[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Unknown Section]
[Pages 58144-58149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23956]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227, and 252
RIN 0750-AF84
Defense Federal Acquisition Regulation Supplement; Presumption of
Development Exclusively at Private Expense (DFARS Case 2007-D003)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement to implement sections of the Fiscal
Year (FY) 2007 and 2008 National Defense Authorization Act, including
special requirements and procedures related to the validation of a
contractor's or subcontractor's asserted restrictions on technical data
and computer software.
DATES: Effective date: September 20, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, 703-602-8383.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement section 802(b) of the FY 2007 National
Defense Authorization Act (NDAA) (Pub. L. 109-364) and section 815 of
the FY 2008 NDAA (Pub. L. 110-181). Section 802(b) modified 10 U.S.C.
2321(f)(2) with regard to the presumption of development at private
expense for major systems. Section 815 revised 10 U.S.C. 2321(f)(2) to
exempt commercially available off-the-shelf items from the requirements
that section 802(b) established for major systems.
This final rule implements special requirements and procedures
related to the validation of a contractor's or subcontractor's asserted
restrictions on technical data and computer software. More
specifically, the final rule affects these validation procedures in the
context of two special categories of items: Commercial items (including
commercially available off-the-shelf items), which may be referred to
as the ``Commercial Rule;'' and major systems (including subsystems and
components of major systems), which may be referred to as the ``Major
Systems Rule.''
DoD published a proposed rule with a request for comments in the
Federal Register on May 7, 2010 (75 FR 25161). Two respondents provided
comments.
II. Discussion and Analysis of the Public Comments
A discussion of the comments and the changes made to the rule as a
result of those comments are provided as follows.
A. Prescribing a Noncommercial Clause for Technical Data Related to a
Commercial Item
Comment: Two respondents described the prescriptions at DFARS
227.7102-3(b) and 227.7103-6(a) as new requirements that exceed the
changes necessary to implement the statute.
Response: The operative elements of the clause prescription at
DFARS 227.7102-3(b) were a part of the last major revision of Part 227
in 1995. The substance of the prescription has not changed in the
proposed rule; the requirement was redesignated as DFARS 227.7102-
(4)(b) and revised to cross-reference the prescription added to DFARS
227.7103-6(a). This follows DFARS drafting principles to use only a
single prescription for each clause, using cross-references when
necessary. As such, the prescription at DFARS 227.7103-6(a) serves as
the primary source for prescribing all uses of the clause at DFARS
252.227-7013, with a cross-reference at 227.7102-(4)(b).
Comment: A respondent recommended that the criteria ``or will pay
any portion of the development costs'' should be eliminated because the
Government should not receive the benefit of something it may or may
not pay for in the future outside of the contract.
Response: The ``will pay'' criterion has been used since 1995. The
term ``will'' is used to denote an anticipated future action or result,
and there is no evidence that this criterion has been or should be
interpreted as seeking to be used in a contract when the criteria used
to invoke the clause has not, and is not, expected to occur during the
contract.
[[Page 58145]]
Comment: Two respondents outlined specific concerns that
prescribing use of the noncommercial clause for technical data related
to a commercial item is unnecessarily burdensome with regard to the
noncommercial marking requirements. One respondent argued that this
could result in the contractor unintentionally forfeiting its
intellectual property rights by delivering with commercial markings
that do not comply with the DFARS noncommercial marking requirements.
Response: The prescription for the use of the clause at DFARS
252.227-7013 in this scenario already exists. Use of commercial
restrictive markings would not directly result in the forfeiture of the
contractor's intellectual property rights in cases in which the
noncommercial marking rules were used. The restrictive marking required
by the clause at DFARS 252.227-7015(d) for technical data related to
commercial items should be sufficient to: (1) Preserve the contractor's
rights under the noncommercial clause procedures for correcting
``nonconforming'' markings (see DFARS 252.227-7013(h)(1)) or (2)
validate asserted restrictions under DFARS 252.227-7037, which is used
regardless of whether the clauses at DFARS 252.227-7013 or 252.227-7015
are included.
