[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11363-11371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4531]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 209, 227, 252
Defense Federal Acquisition Regulation Supplement; Government
Support Contractor Access to Technical Data (DFARS Case 2009-D031)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 821 of
the National Defense Authorization Act for Fiscal Year 2010. Section
821 provides authority for certain types of Government support
contractors to have access to proprietary technical data belonging to
prime contractors and other third parties, provided that the technical
data owner may require the support contractor to execute a non-
disclosure agreement having certain restrictions and remedies.
Additionally, this interim rule amends the DFARS to provide needed
editorial changes.
DATES: Effective date: March 2, 2011.
Comment date: Comments on the interim rule should be submitted to
the address shown below on or before May 2, 2011, to be considered in
the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2009-D031,
using any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``DFARS Case 2009-D031'' under the heading ``Enter keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``DFARS Case 2009-D031.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``DFARS Case 2009-D031'' on your attached
document.
[cir] E-mail: [email protected]. Include DFARS Case 2009-D031 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
G. 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:
I. Background
Section 821 of the National Defense Authorization Act for Fiscal
Year 2010 (Pub. L. 111-84) was enacted October 28, 2009. Section 821
provides authority for certain types of Government support contractors
to have access to proprietary technical data belonging to prime
contractors and other third parties, provided that the technical data
owner
[[Page 11364]]
may require the support contractor to execute a non-disclosure
agreement having certain restrictions and remedies.
The DFARS scheme for acquiring rights in technical data is based on
10 U.S.C. 2320 and 2321. Section 2320 establishes the basic allocation
of rights in technical data, and provides, among other things, that a
private party is entitled to restrict the Government's rights to
release or disclose privately-developed technical data outside the
Government. This restriction is implemented in the DFARS as the
``limited rights'' license, which essentially limits the Government's
use of such data only for in-house use, which does not include release
to Government support contractors.
Historically, the statutorily based scheme has included only two
categorical exceptions to the basic non-disclosure requirements for
such privately-developed data:
A ``type'' exception, in which the Government is granted
unlimited rights in certain types of ``top-level'' data that are
considered not to provide a competitive advantage by being treated as
proprietary (e.g., form, fit, and function data; data necessary for
operation, maintenance, installation, or training; publicly available
data) (2320(a)(2)(C)); and
A ``special needs'' exception for certain important
Government activities that are considered critical to Government
operations (e.g., emergency repair and overhaul; evaluation by a
foreign government), and are allowed only when the recipient of the
data is made subject to strict non-disclosure restrictions on any
further release of the data. (2320(a)(2)(D))
Section 821 amends 10 U.S.C. 2320 to add a new third statutory
exception to the prohibition on release of privately developed data
outside the Government that provides--``notwithstanding any limitation
upon the license rights conveyed under subsection (a), allowing a
covered Government support contractor access to, and use of, any
technical data delivered under a contract for the sole purpose of
furnishing independent and impartial advice or technical assistance
directly to the Government in support of the Government's management
and oversight of the program or effort to which such technical data
relates.''
The statute also provides a definition of ``covered Government
support contractor'' to mean--
``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),
provided that the 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.
II. Discussion and Analysis
Due to the significant level of detail in section 821, the
recognition that the subject matter involves important privately-held
intellectual property rights, and that the apparent congressional
intent is that the private parties will enter into a direct legal
relationship (e.g., a non-disclosure agreement) regarding protections
for same, DoD decided to utilize the original statutory language and to
preserve maximum flexibility for the private parties to reach mutual
agreement--without unnecessary interference from the Government.
Section 821 can be characterized as establishing two new
requirements regarding DoD's acquisition and exercise of rights in
proprietary technical data. The statute--
Provides an exception to the statutorily authorized
restrictions on the Government's rights to release privately-developed
technical data outside the Government. The Government is now authorized
to make limited releases of otherwise-proprietary data to certain types
of support contractors that are supporting directly the Government's
management and oversight of programs--subject to certain protections.
