ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

The Boeing Company ) ASBCA Nos. 61387, 61388

)

Under Contract No. F33657-01-D-0026 )

APPEARANCES FOR THE APPELLANT: Scott Felder, Esq.

Scott M. McCaleb, Esq.

Craig M. Smith, Esq.

 Wiley Rein LLP

 Washington, DC

APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.

 Deputy Chief Trial Attorney

David K. Stark, Esq.

Joel B. Lofgren, Esq.

 Trial Attorneys

ORDER OF DISMISSAL

The dispute has been settled. The Settlement Agreement of the parties is 

attached as an exhibit to this Order. The appeals are dismissed with prejudice.

Dated: December 6, 2022

I certify that the foregoing is a true copy of the Order of Dismissal of the Armed 

Services Board of Contract Appeals in ASBCA Nos. 61387, 61388, Appeal of The 

Boeing Company, rendered in conformance with the Board’s Charter.

Dated:

MICHAEL N. O’CONNELL

Administrative Judge

Armed Services Board

of Contract Appeals

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals
EXHIBIT 
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MUTUAL RELEASE AND SETTLEMENT AGREEMENT 

 This Mutual Release and Settlement Agreement (hereinafter “Agreement”) is entered into 

by the U.S. Department of the Air Force (hereinafter “the Air Force”) and The Boeing Company 

(hereinafter “Boeing” or “the Contractor,” and, collectively with the Air Force, the “Parties”), as 

of _____ November, 2022 (the “Effective Date”). 

 WHEREAS, in 2015, the Air Force awarded Boeing Delivery Order 0138 under Boeing’s 

Indefinite Delivery Indefinite Quantity Eagle TALON Contract No. F33657-01-D-0026 for the 

Technology Maturation and Risk Reduction phase of the Air Force’s F-15 Eagle Passive Active 

Warning Survivability System (“EPAWSS”) program (the “TMRR Contract”); 

 WHEREAS, in 2016, the Air Force awarded Boeing a separate contract, Contract No. 

FA8634-17-C-2650, for the follow-on Engineering and Manufacturing Development phase of 

the EPAWSS program to modify existing F-15 aircraft to ensure compatibility with the new 

EPAWSS system (“the EMD Contract,” and, together with the TMRR Contract, the “EPAWSS 

Contracts”); 

 WHEREAS, Boeing submitted numerous non-commercial technical data deliverables to 

the Air Force under the EPAWSS Contracts with unlimited rights (the “EPAWSS Technical 

Data”); 

WHEREAS, Boeing marked the EPAWSS Technical Data with a proprietary marking to 

put third parties on notice that Boeing retained rights in the EPAWSS Technical Data (the 

“Disputed Legend”); 

 WHEREAS, on July 31, 2017, the Air Force issued a Contracting Officer’s Final 

Decision (“COFD”) for each of the EPAWSS Contracts, directing the removal of the Disputed 

Legend under DFARS 252.227-7013, RIGHTS IN TECHNICAL DATA—NONCOMMERCIAL ITEMS 

(NOV 1995), on the basis that the Disputed Legend was a nonconforming legend; 

 WHEREAS, Boeing appealed both COFDs to the Armed Services Board of Contract 

Appeals (the “Board”), designated as Appeal Nos. 61387 and 61388 (the “Appeals”); 

 WHEREAS, Boeing requested entry of summary judgment on the question of whether 

Boeing may mark technical data in which it has given the Government unlimited rights with the 

Disputed Legend, which Boeing argued restricts the rights of third parties to use those data but 

expressly recognizes—and in no way impairs—the Government’s unlimited rights in those data; 

 WHEREAS, the Air Force opposed summary judgment arguing: (1) the Disputed Legend 

does impede the Air Force’s unlimited rights to the technical data; (2) allowing contractors to 

mark technical data with non-authorized technical data rights legends adds unnecessary 

confusion and uncertainty; (3) it is undisputed that Boeing has chosen to use a legend that is not 

one of the authorized legends in the Defense Federal Acquisition Regulation Supplement 

(“DFARS”); and (4) Boeing’s concerns about other intellectual property rights that might be 

implicated are unrelated to the dispute at issue; 

WHEREAS, on November 29, 2018, the Board denied Boeing’s motion for summary 

judgment, holding that the markings in DFARS 252.227-7013(f) “are the only permissible 

legends for limiting data rights and no other data rights legends are allowed[;]” 

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WHEREAS, on March 18, 2019, the Board entered a final decision denying Boeing’s 

appeals; 

 WHEREAS, Boeing appealed the denial of summary judgment and ensuing final decision 

to the Federal Circuit; 

 WHEREAS, on December 21, 2020, the Federal Circuit issued a decision reversing the 

Board’s denial of summary judgment, vacating the final decision denying Boeing’s appeals, and 

remanding to the Board for further proceedings in the Appeals; 

 WHEREAS, one issue remanded to the Board was whether the Disputed Legend does or 

does not restrict the Government’s rights; and 

 WHEREAS, the Parties, to avoid the delay, expense, and uncertainty of further litigation, 

desire to settle the Appeals upon the terms and conditions set forth in this Agreement. 

