58144 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 

Contract line, subline, or 

exhibit line item number Location name City State DoDAAC 

(2) The following are excluded from the 

requirements of paragraph (b)(1) of this 

clause: 

(i) Shipments of bulk commodities. 

(ii) Shipments to locations other than 

Defense Distribution Depots when the 

contract includes the clause at FAR 52.213– 

1, Fast Payment Procedures. 

(c) The Contractor shall— 

(1) Ensure that the data encoded on each 

passive RFID tag are globally unique (i.e., the 

tag ID is never repeated across two or more 

RFID tags) and conforms to the requirements 

in paragraph (d) of this clause; 

(2) Use passive tags that are readable; and 

(3) Ensure that the passive tag is affixed at 

the appropriate location on the specific level 

of packaging, in accordance with MIL–STD– 

129 (Section 4.9.2) tag placement 

specifications. 

(d) Data syntax and standards. The 

Contractor shall encode an approved RFID 

tag using the instructions provided in the 

EPCTM Tag Data Standards in effect at the 

time of contract award. The EPCTM Tag Data 

Standards are available at http:// 

www.epcglobalinc.org/standards/. 

(1) If the Contractor is an EPCglobalTM

subscriber and possesses a unique EPCTM

company prefix, the Contractor may use any 

of the identifiers and encoding instructions 

described in the most recent EPCTM Tag Data 

Standards document to encode tags. 

(2) If the Contractor chooses to employ the 

DoD identifier, the Contractor shall use its 

previously assigned Commercial and 

Government Entity (CAGE) code and shall 

encode the tags in accordance with the tag 

identifier details located at http:// 

www.acq.osd.mil/log/rfid/tag_data.htm. If 

the Contractor uses a third-party packaging 

house to encode its tags, the CAGE code of 

the third-party packaging house is 

acceptable. 

(3) Regardless of the selected encoding 

scheme, the Contractor with which the 

Department holds the contract is responsible 

for ensuring that the tag ID encoded on each 

passive RFID tag is globally unique, per the 

requirements in paragraph (c)(1) of this 

clause. 

(e) Advance shipment notice. The 

Contractor shall use Wide Area WorkFlow 

(WAWF), as required by DFARS 252.232– 

7003, Electronic Submission of Payment 

Requests, to electronically submit advance 

shipment notice(s) with the RFID tag ID(s) 

(specified in paragraph (d) of this clause) in 

advance of the shipment in accordance with 

the procedures at https://wawf.eb.mil/. 

(End of clause) 

[FR Doc. 2011–23945 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 227, and 252 

RIN 0750–AF84 

Defense Federal Acquisition 

Regulation Supplement; Presumption 

of Development Exclusively at Private 

Expense (DFARS Case 2007–D003) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

amend the Defense Federal Acquisition 

Regulation Supplement to implement 

sections of the Fiscal Year (FY) 2007 

and 2008 National Defense 

Authorization Act, including special 

requirements and procedures related to 

the validation of a contractor’s or 

subcontractor’s asserted restrictions on 

technical data and computer software. 

DATES: Effective date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Manuel Quinones, 703–602–8383. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This final rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to implement 

section 802(b) of the FY 2007 National 

Defense Authorization Act (NDAA) 

(Pub. L. 109–364) and section 815 of the 

FY 2008 NDAA (Pub. L. 110–181). 

Section 802(b) modified 10 U.S.C. 

2321(f)(2) with regard to the 

presumption of development at private 

expense for major systems. Section 815 

revised 10 U.S.C. 2321(f)(2) to exempt 

commercially available off-the-shelf 

items from the requirements that section 

802(b) established for major systems. 

This final rule implements special 

requirements and procedures related to 

the validation of a contractor’s or 

subcontractor’s asserted restrictions on 

technical data and computer software. 

More specifically, the final rule affects 

these validation procedures in the 

context of two special categories of 

items: Commercial items (including 

commercially available off-the-shelf 

items), which may be referred to as the 

‘‘Commercial Rule;’’ and major systems 

(including subsystems and components 

of major systems), which may be 

referred to as the ‘‘Major Systems Rule.’’ 

DoD published a proposed rule with 

a request for comments in the Federal 

Register on May 7, 2010 (75 FR 25161). 

Two respondents provided comments. 