Mandates specific restrictions for the Government support
contractors that will receive the proprietary technical data, to ensure
that this use does not threaten the data owner's competitive advantage
due to the proprietary information, and to provide the data owner with
a more direct legal remedy against the support contractor for any
breach of those use restrictions.
A. Scope and Applicability
Section 821 amended 10 U.S.C. 2320, which applies to technical
data, but not to computer software (which is expressly excluded from
the definition of technical data). There is no parallel statute that
establishes regulatory requirements for DoD acquisition of computer
software. However, it is longstanding Federal and DoD policy and
practice to apply to computer software the same or analogous
requirements that are used for technical data, whenever appropriate.
Many issues are common to both technical data and computer software,
and in such cases, conformity of coverage between technical data and
computer software is desirable.
For example, although the DFARS provides separate coverage for
technical data and computer software (subparts 227.71 and 227.72,
respectively), the policies and procedures are identical or analogous
in most respects. Regarding the allocation of rights in privately-
developed technologies, and the release restrictions and procedures
used to protect such proprietary information against unauthorized
release to Government support contractors (or any third party, for that
matter), the DFARS adapts the detailed technical data procedures for
application to noncommercial computer software (see 227.7203), but does
not apply those same detailed requirements to commercial computer
software (see 227.7202). Therefore, analogous revisions are made in
this interim rule to the DFARS coverage for noncommercial software.
[[Page 11365]]
B. Revised Licensing and New Requirements for Owners of Proprietary
Information
Section 821 creates a new exception to the statutory authorization
for a private party to restrict the Government's ability to release or
disclose privately-developed technical data outside the Government. See
10 U.S.C. 2320(c)(2). The Government is now authorized to release
privately-developed technical data to any support contractors that meet
the criteria for a ``covered Government support contractor,'' provided
that the covered Government support contractor's access and use of the
data is for the ``sole purpose of furnishing independent and impartial
advice or technical assistance directly to the Government in support of
the Government's management and oversight of the program or effort to
which such technical data relates.'' 10 U.S.C. 2320(c)(2).
This interim rule incorporates the new exception into the
definition of ``limited rights'' and adds a new definition for
``covered Government support contractor'' into the following primary
rights-allocation clauses: 252.227-7013 (noncommercial technical data),
252.227-7014 (noncommercial software and software documentation),
252.227-7015 (commercial technical data), and 252.227-7018 (Small
Business Innovation Research (SBIR)).
The exception is inserted into the ``limited rights''
definition by adding ``covered Government support contractors'' to the
existing lists of statutory exceptions to the prohibition against
releasing limited rights data outside the Government. See 252.227-
7013(a)(14) (formerly (13)); 252.227-7015(b)(2)(ii), which does not use
the term ``limited rights'' but implements the same underlying
statutory requirements; and 252.227-7018(a)(15) (formerly (14)). The
revisions to 252.227-7013 and -7018 also required some minor
restructuring of the listings of statutory exceptions.
The new definition for ``covered Government support
contractor'' is inserted into the cited clauses as new 252.227-
7013(a)(5), 252.227-7014(a)(6), 252.227-7015(a)(2), and 252.227-
7018(a)(6). In each case, the insertion of a new definition requires
the renumbering of all subsequent definitions in the affected clauses.
The term is defined using, nearly verbatim, the new statutory
definition at 2320(f)--with one key modification: Rather than
reproducing all of the required non-disclosure restrictions in the
definition, the definition cross-references the implementation of those
same restrictions at revised 252.227-7025.
In addition, the clauses are revised to incorporate specific
additional requirements that are important to support and enable the
implementation of the new exception. In particular, the new statutory
exception establishes the basic requirement that the covered Government
support contractor must execute a contract with the Government, in
which the covered Government support contractor agrees and acknowledges
that it ``will'' enter into a non-disclosure agreement directly with
the owner of the proprietary data, and thus the clause must also
implement this direct non-disclosure agreement requirement within the
rights and obligations of the owner of the data. Since this direct non-
disclosure agreement requirement is created with the intent of
protecting the proprietary rights of the data owner, DoD has
implemented this by providing the data owner the sole discretion to
require such a direct non-disclosure agreement or waive the non-
disclosure agreement requirement in writing in each individual case.
