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10 U.S.C. § 3762 (ARMED FORCES)
§ 3762. Independent research and development costs: allowable costs
(a) Regulations.—
The Secretary of Defense shall prescribe regulations governing the payment by the Department of Defense of expenses incurred by contractors for independent research and development costs. Such regulations shall provide that expenses incurred for independent research and development shall be reported independently from other allowable indirect costs.
(b) Costs Treated as Fair and Reasonable, and Allowable, Expenses.—
The regulations prescribed under subsection (a) shall provide that independent research and development costs shall be considered a fair and reasonable, and allowable, indirect expense on Department of Defense contracts.
(c) Additional Controls.—
Subject to subsection (d), the regulations prescribed under subsection (a) may include the following provisions:
(1) Controls on the reimbursement of costs to the contractor for expenses incurred for independent research and development to ensure that such costs were incurred for independent research and development.
(2) Implementation of regular methods for transmission—
(A) from the Department of Defense to contractors, in a reasonable manner, of timely and comprehensive information regarding planned or expected needs of the Department of Defense for future technology and advanced capability; and
(B) from contractors to the Department of Defense, in a reasonable manner, of information regarding progress by the contractor on the independent research and development programs of the contractor.
(d) Limitations on Regulations.—
Regulations prescribed under subsection (a) may not include provisions that would infringe on the independence of a contractor to choose which technologies to pursue in its independent research and development program if the chief executive officer of the contractor determines that expenditures will advance the needs of the Department of Defense for future technology and advanced capability as transmitted pursuant to subsection (c)(2)(A).
(e) Effective Date.—
The regulations prescribed under subsection (a) shall apply to indirect costs incurred on or after October 1, 2017.
10 U.S.C. § 3763 (ARMED FORCES)
§ 3763. Bid and proposal costs: allowable costs
(a) Regulations.—
The Secretary of Defense shall prescribe regulations governing the payment by the Department of Defense of expenses incurred by contractors for bid and proposal costs. Such regulations shall provide that expenses incurred for bid and proposal costs shall be reported independently from other allowable indirect costs.
(b) Costs Allowable as Indirect Expenses.—
The regulations prescribed under subsection (a) shall provide that bid and proposal costs shall be allowable as indirect expenses on covered contracts, as defined in section 3741 of this title, to the extent that those costs are allocable, reasonable, and not otherwise unallowable by law or under the Federal Acquisition Regulation.
(c) Goal for Reimbursable Bid and Proposal Costs.—
The Secretary shall establish a goal each fiscal year limiting the amount of reimbursable bid and proposal costs paid by the Department of Defense to an amount equal to not more than one percent of the total aggregate industry sales to the Department of Defense. To achieve such goal, the Secretary may not limit the payment of allowable bid and proposal costs for the covered year.
(d) Panel.—
(1) If the Department of Defense exceeds the goal established under subsection (c) for a fiscal year, within 180 days after exceeding the goal, the Secretary shall establish an advisory panel. The panel shall be supported by the Defense Acquisition University and the National Defense University, including administrative support.
(2) The panel shall be composed of nine individuals who are recognized experts in acquisition and procurement policy appointed by the Secretary. In making such appointments, the Secretary shall ensure that the members of the panel reflect diverse experiences in the public and private sector.
(3) The panel shall review laws, regulations, and practices that contribute to the expenses incurred by contractors for bids and proposals in the fiscal year concerned and recommend changes to such laws, regulations, and practices that may reduce expenses incurred by contractors for bids and proposals.
(4)
(A) Not later than six months after the establishment of the panel, the panel shall submit to the Secretary and the congressional defense committees an interim report on the findings of the panel.
(B) Not later than one year after the establishment of the panel, the panel shall submit to the Secretary and the congressional defense committees a final report on the findings of the panel.
(5) The panel shall terminate on the day the panel submits the final report under paragraph (4)(B).
(6) The Secretary of Defense may use amounts available in the Department of Defense Acquisition Workforce Development Fund established under section 1705 of this title to support the activities of the panel established under this subsection.
(e) Effective Date.—
The regulations prescribed under subsection (a) shall apply to indirect costs incurred on or after October 1, 2017.