 NOW, THEREFORE, in consideration of the mutual promises and agreements of the 

Parties hereto, each to the other, and other valuable consideration, the receipt and sufficiency of 

which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as 

follows: 

1. The Air Force agrees that, for the purpose of compromise, the following legend is 

acceptable for and may be affixed to the non-commercial technical data delivered under the 

EPAWSS Contracts, including the current Contract No. FA8634-21-C-2702, with unlimited 

rights to notify third parties of Boeing’s continuing ownership of such deliverables (the 

“Permissible Third-Party Legend”): 

THE DATA HEREIN ARE NONCOMMERCIAL TECHNICAL DATA DELIVERED TO THE 

U.S. GOVERNMENT WITH UNLIMITED RIGHTS 

Contract No. 

Contractor Name The Boeing Company 

Contractor Address 

© [YYYY] Boeing. The technical data herein are owned by The Boeing Company. The U.S. 

Government authorizes non-U.S. Government recipients of these data to use these data for the 

performance of U.S. Government contracts or subcontracts. Any other third-party use of these 

data requires permission from the U.S. Government or The Boeing Company. 

2. Except for the situation described below, Boeing shall be permitted, but not required, 

to remark previously delivered EPAWSS Technical Data by substituting the Permissible ThirdParty Legend for the Disputed Legend. Regardless of whether or not Boeing remarks the 

previously delivered EPAWSS Technical Data, for the purposes of compromise, the Government 

shall accept all EPAWSS Technical Data that were rejected solely on the grounds that the data 

contained the Disputed Legend. In consideration of this acceptance, Boeing agrees that (a) the 

Air Force may attach the Permissible Cover Page (Attachment 1) to such rejected deliverables in 

its possession and (b) to the extent Boeing re-delivers the rejected deliverables, it will attach the 

Permissible Cover Page thereto. 

2a. If any previously delivered EPAWSS Technical Data, or portion, is updated and 

redelivered to the Government by Boeing and is marked with a Disputed Legend, Boeing shall 

remark the data with the Permissible Third-Party Legend in lieu of the Disputed Legend. Boeing 
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shall not affix the Disputed Legend to any newly delivered or redelivered EPAWSS Technical 

Data. 

3. Boeing agrees that the Permissible Third-Party Legend does not limit in any way the 

Government’s ability to fully exercise its unlimited rights “in any manner, and for any purpose 

whatsoever, and to have or authorize others to do so.” Boeing agrees the Government’s full 

exercise of its rights includes the right to retroactively grant permission to use. 

4. To minimize further disagreements on this subject between the Parties and to improve 

consistency of markings, the Parties agree to consider use of the Permissible Third-Party Legend 

for non-commercial, unlimited rights technical data delivered under other contracts between the 

Parties. The Parties recognize that the Permissible Third-Party Legend may not be appropriate 

for all non-commercial technical data delivered or furnished with unlimited rights. The Parties 

will determine on a case-by-case basis whether the Permissible Third-Party Legend is 

appropriate given the nature of the data, the intended use(s) of the data, the intended 

dissemination of the data, other pre-existing agreements between the Parties regarding technical 

data markings, and any other appropriate considerations to include changes in law, regulations, 

or policy. As such, nothing herein shall be construed to require Boeing to apply the Permissible 

Third-Party Legend to any technical data deliverables under any other contracts between the 

Parties; rather, the Parties shall memorialize any future agreement to use the Permissible ThirdParty Legend beyond the EPAWSS Contracts in one or more separate documents. 

5. For the convenience of the Parties, they will jointly request that the Board publish this 

Agreement as an addendum to its dismissal order to effectuate its dissemination to the public. In 

no event, shall this paragraph create any monetary liabilities for the Government, or any of its 

departments, agencies, or instrumentalities. 

6. For the purposes of this settlement, the Air Force takes no position on whether the 

Permissible Third-Party Legend does, or does not, preserve any proprietary or trade secret 

interests that Boeing might have, if any, in the underlying technical data. The Air Force also 

takes no position on whether the Permissible Third-Party Legend does, or does not, create thirdparty liability under DFARS 252.227-7025(c)(2) or other legal theories. The Air Force reserves 

the right to adopt or take such positions in the future. 

7. The Government shall have the unilateral right, without any duty of providing notice, 

to remove or strikethrough the Permissible Third-Party Legend in the event the Government 

authorizes the underlying data for release to the public. 