The protection offered by the new direct non-disclosure agreement
requirement should not be implemented in a manner that it becomes an
unwanted and unnecessary burden on the party it is intended to protect.
Thus, the data owner may determine that executing a direct non-
disclosure agreement with every covered Government support contractor,
in every individual case, is unnecessary; provided such determinations
are made in view of the multi-layered protection scheme to ensure that
the data owner's rights are protected regardless of whether the parties
execute a direct non-disclosure agreement, including the data owner
already having a direct legal remedy against the covered Government
support contractor for any unauthorized use or release pursuant to
252.227-7025(c)(2).
Accordingly, the data owner is notified of its rights and
obligations regarding covered Government support contractors in
proposed new coverage at 252.227-7013(b)(3)(iv), 252.227-7015(b)(3),
and 252.227-7018(b)(8). In each case, the new coverage acknowledges the
newly authorized release to covered Government support contractors;
confirms that the data owner will be notified of such release; provides
the data owner the discretion to require the covered Government support
contractor to execute a direct non-disclosure agreement; and
acknowledges that the data owner and covered Government support
contractor may include additional terms and conditions in such a non-
disclosure agreement by mutual agreement, as long as the basic
statutory requirements for the non-disclosure agreement are also
addressed (these basic statutory requirements are provided at 252.227-
7025).
In addition, these same requirements are also appropriate for
adaptation to the corresponding DFARS coverage for noncommercial
technical data. Thus, equivalent revisions are incorporated in 252.227-
7014, including a new definition of ``covered Government support
contractor'' at paragraph (a)(6), a revised definition of ``restricted
rights'' (the computer software equivalent of limited rights for
technical data) at (a)(15) (formerly (14)), and the supporting rights
and procedures at new (b)(3)(iii). Because there is no current DFARS
coverage for this subject matter in the context of commercial computer
software, no revisions are made to 227.7202.
C. New Requirements for Support Contractors Accessing Government-
Furnished Proprietary Information
As discussed previously, section 821 allows covered Government
support contractors to have access to third party proprietary technical
data only when the covered Government support contractor is subject to
specific prohibitions and requirements to protect that data. Although
the statute incorporates these detailed protections within the
definition of covered Government support contractor, DoD has
implemented these protections within the existing DFARS coverage that
implements use and non-disclosure requirements for recipients of
Government-furnished information that is proprietary data or software,
and has cross-referenced that implementation in the definition of
covered Government support contractor.
This requires adaptation of the current DFARS coverage governing
the Government's release to privately-owned proprietary data and
software, found primarily at 227.7103-7, and in the clause at 252.227-
7025. There are two key revisions to 252.227-7025:
Paragraph (b)(1), regarding Government-furnished
information marked with limited rights or restricted rights legends, is
amended by adding new subparagraph (ii), which implements, nearly
verbatim, the statutory requirements from 2320(f)(2), and also
recognizes that the third party owner of the proprietary data or
software has the sole discretion regarding whether a direct non-
disclosure agreement will be required, and that the parties to the non-
[[Page 11366]]
disclosure agreement may incorporate additional terms and conditions by
mutual agreement, provided that the basic statutory requirements are
addressed.
New paragraph (b)(4) is added to cover the Government-
furnished information marked with commercial restrictive legends, as
necessary to implement the new statutory requirements, rights, and
obligations related to technical data pertaining to commercial items,
and to support the previously discussed revisions to 252.227-7015. This
new language parallels the revisions discussed above for noncommercial
data and software at new (b)(1)(ii).
D. Miscellaneous
The revisions also require the covered Government support
contractor to provide to the contracting officer, upon request, a copy
of--
Any non-disclosure agreement executed by the covered
Government support contractor and the proprietary data owner; or
Waiver of the non-disclosure agreement requirement by the
proprietary data owner.