The final rule is amended to address concerns about the
desirability of requiring noncommercial markings for the entire
technical data package, in cases where the Government may have funded
only a small portion of the development. The final rule revises the
prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a), to clarify that
in cases when the Government ``will have paid'' for any portion of the
development of a commercial item, both the commercial clause at DFARS
252.227-7015 and the noncommercial clause at DFARS 252.227-7013 should
be used together. In these cases, the noncommercial clause will apply
only to the technical data related to those portions of the commercial
item that were developed in some part at Government expense, and the
commercial clause will remain applicable to the rest of the data. This
preserves the preexisting allocation of rights between the parties, but
avoids the necessity of applying noncommercial markings to data related
to commercial technologies that were developed exclusively at private
expense. In addition, the flowdown requirements of DFARS clause
252.227-7013(k) and clause 252.227-7015(e) are clarified to enable the
use of the appropriate clause(s) to lower-tier subcontracts.
Comment: Two respondents commented that the proposed revisions
result in a commercial item losing its commercial item status. One of
these respondents recommended the elimination of the ``developed
exclusively at private expense'' component of the proposed revisions to
the clause at DFARS 252.227-7019, to avoid the application of the
noncommercial clauses to commercial technologies.
Response: The prescription for the use of the clause at DFARS
252.227-7013 does not affect the commercial status of an item that
otherwise meets the definition of commercial item at FAR 2.101 (based
on 41 U.S.C. 403(12), and 10 U.S.C. 2302(3)(I)). If the item still
qualifies as a commercial item, then it is a commercial item. If that
commercial item was not developed exclusively at private expense, then
the rules apply that govern the treatment of technical data
deliverables and associated license rights related to that commercial
item.
Comment: Two respondents identified several ways in which the
prescribed use of the clause at DFARS 252.227-7013, instead of 252.227-
7015, appears to be inconsistent with FAR and DFARS policies regarding
data deliverables and data rights in commercial technologies. The
respondents noted that DFARS 227.7102-1 states DoD's basic policy that
DoD shall acquire only the technical data deliverables that are
customarily provided to the public, with a few exceptions.
Response: The prescription for the use of the clause at DFARS
252.227-7013, when the item has been developed in part at Government
expense but the item still qualifies as commercial, does not change the
applicability of this policy statement. The policy provides exceptions,
one of which allows the Government to require the delivery of technical
data that describes modifications made at Government expense even if
such data is not typically provided to the public (see DFARS 227.7102-
1(a)(3)).
Comment: A respondent recommended the elimination of the
``developed exclusively at private expense'' component of the proposed
revisions to the clause at DFARS 252.227-7019, to avoid the application
of the noncommercial clauses to commercial technologies.
Response: The respondent's basis for concern is unclear in view of
the limited applicability of the clause at DFARS 252.227-7019 to only
noncommercial computer software, and the proposed revisions address
only the noncommercial aspects of the Major Systems Rule. Accordingly,
the proposed revisions to the validation procedures for noncommercial
computer software at DFARS 227.7203-13 and 252.227-7019 are retained in
the final rule.
Comment: One respondent noted that DFARS 227.7202-1 states the
basic policy governing commercial computer software and computer
software documentation is that the Government acquires the licenses
customarily provided to the public unless such licenses are
inconsistent with Federal procurement law or do not otherwise satisfy
the agency's needs.
Response: The proposed rule creates no issues or conflicts with
this policy since there are no changes proposed for any DFARS coverage
related to commercial computer software or documentation.
B. Applying Data Rights Clauses to Subcontracts for Commercial Items
Comment: Two respondents recommended that 10 U.S.C. 2320 and 10
U.S.C. 2321 not be removed from the list of statutes set forth in DFARS
212.504(a), which prohibits their application to subcontracts for
commercial items. One respondent concluded that removing these statutes
from the list appears to ``unilaterally overturn the express intent of
Congress and the FAR Council'' and that the proposed rule did not
explain the basis for the decision to remove the statutes from the
list.
Response: The proposed rule explains the basis for this
determination. The decision to remove these statutes from the list is
based on the appropriate statutory determinations that doing so is in
the best interest of the Government. The proposed revisions to DFARS
212.504(a) are retained in the final rule.