II. Discussion and Analysis of the 

Public Comments 

A discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows. 

A. Prescribing a Noncommercial Clause 

for Technical Data Related to a 

Commercial Item 

Comment: Two respondents described 

the prescriptions at DFARS 227.7102– 

3(b) and 227.7103–6(a) as new 

requirements that exceed the changes 

necessary to implement the statute. 

Response: The operative elements of 

the clause prescription at DFARS 

227.7102–3(b) were a part of the last 

major revision of Part 227 in 1995. The 

substance of the prescription has not 

changed in the proposed rule; the 

requirement was redesignated as DFARS 

227.7102–(4)(b) and revised to crossreference the prescription added to 

DFARS 227.7103–6(a). This follows 

DFARS drafting principles to use only a 

single prescription for each clause, 

using cross-references when necessary. 

As such, the prescription at DFARS 

227.7103–6(a) serves as the primary 

source for prescribing all uses of the 

clause at DFARS 252.227–7013, with a 

cross-reference at 227.7102–(4)(b). 

Comment: A respondent 

recommended that the criteria ‘‘or will 

pay any portion of the development 

costs’’ should be eliminated because the 

Government should not receive the 

benefit of something it may or may not 

pay for in the future outside of the 

contract. 

Response: The ‘‘will pay’’ criterion 

has been used since 1995. The term 

‘‘will’’ is used to denote an anticipated 

future action or result, and there is no 

evidence that this criterion has been or 

should be interpreted as seeking to be 

used in a contract when the criteria 

used to invoke the clause has not, and 

is not, expected to occur during the 

contract. 


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Comment: Two respondents outlined 

specific concerns that prescribing use of 

the noncommercial clause for technical 

data related to a commercial item is 

unnecessarily burdensome with regard 

to the noncommercial marking 

requirements. One respondent argued 

that this could result in the contractor 

unintentionally forfeiting its intellectual 

property rights by delivering with 

commercial markings that do not 

comply with the DFARS noncommercial 

marking requirements. 

Response: The prescription for the use 

of the clause at DFARS 252.227–7013 in 

this scenario already exists. Use of 

commercial restrictive markings would 

not directly result in the forfeiture of the 

contractor’s intellectual property rights 

in cases in which the noncommercial 

marking rules were used. The restrictive 

marking required by the clause at 

DFARS 252.227–7015(d) for technical 

data related to commercial items should 

be sufficient to: (1) Preserve the 

contractor’s rights under the 

noncommercial clause procedures for 

correcting ‘‘nonconforming’’ markings 

(see DFARS 252.227–7013(h)(1)) or (2) 

validate asserted restrictions under 

DFARS 252.227–7037, which is used 

regardless of whether the clauses at 

DFARS 252.227–7013 or 252.227–7015 

are included. 

The final rule is amended to address 

concerns about the desirability of 

requiring noncommercial markings for 

the entire technical data package, in 

cases where the Government may have 

funded only a small portion of the 

development. The final rule revises the 

prescriptions at DFARS 227.7102–4(b) 

and 227.7103–6(a), to clarify that in 

cases when the Government ‘‘will have 

paid’’ for any portion of the 

development of a commercial item, both 

the commercial clause at DFARS 

252.227–7015 and the noncommercial 

clause at DFARS 252.227–7013 should 

be used together. In these cases, the 

noncommercial clause will apply only 

to the technical data related to those 

portions of the commercial item that 

were developed in some part at 

Government expense, and the 

commercial clause will remain 

applicable to the rest of the data. This 

preserves the preexisting allocation of 

rights between the parties, but avoids 

the necessity of applying 

noncommercial markings to data related 

to commercial technologies that were 

developed exclusively at private 

expense. In addition, the flowdown 

requirements of DFARS clause 252.227– 

7013(k) and clause 252.227–7015(e) are 

clarified to enable the use of the 

appropriate clause(s) to lower-tier 

subcontracts. 

Comment: Two respondents 

commented that the proposed revisions 

result in a commercial item losing its 

commercial item status. One of these 

respondents recommended the 

elimination of the ‘‘developed 

exclusively at private expense’’ 

component of the proposed revisions to 

the clause at DFARS 252.227–7019, to 

avoid the application of the 

noncommercial clauses to commercial 

technologies. 

