Monday, 

September 27, 2010 

Part III 

Department of 

Defense 

Defense Acquisition Regulations System 

48 CFR Parts 212, 227, et al. 

Defense Federal Acquisition Regulation 

Supplement; Patents, Data, and 

Copyrights (DFARS Case 2010–D001); 

Proposed Rule 


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59412 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 227, 246, and 252 

RIN 0750–AG62 

Defense Federal Acquisition 

Regulation Supplement; Patents, Data, 

and Copyrights (DFARS Case 2010– 

D001) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

update text on patents, data, and 

copyrights. The proposed rule removes 

text and clauses that are obsolete or 

unnecessary; relocates and integrates 

the coverage for computer software and 

computer software documentation with 

the coverage for technical data to 

eliminate redundant coverage for these 

subjects while retaining the necessary 

distinctions; eliminates or combines the 

clauses associated with technical data 

and computer software, consistent with 

the revised and streamlined regulatory 

coverage; relocates, reorganizes, and 

clarifies the coverage for rights in works; 

and relocates to the DFARS companion 

resource, Procedures, Guidance, and 

Information (PGI), text that is not 

regulatory in nature and does not 

impact the public. 

DATES: Comments on the proposed rule 

should be submitted to the address 

shown below on or before November 26, 

2010, to be considered in the 

formulation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2010–D001, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D001 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This proposed rule is intended to 

simplify and clarify DFARS part 227, 

Patents, Data, and Copyrights, and move 

to PGI text that does not impact the 

public. These proposed DFARS changes 

are discussed in detail, followed by a 

list of specific issues or topics on which 

public comment is sought. 

1. Subpart 212.2, Special 

Requirements for the Acquisition of 

Commercial Items. 

Subpart 212.2 is revised to update 

cross-references to the reorganized 

subpart 227.71 for technical data and 

computer software. In addition, a new 

section 212.270 is added to provide 

appropriate cross-reference to the 

DFARS policies and procedures for 

rights in works at subpart 227.72. 

2. Subpart 212.5, Applicability of 

Certain Laws to the Acquisition of 

Commercial Items. 

Section 212.504 is revised to 

eliminate the statutory sections 10 

U.S.C. 2320 and 2321 from the list of 

statutes that are inapplicable to 

subcontracts for commercial items. The 

Federal Acquisition Streamlining Act 

(FASA) required the FAR to identify 

statutes that do not apply to contracts or 

subcontracts for commercial items (see 

FAR 12.503 and 12.504, and DFARS 

212.503 and 212.504). The current 

DFARS implementation of this authority 

makes 10 U.S.C. 2320 and 2321 

applicable to prime contracts for 

commercial items, but not to 

subcontracts (see 212.504(a)(iii) and 

(iv)), which results in the DFARS 

clauses used in prime contracts not 

being flowed down to subcontracts, 

pursuant to current 227.7102–3. 

However, this approach fails to 

recognize that intellectual property 

rights create a direct relationship 

between the Government and 

subcontractors. Intellectual property 

rights are one area in which there is a 

direct legal relationship created between 

the Government and subcontractors, at 

any tier. The Government’s license 

rights are granted directly from the 

subcontractor, as the owner of the 

deliverable intellectual property; the 

Government and subcontractor are 

allowed to transact business directly 

with one another; and the higher-tier 

contractors are prohibited from using 

their position to acquire rights in 

subcontractor technology (i.e., other 

than by mutual agreement in an arms 

length negotiation). This concept is 

recognized explicitly in the statutes 

governing acquisition of intellectual 

property: 

• Inventions and Patents. The BayhDole Act (35 U.S.C. 200–212) explicitly 

states that its requirements apply to 

subcontracts. The regulatory 

implementation specifically addresses 

this issue at FAR 27.304–4, and in the 

clauses at FAR 52.227–11(k), 52.227–12, 

and 52.227–13(i). 

• Technical Data. 10 U.S.C. 2320 and 

2321 explicitly apply to subcontracts, 

provide that the subcontractor may 

transact business directly with one 

another, and explicitly address rights 

and procedures applicable for 

commercial items (see, e.g., 2320(a) & 

(b)(1), and 2321(f)). These procedures 

are discussed and implemented at 

current DFARS 227.7103–13 and –15, 

and in the current clauses at DFARS 

252.227–7013(k), and 252.227–7037(b), 

(k), and (l). 

These proposed revisions, which now 

apply these statutory requirements to 

subcontracts for commercial items, also 

require corresponding changes to the 

flowdown of the proposed revised 

clauses at DFARS 252.227–7013, –7015, 

and –7037. 

3. Subpart 227.3, Patent Rights under 

Government Contracts, and associated 

clause 252.227–7039, Patents— 

Reporting of Subject Inventions. 

The proposed rule deletes the 

requirement for DFARS clause 252.227– 

7034, Patents—Subcontractor. This 

clause provided for flowdown of the 

52.227–12 clause to large business 

subcontractors. This clause is 

unnecessary because the original defect 

in the 1984 clause was fixed in the late 

1980s, and that fix was further 

improved in the FAR part 27 rewrite 

(FAR Case 1999–402). Under that case, 

FAR clause 52.227–12 was deleted. The 

FAR clause was replaced by DFARS 

clause 252.227–7038, Patent Rights— 

Ownership by the Contractor (Large 

Business) (DFARS Case 2001–D015, 72 

FR 69159). 

4. Subpart 227.4, Rights in Data and 

Copyrights. 

There are no substantive changes in 

subpart 227.4. 

5. Subpart 227.6, Foreign Intellectual 

Property Exchanges and Licenses. 

The language of this subpart has been 

edited to use plain language when 

possible. This revision proposes to 

relocate to PGI— 

• Assistance with patent rights and 

royalty payments in the U.S. European 

Command; and 


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• Information on the laws and 

regulations governing export control of 

intellectual property. 

6. Subpart 227.70, Infringement 

Claims, Licenses, and Assignments. 

• Requirements for filing an 

infringement claim. 

Section 227.7004 (now 227.7002) 

establishes requirements for a private 

party to file a valid patent or copyright 

infringement claim or secrecy order 

claim against the United States. This 

subject matter is not necessarily limited 

to FAR/DFARS-based contracts. 

However, the DAR Council was unable 

to identify any other appropriate 

regulation in which to include this 

subject matter, and therefore proposes to 

retain it in the DFARS. This subject 

matter directly affects the legal rights 

and remedies of private parties and 

therefore, must be kept in a regulation. 

The proposed rewrite differentiates 

between the requirements for filing a 

claim for patent infringement and for 

filing a claim for copyright 

infringement. The current DFARS only 

references copyright infringement 

claims generically. More specific 

guidance is required so that the 

department or agency affected can more 

appropriately respond to a claim for 

copyright infringement. Moreover, these 

sections were revised such that the 

section concerning indirect notification 

of a claim submitted to a contractor 

rather than the Government was revised 

to state that such notice is defective. 

• Guidance for processing and 

settling claims. 

The remaining subject matter in 

subpart 225.70 provides guidance for 

investigating and settling any 

intellectual property infringement 

claims using a specialized form of 

acquisition instrument, more commonly 

referred to as settlement agreements, 

licenses, or releases. The following 

information has been moved to PGI: 

• Addresses for filing an 

administrative claim. 

• Examples of disposition of 

trademark infringement claims. 

• Sample denial of an administrative 

claim. 

The section on notification and 

disclosure to claimants (now 227.7004) 

was completely rewritten to positively 

state that it is the Government’s policy 

to settle meritorious claims, that the 

agency making such a determination 

should coordinate with other agencies 

on their potential liability, and that if a 

claim is to be denied, the responsible 

agency should notify the claimant and 

provide a basis for the denial. 

The DFARS clauses 252.227–7000 

through 252.227–7012, currently 

prescribed in DFARS subpart 227.70, 

have been eliminated. These clauses 

were all provided just as examples, 

which could be modified or omitted. 

Section 227.7006 now provides a 

sample settlement agreement for patent 

infringement. This settlement agreement 

may be tailored as appropriate for 

copyright infringement releases, 

settlement agreements, license 

agreements, or assignment. Cognizant 

legal counsel must be consulted in such 

circumstances. 

7. Subpart 227.71, Rights in Technical 

Data and Computer Software. 

The current version of DFARS part 

227 was issued in 1995, as the result of 

a joint Government-industry committee 

that was formed by section 807 of the 

National Defense Authorization Act for 

FY 1991. The section 807 committee 

revised nearly the entire part 227 and 

clauses, and established separate 

coverage for the treatment of technical 

data at subpart 227.71, and for computer 

software and computer software 

documentation at subpart 227.72. In 

addition, within each of these subparts, 

the materials were organized to provide 

separate sections for commercial 

technologies (227.7102 and 227.7202) 

and for noncommercial technologies 

(227.7103 and 227.7203). 

As a result of this structure, the 

current DFARS coverage for computer 

software at subpart 227.72 is primarily 

a duplication of the text covering 

technical data at 227.71. Similarly, the 

current clause for noncommercial 

computer software at 252.227–7014 is 

nearly a duplicate of the clause 

governing noncommercial technical 

data at 252.227–7013. With this 

structure, it can be more difficult to 

distinguish the actual differences 

between the treatment of technical data 

vice computer software because so 

much of the coverage is identical. 

One of the objectives in this proposed 

rule is to identify and eliminate the 

redundancy between current subparts 

227.71 and 227.72, and associated 

clauses. After consolidating the 

technical data and computer software 

coverage at subpart 227.71, the entire 

subpart was reorganized and 

streamlined to improve clarity, 

eliminate unnecessary or obsolete 

coverage, and relocate appropriate 

materials to the PGI. In general, 

materials were grouped into sections 

with related purposes or policies, and to 

the extent possible, discussed 

sequentially in order to more closely 

parallel the chronological sequence in 

which these issues are presented in a 

typical acquisition (e.g., starting with 

acquisition planning, specifying 

delivery requirements and asserting 

restrictions as early as possible, 

accepting and validating markings on 

deliverables, and the use, safeguarding, 

and handling of those materials). 

This subpart is now divided into the 

following sections: 

a. 227.7100 Scope of subpart. 

The subpart has been expanded to 

include computer software and no 

longer includes rights in works. 

b. 227.7101 Definitions. 

The definitions in this section and the 

associated clauses at 252.227–7013, 

252.227–7014, and 252.227–7015 are 

revised to incorporate definitions 

applicable to computer software (e.g., 

‘‘restricted rights’’), and are further 

revised as to be consistent with 

statutory definitions. For example, the 

definitions of ‘‘computer software’’ and 

‘‘computer software documentation’’ 

were revised to reclassify some types of 

recorded information as ‘‘computer 

software documentation’’ rather than 

‘‘computer software.’’ The items ‘‘design 

details, algorithms, processes, flow 

charts, formulas, and related material 

that describe the design, organization, or 

structure’’ of computer software had 

been added to the current definition of 

‘‘computer software’’ in the 1995 rewrite, 

but these types of recorded information 

are more legitimately characterized as 

‘‘technical data that pertains to an item’’ 

(in this case, the item being computer 

software). However, another type of 

recorded information that was retained 

from the 1995-era redefinition of 

‘‘computer software’’ is ‘‘source code 

listings’’—the human-readable versions 

of computer programs for which there is 

no analog in the world of technical data. 

Thus, ‘‘source code’’ is more 

appropriately characterized as 

‘‘computer software.’’ 

c. 227.7102 Policy. 

The policy section expands in most 

cases the statutory requirements for 

technical data at 10 U.S.C. 2320 and 

2321 to cover computer software as 

well. It combines the policy for both 

commercial and noncommercial items 

or processes. 

d. 227.7103 Acquisition of technical 

data and computer software. 

Associated clauses: 

• 252.227–7026, Deferred Delivery of 

Technical Data or Computer Software; 

and 

• 252.227–7027, Deferred Ordering of 

Technical Data or Computer Software. 

Proposed subsection 227.7103–1 

addresses acquisition planning and 

provides a pointer to additional 

guidance in PGI. 

Proposed subsections 227.7103–2, 

Preparation of solicitation, and 

227.7103–3, Identification and 

assessment of Government minimum 

needs, are primarily the consolidation of 


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59414 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

coverage from the following current 

DFARS sections: 227.7103–2 for 

noncommercial technical data; and 

227.7203–1 for noncommercial 

computer software. Because these 

materials focus on the Government’s 

determination of its delivery 

requirements, and the evaluation of 

offered deliverables, they are equally 

applicable to commercial technical data 

and computer software, subject to the 

commercial-specific policies at 

proposed revised 227.7102. Procedures 

for Government personnel to identify 

minimum needs have been moved to 

PGI. 

Proposed subsection 227.7103–4 is 

the consolidation of the coverage for 

deferred delivery and deferred ordering 

at delivery at current DFARS 227.7103– 

8 for noncommercial technical data, and 

227.7203–8 for noncommercial 

computer software. The associated 

clauses at 252.227–7026 and 252.227– 

7027 are revised for clarity, with no 

substantive changes. 

e. 227.7104 License rights in 

technical data and computer software. 

Associated clauses: 

• 252.227–7013, Rights in Technical 

Data and Computer Software— 

Noncommercial. 

• 252.227–7014, Rights in Technical 

Data and Computer Software—Small 

Business Innovation Research (SBIR) 

Program. (moved from 252.227–7018) 

• 252.227–7015, Rights in Technical 

Data and Computer Software— 

Commercial. 

This section 227.7104 consolidates all 

of the existing DFARS coverage of the 

allocation of rights between the parties 

(i.e., the Government, contractors, 

subcontractors, and third parties) for the 

various categories of technical data and 

computer software. 

(i) Acquisition of rights in technical 

data and computer software— 

noncommercial. 

Proposed subsection 227.7104–1, 

General, is based on the consolidation of 

current 227.7103–4 for noncommercial 

technical data, and 227.7203–4 for 

noncommercial computer software. 

These materials are adapted and 

clarified as follows: 

• Paragraph (a) addresses Grant of 

license to the Government. Much of this 

information is moved to PGI. 

• Paragraph (b) clarifies the doctrine 

of segregability, which is used to 

determine the license rights (or license 

rights scheme) that is most appropriate 

for each segregable element of a 

technical data computer software. This 

concept is further reinforced later at 

227.7104–8, in prescribing multiple 

rights clauses for contracts that involve 

multiple types of technical data and 

computer software (e.g., both 

commercial and noncommercial). 

• Paragraph (c), Activities covered, 

clarifies the scope of the license that is 

granted to the Government. At 

paragraph (c)(1), the term ‘‘access’’ is 

added to the well-established list of 

activities that are covered by the 

standard license grant for 

noncommercial technical data and 

computer software, in recognition of the 

emerging practice of providing the 

Government with remote (e.g., Internetbased) access to technical data or 

computer software that is maintained by 

the contractor, as an alternative to 

traditional delivery methods (e.g., 

delivery on static electronic media such 

as CD–ROM or DVD). Paragraph (c)(2) 

recognizes and clarifies that commercial 

licenses involve a wide variety of 

licensed activities, which may not cover 

all of the activities covered by the grant 

of license for noncommercial technical 

data or computer software. 

• Paragraph (d) clarifies the types of 

intellectual property covered by the 

license grant. 

Proposed 227.7104–2, Rights in 

technical data and computer software of 

third parties (including subcontractors), 

is based on the consolidation of current 

227.7103–9 and 227.7103–15 for 

noncommercial technical data; and 

227.7203–9 and 227.7203–15 for 

noncommercial computer software. 

Proposed 227.7104–3, Rights in 

noncommercial technical data and 

noncommercial computer software, is a 

consolidation of current 227.7103–5 for 

noncommercial technical data, and 

227.7203–5 for noncommercial 

computer software. 

The corresponding clause at 252.227– 

7013 is a consolidation of the current 

252.227–7013, which covers only 

noncommercial technical data, and 

252.227–7014, which covers 

noncommercial computer software and 

computer software documentation. The 

new 252.227–7013 clause is a complete 

replacement for the current 252.227– 

7013 clause and 252.227–7014, with 

several key improvements: 

In addition to the revised definitions 

discussed in section A.7.b. of this 

notice, the proposed 252.227–7013 

clause clarifies limitations on the 

Government’s right to release or disclose 

technical data or computer software in 

which it has limited rights, restricted 

rights, or Government-purpose rights. In 

all cases, such release or disclosure is 

permitted only under certain conditions 

(e.g., the recipient of the technical data 

or computer software is subject to a 

prohibition on further disclosure of the 

materials). In the current 252.227–7013 

and 252.227–7014 clauses, these 

limitations are set forth primarily in the 

definitions of limited rights and 

restricted rights (with one additional 

limitation specified within the license 

grant at paragraph (b) of the clause), but 

for Government-purpose rights, these 

restrictions are set forth entirely within 

the license grant (see current 252.227– 

7013(b)(2)(iii) and 252.227– 

7014(b)(2)(iii)). This discrepancy is 

remedied by listing all such restrictions 

on the Government’s rights within the 

definition of the license rights; this 

reformatting also streamlines the grant 

of license rights at paragraph (b) of the 

proposed clause. 

A nearly identical paragraph 

regarding limitations on negotiated 

special licenses was relocated from the 

current DFARS clause language granting 

limited rights (see current 252.227– 

7013(b)(3)(iii)), and restricted rights (see 

current 252.227–7014(b)(3)(ii)), and 

integrated in a streamlined format 

within the grant of negotiated license 

rights (see proposed 252.227– 

7013(b)(5)). 

At proposed paragraph (f) of the 

clause, the substance of the 

requirements governing post-award 

identification and assertion of 

restrictions (paragraph (e) of the current 

252.227–7013 and 252.227–7014 

clauses) was relocated to a new standalone clause 252.227–7018, which 

serves as the post-award complement to 

the pre-award identification and 

assertion clause 252.227–7017. 

At paragraph (g)(2), the proposed 

clause establishes a new unlimited 

rights marking that is optional whenever 

unlimited rights are applicable, and is 

required when the unlimited rights 

apply and the contractor also uses the 

copyright legend permitted by 17 U.S.C. 

401 or 402 (the copyright notice). This 

new unlimited rights legend will help 

resolve any ambiguities regarding the 

Government’s rights in materials that 

are marked with a copyright notice 

‘‘only.’’ The copyright notice, standing 

alone, does not qualify as a restrictive 

marking on noncommercial technical 

data or computer software, but could 

serve as restrictive marking on 

commercial technical data or computer 

software (e.g., where it is usually 

accompanied by additional language 

such as ‘‘All rights reserved’’ and thus 

may indicate the ‘‘standard’’ commercial 

license rights or other license more 

restrictive than unrestricted rights). This 

new unrestricted rights marking, 

required only for noncommercial 

technical data or computer software that 

is both subject to unrestricted rights and 

which is also marked with a copyright 

notice, would be distinguishable from 

other commercial technical data or 


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computer software with confusingly 

similar copyright notices. 

The clause 252.227–7032, Rights in 

Technical Data and Computer Software 

(Foreign), previously prescribed in 

227.7103 for optional use in lieu of 

252.227–7013 in contracts with foreign 

contractors, has been eliminated. It is an 

unnecessary clause that was not 

frequently used. Furthermore, it 

predates 10 U.S.C. 2320 and is 

inconsistent with that statute. 

(ii) License rights under the Small 

Business Innovation Research (SBIR) 

Program. 

Proposed section 227.7104–4 is the 

revised and updated version of the 

current 227.7104 and 227.7204. The 

associated clause at 252.227–7014, 

Rights in Noncommercial Technical 

Data and Computer Software—Small 

Business Innovation Research (SBIR) 

Program, is based on the current 

252.227–7018 clause and is revised to 

include several key statutory and policy 

updates. The SBIR Program 

Reauthorization Act of 2000, Public Law 

106–554, amended section 9 of the Act 

(codified at 15 U.S.C. 638(j)(3)(A)) to 

require that the Small Business 

Administration(SBA) modify the SBIR 

policy directives to provide that SBIR 

data rights apply to Phase III SBIR 

awards, as well as Phase I and II awards. 

The SBA issued its policy directive on 

September 24, 2002, and is currently in 

the process of revising and updating 

that policy directive, including the 

treatment of intellectual property rights, 

which will also be published for public 

comment under a separate rulemaking 

action. Thus, the Department of Defense 

is working with the SBA to harmonize 

the DFARS sections on SBIR data rights 

and the SBIR Policy Directive. SBA has 

advised that it intends to clarify and 

revise the SBIR Policy Directive 

regarding these issues soon. 

• Definitions. A definition of ‘‘SBIR 

data’’ was added to the proposed clause. 

This new definition is based on the 

definition of ‘‘SBIR Technical Data’’ in 

section 3(bb) of the SBIR Policy 

Directive, i.e., all data generated during 

the performance of an SBIR award. The 

definition of ‘‘SBIR data rights’’ was 

revised and simplified to provide the 

Government with limited rights in SBIR 

technical data, and restricted rights in 

SBIR computer software, as the most 

straightforward mechanism to achieve 

the objective of allowing the SBIR 

contractor to assert proprietary data 

restrictions during the SBIR data 

protection period. The term ‘‘computer 

software’’ was added to the definition 

because SBIR data rights also apply to 

both technical data and computer 

software generated under an SBIR 

award. 

• SBIR data rights protection period. 

Normally, SBIR data rights end upon the 

date five years after acceptance of the 

last deliverable. However, any SBIR data 

that are appropriately referenced and 

protected in a subsequent SBIR award 

during the five-year period of this 

contract remain protected through the 

protection period of that subsequent 

SBIR award. This serves to implement 

the requirement of the Policy Directive 

that SBIR data rights may be extended 

throughout multiple future awards if the 

SBIR data is appropriately referenced 

and protected in subsequent SBIR 

awards. In addition, with this new 

procedure, it may be impossible for the 

contractor, under any particular award, 

to know the expiration date of the SBIR 

data generated under that award. For 

this reason the proposed clause 

eliminates any reference to a datecertain expiration of the SBIR data 

rights period. The SBIR clause 

continues to provide the Government 

with unlimited rights upon expiration of 

the SBIR data protection period. 

However, the SBA has advised that 

although its current SBIR Policy 

Directive provides that after the 

protection period expires the 

Government may disclose SBIR data, 

and may use and authorize others to use 

SBIR data on behalf of the Government, 

this does not authorize the Government 

or third parties to use the data for 

commercial purposes without the 

consent of the awardee. SBA has 

advised that it intends to clarify and 

revise the SBIR Policy Directive 

regarding these issues soon. Public 

comments regarding the merits of the 

DFARS approach (i.e., unlimited rights 

after the expiration of the protection 

period) or the SBA’s interpretation of its 

current policy directive are specifically 

requested. 

• Identification and assertion of SBIR 

data rights restrictions. To facilitate the 

identification and assertion of 

restrictions on all SBIR data being 

delivered to the Government, including 

the extension of the SBIR data 

protection period through subsequent 

SBIR awards, the revised clause 

252.227–7017 and new clause 252.227– 

7018, have been expanded in scope to 

cover all deliverable SBIR data. 

• Prohibition against requiring 

negotiated licenses as a condition of 

award. Paragraph (b)(6)(i) of the 

proposed 252.227–7014 clause 

implements the requirements of section 

(b)(4) of the Policy Directive by 

prohibiting the contracting officer from 

negotiating for special license rights as 

an element of any SBIR Phase I, Phase 

II, or Phase III award. However, after 

award, the parties may voluntarily 

negotiate special license rights, or even 

the assignment of rights, by mutual 

agreement. 

(iii) License rights for commercial 

technical data and commercial 

computer software. 

Proposed 227.7104–5 is the 

consolidation of current 227.7102–2 for 

commercial technical data, and current 

227.7202–3 and –4 for commercial 

computer software. The associated 

clause 252.227–7015 is based on the 

current 252.227–7015 (which covers 

only commercial technical data), 

adapted to include the policies 

governing rights in commercial 

computer software from current 

227.7202–2 and –3, and to include 

several other key revisions: 

• The inclusion of clause language 

allocating rights in commercial 

computer software and computer 

software documentation is a noteworthy 

change. The current 227.7202 provides 

no clause for commercial computer 

software, instead specifying that the 

Government receives the rights 

specified in the standard commercial 

license agreement that is ‘‘customarily 

provided to the public unless such 

licenses are inconsistent with federal 

procurement law or do not otherwise 

meet the agencies needs.’’ 

• The proposed rule preserves this 

policy at 252.227–7015(b)(1), and 

strengthens and clarifies it by expressly 

incorporating this requirement into the 

contract clause. 

• In addition, the proposed language 

resolves a long-standing issue regarding 

potential inconsistency between the 

commercial license and Federal 

procurement law. The proposed 

252.227–7015(b)(1) clarifies that the 

inconsistent language is considered 

stricken from the license, and the 

remainder of the license remains in 

effect—effectively incorporating a 

‘‘severability’’ provision equivalent to 

those contained in most commercial 

license agreements. 

• The clause also encourages the 

parties to promptly enter into 

negotiations to resolve any issues raised 

by striking the inconsistent provisions. 

Of course, the proposed 252.227– 

7015(b)(4) also preserves the parties’ 

ability to negotiate specialized license 

provisions by mutual agreement. 

• The proposed clause is revised to 

remove a specialized definition of 

‘‘commercial item’’ that excluded 

commercial computer software from this 

statutorily defined term. The statutory 

definition of commercial item contains 

no such exclusion, leaving no authority 

for this regulatory limitation. 


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59416 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

Commercial computer software that 

otherwise meets the definition of 

commercial item must be treated as a 

commercial item; which clarifies that 

commercial computer software 

documentation is merely a specialized 

subtype of commercial technical data, 

which remains subject to statutory 

mandates of 10 U.S.C. 2320. 

• The proposed clause establishes a 

more consistent policy regarding DoD 

receiving the same license rights that are 

customarily provided to the public as 

long as the license rights are consistent 

with procurement law. This was already 

the clear statement of policy as applied 

to commercial computer software at 

227.7202, and is generally consistent 

with the overall themes and policies 

governing acquisition of commercial 

items at FAR part 12. However, the 

regulatory and clause coverage for 

technical data pertaining to commercial 

items contained inconsistent guidance: 

most of the coverage appears to 

implement the general policy governing 

commercial acquisitions (e.g., only the 

customary commercial deliverables are 

required except when DoD has special 

needs), but then rather than granting 

DoD the standard commercial license 

rights, the clause specifies a DoD-unique 

license that provides only the minimum 

rights in technical data that are required 

by the statute, 10 U.S.C. 2320. There is 

no clear rationale for requiring DoD to 

accept lesser rights than an ordinary 

consumer would receive in a standard, 

arms-length, commercial transaction for 

the same technology. The Government 

should take the standard commercial 

terms and conditions except when 

Government-unique requirements 

(including Federal procurement law) 

require specialized treatment. The 

standard terms and conditions should 

be tailored only as necessary to meet the 

Government’s needs. 

• DoD’s minimum license rights were 

corrected to conform to the statutory 

minimum rights. More specifically, in 

addition to the license rights specified 

in the current clause, 10 U.S.C. 2320 

also requires that the DoD have the right 

to disclose certain technical data to 

foreign governments for evaluation or 

information, and that both this type of 

release, and a release for emergency 

repair or overhaul of the commercial 

item, are permitted only when the 

recipient of the data is subject to a 

prohibition on further release of the 

data, and the contractor (i.e., owner of 

the data) is notified of the release. These 

statutory requirements are added to the 

minimum rights required for 

commercial technical data. 

• The proposed clause language now 

clarifies the requirement that 

commercial technical data and 

computer software to be delivered with 

less than unlimited rights must be 

marked with an appropriate restrictive 

legend (proposed 252.227–7015(d)). 

This requirement is contained expressly 

in the current 252.227–7015(d) in the 

form of a release of liability for any 

Government use or disclosure of 

technical data that is not restrictively 

marked. This revision clarifies the rule 

for commercial technical data, and 

expressly establishes such a 

requirement for commercial computer 

software. Although the current DFARS 

is silent regarding any mandatory 

restrictive legends or notices for 

commercial computer software, best 

commercial practices always require 

restrictive markings or notices—and this 

is a keystone requirement in both 

copyright and trade secret law. The 

proposed clause allows any restrictive 

legend or notice that accurately 

characterizes the restrictions on the 

Government’s use and is consistent with 

best commercial practices. 

(iv) Prescriptions for primary rights 

allocation clauses. 

The proposed 227.7104–8 combines 

and clarifies all of the current DFARS 

language prescribing the primary rightsallocation clauses. In addition, 

227.7104–8(d) reinforces the application 

of the doctrine of segregability to the use 

of clauses when multiple types of 

technical data and/or computer software 

are involved in a single contract. 

f. 227.7105, Contractor assertion of 

restrictions on technical data and 

computer software—early identification 

and marking requirements. 

Associated provision and clauses at— 

• 252.227–7016, Rights in Bid or 

Proposal Information; 

• 252.227–7017, Pre-Award 

Identification and Assertion of License 

Restrictions—Technical Data and 

Computer Software; and 

• 252.227–7018, Post-Award 

Identification and Assertion of License 

Restrictions—Technical Data and 

Computer Software. 

Proposed section 227.7105 

consolidates coverage from current 

DFARS 227.7103–3 and 227.7103–10 for 

noncommercial technical data, and 

227.7202–3 and 227.7202–10 for 

noncommercial computer software. The 

associated clauses 252.227–7017 (preaward) and the new clause at 252.227– 

7018 (post-award) consolidate the 

current DFARS clause requirements of 

252.227–7017, pre-award assertions for 

technical data and computer software; 

252.227–7013(e), post-award assertions 

for technical data; 252.227–7014(e), 

post-award assertions for computer 

software; and 252.227–7028, 

identification of technical data and 

computer software previously delivered 

to the Government. 

The proposed clauses create a 

comprehensive and consistent scheme 

to enable the contractor to identify and 

assert restrictions on technical data and 

computer software. This improved twoclause combination overcomes the 

shortcomings in the current DFARS by 

ensuring that these procedures govern 

all technical data and computer 

software under the contract (i.e., now 

including all deliverable SBIR data, 

commercial technical data, and 

commercial computer software), and 

clarifying the instructions for 

identifying these restrictions—which 

resulted in widespread confusion and 

noncompliance with the listing 

requirement. 

Another change to the original 

252.227–7017 clause is the removal of 

the mandatory chart format for reporting 

the Government’s restrictions on use, 

release, or disclosure of data. This 

requirement was restrictive and 

needlessly burdensome for the 

contractor. Instead, the contractor may 

now present the required information to 

the contracting officer in any 

understandable format, so long as the 

required information is presented and 

understandable. Thus, the proposed 

revisions to the clause and provision aid 

the contractor by lessening the burden 

in preparing these documents. 

Contractors, under this proposed 

regime, will no longer have to create an 

entirely different identification system 

just for Government customers. Rather, 

the contractor will be able to submit its 

materials to the Government in the same 

manner that it does for its commercial 

customers. 

The original 252.227–7017 clause 

requirements regarding negotiated, 

commercial, or non-standard licenses 

place a large burden upon the contractor 

to (1) identify the requirements of these 

licenses and (2) describe the terms of 

these licenses to the satisfaction of the 

contracting officer. Therefore, in an 

effort to alleviate a portion of this 

burden, the contractor is now required 

to submit copies of the licenses, etc., 

with its assertion of restrictions. 

A further change benefiting both the 

contractor and the Government is the 

integration of the requirements of the 

current 252.227–7028 clause with the 

requirements of the 252.227–7017 

clause, which avoids the unnecessary 

duplication of information when the 

contract will involve the delivery of 

technical data or computer software 

with restrictions (required to be 

identified under current 252.227–7017, 

and 252.227–7013(e) or 252.227– 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 59417 

7014(e)) that have also been previously 

delivered to the Government (identified 

again under the 252.227–7028 clause). 

However, now that the consolidated 

252.227–7017 and 252.227–7018 clauses 

apply also to commercial technical data 

and computer software, these 

commercial technical data and 

computer software are exempted from 

the requirement to identify previous 

deliveries to the Government when such 

technical data or computer software was 

and is offered with the standard 

commercial license rights, eliminating 

the need for 252.227–7028, Technical 

Data or Computer Software Previously 

Delivered to the Government. 

Additionally, pre-and post-award 

restriction identifications have been 

separated into two distinct clauses. In 

order to streamline this process, the 

252.227–7018 clause tracks the language 

of the 252.227–7017 clause very closely. 

Thus, both clauses are easy to 

understand and apply, as they are quite 

similar in nature. 

g. 227.7106, Conformity, acceptance, 

warranty, and validation of asserted 

restrictions on technical data and 

computer software. 

And associated clauses at— 

• 252.227–7030, Technical Data and 

Computer Software—Withholding of 

Payment; and 

• 252.227–7037, Validation of 

Restrictive Markings in Technical Data 

and Computer Software. 

Proposed subsection 227.7106 is the 

consolidation of coverage from the 

following current DFARS sections: 

227.7103–11, –12, –13, and –14 for 

noncommercial technical data; and 

227.7203–11, –12, –13, and –14 for 

noncommercial computer software. The 

associated clause 252.227–7037, 

Validation of Restrictive Markings on 

Technical Data and Computer Software, 

combines the current clauses at 

252.227–7037 (applicable to all 

technical data), and 252.227–7019 

(noncommercial computer software). 

The two current DFARS clauses: 

DFARS 252.227–7037 Validation of 

Restrictive Markings on Technical Data 

(which governs both commercial and 

noncommercial technical data and is 

based on 10 U.S.C. 2321) and DFARS 

252.227–7019, Validation of Asserted 

Restrictions–Computer Software (which 

governs noncommercial computer 

software and is not based directly on the 

technical data statute) have been 

combined into proposed DFARS 

252.227–7037 Validation of Restrictive 

Markings on Technical Data and 

Computer Software, hereinafter referred 

to as the ‘‘proposed clause’’. In addition, 

coverage for the validation of asserted 

restrictions on commercial computer 

software has been added to the 

proposed clause. 

i. Definitions. 

The definition of ‘‘Contractor’’ from 

the current 252.227–7019 computer 

software clause was retained in the 

proposed clause. This definition was 

not present in the current 252.227–7037 

technical data clause. 

ii. Challenge for commercial computer 

software. 

The proposed clause has added a 

challenge procedure for ‘‘commercial 

computer software.’’ The current 252– 

227–7037 technical data clause 

provided for challenge of technical data 

relating to a commercial item, 

component, or process. This 

‘‘commercial technical data’’ challenge 

procedure was extended to cover 

commercial computer software in the 

proposed clause, thereby harmonizing 

the challenge procedures for both 

commercial computer software and 

commercial technical data. 

iii. Commercial presumption. 