10 U.S.C. § 3773 (ARMED FORCES)
§ 3773. Domestic business concerns: programs for replenishment parts
The Secretary of Defense shall by regulation establish programs which provide domestic business concerns an opportunity to purchase or borrow replenishment parts from the United States for the purpose of design replication or modification, to be used by such concerns in the submission of subsequent offers to sell the same or like parts to the United States. Nothing in this section limits the authority of the head of an agency to impose restrictions on such a program related to national security considerations, inventory needs of the United States, the improbability of future purchases of the same or like parts, or any additional restriction otherwise required by law.
10 U.S.C. § 3774 (ARMED FORCES)
§ 3774. Major weapon systems and subsystems: long-term technical data needs
(a) Assessments and Acquisitions Strategies.—
(1) The Secretary of Defense shall require program managers for major weapon systems and subsystems of major weapon systems to—
(A) assess the long-term technical data needs of such systems and subsystems; and
(B) establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle.
(2) Such strategies may include—
(A) the development of maintenance capabilities within the Department of Defense; or
(B) competition for contracts for sustainment of such systems or subsystems.
(b) Requirements Relating to Assessments and Acquisition Strategies.—
Assessments and corresponding acquisition strategies developed under subsection (a) with respect to a weapon system or subsystem shall—
(1) be developed before issuance of a contract solicitation for the weapon system or subsystem;
(2) address the merits of including a priced contract option for the future delivery of technical data that were not acquired upon initial contract award;
(3) address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and
(4) apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapons systems and subsystems that are to be supported by other sustainment approaches.
(c) Preference for Specially Negotiated Licenses.—
(1) The Secretary of Defense shall, to the maximum extent practicable, negotiate and enter into a contract with a contractor for a specially negotiated license for technical data to support the product support strategy of a major weapon system or subsystem of a major weapon system.
(2) In performing the assessment and developing the corresponding strategy required under subsection (a) for such a system or subsystem, a program manager shall consider the use of specially negotiated licenses to acquire customized technical data appropriate for the particular elements of the product support strategy.
10 U.S.C. § 3775 (ARMED FORCES)
§ 3775. Definitions
(a) Covered Government Support Contractor Defined.—
In this subchapter, the term “covered Government support contractor” means a contractor under a contract the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), which contractor—
(1) is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and
(2) executes a contract with the Government agreeing to and acknowledging—
(A) that proprietary or nonpublic technical data furnished will be accessed and used only for the purposes stated in that contract;
(B) that the covered Government support contractor will enter into a non-disclosure agreement with the contractor to whom the rights to the technical data belong;
(C) that the covered Government support contractor will take all reasonable steps to protect the proprietary and nonpublic nature of the technical data furnished to the covered Government support contractor during the program or effort for the period of time in which the Government is restricted from disclosing the technical data outside of the Government;
(D) that a breach of that contract by the covered Government support contractor with regard to a third party’s ownership or rights in such technical data may subject the covered Government support contractor—
(i) to criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and
(ii) to civil actions for damages and other appropriate remedies by the contractor or subcontractor whose technical data is affected by the breach; and
(E) that such technical data provided to the covered Government support contractor under the authority of this section shall not be used by the covered Government support contractor to compete against the third party for Government or non-Government contracts.
(b) Additional Definitions.—
In this subchapter, the terms “major system component”, “modular system interface”, and “modular open system approach” have the meanings provided in section 4401 of this title.
10 U.S.C. § 3781 (ARMED FORCES)
§ 3781. Technical data: contractor justification for restrictions; review of restrictions
(a) Contracts Covered by Subchapter.—
This subchapter applies to any contract for supplies or services entered into by the Department of Defense that includes provisions for the delivery of technical data.
(b) Contractor Justification for Restrictions.—
A contract subject to this subchapter shall provide that a contractor under the contract and any subcontractor under the contract at any tier shall be prepared to furnish to the contracting officer a written justification for any use or release restriction (as defined in section 3786 of this title) asserted by the contractor or subcontractor.
(c) Review of Restrictions.—
(1) The Secretary of Defense shall ensure that there is a thorough review of the appropriateness of any use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter.