Response: The prescription for the use 

of the clause at DFARS 252.227–7013 

does not affect the commercial status of 

an item that otherwise meets the 

definition of commercial item at FAR 

2.101 (based on 41 U.S.C. 403(12), and 

10 U.S.C. 2302(3)(I)). If the item still 

qualifies as a commercial item, then it 

is a commercial item. If that commercial 

item was not developed exclusively at 

private expense, then the rules apply 

that govern the treatment of technical 

data deliverables and associated license 

rights related to that commercial item. 

Comment: Two respondents 

identified several ways in which the 

prescribed use of the clause at DFARS 

252.227–7013, instead of 252.227–7015, 

appears to be inconsistent with FAR and 

DFARS policies regarding data 

deliverables and data rights in 

commercial technologies. The 

respondents noted that DFARS 

227.7102–1 states DoD’s basic policy 

that DoD shall acquire only the 

technical data deliverables that are 

customarily provided to the public, with 

a few exceptions. 

Response: The prescription for the use 

of the clause at DFARS 252.227–7013, 

when the item has been developed in 

part at Government expense but the 

item still qualifies as commercial, does 

not change the applicability of this 

policy statement. The policy provides 

exceptions, one of which allows the 

Government to require the delivery of 

technical data that describes 

modifications made at Government 

expense even if such data is not 

typically provided to the public (see 

DFARS 227.7102–1(a)(3)). 

Comment: A respondent 

recommended the elimination of the 

‘‘developed exclusively at private 

expense’’ component of the proposed 

revisions to the clause at DFARS 

252.227–7019, to avoid the application 

of the noncommercial clauses to 

commercial technologies. 

Response: The respondent’s basis for 

concern is unclear in view of the limited 

applicability of the clause at DFARS 

252.227–7019 to only noncommercial 

computer software, and the proposed 

revisions address only the 

noncommercial aspects of the Major 

Systems Rule. Accordingly, the 

proposed revisions to the validation 

procedures for noncommercial 

computer software at DFARS 227.7203– 

13 and 252.227–7019 are retained in the 

final rule. 

Comment: One respondent noted that 

DFARS 227.7202–1 states the basic 

policy governing commercial computer 

software and computer software 

documentation is that the Government 

acquires the licenses customarily 

provided to the public unless such 

licenses are inconsistent with Federal 

procurement law or do not otherwise 

satisfy the agency’s needs. 

Response: The proposed rule creates 

no issues or conflicts with this policy 

since there are no changes proposed for 

any DFARS coverage related to 

commercial computer software or 

documentation. 

B. Applying Data Rights Clauses to 

Subcontracts for Commercial Items 

Comment: Two respondents 

recommended that 10 U.S.C. 2320 and 

10 U.S.C. 2321 not be removed from the 

list of statutes set forth in DFARS 

212.504(a), which prohibits their 

application to subcontracts for 

commercial items. One respondent 

concluded that removing these statutes 

from the list appears to ‘‘unilaterally 

overturn the express intent of Congress 

and the FAR Council’’ and that the 

proposed rule did not explain the basis 

for the decision to remove the statutes 

from the list. 

Response: The proposed rule explains 

the basis for this determination. The 

decision to remove these statutes from 

the list is based on the appropriate 

statutory determinations that doing so is 

in the best interest of the Government. 

The proposed revisions to DFARS 

212.504(a) are retained in the final rule. 

C. Application of Statutory Technical 

Data Rules to Computer Software 

Comment: A respondent argued that 

the proposed rule should not make any 

changes to the validation procedures for 

computer software; in particular, the 

clause at DFARS 252.227–7019, 

‘‘Validation of Asserted Restrictions— 

Computer Software,’’ should not be 

amended to include the proposed new 

paragraph (f) that implements the 

‘‘Major Systems Rule.’’ In addition, a 

respondent contended that the decision 

to cover software was flawed because: 

(1) There is no statutory basis for the 

change and (2) not all rights 

determinations are ‘‘black and white.’’ 

Response: (1) Although 10 U.S.C. 

