting documentation if, in the Contracting

Officer’s opinion, the Contractor's explanation does not provide sufficient evidence to justify the

validity of the asserted restrictions. The Contractor agrees to promptly respond to the Contracting

Officer's request for additional supporting documentation.

(4) Notwithstanding challenge by the Contracting Officer, the parties may agree on the disposition of

an asserted restriction at any time prior to a Contracting Officer's final decision or, if the Contractor

has appealed that decision, filed suit, or provided notice of an intent to file suit, at any time prior to

a decision by a court of competent jurisdiction or Board of Contract Appeals.
(5) If the Contractor fails to respond to the Contracting Officer's request for information or

additional information under paragraph (f)(1) of this clause, the Contracting Officer shall issue a

final decision, in accordance with the Disputes clause of this contract, pertaining to the validity of

the asserted restriction.

(6) If the Contracting Officer, after reviewing any available information pertaining to the validity of

an asserted restriction, determines that the asserted restriction has—

(i) Not been justified, the Contracting Officer shall issue promptly a final decision, in accordance

with the Disputes clause of this contract, denying the validity of the asserted restriction; or

(ii) Been justified, the Contracting Officer shall issue promptly a final decision, in accordance with

the Disputes clause of this contract, validating the asserted restriction.

(7) A Contractor receiving challenges to the same asserted restriction(s) from more than one

Contracting Officer shall notify each Contracting Officer of the other challenges. The notice shall

also state which Contracting Officer initiated the first in time unanswered challenge. The

Contracting Officer who initiated the first in time unanswered challenge, after consultation with the

other Contracting Officers who have challenged the restrictions and the Contractor, shall formulate

and distribute a schedule that provides the Contractor a reasonable opportunity for responding to

each challenge.

(g) Contractor appeal—Government obligation.

(1) The Government agrees that, notwithstanding a Contracting Officer's final decision denying the

validity of an asserted restriction and except as provided in paragraph (g)(3) of this clause, it will

honor the asserted restriction—

(i) For a period of ninety (90) days from the date of the Contracting Officer's final decision to allow

the Contractor to appeal to the appropriate Board of Contract Appeals or to file suit in an

appropriate court;

(ii) For a period of one year from the date of the Contracting Officer's final decision if, within the

first ninety (90) days following the Contracting Officer's final decision, the Contractor has provided

notice of an intent to file suit in an appropriate court; or

(iii) Until final disposition by the appropriate Board of Contract Appeals or court of competent

jurisdiction, if the Contractor has:

(A) appealed to the Board of Contract Appeals or filed suit an appropriate court within ninety (90)

days; or

(B) submitted, within ninety (90) days, a notice of intent to file suit in an appropriate court and filed

suit within one year.

(2) The Contractor agrees that the Government may strike, correct, or ignore the restrictive

markings if the Contractor fails to—

(i) Appeal to a Board of Contract Appeals within ninety (90) days from the date of the Contracting

Officer's final decision;

(ii) File suit in an appropriate court within ninety (90) days from such date; or
(iii) File suit within one year after the date of the Contracting Officer's final decision if the

Contractor had provided notice of intent to file suit within ninety (90) days following the date of the

Contracting Officer's final decision.

(3) The agency head, on a nondelegable basis, may determine that urgent or compelling

circumstances do not permit awaiting the filing of suit in an appropriate court, or the rendering of a

decision by a court of competent jurisdiction or Board of Contract Appeals. In that event, the agency

head shall notify the Contractor of the urgent or compelling circumstances. Notwithstanding

paragraph (g)(1) of this clause, the Contractor agrees that the agency may use, modify, reproduce,

release, perform, display, or disclose computer software marked with (i) government purpose

legends for any purpose, and authorize others to do so; or (ii) restricted or special license rights for

government purposes only. The Government agrees not to release or disclose such software unless,

prior to release or disclosure, the intended recipient is subject to the use and non-disclosure

agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS), or is a

Government contractor receiving access to the software for performance of a Government contract

that contains the clause at DFARS 252.227-7025 , Limitations on the Use or Disclosure of

Government-Furnished Information Marked with Restrictive Legends. The agency head's

determination may be made at any time after the date of the Contracting Officer's final decision and

shall not affect the Contractor's right to damages against the United States, or other relief provided

by law, if its asserted restrictions are ultimately upheld.

(h) Final disposition of appeal or suit. If the Contractor appeals or files suit and if, upon final

disposition of the appeal or suit, the Contracting Officer's decision is:

(1) Sustained—

(i) Any restrictive marking on such computer software shall be struck or corrected at the

Contractor's expense or ignored; and

(ii) If the asserted restriction is found not to be substantially justified, the Contractor shall be liable

to the Government for payment of the cost to the Government of reviewing the asserted restriction

and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government

in challenging the restriction, unless special circumstances would make such payment unjust.

(2) Not sustained—

(i) The Government shall be bound by the asserted restriction; and

(ii) If the challenge by the Government is found not to have been made in good faith, the

Government shall be liable to the Contractor for payment of fees and other expenses (as defined in

28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor in defending the restriction.

(i) Flowdown. The Contractor shall insert this clause in all contracts, purchase orders, and other

similar instruments with its subcontractors or suppliers, at any tier, who will be furnishing computer

software to the Government in the performance of this contract. The clause may not be altered other

than to identify the appropriate parties.

(End of clause)

Parent topic: 252.227 RESERVED