(2) The review of an asserted use or release restriction under paragraph (1) shall be conducted before the end of the three-year period beginning on the later of—
(A) the date on which final payment is made on the contract under which the technical data is required to be delivered; or
(B) the date on which the technical data is delivered under the contract.
10 U.S.C. § 3782 (ARMED FORCES)
§ 3782. Technical data: challenges to contractor restrictions
(a) Challenges by Secretary of Defense.—
The Secretary of Defense may challenge a use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter if the Secretary finds that—
(1) reasonable grounds exist to question the current validity of the asserted restriction; and
(2) the continued adherence by the United States to the asserted restriction would make it impracticable to procure the item to which the technical data pertain competitively at a later time.
(b) Time Limit for Challenges; Exceptions.—
(1) A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under subsection (a) after the end of the six-year period described in paragraph (2) unless the technical data involved—
(A) are publicly available;
(B) have been furnished to the United States without restriction;
(C) have been otherwise made available without restriction; or
(D) are the subject of a fraudulently asserted use or release restriction.
(2) The six-year period referred to in paragraph (1) is the six-year period beginning on the later of—
(A) the date on which final payment is made on the contract under which the technical data are required to be delivered; or
(B) the date on which the technical data are delivered under the contract.
(c) Written Notice to Contractor or Subcontractor.—
If the Secretary challenges an asserted use or release restriction under subsection (a), the Secretary shall provide written notice of the challenge to the contractor or subcontractor asserting the restriction. Any such notice shall—
(1) state the specific grounds for challenging the asserted restriction;
(2) require a response within 60 days justifying the current validity of the asserted restriction; and
(3) state that evidence of a justification described in subsection (d) may be submitted.
(d) Justification.—
It is a justification of an asserted use or release restriction challenged under subsection (a) that, within the three-year period preceding the challenge to the restriction, the Department of Defense validated a restriction identical to the asserted restriction if—
(1) such validation occurred after a challenge to the validated restriction under this section; and
(2) the validated restriction was asserted by the same contractor or subcontractor (or a licensee of such contractor or subcontractor).
10 U.S.C. § 3783 (ARMED FORCES)
§ 3783. Technical data: time for contractors to submit justifications
(a) Additional Time to Submit Justifications.—
If a contractor or subcontractor asserting a use or release restriction submits to the contracting officer a written request, showing the need for additional time to comply with the requirement to justify the current validity of the asserted restriction, additional time to adequately permit the submission of such justification shall be provided by the contracting officer as appropriate.
(b) Multiple Challenges; Schedule of Responses.—
If a party asserting a restriction receives notices of challenges to restrictions on technical data from more than one contracting officer, and notifies each contracting officer of the existence of more than one challenge, the contracting officer initiating the first in time challenge, after consultation with the party asserting the restriction and the other contracting officers, shall formulate a schedule of responses to each of the challenges that will afford the party asserting the restriction with an equitable opportunity to respond to each such challenge.
10 U.S.C. § 3784 (ARMED FORCES)
§ 3784. Technical data under contracts for commercial items: presumption of development exclusively at private expense
In the case of a challenge to a use or release restriction that is asserted with respect to technical data of a contractor or subcontractor under a contract for commercial products, the contracting officer shall presume that the contractor or subcontractor has justified the restriction on the basis that commercial products was 1 developed exclusively at private expense, whether or not the contractor or subcontractor submits a justification in response to the notice provided pursuant to section 3782(c) of this title. In such a case, the challenge to the use or release restriction may be sustained only if information provided by the Department of Defense demonstrates that commercial products was 1 not developed exclusively at private expense.
10 U.S.C. § 3785 (ARMED FORCES)
§ 3785. Technical data: decision by contracting officer; claims; rights and liability upon final disposition
(a) Decision by Contracting Officer.—
(1) Upon failure 1 by the contractor or subcontractor to submit any response under section 3782(c) of this title, the contracting officer shall issue a decision pertaining to the validity of the asserted restriction.
(2) After review of any justification submitted in response to the notice provided pursuant to section 3782(c) of this title, the contracting officer shall, within 60 days of receipt of any justification submitted, issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.