2320 and 2321 apply only to technical 

data and not to computer software, it is 

longstanding DoD policy and practice to 


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apply the same or analogous 

requirements to computer software, 

whenever appropriate. Accordingly, the 

proposed rule implements revisions to 

the validation procedures for computer 

software only to the extent that those 

procedures are based on the technical 

data validation procedures that are 

affected by the statutory changes. The 

result is that it is only the Major 

Systems Rule that is adapted for 

application only to noncommercial 

computer software. (2) The new Major 

Systems Rule is applicable only to 

challenges of contractor assertions that 

development was exclusively at private 

expense. Thus, the proposed adaptation 

of the new Major Systems Rule to 

noncommercial software validation also 

is not applicable to assertions based on 

mixed funds, and does not in any way 

restrict the ability to segregate mixedfunding development into its privatelyfunded and Government-funded 

portions. 

D. Two Separate Standards for Civilian 

and DoD Agencies 

Comment: One respondent stated that 

the proposed rule creates two separate 

standards for civilian and DoD agencies 

in that ‘‘the practical result could be 

that an item will be treated as 

commercial for purposes of intellectual 

property rights by civilian agencies, and 

as non-commercial by the agencies of 

DoD.’’ 

Response: Without analyzing the 

required treatment under the FAR of a 

commercial item by a civilian agency 

when the Government has paid a 

portion of the development costs, the 

proposed rule has not changed the 

criteria for whether an item is a 

commercial item (i.e., under the 

definition at FAR 2.101). Since 1995, 

DFARS 227.7102–3(b) has required the 

use of the noncommercial clause at 

252.227–7013 in lieu of the commercial 

clause at 252.227–7015 if the 

Government will pay any portion of the 

development costs of the commercial 

item. Although the proposed revision of 

the DoD validation scheme to include a 

‘‘Commercial Rule’’ and a ‘‘Major 

Systems Rule’’ may have no equivalent 

in the civilian validation scheme, DoD’s 

process is driven by the changes to 10 

U.S.C. 2321, for which there is no 

equivalent in the civilian agency statute 

(41 U.S.C. 253d). No revisions are 

necessary. 

E. Administrative, Technical and 

Typographical Issues 

Comment: A respondent identified a 

citation error, which seeks to remove 

and reserve 212.504 paragraphs (a)(v) 10 

U.S.C. 2324, Allowable Costs Under 

Defense Contracts and (a)(vi) 10 U.S.C. 

2327, Reporting Requirements 

Regarding Dealings with Terrorist 

Countries, when it appears that the 

intent is to remove paragraphs (a)(iii) 10 

U.S.C. 2320, Rights in Technical Data 

and (iv) 10 U.S.C. 2321, Validation of 

Proprietary Data Restrictions. 

Response: The respondent is correct. 

This change is reflected in the final rule. 

Comment: A respondent 

recommended changing the crossreference in the second sentence of 

DFARS 252.227–7037(c) from paragraph 

(b) to (b)(1) for further clarification. 

Response: The respondent is correct. 

This change is reflected in the final rule. 

F. Changes to Rule Resulting From the 

Public Comments 

Changes made in the final rule based 

on the public comments received, 

include the following: 

• Removed DFARS 212.504 

paragraphs (a)(iii) 10 U.S.C. 2320, Rights 

in Technical Data, and (a)(iv) 10 U.S.C. 

2321, Validation of Proprietary Data 

Restrictions, instead of DFARS 212.504 

paragraphs (a)(v) 10 U.S.C. 2324, 

Allowable Costs Under Defense 

Contracts and (a)(vi) 10 U.S.C. 2327, 

Reporting Requirements Regarding 

Dealings with Terrorist Countries. 

• Revised the prescriptions at DFARS 

227.7102–4(b) and 227.7103–6(a) to 

clarify that in cases when the 

Government ‘‘will have paid’’ for any 

portion of the development of a 

commercial item, both the commercial 

clause at DFARS 252.227–7015 and the 

noncommercial clause at DFARS 

252.227–7013 shall be used together. 

• Revised 252.212–7001(b) to add 

252.227–7013 and 252.227–7037 to be 

used, as applicable. 

• Revised 252.212–7001(c) to add 

252.227–7013, 252.227–7015 and 

252.227–7037 to be flowed down to 

subcontractors, as applicable. 

• Revised the clause flowdown 

requirements of DFARS 252.227– 

7013(k) and 252.227–7015(e) to enable 

the use of the appropriate clause(s) to 

lower tier subcontracts. 

• Changed the cross reference in the 

second sentence of the clause at DFARS 

252.227–7037(c) from paragraph (b) to 

(b)(1). 