C. Application of Statutory Technical Data Rules to Computer Software
Comment: A respondent argued that the proposed rule should not make
any changes to the validation procedures for computer software; in
particular, the clause at DFARS 252.227-7019, ``Validation of Asserted
Restrictions--Computer Software,'' should not be amended to include the
proposed new paragraph (f) that implements the ``Major Systems Rule.''
In addition, a respondent contended that the decision to cover software
was flawed because: (1) There is no statutory basis for the change and
(2) not all rights determinations are ``black and white.''
Response: (1) Although 10 U.S.C. 2320 and 2321 apply only to
technical data and not to computer software, it is longstanding DoD
policy and practice to
[[Page 58146]]
apply the same or analogous requirements to computer software, whenever
appropriate. Accordingly, the proposed rule implements revisions to the
validation procedures for computer software only to the extent that
those procedures are based on the technical data validation procedures
that are affected by the statutory changes. The result is that it is
only the Major Systems Rule that is adapted for application only to
noncommercial computer software. (2) The new Major Systems Rule is
applicable only to challenges of contractor assertions that development
was exclusively at private expense. Thus, the proposed adaptation of
the new Major Systems Rule to noncommercial software validation also is
not applicable to assertions based on mixed funds, and does not in any
way restrict the ability to segregate mixed-funding development into
its privately-funded and Government-funded portions.
D. Two Separate Standards for Civilian and DoD Agencies
Comment: One respondent stated that the proposed rule creates two
separate standards for civilian and DoD agencies in that ``the
practical result could be that an item will be treated as commercial
for purposes of intellectual property rights by civilian agencies, and
as non-commercial by the agencies of DoD.''
Response: Without analyzing the required treatment under the FAR of
a commercial item by a civilian agency when the Government has paid a
portion of the development costs, the proposed rule has not changed the
criteria for whether an item is a commercial item (i.e., under the
definition at FAR 2.101). Since 1995, DFARS 227.7102-3(b) has required
the use of the noncommercial clause at 252.227-7013 in lieu of the
commercial clause at 252.227-7015 if the Government will pay any
portion of the development costs of the commercial item. Although the
proposed revision of the DoD validation scheme to include a
``Commercial Rule'' and a ``Major Systems Rule'' may have no equivalent
in the civilian validation scheme, DoD's process is driven by the
changes to 10 U.S.C. 2321, for which there is no equivalent in the
civilian agency statute (41 U.S.C. 253d). No revisions are necessary.
E. Administrative, Technical and Typographical Issues
Comment: A respondent identified a citation error, which seeks to
remove and reserve 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable
Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting
Requirements Regarding Dealings with Terrorist Countries, when it
appears that the intent is to remove paragraphs (a)(iii) 10 U.S.C.
2320, Rights in Technical Data and (iv) 10 U.S.C. 2321, Validation of
Proprietary Data Restrictions.
Response: The respondent is correct. This change is reflected in
the final rule.
Comment: A respondent recommended changing the cross-reference in
the second sentence of DFARS 252.227-7037(c) from paragraph (b) to
(b)(1) for further clarification.
Response: The respondent is correct. This change is reflected in
the final rule.
F. Changes to Rule Resulting From the Public Comments
Changes made in the final rule based on the public comments
received, include the following:
Removed DFARS 212.504 paragraphs (a)(iii) 10 U.S.C. 2320,
Rights in Technical Data, and (a)(iv) 10 U.S.C. 2321, Validation of
Proprietary Data Restrictions, instead of DFARS 212.504 paragraphs
(a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and
(a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with
Terrorist Countries.
Revised the prescriptions at DFARS 227.7102-4(b) and
227.7103-6(a) to clarify that in cases when the Government ``will have
paid'' for any portion of the development of a commercial item, both
the commercial clause at DFARS 252.227-7015 and the noncommercial
clause at DFARS 252.227-7013 shall be used together.
Revised 252.212-7001(b) to add 252.227-7013 and 252.227-
7037 to be used, as applicable.
Revised 252.212-7001(c) to add 252.227-7013, 252.227-7015
and 252.227-7037 to be flowed down to subcontractors, as applicable.