The presumption in contracts for 

commercial items, components, or 

processes that the asserted use and 

release restrictions are justified on the 

basis that the commercial items, 

components, or processes were 

developed at private expense remains in 

the proposed clause. Notwithstanding 

this presumption, the proposed clause 

allows the Government to challenge the 

asserted use and release restrictions on 

commercial technical data and 

commercial computer software. 

However, the Government can only use 

information the Government provides as 

a basis for challenging these asserted 

use and release restrictions. In addition, 

the Government may request 

information from the contractor on these 

asserted use and release restrictions, but 

the contractor is not required to provide 

such information. See (d)(1) of the 

proposed clause. Moreover, as provided 

in section (e)(2) of the proposed clause, 

the contractor’s failure to provide a 

timely response or to provide sufficient 

information to such a request will not 

constitute reasonable grounds for 

questioning the validity of the asserted 

restrictions. 

In addition, the record keeping 

requirements in paragraph (c) of the 

proposed clause are not required for 

‘‘contracts for commercial items, 

components, or processes (including 

‘‘commercial computer software.’’ 

iv. Criteria for Challenge. 

The two criteria for a challenge 

provided in the current 252.227–7037 

clause (which governs technical data 

only) have been extended in the 

proposed clause to cover computer 

software. In the current 252.227–7019 

clause only the ‘‘reasonable grounds’’ 

criteria was provided. In the proposed 

clause the contracting officer may 

challenge the marking on both technical 

data and computer software if 

reasonable grounds exist to question the 

validity of the marking, and continued 

adherence to the marking would make 

impracticable subsequent competitive 

acquisition of the computer software, 

item, component, or process. 

Note 10 U.S.C. 2321 (d)(1)(A) and (B) 

require both grounds for technical data. 

Accordingly, in order to harmonize the 

criteria for technical data and computer 

software, the two criteria were extended 

to cover computer software. 

v. Urgent and compelling 

circumstances. 

The proposed clause allows an agency 

head, at any time after a contracting 

officer’s final decision, to declare that 

urgent and compelling circumstances 

exist. This allows the agency to use or 

release the data ‘‘as necessary to address 

the urgent and compelling 

circumstances.’’ However, the recipient 

of this data will be required to sign a 

non-disclosure agreement at DFARS 

227.7103–7 or be performing work 

under a contract containing the clause at 

DFARS 252.227–7025, GovernmentFurnished Information Marked with 

Restrictive Legends. The urgent and 

compelling circumstances procedure 

which currently exists in the current 

252.227–7019 clause but not in the 

current 252.227–7037 clause has been 

extended to cover technical data in the 

combined clause, thereby harmonizing 

the procedures for both technical data 

and computer software. 

The proposed clause allows the 

agency to use or release the data ‘‘as 

necessary to address the urgent and 

compelling circumstances’’. This 

language replaces language in the 

current 252.227–7019 clause providing 

specific rights for specific rights 

category data. The new language 

provides more flexibility for the agency 

and is less confusing than the current 

language. 

vi. Written response considered a 

claim within the meaning of the 

Contract Disputes Act. 

The proposed clause provides, that for 

both technical data and computer 

software, a contractor’s (includes 

subcontractors and suppliers at any tier) 

written response to a contracting 

officer’s challenge ‘‘shall be considered 

a claim within the meaning of the 

Contract Disputes Act of 1978 (41 U.S.C. 

601, et seq.), and shall be certified— 

regardless of dollar amount.’’ This 

provision is contained in the current 

252.227–7037 clause as mandated by 10 

U.S.C. 2321(h). Note that the statute 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
59418 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

does not prohibit application of this 

requirement for computer software. 

Sections (f)(3) through(6) of the current 

252.227–7019 clause provide an 

analogous requirement which was 

subject to the rigors of a formal 

rulemaking process. Accordingly, in 

order to harmonize the requirements for 

both technical data and computer 

software in the proposed clause, the 

language of the current 252.227–7037 

clause was extended to cover computer 

software in the proposed clause. 

vii. Flowdown. 

The proposed clause provides for 

flowdown of this clause for both 

technical data and computer software, 

commercial as well as noncommercial, 

to subcontractors, at any tier, or 

suppliers. This flowdown is mandated 

by 10 U.S.C. 2321. Note as part of this 

case that the prohibition against 10 

U.S.C. 2321 applying to subcontracts for 

commercial items will be eliminated. 

viii. Privity of contract. 

This proposed clause tracks the 

privity of contract language contained in 

the new proposed DFARS 252.227–7013 

Rights in Technical Data and Computer 

Software—noncommercial items. Note 

privity of contract with subcontractors, 

at any tier, and suppliers is mandated 

by 10 U.S.C. 2321 for technical data. 

Further, both the current 252.227–7019 

and the current 252.227–7037 clause 

contain a privity of contract provision 

for subcontractors, at any tier, and 

suppliers that were subject to the rigors 

of a formal rulemaking process. 

ix. The related regulatory material. 

Current 227.7103–12 and 227.7103– 

13 have been revised and relocated at 

227.7106–4 and –5, respectively. 

Revisions were made to streamline 

existing language and to eliminate 

material that was duplicative of material 

in the proposed clause at DFARS 

252.227–7037, Validation of Restrictive 

Markings on Technical Data and 

Computer Software. 

h. 227.7107, Safeguarding, use, and 

handling of technical data and computer 

software. 

Associated clause at 252.227–7025, 

Government-Furnished Information 

Marked with Restrictive Legends. 

Proposed 227.7107 is the 

consolidation of coverage from the 

following current DFARS sections: 

227.7103–7, and –16, and 227.7202–16 

regarding the safeguarding and release 

of restricted information outside the 

Government; and 227.7108 and 

227.7208 regarding contractor data 

repositories. 

Perhaps most importantly, this new 

coverage harmonizes and clarifies the 

operation of the nondisclosure 

agreement provided at current 

227.7103–7 (see proposed 227.7107–2), 

and its clause equivalent at 252.227– 

7025. In both cases, the scope of the 

nondisclosure agreement/clause was 

expanded to cover commercial technical 

data or computer software marked with 

a restrictive legend. This expansion 

helps clarify the Government’s 

obligation to protect such restricted and 

valuable commercial information by 

applying a consistent protection and 

release scheme to all forms of technical 

data and computer software, regardless 

of whether the material is commercial or 

noncommercial. In view of the wide 

variety of potential restrictive legends, 

and associated license restrictions, for 

commercial technical data and 

computer software, these new 

requirements are modeled after the 

procedures used to handle negotiated 

license agreements for noncommercial 

technical data and computer software: 

The recipient is expressly limited to 

those uses authorized by the applicable 

license, which the Government is 

required to identify in an attachment 

prior to release of the information. 

8. Subpart 227.72, Rights in Works. 

The treatment of special works, 

existing works, and architect-engineer 

services was moved out of current 

227.71 to entirely replace the material of 

subpart 227.72. This was done because 

special works, existing works, and 

architect-engineer services, are not 

technical data, which is exclusively 

covered by 10 U.S.C. 2320 and subpart 

227.71, or computer software, also 

covered by subpart 227.71. To avoid 

confusion, technical data, computer 

software documentation, and computer 

software, are excluded from the 

coverage of special works and existing 

works. No exclusion was deemed 

necessary for architect-engineer services 

because plans for buildings and other 

structures, and the structures 

themselves, are not normally considered 

to be technical data, i.e., recorded 

information of a scientific or technical 

nature. The material was reorganized. 

Instead of differentiating between 

special works and existing works, the 

proposed regulations are differentiated 

based on whether the contract is for the 

acquisition of— 

• Works and the assignments of rights 

in works (section 227.7202 and 

associated clause at 252.227–7020, 

Rights in Works—Ownership;, or 

• Works and license rights in works 

(section 227.7203 and associated clause 

at 227.7021, Rights in Works—License. 

These clauses replace the current 

clauses 252.227–7020 and 252.227– 

7021. 

There is also a new section on 

safeguarding, use, and handling of 

works, which parallels the section 

227.7107 on safeguarding, use, and 

handling of technical data and computer 

software. The associated new clause is 

252.227–70YY, Government-Furnished 

Works Marked with Restrictive Legends. 

The existing section 227.7107 on 

Contracts for architect-engineer services 

has been expanded to cover rights in 

architectural designs, shop drawings, or 

similar information related to architectengineer services and construction. The 

associated clauses are— 

252.227–7022, Government Rights 

(Unlimited); 

252.227–7024, Notice and Approval 

of Restricted Designs; 

252.227–7033, Rights in Shop 

Drawings. 

Of particular note is the inclusion of 

architectural works in the list of 

examples of works in the clauses at 

252.227–7020 and 252.227–7021. The 

acquisition of 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, is actually a special work 

which should be included within the 

coverage of special works and not under 

the general coverage of contract for 

architect-engineer services (now at 

227.7205). 

The clause at 252.227–7023, Drawings 

and other Data to Become the Property 

of the Government has been deleted, as 

the requirement is now covered in the 

proposed revised Rights in Works— 

Ownership clause at 252.227–7020. 

9. Request for Public Comment on 

Additional Issues. 

In addition to comments on any of the 

subject matter covered by these 

proposed revisions, DoD seeks 

comments on the following additional 

issues related to this subject matter: 

• A new clause containing all 

definitions relevant to DFARS Part 227 

(or subpart 227.71 and/or 227.72). 

Paragraph (a) of the primary rightsallocation clauses (252.227–7013, 

–7014, and –7015) largely duplicate 

each other, and many of the other 

clauses repeat these definitions. 

Combining all definitions into a single 

clause would significantly shorten these 

clauses collectively by avoiding 

duplication. However, the drawback is 

that one requires the definitions clause 

in order to interpret the rights-clauses, 

and many people will not even realize 

that so many of the terms used in the 

rights-clause are actually defined, and 

thus would not be motivated to seek out 

the additional clause. 

• A single prescriptive section 

covering all clauses in subpart 227.71. 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 59419 

In the proposed rule, the clause 

prescriptions are distributed throughout 

the sections. It may be preferred to 

combine all of the relevant clause 

prescriptions into a single, allencompassing prescriptive section 

(e.g., a new 227.7108). 

• Renumbering the clauses. 

The proposed clauses have retained 

their current numbering, except for 

252.227–7018 (now 252.227–7014) (and 

in cases where clauses have been 

merged, the new combined clause uses 

the number applicable to the current 

clause that applies to technical data). 

However, the clauses could be 

renumbered to coincide with the general 

order in which the clauses are discussed 

and prescribed in the regulation, 

without necessitating any significant 

changes for the most well-known and 

critical clauses. For example: 

Current/proposed 252.227– Prescribed at: Renumbered 

7013 ......................................................................................................................................................................... 227.7104–8(a) 7013 

7018/7014 ................................................................................................................................................................ 227.7104–8(b) 7014 

7015 ......................................................................................................................................................................... 227.7104–8(c) 7015 

7016 ......................................................................................................................................................................... 227.7105–3(a) 7016 

7017 ......................................................................................................................................................................... 227.7105–3(b) 7017 

(new) ........................................................................................................................................................................ 227.7105–3(c) 7018 

7030 ......................................................................................................................................................................... 227.7106–5(a) 7023 

7037 ......................................................................................................................................................................... 227.7106–5(b) 7024 

7025 ......................................................................................................................................................................... 227.7107–4 7025 

7020 ......................................................................................................................................................................... 227.7202–3 7030 

7021 ......................................................................................................................................................................... 227.7203–3 7031 

7022 ......................................................................................................................................................................... 227.7205–2(a) 7032 

7033 ......................................................................................................................................................................... 227.7205–2(b) 7033 

7024 ......................................................................................................................................................................... 227.7205–2(c) 7034 

7038 ......................................................................................................................................................................... 227.303(2) 7038 

7039 ......................................................................................................................................................................... 227.303(1) 7039 

Would the benefits of a more logical 

sequence outweigh the administrative 

difficulty of the number changes? 

• Addition of a ‘‘Scope’’ section to the 

primary rights-allocation clauses. 

Would this assist with the application 

of the doctrine of segregability? When 

more than one rights-allocation clause is 

used in the contract, issues may arise as 

to which clause applies to which 

deliverable-technical data or computer 

software. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. This is not a major 

rule under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

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

because the rule updates and clarifies 

DFARS text, but makes no significant 

change to DoD policy regarding patents, 

data, and copyrights. However, DoD has 

performed an initial regulatory 

flexibility analysis, which is 

summarized as follows: 

The objective of the rule is to clarify 

and update the coverage on patents, 

data, and copyrights in DFARS part 227. 

Statutes pertaining to administrative 

claims of infringement in DoD 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. 2386; 28 

U.S.C. 1498; and 35 U.S.C. 286. 

Subpart 227.71 implements the 

following laws and Executive order: 

(1) 10 U.S.C. 2302(4). 

(2) 10 U.S.C. 2305(d)(4). 

(3) 10 U.S.C. 2320. 

(4) 10 U.S.C. 2321. 

(5) 10 U.S.C. 7317. 

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

(7) Executive Order 12591 (paragraph 

1(b)(7)). 

The SBIR Program Reauthorization 

Act of 2000 (Pub. L. 106–554) amended 

section 9 of the Act (codified at 15 

U.S.C. 638(j)(3)(A)) to require that the 

Small Business Administration (SBA) 

modify the SBIR policy directives to 

provide that SBIR data rights apply to 

phase III SBIR awards, as well as phase 

I and II awards. The SBA issued its 

policy directive on September 24, 2002, 

and is currently in the process of 

revising and updating that policy 

directive, including the treatment of 

intellectual property rights, which will 

also be published for public comment 

under a separate rulemaking action. 

Thus, DoD is working with SBA to 

harmonize the DFARS sections on SBIR 

data rights and the SBIR policy 

directive. SBA has advised that it 

intends to clarify and revise the SBIR 

policy directive regarding these issues 

soon. 

This rule applies to small businesses 

awarded contracts— 

• That anticipate the delivery of 

technical data or computer software; 

• When technical data or computer 

software will be generated during 

performance of contracts under the SBIR 

program; 

• When the Government has a 

specific need to control the distribution 

of works first produced, created, or 

generated in the performance of a 

contract; or 

• For architect-engineer services and 

for construction involving architectengineer services. 

DoD does not have an overall estimate 

of the number of small entities receiving 

awards in these categories, but there are 

approximately 3,000 awards per year in 

the SBIR program in recent years. 

The clause at 252.227–7038, Patent 

Rights—Ownership by the Contractor 

(Large Business) is only used if the 

contractor is other than a small business 

or nonprofit organization. 

It is not known how many of the 

respondents are small business 

concerns. Certainly the respondents to 

the requirements of DFARS 252.227– 

7018, Rights in Noncommercial 

Technical Data and Computer 

Software—Small Business Innovation 

Research (SBIR) Program are small 

businesses, but the burdens for that 

clause have not been separately 

calculated from the burdens for the 

other clauses addressing technical data 

rights. 

The rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no known alternatives that 

would reduce the burden on small 

business and still meet the objectives of 

the rule. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2010–D001. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
59420 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply. The information collection 

requirements associated with part 227 

that require the approval of the Office of 

Management and Budget under 44 

U.S.C. 3501, et seq., have been extended 

under OMB Control Number 0704–0369 

(55,000 respondents, approximately 1.5 

million burden hours). This proposed 

rule does not change DoD’s estimates of 

the associated information collection 

requirement. The proposed rule deletes 

17 clauses that did not have information 

collection requirements. Two clauses 

that had information collection 

requirements have been incorporated 

into other clauses (252.225–7014 into 

252.225–7013, 252.227–7019 into 

252.227–7037), without affecting the 

associated information collection 

requirements. The SBIR clause at 

252.227–7018 has been renumbered as 

252.227–7014. 

List of Subjects at 48 CFR Parts 212, 

227, 246, and 252. 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR parts 212, 227, 246, and 252 as 

follows: 

1. The authority citation for 48 CFR 

parts 212, 227, 246, and 252 continues 

to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

2. Section 212.211 is revised to read 

as follows: 

212.211 Technical data. 

The DoD policies and procedures for 

acquiring technical data related to 

commercial items are at subpart 227.71. 

3. Section 212.212 is revised to read 

as follows: 

212.212 Computer software. 

The DoD policies and procedures for 

acquiring commercial computer 

software are at subpart 227.71. 

4. Section 212.271 is added to subpart 

212.2 to read as follows: 

212.271 Works. 

The DoD policies and procedures for 

acquiring rights in works, including 

architectural designs, shop drawings, or 

other information resulting from or 

related to architect-engineer services 

and construction, are at subpart 227.72. 

Section 212.504 [Amended] 

5. Section 212.504 is amended by 

removing and reserving paragraphs 

(a)(iii) and (a)(iv). 

6. Revise part 227 to read as follows: 

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 Foreign intellectual property 

agreements and licenses. 

§ 227.670–1 General. 

§ 227.670–2 Policy. 

§ 227.670–3 Procedures. 

§ 227.670–4 Export control of intellectual 

property. 

Subpart 227.70—Infringement Claims, 

Licenses, and Assignments 

§ 227.7000 Scope. 

§ 227.7001 Statutes pertaining to 

administrative claims of infringement. 

§ 227.7002 Requirements for filing an 

administrative claim for patent or 

copyright infringement or a secrecy order 

claim. 

§ 227.7003 Investigation and administrative 

disposition of claims. 

§ 227.7004 Notification and disclosure to 

claimants. 

§ 227.7005 Settlement of indemnified 

claims. 

§ 227.7006 Settlement agreements. 

Subpart 227.71—Rights in Technical Data 

and Computer Software 

§ 227.7100 Scope of subpart. 

§ 227.7101 Definitions. 

§ 227.7102 Policy. 

§ 227.7103 Acquisition of technical data 

and computer software. 

§ 227.7103–1 Acquisition planning. 

§ 227.7103–2 Preparation of solicitation. 

§ 227.7103–3 Identification and assessment 

of Government minimum needs. 

§ 227.7103–4 Deferred delivery and 

deferred ordering of technical data or 

computer software. 

§ 227.7103–5 Contract clauses. 

§ 227.7104 License rights in technical data 

and computer software. 

§ 227.7104–1 General. 

§ 227.7104–2 Rights in technical data and 

computer software of third parties 

(including subcontractors). 

§ 227.7104–3 Rights in noncommercial 

technical data and noncommercial 

computer software. 

§ 227.7104–4 Rights in technical data and 

computer software—Small Business 

Innovation Research (SBIR) Program. 

§ 227.7104–5 Rights in commercial 

technical data and computer software. 

§ 227.7104–6 Rights in derivative technical 

data and computer software. 

§ 227.7104–7 Retention of rights by 

offerors, contractors, or third parties. 

§ 227.7104–8 Contract clauses. 

§ 227.7105 Contractor assertion of 

restrictions on technical data and 

computer software—early identification 

and marking requirements. 

§ 227.7105–1 Early identification. 

§ 227.7105–2 Marking requirements. 

§ 227.7105–3 Solicitation provision and 

contract clauses. 

§ 227.7106 Conformity, acceptance, 

warranty, and validation of asserted 

restrictions on technical data and 

computer software. 

§ 227.7106–1 Conformity and acceptance. 

§ 227.7106–2 Warranty 

§ 227.7106–3 Unjustified and 

nonconforming markings. 

§ 227.7106–4 Government right to review, 

verify, challenge and validate asserted 

restrictions. 

§ 227.7106–5 Contract clauses. 

§ 227.7107 Safeguarding, use, and handling 

of technical data and computer software. 

§ 227.7107–1 Government procedures for 

protecting technical data and computer 

software. 

§ 227.7107–2 Use and non-disclosure 

agreement. 

2§ 27.7107–3 Contractor technical data or 

computer software repositories. 

§ 227.7107–4 Contract clause. 

Subpart 227.72—Rights in Works 

§ 227.7200 Scope of subpart. 

§ 227.7201 Definitions. 

§ 227.7202 Contracts for the acquisition of 

works and the assignment of rights in 

works. 

§ 227.7202–1 Policy. 

§ 227.7202–2 Procedures. 

§ 227.7202–3 Contract clause. 

§ 227.7203 Contracts for the acquisition of 

works and license rights in works. 

§ 227.7203–1 Policy. 

§ 227.7203–2 Procedures. 

§ 227.7203–3 Contract clause. 

§ 227.7204 Safeguarding, use, and handling 

of works. 

§ 227.7204–1 Procedures. 

§ 227.7204–2 Contract clause. 

§ 227.7205 Rights in architectural designs, 

shop drawings, or similar information 

related to architect-engineer services and 

construction. 

§ 227.7205–1 Scope. 

§ 227.7205–2 Contract clauses. 

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 


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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 (FAR 27.304–1(e)(2)(ii)) 

may be submitted on DD Form 882, 

Report of Inventions and Subcontracts. 

For additional guidance and 

information on invention reporting, see 

PGI 227.304–1. 

Subpart 227.4—Rights in Data and 

Copyrights 

§ 227.400 Scope of subpart. 

DoD activities shall follow the 

requirements in subparts 227.71 and 

227.72 instead of FAR subpart 27.4. 

Subpart 227.6—Foreign License and 

Technical Assistance Agreements 

§ 227.670 Foreign intellectual property 

agreements and licenses. 

§ 227.670–1 General. 

In furtherance of the national defense, 

the Government may develop foreign 

additional sources of defense services or 

products that may be accomplished 

through the use of intellectual property 

rights or technical assistance 

agreements. Under such agreements, a 

domestic concern (‘‘domestic source’’), 

agrees to furnish to a foreign concern or 

government (‘‘foreign source’’), 

intellectual property rights and other 

foreign technical assistance needed to 

enable the foreign source to produce 

particular supplies or perform particular 

services. 

§ 227.670–2 Policy. 

(a) It is DoD policy not to pay for 

rights for intellectual property to which 

the Government holds a royalty-free 

license or otherwise has title to use or 

disclose. 

(b) This policy shall be applied by 

agencies in negotiating consideration for 

foreign license technical assistance 

agreements or supply contracts with 

foreign sources. 

(c) The consideration for foreign 

intellectual property agreements may be 

in the form of a lump sum payment, 

payments for each item manufactured 

by the foreign source, an agreement to 

exchange intellectual property rights on 

improvements made to the article or 

service, capital stock transactions, or 

any combination of these. The domestic 

source’s bases for computing such 

consideration may include actual costs; 

charges for the use of the intellectual 

property rights and the domestic 

source’s ‘‘price’’ for setting up a foreign 

source. The compensation to be paid for 

in such agreements is referred to as a 

royalty or license fee. 

§ 227.670–3 Procedures. 

(a) Negotiation of intellectual property 

agreements. When negotiating or 

reviewing the terms of an intellectual 

property exchange or license agreement 

between the Government and a 

domestic source, between the 

Government and a foreign source, or 

between a domestic source and a foreign 

source— 

(i) Intellectual property agreements 

between the Government and a 

domestic source. 

(A) Intellectual property agreements 

between the Government and a 

domestic source (a domestic contractor) 

shall— 

(1) Specify the intellectual property 

rights to be supplied to the foreign 

source (a foreign concern or 

government); 

(2) Provide, in connection with any 

separate agreement between the 

domestic source and the foreign source, 

a statement referring to the contract 

between the Government and the 

domestic source; and 

(3) Conform to the requirements of 

export control laws and regulations. See 

PGI 227.670–4. 

(B) In negotiating the price paid to the 

domestic source, the actual cost of the 

intellectual property rights, the extent of 

the Government’s contribution to the 

development of the supplies and 

services, and the Government’s 

intellectual property rights shall be 

considered. 

(ii) Intellectual property agreements 

between the Government and a foreign 

source. In negotiating contract prices 

with a foreign source, the agency 

concerned shall obtain from the foreign 

source a detailed statement (see FAR 

27.204–1(a)(2)) of royalties, license fees, 

and other compensation paid to a 

domestic source (or any of its 

subcontractors) for intellectual property 

rights and other technical assistance 

provided to the foreign source, 

including identifications and 

descriptions. Examples of charges for 

intellectual property that are not 

acceptable include any charge or royalty 

to which the Government already has 

title or license or has paid for in an 

agreement with a domestic source. 

(iii) Reviewing intellectual property 

agreements between a domestic source 

and a foreign source. 

(A) In reviewing foreign licenses or 

technical assistance agreements between 

domestic and foreign sources, the 

agency concerned shall indicate 

whether the intellectual property 

exchange or agreement meets the 

requirements of 22 CFR sections 

124.07–124.10 (of the International 

Traffic in Arms Regulations). 

(B) When the Government anticipates 

that it will purchase foreign supplies or 

services involved in the agreement from 

the foreign source, the following 

guidance applies: 

(1) The agency concerned shall 

evaluate the amount of the reduction in 

charges necessary to account for the 

Government’s intellectual property 

rights, and shall 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, however, or 

otherwise fails to give recognition to the 

Government’s intellectual property 

rights, the agency concerned shall 

evaluate the agreement and condition its 

approval upon amendment of the 

agreement to reflect a reduction, in 

accordance with 22 CFR 124.10. 

(C) When the Government does not 

anticipate that it will purchase the 

foreign supplies or services involved in 

the agreement from the foreign source, 

the following guidance applies: 

(1) If the agreement provides for 

charges to the foreign source for data or 

patent rights, it may suffice to fulfill the 

requirements of 22 CFR 124.10 insofar 

as the Department of Defense is 

concerned if— 

(i) The domestic source and the 

Government negotiate the appropriate 

reduction in the domestic source’s 


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charges to the foreign source 

considering any rights the Government 

may have in the intellectual property. 

(ii) The foreign source shall pass any 

reduction in purchase price on to the 

Government. 

(2) Even though no charge is to be 

made to the foreign source for 

intellectual property rights, the agency 

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) Any agreement between the 

domestic and foreign sources shall 

reflect the arrangements contemplated 

by any technical assistance agreement 

between the Government and the 

domestic 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 paragraph (b) of 

this section, a request shall be made to 

the domestic source— 

(1) To identify the intellectual 

property rights to be provided to the 

foreign source by the domestic source or 

any of its subcontractors, and 

(2) To identify any intellectual 

property rights of which the domestic 

source may be aware. 

(G) The agency concerned shall notify 

the domestic source that the approval of 

any agreement is not an approval of the 

charges, and is not an approval of any 

business arrangements in the agreement. 

However, the agency may approve any 

charges or business arrangements if it is 

in the Government’s best interests. In 

any event, a disclaimer should be made 

to charges or business terms not 

affecting any purchase made by or for 

the Government. 

(b) For assistance with patent rights 

and royalty payments in the United 

States European Command, see PGI 

227.670–3(b). 

§ 227.670–4 Export control of intellectual 

property. 

The laws and regulations governing 

the export of intellectual property are 

numerous. These laws and regulations 

are referenced at PGI 227.670–4. 

Subpart 227.70—Infringement Claims, 

Licenses, and Assignments 

§ 227.7000 Scope. 

(a) This subpart prescribes— 

(1) The policy regarding patent and 

copyright infringement and secrecy 

order claims; and 

(2) Provides instructions on how the 

public must submit these claims. 

(b) This subpart 227.70 does not apply 

to licenses or assignments acquired by 

the Department of Defense. Moreover, 

this subpart does not apply to other 

forms of intellectual property 

infringement other than patent, 

copyright, and secrecy order claims. 

§ 227.7001 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. 2386; 28 U.S.C. 

1498; and 35 U.S.C. 286. 

§ 227.7002 Requirements for filing an 

administrative claim for patent or copyright 

infringement or a secrecy order claim. 

(a) A patent or copyright infringement 

claim or a secrecy order claim, asserted 

against the United States under any of 

the applicable statutes cited in 

227.7001, must be in writing and 

actually communicated to and received 

by an agency, organization, office, or 

field establishment within the 

Department of Defense. Claims shall 

include the following: 

(1) An allegation of infringement; 

(2) The requested remedy; 

(3) An identification of the patent(s), 

or copyrighted work(s) alleged to be 

infringed; 

(4) An identification of the alleged 

infringing use, including a statement of 

the acts allegedly committed by the 

Government, and the time period during 

which the alleged acts occurred; or 

(5) As an alternative to paragraph 

(a)(4) of this section, a declaration that 

the claimant has made a bona fide 

attempt to determine the alleged 

infringing use, but was unable to do so, 

giving reasons, and stating a reasonable 

basis for its belief that its patent(s) or 

copyrighted work(s) allegedly are being 

infringed; 

(6) Any additional information that 

will expedite the resolution of the 

claim; and 

(7) A declaration that the claimant is 

the owner or exclusive licensee of the 

patent(s) or copyrighted work(s) alleged 

to be infringed, or otherwise has 

standing to sue. 

(b) If the correspondence alleging 

infringement does not meet the 

requirements set forth in this paragraph, 

the sender shall be advised in writing— 

(1) That the claim for infringement 

has not been satisfactorily presented, 

and 

(2) What is necessary to establish a 

claim. 

(c) In addition to the information 

listed in paragraph (a) of this section, 

the following material and information 

is generally necessary in the course of 

processing an infringement claim. 

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) For patent infringement claims— 

(i) A copy of the allegedly infringed 

patent(s) and a designation of all claims 

alleged to be infringed. 

(ii) Identification of all alleged 

infringements known to the claimant 

that involve the patented item or 

process, including the identity of the 

vendor or contractor and the 

Government procuring activity. 

(iii) A detailed identification of the 

alleged infringement, particularly where 

the infringement relates to a component 

or subcomponent of the item procured. 

This should include an element-byelement comparison of a representative 

claim(s) with the allegedly infringing 

product or process. Further, this 

identification should include 

documentation and drawings in suitable 

detail to enable verification of the 

infringement. 

(iv) 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). 

(v) A brief description of all litigation 

in which the patent(s) has been or is 

now involved, and the present status 

thereof. 

(vi) A list of all persons to whom 

notices of infringement have been sent, 

including all agencies of the 

Government, and a statement of the 

ultimate disposition of each. 

(vii) A description of Government 

employment or military service of the 

inventor(s). 

(viii) A list of all Government 

contracts or agreements under which 

the inventor, patent owner, or their 

agents have performed work relating to 

the patents. 

(ix) A copy of the U.S. Patent and 

Trademark Office (PTO) file wrapper of 

each patent if available to claimant. 

(x) A list of any corresponding foreign 

patent applications. 

(xi) Pertinent prior art known to 

claimant, not contained in the PTO file 

wrapper, such as prior art cited in 

corresponding foreign patent 

prosecutions. 

(2) For copyright infringement 

claims— 

(i) A copy of the copyrighted work(s) 

alleged to be infringed. 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 59423 

(ii) A detailed identification of the 

allegedly infringing work, including a 

copy, if available. 

(iii) Names and addresses of all past 

and present licensees and assignees 

under the copyrighted work, and copies 

of all licenses and assignments 

involving the copyrighted work(s). 

(iv) A brief description of all litigation 

in which the copyrighted work(s) has 

been or is now involved, and the 

present status. 

(v) A list of all persons and 

organizations to whom notices of 

infringement have been sent, including 

all agencies of the Government, and a 

statement of the ultimate disposition of 

each. 

(vi) A description of Government 

employment or military service of the 

author. 

(vii) A list of all Government contracts 

under which the work was produced. 

(viii) Copies of registration records for 

the copyrighted works. (Registration of 

the work with the U.S. copyright office 

is not required to file an administrative 

claim). 

(d) Secrecy order claims. In addition 

to the information listed in paragraph 

(a) of this section, the following material 

or information is generally necessary in 

the course of processing a secrecy order 

claim. 

(1) An identification of the damages 

sought from imposition of the secrecy 

order and/or use of the invention by the 

Government while the secrecy order 

was pending. 

(2) A copy of the secrecy order, the 

notice of allowability and any PTO 

licenses for foreign filing or 

modifications of the secrecy order. 

(3) An identification of the sponsor of 

the secrecy order. 

(4) An identification of the serial 

number and filing date of the patent 

application under secrecy order and any 

corresponding foreign patent 

application. 

(5) Documentation for any claim for 

damages. 

(6) An indication of when and where 

the Government allegedly used the 

invention. 

(e) Claimants must submit their 

claims to the appropriate agency at the 

addresses at PGI 227.7002(e). Any 

agency receiving an allegation of 

infringement which meets the 

requirements of paragraph (a) of this 

section shall— 

(1) Acknowledge the receipt of the 

allegation; and 

(2) Supply the other agencies that may 

have an interest with a copy of the 

allegation and the acknowledgement. 

(f) A communication making a proffer 

of a license in which no infringement is 

alleged shall not be considered as a 

claim for infringement. 

227.7003 Investigation and administrative 

disposition of claims. 

(a) Whenever a claim of infringement 

of an intellectual property right is 

asserted against the Department of 

Defense, or its contractors acting with 

the authorization and consent of the 

Government, 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. 

(b) Agency procedures. An 

investigation and administrative 

determination (denial or settlement) of 

each claim shall be made in accordance 

with instructions and procedures 

established by each agency, subject to 

the following: 

(1) The agency responsible for 

purchasing the alleged infringing item 

or process shall have sole responsibility 

for the disposition of the infringement 

claim when the funds of that agency 

alone will be charged. However, when 

funds of another agency are to be 

charged, in whole or in part, the 

agreement of such agency shall be 

obtained, and each agency concerned 

shall execute any settlement agreement. 

(2) When two or more agencies are 

responsible for purchasing the alleged 

infringing item or process, and the 

funds of both agencies are to be charged 

in the settlement, the agency with the 

predominant financial interest in the 

claim shall be responsible for the 

disposition of the claim, or as jointly 

agreed upon by the agencies concerned. 

The agency responsible for negotiation 

shall, throughout the negotiation, 

coordinate with the other agencies 

concerned and keep them advised of the 

status of the negotiation. Each agency 

concerned shall execute any settlement 

agreement. 

(c) Disposition of trademark 

infringement claims. See PGI 

227.7003(c) for examples of various 

ways a trademark infringement claim 

might be disposed of. 

227.7004 Notification and disclosure to 

claimants. 

(a) Before settling any claim— 

(1) Contact any other agencies that 

might have an interest in the settlement 

of the claim; and 

(2) Send the claimant a letter stating 

the limits of the Government’s liability, 

for patent or copyright infringement, 

and indicate that any settlement 

agreement will take the general form 

found at PGI 227.7006(b). 