• Revised 252.244–7000 to add 

252.227–7015 and 252.227–7037 to be 

flowed down to subcontractors, as 

applicable. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not have significant economic impact on 

a substantial number of small entities 

within the meaning for the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because major systems or subsystems 

are generally not developed by small 

businesses. The rule only applies in the 

limited circumstances that there is a 

challenge to a use or release restriction 

for a major system or subsystem that the 

contractor or subcontractor claims was 

developed exclusively at private 

expense. 

V. Paperwork Reduction Act 

The rule does not impose any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 212, 

227, and 252 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 212, 227, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 227, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

212.504 [Amended] 

■ 2. Section 212.504 is amended as 

follows: 

■ (a) By removing paragraphs (a)(iii) and 

(iv); and 

■ (b) Redesignating paragraphs (a)(v) 

through (xix) as (a)(iii) through (xvii), 

respectively. 


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PART 227—PATENTS, DATA, AND 

COPYRIGHTS 

■ 3. Amend section 227.7102 by 

removing the text, and republishing the 

section heading to read as follows: 

227.7102 Commercial items, components, 

or processes. 

■ 4. Redesignate section 227.7102–3 as 

227.7102–4. 

■ 5. Add new section 227.7102–3 to 

read as follows: 

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 items. 

■ 6. Revise the newly redesignated 

section 227.7102–4 to read as follows: 

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 Items, in all solicitations 

and contracts when the Contractor will 

be required to deliver technical data 

pertaining to commercial items, 

components, or processes. 

(2) Use the clause at 252.227–7015 

with its Alternate I in contracts 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–Noncommercial Items, 

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 item. The clause at 

252.227–7013 will govern the technical 

data pertaining to any portion of a 

commercial item 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 item that was 

developed exclusively at private 

expense. 

(c) Use the clause at 252.227–7037, 

Validation of Restrictive Markings on 

Technical Data, in all solicitations and 

contracts for commercial items that 

include the clause at 252.227–7015 or 

the clause at 252.227–7013. 

■ 6. Amend section 227.7103–6 to 

revise paragraph (a) to read as follows: 

227.7103–6 Contract clauses. 

(a) Use the clause at 252.227–7013, 

Rights in Technical Data– 

Noncommercial Items, in solicitations 

and contracts when the successful 

offeror(s) will be required to deliver to 

the Government technical data 

pertaining to noncommercial items, or 

pertaining to commercial items 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 item 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 item 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 

items 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 architect-engineer and 

construction contracts. 

* * * * * 

■ 7. Amend section 227.7103–13 by: 

■ (a) Redesignating paragraph (c) as 

paragraph (d); 

■ (b) Adding a new paragraph (c); and 

■ (c) Amending redesignated paragraph 

(d) by revising the introductory text and 

paragraphs (d)(2)(i) and (d)(4). 

The additions and revisions read as 

follows. 

227.7103–13 Government right to review, 

verify, challenge and validate asserted 

restrictions. 

* * * * * 

(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. The contracting officer shall 

not challenge a contractor’s assertion 

that a commercial item, component, or 

process was developed exclusively at 

private expense unless the Government 

can demonstrate that it contributed to 

development of the item, component or 

process. 

(2) Presumption regarding 

development exclusively at private 

expense. 10 U.S.C. 2320(b)(1) and 

2321(f) establish a presumption and 

procedures regarding validation of 

asserted restrictions for technical data 

related to commercial items, and to 

major systems, on the basis of 

development exclusively at private 

expense. 

(i) Commercial items. For 

commercially available off-the-shelf 

items (defined at 41 U.S.C. 431(c)[104]) 

in all cases, and for all other commercial 

items except as provided in paragraph 

(c)(2)(ii) of this subsection, contracting 

officers shall presume that the items 

were developed exclusively at private 

expense whether or not a contractor 

submits a justification in response to a 

challenge notice. When a challenge is 

warranted, 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. 

(ii) Major systems. The presumption 

of development exclusively at private 

expense does not apply to major 

systems or subsystems or components 

thereof, except for commercially 

available off-the-shelf items (which are 

governed by paragraph (c)(2)(i) of this 

subsection). When the contracting 

officer challenges an asserted restriction 

regarding technical data for a major 

system or a subsystem or component 

thereof on the basis that the technology 

was not developed exclusively at 

private expense, the contracting officer 

shall sustain the challenge unless 

information provided by the contractor 

or subcontractor demonstrates that the 

item was developed exclusively at 

private expense. 