(b) Claims.—
If a claim pertaining to the validity of the asserted restriction is submitted in writing to a contracting officer by a contractor or subcontractor at any tier, such claim shall be considered a claim within the meaning of chapter 71 of title 41.
(c) Rights and Liability Upon Final Disposition.—
(1) If, upon final disposition, the contracting officer’s challenge to the use or release restriction is sustained—
(A) the restriction shall be cancelled; and
(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor asserting the restriction shall be liable to the United States for payment of the cost to the United States of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the United States in challenging the asserted restriction, unless special circumstances would make such payment unjust.
(2) If, upon final disposition, the contracting officer’s challenge to the use or release restriction is not sustained—
(A) the United States shall continue to be bound by the restriction; and
(B) the United States shall be liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the United States is found not to be made in good faith.
10 U.S.C. § 3786 (ARMED FORCES)
§ 3786. Use or release restriction: definition
In this subchapter, the term “use or release restriction”, with respect to technical data delivered to the United States under a contract subject to this section, means a restriction by the contractor or subcontractor on the right of the United States—
(1) to use such technical data; or
(2) to release or disclose such technical data to persons outside the Government or permit the use of such technical data by persons outside the Government.
10 U.S.C. § 3791 (ARMED FORCES)
§ 3791. Management of intellectual property matters within the department of defense 1
(a) Policy Required.—
The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall develop policy on the acquisition or licensing of intellectual property—
(1) to enable coordination and consistency across the military departments and the Department of Defense in strategies for acquiring or licensing intellectual property and communicating with industry;
(2) to ensure that program managers are aware of the rights afforded the Federal Government and contractors in intellectual property and that program managers fully consider and use all available techniques and best practices for acquiring or licensing intellectual property early in the acquisition process; and
(3) to encourage customized intellectual property strategies for each system based on, at a minimum, the unique characteristics of the system and its components, the product support strategy for the system, the organic industrial base strategy of the military department concerned, and the commercial market.
(b) Cadre of Intellectual Property Experts.—
For a provision requiring establishment of a cadre of personnel who are experts in intellectual property matters, see section 1707 of this title.
10 U.S.C. § 3793 (ARMED FORCES)
§ 3793. Copyrights, patents, designs, etc.; acquisition
Funds appropriated for a military department available for making or procuring supplies may be used to acquire any of the following if the acquisition relates to supplies or processes produced or used by or for, or useful to, that department:
(1) Copyrights, patents, and applications for patents.
(2) Licenses under copyrights, patents, and applications for patents.
(3) Design and process data, technical data, and computer software.
(4) Releases for past infringement of patents or copyrights or for unauthorized use of technical data or computer software.
10 U.S.C. § 3794 (ARMED FORCES)
§ 3794. Release of technical data under Freedom of Information Act: recovery of costs
(a) In General.—
(1) The Secretary of Defense shall, if required to release technical data under section 552 of title 5 (relating to the Freedom of Information Act), release such technical data to the person requesting the release if the person pays all reasonable costs attributable to search, duplication, and review.
(2) The Secretary of Defense shall prescribe regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees under this section.
(b) Crediting of Receipts.—
An amount received under this section—
(1) shall be retained by the Department of Defense or the element of the Department of Defense receiving the amount; and
(2) shall be merged with and available for the same purpose and the same time period as the appropriation from which the costs incurred in complying with requests for technical data were paid.
(c) Waiver.—
The Secretary of Defense shall waive the payment of costs required by subsection (a) which are in an amount greater than the costs that would be required for such a release of information under section 552 of title 5 if—
(1) the request is made by a citizen of the United States or a United States corporation, and such citizen or corporation certifies that the technical data requested is required to enable such citizen or corporation to submit an offer or determine whether it is capable of submitting an offer to provide the product to which the technical data relates to the United States or a contractor with the United States (except that the Secretary may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the request, to be refunded upon submission of an offer by the citizen or corporation);
(2) the release of technical data is requested in order to comply with the terms of an international agreement; or
(3) the Secretary determines, in accordance with section 552(a)(4)(A)(iii) of title 5, that such a waiver is in the interests of the United States.