(b) If a claim is denied, the 

department or agency responsible for 

the determination of the claim shall— 

(1) Notify the claimant or authorized 

representative in writing; 

(2) Provide a basis for denying the 

claim; and 

(3) Draft the notification to avoid any 

admissions against the Government’s 

interest. Additionally, the notification 

should not waive any evidentiary 

privileges that the Government may 

have, and it should state that the denial 

is a final agency action. An example 

letter of denial of an administrative 

claim may be found at PGI 

227.7004(b)(3). 

227.7005 Settlement of indemnified 

claims. 

Settlement of claims involving 

payment for past infringement should 

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. 

227.7006 Settlement agreements. 

Settlement of claims for intellectual 

property infringement can take many 

forms. Sometimes, the appropriate 

manner in which to settle a claim or 

litigation is through use of a settlement 

agreement. 

(a) Required FAR clauses for 

settlement agreements. The following 

FAR clauses shall be included in any 

settlement agreement: 

(1) FAR 52.203–5, Covenant Against 

Contingent Fees. 

(2) FAR 52.203–3, Gratuities. 

(3) FAR 52.232–23, Assignment of 

Claims. 

(4) FAR 52.233–1, Disputes. 

(b) Sample settlement agreement for 

patent infringement. This patent 

infringement settlement agreement may 

be tailored as appropriate for copyright 

infringement releases, settlement 

agreements, license agreements, or 

assignments. 

PATENT LICENSE AND RELEASE 

CONTRACT 

THIS CONTRACT is effective as of the 

ll day of [month, year,] between the 

UNITED STATES OF AMERICA 

(hereinafter called the Government), and 

llllll (hereinafter called the 

Contractor), (a corporation organized 

and existing under the laws of the State 

of llllll), (a partnership 

consisting of llllll), (an 

individual trading as llllll), of 

the City of llllll, in the State of 

llllll. 

WHEREAS, the Contractor warrants that 

it has the right to grant the within 

license and release, and the Government 

desires to procure the same, and 


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59424 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

WHEREAS, this contract is authorized 

by law, including 10 U.S.C. 2386. 

NOW THEREFORE, in consideration of 

the grant, release and agreements 

hereinafter recited, the parties have 

agreed as follows: 

FIRST OPTION FOR ARTICLES 1 AND 

2 

ARTICLE l. License Grant.* 

(a) The Contractor hereby grants to the 

Government an irrevocable, 

nonexclusive, nontransferable, and 

paid-up license, under the following 

intellectual property rights, to practice 

by or for the Government, throughout 

the world, any and all of the inventions 

hereunder, in the manufacture and use 

of any article or material, in the use of 

any method or process, and in the 

disposition of any article or material in 

accordance with law: 

U.S. Patent No. lll Date lll 

Application Serial No. lll Filing 

Date lll 

(b) No rights are granted or implied by 

the agreement under any other patents 

other than as provided above or by 

operation of law. 

(c) Nothing contained herein shall 

limit any rights which the Government 

may have obtained by virtue of prior 

contracts or by operation of law or 

otherwise. 

ARTICLE 2. License Term.* 

ALTERNATE I 

The license hereby granted shall 

remain in full force and effect for the 

full term of the intellectual property 

referred to in the ‘‘License Grant’’ clause 

of this contract and any and all 

intellectual property hereafter issued. 

ALTERNATE II 

The license hereby granted shall 

terminate on the ll day of lll, 

ll provided, however, that 

termination is without prejudice to the 

completion of any Government contract 

entered into prior to termination or to 

the subsequent use or disposition of any 

articles or materials manufactured by or 

for the Government under this license. 

SECOND OPTION FOR ARTICLES 1 

AND 2 

ARTICLE 1. License Grant—Running 

Royalty.* 

(a) The Contractor hereby grants to the 

Government, as represented by the 

Secretary of lll, an irrevocable, 

nonexclusive, nontransferable license, 

under the following intellectual 

property rights, to practice by or for 

[agency], throughout the world, any and 

all of the inventions hereunder in the 

manufacture and use of any article or 

material, in the use of any method or 

process, and in the disposition of any 

article or material in accordance with 

law: 

U.S. Patent No. lll Date lllll 

Application Serial No. lll Filing 

Date lll 

(b) No rights are granted or implied by 

the agreement under any other patents 

other than as provided above or by 

operation of law. 

(c) Nothing contained herein shall limit 

any rights which the Government may 

have obtained by virtue of prior 

contracts or by operation of law or 

otherwise. 

(d) Computation of Royalties. 

Subject to the following conditions, 

royalties shall accrue to the Contractor 

under this agreement on all articles or 

materials embodying, or manufactured 

by the use of, any or all inventions 

claimed under any unexpired United 

States patent licensed herein, upon 

acceptance thereof by [agency], at the 

rate of __ percent of the net selling price 

of such articles or materials (amount) 

per (name of item) * whether 

manufactured by the Government or 

procured under a fixed-price contract, 

and at the rate of (amount) per (name of 

item) acquired or manufactured by a 

Contractor performing under a costreimbursement contract. With respect to 

such articles or materials made by 

[agency], ‘‘net selling price,’’ as used in 

this paragraph, means the actual cost of 

direct labor and materials without 

allowance for overhead and supervision. 

(e) Reporting and Payment of Royalties. 

(1) The (procuring office) shall, on or 

before the sixtieth (60th) day following 

the end of each yearly * period ending 

llldeliver to the Contractor a written 

report furnishing necessary information 

relative to royalties which have accrued 

under this contract during stated period. 

(2) Royalties which have accrued 

under this contract during the yearly* 

period ending lll shall be paid to 

the Contractor (if appropriations 

therefore are available or become 

available) within sixty (60) days 

following the receipt of a voucher from 

the Contractor submitted in accordance 

with the report referred to above; 

provided, that the Government shall not 

be obligated to pay, in respect of any 

such yearly period, on account of the 

combined royalties accruing under this 

contract directly and under any separate 

licenses granted pursuant to the 

‘‘License to Other Government 

Agencies’’ clause (if any) of this 

contract, an amount greater than ll 

dollars ($ll). If such combined 

royalties exceed the said maximum 

yearly obligation, each agency shall pay 

a pro-rata share as determined by the 

proportion its accrued royalties bear to 

the combined total of accrued royalties. 

(f) License to Other Government 

Agencies. 

The Contractor hereby agrees to grant 

a separate license under the intellectual 

property rights referred to in the 

‘‘License Grant’’ clause of this contract, 

on the same terms and conditions as 

appear in this license contract, to any 

other agency of the Government at any 

time on receipt of a written request for 

such a license; provided, however, that 

each agency make payments directly to 

the Contractor for royalties which 

accrue under the separate licenses. The 

Contractor shall promptly notify the 

Licensee upon receipt of any request for 

a license. 

ARTICLE 2. License Term—Running 

Royalty.* 

The license hereby granted shall 

remain in full force and effect for the 

full term of each of the intellectual 

property referred to in the ‘‘License 

Grant’’ clause of this contract and any 

and all intellectual property hereafter 

issued unless terminated sooner, as 

elsewhere herein provided. 

ARTICLE 3. Release of Past 

Infringement. 

The Contractor hereby releases each 

and every claim and demand which it 

now has or may hereafter have against 

the Government for the manufacture or 

use by or for the Government prior to 

the effective date of this contract, of any 

inventions covered by (i) any patents 

and patent applications identified in 

this contract, and (ii) any other patents 

or patent applications owned or 

hereafter acquired by it, insofar as and 

only to the extent that such other 

patents or patent applications cover the 

manufacture, use, or disposition of 

(description of subject matter). 

ARTICLE 4. Non-Estoppel. 

The Government reserves the right at 

any time to contest the enforceability, 

validity, scope of, or the title to any 

intellectual property herein licensed 

without waiving or forfeiting any right 

under this contract. 

ARTICLE 5. FAR Clauses. 

Insert the following FAR clauses: 

(a) Covenant Against Contingent Fees, 

FAR 52.203–5. 

(b) Gratuities, FAR 52.203–3. 

(c) Assignment of Claims, FAR 

52.232–23. 

(d) Disputes, FAR 52.233–1. 

ARTICLE 6. Termination. 

Notwithstanding any other provision 

of this contract, the Government shall 


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have the right to terminate the license, 

in whole or in part, by giving the 

Contractor at least thirty (30) days 

written notice of the termination date; 

provided, however, that the obligation 

of the Government to pay royalties 

which have accrued prior to the 

effective date of termination shall not be 

affected. 

ARTICLE 7. Payment. 

The Contractor shall be paid the sum 

of lll Dollars ($ll) in full 

compensation for the rights herein 

granted and agreed to be granted. 

ARTICLE 8. Readjustment of Payments. 

(a) The Government shall be entitled to 

the benefit of more favorable terms 

with respect to all royalties accruing 

under a contract when any license, 

under substantially the same 

intellectual property and authorizing 

substantially the same acts which are 

authorized under this contract, has 

been or shall hereafter be granted 

within the United States. The 

Contractor shall promptly notify the 

Secretary in writing of the granting of 

such more favorable terms. 

(b) In the event any licensed intellectual 

property is held invalid by decision of 

a court of competent jurisdiction, the 

requirement to pay royalties under 

this contract shall be interpreted in 

conformity with the court’s decision 

as to the scope of validity of such 

intellectual property; provided, 

however, that in the event such 

decision is modified or reversed on 

appeal, the requirement to pay 

royalties under this contract shall be 

interpreted in conformity with the 

final decision rendered on such 

appeal. 

ARTICLE 9. Successors and Assignees. 

This Agreement shall be binding upon 

the Contractor, its successors (when 

the Contractor is an individual, 

change ‘‘successors’’ to ‘‘heirs’’; if a 

partnership, modify appropriately) 

and assignees, but nothing contained 

in this Article shall authorize an 

assignment of any claim against the 

Government other than as permitted 

by law. 

IN WITNESS WHEREOF, the parties 

hereto have executed this contract. 

THE UNITED STATES OF AMERICA 

By lllllllllllllllll

Date llllllllllllllll

(Signature and Title of Contractor Representative) lllllllllllll

By lllllllllllllllll

Date llllllllllllllll

(Signature and Title of Government Representative lllllllllllll

Contract Number ll 

* If only a release is procured, delete 

those articles marked with an *. 

(c) Assignment. If an assignment is 

procured, the following provides sample 

language that may be used to assign 

patent rights to the Government. 

The Contractor hereby conveys to the 

Government, as represented by the 

Secretary of llll, the entire right, 

title, and interest in and to the following 

patents (and applications for patent), in 

and to the inventions thereof, and in 

and to all claims and demands 

whatsoever for infringement thereof 

heretofore accrued, the same to be held 

and enjoyed by the Government through 

its duly appointed representatives to the 

full end of the term of said patents (and 

to the full end of the terms of all patents 

which may be granted upon said 

applications for patent, or upon any 

division, continuation-in-part or 

continuation thereof): 

U.S. Patent No. lll Date lll 

Name of Inventor llllllllll

U.S. Application Serial No. lll 

Filing Date lll 

Name of Inventor llllllllll

Subpart 227.71—Rights in Technical 

Data and Computer Software 

227.7100 Scope of subpart. 

This subpart— 

(a) Prescribes policies and procedures 

for— 

(1) The acquisition of technical data 

and computer software; and 

(2) The rights to use, modify, 

reproduce, release, perform, display, or 

disclose technical data and computer 

software. 

(b) It implements requirements of the 

following laws and Executive order: 

(1) 10 U.S.C. 2302(4). 

(2) 10 U.S.C. 2305(d)(4). 

(3) 10 U.S.C. 2320. 

(4) 10 U.S.C. 2321. 

(5) 10 U.S.C. 7317. 

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

(7) Executive Order 12591 (paragraph 

1(b)(7)). 

(c) Does not apply to rights in works 

(see subpart 227.72). 

227.7101 Definitions. 

As used in this subpart— 

(a) Unless otherwise specifically 

indicated, the terms offeror and 

contractor include an offeror’s or 

contractor’s subcontractors or suppliers, 

or potential subcontractors or suppliers, 

at any tier. 

(b) Other terms are defined in the 

clauses at— 

(1) 252.227–7013, Rights in Technical 

Data and Computer Software— 

Noncommercial; 

(2) 252.227–7014, Rights in Technical 

Data and Computer Software—Small 

Business Innovation Research (SBIR) 

Program; and 

(3) 252.227–7015, Rights in Technical 

Data and Computer Software— 

Commercial. 

227.7102 Policy. 

(a) It is DoD policy to acquire only the 

technical data and computer software, 

and the rights in that data and software, 

that are necessary to satisfy agency 

needs. Significant elements of the 

materials discussed in this section are 

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

Although these statutes apply only to 

technical data, they are expanded by 

policy in most cases to cover computer 

software as well. 

(b) To encourage offerors and 

contractors to offer or use commercial 

products to satisfy military 

requirements, offerors and contractors 

shall not be required to— 

(1) Furnish technical information 

related to commercial items that is not 

customarily provided to the public 

except technical data or computer 

software that— 

(i) Are form, fit, or function data 

(applies only to technical data); 

(ii) Are required for repair or 

maintenance of commercial items or 

processes, or for the proper installation, 

operating, or handling of a commercial 

item, either as a stand-alone unit or as 

a part of a military system, when such 

information is not customarily provided 

to commercial users or the data 

provided to commercial users is not 

sufficient for military purposes; or 

(iii) Describe the modification of a 

commercial item made at Government 

expense 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 

technical data or commercial computer 

software except for a transfer of rights 

mutually agreed upon. 

(c) Commercial technical data and 

commercial computer software shall be 

acquired— 

(1) Under the licenses customarily 

provided to the public unless such 

licenses are inconsistent with Federal 

procurement law or do not otherwise 

satisfy user needs; and 

(2) Competitively, to the maximum 

extent practicable, using firm-fixedprice contracts or firm-fixed-priced 

orders under available pricing 

schedules. 

(d) Solicitations and contracts shall— 

(1) Specify the technical data and 

computer software to be delivered under 


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a contract and the delivery schedules for 

that data and software (10 U.S.C. 

2320(b)(2)). 

(2) Whenever practicable, identify— 

(i) The type and quantity of the 

technical data and computer software 

(including requirements for multiple 

users at one site, or multiple site 

licenses) 

(ii) The format and media in which 

the data or software will be delivered; 

and 

(iii) The place of delivery for each 

deliverable item of technical data; 

(3) Establish or reference procedures 

for determining the acceptability of 

technical data and computer software 

(10 U.S.C. 2320(b)(3)); 

(4) Establish separate contract line 

items, to the extent practicable, for the 

technical data and computer software to 

be delivered under a contract (10 U.S.C. 

2320(b)(4)) (this requirement may be 

satisfied by listing each deliverable item 

on an attachment to the contract); 

(5) Require offerors and contractors to 

price separately each deliverable data or 

software item (10 U.S.C. 2320(b)(4)); 

(6) Require offerors to identify and 

assert, to the maximum extent 

practicable, restrictions on deliverable 

technical data and computer software as 

early as possible in the acquisition, and 

in all cases require the identification 

and assertion prior to delivery (10 

U.S.C. 2320(b)(5)). 

(e) 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 or computer software related to 

items, or processes developed at private 

expense, except for the types of data or 

software for which the Government 

receives unlimited rights regardless of 

the source of funding (10 U.S.C. 

2320(a)(2)(F)). 

(f) Offerors and contractors shall not 

be prohibited or discouraged from 

furnishing or offering to furnish items, 

processes, or computer software 

developed at private expense solely 

because the Government’s rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical 

data pertaining to those items may be 

restricted. (10 U.S.C. 2320(a)(2)(F)). 

(g) 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. (10 U.S.C. 

2305) 

(h) 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 computer 

software, and the associated license 

rights, in accordance with 207.106(S– 

70). 

(i) 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. 7317; 17 U.S.C. 

1301(a)(3)). 

(j) Solicitations and contracts 

establish a limited form of privity 

between the Government and 

subcontractors or suppliers regarding 

technical data and computer software, 

and rights in that data or software. 

Subcontractors and suppliers at any 

tier— 

(1) Shall not be required to relinquish 

rights in technical data or computer 

software to the prime contractor or a 

higher-tier subcontractor; and 

(2) May transact directly with the 

Government in matters relating to 

technical data and computer software. 

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

(k) DoD shall protect technical data 

and computer software from 

unauthorized access, use, reproduction, 

modification, release, performance, 

display, and disclosure. For additional 

information on the protection of 

technical data and computer software 

from unauthorized activities, see PGI 

227.7102(i). 

227.7103 Acquisition of technical data and 

computer software. 

227.7103–1 Acquisition planning. 

Requirements for technical data and 

computer software, and rights in that 

data and software, shall be fully 

addressed in acquisition planning, 

including through compliance with 

207.106(S–70) for acquisitions of major 

weapons systems or subsystems thereof. 

Restrictions on the Government’s rights 

to access, use, modify, reproduce, 

perform, display, release, or disclose 

technical data or computer software 

may have a significant impact on other 

elements of the acquisition plan, such as 

the ability to release data or software in 

connection with the competitive reprocurement of additional quantities of 

the item or process, or the competitive 

selection of life cycle support, 

maintenance, or for future upgrades or 

technical refresh of the technologies. 

For additional information on 

incorporating technical data and 

computer software considerations into 

acquisition planning, see PGI 227.7103– 

1. 

227.7103–2 Preparation of solicitation. 

Contracting officers shall work closely 

with data managers, software managers, 

and requirements personnel to ensure 

that requirements included in 

solicitations and contracts for technical 

data and computer software are 

consistent with the policies at 227.7102. 

227.7103–3 Identification and assessment 

of Government minimum needs. 

(a) Data managers, software managers, 

and other requirements personnel are 

responsible for identifying the 

Government’s minimum needs for 

technical data and computer software, 

and for rights in that data or software. 

Follow the procedures at PGI 227.7103– 

3(a) to identify and assess the 

Government’s minimum needs. 

(b) When reviewing offers received in 

response to a solicitation or other 

request for technical data or computer 

software, data managers must balance 

the original assessment of the 

Government’s data and software needs 

with the associated prices contained in 

the offer. 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, consistent with the 

policies of this subpart. 

227.7103–4 Deferred delivery and deferred 

ordering of technical data or computer 

software. 

(a) Deferred delivery. The contracting 

officer shall— 

(1) Specify in the contract which 

technical data or computer software is 

subject to deferred delivery; and 

(2) Notify the contractor sufficiently 

in advance of the desired delivery date 

in order to permit timely delivery of the 

technical data or computer software. 

(b) Deferred ordering. When computer 

software or technical data are to be 

procured through deferred ordering, the 

contracting officer shall— 

(1) Negotiate the delivery dates with 

the contractor; and 

(2) Compensate the contractor only 

for— 

(i) Converting the data into the 

prescribed form; 

(ii) Reproduction costs; and 

(iii) Delivery costs. 


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227.7103–5 Contract clauses. 

(a) 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 or computer 

software. 

(b) 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. 

227.7104 License rights in technical data 

and computer software. 

227.7104–1 General. 

(a) Grant of license. The Government 

obtains rights in technical data and 

computer software 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. 

(b) Doctrine of segregability. 

Determinations of the rights in technical 

data and computer software may be 

made at the lowest practicable 

segregable portion of the data or 

software. See PGI 227.7104–1(b) for 

examples of making this determination 

on the segregable portion. 

(c) Activities covered. 

(1) Noncommercial licenses. The 

license granted for noncommercial 

technical data and noncommercial 

computer software under the clauses 

covers the following activities: 

(i) Access; 

(ii) Use; 

(iii) Reproduction; 

(iv) Modification; 

(v) Release; 

(vi) Performance; 

(vii) Display; and 

(viii) Disclosure. 

(2) Commercial licenses. Due to the 

wide variety of terms and conditions 

used in commercial license agreements, 

some of the licenses customarily offered 

to the public might not expressly 

address all of the individual activities 

listed in paragraph (c)(1) of this 

subsection. Contracting officers must 

ensure that the license rights covering 

commercial technical data or 

commercial computer software satisfy 

the Governments minimum needs— 

including the need to engage in any or 

all of the activities listed in paragraph 

(c)(1) of this subsection. 

(d) Scope of the license. 

(1) Except as specified in paragraph 

(c)(2) of this subsection, the 

Government’s license rights cover all 

forms of intellectual property interest 

that, absent the license, would restrict 

the ability of the Government to engage 

in any of the activities listed in 

paragraph (c) of this subsection. The 

most common examples are copyright 

and trade secret. 

(2) The license does not cover— 

(i) Rights in inventions (see FAR 

subpart 27.3 and DFARS subpart 227.3); 

and 

(ii) Rights in trademarks, service 

marks, collective marks, certification 

marks, or any other mark. 

(e) Additional information. For 

additional information on the nature of 

the Government’s license, see PGI 

227.7104–1(e). 

227.7104–2 Rights in technical data and 

computer software of third parties 

(including subcontractors). 

(a) Third parties. 

(1) Under the standard data rights 

clauses (e.g., 252.227–7013, –7014, 

–7015), a contractor must grant or obtain 

for the Government the same license 

rights in a third party’s technical data 

and computer software delivered under 

the contract that the contractor must 

grant the Government under the clauses. 

(2) When non-standard license rights 

in technical data or computer software 

are negotiated, also negotiate the extent 

of a third party’s intellectual property 

license commensurate with those nonstandard license rights negotiations. An 

intellectual property license with a third 

party must provide the Government 

with at least the minimum rights 

required by the applicable rightsallocation clause. 

(3) Only grant approval to use a third 

party’s intellectual property (excluding 

patents) in which the Government will 

not receive a license 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 license. 

(b) Subcontractors. 

(1) Subcontractors or suppliers at any 

tier cannot be required to relinquish any 

rights in technical data to a 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 standard rights clause 

contained in the contractor’s contract 

with the Government. 

(2) The Government may transact 

directly with a subcontractor on 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 for matters not covered by the 

clause. 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 227.7106–5. 

227.7104–3 Rights in noncommercial 

technical data and noncommercial 

computer software. 

(a) The Government’s license rights in 

noncommercial technical data and 

noncommercial computer software are 

governed by the clause at 252.227–7013, 

Rights in Technical Data and Computer 

Software—Noncommercial. 

(b) For noncommercial technical data 

and noncommercial computer software, 

the scope of the license is generally 

determined by the source of funds used 

to develop the item, process, or 

software. 

(1) Technical data pertaining to items 

or processes. Contractors or licensors 

may, with some exceptions (see 

paragraphs (b)(1)(iii) through (xi) of the 

clause at 252.227–7013), restrict the 

Government’s rights to use, modify, 

release, reproduce, perform, display, or 

disclose technical data pertaining to 

items or processes developed 

exclusively at private expense (limited 

rights). They may not restrict the 

Government’s rights to technical data 

pertaining to items or processes 

developed exclusively at Government 

expense (unlimited rights) without the 

Government’s approval. When an item 

or process is developed with mixed 

funding, the Government may use, 

modify, release, reproduce, perform, 

display, or disclose the data pertaining 

to such items 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 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 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. 

(c) In unusual situations, the standard 

rights may not satisfy the Government’s 


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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 (c)(1) through 

(c)(4) of this subsection. 

(1) Unlimited rights. The Government 

obtains unlimited rights in technical 

data or computer software when the 

technical data or computer software, or 

the items or processes to which the 

technical data pertain, are developed 

exclusively with Government funds, or 

that qualify under certain criteria for 

which the source of development 

funding is irrelevant. See paragraph 

(b)(1) of the clause at 252.227–7013. 

(2) Government purpose rights. 

(i) The Government obtains 

Government purpose rights in 

noncommercial technical data and 

noncommercial computer software 

when the technical data or computer 

software, or the items or processes to 

which the technical data pertain, are 

developed with mixed funding—except 

when the Government is entitled to 

unlimited rights regardless of the source 

of development funding, as provided in 

paragraph (c)(1) of this subsection. 

(ii) The period during which 

Government purpose rights are effective 

is negotiable. The clause at 252.227– 

7013 provides a nominal five-year 

period, but either party may request a 

different period. Changes to the 

Government purpose rights period may 

be made by mutual agreement at any 

time prior to delivery of the technical 

data or computer software 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. 

(iii) 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— 

(A) Prior to release or disclosure, the 

intended recipient is subject to the use 

and non-disclosure agreement at 

227.7107–2; or 

(B) 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, GovernmentFurnished Information Marked with 

Restrictive Legends. 

(iv) See 227.7107–1 for Government 

procedures for protecting data and 

computer software. 

(v) Upon expiration of the 

Government purpose rights period, the 

Government has unlimited rights in the 

data including the right to authorize 

others to use the data for commercial 

purposes. 

(3) Limited rights. (i) The Government 

obtains limited rights in noncommercial 

technical data, when the technical data, 

or the items or processes to which the 

technical data pertain, is developed 

exclusively at private expense—except 

when the Government is entitled to 

unlimited rights as provided in 

paragraphs (b)(1)(iii) through (xi) of the 

clause at 252.227–7013. 

(ii) 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— 

(A) Necessary for emergency repair 

and overhaul; or 

(B) 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. 

(iii) 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. 

(iv) 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)(3)(ii)(A) or 

(B) of this subsection, the intended 

recipient must complete the use and 

non-disclosure agreement at 227.7107–2 

prior to release or disclosure of the 

limited rights data. 

(4) Restricted rights. The Government 

obtains restricted rights in 

noncommercial computer software 

required to be delivered or otherwise 

provided to the Government under a 

contract that was developed exclusively 

at private expense. 

(5) Negotiated license rights. 

(i) General. 

(A) The standard license rights 

granted to the Government under 

paragraphs (c)(1) through (4) of this 

subsection (including the period during 

which the Government shall have 

Government purpose rights) may be 

modified only by mutual written 

agreement. 

(B) 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. If either party desires to 

negotiate specialized license rights in 

technical data or computer software, the 

other party agrees to promptly enter into 

good faith negotiations to determine 

whether there are acceptable terms for 

transferring such rights. 

(C) In no event may the negotiated 

license provide the Government lesser 

rights than limited rights in technical 

data, or restricted rights in computer 

software. 

(D) The negotiated license rights must 

stipulate what rights the Government 

has to release or disclose the technical 

data or computer software to other 

persons or to authorize others to use the 

technical data or computer software. 

(E) Identify all negotiated rights in a 

license agreement made part of the 

contract. 

(ii) Technical data. 

(A) When negotiating to obtain, 

relinquish, or increase the Government’s 

rights in technical data, consider the 

acquisition strategy for the item or 

process, including logistics support and 

other factors which may have relevance 

for a particular procurement. 

(B) Generally, if technical data was 

acquired with Government purpose or 

limited rights, the contracting officer 

should negotiate for additional rights 

only if 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— 

(1) Using performance specifications 

and form, fit, and function data to 

acquire or develop functionally 

equivalent items or processes; 

(2) Obtaining a contractor’s 

contractual commitment to qualify 

additional sources and maintain 

adequate competition among the 

sources; or 

(3) Reverse engineering, or providing 

items from Government inventories to 

contractors who request the items to 


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facilitate the development of equivalent 

items through reverse engineering. 

(6) Pre-existing license rights. When 

the Government has previously obtained 

license rights in the technical data or 

computer software, the Government 

retains those same rights, unless— 

(i) The parties have agreed otherwise; 

or 

(ii) Any restrictions on the 

Government’s rights have expired. 

227.7104–4 Rights in technical data and 

computer software—Small Business 

Innovation Research (SBIR) Program. 

(a) Pursuant to 15 U.S.C. 

638(j)(1)(B)(v), (2)(A), (3)(A), and the 

Small Business Innovation Research 

Program Policy Directive, small 

business concerns in the performance of 

SBIR Phase I, II, and III awards may 

create technical data and computer 

software categorized as ‘‘SBIR data.’’ 

SBIR Phase III includes activities that 

derive from, extend, or logically 

conclude efforts performed under prior 

SBIR awards, but are funded by sources 

other than the SBIR program. SBIR 

contractors retain proprietary rights to 

SBIR data for a limited protection 

period (5 years after acceptance of the 

last deliverable), but grant specific 

license rights to the Government (SBIR 

data rights). This protection period is 

extended for any SBIR data that is 

appropriately referenced and protected 

in any subsequent SBIR award made 

prior to the expiration of the protection 

period. SBIR data rights attach to all 

SBIR data even if the data would 

otherwise qualify for unlimited rights or 

government purpose rights based on 

development exclusively or partially 

with Government funds (see 10 U.S.C. 

2320). For additional information on the 

SBIR program, see PGI 227.7104–4. 

(b) The contracting officer shall not 

negotiate for special license rights as an 

element of any SBIR Phase I, Phase II, 

or Phase III award. However, after 

award, the parties may negotiate special 

license rights by mutual agreement. 

227.7104–5 Rights in commercial technical 

data and commercial computer software. 

(a) The clause at 252.227–7015, Rights 

in Technical Data and Computer 

Software—Commercial, provides the 

Government specific license rights in 

commercial technical data and 

commercial computer software. The 

Government takes the same license 

rights as are customarily offered to the 

public, to the extent that the commercial 

license is consistent with Federal 

procurement law and meets DoD 

minimum needs (see 252.227– 

7015(b)(1)). 

(1) Notwithstanding any terms or 

conditions to the contrary in the 

commercial license agreement, the 

Government shall have— 

(i) Unlimited rights in certain types of 

technical data listed at 252.227– 

7015(b)(2); and 

(ii) At least certain minimum rights 

(similar to limited rights in 

noncommercial technical data) in all 

technical data listed at 252.227– 

7015(b)(3). 

(2) If the commercial license 

customarily offered to the public is 

inconsistent with Federal procurement 

law or does not otherwise meet DoD 

needs, the contracting officer will 

negotiate with the contractor as 

provided for at 252.227–7015(b)(1) and 

(b)(4). 

(b) If additional rights are needed, the 

contracting officer must negotiate with 

the contractor to obtain such rights. The 

specific additional rights granted to the 

Government shall be enumerated in a 

license agreement made part of the 

contract. 

(c) See PGI 227.7104–5(c) for 

guidance regarding determining 

whether a license is consistent with 

Federal procurement law and meets the 

agency’s needs, including open source 

software as a special type of commercial 

computer software, (see PGI 227.7104– 

5(c)). 

227.7104–6 Rights in derivative technical 

data and computer software. 

The clauses at 252.227–7013 and 

252.227–7014 protect the Government’s 

rights in technical data and computer 

software, or portions thereof, that the 

contractor subsequently uses to prepare 

derivative data or software or 

subsequently embeds or includes in 

other data or software. The Government 

retains the rights it obtained under the 

development contract in the unmodified 

portions of the derivative data or 

software. 

227.7104–7 Retention of rights by offerors, 

contractors, or third parties. 

The offeror, contractor, or other third 

party owner or licensor retains all 

intellectual property rights (including 

ownership) in technical data and 

computer software except those rights 

granted to the Government. 

227.7104–8 Contract clauses. 

(a)(1) Use the clause at 252.227–7013, 

Rights in Technical Data and Computer 

Software-Noncommercial, in 

solicitations and contracts when the 

successful offeror(s) will be required to 

deliver noncommercial technical data or 

noncommercial computer software to 

the Government, except when 

contracting under the Small Business 

Innovation Research Program (see 

paragraph (b) of this subsection). 

(2) Also use the clause at 252.227– 

7013 in all solicitations and contracts 

when the contractor will be required to 

deliver commercial technical data or 

commercial computer software (in 

addition to the clause at 252.227–7015), 

if the Government will pay any portion 

of the costs of development or 

modification of a commercial item, 

commercial technical data, or 

commercial computer software. 

(3) Use the clause at 252.227–7013 

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. 

(4) Use the clause at 252.227–7013 

with its Alternate II in contracts for the 

development or delivery of a vessel 

design or any useful article embodying 

a vessel design. 

(b)(1) Use the clause at 252.227–7014, 

Rights in Technical Data and Computer 

Software—Small Business Innovation 

Research (SBIR) Program, when SBIR 

data will be generated during 

performance of Phase I, II, or III awards 

or activities under the SBIR program 

(227.7104–4). 

(2) Use the clause at 252.227–7014 

with its Alternate I in research contracts 

when the contracting officer determines 

that public dissemination of SBIR data 

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. 

(c)(1) Use the clause at 252.227–7015, 

Technical Data and Computer 

Software—Commercial, in all 

solicitations and contracts when the 

contractor will be required to deliver 

commercial technical data or 

commercial computer software. 

(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. 

(d) Doctrine of segregability and 

applicability to subcontractors. To the 

maximum extent practicable, when the 

prescriptions at paragraphs (a) through 

(c) of this subsection require the use of 

more than one clause, the contract will 

specify which deliverables are governed 

by each clause. In addition, the clauses 


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prescribed at paragraphs (a) through (c) 

of this subsection require the contractor 

to use the appropriate clause(s) in 

subcontracts, and to notify the 

Government if a clause is used that is 

not already included in the prime 

contract. For additional guidance on 

using the doctrine of segregability to 

manage the application of multiple 

rights-determinative clauses under a 

single contract, see PGI 227.7104–8(d). 

227.7105 Contractor assertion of 

restrictions on technical data and computer 

software—early identification and marking 

requirements. 

227.7105–1 Early identification. 

(a) The solicitation provision at 

252.227–7017, Pre-Award Identification 

and Assertion of License Restrictions— 

Technical Data and Computer Software, 

requires offerors to identify to the 

contracting officer, prior to contract 

award, all technical data and computer 

software that the offeror asserts should 

be provided to the Government with 

restrictions on use, modification, 

reproduction, release, or disclosure. The 

notification and identification must be 

submitted as an attachment to the offer. 

(1) The contracting officer shall 

specify that pre-award identification is 

intended to require the identification of 

situations in which an offeror or 

contractor anticipates using a 

commercial or nondevelopmental 

technology (or any technology for which 

restrictions are likely to be asserted), but 

the specific subcontractor, supplier, or 

the specific asserted restrictions, have 

not yet been identified. For example, to 

ensure that the latest and best 

technology is used for a particular 

application, the offeror may propose 

delaying the selection of the particular 

technology or source for that 

technology, until shortly before the 

technology is required to be integrated 

into the systems or deliverables—often 

referred to as ‘‘just in time’’ technology 

insertion. In this case, the offeror’s preaward list shall identify the technical 

data or computer software that it 

anticipates delivering with restrictions, 

and provide as much information as 

possible about the nature of the 

anticipated restrictions, the basis for the 

asserted restrictions, and the potential 

source(s) of the technology (e.g., 

commercial technologies, or 

noncommercial technologies developed 

exclusively or partially at private 

expense). 