(d) Challenge and validation. All 

challenges shall be made in accordance 

with the provisions of the clause at 

252.227–7037, Validation of Restrictive 

Markings on Technical Data. 

* * * * * 

(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. 

* * * * * 

(4) Challenge notice. The contracting 

officer shall not issue a challenge notice 

unless there are reasonable grounds to 

question the validity of an assertion. 

The contracting officer may challenge 


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an assertion whether or not supporting 

documentation was requested under 

paragraph (d)(2) of this subsection. 

Challenge notices shall 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 shall include the 

information in paragraph (e) of the 

clause at 252.227–7037. 

* * * * * 

■ 8. Amend section 227.7203–13 by: 

■ (a) Redesignating paragraphs (d) 

through (f) as (e) through (g), 

respectively; and 

■ (b) Adding a new paragraph (d) to 

read as follows: 

227.7203–13 Government right to review, 

verify, challenge and validate asserted 

restrictions. 

* * * * * 

(d) Major systems. When the 

contracting officer challenges an 

asserted restriction regarding 

noncommercial computer software for a 

major system or a subsystem or 

component thereof on the basis that the 

computer software was not developed 

exclusively at private expense, the 

contracting officer shall sustain the 

challenge unless information provided 

by the contractor or subcontractor 

demonstrates that the computer 

software was developed exclusively at 

private expense. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 9. Amend section 252.212–7001 by— 

■ (a) Revising the introductory text; 

■ (b) Amending the clause date by 

removing ‘‘(AUG 2011)’’ and adding in 

its place ‘‘(SEP 2011)’’; 

■ (c) Redesignating paragraphs (b)(19) 

through (b)(28) as paragraphs (b)(20) 

through (b)(29); 

■ (d) Adding new paragraph (b)(19); 

■ (e) Amending newly redesignated 

paragraph (b)(20) by removing ‘‘(MAR 

2011)’’ and adding in its place ‘‘(SEP 

2011)’’; 

■ (f) Amending newly redesignated 

paragraph (b)(21) by removing ‘‘(SEP 

1999)’’ and adding in its place ‘‘(SEP 

2011), if applicable (see 227.7102– 

4(c)).’’; 

■ (g) Redesignating paragraphs (c)(2) 

through (c)(6) as paragraphs (c)(5) 

through (c)(9), respectively; and 

■ (h) Adding new paragraphs (c)(2) 

through (c)(4). 

The additions and revisions read as 

follows: 

252.212–7001 Contract Terms and 

Conditions Required to Implement Statues 

or Executive Orders Applicable to Defense 

Acquisitions of Commercial Items. 

As prescribed in 212.301(f)(iii) and 

227.7103–6(a) and (e), use the following 

clauses as applicable: 

* * * * * 

(b) * * * 

(19) 252.227–7013, Rights in 

Technical Data—Noncommercial Items 

(SEP 2011), if applicable (see 227.7103– 

6(a)). 

* * * * * 

(c) * * * 

(2) 252.227–7013, Rights in Technical 

Data—Noncommercial Items (SEP 

2011), if applicable (see 227.7103–6(a)). 

(3) 252.227–7015, Technical Data— 

Commercial Items (SEP 2011), if 

applicable (see 227.7102–4(a)). 

(4) 252.227–7037, Validation of 

Restrictive Markings on Technical Data 

(SEP 2011), if applicable (see 227.7102– 

4(c)). 

* * * * * 

■ 10. Amend section 252.227–7013 by— 

■ (a) Amending the clause date by 

removing ‘‘(MAR 2011)’’ and adding in 

its place ‘‘(SEP 2011)’’; and 

■ (b) Revising paragraph (k)(2) to read as 

follows: 

252.227–7013 Rights in technical data– 

Noncommercial items. 