Revised the clause flowdown requirements of DFARS 252.227-
7013(k) and 252.227-7015(e) to enable the use of the appropriate
clause(s) to lower tier subcontracts.
Changed the cross reference in the second sentence of the
clause at DFARS 252.227-7037(c) from paragraph (b) to (b)(1).
Revised 252.244-7000 to add 252.227-7015 and 252.227-7037
to be flowed down to subcontractors, as applicable.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under Section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
DoD certifies that this final rule will not have significant
economic impact on a substantial number of small entities within the
meaning for the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because major systems or subsystems are generally not developed by
small businesses. The rule only applies in the limited circumstances
that there is a challenge to a use or release restriction for a major
system or subsystem that the contractor or subcontractor claims was
developed exclusively at private expense.
V. Paperwork Reduction Act
The rule does not impose any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 212, 227, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 227, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 227, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
212.504 [Amended]
0
2. Section 212.504 is amended as follows:
0
(a) By removing paragraphs (a)(iii) and (iv); and
0
(b) Redesignating paragraphs (a)(v) through (xix) as (a)(iii) through
(xvii), respectively.
[[Page 58147]]
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
3. Amend section 227.7102 by removing the text, and republishing the
section heading to read as follows:
227.7102 Commercial items, components, or processes.
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4. Redesignate section 227.7102-3 as 227.7102-4.
0
5. Add new section 227.7102-3 to read as follows:
227.7102-3 Government right to review, verify, challenge and validate
asserted restrictions.
Follow the procedures at 227.7103-13 and the clause at 252.227-
7037, Validation of Restrictive Markings on Technical Data, regarding
the validation of asserted restrictions on technical data related to
commercial items.
0
6. Revise the newly redesignated section 227.7102-4 to read as follows:
227.7102-4 Contract clauses.
(a)(1) Except as provided in paragraph (b) of this subsection, use
the clause at 252.227-7015, Technical Data-Commercial Items, in all
solicitations and contracts when the Contractor will be required to
deliver technical data pertaining to commercial items, components, or
processes.
(2) Use the clause at 252.227-7015 with its Alternate I in
contracts for the development or delivery of a vessel design or any
useful article embodying a vessel design.
(b) In accordance with the clause prescription at 227.7103-6(a),
use the clause at 252.227-7013, Rights in Technical Data-Noncommercial
Items, in addition to the clause at 252.227-7015, if the Government
will have paid for any portion of the development costs of a commercial
item. The clause at 252.227-7013 will govern the technical data
pertaining to any portion of a commercial item that was developed in
any part at Government expense, and the clause at 252.227-7015 will
govern the technical data pertaining to any portion of a commercial
item that was developed exclusively at private expense.
(c) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, in all solicitations and contracts for
commercial items that include the clause at 252.227-7015 or the clause
at 252.227-7013.
0
6. Amend section 227.7103-6 to revise paragraph (a) to read as follows:
227.7103-6 Contract clauses.
(a) Use the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items, in solicitations and contracts when the successful
offeror(s) will be required to deliver to the Government technical data
pertaining to noncommercial items, or pertaining to commercial items
for which the Government will have paid for any portion of the
development costs (in which case the clause at 252.227-7013 will govern
the technical data pertaining to any portion of a commercial item that
was developed in any part at Government expense, and the clause at
252.227-7015 will govern the technical data pertaining to any portion
of a commercial item that was developed exclusively at private
expense). Do not use the clause when the only deliverable items are
computer software or computer software documentation (see 227.72),
commercial items developed exclusively at private expense (see
227.7102-4), existing works (see 227.7105), special works (see
227.7106), or when contracting under the Small Business Innovation
Research Program (see 227.7104). Except as provided in 227.7107-2, do
not use the clause in architect-engineer and construction contracts.
* * * * *
0
7. Amend section 227.7103-13 by:
0
(a) Redesignating paragraph (c) as paragraph (d);
0
(b) Adding a new paragraph (c); and
0
(c) Amending redesignated paragraph (d) by revising the introductory
text and paragraphs (d)(2)(i) and (d)(4).