(2) The pre-identification list of 

assertions must be consistent with the 

offeror’s proposal regarding the use of 

commercial or nondevelopmental 

technologies and the need to develop 

new technologies, as reflected in the 

remainder of the technical and cost 

portions of the proposal. Even such a 

rudimentary identification will place 

the contracting officer on notice that 

rights may be restricted in the technical 

data or computer software, thereby 

permitting the Government to more 

accurately evaluate the offer. 

(3) After contract award, the 

contractor is required to provide the 

more specific information (e.g., the 

asserted restrictions, basis for assertion, 

and entity asserting restrictions) as soon 

as the information is available, pursuant 

to 252.227–7018, Post-Award 

Identification and Assertion of License 

Restrictions—Technical Data and 

Computer Software. 

(b) 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. The contracting 

officer shall provide an offeror an 

opportunity to remedy a minor 

informality in accordance with the 

procedures at FAR 14.405 or 15.307. An 

offeror’s failure to correct the 

informality within the time prescribed 

by the contracting officer shall render 

the offer ineligible for award. 

(c) 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 227.7106–3. 

(d) 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. 

(e) Subsequent to contract award, the 

clause at 252.227–7018, Post-Award 

Identification and Assertion of License 

Restrictions—Technical Data and 

Computer Software, permits the 

contractor to make additional assertions 

under certain conditions, in accordance 

with the procedures and in the format 

prescribed by that clause. 

(f) Neither the pre- or post-award 

assertions made by the contractor, or the 

fact that certain assertions are identified 

in the attachment to the contract, 

determine the respective rights of the 

parties. As provided at 227.7106–4, the 

Government has the right to review, 

verify, challenge, and validate 

restrictive markings. 

(g) 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, 

consistent with the policies of this 

subpart. 

227.7105–2 Marking requirements. 

(a) Contractor marking requirements. 

The clause at 252.227–7013, Rights in 

Technical Data and Computer 

Software—Noncommercial— 

(1) Requires a contractor that desires 

to restrict the Government’s rights in 

technical data or computer software to 

place restrictive markings on the data or 

software, 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 or 

computer software in which the 

Government has previously obtained 

rights with the Government’s preexisting rights in that data or software 

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 or software with the 

appropriate restrictive legend for which 

the data or software qualifies. 

(b) Unmarked technical data or 

computer software. 

(1) Technical data or computer 

software 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 (b)(2) of this 

subsection) to correct an inadvertent 

omission of markings, do not release or 

disclose the technical data or computer 

software pending evaluation of the 

request. 

(2) A contractor may request 

permission to have appropriate legends 

placed on unmarked technical data or 

computer software at its expense. The 

request must be received by the 

contracting officer within six months 

following the furnishing or delivery of 

such data or software, or any extension 

of that time approved by the contracting 

officer. The person making the request 

must— 

(i) Identify the technical data or 

computer software that should have 

been marked; 

(ii) Demonstrate that the omission of 

the marking was inadvertent and that 

the proposed marking is justified and 

conforms with the requirements for the 


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marking of technical data and computer 

software contained in the relevant 

clause(s); and 

(iii) Acknowledge, in writing, that the 

Government has no liability with 

respect to any disclosure, reproduction, 

or use of the technical data or computer 

software 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 or computer software were not 

distributed outside the Government or 

were distributed outside the 

Government with restrictions on further 

use or disclosure. 

227.7105–3 Solicitation provision and 

contract clauses. 

(a) Use the clause 252.227–7016, 

Rights in Bid or Proposal Information, 

in all solicitations and contracts that 

anticipate the delivery of technical data 

or computer software. 

(b) Use the provision 252.227–7017, 

Pre-Award Identification and Assertion 

of License Restrictions—Technical Data 

and Computer Software, in all 

solicitations that anticipate the delivery 

of technical data or computer software. 

(c) Use the clause 252.227–7018, PostAward Identification and Assertion of 

License Restrictions—Technical Data 

and Computer Software, in all 

solicitations and contracts that 

anticipate the delivery of technical data 

or computer software. 

227.7106 Conformity, acceptance, 

warranty, and validation of asserted 

restrictions on technical data and computer 

software. 

227.7106–1 Conformity and acceptance. 

(a) Solicitations and contracts 

requiring the delivery of technical data 

or computer software shall specify the 

requirements the data or software must 

satisfy to be acceptable. Contracting 

officers, or their authorized 

representatives, are responsible for 

determining whether technical data and 

computer software tendered for 

acceptance conform to the contractual 

requirements. 

(b) The clause at 252.227–7030, 

Technical Data and Computer 

Software—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 examples on 

the amount subject to withholding, see 

PGI 227.7106–1(b). 

(c) Do not accept technical data or 

computer software that do not conform 

to the contractual requirements in all 

respects. Except for nonconforming 

restrictive markings (see paragraph (d) 

of this subsection), correction or 

replacement of nonconforming data or 

software, or an equitable reduction in 

contract price when correction or 

replacement of the nonconforming data 

or software is not practicable or is not 

in the Government’s interests, shall be 

accomplished in accordance with— 

(1) The provisions of a contract clause 

providing for inspection and acceptance 

of deliverables and remedies for 

nonconforming deliverables; or 

(2) The procedures at FAR 46.407(c) 

through (g), if the contract does not 

contain an inspection clause providing 

remedies for nonconforming 

deliverables. 

(d) Follow the procedures at 

227.7106–3 if nonconforming markings 

are the sole reason technical data or 

computer software fails to conform to 

contractual requirements. The clause at 

252.227–7030, as prescribed at 

227.7106–5, may be used to withhold an 

amount from payment, consistent with 

the terms of the clause, pending 

correction of the nonconforming 

markings. 

227.7106–2 Warranty. 

(a) Noncommercial technical data. 

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 or process is or is not warranted 

shall not be a consideration in 

determining whether or not to obtain a 

warranty for the technical data that 

pertain to the item or process. 

(1) 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. 

(b) Noncommercial computer 

software. 

(1) Weapon systems. Computer 

software that is a component of a 

weapon system or major subsystem 

shall be addressed as part of the weapon 

system warranty. Follow the procedures 

at 246.710. 

(2) 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 procurementspecific clause may be developed. 

(c) Commercial technical data and 

commercial computer software. Follow 

FAR part 12 and DFARS part 212 

regarding warranties for commercial 

technical data and commercial 

computer software. 

227.7106–3 Unjustified and 

nonconforming markings. 

(a) Unjustified markings. (1) An 

unjustified marking is an authorized 

marking that does not accurately depict 

restrictions applicable to the 

Government’s use, modification, 

reproduction, release, performance, 

display, or disclosure of the marked 

technical data or computer software. For 

an example, see PGI 227–7106–3(b). 

(2) The correction of unjustified 

markings on technical data or computer 

software is governed by 252.227– 

7013(i)(1). However, at any time during 

performance of a contract and 

notwithstanding existence of a 

challenge, the contracting officer and 

the party that has asserted a restrictive 

marking may agree that the restrictive 

marking is not justified. 

(b) Nonconforming markings. (1) A 

nonconforming marking is a marking 

that does not comply with the form or 

content that is authorized by the clause 

governing the technical data or 

computer software. 

(i) For noncommercial technical data 

and noncommercial computer software, 

authorized markings are identified in 

the clause at 252.227–7013, Rights in 

Technical Data and Computer 

Software—Noncommercial. All other 

noncommercial markings which differ 

from those identified in 252.227–7013, 

whether in form or substance, are 

nonconforming markings. 

(ii) For commercial technical data and 

commercial computer software, the 

clause at 252.227–7015, Rights in 

Technical Data and Computer 

Software—Commercial does not specify 

the form or content of restrictive 

legends. However, any restrictive 

marking that does not accurately 

describe the Government’s license rights 

shall be considered an unjustified 


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marking under paragraph (b) of this 

subsection. 

(2) The correction of nonconforming 

markings on technical data or computer 

software is governed by 252.227– 

7013(i)(2). To the extent practicable, the 

contracting officer should return 

technical data or computer software 

bearing nonconforming markings to the 

person who has placed the 

nonconforming markings on such 

technical data or computer software to 

provide that person an opportunity to 

correct or strike the nonconforming 

marking at that person’s expense. 

227.7106–4 Government right to review, 

verify, challenge, and validate asserted 

restrictions. 

(a) General. All challenges must be 

made in accordance with the provisions 

of 252.227–7037, Validation of 

Restrictive Markings on Technical Data 

and Computer Software. 

(1) The Government has the right to 

challenge asserted restrictions on 

technical data (see 10 U.S.C. 2321) and 

computer software when— 

(i) There are reasonable grounds to 

question the validity of the assertion; 

and 

(ii) Continued adherence to the 

assertion would make it impractical to 

later procure competitively the item to 

which the technical data or computer 

software pertain. 

(2) However, there is a mandatory 

presumption that commercial items are 

developed at private expense. (See 10 

U.S.C. 2320(b)(1), and 2321(f)). 

Therefore, do not challenge a 

contractor’s assertion that a commercial 

item or process was developed at 

private expense unless the Government 

can demonstrate that it contributed to 

development of the item, component, or 

process. 

(b) Pre-award considerations. (1) The 

challenge procedures may 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. 

(2) Transacting challenge matters 

directly with subcontractors, at any tier, 

or suppliers. The clause at 252.227– 

7037 includes the contractor’s 

agreement that the Government may 

transact matters under the clause 

directly with a subcontractor, at any 

tier, or supplier without creating or 

implying privity of contract for matters 

not covered under the clause. 

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. 

227.7106–5 Contract clauses. 

Use the following clauses in 

solicitations and contracts that 

anticipate the delivery of technical data 

or computer software: 

(a) 252.227–7030, Technical Data and 

Computer Software—Withholding of 

Payment; and 

(b) 252.227–7037, Validation of 

Restrictive Markings on Technical Data 

and Computer Software. 

227.7107 Safeguarding, use, and handling 

of technical data and computer software. 

227.7107–1 Government procedures for 

protecting technical data and computer 

software. 

(a) DoD personnel, including 

acquisition personnel, are required to 

protect technical data and computer 

software from unauthorized or 

inappropriate access, use, modification, 

reproduction, release, performance, 

display, and disclosure. This protection 

includes— 

(1) Restrictions that are based on an 

offeror’s, contractor’s, or licensor’s 

intellectual property rights; and 

(2) Restrictions based on other laws, 

policies, or regulations (e.g., exportcontrolled information or technology, 

information subject to withholding 

under the FOIA, privacy information). 

(b) Contracting activities shall 

establish procedures to assure that 

technical data or computer software 

marked with restrictive legends are 

released or disclosed, including a 

release or disclosure through a 

Government solicitation, only to 

authorized persons subject to 

appropriate use and non-disclosure 

restrictions. Solicitations or public 

announcements must provide notice of 

the use and non-disclosure 

requirements. 

(c)(1) Class use and non-disclosure 

agreements (e.g., agreements covering 

all solicitations received by a company 

within a reasonable period) are 

authorized for Government purpose 

rights technical data or computer 

software, and may be obtained at any 

time prior to release or disclosure of the 

technical data or computer software. 

(2) Documents transmitting 

Government purpose rights technical 

data or computer software to persons 

under class agreements shall identify 

the technical data or computer software 

subject to Government purpose rights 

and the class agreement under which 

the technical data or computer software 

are provided. 

227.7107–2 Use and non-disclosure 

agreement. 

(a) Except as provided in paragraph 

(c) of this subsection, technical data or 

computer software delivered to the 

Government with restrictions on access, 

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 (Agreement) at paragraph (d) 

of this subsection prior to release or 

disclosure of the data or software. 

(b) An attachment to the Agreement 

will identify— 

(1) The technical data and computer 

software that the Government intends to 

furnish to the recipient with restrictions 

on access, use, modification, 

reproduction, release, performance, 

display, or disclosure; and 

(2) The specific conditions under 

which the recipient is authorized to 

access, use, modify, reproduce, release, 

perform, display, or disclose the 

following: 

(i) Technical data subject to limited 

rights; 

(ii) Computer software subject to 

restricted rights; 

(iii) SBIR data subject to SBIR data 

rights; and 

(iv) Technical data or computer 

software subject to— 

(A) Negotiated license rights; or 

(B) Other license restrictions, 

including commercial license rights. 

(c) The requirement for the Agreement 

does not apply to Government 

contractors which require access to a 

third party’s technical data or computer 

software for the performance of a 

Government contract that contains the 

clause at 252.227–7025, GovernmentFurnished Information Marked with 

Restrictive Legends. 

(d) The prescribed use and nondisclosure agreement is as follows: 

BILLING CODE 5001–08–P 


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BILLING CODE 5001–08–C 

227.7107–3 Contractor technical data or 

computer software repositories. 

(a) Contractor technical data or 

computer software repositories may be 

established when permitted by agency 

procedures. The contractual instrument 

establishing each repository must 

require, as a minimum, the repository 

management contractor to— 

(1) Establish and maintain adequate 

procedures for protecting technical data 

and computer software 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 and 

computer software from the repository 

to third parties consistent with the 

Government’s rights in such data; 

(3) When required by the contracting 

officer, deliver technical data or 

computer software to the Government 

on paper or in other specified media; 

(4) Be responsible for maintaining the 

currency of technical data and computer 

software delivered directly by 

Government contractors or 

subcontractors to the repository; 

(5) Obtain use and non-disclosure 

agreements (see 227.7107–2) from all 

persons to whom government purpose 

rights technical data or computer 

software is released or disclosed; and 

(6) Indemnify the Government from 

any liability to technical data and 

computer software owners or licensors 

resulting from, or as a consequence of, 

a release or disclosure of data or 

software made by the repository 

contractor or its officers, employees, 

agents, or representatives. 

(b) If the contractor is or will be the 

repository manager, the contractor’s 

technical data and computer software 

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 repository manager, do not 

require a contractor or subcontractor to 

deliver technical data marked with 

limited rights legends, or computer 

software marked with restricted rights 

legends, to a repository managed by 

another contractor unless the contractor 

or subcontractor who has asserted the 

limited rights or restricted rights agrees 

to release the data or software to the 

repository or has authorized, in writing, 

the Government to do so. 


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(d) Repository procedures may 

provide for the acceptance, delivery, 

and subsequent distribution of technical 

data or computer software 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. 

227.7107–4 Contract clause. 

(a) Use the clause at 252.227–7025, 

Government-Furnished Information 

Marked with Restrictive Legends, in 

solicitations and contracts when it is 

anticipated that the Government will 

provide the contractor, for performance 

of its contract, technical data or 

computer software marked with another 

party’s restrictive legend(s). 

(b) 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. 

Subpart 227.72—Rights in Works 

227.7200 Scope of subpart. 

This subpart— 

(a) Prescribes policies and procedures 

for the acquisition of, and Government 

rights in— 

(1) Copyrightable works; 

(2) Other works; and 

(3) Architectural designs, shop 

drawings, or similar information 

resulting from or related to construction 

or architect-engineer services; and 

(b) Does not apply to technical data 

(including computer software 

documentation) or computer software 

(see subpart 227.71). For additional 

information concerning the acquisition 

of works versus the acquisition of 

technical data and computer software, 

see PGI 227.7200(b). 

227.7201 Definitions. 

As used in this subpart— 

(a) Unless otherwise specifically 

indicated, the terms offeror and 

contractor include an offeror’s or 

contractor’s subcontractors or suppliers, 

or potential subcontractors or potential 

suppliers, at any tier. 

(b) Other terms are defined in the 

clause at— 

(1) 252.227–7020, Rights in WorksOwnership; and 

(2) 252.227–7021, Rights in 

WorksLicense. 

227.7202 Contracts for the acquisition of 

works and the assignment of rights in 

works. 

227.7202–1 Policy. 

The Government shall require 

assignment of the entire right, title, and 

interest, including the intellectual 

property rights (other than patent 

rights), in works first created, 

developed, generated, originated, 

prepared, or produced in the 

performance of a contract where it has 

a need to control— 

(a) The use, modification, 

reproduction, release, distribution, 

performance, or display, of the works; 

and 

(b) The preparation of derivative 

works from the works. 

227.7202–2 Procedures. 

(a) Solicitations and contracts shall 

specify— 

(1) The works to be first produced, 

created, or generated; 

(2) The intellectual property rights to 

be assigned; and 

(3) The delivery schedule for both the 

works and the assignment instruments. 

(b) Use the procedures at subpart 

227.71 if the Government has a need to 

control technical data (including 

computer software documentation), 

computer software, and architectural 

works that comprise technical data or 

computer software. 

227.7202–3 Contract clause. 

(a)(1) Use the clause at 252.227–7020, 

Rights in Works—Ownership, in 

solicitations and contracts— 

(i) For architect-engineer services, or 

for construction involving architectengineer services, when the Government 

requires the exclusive control of the 

data pertaining to design for 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; and 

(ii) When the successful offeror(s) will 

be required to assign to the Government 

the entire right, title, and interest, 

including the intellectual property 

rights, to the entirety of works first 

created, developed, generated, 

originated, prepared, or produced in the 

performance of the contract. 

(2) The following are examples of 

copyright assignments. 

The assignment instruments should 

be tailored to the particular work and 

the rights being assigned. 

Copyright Assignment 

Title of Work: llllllllllllll

Contract No.: llllllllllllll

Assignor’s Name: llllllllllll

Assignor’s Address: lllllllllll

For good and valuable consideration, receipt 

of which is hereby acknowledged, [name of 

assignor] (‘‘Assignor’’), hereby irrevocably 

transfers and assigns to [name of assignee] 

(‘‘Assignee’’), located at [insert address], its 

successors and assigns, in perpetuity, all 

right (whether now known or hereinafter 

created), title, and interest, throughout the 

world, including any copyrights and renewal 

or extensions thereto, in [title and short 

description of work, created under Contract 

No.: ll, including, if available, copyright 

registration number]. 

IN WITNESS THEREOF, Assignor has duly 

executed this Agreement. 

By: lllllllllllllllllll

[Authorized signature] 

Typed Name: llllllllllllll

Title: llllllllllllllllll

[Assignor’s title] 

Date: llllllllllllllllll

AUTHOR COPYRIGHT ASSIGNMENT 

AGREEMENT 

BETWEEN THE (name of agency) 

AND 

lllllllllllllllllllll

This Copyright Assignment Agreement, 

(hereinafter called ‘‘AGREEMENT’’) is made 

and entered into by and between the United 

States of America as represented by the 

Secretary of the (name of agency) (hereinafter 

called ‘‘GOVERNMENT’’) and (AUTHOR’s 

name), atllll (AUTHOR’s Address) 

(hereinafter called ‘‘AUTHOR’’) and governs a 

Work(s) already prepared or to be prepared 

by the AUTHOR with the intention that the 

contribution has been or shall be included in 

a United States Government produced 

textbook, website, spreadsheet calculator, or 

other teaching or reference material, titled: 

lllllllllllllllllllll

1. The AUTHOR hereby sells, grants, 

conveys, assigns and transfers to the 

GOVERNMENT, its entire right, title 

and interest in and to the Work(s), 

including, without limitation, 

copyrights, renewals and/or extensions 

thereof for all territories of the world, 

and all derivative works resulting from 

the Work(s) covered by this Agreement 

in consideration for payment of the 

Work(s) made under Contract 

No.llll and subject to the retained 

rights set forth in Paragraph 2. Such 

assigned rights include, but are not 

limited to, the rights throughout the 

world to: 

(a) Edit, print, publish, republish, and 

distribute the Work(s) and to prepare, 

edit, print, publish, republish and 

distribute derivative works based 

thereon, in any language and in all 

media of expression now known or later 

developed; and 

(b) To license and permit others to do 

so. 


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2. The AUTHOR retains the rights to: 

(a) Reproduce or authorize others to 

reproduce the Work(s), material 

extracted verbatim from the Work(s), or 

create derivative works, for the 

AUTHOR’s business purposes, but shall 

not use these rights for purposes that 

directly compete with the 

GOVERNMENT’s use of the Work(s). 

(b) Make limited distribution of all or 

portions of the Work(s) if the AUTHOR 

informs the GOVERNMENT in advance 

of the nature and extent of such limited 

distribution. 

(c) First refusal for the creation of any 

derivative works resulting from the 

generation of this Work(s). 

3. GOVERNMENT agrees: 

(a) To abide by accepted academic 

standards in the use of the Work(s), 

specifically the Work(s) will be 

published with the name of the 

Author(s) attached to the Work(s). 

(b) No part of the Work(s) will be used 

in a subsequent or derivative work 

without both a citation of the source 

and, if a large amount of material is 

used, without the name of the Author(s) 

attached. 

(c) If a portion of the Work(s) is to be 

modified, updated, changed, or 

otherwise used in another Work(s), the 

AUTHOR will be given an opportunity 

to update the material and will be 

compensated for this update effort at a 

fair and reasonable rate. For such 

updates, the GOVERNMENT agrees to 

exert reasonable efforts to contact the 

recipient. If the AUTHOR declines or is 

unable to update the Work(s) within a 

reasonable period of time, the 

GOVERNMENT is authorized to engage 

an alternate author to update the 

Work(s). When the Work(s) is being 

updated by an alternate author, the 

chapter, section, or material in question 

will include the original author’s name 

with an appropriate inscription, such as 

‘‘based on,’’ or ‘‘updated from.’’ 

4. The AUTHOR represents and 

warrants that the Work(s): 

(a) Is original or has in part been 

obtained from copyrighted works for 

which the AUTHOR has obtained 

written permission from the copyright 

owner, has not been previously 

published and is not in the public 

domain. 

(b) Is owned by the AUTHOR who has 

the right to convey all rights herein 

conveyed to the GOVERNMENT. 

(c) Contains no libelous material or 

material which may infringe upon or 

violate the copyright, trademark, trade 

secret or other right of another. 

(d) And that all statements asserted as 

facts in the Work(s) are either true or 

based upon generally accepted 

professional research practices and 

principles. 

5. This Agreement shall commence on 

the Effective Date and shall continue for 

the duration of the existing copyright 

term of the Work(s), and the duration of 

any renewals or extensions thereof. The 

Effective Date shall be the latest of the 

dates after which both parties have 

signed this Agreement. 

6. If any part of this Agreement is held 

to be invalid or unenforceable, such 

invalidity or unenforceability shall not 

affect the validity or enforceability of 

any other part or provision of this 

Agreement, which other part or 

provision shall remain in full force and 

effect. 

7. This Agreement shall be governed 

by and construed in accordance with 

the laws of the United States, as 

applicable to contracts made and to be 

performed within the United States, and 

all disputes had by one party against the 

other shall be brought in a court of 

competent jurisdiction in the United 

States under Federal Acquisition 

Regulation (FAR) clause 52.233–1, 

Disputes, which is hereby incorporated 

into this agreement (found in full at 

http://www.farsite.hill.af.mil). 

8. The waiver of any provision of this 

Agreement by either party, or the failure 

of either party to require performance of 

any provision of this Agreement shall 

not be construed as a waiver of its rights 

to insist on performance of that same 

provision, or any other provision, at 

some other time. Any effective waiver, 

modification or amendment must be in 

writing and signed by both parties. 

9. This Agreement constitutes the 

entire agreement between the parties 

concerning the subject matter hereof, 

and expressly supersedes any prior 

written or oral understandings or 

agreements between them with respect 

to the subject matter hereof. 

SIGNED: 

Author: 

lllllllllllllllllll

Date: llllllllllllllll

lllllllllllllllllll

Printed Name 

lllllllllllllllllll

Street Address 

lllllllllllllllllll

City, State, Zip Code 

lllllllllllllllllll

Phone Number 

GOVERNMENT (Contracting Officer): 

lllllllllllllllllll

Date: lllllllllllllll

lllllllllllllllllll

Printed Name 

(b)(1) When the clause at 252.227– 

7020, Rights in Works-Ownership, is 

used in accordance with 227.7202– 

3(a)(1), other appropriate rights in 

technical data and computer software or 

rights in works clauses may be required, 

as prescribed at 227.7104–8(a), 

227.7104–8(b), 227.7104–8(c), or 

227.7203–3(a), when the successful 

offeror(s) will be required to deliver to 

the Government— 

(i) Technical data or computer 

software; or 

(ii) Works created, developed, 

generated, originated, prepared, or 

produced outside of contract award. 

(2) The contracting officer must 

identify which works and deliverables 

are subject to which clauses when the 

clause at 252.227–7020, Rights in 

Works-Ownership, is used in addition 

to the clauses at 252.227–7013, Rights in 

Technical Data and Computer SoftwareNoncommercial; 252.227–7014, Rights 

in Technical Data and Computer 

Software-Small Business Innovation 

Research (SBIR) Program; 252.227–7015 

Rights in Technical Data and Computer 

Software-Commercial; or 252.227–7021, 

Rights in Works-License. 

227.7203 Contracts for the acquisition of 

works and license rights in works. 

227.7203–1 Policy. 

When the Government does not 

require assignment of ownership in 

works (see 227.7202) and does not 

require modification to existing works, 

such works shall be acquired under 

licenses customarily provided to the 

public unless such licenses are 

inconsistent with Federal procurement 

law or do not otherwise satisfy user 

needs. 

227.7203–2 Procedures. 

(a) Solicitations and contracts shall 

specify the works to be delivered under 

the contract, and the delivery schedule 

for the works. 

(b) Use the procedures at subpart 

227.71 if the Government desires to 

obtain technical data (including 

computer software documentation) or 

computer software. 

227.7203–3 Contract clause. 

(a) Use the clause at 252.227–7021, 

Rights in Works-License in solicitations 

and contracts when the successful 

offeror(s) will be required to deliver to 

the Government— 

(1) Works first created, developed, 

generated, originated, prepared, or 

produced outside of contract award; or 

(2) Modifications made by the 

successful offeror(s) to works first 

created, developed, generated, 

originated, prepared, or produced 

outside of contract award; 


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(b)(1) When the clause at 252.227– 

7021, Rights in Works-License, is used 

in accordance with 227.7203–3(a), other 

appropriate rights in technical data and 

computer software or rights in works 

clauses may be required, as prescribed 

at 227.7104–8(a), 227.7104–8(b), 

227.7104–8(c), or 227.7202–3(a) when 

the successful offeror(s) will be required 

to— 

(i) Deliver to the Government 

technical data or computer software; or 

(ii) Assign to the Government the 

entire right, title and interest, including 

the intellectual property rights, to the 

entirety of works first created, 

developed, generated, originated, 

prepared, or produced in the 

performance of the contract. 

(2) The contracting officer must 

identify which works and deliverables 

are subject to which clauses when the 

clause at 252.227–7021, Rights in 

Works-License, is used in addition to 

the clauses at 252.227–7013, Rights in 

Technical Data and Computer SoftwareNoncommercial; 252.227–7014, Rights 

in Technical Data and Computer 

Software-Small Business Innovation 

Research (SBIR) Program; 252.227–7015, 

Rights in Technical Data and Computer 

Software-Commercial; or 252.227–7020, 

Rights in Works-Ownership. 

227.7204 Safeguarding, use, and handling 

of works. 

227.7204–1 Procedures. 

(a) DoD personnel, including 

acquisition personnel, are required to 

protect works from unauthorized or 

inappropriate access, use, modification, 

reproduction, release, performance, 

display, and disclosure. This protection 

includes— 

(1) Restrictions that are based on an 

offeror’s, contractor’s, or licensor’s 

intellectual property rights; and 

(2) Restrictions based on other laws, 

policies, or regulations (e.g., export— 

controlled information or technology, 

information subject to withholding 

under the FOIA, privacy information). 

(b) Contracting activities shall 

establish procedures to assure that 

works marked with restrictive legends 

are released or disclosed, including a 

release or disclosure through a 

Government solicitation, only to 

authorized persons subject to 

appropriate use and non-disclosure 

restrictions. Solicitations or public 

announcements must provide notice of 

the use and non-disclosure 

requirements. 

(c)(1) Class use and non-disclosure 

agreements (e.g., agreements covering 

all solicitations received by a company 

within a reasonable period) are 

authorized for Government purpose 

rights works and may be obtained at any 

time prior to release or disclosure of the 

works. 

(2) Documents transmitting 

Government purpose rights works to 

persons under class agreements shall 

identify the works subject to 

Government purpose rights and the 

class agreement under which the works 

are provided. 

227.7204–2 Contract clause. 

(a) Use the clause at 252.227–70YY, 

Government-Furnished Works Marked 

with Restrictive Legends, in 

solicitations and contracts when it is 

anticipated that the Government will 

provide the contractor, for performance 

of its contract, works marked with 

another party’s restrictive legend(s). 

(b) When works marked with 

government license rights legends will 

be released or disclosed to a 

Government contractor performing a 

contract that does not include the clause 

at 252.227–70YY, 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. 

227.7205 Rights in architectural designs, 

shop drawings, or similar information 

related to architect-engineer services and 

construction. 

227.7205–1 Scope. 

(a) This section provides clauses for 

data, copyrights, and restricted designs 

unique to the acquisition of architect– 

engineer services and construction. 

(b) It does not apply when the 

acquisition is limited to supply 

contracts for the acquisition of 

construction supplies or materials; or 

experimental, developmental, or 

research work, or test and evaluation 

studies of structures, equipment, 

processes, or materials for use in 

construction. For such acquisitions, use 

the provisions and clauses required by 

227.7104–8. 

227.7205–2 Contract clauses. 

(a) Use the clause at 252.227–7022, 

Government Rights in Works 

(Unlimited), except as provided in 

paragraphs (b) and (d) of this 

subsection, in solicitations and 

contracts for architect-engineer services 

and for construction involving 

architect–engineer services. 

(b) Use the clause at 252.227–7024, 

Notice and Approval of Restricted 

Designs, in architect-engineer contracts 

when necessary for the Government to 

make informed decisions concerning 

noncompetitive aspects of the design. 

(c) Use the clause at 252.227–7033, 

Rights in Shop Drawings, in 

solicitations and contracts calling for 

delivery of shop drawings. 

(d) When the Government requires the 

exclusive control of the data pertaining 

to the design of a building, monument, 

or a construction of a similar nature, see 

227.7202–2(a)(2). 

PART 246—QUALITY ASSURANCE 

246.710 Contract clauses. 

7. Section 246.710 is amended at 

paragraph (1) by removing ‘‘Rights in 

Technical Data and Computer Software’’ 

and adding in its place ‘‘Rights in 

Technical Data and Computer 

Software—Noncommercial’’. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.227–7000 [Removed and reserved.] 

8. Section 252.227–7000 is removed 

and reserved. 

252.227–7001 [Removed and reserved.] 

9. Section 252.227–7001 is removed 

and reserved. 

252.227–7002 [Removed and reserved.] 

10. Section 252.227–7002 is removed 

and reserved. 

252.227–7003 [Removed and reserved.] 

11. Section 252.227–7003 is removed 

and reserved. 

252.227–7004 [Removed and reserved.] 

12. Section 252.227–7004 is removed 

and reserved. 

252.227–7005 [Removed and reserved.] 

13. Section 252.227–7005 is removed 

and reserved. 

252.227–7006 [Removed and reserved.] 

14. Section 252.227–7006 is removed 

and reserved. 

252.227–7007 [Removed and reserved.] 

15. Section 252.227–7007 is removed 

and reserved. 

252.227–7008 [Removed and reserved.] 

16. Section 252.227–7008 is removed 

and reserved. 

252.227–7009 [Removed and reserved.] 

17. Section 252.227–7008 is removed 

and reserved. 

252.227–7010 [Removed and reserved.] 

18. Section 252.227–7010 is removed 

and reserved. 

252.227–7011 [Removed and reserved.] 

19. Section 252.227–7011 is removed 

and reserved. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
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252.227–7012 [Removed and reserved.] 

20. Section 252.227–7012 is removed 

and reserved. 

21. Section 252.227–7013 is revised to 

read as follows: 

252.227–7013 Rights in Technical Data 

and Computer Software—Noncommercial. 

As prescribed in 227.7104–8(a), use 

the following clause: 

RIGHTS IN TECHNICAL DATA AND 

COMPUTER SOFTWARE— 

NONCOMMERCIAL (DATE) 

(a) Definitions. As used in this clause— 

(1) Commercial computer software means 

computer software that is a commercial item. 

(2) Commercial technical data means 

technical data that is or pertains to a 

commercial item. 

(3) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 

(4) Computer program means a set of 

instructions, rules, routines, or statements, 

regardless of the form or method of 

recording, that is capable of causing a 

computer to perform a specific operation or 

series of operations. Examples include 

firmware, object code, and any form of 

executable code. 

(5) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be complied to 

generate a computer program. The term does 

not include computer database or computer 

software documentation. 

(6) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(7) Detailed manufacturing or process data 

means technical data that describe the steps, 

sequences, and conditions of manufacturing, 

processing, or assembly used by the 

manufacturer to produce an item or to 

perform a process. 

(8) Developed means that— 

(i) An item or process exists and is 

workable. Workability is generally 

established when the item or process has 

been analyzed or tested sufficiently to 

demonstrate to reasonable people skilled in 

the art that there is a high probability that it 

will operate as intended. Whether, how 

much, and what type of analysis or testing is 

required to establish workability depends on 

the nature of the item or process, and the 

state of the art. To be considered developed, 

the item or process need not be at the stage 

where it could be offered for sale or sold on 

the commercial market, nor must the item or 

process actually be reduced to practice 

within the meaning of title 35 of the United 

States Code. 

(ii) A computer program has been 

successfully operated in a computer and 

tested to the extent sufficient to demonstrate 

to reasonable persons skilled in the art that 

the program can reasonably be expected to 

perform its intended purpose; 

(iii) Computer software, other than 

computer programs, has been tested or 

analyzed to the extent sufficient to 

demonstrate to reasonable persons skilled in 

the art that the computer software can 

reasonably be expected to perform its 

intended purpose; or 

(iv) Computer software user’s 

documentation required to be delivered or 

otherwise provided under a contract has been 

written, in any medium, in sufficient detail 

to comply with requirements under that 

contract. 

(9) Developed exclusively at private 

expense means development was 

accomplished entirely with costs not paid or 

reimbursed by the Government, or costs paid 

or reimbursed by the Government through 

indirect cost pools, or any combination 

thereof. 

(i) Private expense determinations should 

be made at the lowest practicable level. 

(ii) Under fixed-price contracts, when total 

costs are greater than the firm price or ceiling 

price of the contract, the additional 

development costs necessary to complete 

development shall not be considered when 

determining whether development was at 

Government, private, or mixed expense. 

(10) Developed exclusively with 

Government funds means development was 

not accomplished exclusively or partially at 

private expense. 

(11) Developed with mixed funding means 

development was accomplished partially 

with costs not paid or reimbursed by the 

Government or costs paid or reimbursed by 

the Government through indirect cost pools, 

and partially with costs paid or reimbursed 

directly by the Government. 