* * * * * 

(k) * * * 

(2) Whenever any technical data for 

noncommercial items, or for commercial 

items developed in any part at 

Government expense, is to be obtained 

from a subcontractor or supplier for 

delivery to the Government under this 

contract, the Contractor shall use this 

same clause in the subcontract or other 

contractual instrument, and require its 

subcontractors or suppliers to do so, 

without alteration, except to identify the 

parties. This clause will govern the 

technical data pertaining to 

noncommercial items or to any portion 

of a commercial item 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 item that 

was developed exclusively at private 

expense. No other clause shall be used 

to enlarge or diminish the 

Government’s, the Contractor’s, or a 

higher-tier subcontractor’s or supplier’s 

rights in a subcontractor’s or supplier’s 

technical data. 

* * * * * 

■ 11. Amend section 252.227–7015 by— 

■ (a) Amending the clause date by 

removing ‘‘(MAR 2011)’’ and adding in 

its place ‘‘(SEP 2011)’’; and 

■ (b) Adding new paragraph (e) to read 

as follows: 

252.227–7015 Technical data–Commercial 

items. 

* * * * * 

(e) Applicability to subcontractors or 

suppliers. 

(1) The Contractor shall recognize and 

protect the rights afforded its 

subcontractors and suppliers under 10 

U.S.C. 2320 and 10 U.S.C. 2321. 

(2) Whenever any technical data 

related to commercial items developed 

in any part at private expense will be 

obtained from a subcontractor or 

supplier for delivery to the Government 

under this contract, the Contractor shall 

use this same clause in the subcontract 

or other contractual instrument, and 

require its subcontractors or suppliers to 

do so, without alteration, except to 

identify the parties. This clause will 

govern the technical data pertaining to 

any portion of a commercial item that 

was developed exclusively at private 

expense, and the clause at 252.227–7013 

will govern the technical data pertaining 

to any portion of a commercial item that 

was developed in any part at 

Government expense. 

* * * * * 

■ 12. Amend section 252.227–7019 by— 

■ (a) Amending the clause date by 

removing ‘‘(JUN 1995)’’ and adding in 

its place ‘‘(SEP 2011)’’; 

■ (b) Redesignating paragraphs (f) 

through (i) as paragraphs (g) through (j), 

respectively; 

■ (c) Adding new paragraph (f); 

■ (d) Revising the newly redesignated 

paragraph (g)(5); 

■ (e) Amending the newly redesignated 

paragraph (h)(1) introductory text by 

removing ‘‘(g)(3)’’, and adding in its 

place ‘‘(h)(3)’’; and 

■ (f) Amending the newly redesignated 

paragraph h)(3) by removing ‘‘(g)(1)’’, 

and adding in its place ‘‘(h)(1)’’. 

The additions and revisions read as 

follows: 

252.227–7019 Validation of asserted 

restrictions–Computer software. 

* * * * * 

(f) Major systems. When the 

Contracting Officer challenges an 

asserted restriction regarding 

noncommercial computer software for a 

major system or a subsystem or 

component thereof on the basis that the 

computer software was not developed 

exclusively at private expense, the 

Contracting Officer will sustain the 

challenge unless information provided 

by the Contractor or subcontractor 

demonstrates that the computer 

software was developed exclusively at 

private expense. 


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Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 58149 

(g) * * * 

(5) If the Contractor fails to respond 

to the Contracting Officer’s request for 

information or additional information 

under paragraph (g)(1) of this clause, the 

Contracting Officer will issue a final 

decision, in accordance with paragraph 

(f) of this clause and the Disputes clause 

of this contract, pertaining to the 

validity of the asserted restriction. 

* * * * * 

■ 13. Amend 252.227–7037 by— 

■ (a) Amending the introductory text by 

removing ‘‘227.7102–3(c)’’ and adding 

in its place ‘‘227.7102–4(c)’’; 

■ (b) Amending the clause date by 

removing ‘‘(SEP 1999)’’ and adding in 

its place ‘‘(SEP 2011)’’; and 

■ (c) Revising paragraphs (b), (c), (f), and 

(l) to read as follows: 

252.227–7037 Validation of restrictive 

markings on technical data. 

* * * * * 

(b) Presumption regarding 

development exclusively at private 

expense. 

(1) Commercial items. For 

commercially available off-the-shelf 

items (defined at 41 U.S.C. 104) in all 

cases, and for all other commercial 

items except as provided in paragraph 

(b)(2) of this clause, the Contracting 

Officer will presume that a Contractor’s 

asserted use or release restrictions are 

justified on the basis that the item, 

component, or process was developed 

exclusively at private expense. The 

Contracting Officer shall not challenge 

such assertions unless the Contracting 

Officer has information that 

demonstrates that the item, component, 

or process was not developed 

exclusively at private expense. 