See 252.227-7013(b)(3)(iv)(E), 252.227-7014(b)(3)(iii)(E), 252.227-
7015(b)(3)(v), and 252.227-7025(b)(1)(ii)(E) and (b)(4)(ii)(E). This
language was adapted from a similar authority at FAR 9.505-4(b), which
mandates that contracting officers obtain copies of relevant non-
disclosure agreements.
Finally, to provide an appropriate link to these new requirements
from the current FAR and DFARS coverage regarding non-disclosure
agreement requirements for support contractors having access to third
party proprietary information in performing advisory and assistance
services, new DFARS 209.505-4 is added.
III. Executive Order 12866
This rule was subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993. This rule is not
a major rule under 5 U.S.C. 804.
IV. 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., but has nevertheless
prepared an initial regulatory flexibility analysis, which is
summarized as follows:
The objective of the rule is to provide policy and procedures to
allow certain types of Government support contractors to have access to
proprietary technical data belonging to prime contractors and other
third parties. Section 821 of the National Defense Authorization Act
for Fiscal Year 2010 (Pub. L. 111-84) provides the legal basis for the
rule.
The rule affects small businesses that are Government support
contractors that need access to proprietary technical data belonging to
prime contractors and other third parties. It will also affect any
small business that is the owner of ``limited rights'' technical data
in the possession of the Government to which the support contractor
will require access.
The statute provides that the support contractor must be willing to
sign a non-disclosure agreement with the owner of the data. The rule
has implemented this requirement in a way that preserves maximum
flexibility for the private parties to reach mutual agreement without
unnecessary interference from the Government. To reduce burdens, the
rule permits the owner of the data to waive the requirement for a non-
disclosure agreement, since the Government clauses already adequately
deal with non-disclosure. Further, the rule provides that the support
contractors cannot be required to agree to any conditions not required
by statute. The Government support contractor must provide to the
contracting officer, upon request, a copy of the non-disclosure
agreement or the waiver of the requirement for a non-disclosure
agreement (consistent with FAR 9.505-4(b)).
There are no known significant alternatives to the rule that would
meet the requirements of the statute and minimize any significant
economic impact of the rule on small entities. The impact of this rule
on small business is not expected to be significant because the
execution of a non-disclosure agreement is not likely to have a
significant cost or administrative impact.
V. Paperwork Reduction Act
The Paperwork Reduction Act applies because the DFARS rule affects
DFARS clauses 252.227-7013, 252.227-7014, 252.227-7015, and 252.227-
7025, which contain reporting or recordkeeping requirements that
require the approval of the Office of Management and Budget under 44
U.S.C., chapter 35. These clauses are covered by an approved OMB
control number 0704-0369 in the amount of approximately 1.76 million
hours. The requirement for Government support contractors to provide to
the contracting officer a copy of a non-disclosure agreement or a
waiver of the non-disclosure agreement requirement is only applicable
if requested by the contracting officer. DoD has determined that the
currently approved burden hours are sufficient to cover this minimal
requirement. However, DoD will accept comments on how the interim rule
would impact either the burden or other aspects of the approved
information collection.
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment
pursuant to 41 U.S.C. 1707 (formerly 41 U.S.C. 418b) and FAR 1.501-
3(b). This interim rule implements section 821 of the National Defense
Authorization Act for Fiscal Year 2010, enacted October 28, 2009.
Section 821 provides authority for certain types of Government support
contractors to have access to proprietary technical data belonging to
prime contractors and other third parties, provided that the technical
data owner may require the support contractor to execute a non-
disclosure agreement having certain restrictions and remedies. Section
821 was effective upon enactment. This interim rule is necessary to
provide the policies and procedures allowing a covered Government
support contractor access to and use of any technical data delivered
under a contract so that the contractor can furnish independent and
impartial advice or technical assistance directly to the Government in
support of the Government's management and oversight of the program or
effort to which such technical data relates. DoD will consider public
comments received in response to this interim rule in the formulation
of the final rule.