(12) Form, fit, and function data means 

technical data that describes the required 

overall physical, functional, and performance 

characteristics (along with the qualification 

requirements, if applicable) of an item or 

process to the extent necessary to permit 

identification of physically and functionally 

interchangeable items. 

(13) Government purpose means any 

activity in which the United States 

Government is a party. 

(i) The term includes competitive 

procurement and any agreements or contracts 

with, or sales or transfers to, international or 

multi-national defense organizations or 

foreign governments. 

(ii) The term does not include the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

for commercial purposes or to authorize 

others to do so. 

(14) Government purpose rights means the 

rights to— 

(i) Access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software within the Government 

without restriction; and 

(ii) Release or disclose technical data or 

computer software outside the Government 

and authorize persons to whom release or 

disclosure has been made to access, use, 

modify, reproduce, release, perform, display, 

or disclose that data for Government 

purposes. However, the Government shall 

not release or disclose the technical data or 

computer software outside the Government 

unless— 

(A) Prior to release or disclosure (or in 

emergency situations, as soon as practicable), 

the intended recipient has executed the nondisclosure agreement at 227.7107–2 with its 

required attachments; or 

(B) The recipient is a Government 

contractor receiving access to the technical 

data or computer software for performance of 

a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachments required by that clause. 

(15) Limited rights means the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data, 

in whole or in part, within the Government. 

The Government may not, without the 

written permission of the party asserting 

limited rights, release or disclose the 

technical data outside the Government, use 

the technical data for manufacture, or 

authorize the technical data to be accessed or 

used by another party, unless— 

(i) The reproduction, release, disclosure, 

access, or use is— 

(A) Necessary for emergency repair and 

overhaul; 

(B) A release or disclosure of technical data 

(other than detailed manufacturing or process 

data) to, or access or use of such data by, a 

foreign government that is in the interest of 

the Government and is required for 

evaluational or informational purposes; or 

(C) A release or disclosure of computer 

software design documentation to, or access 

by, a contractor or subcontractor performing 

a service contract (see 37.101 of the Federal 

Acquisition Regulation) in support of this or 

a related contract to use such computer 

software documentation to diagnose and 

correct deficiencies in a computer program, 

to modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes; 

(ii) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient— 

(A) Has executed the use and nondisclosure agreements at 227.7107–2, with its 

required attachment(s); or 

(B) Is a Government contractor receiving 

access to the technical data for performance 

of a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachment(s) required by that clause; 

(iii) The recipient for emergency repair or 

overhaul is required to destroy the technical 

data and all copies in its possession promptly 

following completion of the emergency repair 

or overhaul, and to notify the Contractor that 


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the data or computer software have been 

destroyed; and 

(iv) The Contractor or subcontractor 

asserting the restriction is notified of such 

reproduction, release, disclosure, access, or 

use. 

(16) Noncommercial computer software 

means computer software that does not 

qualify as commercial computer software. 

(17) Noncommercial technical data means 

technical data that does not qualify as 

commercial technical data. 

(18) Restricted rights apply only to 

noncommercial computer software and mean 

the Government’s rights to— 

(i) Install and use computer software on 

one computer at a time. The computer 

software may not be time shared or accessed 

by more than one terminal or central 

processing unit unless otherwise permitted 

by this contract; 

(ii) Transfer computer software within the 

Government without further permission of 

the Contractor so long as the transferred 

computer software remain subject to the 

provisions of this clause; 

(iii) Make the minimum number of copies 

of the computer software required for 

safekeeping (archive), backup, or 

modification purposes; 

(iv) Modify computer software provided 

that the Government may— 

(A) Use the modified computer software 

only as provided in paragraphs (a)(18)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the modified 

computer software except as provided in 

paragraphs (a)(18)(ii), (v) and (vi) of this 

clause; 

(v) Permit contractors or subcontractors 

performing service contracts (see 37.101 of 

the Federal Acquisition Regulation) in 

support of this or a related contract to use 

computer software to diagnose and correct 

deficiencies in a computer program, to 

modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes, 

provided that— 

(A) The Government notifies the party 

which has granted restricted rights that a 

release or disclosure to particular contractors 

or subcontractors was made; 

(B) Such contractors or subcontractors— 

(1) Have executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Are Government contractors receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025 

and the attachment(s) required by that clause; 

(C) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(D) Such use is subject to the limitation in 

paragraph (a)(18)(i) of this clause; and 

(vi) Permit contractors or subcontractors 

performing emergency repairs or overhaul of 

items or components of items procured under 

this or a related contract to use the computer 

software when necessary to perform the 

repairs or overhaul, or to modify the 

computer software to reflect the repairs or 

overhaul made, provided that— 

(A) The intended recipient— 

(1) Has executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Is a Government contractor receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025, 

and the attachments required by that clause; 

(B) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(C) The Government shall require a 

recipient of restricted rights computer 

software for emergency repair or overhaul to 

destroy any copies of the computer software 

in its possession promptly following 

completion of the emergency repair/overhaul 

and to notify the Contractor that the 

computer software has been destroyed. 

(19) SBIR data means all— 

(i) Technical data— 

(A) Pertaining to items or processes 

developed under a Small Business 

Innovation Research (SBIR) award; or 

(B) Created under a SBIR award that does 

not require the development of items or 

processes; and 

(ii) Computer software developed under a 

SBIR award. 

(20) SBIR data rights mean the 

Government’s rights during the SBIR data 

protection period (specified at 252.227– 

7014(b)(5)(ii)) to access, use, modify, 

reproduce, release, perform, display, or 

disclose SBIR data as follows: 

(i) Limited rights in SBIR data that is 

technical data; and 

(ii) Restricted rights in SBIR data that is 

computer software. 

(21) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(22) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose technical data or 

computer software in whole or in part, in any 

manner and for any purpose whatsoever, and 

to have or authorize others to do so. 

(b) Government Rights. The Contractor 

grants or shall obtain for the Government the 

following paid-up, world-wide, 

nonexclusive, irrevocable license rights in 

technical data and computer software: 

(1) Unlimited rights. The Government shall 

have unlimited rights in— 

(i) Technical data (that does not pertain to 

an item or process) or computer software 

developed exclusively with Government 

funds; 

(ii) Technical data pertaining to an item or 

process that has been or will be developed 

exclusively with Government funds; 

(iii) Studies, analyses, test data, or similar 

data produced for this contract, when the 

study, analysis, test, or similar work was 

specified as an element of performance; 

(iv) Form, fit, and function data; 

(v) Technical data necessary for 

installation, operation, maintenance, or 

training purposes (other than detailed 

manufacturing or process data); 

(vi) Corrections or changes to technical 

data or computer software furnished to the 

Contractor by the Government; 

(vii) Technical data or computer software 

otherwise publicly available or that has been 

released or disclosed by the Contractor or 

subcontractor without restrictions; 

(viii) Technical data or computer software 

in which the Government has obtained 

unlimited rights under another Government 

contract or as a result of negotiations; 

(ix) Technical data or computer software 

furnished to the Government, under this or 

any other Government contract or 

subcontract with restrictive conditions and 

the restrictive conditions have expired (e.g., 

Government purpose rights, SBIR data rights, 

or negotiated license rights); 

(x) Computer software user’s 

documentation required to be delivered or 

otherwise provided under this contract; and 

(xi) Technical data or computer software 

delivered or otherwise provided to the 

Government without any restrictive markings 

(see paragraph (g) of this clause). 

(2) Government purpose rights. 

(i) The Government shall have Government 

purpose rights for a five-year period, or such 

other period as may be negotiated in— 

(A) Technical data (that does not pertain to 

an item or process) or computer software 

developed with mixed funding; and 

(B) Technical data pertaining to items or 

processes developed with mixed funding; 

(ii) The five-year period, or such other 

period as may have been negotiated under 

paragraph (b)(5) of this clause, shall 

commence upon execution of the contract, 

subcontract, letter contract (or similar 

contractual instrument), contract 

modification, or option exercise that required 

development of the computer software, 

development of the items or processes, or 

creation of the technical data. Upon 

expiration of the five-year or other negotiated 

period, the Government shall have unlimited 

rights in the technical data or computer 

software. 

(3) Limited rights. Except as provided in 

paragraphs (b)(1)(iii) through (b)(1)((xi) of 

this clause, the Government shall have 

limited rights in technical data— 

(i) Pertaining to items or processes 

developed exclusively at private expense and 

marked with the limited rights legend 

prescribed in paragraph (f) of this clause; 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 or 

processes. 

(4) Restricted rights. The Government shall 

have restricted rights in noncommercial 


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computer software that was developed 

exclusively at private expense and is 

required to be delivered or otherwise 

provided to the Government under this 

contract. 

(5) Negotiated license rights. (i) The 

standard license rights granted to the 

Government under paragraphs (b)(1) through 

(b)(4) of this clause (including the period 

during which the Government shall have 

Government purpose rights) may be modified 

only by mutual written agreement. 

(ii) If either party desires to negotiate 

specialized license rights in technical data or 

computer software, the other party agrees to 

enter into negotiations. 

(iii) However, in no event may the 

negotiated license provide the Government 

lesser rights than limited rights in technical 

data, or restricted rights in computer 

software. 

(iv) Any license rights negotiated under 

this paragraph shall be identified in a license 

agreement attached to this contract. 

(6) Prior Government rights. Technical data 

and computer software that will be delivered 

or otherwise provided to the Government 

under this contract, in which the 

Government has previously obtained rights, 

shall be delivered or otherwise provided with 

the pre-existing rights, unless— 

(i) The parties have agreed otherwise; or 

(ii) Any restrictions on the Government’s 

rights to access, use, modify, reproduce, 

release, perform, display, or disclose the 

technical data or computer software have 

expired. 

(7) Rights in derivative technical data and 

computer software. The Government shall 

retain its rights in the unchanged portions of 

any technical data and computer software 

delivered or otherwise provided under this 

contract that the Contractor uses to prepare, 

or includes in, derivative technical data or 

computer software. 

(c) Contractor rights in technical data or 

computer software. The Contractor (or other 

third party owner or licensor) retains all 

intellectual property rights for technical data 

and computer software (including 

ownership) developed under this contract 

except those granted to the Government as 

specified under paragraph (b) of this clause. 

(d) Third party technical data or computer 

software. (1) The Contractor shall not 

incorporate any third party owned or 

licensed technical data or computer software 

in the technical data or computer software to 

be delivered or otherwise provided under 

this contract unless— 

(i) The Contractor has obtained for the 

Government the license rights necessary to 

perfect a license in the deliverable technical 

data or computer software of the appropriate 

scope set forth in paragraph (b) of this clause; 

or 

(ii) The Contracting Officer has granted 

specific written approval to do so. 

(2) The Contractor shall ensure that any 

such license rights obtained from third 

parties and granted to the Government are 

identified and asserted pursuant to paragraph 

(f) of this clause, and such technical data and 

computer software are appropriately marked 

pursuant to paragraph (g) of this clause. 

(e) Release from liability. In the event that 

an authorized recipient of technical data or 

computer software delivered or otherwise 

provided to the Government under this 

contract engages in any unauthorized 

activities with such technical data or 

computer software, the Contractor agrees to— 

(1) Release the Government from liability 

for any licensed use of technical data or 

computer software made in accordance with 

the Government’s license rights granted 

pursuant to paragraph (b) of this clause; and 

(2) Seek relief solely from the party who 

has improperly accessed, used, modified, 

reproduced, released, performed, displayed, 

or disclosed Contractor technical data or 

computer software marked with restrictive 

legends. 

(f) Identification and delivery of technical 

data and computer software to be furnished 

with restrictions. The Contractor shall not 

deliver any technical data or computer 

software with restrictive markings unless the 

technical data or computer software are listed 

on an Attachment to this contract in 

accordance with— 

(1) The provision at DFARS 252.227–7017, 

Pre-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software; and 

(2) The clause at DFARS 252.227–7018, 

Post-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software. 

(g) Marking requirements. The Contractor, 

and its subcontractors or suppliers, shall 

assert restrictions on the Government’s rights 

to access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software delivered or otherwise 

provided under this contract only by marking 

the deliverable that is subject to restriction. 

(1) General marking instructions. The 

Contractor, or its subcontractors or suppliers, 

shall conspicuously and legibly mark all 

technical data or computer software with the 

appropriate legends. 

(i) The authorized legends shall be placed 

on the transmittal document or storage 

media, and on each page of the printed 

material containing technical data or 

computer software for which restrictions are 

asserted. If only portions of a page are subject 

to the asserted restrictions, the Contractor 

shall identify the restricted portions (e.g., by 

circling or underscoring with a note or other 

appropriate identifier). 

(ii) Technical data or computer software 

transmitted directly from one computer or 

computer terminal to another shall contain a 

notice of asserted restrictions. 

(iii) The Contractor shall not use 

instructions that interfere with or delay the 

operation of the computer program in order 

to display an authorized legend in computer 

software that will or might be used in combat 

or situations that simulate combat 

conditions, unless the Contracting Officer’s 

written permission to deliver such computer 

software has been obtained prior to delivery. 

(iv) Reproductions of technical data or 

computer software, or any portions thereof, 

subject to asserted restrictions shall also 

include the asserted restrictions. 

(2) Unlimited rights markings. Technical 

data or computer software that is delivered 

or otherwise provided to the Government 

with unlimited rights, and that is marked 

with a copyright legend prescribed under 17 

U.S.C. 401 or 402, shall also be marked as 

follows: 

The U.S. Government has Unlimited Rights 

in this technical data or computer software 

pursuant to the clause at DFARS 252.227– 

7013. Any reproduction of technical data or 

computer software, or portions thereof, 

marked with this legend must also reproduce 

these markings. 

(End of legend) 

(3) Government purpose rights markings. 

Technical data or computer software 

delivered or otherwise provided to the 

Government with Government purpose rights 

shall be marked as follows: 

GOVERNMENT PURPOSE RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

Expiration Date lllllllllllll

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose these technical data or computer 

software are restricted by paragraph (b)(2) of 

the Rights in Technical Data and Computer 

Software—Noncommercial clause contained 

in the above identified contract. No 

restrictions apply after the expiration date 

shown above. Any reproduction of technical 

data or computer software or portions thereof 

marked with this legend must also reproduce 

the markings. 

(End of legend) 

(4) Limited rights markings. Technical data 

delivered or otherwise provided to the 

Government with limited rights shall be 

marked with the following legend: 

LIMITED RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose these technical data or computer 

software are restricted by paragraph (b)(3) of 

the Rights in Technical Data and Computer 

Software—Noncommercial clause contained 

in the above identified contract. Any 

reproduction of technical data or computer 

software or portions thereof marked with this 

legend must also reproduce the markings. 

Any person, other than the Government, who 

has been provided access to such technical 

data or computer software shall promptly 

notify the above named Contractor. 

(End of legend) 

(5) Restricted rights markings. Computer 

software delivered or otherwise provided to 

the Government with restricted rights shall 

be marked with the following legend: 

RESTRICTED RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 


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or disclose this computer software are 

restricted by paragraph (b)(4) of the Rights in 

Technical Data and Computer Software— 

Noncommercial clause contained in the 

above identified contract. Any reproduction 

of computer software or portions thereof 

marked with this legend must also reproduce 

the markings. Any person, other than the 

Government, who has been provided access 

to such computer software shall promptly 

notify the above named Contractor. 

(End of legend) 

(6) Negotiated license rights markings. 

(i) Except as noted in paragraph (g)(6)(ii) of 

this clause, technical data and computer 

software in which the Government’s rights 

stem from a negotiated license shall be 

marked with the following legend: 

NEGOTIATED LICENSE RIGHTS 

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose these technical data or computer 

software are restricted by Contract No. (Insert 

contract number), License No. (Insert license 

identifier). Any reproduction of technical 

data or computer software or portions thereof 

marked with this legend must also reproduce 

the markings. 

(End of legend) 

(ii) For purposes of marking, negotiated 

licenses do not include Government purpose 

rights for which a different restrictive period 

has been negotiated (see paragraph (g)(3) of 

this clause), or Government purpose license 

rights acquired under a prior contract (see 

paragraph (g)(7) of this clause). 

(7) Pre-existing technical data or computer 

software markings. If the terms of a prior 

contract or license permitted the Contractor 

to restrict the Government’s rights in 

technical data or computer software, the 

Contractor may mark such technical data or 

computer software with the appropriate 

restrictive legend in accordance with the 

marking procedures in paragraph (g)(1) of 

this clause. 

(8) Authorized markings. Except as 

provided in paragraph (g)(7) of this clause, 

only the following legends are authorized 

under this contract: 

(i) The unlimited rights legend at 

paragraph (g)(2) of this clause. 

(ii) The Government purpose rights legend 

at paragraph (g)(3) of this clause. 

(iii) The limited rights legend at paragraph 

(g)(4) of this clause. 

(iv) The restricted rights legend at 

paragraph (g)(5) of this clause. 

(v) The negotiated license rights legend at 

paragraph (g)(6) of this clause. 

(vi) The notice of copyright as prescribed 

under 17 U.S.C. 401 or 402. 

(h) Contractor procedures and records. 

Throughout performance of this contract, the 

Contractor and its subcontractors or suppliers 

that will deliver technical data or computer 

software with other than unlimited rights, 

shall— 

(1) Assure that restrictive markings are 

used only when authorized by the terms of 

this clause; and 

(2) Maintain records sufficient to justify the 

validity of any restrictive markings on 

technical data or computer software 

delivered under this contract. 

(i) Removal of unjustified and 

nonconforming markings. 

(1) Unjustified technical data or computer 

software markings. The rights and obligations 

of the parties regarding the validation of 

restrictive markings on technical data or 

computer software provided or to be 

provided under this contract are contained in 

the clause at 252.227–7037. Notwithstanding 

any provision of this contract concerning 

inspection and acceptance, the Government 

may ignore or, at the Contractor’s expense, 

correct or strike a marking if a restrictive 

marking is determined to be unjustified. 

(2) Nonconforming technical data or 

computer software markings. A 

nonconforming marking is a marking placed 

on technical data or computer software 

delivered or otherwise provided to the 

Government under this contract that is not in 

the format authorized by this contract. 

Correction of nonconforming markings is not 

subject to the clause at 252.227–7037. If the 

Contracting Officer notifies the Contractor of 

a nonconforming marking and the Contractor 

fails to remove or correct such marking 

within sixty (60) days, the Government may 

ignore or, at the Contractor’s expense, remove 

or correct any nonconforming marking. 

(j) Relation to patents. Nothing contained 

in this clause shall imply a license to the 

Government under any patent or be 

construed as affecting the scope of any 

license or other right otherwise granted to the 

Government under any patent. 

(k) 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, 10 

U.S.C. 2321, and the identification, assertion, 

and delivery processes of paragraph (e) of 

this clause. 

(2)(i) Whenever any technical data or 

computer software will be obtained from a 

subcontractor or supplier for delivery to the 

Government under this contract, the 

Contractor shall use this same clause (or 

other appropriate clause(s) prescribed at 

DFARS 227.7104–8), in the subcontract or 

other contractual instrument, and require its 

subcontractors or suppliers to do so, without 

alteration, except to identify the parties as 

follows: 

(A) References to the Government are not 

changed. 

(B) The subcontractor or supplier has all 

rights and obligations of the Contractor in the 

clause. 

(ii) 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 or computer 

software except by mutual agreement of the 

parties whose rights are affected. 

(iii) If the clause used with a subcontractor 

or supplier is not a clause that is used in the 

prime contract (or higher-tier subcontract), 

the Contractor shall notify the Government of 

the use of the clause and, if appropriate 

pursuant to DFARS 227.7104–8(d), the 

Contracting Officer will modify the prime 

contract to include the new clause. 

(3) Technical data or computer software 

required to be delivered by a subcontractor 

or supplier shall normally be delivered to the 

next higher-tier contractor, subcontractor, or 

supplier. However, when there is a 

requirement in the prime contract for 

technical data or computer software to be 

submitted with other than unlimited rights, 

then a subcontractor or supplier may fulfill 

its requirement by submitting the technical 

data or computer software directly to the 

Government. 

(4) The Contractor and higher-tier 

subcontractors or suppliers shall not use 

their power to award contracts as economic 

leverage to obtain rights in technical data or 

computer software from their subcontractors 

or suppliers. 

(5) In no event shall the Contractor use its 

obligation to recognize and protect 

subcontractor or supplier rights in technical 

data or computer software as an excuse for 

failing to satisfy its contractual obligation to 

the Government. 

(End of clause) 

ALTERNATE I (DATE) 

As prescribed in 227.7104–8(a)(3), add the 

following paragraph (l) to the basic clause: 

(l) Publication for sale. 

(1) This paragraph only applies to 

technical data or computer software in which 

the Government has obtained unlimited 

rights or a license to make an unrestricted 

release of technical data or computer 

software. 

(2) The Government shall not publish, or 

authorize others to publish on its behalf, 

deliverable technical data or computer 

software if the Contractor publishes the 

technical data or computer software for sale 

prior to the Government’s intended 

publication. Before the Contractor publishes 

any technical data or computer software, the 

Contractor shall promptly notify the 

Contracting Officer of such publication(s). 

The Government’s publication restrictions 

shall not apply after twenty-four (24) months 

following the delivery date specified in this 

contract, or the removal of any national 

security or export control restrictions, 

whichever is later. 

(3) This limitation on the Government’s 

right to publish for sale shall continue as 

long as the data are reasonably available to 

the public for purchase. 

ALTERNATE II (DATE) 

As prescribed in 227.7104–8(a)(4), add the 

following paragraphs (a)(23) and (b)(8) to the 

basic clause: 

(a)(23) Vessel design means the design of 

a vessel, boat, or craft, and its components, 

including the hull, decks, superstructure, and 

the exterior surface shape of all external 

shipboard equipment and systems. The term 

includes designs covered by 10 U.S.C. 7317, 

and designs protectable under 17 U.S.C. 

1301, et seq. 

(b)(8) Vessel designs. For a vessel design 

(including a vessel design embodied in a 

useful article) that is developed or delivered 

under this contract, the Government shall 

have the right to make and have made any 

useful article that embodies the vessel 

design, to import the article, to sell the 


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article, and to distribute the article for sale 

or to use the article in trade, to the same 

extent that the Government is granted rights 

in the technical data pertaining to the vessel 

design. 

22. Section 252.227–7014 is revised to 

read as follows: 

252.227–7014 Rights in technical data and 

computer software—small business 

innovation research (SBIR) program. 

As prescribed in 227.7104–8(b), use 

the following clause: 

RIGHTS IN TECHNICAL DATA AND 

COMPUTER SOFTWARE—SMALL 

BUSINESS INNOVATION RESEARCH 

(SBIR) PROGRAM (DATE) 

(a) Definitions. As used in this clause— 

(1) Commercial computer software means 

computer software that is a commercial item. 

(2) Commercial technical data means 

technical data that is or pertains to a 

commercial item. 

(3) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of being 

stored in, or processed by a computer. The 

term does not include computer software. 

(4) Computer program means a set of 

instructions, rules, routines, or statements, 

regardless of the form or method of 

recording, that is capable of causing a 

computer to perform a specific operation or 

series of operations. Examples include 

firmware, object code, and any form of 

executable code. 

(5) Computer software means computer 

programs; and source code, source code 

listings, object code listings, and similar 

human-readable, recorded information, that 

can be compiled to generate a computer 

program. The term does not include 

computer databases or computer software 

documentation. 

(6) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation such as user’s or owner’s 

manuals, users, manuals, installation 

instructions, operating instructions, and 

other similar information that explains the 

capabilities of the computer software or 

provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(7) Detailed manufacturing or process data 

means technical data that describe the steps, 

sequences, and conditions of manufacturing, 

processing, or assembly used by the 

manufacturer to produce an item or to 

perform a process. 

(8) Developed means that— 

(i) An item or process exists and is 

workable. Workability is generally 

established when the item or process has 

been analyzed or tested sufficiently to 

demonstrate to reasonable people skilled in 

the applicable art that there is a high 

probability that it will operate as intended. 

Whether, how much, and what type of 

analysis or testing is required to establish 

workability depends on the nature of the 

item or process, and the state of the art. To 

be considered developed, the item or process 

need not be at the stage where it could be 

offered for sale or sold on the commercial 

market, or must the item or process actually 

be reduced to practice within the meaning of 

title 35 of the United States Code; 

(ii) A computer program has been 

successfully operated in a computer and 

tested to the extent sufficient to demonstrate 

to reasonable persons skilled in the art that 

the program can reasonably be expected to 

perform its intended purpose; 

(iii) Computer software, other than 

computer programs, has been tested or 

analyzed to the extent sufficient to 

demonstrate to reasonable persons skilled in 

the art that the computer software can 

reasonably be expected to perform its 

intended purpose; or 

(iv) Computer software user’s 

documentation required to be delivered 

under a contract has been written, in any 

medium, in sufficient detail to comply with 

requirements under that contract. 

(9) Developed exclusively at private 

expense means development was 

accomplished entirely with costs not paid or 

reimbursed by the Government, or costs paid 

or reimbursed by the Government through 

indirect cost pools, or any combination 

thereof. 

(i) Private expense determinations should 

be made at the lowest practicable level. 

(ii) Under fixed-price contracts, when total 

costs are greater than the firm-fixed-price or 

ceiling price of the contract, the additional 

development costs necessary to complete 

development shall not be considered when 

determining whether development was at 

Government, private, or mixed expense. 

(10) Form, fit, and function data means 

technical data that describe the required 

overall physical, functional, and performance 

characteristics (along with the qualification 

requirements, if applicable) of an item or 

process to the extent necessary to permit 

identification of physically and functionally 

interchangeable items. 

(11) Government purpose means any 

activity in which the United States 

Government is a party. 

(i) The term includes the competitive 

procurement and any agreements or contracts 

with, or sales or transfers to, international or 

multi-national defense organizations or 

foreign governments. 

(ii) The term does not include the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software for commercial 

purposes or authorize others to do so. 

(12) Government purpose rights means the 

rights to— 

(i) Access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software within the Government 

without restriction; and 

(ii) Release or disclose technical data or 

computer software outside the Government 

and authorize persons to whom release or 

disclosure has been made to access, use, 

modify, reproduce, release, perform, display, 

or disclose that data for Government 

purposes. However, the Government shall 

not release or disclose the technical data or 

computer software outside the Government 

unless— 

(A) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient has 

executed the non-disclosure agreement at 

227.7107–2 with its required attachments; or 

(B) The recipient is a Government 

contractor receiving access to the technical 

data or computer software for performance of 

a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachments required by that clause. 

(13) Limited rights means the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose noncommercial 

technical data, in whole or in part, within the 

Government. The Government may not, 

without the written permission of the party 

asserting limited rights, release or disclose 

the technical data outside the Government, 

use the technical data for manufacture, or 

authorize the technical data to be accessed or 

used by another party, unless— 

(i) The reproduction, release, disclosure, 

access, or use is— 

(A) Necessary for emergency repair and 

overhaul; 

(B) A release or disclosure of technical data 

(other than detailed manufacturing or process 

data) to, or use of such data by, a foreign 

government that is in the interest of the 

Government and is required for evaluational 

or informational purposes; or 

(C) A release or disclosure of computer 

software documentation to a contractor or 

subcontractor performing a service contract 

(see 37.101 of the Federal Acquisition 

Regulation) in support of this or a related 

contract to use such computer software 

documentation to diagnose and correct 

deficiencies in a computer program, to 

modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes; 

(ii) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient— 

(A) Has executed the use and nondisclosure agreements at 227.7101–2, with its 

required attachment(s); or 

(B) Is a Government contractor receiving 

access to the technical data for performance 

of a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachment(s) required by that clause; 

(iii) The recipient of limited rights data for 

emergency repair or overhaul is required to 

destroy the technical data and all copies in 

its possession promptly following 

completion of the emergency repair or 

overhaul and to notify the Contractor that the 

data have been destroyed; and 

(iv) The Contractor or subcontractor 

asserting the restriction is notified of such 


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reproduction, release, disclosure, access, or 

use. 

(14) Noncommercial computer software 

means computer software that does not 

qualify as commercial computer software. 

(15) Noncommercial technical data means 

technical data that does not qualify as 

commercial technical data. 

(16) Restricted rights apply only to 

noncommercial computer software and mean 

the Government’s rights to— 

(i) Install and use computer software on 

one computer at a time. The computer 

software may not be shared or accessed by 

more than one terminal or central processing 

unit or time shared unless otherwise 

permitted by this contract; 

(ii) Transfer computer software within the 

Government without further permission of 

the Contractor so as long as the transferred 

computer software remains subject to the 

provisions of this clause; 

(iii) Make the minimum number of copies 

of the computer software required for 

safekeeping (archive), backup, or 

modification purposes; 

(iv) Modify computer software provided 

that the Government may— 

(A) Use the modified computer software 

only as provided in paragraphs (a)(13)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the modified 

computer software except as provided in 

paragraphs (a)(13)(ii), (v) and (vi) of this 

clause; 

(v) Permit contractors or subcontractors 

performing service contracts (see 37.101 of 

the Federal Acquisition Regulation) in 

support of this or a related contract to use 

computer software to diagnose and correct 

deficiencies in a computer program, to 

modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations, provided that— 

(A) The Government notifies the party 

which has granted restricted rights that a 

release or disclosure to particular contractors 

or subcontractors was made; 

(B) Such contractors or subcontractors— 

(1) Have executed the use and nondisclosure agreement at 227.7107–2, with its 

required attachment(s); or 

(2) Are Government contractors receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025; 

(C) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(16)(iv) 

of this clause, for any other purpose; and 

(D) Such use is subject to the limitation in 

paragraph (a)(16)(i) of this clause. 

(vi) Permit contractors or subcontractors 

performing emergency repairs or overhaul of 

items or components of items procured under 

this or a related contract to use the computer 

software when necessary to perform the 

repairs or overhaul, or to modify the 

computer software to reflect the repairs or 

overhaul made, provided that— 

(A) The intended recipient— 

(1) Has executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachment(s); or 

(2) Is a Government contractor receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025 

and the required attachment(s); 

(B) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(16)(iv) 

of this clause, for any other purpose; and 

(C) The Government shall require a 

recipient of restricted rights computer 

software for emergency repair or overhaul is 

required to destroy any copies of the 

computer software in its possession promptly 

following completion of the emergency 

repair/overhaul and to notify the Contractor 

that the computer software has been 

destroyed. 

(17) SBIR data means all— 

(i) Technical data— 

(A) Pertaining to items or processes 

developed under a SBIR award; or 

(B) Created under a SBIR award that does 

not require the development of items or 

processes; and 

(ii) Computer software developed under a 

SBIR award. 

(18) SBIR data rights mean the 

Government’s rights during the SBIR data 

protection period (specified at paragraph 

(b)(5)(ii) of this clause) to access, use, modify, 

reproduce, release, perform, display, or 

disclose SBIR data as follows: 

(i) Limited rights in SBIR data that is 

technical data; and 

(ii) Restricted rights in SBIR data that is 

computer software. 

(19) Technical data means recorded 

information, (regardless of the form or 

method of the recording), of a scientific or 

technical nature (including computer 

databases and computer software 

documentation). This term does not include 

computer software or financial, 

administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(20) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose, technical data or 

computer software in whole or in part, in any 

manner and for any purpose whatsoever, and 

to have or authorize others to do so. 

(b) Government Rights. The Contractor 

grants or shall obtain for the Government the 

following paid-up, world-wide, 

nonexclusive, irrevocable license rights in 

technical data and noncommercial computer 

software. 

(1) Unlimited rights. The Government shall 

have unlimited rights in— 

(i) Form, fit, and function data; 

(ii) Technical data necessary for 

installation, operation, maintenance, or 

training purposes (other than detailed 

manufacturing or process data); 

(iii) Corrections or changes to technical 

data or computer software furnished to the 

Contractor by the Government; 

(iv) Technical data or computer software 

otherwise publicly available or have been 

released or disclosed by the Contractor or a 

subcontractor without restrictions; 

(v) Technical data or computer software in 

which the Government has obtained 

unlimited rights under another Government 

contract or a result of negotiations; 

(vi) SBIR data upon expiration of the SBIR 

data rights Technical data or computer 

software delivered or otherwise provided to 

the Government, under this or any other 

Government contract or subcontract in which 

the restrictive condition(s) has or have 

expired; 

(vii) Computer software user’s 

documentation required to be delivered or 

otherwise provided under this contract; and 

(viii) Technical data or computer software 

delivered or otherwise provided to the 

Government without any restrictive 

markings. 

(2) Limited rights. Except as provided in 

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

Government shall have limited rights in 

technical data— 

(i) Pertaining to items or processes 

developed exclusively at private expense and 

marked with the limited rights legend 

prescribed in paragraph (g)(4) of this clause; 

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 or 

processes. 

(3) Restricted rights in computer software. 

The Government shall have restricted rights 

in noncommercial computer software 

required to be delivered or otherwise 

provided to the Government under this 

contract that were developed exclusively at 

private expense and were not created or 

developed under this contract. 

(4) Rights in commercial technical data 

and computer software. The Government 

shall have the rights specified by the clause 

at 252.227–7015 in commercial technical 

data and commercial computer software 

required to be delivered or otherwise 

provided to the Government under this 

contract. 

(5) SBIR data rights. 

(i) Except as provided in paragraph (b)(1) 

of this clause, the Government shall have 

SBIR data rights in— 

(A) All SBIR data created or developed 

under this contract; and 

(B) All relevant SBIR data created or 

developed under other SBIR contracts where 

such SBIR data is specifically referenced and 

protected under the 252.227–7017 and –7018 

clauses of this contract. 

(ii) Protection Period. The Government’s 

SBIR data rights commence with contract 

award and end upon the date five years after 

acceptance of the last deliverable under this 

contract. However, any SBIR data that is 

appropriately referenced and protected in a 

subsequent SBIR award during the five year 

period of this contract shall remain protected 

through the protection period of that 

subsequent SBIR award. After the expiration 


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of the applicable protection period, the 

Government shall have unlimited rights 

pursuant to paragraph (b)(1)(vi) of this 

clause. 

(6) Negotiated license rights. 

(i) SBIR Data. The SBIR Data rights license 

granted to the Government under paragraph 

(b)(5) of this clause may, after award, be 

modified or transferred by mutual agreement 

only in writing under a separate agreement. 

(ii) Technical Data and Computer Software 

other than SBIR Data. 

(A) The standard license rights granted to 

the Government under paragraphs (b)(1) 

through (b)(3) and (b)(5) of this clause 

(including the period during which the 

Government shall have Government purpose 

rights) may be modified only by mutual 

written agreement. 