(2) Major systems. The presumption of 

development exclusively at private 

expense does not apply to major 

systems or subsystems or components 

thereof, except for commercially 

available off-the-shelf items (which are 

governed by paragraph (b)(1) of this 

clause). When the Contracting Officer 

challenges an asserted restriction 

regarding technical data for a major 

system or a subsystem or component 

thereof on the basis that the item, 

component, or process was not 

developed exclusively at private 

expense, the Contracting Officer will 

sustain the challenge unless information 

provided by the Contractor or 

subcontractor demonstrates that the 

item, component, or process was 

developed exclusively at private 

expense. 

(c) Justification. The Contractor or 

subcontractor at any tier is responsible 

for maintaining records sufficient to 

justify the validity of its markings that 

impose restrictions on the Government 

and others to use, duplicate, or disclose 

technical data delivered or required to 

be delivered under the contract or 

subcontract. Except as provided in 

paragraph (b)(1) of this clause, the 

Contractor or subcontractor shall be 

prepared to furnish to the Contracting 

Officer a written justification for such 

restrictive markings in response to a 

challenge under paragraph (e) of this 

clause. 

* * * * * 

(f) Final decision when Contractor or 

subcontractor fails to respond. Upon a 

failure of a Contractor or subcontractor 

to submit any response to the challenge 

notice the Contracting Officer will issue 

a final decision to the Contractor or 

subcontractor in accordance with 

paragraph (b) of this clause and the 

Disputes clause of this contract 

pertaining to the validity of the asserted 

restriction. This final decision shall be 

issued as soon as possible after the 

expiration of the time period of 

paragraph (e)(1)(ii) or (e)(2) of this 

clause. Following issuance of the final 

decision, the Contracting Officer will 

comply with the procedures in 

paragraphs (g)(2)(ii) through (iv) of this 

clause. 

* * * * * 

(l) Flowdown. The Contractor or 

subcontractor agrees to insert this clause 

in contractual instruments with its 

subcontractors or suppliers at any tier 

requiring the delivery of technical data. 

* * * * * 

■ 14. Amend section 252.244–7000 by— 

■ (a) Amending the clause date by 

removing ‘‘(AUG 2011)’’ and adding in 

its place ‘‘(SEP 2011)’’; 

■ (b) Redesignating paragraphs (c) 

through (h) as (e) through (j), 

respectively; and 

■ (c) Adding new paragraphs (c) and (d) 

as follows: 

252.244–7000 Subcontracts for 

commercial items and commercial 

components (DoD contracts). 

* * * * * 

(c) 252.227–7015, Technical Data— 

Commercial Items (SEP 2011), if 

applicable (see 227.7102–4(a)). 

(d) 252.227–7037, Validation of 

Restrictive Markings on Technical Data 

(SEP 2011), if applicable (see 227.7102– 

4(c)). 

* * * * * 

[FR Doc. 2011–23956 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 213 

RIN 0750–AH07 

Defense Federal Acquisition 

Regulation Supplement; Ships 

Bunkers Easy Acquisition (SEA) Card®

and Aircraft Ground Services (DFARS 

Case 2009–D019) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement to 

allow the use of U.S. Government fuel 

cards in lieu of a Purchase OrderInvoice-Voucher for fuel, oil, and 

refueling-related items for purchases not 

exceeding the simplified acquisition 

threshold. 

DATES: Effective Date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal register at 76 FR 21849 on April 

19, 2011, to add language to Defense 

Federal Acquisition Regulation 

Supplement (DFARS) 213.306(a)(1)(A) 

to include purchases of marine fuel, oil, 

and refueling-related items up to the 

simplified acquisition threshold using 

the Ships Bunkers Easy Acquisition 

(SEA) Card® in lieu of the SF 44, 

Purchase Order-Invoice-Voucher. 

Additionally, this section is revised to 

include additional ground refuelingrelated services when using the AIR 

Card®. These changes for use of the AIR 

Card® and SEA Card® will improve the 

refueling capability of aircraft and 

smaller vessels at non-contract 

locations. No public comments were 

received in response to the proposed 

rule. 

II. Executive Order 12866 and 

Executive Order 13563 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 


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