The additions and revisions read as follows.
227.7103-13 Government right to review, verify, challenge and validate
asserted restrictions.
* * * * *
(c) Challenge considerations and presumption.
(1) Requirements to initiate a challenge. Contracting officers
shall have reasonable grounds to challenge the validity of an asserted
restriction. Before issuing a challenge to an asserted restriction,
carefully consider all available information pertaining to the
assertion. The contracting officer shall not challenge a contractor's
assertion that a commercial item, component, or process was developed
exclusively at private expense unless the Government can demonstrate
that it contributed to development of the item, component or process.
(2) Presumption regarding development exclusively at private
expense. 10 U.S.C. 2320(b)(1) and 2321(f) establish a presumption and
procedures regarding validation of asserted restrictions for technical
data related to commercial items, and to major systems, on the basis of
development exclusively at private expense.
(i) Commercial items. For commercially available off-the-shelf
items (defined at 41 U.S.C. 431(c)[104]) in all cases, and for all
other commercial items except as provided in paragraph (c)(2)(ii) of
this subsection, contracting officers shall presume that the items were
developed exclusively at private expense whether or not a contractor
submits a justification in response to a challenge notice. When a
challenge is warranted, a contractor's or subcontractor's failure to
respond to the challenge notice cannot be the sole basis for issuing a
final decision denying the validity of an asserted restriction.
(ii) Major systems. The presumption of development exclusively at
private expense does not apply to major systems or subsystems or
components thereof, except for commercially available off-the-shelf
items (which are governed by paragraph (c)(2)(i) of this subsection).
When the contracting officer challenges an asserted restriction
regarding technical data for a major system or a subsystem or component
thereof on the basis that the technology was not developed exclusively
at private expense, the contracting officer shall sustain the challenge
unless information provided by the contractor or subcontractor
demonstrates that the item was developed exclusively at private
expense.
(d) Challenge and validation. All challenges shall be made in
accordance with the provisions of the clause at 252.227-7037,
Validation of Restrictive Markings on Technical Data.
* * * * *
(2) Pre-challenge requests for information.
(i) After consideration of the situations described in paragraph
(d)(3) of this subsection, contracting officers may request the person
asserting a restriction to furnish a written explanation of the facts
and supporting documentation for the assertion in sufficient detail to
enable the contracting officer to ascertain the basis of the
restrictive markings. Additional supporting documentation may be
requested when the explanation provided by the person making the
assertion does not, in the contracting officer's opinion, establish the
validity of the assertion.
* * * * *
(4) Challenge notice. The contracting officer shall not issue a
challenge notice unless there are reasonable grounds to question the
validity of an assertion. The contracting officer may challenge
[[Page 58148]]
an assertion whether or not supporting documentation was requested
under paragraph (d)(2) of this subsection. Challenge notices shall be
in writing and issued to the contractor or, after consideration of the
situations described in paragraph (d)(3) of this subsection, the person
asserting the restriction. The challenge notice shall include the
information in paragraph (e) of the clause at 252.227-7037.
* * * * *
0
8. Amend section 227.7203-13 by:
0
(a) Redesignating paragraphs (d) through (f) as (e) through (g),
respectively; and
0
(b) Adding a new paragraph (d) to read as follows:
227.7203-13 Government right to review, verify, challenge and validate
asserted restrictions.
* * * * *
(d) Major systems. When the contracting officer challenges an
asserted restriction regarding noncommercial computer software for a
major system or a subsystem or component thereof on the basis that the
computer software was not developed exclusively at private expense, the
contracting officer shall sustain the challenge unless information
provided by the contractor or subcontractor demonstrates that the
computer software was developed exclusively at private expense.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
9. Amend section 252.212-7001 by--
0
(a) Revising the introductory text;
0
(b) Amending the clause date by removing ``(AUG 2011)'' and adding in
its place ``(SEP 2011)'';
0
(c) Redesignating paragraphs (b)(19) through (b)(28) as paragraphs
(b)(20) through (b)(29);
0
(d) Adding new paragraph (b)(19);
0
(e) Amending newly redesignated paragraph (b)(20) by removing ``(MAR
2011)'' and adding in its place ``(SEP 2011)'';
0
(f) Amending newly redesignated paragraph (b)(21) by removing ``(SEP
1999)'' and adding in its place ``(SEP 2011), if applicable (see
227.7102-4(c)).'';
0
(g) Redesignating paragraphs (c)(2) through (c)(6) as paragraphs (c)(5)
through (c)(9), respectively; and
0
(h) Adding new paragraphs (c)(2) through (c)(4).