(B) If either party desires to negotiate 

specialized license rights in technical data or 

computer software, the other party agrees to 

enter into negotiations for transferring such 

rights. 

(iii) However, in no event may the 

negotiated license provide the Government 

lesser rights than limited rights in technical 

data, or restricted rights in computer 

software. 

(iv) Any license rights negotiated under 

this paragraph shall be identified in a license 

agreement attached to this contract. 

(7) Prior Government rights. Technical 

data, including computer software 

documentation, or computer software that 

will be delivered or otherwise provided to 

the Government under this contract, in 

which the Government has previously 

obtained rights shall be delivered or provided 

with the pre-existing rights, unless— 

(i) The parties have agreed otherwise; or 

(ii) Any restrictions on the Government’s 

rights to access, use, modify, release, 

perform, display, or disclose the technical 

data or computer software have expired or no 

longer apply. 

(8) Rights in derivative computer software 

or computer software documentation. The 

Government shall retain its rights in the 

unchanged portions of any technical data and 

computer software delivered or otherwise 

provided under this contract that the 

Contractor uses to prepare, or includes in, 

derivative technical data or computer 

software. 

(c) Contractor rights in technical data or 

computer software. The Contractor retains all 

intellectual property rights for technical data 

and computer software (including 

ownership) developed under this contract 

except those granted to the Government as 

specified under paragraph (b) of this clause. 

(d) Third party copyrighted technical data 

and computer software. (1) The Contractor 

shall not incorporate any third party 

copyrighted technical data or computer 

software in the technical data or computer 

software to be delivered or otherwise 

provided under this contract unless— 

(i) The Contractor has obtained, for the 

Government the license rights necessary to 

perfect a license or licenses in the deliverable 

technical data or computer software of the 

appropriate scope set forth in paragraph (b) 

of this clause; or 

(ii) The Contracting Officer has granted 

specific written approval to do so. 

(2) The Contractor shall ensure that any 

such license rights obtained from third 

parties and granted to the Government are 

identified and asserted pursuant to paragraph 

(f) of this clause, and such technical data and 

computer software are appropriately marked 

pursuant to paragraph (g) of this clause. 

(e) Release from liability. 

(1) The Contractor agrees that the 

Government, and other persons to whom the 

Government may have released or disclosed 

technical data or computer software 

delivered or otherwise provided under this 

contract, shall have no liability for any 

release or disclosure of technical data or 

computer software that are not marked to 

indicate that these technical data or 

computer software are licensed data subject 

to access, use, modification, reproduction, 

release, performance, display, or disclosure 

restrictions. 

(2) In the event that an authorized recipient 

of technical data or computer software 

delivered or otherwise provided to the 

Government under this contract engages in 

any unauthorized activities with such 

technical data or computer software, the 

Contractor agrees to— 

(i) Release the Government from liability 

for any release or disclosure of technical data 

or computer software made in accordance 

with the Government’s license rights granted 

pursuant to paragraph (b) of this clause; and 

(ii) Seek relief solely from the party who 

has improperly accessed, used, modified, 

reproduced, released, performed, displayed, 

or disclosed Contractor data marked with 

restrictive legends. 

(f) Identification and delivery of technical 

data or computer software to be provided 

with restrictions. The Contractor shall not 

deliver or otherwise provide any technical 

data or computer software with restrictive 

markings unless the technical data or 

computer software are listed in an 

Attachment to this contract in accordance 

with— 

(1) The provision at DFARS 252.227–7017, 

Pre-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software; and 

(2) The clause at DFARS 252.227–7018, 

Post-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software. 

(g) Marking requirements. The Contractor, 

and its subcontractors or suppliers, shall 

assert restrictions on the Government’s rights 

to access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software to be delivered or 

otherwise provided under this contract only 

by marking the deliverable that is subject to 

restriction. 

(1) General marking instructions. The 

Contractor, or its subcontractors or suppliers, 

shall conspicuously and legibly mark all 

technical data and computer software with 

the appropriate legends. 

(i) The authorized legends shall be placed 

on each page of the printed material or media 

containing the computer software or the 

transmittal document or storage container to 

which the restrictions apply. If only portions 

of a page are subject to the asserted 

restrictions, the Contractor shall identify the 

restricted portions (e.g., by circling or 

underscoring with a note or other appropriate 

identifier). 

(ii) Technical data or computer software 

transmitted directly from one computer or 

computer terminal to another shall contain a 

notice of asserted restrictions. 

(iii) The Contractor shall not use 

instructions that interfere with or delay the 

operation of the computer program in order 

to display an authorized legend in computer 

software that will or might be used in combat 

or situations that simulate combat 

conditions, unless the Contracting Officer’s 

written permission to deliver such computer 

software has been obtained prior to delivery. 

(iv) Reproductions of technical data or 

computer software, or any portions thereof, 

subject to asserted restrictions shall also 

include the asserted restrictions. 

(2) Unlimited rights markings. Technical 

data or computer software that is delivered 

or otherwise provided to the Government 

with unlimited rights, and that is marked 

with a copyright legend prescribed under 17 

U.S.C. 401 or 402, shall also be marked as 

follows: 

The U.S. Government has Unlimited Rights 

in this technical data or computer software 

pursuant to the clause at DFARS 252.227– 

7018. Any reproduction of technical data or 

computer software, or portions thereof, 

marked with this legend must also reproduce 

these markings. 

(End of legend) 

(3) SBIR data rights markings. Technical 

data or computer software that is delivered 

or otherwise provided to the Government 

with SBIR data rights shall be marked with 

the following legend: 

SBIR DATA RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose technical data or computer 

software marked with this legend are 

restricted during the protection period 

described at paragraph (b)(5) of the Rights in 

Technical Data and Computer Software— 

Small Business Innovation Research (SBIR) 

Program clause contained in the above 

identified contract. The Government has 

unlimited rights after the expiration of the 

protection period. Any reproduction of 

technical data, computer software or portions 

thereof marked with this legend must also 

reproduce the markings. 

(End of legend) 

(4) Limited rights markings. Technical data 

delivered or otherwise provided to the 

Government with limited rights shall be 

marked with the following legend: 

LIMITED RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

lllllllllllllllllllll

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose these technical data are restricted 

by paragraph (b)(2) of the Rights in Technical 


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Data and Computer Software—Small 

Business Innovative Research (SBIR) Program 

clause contained in the above identified 

contract. Any reproduction of technical data 

or portions thereof marked with this legend 

must also reproduce the markings. Any 

person, other than the Government, who has 

been provided access to such technical data 

shall promptly notify the above named 

Contractor. 

(End of legend) 

(5) Restricted rights markings. Computer 

software delivered or otherwise provided to 

the Government with restricted rights shall 

be marked with the following legend: 

RESTRICTED RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

(End of legend) 

(6) Negotiated license rights markings. 

(i) Except as provided in paragraph 

(g)(6)(ii) of this clause, technical data or 

computer software in which the 

Government’s rights stem from a negotiated 

license shall be marked with the following 

legend: 

NEGOTIATED LICENSE RIGHTS 

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose this technical data or computer 

software are restricted by Contract No. 

_____(Insert contract number)____, License 

No. ____(Insert license identifier)____. Any 

reproduction of technical data, computer 

software, or portions thereof marked with 

this legend must also reproduce the 

markings. 

(End of legend) 

(ii) For purposes of marking, negotiated 

licenses do not include Government purpose 

license rights acquired under a prior contract 

(see paragraph (b)(7) of this clause). 

(7) Pre-existing data markings. If the terms 

of a prior contract or license permitted the 

Contractor to restrict the Government’s rights 

in technical data or computer software, the 

Contractor may mark such technical data or 

computer software with the appropriate 

restrictive legend in accordance with the 

marking procedures in paragraph (g)(1) of 

this clause. 

(8) Except as provided in paragraph (g)(7) 

of this clause, only the following legends are 

authorized under this contract: 

(i) The SBIR data rights legend at 

paragraph (g)(3) of this clause. 

(ii) The limited rights legend at paragraph 

(g)(4) of this clause. 

(iii) The restricted rights legend at 

paragraph (g)(5) of this clause, or the 

negotiated license rights legend at paragraph 

(g)(6) of this clause. 

(iv) A notice of copyright as prescribed 

under 17 U.S.C. 401 or 402. 

(h) Contractor procedures and records. 

Throughout performance of this contract, the 

Contractor, and its subcontractors or 

suppliers that will deliver technical data or 

computer software with other than unlimited 

rights, shall— 

(1) Assure that restrictive markings are 

used only when authorized by the terms of 

this clause; and 

(2) Maintain records sufficient to justify the 

validity of any restrictive markings on 

technical data or computer software 

delivered under this contract. 

(i) Removal of unjustified and 

nonconforming markings. 

(1) Unjustified technical data or computer 

software markings. The rights and obligations 

of the parties regarding the validation of 

restrictive markings on technical data or 

computer software provided or to be 

provided under this contract are contained in 

the clause at 252.227–7037. Notwithstanding 

any provision of this contract concerning 

inspection and acceptance, the Government 

may ignore or, at the Contractor’s expense, 

correct or strike a marking if a restrictive 

marking is determined to be unjustified. 

(2) Nonconforming technical data or 

computer software markings. A 

nonconforming marking is a marking placed 

on technical data or computer software 

delivered or otherwise provided to the 

Government under this contract that is not in 

the format authorized by this contract. 

Correction of nonconforming markings is not 

subject to the clause at 252.227–7037. If the 

Contracting Officer notifies the Contractor of 

a nonconforming marking and the Contractor 

fails to remove or correct such markings 

within sixty (60) days, the Government may 

ignore or, at the Contractor’s expense, remove 

or correct any nonconforming markings. 

(j) Relation to patents. Nothing contained 

in this clause shall imply a license to the 

Government under any patent or be 

construed as affecting the scope of any 

license or other right otherwise granted to the 

Government under any patent. 

(k) Applicability to subcontractors or 

suppliers. 

(1) The Contractor shall assure that the 

rights afforded its subcontractors and 

suppliers under 10 U.S.C. 2320, 10 U.S.C. 

2321, 15 U.S.C. 638, and the identification, 

assertion, and delivery processes required by 

paragraph (f) of this clause are recognized 

and protected. 

(2) Whenever any technical data or 

computer software is to be obtained from a 

subcontractor or supplier for delivery to the 

Government under this contract, the 

Contractor shall— 

(i) Use— 

(A) This same clause in the subcontract or 

other contractual instrument with a small 

business concern for SBIR data; or 

(B) The appropriate clause prescribed at 

DFARS 227.7104–8 with other than a small 

business concern, or for commercial or other 

non SBIR data; and 

(ii) Require its subcontractors or suppliers 

to do so at all tiers, without alteration, except 

to identify the parties as follows: 

(A) References to the Government are not 

changed. 

(B) The subcontractor or supplier has all 

rights and obligations of the contractor in the 

clause; and 

(iii) If the clause used with a subcontractor 

or supplier is not a clause that is used in the 

prime contract (or higher-tier subcontract), 

the Contractor shall notify the Government of 

the use of the clause and, if appropriate 

pursuant to DFARS 227.7104–8(d), the 

Contracting Officer will modify the prime 

contract to include the new clause. 

(3) 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 or computer 

software. 

(4) Technical data required to be delivered 

by a subcontractor or supplier shall normally 

be delivered to the next higher-tier 

Contractor, subcontractor, or supplier. 

However, when there is a requirement in the 

prime contract for technical data which may 

be submitted with other than unlimited 

rights by a subcontractor or supplier, then 

said subcontractor or supplier may fulfill its 

requirement by submitting such technical 

data directly to the Government, rather than 

through a higher-tier contractor, 

subcontractor, or supplier. 

(5) The Contractor and higher-tier 

subcontractors or suppliers shall not use 

their power to award contracts as economic 

leverage to obtain rights in technical data or 

computer software from their subcontractors 

or suppliers. 

(6) In no event shall the Contractor use its 

obligation to recognize and protect 

subcontractor or supplier rights in technical 

data or computer software as an excuse for 

failing to satisfy its contractual obligation to 

the Government. 

(End of clause) 

ALTERNATE I (DATE) 

As prescribed in 227.7104–8(b)(2), add the 

following paragraph (l) to the basic clause: 

(l) Publication for sale. 

(1) This paragraph applies only to 

technical data or computer software 

delivered to the Government with SBIR data 

rights. 

(2) Upon expiration of the SBIR data rights, 

the Government will not exercise its right to 

publish or authorize others to publish an 

item of technical data or computer software 

identified in this contract as being subject to 

paragraph (l) of this clause if the Contractor, 

prior to the expiration of the SBIR data rights, 

or within two years following delivery of the 

technical data or computer software, or 

within two years following the removal of 

any national security or export control 

restrictions, whichever is later, publishes 

such technical data or computer software and 

promptly notifies the Contracting Officer in 

writing of such publication(s). Any such 

publication(s) shall include a notice 

identifying the number of this contract and 

the Government’s rights in the published 

data. 

(3) This limitation on the Government’s 

right to publish for sale shall continue as 

long as the technical data or computer 

software are reasonably available to the 

public for purchase. 

23. Section 252.227–7015 is revised to 

read as follows: 

252.227–7015 Rights in technical data and 

computer software—commercial. 

As prescribed in 227.7104–8(c), use 

the following clause: 


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59454 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

RIGHTS IN TECHNICAL DATA AND 

COMPUTER SOFTWARE— 

COMMERCIAL (DATE) 

(a) Definitions. As used in this clause— 

(1) Commercial computer software means 

computer software that is a commercial item. 

(2) Commercial technical data means 

technical data that is or pertains to a 

commercial item. 

(3) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 

(4) Computer program means a set of 

instructions, rules, routines, or statements, 

regardless of the form or method of 

recording, that is capable of causing a 

computer to perform a specific operation or 

series of operations. Examples include 

firmware, object code, and any form of 

executable code. 

(5) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be compiled to 

generate a computer program. The term does 

not include computer databases or computer 

software documentation. 

(6) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(7) Form, fit, and function data means 

technical data that describes the required 

overall physical, functional, and performance 

characteristics (along with the qualification 

requirements, if applicable) of an item or 

process to the extent necessary to permit 

identification of physically and functionally 

interchangeable items. 

(8) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. (See 10 

U.S.C. 2302(4)). 

(9) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose technical data or 

computer software in whole or in part, in any 

manner, and for any purpose whatsoever, 

and to have or authorize others to do so. 

(b) Government rights. The Government 

shall have the following license rights in 

commercial computer software, commercial 

computer software documentation, and 

technical data relating to a commercial item 

that is delivered under this contract: 

(1) Standard commercial license rights. 

Except as provided in paragraphs (b)(2) 

through (b)(4) of this clause, the Government 

shall have the same rights as those in the 

standard commercial license customarily 

provided to the public unless such rights are 

inconsistent with Federal procurement law. 

Any portions of the standard commercial 

license that are inconsistent with Federal 

procurement law shall be considered stricken 

from the license and the remaining portions 

of the license shall remain in effect. The 

parties will promptly enter into negotiations 

to resolve any issues raised by the 

elimination of license terms or conditions 

that are inconsistent with Federal 

procurement law. The resulting license shall 

be attached to the contract. 

(2) Government right to require up to 

unlimited rights in certain types of technical 

data. Notwithstanding paragraph (b)(1) of 

this clause, the Government shall have the 

right to require the Contractor to grant 

additional rights (up to and including 

unlimited rights) pursuant to paragraph (b)(4) 

of this clause, in technical data that— 

(i) Have been provided to the Government 

or others without restrictions on— 

(A) Further disclosure other than a release 

or disclosure resulting from the sale, transfer, 

or other assignment of interest in the 

technical data to another party; or 

(B) The sale or transfer of some or all of 

a business entity or its assets to another 

party; 

(ii) Are form, fit, and function data; 

(iii) Are a correction or change to technical 

data furnished to the Contractor by the 

Government; 

(iv) Are necessary for operation, 

maintenance, installation, or training (other 

than detailed manufacturing or process data); 

or 

(v) Have been provided to the Government 

under a prior contract or licensing agreement 

through which the Government has acquired 

the rights to access, use, modify, reproduce, 

release, perform, display, or disclose the data 

without restrictions. 

(3) Government’s minimum rights in 

technical data. Notwithstanding any 

limitations in the standard commercial 

license granted by paragraph (b)(1) of this 

clause, the Government may access, use, 

modify, reproduce, release, perform, display, 

or disclose commercial technical data 

(including computer software 

documentation) within the Government. 

However, unless specifically authorized by 

the commercial license granted under 

paragraph (b)(1) of this clause or a negotiated 

license under paragraph (b)(4) of this clause, 

the Government shall not— 

(i) Use the technical data to manufacture 

additional quantities of the commercial 

items; or 

(ii) Release, perform, display, disclose, or 

authorize access or use of the technical data 

outside the Government without the 

Contractor’s written permission unless— 

(A) The release, disclosure or permitted 

access or use is— 

(1) Necessary for emergency repair or 

overhaul of the commercial items delivered 

or otherwise provided under this contract; or 

(2) A release or disclosure of technical data 

(other than detailed manufacturing or process 

data) to, or access or use of such data by, a 

foreign government that is in the interest of 

the Government and is required for 

evaluational or informational purposes; 

(B) Prior to the release or disclosure, the 

intended recipient— 

(1) Has executed the use and nondisclosure agreement at 227.7107–2, with its 

required attachment(s); or 

(2) Is a Government contractor receiving 

access to the technical data for performance 

of a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachment(s) required by that clause; and 

(C) The Contractor or subcontractor 

asserting the restriction is notified of such 

reproduction, release, disclosure, access, or 

use. 

(4) Negotiated license rights. 

(i) Except as permitted by paragraph 

(b)(4)(ii) of this clause, the standard license 

rights granted to the Government under 

paragraphs (b)(1) through (b)(3) of this clause 

may be modified only by mutual written 

agreement. 

(ii) For the types of data covered by 

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

Government may require the Contractor to 

grant the Government license rights up to 

and including unlimited rights; however, if 

the Government requires such additional 

rights under this paragraph, the Contractor 

shall be entitled to reasonable compensation 

for granting any rights in addition to those 

provided in the Contractor’s standard 

commercial license. In all other cases, if 

either party desires to negotiate specialized 

license rights in technical data or computer 

software, the other party agrees to enter into 

negotiations. 

(iii) However, in no event may the 

negotiated license provide the Government 

lesser rights than specified at paragraph (b)(3) 

of this clause. 

(iv) Any license rights negotiated under 

this paragraph of the clause shall be 

identified in a license agreement attached to 

this contract. 

(c) Contractor Rights. The Contractor 

retains all intellectual property rights 

(including ownership) not granted to the 

Government in paragraph (b) of this clause. 

(d) Restrictive Markings and Notices 

Required. All commercial technical data and 

commercial computer software to be 

delivered or otherwise provided to the 

Government with restrictions are— 

(1) Identified in an attachment to this 

contract, in accordance with— 

(i) The provision at DFARS 252.227–7017, 

Pre-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software; and 

(ii) The clause at DFARS 252.227–7018, 

Post-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software; and 

(2) Marked to indicate that these technical 

data or computer software are licensed 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 59455 

subject to access, use, modification, 

reproduction, release, performance, display, 

or disclosure restrictions. The form of the 

marking or notice must be consistent with 

best commercial practices, and must 

accurately describe the Government’s rights. 

Validation of the marking is governed by 

DFARS 252.227–7037, Validation of 

Restrictive Markings on Technical Data and 

Computer Software. 

(e) Release from liability. 

(1) The Contractor agrees that the 

Government, and other persons to whom the 

Government may have released or disclosed 

technical data or computer software 

delivered or otherwise furnished under this 

contract, shall have no liability for any 

release or disclosure of technical data or 

computer software that are not marked to 

indicate that these technical data or 

computer software are licensed data subject 

to use, modification, reproduction, release, 

performance, display, or disclosure 

restrictions. 

(2) In the event that an authorized recipient 

of technical data or computer software 

delivered or otherwise provided to the 

Government under this contract engages in 

any unauthorized activities with such 

technical data or computer software, the 

Contractor agrees to— 

(i) Release the Government from liability 

for any release or disclosure of technical data 

or computer software made in accordance 

with the Government’s license rights granted 

pursuant to paragraph (b) of this clause; and 

(ii) Seek relief solely from the party who 

has improperly used, modified, reproduced, 

released, performed, displayed, or disclosed 

Contractor data marked with restrictive 

legends. 

(f) 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, 10 

U.S.C. 2321, and the identification, assertion, 

and delivery processes of paragraph (d) of 

this clause. 

(2) Whenever any technical data or 

computer software will be obtained from a 

subcontractor or supplier for delivery to the 

Government under this contract, the 

Contractor shall use this same clause (or 

other appropriate clause(s) prescribed at 

DFARS 227.7104–8) in the subcontract or 

other contractual instrument, and require its 

subcontractors or suppliers to do so, without 

alteration, except to identify the parties as 

follows: 

(i) References to the Government are not 

changed. 

(ii) The subcontractor or supplier has all 

rights and obligations of the Contractor in the 

clause. 

(3) If the clause used with a subcontractor 

or supplier is not a clause that is used in the 

prime contract (or higher-tier subcontract), 

the Contractor shall notify the Government of 

the use of the clause and, if appropriate 

pursuant to DFARS 227.7104–8(d), the 

Contracting Officer will modify the prime 

contract to include the new clause. 

(End of clause) 

ALTERNATE I (DATE) 

As prescribed in 227.7104–8(c)(2), add the 

following paragraphs (a)(10) and (b)(5) to the 

basic clause: 

(a)(10) Vessel design means the design of 

a vessel, boat, or craft, and its components, 

including the hull, decks, superstructure, and 

the exterior surface shape of all external 

shipboard equipment and systems. The term 

includes designs covered by 10 U.S.C. 7317, 

and designs protectable under 17 U.S.C. 

1301, et seq. 

(b)(5) Vessel designs. For a vessel design 

(including a vessel design embodied in a 

useful article) that is developed or delivered 

under this contract, the Government shall 

have the right to make and have made any 

useful article that embodies the vessel 

design, to import the article, to sell the 

article, and to distribute the article for sale 

or to use the article in trade, to the same 

extent that the Government is granted rights 

in the technical data pertaining to the vessel 

design. 

24. Section 252.227–7016 is revised to 

read as follows: 

252.227–7016 Rights in bid or proposal 

information. 

As prescribed in 227.7105–3(a), use 

the following clause: 

RIGHTS IN BID OR PROPOSAL 

INFORMATION (DATE) 

(a) Definitions. As used in this clause— 

(1) Offeror includes an offeror’s 

subcontractors or suppliers, or potential 

subcontractors or suppliers, at any tier. 

(2) Computer software and technical data 

are defined in the following clause(s) 

contained in this solicitation: 

(i) 252.227–7013, Rights in Technical Data 

and Computer Software—Noncommercial; 

(ii) 252.227–7014, Rights in Technical Data 

and Computer Software—Small Business 

Innovation Research (SBIR) Program; or 

(iii) 252.227–7015, Rights in Technical 

Data and Computer Software—Commercial 

(b) Government rights prior to contract 

award. By submission of its offer, the offeror 

agrees that the Government— 

(1) May reproduce the bid or proposal, or 

any portions thereof, to the extent necessary 

to evaluate the offer. 

(2) Except as provided in paragraph (d) of 

this clause, shall use information contained 

in the bid or proposal only for evaluational 

purposes and shall not disclose, directly or 

indirectly, such information to any person 

including potential evaluators, unless that 

person has been authorized by the head of 

the agency, his or her designee, or the 

Contracting Officer to receive such 

information. 

(c) Government rights subsequent to 

contract award. The Contractor agrees— 

(1) Except as provided in paragraphs (c)(2), 

(d), and (e) of this clause, the Government 

shall have the rights to access, use, modify, 

reproduce, release, perform, display, or 

disclose information contained in the 

Contractor’s bid or proposal within the 

Government. The Government shall not 

release, perform, display, or disclose such 

information outside the Government without 

the Contractor’s written permission. 

(2) The Government’s right to access, use, 

modify, reproduce, release, perform, display, 

or disclose information that is technical data 

or computer software required to be 

delivered under this contract are determined 

by the Rights in Technical Data and 

Computer Software—Noncommercial, Rights 

in Technical Data and Computer— 

Commercial, or Rights in Technical Data and 

Computer Software–Small Business 

Innovative Research (SBIR) Program clause(s) 

of this contract. 

(d) Government-furnished information. 

The Government’s rights with respect to 

technical data or computer software 

contained in the Contractor’s bid or proposal 

that were provided to the Contractor by the 

Government are subject only to restrictions 

on access, use, modification, reproduction, 

release, performance, display, or disclosure, 

if any, imposed by the developer or licensor 

of such technical data or computer software. 

(e) Information available without 

restrictions. The Government’s rights to 

access, use, modify, reproduce, release, 

perform, display, or, disclose information 

contained in a bid or proposal, including 

technical data or computer software, and to 

permit others to do so, shall not be restricted 

in any manner if such information has been 

released or disclosed to the Government or to 

other persons without restrictions other than 

a release or disclosure resulting from the sale, 

transfer, or other assignment of interest in the 

information to another party or the sale or 

transfer of some or all of a business entity or 

its assets to another party. 

(f) Flowdown. The Contractor shall include 

this clause in all subcontracts or similar 

contractual instruments and require its 

subcontractors or suppliers to do so without 

alteration, except to identify the parties as 

follows: 

(1) References to the Government are not 

changed; and 

(2) The subcontractor or supplier has all 

rights and obligations of the Contractor in the 

clause. 

(End of clause) 

25. Section 252.227–7017 is revised to 

read as follows: 

252.227–7017 Pre-award identification and 

assertion of license restrictions—technical 

data and computer software. 

As prescribed in 227.7105–3(b), use 

the following provision: 

PRE-AWARD IDENTIFICATION AND 

ASSERTION OF LICENSE 

RESTRICTIONS—TECHNICAL DATA 

AND COMPUTER SOFTWARE (DATE) 

(a) Definitions. As used in this provision— 

(1) Commercial computer software means 

computer software that is a commercial item. 

(2) Commercial technical data means 

technical data that is or pertains to a 

commercial item. 

(3) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 


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59456 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

(4) Computer program means a set of 

instructions, rules, routines, or statements, 

regardless of the form or method of 

recording, that is capable of causing a 

computer to perform a specific operation or 

series of operations. Examples include 

firmware, object code, and any form of 

executable code. 

(5) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be complied to 

generate a computer program. The term does 

not include computer database or computer 

software documentation. 

(6) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(7) Developed means that— 

(i) An item or process exists and is 

workable. Workability is generally 

established when the item or process has 

been analyzed or tested sufficiently to 

demonstrate to reasonable people skilled in 

the art that there is a high probability that it 

will operate as intended. Whether, how 

much, and what type of analysis or testing is 

required to establish workability depends on 

the nature of the item or process, and the 

state of the art. To be considered 

‘‘developed,’’ the item or process need not be 

at the stage where it could be offered for sale 

or sold on the commercial market, nor must 

the item or process be actually reduced to 

practice within the meaning of Title 35 of the 

United States Code. 

(ii) A computer program has been 

successfully operated in a computer and 

tested to the extent sufficient to demonstrate 

to reasonable persons skilled in the art that 

the program can reasonably be expected to 

perform its intended purpose; 

(iii) Computer software, other than 

computer programs, has been tested or 

analyzed to the extent sufficient to 

demonstrate to reasonable persons skilled in 

the art that the computer software can 

reasonably be expected to perform its 

intended purpose; or 

(iv) Computer software user’s 

documentation required to be delivered or 

otherwise provided under a contract has been 

written, in any medium, in sufficient detail 

to comply with requirements under that 

contract. 

(8) Developed exclusively at private 

expense means development was 

accomplished entirely with costs not paid or 

reimbursed by the Government, or costs paid 

or reimbursed by the Government through 

indirect cost pools, or any combination 

thereof. 

(i) Private expense determinations should 

be made at the lowest practicable level. 

(ii) Under fixed-price contracts, when total 

costs are greater than the firm-price or ceiling 

price of the contract, the additional 

development costs necessary to complete 

development shall not be considered when 

determining whether development was at 

Government, private, or mixed expense. 

(9) Government purpose means any activity 

in which the United States Government is a 

party. 

(i) The term includes competitive 

procurement and any agreements or contracts 

with, or sales or transfers to, international or 

multi-national defense organizations or 

foreign governments. 

(ii) The term does not include the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

for commercial purposes or to authorize 

others to do so. 

(10) Government purpose rights means the 

rights to— 

(i) Access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software within the Government 

without restriction; and 

(ii) Release or disclose technical data or 

computer software outside the Government 

and authorize persons to whom release or 

disclosure has been made to access, use, 

modify, reproduce, release, perform, display, 

or disclose that data for Government 

purposes. However, the Government shall 

not release or disclose the technical data or 

computer software outside the Government 

unless— 

(A) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient has 

executed the non-disclosure agreement at 

227.7107–2 with its required attachments; or 

(B) The recipient is a Government 

contractor receiving access to the technical 

data or computer software for performance of 

a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachments required by that clause. 

(11) Limited rights means the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data, 

in whole or in part, within the Government. 

The Government may not, without the 

written permission of the party asserting 

limited rights, release or disclose the 

technical data outside the Government, use 

the technical data for manufacture, or 

authorize the technical data to be accessed or 

used by another party, unless— 

(i) The reproduction, release, disclosure, 

access, or use is— 

(A) Necessary for emergency repair and 

overhaul; 

(B) A release or disclosure of technical data 

(other than detailed manufacturing or process 

data) to, or access or use of such data by, a 

foreign government that is in the interest of 

the Government and is required for 

evaluational or informational purposes; or 

(C) A release or disclosure of computer 

software design documentation to, or access 

by, a contractor or subcontractor performing 

a service contract (see 37.101 of the Federal 

Acquisition Regulation) in support of this or 

a related contract to use such computer 

software documentation to diagnose and 

correct deficiencies in a computer program, 

to modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes; 

(ii) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient— 

(A) Has executed the use and nondisclosure agreements at 227.7107–2, with its 

required attachment(s); or 

(B) Is a Government contractor receiving 

access to the technical data for performance 

of a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachment(s) required by that clause; 

(iii) The recipient for emergency repair or 

overhaul is required to destroy the technical 

data and all copies in its possession promptly 

following completion of the emergency repair 

or overhaul, and to notify the Contractor that 

the data or computer software have been 

destroyed; and 

(iv) The Contractor or subcontractor 

asserting the restriction is notified of such 

reproduction, release, disclosure, access, or 

use. 

(12) Noncommercial computer software 

means computer software that does not 

qualify as commercial computer software. 

(13) Noncommercial technical data means 

technical data that does not qualify as 

commercial technical data. 

(14) Offeror includes an offeror’s 

subcontractors or suppliers, or potential 

subcontractors or suppliers, at any tier. 

(15) Restricted rights apply only to 

noncommercial computer software and mean 

the Government’s rights to— 

(i) Install and use computer software on 

one computer at a time. The computer 

software may not be time shared or accessed 

by more than one terminal or central 

processing unit unless otherwise permitted 

by this contract; 

(ii) Transfer computer software within the 

Government without further permission of 

the Contractor so long as the transferred 

computer software remain subject to the 

provisions of this clause; 

(iii) Make the minimum number of copies 

of the computer software required for 

safekeeping (archive), backup, or 

modification purposes; 

(iv) Modify computer software provided 

that the Government may— 

(A) Use the modified computer software 

only as provided in paragraphs (a)(18)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the modified 

computer software except as provided in 

paragraphs (a)(18)(ii), (v), and (vi) of this 

clause; 

(v) Permit contractors or subcontractors 

performing service contracts (see 37.101 of 

the Federal Acquisition Regulation) in 

support of this or a related contract to use 

computer software to diagnose and correct 

deficiencies in a computer program, to 

modify computer software to enable a 

computer program to be combined with, 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 59457 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes, 

provided that— 

(A) The Government notifies the party 

which has granted restricted rights that a 

release or disclosure to particular contractors 

or subcontractors was made; 

(B) Such contractors or subcontractors— 

(1) Have executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Are Government contractors receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025 

and the attachment(s) required by that clause; 

(C) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(D) Such use is subject to the limitation in 

paragraph (a)(18)(i) of this clause; and 

(vi) Permit contractors or subcontractors 

performing emergency repairs or overhaul of 

items or components of items procured under 

this or a related contract to use the computer 

software when necessary to perform the 

repairs or overhaul, or to modify the 

computer software to reflect the repairs or 

overhaul made, provided that— 

(A) The intended recipient— 

(1) Has executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Is a Government contractor receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025, 

and the attachments required by that clause; 

(B) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(C) The Government shall require a 

recipient of restricted rights computer 

software for emergency repair or overhaul to 

destroy any copies of the computer software 

in its possession promptly following 

completion of the emergency repair/overhaul 

and to notify the Contractor that the 

computer software has been destroyed. 

(16) SBIR data means all— 

(i) Technical data— 

(A) Pertaining to items or processes 

developed under a Small Business 

Innovation Research (SBIR) award; or 

(B) Created under a SBIR award that does 

not require the development of items or 

processes; and 

(ii) Computer software developed under a 

SBIR award. 

(17) SBIR data rights mean the 

Government’s rights during the SBIR data 

protection period (specified at 252.227– 

7014(b)(5)(ii)) to access, use, modify, 

reproduce, release, perform, display, or 

disclose SBIR data as follows: 

(i) Limited rights in SBIR data that is 

technical data; and 

(ii) Restricted rights in SBIR data that is 

computer software. 

(18) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(19) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose technical data or 

computer software in whole or in part, in any 

manner and for any purpose whatsoever, and 

to have or authorize others to do so. 

(b) Scope. The identification and assertion 

requirements in this provision apply only to 

technical data and computer software to be 

delivered or otherwise provided with other 

than unlimited rights. 

(c) Pre-award identification. Offers 

submitted in response to this solicitation 

shall identify—all technical data or computer 

software that the offeror asserts will be 

delivered or otherwise provided to the 

Government with restrictions on access, use, 

modification, reproduction, release, 

performance, display, or disclosure. The 

offeror’s pre-award identification shall be 

submitted as an attachment to its offer and 

shall contain the following information: 

(1) Title. Place the following title at the top 

of the first page of the attachment: ‘‘PRE– 

AWARD IDENTIFICATION AND 

ASSERTION OF LICENSE RESTRICTIONS— 

TECHNICAL DATA AND COMPUTER 

SOFTWARE.’’ 

