### 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 appeal s 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

# EXHIBIT1 of 5 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 C ontractor,” and, collectively with th e 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 Forc e’s F-15 Eagle Passive Active Warning Survivability System (“EPAWSS”) program (the “TMRR Contract”);

WHEREAS, in 2016, the Air Force awarded Bo eing a separate contract, Contract No. FA8634-17-C-2650, for the follow-on Engineering a nd 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, toge ther with the TMRR Contract, the “EPAWSS Contracts”);

WHEREAS, Boeing submitted numerous non-co mmercial technical da ta deliverables to

the Air Force under the EPAWSS Contracts w ith 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 Cont racts, directing the removal of the Disputed Legend under DFARS 252.227-7013, R IGHTS IN T ECHNICAL D ATA —N ONCOMMERCIAL I TEMS (N OV 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 su mmary 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 ju dgment 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 ri ghts 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 Defe nse Federal Acquisition Regulation Supplement (“DFARS”); and (4) Boeing’s concerns about othe r 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[;]” 172 of 5 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 Ci rcuit issued a decision reversing the Board’s denial of summary judgment, vacating th e 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 a nd 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, th e Parties, intending to be legally bound, hereby agree as

follows:

1. The Air Force agrees that, for the purpos e of compromise, the following legend is acceptable for and may be affixed to the non-co mmercial 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 c ontinuing 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 ar e owned by The Boeing Company. The U.S. Government authorizes non-U.S. Government recipi ents of these data to use these data for the performance of U.S. Government contracts or subc ontracts. 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. Regardle ss of whether or not Boeing remarks the previously delivered EPAWSS Technical Data, fo r 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 EP AWSS Technical Data, or portion, is updated and

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

remark the data with the Permi ssible Third-Party Legend in lieu of the Disputed Legend. Boeing3 of 5 shall not affix the Disputed Legend to any ne wly 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 Pa rties and to improve consistency of markings, the Parties agree to c onsider 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 Permi ssible Third-Party Legend may not be appropriate

for all non-commercial technical da ta delivered or furnished w ith 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 agr eements between the Parties regarding technical data markings, and any other appr opriate considerations to include changes in law, regulations, or policy. As such, nothing here in shall be construed to require Boeing to apply the Permissible Third-Party Legend to any technical data deliv erables under any other contracts between theParties; 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 w ill 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 doe s, or does not, preserve any proprietary or trade secret interests that Boeing might have, if any, in th e 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 Th ird-Party Legend in the event the Government authorizes the underlying data for release to the public.

8. The Government shall reproduce the Per missible Third-Party Legend along with reproductions of the underlying te chnical 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 constitute s 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,4 of 5 directors, shareholders, and assi gns, 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 re lating to the application of the Disputed Legend to the EPAWSS Technical Data. For clarity, th is release does not relieve Boeing of any duty related to subject inventions, including the duty to disclose subject inven tions, that are described in the underlying technical data.

10. Except with regard to actions to en force this Settlement Agreement, Boeing, on behalf of itself, its affiliates, and their respective predecessors, successors, agents, resellers, attorneys, employees, officers, directors, share holders, and assigns, past and present, hereby releases, acquits, forever discharges, and covena nts not to sue the Government, or any of its departments, agencies, or inst rumentalities, from any and all ac tions, 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 relatin g to the application of the Disputed Legend to

the EPAWSS Technical Data.

11. Nothing in this Agreement shall be constr ued 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 investigat e, 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 th is Agreement, the Parties shall, by their counsel, execute and cause to be filed a stipul ation requesting dismissa l of the Appeals with prejudice. Additionally, the Par ties’ stipulation will jointly request that the Board publish this Agreement as an addendum to its dismissal orde r to effectuate its dissemination to the public. The Parties agree that nothing in this agreemen t 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 ag reement and understanding between the Parties concerning the subject matter herein and supe rsedes 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, supplemente d, amended, changed, or modified in any manner, orally orotherwise, except by an instrument in writing of concurrent or subsequent date signed by a dulyauthorized representative of each of the Partie s 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 a nd Settlement Agreement entered into on ____ November, 2022 under Contract No. FA 8634-17-C-2650, the Government has Unlimited Rights to the data herein and any conflicting lege nd 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 ar e owned by The Boeing Company. The U.S. Government authorizes non-U.S. Government recipi ents of these data to use these data for the performance of U.S. Government contracts or subc ontracts. Any other third-party use of these data requires permission from the U.S. Government or The Boeing Company.

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