The additions and revisions read as follows:
252.212-7001 Contract Terms and Conditions Required to Implement
Statues or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
As prescribed in 212.301(f)(iii) and 227.7103-6(a) and (e), use the
following clauses as applicable:
* * * * *
(b) * * *
(19) 252.227-7013, Rights in Technical Data--Noncommercial Items
(SEP 2011), if applicable (see 227.7103-6(a)).
* * * * *
(c) * * *
(2) 252.227-7013, Rights in Technical Data--Noncommercial Items
(SEP 2011), if applicable (see 227.7103-6(a)).
(3) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if
applicable (see 227.7102-4(a)).
(4) 252.227-7037, Validation of Restrictive Markings on Technical
Data (SEP 2011), if applicable (see 227.7102-4(c)).
* * * * *
0
10. Amend section 252.227-7013 by--
0
(a) Amending the clause date by removing ``(MAR 2011)'' and adding in
its place ``(SEP 2011)''; and
0
(b) Revising paragraph (k)(2) to read as follows:
252.227-7013 Rights in technical data-Noncommercial items.
* * * * *
(k) * * *
(2) Whenever any technical data for noncommercial items, or for
commercial items developed in any part at Government expense, is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause in the subcontract or other contractual instrument, and require
its subcontractors or suppliers to do so, without alteration, except to
identify the parties. This clause will govern the technical data
pertaining to noncommercial items or to any portion of a commercial
item that was developed in any part at Government expense, and the
clause at 252.227-7015 will govern the technical data pertaining to any
portion of a commercial item that was developed exclusively at private
expense. No other clause shall be used to enlarge or diminish the
Government's, the Contractor's, or a higher-tier subcontractor's or
supplier's rights in a subcontractor's or supplier's technical data.
* * * * *
0
11. Amend section 252.227-7015 by--
0
(a) Amending the clause date by removing ``(MAR 2011)'' and adding in
its place ``(SEP 2011)''; and
0
(b) Adding new paragraph (e) to read as follows:
252.227-7015 Technical data-Commercial items.
* * * * *
(e) Applicability to subcontractors or suppliers.
(1) The Contractor shall recognize and protect the rights afforded
its subcontractors and suppliers under 10 U.S.C. 2320 and 10 U.S.C.
2321.
(2) Whenever any technical data related to commercial items
developed in any part at private expense will be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the Contractor shall use this same clause in the subcontract
or other contractual instrument, and require its subcontractors or
suppliers to do so, without alteration, except to identify the parties.
This clause will govern the technical data pertaining to any portion of
a commercial item that was developed exclusively at private expense,
and the clause at 252.227-7013 will govern the technical data
pertaining to any portion of a commercial item that was developed in
any part at Government expense.
* * * * *
0
12. Amend section 252.227-7019 by--
0
(a) Amending the clause date by removing ``(JUN 1995)'' and adding in
its place ``(SEP 2011)'';
0
(b) Redesignating paragraphs (f) through (i) as paragraphs (g) through
(j), respectively;
0
(c) Adding new paragraph (f);
0
(d) Revising the newly redesignated paragraph (g)(5);
0
(e) Amending the newly redesignated paragraph (h)(1) introductory text
by removing ``(g)(3)'', and adding in its place ``(h)(3)''; and
0
(f) Amending the newly redesignated paragraph h)(3) by removing
``(g)(1)'', and adding in its place ``(h)(1)''.
The additions and revisions read as follows:
252.227-7019 Validation of asserted restrictions-Computer software.