8. The Government shall reproduce the Permissible Third-Party Legend along with 

reproductions of the underlying technical data, except where such reproduction is impractical or 

would cause confusion. However, in no event, shall any failure to reproduce, in whole or in part, 

the Permissible Third-Party Legend create any liabilities for the Government, or any of its 

departments, agencies, or instrumentalities. Additionally, Boeing releases the Government and 

agrees that it shall not bring any causes of action against the Government, or any of its 

departments, agencies, or instrumentalities, from any claim or allegation that the Permissible 

Third-Party Legend constitutes or contains copyright management information. 

 9. Except with regard to actions to enforce this Settlement Agreement, the Air Force 

hereby releases, acquits, forever discharges, and covenants not to sue Boeing, its affiliates, and 

their respective predecessors, successors, agents, resellers, attorneys, employees, officers, 
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directors, shareholders, and assigns, past and present, from any and all actions, causes of action, 

claims, demands, losses, expenses, damages, attorneys’ fees, costs, judgments, orders, and 

liabilities of whatever kind or nature, in law or equity or otherwise, and any other form of claim 

or compensation, in any way arising out of or relating to the application of the Disputed Legend 

to the EPAWSS Technical Data. For clarity, this release does not relieve Boeing of any duty 

related to subject inventions, including the duty to disclose subject inventions, that are described 

in the underlying technical data. 

 10. Except with regard to actions to enforce this Settlement Agreement, Boeing, on 

behalf of itself, its affiliates, and their respective predecessors, successors, agents, resellers, 

attorneys, employees, officers, directors, shareholders, and assigns, past and present, hereby 

releases, acquits, forever discharges, and covenants not to sue the Government, or any of its 

departments, agencies, or instrumentalities, from any and all actions, causes of action, claims, 

demands, losses, expenses, damages, attorneys’ fees, costs, judgments, orders, and liabilities of 

whatever kind or nature, in law or equity or otherwise, and any other form of claim or 

compensation, in any way arising out of or relating to the application of the Disputed Legend to 

the EPAWSS Technical Data. 

 11. Nothing in this Agreement shall be construed to limit or interfere with (i) the right of 

any person to make a communication protected by law or regulation; or (ii) the right of the 

United States Department of Justice to investigate, bring suit, or prosecute violations of those 

United States laws as to which only the Department of Justice has authority to investigate, bring 

suit, prosecute, or release offenses. 

 12. Within 60 calendar days of execution of this Agreement, the Parties shall, by their 

counsel, execute and cause to be filed a stipulation requesting dismissal of the Appeals with 

prejudice. Additionally, the Parties’ stipulation will jointly request that the Board publish this 

Agreement as an addendum to its dismissal order to effectuate its dissemination to the public. 

The Parties agree that nothing in this agreement is proprietary or otherwise would prevent the 

public release of this Agreement. 

 13. Each Party shall be responsible for its own attorneys’ fees and costs in connection 

with this Agreement and the Appeals. 

 14. The signatories below represent and warrant that they each have the capacity, power, 

authority, and authorization to enter into this Agreement for the Parties hereto. This Agreement 

is a valid and legally-binding obligation of the Parties and is fully enforceable against the Parties 

in accordance with its terms. 

 15. This Agreement contains the entire agreement and understanding between the Parties 

concerning the subject matter herein and supersedes and replaces all prior claims, settlement 

negotiations, and agreements, written or oral, concerning that subject matter. All matters and 

issues raised by the parties are merged into and resolved by this Agreement. 

 16. This Agreement shall be binding upon the Parties and may not be released, 

discharged, abandoned, supplemented, amended, changed, or modified in any manner, orally or 

otherwise, except by an instrument in writing of concurrent or subsequent date signed by a dulyauthorized representative of each of the Parties hereto. This Agreement is binding upon and 

shall inure to the benefit of the Parties and their respective affiliates, successors, and assigns. 

Attachment 1 

In accordance with the Mutual Release and Settlement Agreement entered into on 

____ November, 2022 under Contract No. FA8634-17-C-2650, the Government has Unlimited 

Rights to the data herein and any conflicting legend on the data is superseded by this legend. 

THE DATA HEREIN ARE NONCOMMERCIAL TECHNICAL DATA DELIVERED TO THE 

U.S. GOVERNMENT WITH UNLIMITED RIGHTS 

Contract No. 

Contractor Name The Boeing Company 

Contractor Address 

© [YYYY] Boeing. The technical data herein are owned by The Boeing Company. The U.S. 

Government authorizes non-U.S. Government recipients of these data to use these data for the 

performance of U.S. Government contracts or subcontracts. Any other third-party use of these 

data requires permission from the U.S. Government or The Boeing Company. 

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