(2) Statement of Assertion. Include the 

following statement: ‘‘The offeror asserts for 

itself, or the persons identified in paragraph 

(4)(iv) of this attachment, that the 

Government’s rights to access, use, modify, 

reproduce, release, perform, display, or 

disclose only the following technical data or 

computer software should be restricted:’’ 

(3) Identification of the technical data or 

computer software to be delivered or 

otherwise provided with restrictions. For 

technical data (other than computer software 

documentation) pertaining to items or 

processes, identify both the deliverable 

technical data and each such item or process 

as specifically as possible (e.g., by 

referencing specific sections of the proposal, 

data item numbers or item numbers, or 

specific technology or components). For 

computer software or computer software 

documentation, identify the software or 

documentation by specific name or module 

or item number. The offeror must identify all 

technical data or computer software that it 

asserts or anticipates will be delivered or 

otherwise provided with restrictions, 

including cases in which the offeror is unable 

to provide a complete listing of the detailed 

information required by paragraph (c)(4) of 

this provision (e.g., when the specific 

restrictions or identity of the entity asserting 

restrictions is not yet known). 

(4) Detailed description of the asserted 

restrictions. For each of the technical data or 

computer software identified above in 

paragraph (c)(3) of this provision, identify the 

following information: 

(i) Asserted rights. Identify the asserted 

rights category for the technical data or 

computer software as specified in paragraph 

(b) of the applicable clauses. 

(A) For noncommercial technical data or 

noncommercial computer software, the 

applicable clause(s) are at DFARS 252.227– 

7013, Rights in Technical Data and Computer 

Software–Noncommercial, or DFARS 

252.227–7014, Rights in Technical Data and 

Computer Software—Small Business 

Innovation Research (SBIR) Program (e.g., 

Government purpose rights; limited rights; 

restricted rights; negotiated licenses; or rights 

under prior Government contracts, including 

SBIR data rights for which the protection 

period has not expired); and 

(B) For commercial technical data or 

computer software, the applicable clause is at 

252.227–7015, Rights in Technical Data and 

Computer Software—Commercial. (e.g., a 

standard commercial license, a negotiated 

license, or the Government’s minimum rights 

in or technical data). 

(ii) Copies of negotiated, commercial, and 

other non-standard licenses. The offeror shall 

attach to its offer for each listed item copies 

of all proposed negotiated license(s), the 

offeror’s standard commercial license(s), and 

any other asserted restrictions other than 

Government purpose rights; limited rights; 

restricted rights; rights under prior 

Government contracts, including SBIR data 

rights for which the protection period has not 

expired; or Government’s minimum rights as 

specified in the clause at 252.227–7015, 

Rights in Technical Data and Computer 

Software—Commercial. 

(iii) Specific basis for assertion. Identify 

the specific basis for the assertion. For 

example: 

(A) Development at private expense, either 

exclusively or partially. For technical data, 

development refers to development of the 

item or process to which the data pertains 

(see paragraphs (a)(8) through (a)(11) of the 

clause at DFARS 252.227–7013). For 

computer software, development refers to the 

development of the computer software (see 

paragraphs (a)(8) through (a)(11) of the clause 

at DFARS 252.227–7013). Indicate whether 

development was accomplished exclusively 

or partially at private expense. 

(B) Rights under a prior Government 

contract, including SBIR data rights for 

which the protection period has not expired 

(see paragraphs (a)(7) through (a)(8) of the 

clause at DFARS 252.227–7014 and 

paragraph (c)(4)(v) of this provision). 

(C) Standard commercial license 

customarily provided to the public (see 

paragraph (b)(1) of the clause at DFARS 

252.227–7015). 

(D) Negotiated license rights (see paragraph 

(c)(4)(ii) of this provision). 

(iv) Entity asserting restrictions. Identify 

the corporation, partnership, individual, or 

other person, as appropriate, asserting the 

restrictions. 

(v) Previously delivered technical data or 

computer software. The offeror shall identify 

the technical data or computer software that 

are identical or substantially similar to 


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technical data or computer software that the 

offeror has produced for, delivered to, or is 

obligated to deliver or otherwise provide to 

the Government under any other contract or 

subcontract. The offeror need not identify 

commercial technical data or computer 

software that were, or will be, delivered or 

otherwise provided subject to a standard 

commercial license. 

(5) Signature(s). The attachment must— 

(i) Be signed and dated by— 

(A) An official authorized to contractually 

obligate the offeror; and 

(B) An official authorized to obligate each 

entity or person identified above in 

paragraph (4)(iv) of this attachment, except 

that no signature is required under this 

paragraph (B) when the item being provided 

is commercial technical data or commercial 

computer software and is being offered with 

the standard commercial license rights. 

(ii) Include the printed name and title of 

each official. 

(d) Supplemental information. When 

requested by the Contracting Officer, the 

offeror shall provide sufficient information to 

enable the Contracting Officer to evaluate the 

offeror’s assertions. Sufficient information 

should include, but is not limited to, the 

following: 

(1) The contract number under which the 

technical data or computer software were 

produced; 

(2) The contract number under which, and 

the name and address of the organization to 

whom, the technical data or computer 

software were most recently delivered or will 

be delivered; and 

(3) Identification of the expiration date for 

any limitations on the Government’s rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose the technical 

data or computer software, when applicable. 

(e) Ineligibility for award. An offeror’s 

failure to submit, complete, or sign the 

identifications and assertions required by 

paragraph (c) of this provision with its offer 

may render the offer ineligible for award. 

(f) Award. If the offeror is awarded the 

contract, the Contracting Officer will attach 

the offeror’s list of assertions to the resulting 

contract. 

(g) Post-award amendment of assertions. 

After contract award, amendments to the 

offeror’s assertions may only be 

accomplished in accordance with the clause 

at 252.227–7018 Post-Award Identification 

and Assertion of License Restrictions– 

Technical Data and Computer Software. 

Alternatively, a modified list of assertions 

may be included by mutual agreement. 

(h) Applicability to subcontractors and 

suppliers. Whenever any technical data or 

computer software will be obtained from a 

subcontractor or supplier for delivery to the 

Government under this contract, the offeror 

shall use this same provision in the 

subcontract or other contractual instrument, 

and require its subcontractors or suppliers to 

do so, without alteration, except to identify 

the parties as follows: 

(1) References to the Government are not 

changed; and 

(2) The subcontractor or supplier has all 

rights and obligations of the offeror in the 

provision. 

(End of provision) 

26. Section 252.227–7018 is revised to 

read as follows: 

252.227–7018 Post-award identification 

and assertion of license restrictions— 

technical data and computer software. 

As prescribed in 227.7105–3(c), use 

the following clause: 

POST-AWARD IDENTIFICATION AND 

ASSERTION OF LICENSE 

RESTRICTIONS—TECHNICAL DATA 

AND COMPUTER SOFTWARE (DATE) 

(a) Definitions. As used in this clause— 

(1) Commercial computer software means 

computer software that is a commercial item. 

(2) Commercial technical data means 

technical data that is or pertains to a 

commercial item. 

(3) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 

(4) Computer program means a set of 

instructions, rules, routines, or statements, 

regardless of the form or method of 

recording, that is capable of causing a 

computer to perform a specific operation or 

series of operations. Examples include 

firmware, object code, and any form of 

executable code. 

(5) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be complied to 

generate a computer program. The term does 

not include computer database or computer 

software documentation. 

(6) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(7) Contractor includes the Contractor’s 

subcontractors or suppliers, or potential 

subcontractors or suppliers, at any tier. 

(8) Developed means that— 

(i) An item or process exists and is 

workable. Workability is generally 

established when the item or process has 

been analyzed or tested sufficiently to 

demonstrate to reasonable people skilled in 

the art that there is a high probability that it 

will operate as intended. Whether, how 

much, and what type of analysis or testing is 

required to establish workability depends on 

the nature of the item or process, and the 

state of the art. To be considered developed, 

the item or process need not be at the stage 

where it could be offered for sale or sold on 

the commercial market, or must the item or 

process be actually reduced to practice 

within the meaning of title 35 of the United 

States Code. 

(ii) A computer program has been 

successfully operated in a computer and 

tested to the extent sufficient to demonstrate 

to reasonable persons skilled in the art that 

the program can reasonably be expected to 

perform its intended purpose; 

(iii) Computer software, other than 

computer programs, has been tested or 

analyzed to the extent sufficient to 

demonstrate to reasonable persons skilled in 

the art that the computer software can 

reasonably be expected to perform its 

intended purpose; or 

(iv) Computer software user’s 

documentation required to be delivered or 

otherwise provided under a contract has been 

written, in any medium, in sufficient detail 

to comply with requirements under that 

contract. 

(9) Developed exclusively at private 

expense means development was 

accomplished entirely with costs not paid or 

reimbursed by the Government, or costs paid 

or reimbursed by the Government through 

indirect cost pools, or any combination 

thereof. 

(i) Private expense determinations should 

be made at the lowest practicable level. 

(ii) Under fixed-price contracts, when total 

costs are greater than the firm-price or ceiling 

price of the contract, the additional 

development costs necessary to complete 

development shall not be considered when 

determining whether development was at 

Government, private, or mixed expense. 

(10) Government purpose means any 

activity in which the United States 

Government is a party. 

(i) The term includes competitive 

procurement and any agreements or contracts 

with, or sales or transfers to, international or 

multi-national defense organizations or 

foreign governments. 

(ii) The term does not include the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

for commercial purposes or to authorize 

others to do so. 

(11) Government purpose rights means the 

rights to— 

(i) Access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software within the Government 

without restriction; and 

(ii) Release or disclose technical data or 

computer software outside the Government 

and authorize persons to whom release or 

disclosure has been made to access, use, 

modify, reproduce, release, perform, display, 

or disclose that data for Government 

purposes. However, the Government shall 

not release or disclose the technical data or 

computer software outside the Government 

unless— 

(A) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient has 

executed the non-disclosure agreement at 

227.7107–2 with its required attachments; or 

(B) The recipient is a Government 

contractor receiving access to the technical 


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data or computer software for performance of 

a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachments required by that clause. 

(12) Limited rights means the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data, 

in whole or in part, within the Government. 

The Government may not, without the 

written permission of the party asserting 

limited rights, release or disclose the 

technical data outside the Government, use 

the technical data for manufacture, or 

authorize the technical data to be accessed or 

used by another party, unless— 

(i) The reproduction, release, disclosure, 

access, or use is— 

(A) Necessary for emergency repair and 

overhaul; 

(B) A release or disclosure of technical data 

(other than detailed manufacturing or process 

data) to, or access or use of such data by, a 

foreign government that is in the interest of 

the Government and is required for 

evaluational or informational purposes; or 

(C) A release or disclosure of computer 

software design documentation to, or access 

by, a contractor or subcontractor performing 

a service contract (see 37.101 of the Federal 

Acquisition Regulation) in support of this or 

a related contract to use such computer 

software documentation to diagnose and 

correct deficiencies in a computer program, 

to modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes; 

(ii) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient— 

(A) Has executed the use and nondisclosure agreements at 227.7107–2, with its 

required attachment(s); or 

(B) Is a Government contractor receiving 

access to the technical data for performance 

of a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachment(s) required by that clause; 

(iii) The recipient for emergency repair or 

overhaul is required to destroy the technical 

data and all copies in its possession promptly 

following completion of the emergency repair 

or overhaul, and to notify the Contractor that 

the data or computer software have been 

destroyed; and 

(iv) The Contractor or subcontractor 

asserting the restriction is notified of such 

reproduction, release, disclosure, access, or 

use. 

(13) Noncommercial computer software 

means computer software that does not 

qualify as commercial computer software. 

(14) Noncommercial technical data means 

technical data that does not qualify as 

commercial technical data. 

(15) Restricted rights apply only to 

noncommercial computer software and mean 

the Government’s rights to— 

(i) Install and use computer software on 

one computer at a time. The computer 

software may not be time shared or accessed 

by more than one terminal or central 

processing unit unless otherwise permitted 

by this contract; 

(ii) Transfer computer software within the 

Government without further permission of 

the Contractor so long as the transferred 

computer software remain subject to the 

provisions of this clause; 

(iii) Make the minimum number of copies 

of the computer software required for 

safekeeping (archive), backup, or 

modification purposes; 

(iv) Modify computer software provided 

that the Government may— 

(A) Use the modified computer software 

only as provided in paragraphs (a)(18)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the modified 

computer software except as provided in 

paragraphs (a)(18)(ii), (v), and (vi) of this 

clause; 

(v) Permit contractors or subcontractors 

performing service contracts (see 37.101 of 

the Federal Acquisition Regulation) in 

support of this or a related contract to use 

computer software to diagnose and correct 

deficiencies in a computer program, to 

modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes, 

provided that— 

(A) The Government notifies the party 

which has granted restricted rights that a 

release or disclosure to particular contractors 

or subcontractors was made; 

(B) Such contractors or subcontractors— 

(1) Have executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Are Government contractors receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025 

and the attachment(s) required by that clause; 

(C) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(D) Such use is subject to the limitation in 

paragraph (a)(18)(i) of this clause; and 

(vi) Permit contractors or subcontractors 

performing emergency repairs or overhaul of 

items or components of items procured under 

this or a related contract to use the computer 

software when necessary to perform the 

repairs or overhaul, or to modify the 

computer software to reflect the repairs or 

overhaul made, provided that— 

(A) The intended recipient— 

(1) Has executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Is a Government contractor receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025, 

and the attachments required by that clause; 

(B) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(C) The Government shall require a 

recipient of restricted rights computer 

software for emergency repair or overhaul to 

destroy any copies of the computer software 

in its possession promptly following 

completion of the emergency repair/overhaul 

and to notify the Contractor that the 

computer software has been destroyed. 

(16) SBIR data means all— 

(i) Technical data— 

(A) Pertaining to items or processes 

developed under a Small Business 

Innovation Research (SBIR) award; or 

(B) Created under a SBIR award that does 

not require the development of items or 

processes; and 

(ii) Computer software developed under a 

SBIR award. 

(17) SBIR data rights mean the 

Government’s rights during the SBIR data 

protection period (specified at 252.227– 

7014(b)(5)(ii)) to access, use, modify, 

reproduce, release, perform, display, or 

disclose SBIR data as follows: 

(i) Limited rights in SBIR data that is 

technical data; and 

(ii) Restricted rights in SBIR data that is 

computer software. 

(18) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(19) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose technical data or 

computer software in whole or in part, in any 

manner and for any purpose whatsoever, and 

to have or authorize others to do so. 

(b) Scope. The identification and assertion 

requirements in this clause apply only to 

technical data and computer software to be 

delivered with other than unlimited rights. 

(c) Pre-award assertion list. This contract 

contains the list of all deliverable technical 

data or computer software that the Contractor 

asserted should be delivered or otherwise 

provided to the Government with restrictions 

pursuant to the provision at 252.227–7017, 

Pre-Award Identification and Assertion of 

License Restrictions—Technical Data and 

Computer Software. 

(d) Restrictions on delivery. Except as 

permitted by paragraph (e) of this clause, 

Contractors shall not deliver or otherwise 

provide any technical data or computer 

software with restrictive markings unless the 

technical data or computer software is 

identified in the list of assertions referenced 

in paragraph (c) of this clause. 

(e) Post-award assertions. 

(1) Post-award assertions may be identified 

after award only when based on— 

(i) New information; or 

(ii) Inadvertent omissions, unless the 

inadvertent omissions would have materially 

affected the source selection decision. 

(2) The post-award identification and 

assertion shall be submitted to the 


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Contracting Officer as soon as practicable and 

shall be prior to the scheduled date for 

delivery of the technical data or computer 

software. 

(f) Form of contractor’s post-award 

assertions. Contractor’s post-award assertions 

shall be submitted as identifications in a 

separate attachment. A pre-award 

identification may be submitted as a postaward identification only if the pre-award 

identification is being amended. Contractor’s 

post-award identification shall contain the 

following information: 

(1) Title. Place the following title at the top 

of the first page of the attachment: ‘‘POSTAWARD IDENTIFICATION AND 

ASSERTION OF LICENSE RESTRICTIONS— 

TECHNICAL DATA AND COMPUTER 

SOFTWARE.’’ 

(2) Statement of Assertion. Include the 

following statement(s): ‘‘The Contractor 

asserts for itself, or the persons identified in 

paragraph (4)(iv) of this clause, that the 

Government’s rights to access, use, modify, 

reproduce, release, perform, display, or 

disclose only the following technical data or 

computer software should be restricted:’’ 

(3) Identification of the technical data or 

computer software to be delivered or 

otherwise provided with restrictions. For 

technical data (other than computer software 

documentation) pertaining to items or 

processes, identify both the deliverable 

technical data and each such item or process 

as specifically as possible (e.g., by 

referencing specific sections of the proposal, 

data item numbers or item numbers, or 

specific technology or components). For 

computer software or computer software 

documentation, identify the computer 

software or computer software 

documentation by specific name or module 

or item number. The Contractor must identify 

all technical data or computer software that 

it asserts or anticipates will be delivered or 

otherwise provided with restrictions, 

including cases in which the Contractor is 

unable to provide a complete listing of the 

detailed information required by paragraph 

(f)(4) of this clause (e.g., when the specific 

restrictions or identity of the entity asserting 

restrictions is not yet known). 

(4) Detailed description of the asserted 

restrictions. For each of the technical data or 

computer software identified above in 

paragraph (3) of this clause, identify the 

following information: 

(i) Asserted rights. Identify the asserted 

rights category for the technical data or 

computer software as specified in paragraph 

(b) of the applicable clauses. 

(A) For noncommercial technical data or 

noncommercial computer software, the 

applicable clause(s) are at DFARS 252.227– 

7013, Rights in Technical Data and Computer 

Software—Noncommercial, or DFARS 

252.227–7014, Rights in Technical Data and 

Computer Software–Small Business 

Innovation Research (SBIR) Program (e.g., 

Government purpose rights; limited rights; 

restricted rights; negotiated licenses; or rights 

under prior Government contracts, including 

SBIR data rights for which the protection 

period has not expired); and 

(B) For commercial technical data or 

computer software, the applicable clause is at 

252.227–7015, Rights in Technical Data and 

Computer Software—Commercial (e.g., a 

standard commercial license, a negotiated 

license, or the Government’s minimum rights 

in technical data). 

(ii) Copies of negotiated, commercial, and 

other non-standard licenses. Contractor shall 

provide copies of all proposed negotiated 

license(s), Contractor’s standard commercial 

license(s), and any other asserted restrictions 

other than Government purpose rights; 

limited rights; restricted rights; rights under 

prior Government contracts, including SBIR 

data rights for which the protection period 

has not expired; or Government’s minimum 

rights as specified in the clause at 252.227– 

7015, Rights in Technical Data and Computer 

Software—Commercial. 

(iii) Specific basis for assertion. Identify 

the specific basis for the assertion. For 

example: 

(A) Development at private expense, either 

exclusively or partially. For technical data, 

development refers to development of the 

item or process to which the data pertains 

(see paragraphs (a)(8) through (a)(11) of the 

clause at DFARS 252.227–7013). For 

computer software, development refers to the 

development of the computer software (see 

paragraphs (a)(8) through (a)(11) of the clause 

at DFARS 252.227–7013). Indicate whether 

development was accomplished exclusively 

or partially at private expense. 

(B) Rights under a prior Government 

contract, including SBIR data rights for 

which the protection period has not expired 

(see paragraphs (a)(7) through (a)(8) of the 

clause at DFARS 252.227–7014 and 

paragraph (4)(v) of this clause) 

(C) Standard commercial license 

customarily provided to the public (see 

paragraph (b)(1) of the clause at DFARS 

252.227–7015). 

(D) Negotiated license rights (see paragraph 

(4)(ii) of this clause). 

(iv) Entity asserting restrictions. Identify 

the corporation, partnership, individual, or 

other person, as appropriate, asserting the 

restrictions. 

(v) Previously delivered technical data or 

computer software. 

(A) Identification requirements. The 

Contractor shall indicate the technical data or 

computer software that are identical or 

substantially similar to technical data or 

computer software that the Contractor has 

produced for, delivered to, or is obligated to 

deliver or otherwise provide to the 

Government, under any other contract or 

subcontract. 

(B) Scope. This requirement applies to— 

(1) All noncommercial technical data and 

noncommercial computer software; and 

(2) Only those commercial technical data 

and commercial computer software that 

were, or will be, delivered or otherwise 

provided are subject to a negotiated license. 

(vi) Amendment or modification of preaward assertions. Indicate whether the 

asserted restrictions amend or affect any of 

the pre-award assertions on the list specified 

in paragraph (c) of this clause. If so, 

specifically identify what information 

contained within the pre-award assertions is 

superseded by the amendments or 

modifications. 

(5) Signature(s). The list of assertions 

must— 

(i) Be signed and dated by— 

(A) An official authorized to contractually 

obligate the Contractor; and 

(B) An official authorized to obligate each 

entity or person identified in paragraph 

(4)(iv) of this clause except that no signature 

is required under this paragraph (B) when the 

item being provided is commercial technical 

data or commercial computer software and is 

being offered with the standard commercial 

license rights. 

(ii) Include the printed name and title of 

each official. 

(g) Supplemental information. When 

requested by the Contracting Officer, the 

Contractor shall provide sufficient 

information to enable the Contracting Officer 

to evaluate the Contractor’s original and 

additional assertions. Sufficient information 

should include, but is not limited to, the 

following: 

(1) The contract number under which the 

technical data or computer software were 

produced; 

(2) The contract number under which, and 

the name and address of the organization to 

whom, the technical data or computer 

software were most recently delivered or will 

be delivered; and 

(3) Any limitations on the Government’s 

rights to access, use, modify, reproduce, 

release, perform, display, or disclose the 

technical data or computer software, 

including, when applicable, identification of 

the earliest date the limitations expire. 

(h) Withholding of payment. A Contractor’s 

failure to submit, complete, or sign the 

identifications and assertions required by 

paragraphs (c) and (e) of this clause with its 

performance may result in a withholding of 

payment under the clause at 252.227–7030, 

Technical Data and Computer Software— 

Withholding of Payment. 

(i) Applicability to subcontractors and 

suppliers. Whenever any technical data or 

computer software 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 as follows: 

(1) References to the Government are not 

changed; and 

(2) The subcontractor or supplier has all 

rights and obligations of the Contractor in the 

clause. 

(End of clause) 

252.227–7019 [Removed and reserved] 

27. Section 252.227–7019 is removed 

and reserved. 

28. Section 252.227–7020 is revised to 

read as follows: 

252.227–7020 Rights in works— 

ownership. 

As prescribed in 227.7202–3, use the 

following clause: 

RIGHTS IN WORKS—OWNERSHIP 

(DATE) 

(a) Definitions. As used in this clause— 


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(1) Architectural works means the design of 

a building, a monument, or construction of 

similar nature as embodied in any tangible 

medium of expression, including all 

architectural plans, models, drawings, notes, 

specifications, and other data pertaining to 

the design as well as the building, 

monument, or construction of similar nature. 

(2) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 

(3) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be compiled to 

generate a computer program. The term does 

not include computer database or computer 

software documentation. 

(4) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(5) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(6) The term works— 

(i) Includes the following: 

(A) Databases. 

(B) Literary works. 

(C) Musical works, including any 

accompanying words. 

(D) Dramatic works, including any 

accompanying music. 

(E) Pantomimes and choreographic works. 

(F) Pictorial, graphic, and sculptural works. 

(G) Motion pictures and other audiovisual 

works. 

(H) Sound recordings. 

(I) Architectural works. 

(J) Mask works. 

(K) Original designs. 

(ii) Does not include technical data 

(including computer software 

documentation) and computer software. 

(b) Government rights. The Contractor shall 

assign to the Government the entire right, 

title, and interest, including the intellectual 

property rights (other than patent rights) in— 

(1) Works first produced, created, 

generated, or delivered under this contract to 

the Government; and 

(2) Works not first produced, created, or 

generated under this contract that are 

incorporated into a contract deliverable. 

(c) Contractor rights. The Contractor shall 

not retain any rights in works first produced, 

created, generated, or delivered under this 

contract unless specified in an agreement 

negotiated in accordance with paragraph (g) 

of this clause. 

(d) Third party works. The Contractor shall 

not incorporate, without the written approval 

of the Contracting Officer, any third party 

works, in whole or in part, into the works 

that are produced, created, generated, or 

delivered under this contract, unless the 

Contractor has obtained for the Government 

the rights set forth in paragraph (b) of this 

clause. 

(e) Indemnification. The Contractor shall 

indemnify and save and hold harmless the 

Government, and its officers, agents, and 

employees acting for the Government, against 

any liability, including costs and expenses: 

(1) For violation of proprietary rights, 

copyrights, or rights of privacy or publicity, 

arising out of the creation, delivery, access, 

use, modification, reproduction, release, 

performance, display, or disclosure of any 

works first produced, created, generated, or 

delivered under this contract, or 

(2) Based upon any libelous or other 

unlawful matter contained in such works. 

(f) Marking. The Contractor, unless 

directed to the contrary by the Contracting 

Officer, shall place on works first produced, 

created, generated, or delivered under this 

contract the following notice: ‘‘(designator(s)) 

(year of creation) United States Government, 

as represented by the Secretary of 

(department). All rights reserved.’’ The 

designator element of the notice shall 

indicate all designators appropriate to the 

work, such as ‘‘C’’ for a copyright work, a ‘‘P’’ 

for phonorecords, or a ‘‘D’’ for original 

designs. 

(g) Negotiated rights. The rights granted to 

the Government under paragraph (b) of this 

clause, the Contractor rights under paragraph 

(c) of this clause, and the requirement for 

indemnification under paragraph (e) of this 

clause, may be modified by mutual 

agreement. Any rights so negotiated shall be 

identified in a separate license agreement 

made part of this contract. 

(h) Contractor retention of architectural 

works. Unless otherwise specified, for a 

period of three (3) years after completion of 

the project, the Contractor shall retain all 

architectural works and furnish them upon 

the request of the Contracting Officer. Unless 

otherwise provided in this contract, the 

Contractor shall have the right to retain 

copies of all architectural works beyond this 

period. 

(i) Applicability to subcontractors or 

suppliers. Whenever any works will be first 

produced, created, generated, or delivered, in 

whole or in part, by a subcontractor or 

supplier 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 as follows: 

(1) References to the Government are not 

changed. 

(2) The subcontractor or supplier has all 

rights and obligations of the Contractor in the 

clause. 

(End of clause) 

28. Section 252.227–7021 is revised to 

read as follows: 

252.227–7021 Rights in works license. 

As prescribed at 227.7203-3, use the 

following clause: 

RIGHTS IN WORKS-LICENSE (DATE) 

(a) Definitions. As used in this clause— 

(1) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 

(2) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be compiled to 

generate a computer program. The term does 

not include computer database or computer 

software documentation. 

(3) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(4) Developed means produced, created, or 

generated. 

(5) Government purposes means any 

activities to which the United States 

Government is a party. 

(6) Government license rights means the 

rights to— 

(i) Access, use, modify, reproduce, release, 

perform, display, or disclose works within 

the Government without restriction; and 

(ii) Release or disclose works outside the 

Government and authorize persons to whom 

release or disclosure has been made to 

access, use, modify, reproduce, release, 

perform, display, or disclose those works for 

Government purposes. However, the 

Government shall not release or disclose 

works outside the Government unless the 

recipient is a Government contractor 

receiving access to the works for performance 

of a Government contract that contains the 

clause at DFARS 252.227–70YY. 

(7) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 


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59462 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(8) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose a work in whole 

or in part, in any manner, and for any 

purpose whatsoever, and to have or authorize 

others to do so. 

(9) The term works— 

(i) Includes the following: 

(A) Databases. 

(B) Literary works. 

(C) Musical works, including any 

accompanying words. 

(D) Dramatic works, including any 

accompanying music. 

(E) Pantomimes and choreographic works. 

(F) Pictorial, graphic, and sculptural works. 

(G) Motion pictures and other audiovisual 

works. 

(H) Sound recordings. 

(I) Architectural works. 

(J) Mask works. 

(K) Original designs. 

(ii) Does not include technical data 

(including computer software 

documentation) and computer software. 

(b) Government rights. The Government 

shall have the following license rights in a 

work that is delivered or developed under 

this contract: 

(1) Except as provided in paragraphs (b)(2) 

and (b)(3) of this clause, the Government 

shall have the same rights as those in the 

standard commercial license customarily 

provided to the public unless such rights are 

inconsistent with Federal procurement law. 

Any portions of the standard commercial 

license that are inconsistent with Federal 

procurement law shall be considered stricken 

from the license and the remaining portions 

of the license shall remain in effect. The 

parties will promptly enter into negotiations 

to resolve any issues raised by the 

elimination of license terms or conditions 

that are inconsistent with Federal 

procurement law. The resulting license shall 

be attached to the contract. 

(2) Unlimited rights in all portions of a 

work that are first developed under the 

contract that are segregable from any sections 

of the work developed prior to contract 

award. 

(3) Government license rights in all 

portions of the work first developed under 

the contract and that are not segregable from 

sections of the work that were developed 

prior to contract award. 

(4) Negotiated license rights. 

(i) The license rights granted to the 

Government under paragraphs (b)(1), (b)(2), 

or (b)(3) of this clause may be modified only 

by mutual written agreement. 

(ii) If the Government desires to obtain 

rights in a work in addition to those specified 

in paragraph (b)(1), (b)(2), or (b)(3), the 

Contractor agrees to enter into good faith 

negotiations with the Contracting Officer to 

determine whether there are acceptable terms 

for transferring such rights. 

(iii) Any work in which the Contractor has 

granted the Government rights under 

paragraph (b)(3)(ii) of this clause shall be 

listed or described in a separate license 

agreement made part of this contract. The 

license shall enumerate the rights granted the 

Government. 

(c) Contractor rights. The Contractor 

retains all intellectual property rights 

(including ownership) not granted to the 

Government in paragraph (b) of this clause. 

(d) Restrictive markings and notices 

required. (1) The Contractor shall ensure that 

any works to be delivered or otherwise 

provided to the Government with restrictions 

are marked to indicate that the works are 

licensed subject to access, use, modification, 

reproduction, release, performance, display, 

or disclosure restrictions. The form of the 

marking or notice must be consistent with 

best commercial practices, and must 

accurately describe the Government’s rights. 

(2) Government license rights markings. 

Works delivered or otherwise furnished to 

the Government with Government license 

rights shall be marked as follows: 

GOVERNMENT LICENSE RIGHTS 

Contract No. llllllllllllll

Contractor Name llllllllllll

Contractor Address lllllllllll

lllllllllllllllllllll

Expiration Date lllllllllllll

The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose these works are restricted by 

paragraph (b)(3) of the Rights in Works— 

License clause contained in the above 

identified contract. No restrictions apply 

after the expiration date shown above. Any 

reproduction of works or portions thereof 

marked with this legend must also reproduce 

the markings. 

(End of legend) 

(e) Release from liability. 

(1) The Contractor agrees that the 

Government, and other persons to whom the 

Government may have released or disclosed 

a work delivered or otherwise furnished 

under this contract, shall have no liability for 

any release or disclosure of the work that is 

not marked to indicate that the work is 

licensed subject to access, use, modification, 

reproduction, release, performance, display, 

or disclosure restrictions. 

(2) In the event that an authorized recipient 

of a work delivered or otherwise provided to 

the Government under this contract engages 

in any unauthorized activities with respect to 

the work, the Contractor agrees to— 

(i) Release the Government from liability 

for any release or disclosure of the work 

made in accordance with the Government’s 

license rights granted pursuant to paragraph 

(b) of this clause; and 

(ii) Seek relief solely from the party who 

has improperly accessed, used, modified, 

reproduced, released, performed, displayed, 

or disclosed the work marked with restrictive 

legends. 

(f) Indemnification. 

(1) The Contractor shall indemnify and 

save and hold harmless the Government, and 

its officers, agents and employees acting for 

the Government, against any liability, 

including costs and expenses, 

(i) For violation of proprietary rights, 

copyrights, or rights of privacy or publicity, 

arising out of the creation, delivery, access, 

use, modification, reproduction, release, 

performance, display, or disclosure of any 

works first produced, created or generated 

under this contract, or 

(ii) Based upon any libelous or other 

unlawful matter contained in such works. 

(2) The requirement for indemnification 

may be modified by mutual agreement. Any 

rights so negotiated shall be identified in a 

separate agreement made part of this 

contract. 

(g) Applicability to subcontractors or 

suppliers. Whenever any works 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 as follows: 

(1) References to the Government are not 

changed. 

(2) The subcontractor or supplier has all 

rights and obligations of the Contractor in the 

clause. 

(End of clause) 

30. Section 252.227–7022 is revised to 

read as follows: 

252.227–7022 Government rights in works 

(unlimited). 

As prescribed at 227.7205–2(a), use 

the following clause: 

GOVERNMENT RIGHTS IN WORKS 

(UNLIMITED) (DATE) 

The Government shall have unlimited 

rights, in all drawings, designs, 

specifications, notes, and other works 

developed in the performance of this 

contract, including the right to use same on 

any other Government design or construction 

without additional compensation to the 

Contractor. The Contractor hereby grants to 

the Government a paid-up license throughout 

the world to all such works to which he may 

assert or establish any claim under copyright 

laws. The Contractor for a period of three (3) 

years after completion of the project, agrees 

to furnish the original or copies of all such 

works on the request of the Contracting 

Officer. 

(End of clause) 

252.227–7023 [Removed and reserved] 

31. Section 252.227–7023 is removed 

and reserved. 

32. Section 252.227–7024 is amended 

by revising the introductory text of the 

clause to read as follows: 

252.227–7024 Notice and approval of 

restricted designs. 

As prescribed at 227.7205–2(b), use 

the following clause: 

* * * * * 

33. Section 252.227–7025 is revised to 

read as follows: 

252.227–7025 Government-furnished 

information marked with restrictive legends. 

As prescribed in 227.7107–4, use the 

following clause: 


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GOVERNMENT-FURNISHED 

INFORMATION MARKED WITH 

RESTRICTIVE LEGENDS (DATE) 

(a) Definitions. As used in this clause— 

(1) Commercial computer software means 

computer software that is a commercial item. 

(2) Commercial technical data means 

technical data that is or pertains to a 

commercial item. 

(3) Computer database or database means 

a collection of recorded information in a form 

capable of, and for the purpose of, being 

stored in, or processed by a computer. The 

term does not include computer software. 