* * * * *
(f) Major systems. When the Contracting Officer challenges an
asserted restriction regarding noncommercial computer software for a
major system or a subsystem or component thereof on the basis that the
computer software was not developed exclusively at private expense, the
Contracting Officer will sustain the challenge unless information
provided by the Contractor or subcontractor demonstrates that the
computer software was developed exclusively at private expense.
[[Page 58149]]
(g) * * *
(5) If the Contractor fails to respond to the Contracting Officer's
request for information or additional information under paragraph
(g)(1) of this clause, the Contracting Officer will issue a final
decision, in accordance with paragraph (f) of this clause and the
Disputes clause of this contract, pertaining to the validity of the
asserted restriction.
* * * * *
0
13. Amend 252.227-7037 by--
0
(a) Amending the introductory text by removing ``227.7102-3(c)'' and
adding in its place ``227.7102-4(c)'';
0
(b) Amending the clause date by removing ``(SEP 1999)'' and adding in
its place ``(SEP 2011)''; and
0
(c) Revising paragraphs (b), (c), (f), and (l) to read as follows:
252.227-7037 Validation of restrictive markings on technical data.
* * * * *
(b) Presumption regarding development exclusively at private
expense.
(1) Commercial items. For commercially available off-the-shelf
items (defined at 41 U.S.C. 104) in all cases, and for all other
commercial items except as provided in paragraph (b)(2) of this clause,
the Contracting Officer will presume that a Contractor's asserted use
or release restrictions are justified on the basis that the item,
component, or process was developed exclusively at private expense. The
Contracting Officer shall not challenge such assertions unless the
Contracting Officer has information that demonstrates that the item,
component, or process was not developed exclusively at private expense.
(2) Major systems. The presumption of development exclusively at
private expense does not apply to major systems or subsystems or
components thereof, except for commercially available off-the-shelf
items (which are governed by paragraph (b)(1) of this clause). When the
Contracting Officer challenges an asserted restriction regarding
technical data for a major system or a subsystem or component thereof
on the basis that the item, component, or process was not developed
exclusively at private expense, the Contracting Officer will sustain
the challenge unless information provided by the Contractor or
subcontractor demonstrates that the item, component, or process was
developed exclusively at private expense.
(c) Justification. The Contractor or subcontractor at any tier is
responsible for maintaining records sufficient to justify the validity
of its markings that impose restrictions on the Government and others
to use, duplicate, or disclose technical data delivered or required to
be delivered under the contract or subcontract. Except as provided in
paragraph (b)(1) of this clause, the Contractor or subcontractor shall
be prepared to furnish to the Contracting Officer a written
justification for such restrictive markings in response to a challenge
under paragraph (e) of this clause.
* * * * *
(f) Final decision when Contractor or subcontractor fails to
respond. Upon a failure of a Contractor or subcontractor to submit any
response to the challenge notice the Contracting Officer will issue a
final decision to the Contractor or subcontractor in accordance with
paragraph (b) of this clause and the Disputes clause of this contract
pertaining to the validity of the asserted restriction. This final
decision shall be issued as soon as possible after the expiration of
the time period of paragraph (e)(1)(ii) or (e)(2) of this clause.
Following issuance of the final decision, the Contracting Officer will
comply with the procedures in paragraphs (g)(2)(ii) through (iv) of
this clause.
* * * * *
(l) Flowdown. The Contractor or subcontractor agrees to insert this
clause in contractual instruments with its subcontractors or suppliers
at any tier requiring the delivery of technical data.
* * * * *
0
14. Amend section 252.244-7000 by--
0
(a) Amending the clause date by removing ``(AUG 2011)'' and adding in
its place ``(SEP 2011)'';
0
(b) Redesignating paragraphs (c) through (h) as (e) through (j),
respectively; and
0
(c) Adding new paragraphs (c) and (d) as follows:
252.244-7000 Subcontracts for commercial items and commercial
components (DoD contracts).
* * * * *
(c) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if
applicable (see 227.7102-4(a)).
(d) 252.227-7037, Validation of Restrictive Markings on Technical
Data (SEP 2011), if applicable (see 227.7102-4(c)).
* * * * *
[FR Doc. 2011-23956 Filed 9-19-11; 8:45 am]
BILLING CODE 5001-08-P