(4) Computer program means a set of 

instructions, rules, routines, or statements, 

regardless of the form or method of 

recording, that is capable of causing a 

computer to perform a specific operation or 

series of operations. Examples include 

firmware, object code, and any form of 

executable code. 

(5) Computer software means computer 

programs; and source code, source code 

listings, and similar human-readable, 

recorded information that can be compiled to 

generate a computer program. The term does 

not include computer database or computer 

software documentation. 

(6) Computer software documentation 

means technical data relating to computer 

software. 

(i) The term includes— 

(A) Computer software design 

documentation, such as design details, 

algorithms, processes, flow charts, formulas, 

and related information that describe the 

design, organization, or structure of computer 

software; and 

(B) Computer software user’s 

documentation, such as user’s or owner’s 

manuals, installation instructions, operating 

instructions, and similar information that 

explains the capabilities of the computer 

software or provides instructions for using or 

maintaining the computer software. 

(ii) The term does not include computer 

software. 

(7) Contractor includes the Contractor’s 

subcontractors or suppliers, or potential 

subcontractors or suppliers, at any tier. 

(8) Government purpose means any activity 

in which the United States Government is a 

party. 

(i) The term includes competitive 

procurement and any agreements or contracts 

with, or sales or transfers to, international or 

multi-national defense organizations or 

foreign governments. 

(ii) The term does not include the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

for commercial purposes or to authorize 

others to do so. 

(9) Government purpose rights means the 

rights to— 

(i) Access, use, modify, reproduce, release, 

perform, display, or disclose technical data 

or computer software within the Government 

without restriction; and 

(ii) Release or disclose technical data or 

computer software outside the Government 

and authorize persons to whom release or 

disclosure has been made to access, use, 

modify, reproduce, release, perform, display, 

or disclose that data for Government 

purposes. However, the Government shall 

not release or disclose the technical data or 

computer software outside the Government 

unless— 

(A) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient has 

executed the non-disclosure agreement at 

227.7107–2 with its required attachments; or 

(B) The recipient is a Government 

contractor receiving access to the technical 

data or computer software for performance of 

a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachments required by that clause. 

(10) Limited rights means the rights to 

access, use, modify, reproduce, release, 

perform, display, or disclose technical data, 

in whole or in part, within the Government. 

The Government may not, without the 

written permission of the party asserting 

limited rights, release or disclose the 

technical data outside the Government, use 

the technical data for manufacture, or 

authorize the technical data to be accessed or 

used by another party, unless— 

(i) The reproduction, release, disclosure, 

access, or use is— 

(A) Necessary for emergency repair and 

overhaul; 

(B) A release or disclosure of technical data 

(other than detailed manufacturing or process 

data) to, or access or use of such data by, a 

foreign government that is in the interest of 

the Government and is required for 

evaluational or informational purposes; or 

(C) A release or disclosure of computer 

software design documentation to, or access 

by, a contractor or subcontractor performing 

a service contract (see 37.101 of the Federal 

Acquisition Regulation) in support of this or 

a related contract to use such computer 

software documentation to diagnose and 

correct deficiencies in a computer program, 

to modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes; 

(ii) Prior to release or disclosure (or in 

emergency situations, as soon as practicable 

thereafter), the intended recipient— 

(A) Has executed the use and nondisclosure agreements at 227.7107–2, with its 

required attachment(s); or 

(B) Is a Government contractor receiving 

access to the technical data for performance 

of a Government contract that contains the 

clause at DFARS 252.227–7025 and the 

attachment(s) required by that clause; 

(iii) The recipient for emergency repair or 

overhaul is required to destroy the technical 

data and all copies in its possession promptly 

following completion of the emergency repair 

or overhaul, and to notify the Contractor that 

the data or computer software have been 

destroyed; and 

(iv) The Contractor or subcontractor 

asserting the restriction is notified of such 

reproduction, release, disclosure, access, or 

use. 

(11) Noncommercial computer software 

means computer software that does not 

qualify as commercial computer software. 

(12) Noncommercial technical data means 

technical data that does not qualify as 

commercial technical data. 

(13) Owner-Licensor means the person 

whose name appears in the restrictive legend 

or is otherwise identified as asserting 

restrictions on the access, use, modification, 

reproduction, release, performance, display, 

or disclosure of technical data or computer 

software. 

(14) Restricted rights apply only to 

noncommercial computer software and mean 

the Government’s rights to— 

(i) Install and use computer software on 

one computer at a time. The computer 

software may not be time shared or accessed 

by more than one terminal or central 

processing unit unless otherwise permitted 

by this contract; 

(ii) Transfer computer software within the 

Government without further permission of 

the Contractor so long as the transferred 

computer software remain subject to the 

provisions of this clause; 

(iii) Make the minimum number of copies 

of the computer software required for 

safekeeping (archive), backup, or 

modification purposes; 

(iv) Modify computer software provided 

that the Government may— 

(A) Use the modified computer software 

only as provided in paragraphs (a)(18)(i) and 

(iii) of this clause; and 

(B) Not release or disclose the modified 

computer software except as provided in 

paragraphs (a)(18)(ii), (v), and (vi) of this 

clause; 

(v) Permit contractors or subcontractors 

performing service contracts (see 37.101 of 

the Federal Acquisition Regulation) in 

support of this or a related contract to use 

computer software to diagnose and correct 

deficiencies in a computer program, to 

modify computer software to enable a 

computer program to be combined with, 

adapted to, or merged with other computer 

programs or when necessary to respond to 

urgent tactical situations or for emergency 

repair or overhaul of items or processes, 

provided that— 

(A) The Government notifies the party 

which has granted restricted rights that a 

release or disclosure to particular contractors 

or subcontractors was made; 

(B) Such contractors or subcontractors— 

(1) Have executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Are Government contractors receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025 

and the attachment(s) required by that clause; 

(C) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(D) Such use is subject to the limitation in 

paragraph (a)(18)(i) of this clause; and 

(vi) Permit contractors or subcontractors 

performing emergency repairs or overhaul of 

items or components of items procured under 

this or a related contract to use the computer 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
59464 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Proposed Rules 

software when necessary to perform the 

repairs or overhaul, or to modify the 

computer software to reflect the repairs or 

overhaul made, provided that— 

(A) The intended recipient— 

(1) Has executed the use and nondisclosure agreement at DFARS 227.7107–2, 

with its required attachments; or 

(2) Is a Government contractor receiving 

access to the computer software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025, 

and the attachments required by that clause; 

(B) The Government shall not permit the 

recipient to decompile, disassemble, or 

reverse engineer the computer software, or 

use computer software decompiled, 

disassembled, or reverse engineered by the 

Government pursuant to paragraph (a)(18)(iv) 

of this clause, for any other purpose; and 

(C) The Government shall require a 

recipient of restricted rights computer 

software for emergency repair or overhaul to 

destroy any copies of the computer software 

in its possession promptly following 

completion of the emergency repair/overhaul 

and to notify the Contractor that the 

computer software has been destroyed. 

(15) SBIR data means all— 

(i) Technical data— 

(A) Pertaining to items or processes 

developed under a Small Business 

Innovation Research (SBIR) award; or 

(B) Created under a SBIR award that does 

not require the development of items or 

processes; and 

(ii) Computer software developed under a 

SBIR award. 

(16) SBIR data rights mean the 

Government’s rights during the SBIR data 

protection period (specified at 252.227– 

7014(b)(5)(ii)) to access, use, modify, 

reproduce, release, perform, display, or 

disclose SBIR data as follows: 

(i) Limited rights in SBIR data that is 

technical data; and 

(ii) Restricted rights in SBIR data that is 

computer software. 

(17) Technical data means recorded 

information (regardless of the form or method 

of the recording) of a scientific or technical 

nature (including computer databases and 

computer software documentation). The term 

does not include computer software or 

financial, administrative, cost or pricing, or 

management data or other information 

incidental to contract administration. 

Recorded information of a scientific or 

technical nature that is included in computer 

databases is also technical data. 

(18) Unlimited rights means the rights to 

access, use, modify, reproduce, perform, 

display, release, or disclose technical data or 

computer software in whole or in part, in any 

manner and for any purpose whatsoever, and 

to have or authorize others to do so. 

(b) Attachment. An attachment to the 

contract will identify— 

(1) The technical data and computer 

software that the Government intends to 

furnish to the Contractor with restrictions on 

access, use, modification, reproduction, 

release, performance, display, or disclosure; 

and 

(2) The specific conditions under which 

the Contractor is authorized to access, use, 

modify, reproduce, release, perform, display, 

or disclose the following: 

(i) Technical data subject to limited rights; 

(ii) Computer software subject to restricted 

rights; 

(iii) SBIR data subject to SBIR data rights; 

and 

(iv) Technical data or computer software 

subject to— 

(A) Negotiated license rights; or 

(B) Other license restrictions, including 

commercial license rights. 

(c) Government-furnished information 

provided with restrictions. Technical data or 

computer software provided to the Contractor 

as Government-furnished information, under 

this contract are subject to restrictions on 

access, use, modification, reproduction, 

release, performance, display, or disclosure 

as follows: 

(1) Government-furnished information 

marked with Government purpose rights 

legends. The Contractor shall access, use, 

modify, reproduce, release, perform, display, 

or disclose Government-furnished 

information marked with Government 

purpose rights legends for Government 

purposes only and shall not do so for any 

commercial purpose. The Contractor shall 

not, without the express written permission 

of the Owner-Licensor, release, perform, 

display, or disclose such Governmentfurnished information to, or allow access by, 

a person other than its subcontractors, 

suppliers, or prospective subcontractors or 

suppliers, who require the Governmentfurnished information to submit offers for, or 

perform, subcontracts or supplier obligations 

under this contract. The Contractor shall 

ensure compliance with paragraph (j) of this 

clause. 

(2) Government-furnished information 

(technical data) marked with limited rights 

legends or SBIR data rights legends. The 

Contractor shall access, use, modify, 

reproduce, release, perform, or display 

Government-furnished information (technical 

data) marked with limited rights legends only 

in the performance of this contract, as 

specified in the Attachment to this contract. 

(i) The Contractor shall not, unless 

expressly authorized in the Attachment to 

this contract or by express written 

permission of the Owner-Licensor, release or 

disclose such technical data to, or allow 

access by, any other person. The Contractor 

shall ensure compliance with paragraph (j) of 

this clause. 

(ii) The Contractor shall promptly notify 

the Owner-Licensor of the execution of this 

contract and identify the Owner-Licensor’s 

technical data or computer software that has 

been or will be provided to the Contractor, 

the date and place the Government-furnished 

information were or will be received, and the 

name and address of the Government office 

that has provided or will provide the 

Government-furnished information. 

(3) Government-furnished information 

(computer software) marked with restricted 

rights legends or SBIR data rights legends. 

The Contractor shall access, use, modify, 

reproduce, release, perform, display, or 

disclose Government-furnished information 

(computer software) marked with restricted 

rights legends only in the performance of this 

contract, as specified in the Attachment to 

this contract. 

(i) The Contractor shall not, unless 

expressly authorized in the Attachment to 

this contract or by express written 

permission of the Owner-Licensor, release or 

disclose such Government-furnished 

information to, or allow access by, any 

person. The Contractor shall ensure 

compliance with paragraph (j) of this clause. 

(ii) The Recipient shall promptly notify the 

software Owner-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. 

(4) Government-furnished information 

marked with negotiated license rights 

legends. The Contractor shall access, use, 

modify, reproduce, release, perform, or 

display Government-furnished information 

marked with negotiated license rights 

legends only as permitted in the negotiated 

license, which is specified in the Attachment 

to this contract. The Contractor shall not, 

unless expressly authorized in the 

Attachment or by express written permission 

of the Owner-Licensor, release or disclose 

such Government-furnished information to, 

or allow access by, any person. The 

Contractor shall ensure compliance with 

paragraph (j) of this clause. 

(5) Government-furnished information 

marked with other restrictive legends, or 

otherwise subject to restrictions. The 

Contractor shall access, use, modify, 

reproduce, release, perform, display, or 

disclose Government-furnished information 

that are marked with other restrictive 

legends, or that are otherwise identified in 

the Attachment as subject to restrictions, 

only as specified in the Attachment to this 

contract. The Contractor shall ensure 

compliance with paragraph (j) of this clause. 

(d) Contractor procedures for safeguarding, 

use, and handling of Government-furnished 

information. Contractor shall adopt operating 

procedures and physical security measures 

sufficient to protect the Governmentfurnished information from unauthorized 

access, use, modification, reproduction, 

release, performance, display, or further 

disclosure; including through compliance 

with the requirements of paragraph (j) of this 

clause. 

(e) Disclaimer of warranty. Unless 

specifically stated elsewhere in this contract, 

the Government is providing the requested 

technical data and computer software to the 

recipient ‘‘as is’’ and free of all warranties and 

representations, including suitability for 

intended purpose. 

(f) The Contractor may enter into any 

agreement directly with the Owner-Licensor 

with respect to the access, use, modification, 

reproduction, release, performance, display, 

or disclosure of these technical data or 

computer software. 

(g) Indemnification and creation of third 

party beneficiary rights. The Contractor 

agrees— 

(1) To indemnify and hold harmless the 

Government, its agents, and employees from 

every claim or liability, including attorneys 


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fees, court costs, and expenses, arising out of, 

or in any way related to, the unauthorized 

access, use, modification, reproduction, 

release, performance, display, or disclosure 

of the Government-furnished information by 

the Contractor or any person to whom the 

Contractor has released or disclosed such 

data or software; and 

(2) The Owner-Licensor, in addition to any 

other rights it may have, is a third party 

beneficiary of this clause and has the right of 

direct action against the Contractor, or any 

person to whom the Contractor has released 

or disclosed the Government-furnished 

information, for the unauthorized access, use, 

modification, reproduction, release, 

performance, display, or disclosure of 

Government-furnished information subject to 

restrictive legends. 

(h) Disposition of Government-furnished 

information. Recipient agrees to destroy or 

return the original and all copies of the 

Government-furnished information released 

to the recipient within 30 days following the 

expiration of the use and non-disclosure 

agreement. 

(i) Survival of obligations. The obligations 

imposed by this clause shall survive the 

expiration or termination of this contract. 

(j) Subcontractor flowdown and release or 

disclosure outside the Contractor’s 

organization. (1) The Contractor shall not 

release or disclose Government-furnished 

information to, or allow access by, any 

person outside the Contractor’s organization 

unless the intended recipient is— 

(i) Authorized to access or receive the 

Government-furnished information; and 

(ii) Subject to appropriate prohibitions on 

unauthorized access, use, modification, 

reproduction, release, performance, display, 

or disclosure, in accordance with paragraph 

(j)(2) of this clause. 

(2) The Contractor shall either— 

(i) Use this same clause (including the 

restrictions contained in the Attachment 

specified at paragraph (b) of this clause) in 

the subcontract or other contractual 

instrument with an intended recipient who is 

a subcontractor or supplier, and require that 

subcontractor or supplier to do so, without 

alteration except to identify the parties, as 

follows: 

(A) References to the Government are not 

changed; and 

(B) The intended recipient (subcontractor 

or supplier) has all rights and obligations of 

the Contractor in the clause; or 

(ii) Require the intended recipient to 

execute the standard use and nondisclosure 

agreement in accordance with DFARS 

227.7107–2, which shall incorporate the 

restrictions contained in the Attachment 

specified at paragraph (b) of this clause. 

(End of clause) 

34. Section 252.227–7026 is revised to 

read as follows: 

252.227–7026 Deferred delivery of 

technical data or computer software. 

As prescribed at 227.7103–5(a), use 

the following clause: 

DEFERRED DELIVERY OF TECHNICAL 

DATA OR COMPUTER SOFTWARE 

(DATE) 

The Government shall have the right to 

require, at any time during the performance 

of this contract, within two (2) years after 

either acceptance of all items (other than 

technical data or computer software) to be 

delivered or otherwise provided under this 

contract or termination of this contract, 

whichever is later, delivery of any technical 

data or computer software item identified in 

this contract as ‘‘deferred delivery’’ data or 

computer software. The obligation to furnish 

such technical data required to be prepared 

by a subcontractor and pertaining to an item 

obtained from him shall expire two (2) years 

after the date Contractor accepts the last 

delivery of that item from that subcontractor 

for use in performing this contract. 

(End of clause) 

35. Section 252.227–7027 is revised to 

read as follows: 

252.227–7027 Deferred ordering of 

technical data or computer software. 

As prescribed at 227.7103–5(b), use 

the following clause: 

DEFERRED ORDERING OF 

TECHNICAL DATA OR COMPUTER 

SOFTWARE (DATE) 

(a) In addition to technical data or 

computer software specified elsewhere in 

this contract to be delivered, the Government 

may order any technical data or computer 

software created or developed in the 

performance of this contract or any 

subcontract hereunder. 

(b) The Government’s deferred ordering 

rights under paragraph (a) of this clause shall 

expire three (3) years after acceptance of all 

items (other than technical data or computer 

software) to be delivered or otherwise 

provided under this contract, or the 

termination of this contract, whichever is 

later. However, the obligation to deliver 

technical data or computer software created 

or developed by a subcontractor shall expire 

three (3) years after the date the Contractor 

accepts the last delivery of that computer 

software, or the item to which the technical 

data pertains, from that subcontractor. 

(c) When the technical data or computer 

software is ordered, the Contractor shall be 

compensated for converting the technical 

data or computer software into the prescribed 

form for reproduction and delivery. 

(d) The Government’s rights to access, use, 

modify, reproduce, release, perform, display, 

or disclose the delivered technical data or 

computer software shall be determined 

pursuant to the appropriate data rights 

clause: 

(1) DFARS 252.227–7013, Rights in 

Technical Data and Computer Software— 

Noncommercial; 

(2) DFARS 252.227–7014, Rights in 

Technical Data and Computer Software— 

Small Business Innovation Research (SBIR); 

or 

(3) DFARS 252.227–7015, Rights in 

Technical Data and Computer Software— 

Commercial. 

(End of clause) 

252.227–7028 [Removed and reserved] 

36. Section 252.227–7028 is removed 

and reserved. 

37. Section 252.227–7030 is revised to 

read as follows: 

252.227–7030 Technical data and 

computer software—withholding of 

payment. 

As prescribed at 227.7106–5(a), use 

the following clause: 

TECHNICAL DATA AND COMPUTER 

SOFTWARE—WITHHOLDING OF 

PAYMENT (DATE) 

(a) If technical data or computer software 

specified to be delivered under this contract 

are not delivered within the time specified by 

this contract or are deficient upon delivery 

(including having restrictive markings not 

identified in the list described in the clause 

at 252.227–7013(f) or 252.227–7014(f) of this 

contract), the Contracting Officer may, until 

such data or software is accepted by the 

Government, withhold payment to the 

Contractor of ten percent (10%) of the total 

contract price or amount unless a lesser 

withholding is specified in the contract. 

Payments shall not be withheld or any other 

action taken pursuant to this paragraph when 

the Contractor’s failure to make timely 

delivery or to deliver such data or software 

without deficiencies arises out of causes 

beyond the control and without the fault or 

negligence of the Contractor. 

(b) The withholding of any amount or 

subsequent payment to the Contractor shall 

not be construed as a waiver of any rights 

accruing to the Government under this 

contract. 

(End of clause) 

252.227–7032 [Removed and reserved] 

38. Section 252.227–7032 is removed 

and reserved. 

39. Section 252.227–7033 is revised to 

read as follows: 

252.227–7033 Rights in shop drawings. 

As prescribed at 227.7205–2(c), use 

the following clause: 

RIGHTS IN SHOP DRAWINGS (DATE) 

(a) Shop drawings for construction means 

drawings, submitted to the Government by 

the Construction Contractor, subcontractor or 

any lower-tier subcontractor pursuant to a 

construction contract, showing in detail (i) 

the proposed fabrication and assembly of 

structural elements and (ii) the installation 

(i.e., form, fit, and attachment details) of 

materials or equipment. The Government 

may duplicate, use, and disclose in any 

manner and for any purpose shop drawings 

delivered under this contract. 

(b) The Contractor shall include this 

clause, including this paragraph (b), in all 

subcontracts hereunder. 

(End of clause) 


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252.227–7034 [Removed] 

40. Reserved section 252.227–7034 is 

removed. 

41. Section 252.227–7037 is revised to 

read as follows: 

252.227–7037 Validation of restrictive 

markings on technical data and computer 

software. 

As prescribed in 227.7106–5(b), use 

the following clause: 

VALIDATION OF RESTRICTIVE 

MARKINGS ON TECHNICAL DATA 

AND COMPUTER SOFTWARE (DATE) 

(a) Definitions. 

(1) As used in this clause, unless otherwise 

specifically indicated, the term Contractor 

means the Contractor and its subcontractors 

or suppliers, or potential subcontractors or 

suppliers, at any tier. 

(2) The other terms used in this clause are 

defined in the Rights in Technical Data and 

Computer Software—Noncommercial clause 

of this contract. 

(b) Contracts for commercial items— 

presumption of development at private 

expense. Under a contract for a commercial 

item (including commercial computer 

software), the Department of Defense shall 

presume that a Contractor’s asserted use or 

release restrictions are justified on the basis 

that the commercial item was developed 

exclusively at private expense. The 

Department shall not challenge such 

assertions unless information the Department 

provides demonstrates that the commercial 

item was not developed exclusively at 

private expense. 

(c) Justification. Except under contracts for 

commercial items (including commercial 

computer software), the Contractor shall— 

(1) Maintain records sufficient to justify the 

validity of any markings that assert 

restrictions on the Government’s and others’ 

right to access, use, modify, reproduce, 

perform, display, release, or disclose 

technical data or computer software 

delivered or required to be delivered under 

the contract or subcontract; and 

(2) Be prepared to furnish to the 

Contracting Officer a written justification for 

such restrictive markings in response to a 

challenge under paragraph (d) of this clause 

or in response to a request for information 

under paragraph (e) of this clause. 

(d) Notwithstanding any provision of this 

contract concerning inspection and 

acceptance, the Contracting Officer may 

challenge the Contractor’s assertion of 

restrictions if the Contracting Officer 

determines that— 

(1) Reasonable grounds exist to question 

the current validity of the marking; and 

(2) Continued adherence to the marking 

would make impracticable subsequent 

competitive acquisition of the computer 

software or item or process. 

(e) Challenge process. 

(1) For other than commercial items, the 

Contracting Officer may request the 

Contractor to provide a written explanation 

for any asserted restriction sufficient to 

enable the Contracting Officer to evaluate the 

Contractor’s asserted restrictions and 

determine whether a challenge is warranted. 

Such written explanation shall be based 

upon the records required by this clause or 

other information reasonably available to the 

Contractor. 

(2) 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. 

(3) The Contracting Officer will review the 

explanation submitted and— 

(i) Request the Contractor to furnish 

additional information within the time 

required or such longer period as may be 

mutually agreed upon; 

(ii) Determine that the asserted marking is 

valid and so notify the Contractor in writing; 

or 

(iii) Challenge that the asserted marking is 

not valid. 

(4) When the Contracting Officer 

challenges that the asserted marking is not 

valid, and the Contractor notifies the 

Contracting Officer that it agrees with that 

determination, the Contracting Officer may— 

(i) Strike or correct the unjustified marking 

at the Contractor’s expense; or 

(ii) Return the computer software or 

technical data 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 computer 

software or technical data to the Contracting 

Officer within sixty (60) days following 

receipt of the computer software or technical 

data, the Contracting Officer may correct or 

strike the markings at the Contractor’s 

expense. 

(5) When the Contracting Officer 

challenges that the asserted marking is not 

valid, and the Contractor does not notify the 

contracting officer that it agrees with this 

determination, the Contracting Officer will 

send a written challenge notice to the 

Contractor asserting the restrictive markings. 

Such challenge shall— 

(i) State the specific grounds for 

challenging the asserted restriction; 

(ii) Require a response within sixty (60) 

days justifying and providing sufficient 

evidence as to the current validity of the 

asserted restriction; 

(iii) State that it is a justification of the 

asserted restriction if— 

(A) A DoD Contracting Officer’s final 

decision issued pursuant to paragraph (e)(9) 

of this clause, or action of a court of 

competent jurisdiction or Board of Contract 

Appeals, has sustained the validity of a 

restrictive marking identical to the asserted 

restriction; 

(B) Such decision or action occurred 

within the three-year period preceding the 

challenge; and 

(C) The validated restriction was asserted 

by the same Contractor (or any licensee of 

such Contractor) to which such notice is 

being provided; and 

(iv) State that failure to respond to the 

challenge notice may result in issuance of a 

final decision pursuant to paragraph (e)(8) of 

this clause. 

(6) In response to the written challenge 

notice, the Contractor shall— 

(i) Submit a written request showing the 

need for additional time to respond to the 

challenge notice. In such cases, the 

Contracting Officer will grant sufficient 

additional time to permit the response; or 

(ii) Submit a written response that seeks to 

justify an asserted restriction on technical 

data and computer software. This written 

response shall be considered a claim within 

the meaning of the Contract Disputes Act of 

1978 (41 U.S.C. 601, et seq.), and shall be 

certified in the form prescribed at 33.207 of 

the Federal Acquisition Regulation, 

regardless of dollar amount. 

(7) A Contractor receiving challenges to the 

same asserted restrictions from more than 

one Contracting Officer will notify each 

Contracting Officer of the other challenges 

and identify which Contracting Officer 

initiated the first in time unanswered 

challenge. The Contracting Officer initiating 

the first in time unanswered challenge after 

consultation with the Contractor and the 

other Contracting Officers, shall formulate 

and distribute a schedule that provides the 

Contractor a reasonable opportunity for 

responding to each challenge. 

(8) If the Contractor fails to respond to the 

Contracting Officer’s challenge notice, the 

Contracting Officer will issue a final decision 

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)(5)(ii) of this 

clause. Following issuance of the final 

decision, the Contracting Officer will comply 

with the procedures in paragraph (f) of this 

clause. 

(9) After receipt of the Contractor’s written 

response that seeks to justify the asserted 

restriction, the Contracting Officer will— 

(i) 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 shall promptly respond to the 

Contracting Officer’s request for additional 

supporting documentation; or 

(ii) Issue a final decision validating the 

asserted restriction. The decision shall state 

that the Government will continue to be 

bound by the restrictive marking; or 

(iii) Issue a final decision denying the 

validity of the asserted restriction and follow 

the procedures in paragraph (f) of this clause. 

(f) Contractor appeal. 

(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 (f)(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 to the 

Contracting Officer of an intent to file suit in 

an appropriate court; or 


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(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) Exception for urgent and compelling 

circumstances. 

(i) 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. 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. 

(ii) Notwithstanding paragraph (f)(1) of this 

clause, the Contractor agrees that the agency 

may access, use, modify, reproduce, release, 

perform, display, or disclose computer 

software or technical data as necessary to 

address the urgent and compelling 

circumstances. 

(iii) The Government agrees not to release 

or disclose Contractor’s restrictively marked 

technical data or computer software unless, 

prior to release or disclosure, the intended 

recipient is subject to the use and nondisclosure agreement at 227.7107–2 of the 

Defense Federal Acquisition Regulation 

Supplement (DFARS), or is a Government 

contractor receiving access to the technical 

data or computer software for performance of 

a Government contract that contains the 

clause at DFARS 252.227–7025, GovernmentFurnished Information Marked with 

Restrictive Legends. 

(g) 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 the technical 

data or computer software shall be cancelled, 

corrected or ignored; and 

(ii) If the restrictive markings are 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 restrictive markings and the 

fees and other expenses (as defined in 28 

U.S.C. 2412(d)(2)(A)) incurred by the 

Government in challenging the marking, 

unless special circumstances would make 

such payment unjust; or 

(2) Not sustained— 

(i) The Government shall continue to be 

bound by the restrictive markings; and 

(ii) 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 marking, if the challenge by 

the Government is found not to have been 

made in good faith. 

(h) Duration of right to challenge. The 

Government has the right to challenge the 

validity of any Contractor asserted 

restrictions on technical data or computer 

software delivered or to be delivered under 

a contract or otherwise provided to the 

Government in the performance of this 

contract. The Contracting Officer may 

exercise this right during the period within 

three (3) years of final payment on a contract 

or within three (3) years of delivery of the 

technical data or computer software to the 

Government, whichever is later. The 

Government may, however, challenge a 

restriction on the release, disclosure or use of 

technical data and computer software at any 

time if such technical data or computer 

software— 

(1) Is publicly available; 

(2) Has been furnished to the United States 

without restriction; or 

(3) Has been otherwise made available 

without restriction. 

(i) Decision not to challenge. A decision by 

the Government, or a determination by the 

Contracting Officer, to not challenge the 

restrictive marking or asserted restriction 

shall not constitute ‘‘validation.’’ Only a 

Contracting Officer’s final decision or an 

action of an agency Board of Contract 

Appeals or a court of competent jurisdiction 

that sustains the validity of an asserted 

restriction constitutes validation of the 

restriction. 

(j) Privity of contract. The Contractor agrees 

that the Contracting Officer may transact 

matters under this clause directly with 

subcontractors or suppliers at any tier that 

assert restrictive markings. However, neither 

this clause, nor any action taken by the 

Government under this clause, creates or 

implies privity of contract between the 

Government and subcontractors or suppliers 

for matters not covered by this clause. 

(k) Flowdown. The Contractor shall insert 

this clause, including this paragraph (k), in 

contractual instruments with its 

subcontractors requiring the delivery of 

technical data or computer software. 

(End of clause) 

42. Section 252.227–70YY is added to 

read as follows: 

252.227–70YY Government-furnished 

works marked with restrictive legends. 

As prescribed in 227.7204–2, use the 

following clause: 

GOVERNMENT-FURNISHED WORKS 

MARKED WITH RESTRICTIVE 

LEGENDS (DATE) 

(a) Definitions. As used in this clause— 

(1) Contractor includes the Contractor’s 

subcontractors or suppliers, or potential 

subcontractors or suppliers, at any tier. 

(2) Owner-Licensor means the person 

whose name appears in the restrictive legend 

or is otherwise identified as asserting 

restrictions on the access, use, modification, 

reproduction, release, performance, display, 

or disclosure of works. 

(3) Other terms are defined in the clause 

at DFARS 252.227–7021, Rights in Works— 

License. 

(b) Attachment. An attachment to the 

contract will identify— 

(1) The works that the Government intends 

to furnish to the Contractor with restrictions 

on access, use, modification, reproduction, 

release, performance, display, or disclosure; 

and 

(2) The specific conditions under which 

the Contractor is authorized to access, use, 

modify, reproduce, release, perform, display, 

or disclose the works. 

(c) Government-furnished works provided 

with restrictions. If the Government furnishes 

Government-furnished works, such works are 

subject to restrictions on access, use, 

modification, reproduction, release, 

performance, display, or disclosure as 

follows: 

(1) Government-furnished works marked 

with Government purpose rights legends. The 

Contractor shall access, use, modify, 

reproduce, release, perform, display, or 

disclose Government-furnished works 

marked with Government license rights 

legends for Government purposes only and 

shall not do so for any commercial purpose. 

The Contractor shall not, without the express 

written permission of the Owner-Licensor, 

release or disclose such Governmentfurnished works to, or allow access by, a 

person other than its subcontractors, 

suppliers, or prospective subcontractors or 

suppliers, who require the Governmentfurnished works to submit offers for, or 

perform, subcontracts or supplier obligations 

under this contract. The Contractor shall 

ensure compliance with paragraph (j) of this 

clause. 

(2) Government-furnished works marked 

with other restrictive legends, or otherwise 

subject to restrictions. The Contractor shall 

access, use, modify, reproduce, release, 

perform, display, or disclose Governmentfurnished works that are marked with other 

restrictive legends, or that are otherwise 

identified in the attachment as subject to 

restrictions, only as specified in the 

attachment to this contract. The Contractor 

shall ensure compliance with paragraph (j) of 

this clause. 

(d) Contractor procedures for safeguarding, 

use, and handling of Government-furnished 

works. Contractor shall adopt operating 

procedures and physical security measures 

sufficient to protect the Governmentfurnished works from unauthorized access, 

use, modification, reproduction, release, 

performance, display, or further disclosure. 

(e) Disclaimer of warranty. Unless 

specifically stated elsewhere in this contract, 


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the Government is providing the identified 

works to the recipient ‘‘as is’’ and free of all 

warranties and representations, including 

suitability for intended purpose. 

(f) The Contractor may enter into any 

agreement directly with the Owner-Licensor 

with respect to the access, use, modification, 

reproduction, release, performance, display, 

or disclosure of these works. 

(g) Indemnification and creation of third 

party beneficiary rights. The Contractor 

agrees— 

(1) 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 unauthorized 

access, use, modification, reproduction, 

release, performance, display, or disclosure 

of works received from the Government with 

restrictive legends by the Contractor or any 

person to whom the Contractor has released 

or disclosed such works; and 

(2) That the party whose name appears on 

the restrictive legend, in addition to any 

other rights it may have, is a third party 

beneficiary who has the right of direct action 

against the Contractor, or any person to 

whom the Contractor has released or 

disclosed the Government-furnished works, 

for the unauthorized access, use, 

modification, reproduction, release, 

performance, display, or disclosure of 

Government-furnished works subject to 

restrictive legends. 

(h) Disposition of Government-furnished 

works. Recipient agrees to destroy or return 

of all copies of the works released to the 

recipient within 30 days following the 

expiration of the use and non-disclosure 

agreement. 

(i) Survival of obligations. The obligations 

imposed by this clause shall survive the 

expiration or termination of this contract. 

(j) Applicability to subcontractors and 

suppliers and release or disclosure outside 

the Contractor’s organization. 

(1) The Contractor shall not release or 

disclose Government-furnished works to, or 

allow access by, any person outside the 

Contractor’s organization unless the intended 

recipient is— 

(i) Authorized to access or receive the 

Government-furnished works; and 

(ii) Subject to appropriate prohibitions on 

unauthorized access, use, modification, 

reproduction, release, performance, display, 

or disclosure, in accordance with paragraph 

(2) of this clause. 

(2) The Contractor shall use this same 

clause (including the restrictions contained 

in the Attachment specified at paragraph (b) 

of this clause) in the subcontract or other 

contractual instrument with an intended 

recipient who is a subcontractor or supplier, 

and require that subcontractor or supplier to 

do so, without alteration except to identify 

the parties, as follows: 

(i) References to the Government are not 

changed; and 

(ii) The intended recipient (subcontractor 

or supplier) has all rights and obligations of 

the Contractor in the clause. 

(End of clause) 

[FR Doc. 2010–22284 Filed 9–24–10; 8:45 am] 

BILLING CODE 5001–08–P 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2