List of Subjects in 48 CFR Parts 209, 227, and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 209, 227, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 209, 227, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
[[Page 11367]]
PART 209--CONTRACTOR QUALIFICATIONS
0
2. In section 209.403, paragraph (1), remove ``Navy--The General
Counsel of the Department of the Navy'' and add in its place ``Navy--
The Assistant General Counsel (Acquisition Integrity)''.
0
3. Add sections 209.505 and 209.505-4 to subpart 209.5 to read as
follows:
209.505 General rules.
209.505-4 Obtaining access to proprietary information.
(b) Non-disclosure requirements for contractors accessing third
party proprietary technical data or computer software are addressed at
227.7103-7(b), through use of the clause at 252.227-7025 as prescribed
at 227.7103-6(c) and 227.7203-6(d). Pursuant to that clause, covered
Government support contractors may be required to enter into non-
disclosure agreements directly with the third party asserting
restrictions on limited rights technical data, commercial technical
data, or restricted rights computer software.
PART 227--PATENTS, DATA, AND COPYRIGHTS
0
4. Revise section 227.7102-2, paragraph (a), to read as follows:
227.7102-2 Rights in technical data.
(a) The clause at 252.227-7015, Technical Data--Commercial Items,
provides the Government specific license rights in technical data
pertaining to commercial items or processes. DoD may use, modify,
reproduce, release, perform, display, or disclose data only within the
Government. The data may not be used to manufacture additional
quantities of the commercial items and, except for emergency repair or
overhaul and for covered Government support contractors, may not be
released or disclosed to, or used by, third parties without the
contractor's written permission. Those restrictions do not apply to the
technical data described in 227.7102-1(a).
* * * * *
0
5. Amend section 227.7103-5 as follows:
0
(a) Revise paragraph (c)(2) as set forth below; and
0
(b) Revise paragraph (c)(4) as set forth below.
227.7103-5 Government rights.
* * * * *
(c) * * *
(2) 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--
(i) Necessary for emergency repair and overhaul; or
(ii) To a covered Government support contractor; or
(iii) 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.
* * * * *
(4) 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)(2)(i), (ii), or (iii) of this subsection, the
intended recipient must complete the use and non-disclosure agreement
at 227.7103-7, or receive the data for performance of a Government
contract that contains the clause at 252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends, prior to release or disclosure of the limited
rights data.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Amend section 252.212-7001 as follows:
0
(a) Amend the clause date by removing ``(JAN 2011)'' and adding in its
place ``(MAR 2011)'';
0
(b) In paragraph (b)(4), remove ``(OCT 2010)'' and add in its place
``(JAN 2011)'';
0
(c) In paragraph (b)(7), remove ``(JUL 2009)'' and add in its place
``(JAN 2011)''; and
0
(d) In paragraph (b)(17), remove ``(NOV 1995)'' and add in its place
``(MAR 2011)''.
0
7. Amend section 252.227-7013 as follows:
0
(a) Amend the clause date by removing ``(NOV 1995)'' and adding in its
place ``(MAR 2011)'';
0
(b) Amend the introductory text of paragraph (a) by removing ``:'' and
adding in its place ``--``;
0
(c) Redesignate paragraphs (a)(5) through (a)(15) as paragraphs (a)(6)
through (a)(16);
0
(d) Add new paragraph (a)(5) to read as set forth below;
0
(e) Revise newly designated paragraph (a)(14) to read as set forth
below;
0
(f) Add new paragraph (b)(3)(iv) to read as set forth below;
0
(g) Amend the clause date for Alternate II by removing ``(NOV 2009)''
and adding in its place ``(MAR 2011)'';
0
(h) Amend the introductory text of Alternate II by removing ``(a)(16)''
and adding in its place ``(a)(17)''; and
0
(i) Redesignate paragraph (a)(16) of Alternate II as paragraph (a)(17).
The additions and revisions read as follows:
252.227-7013 Rights in technical data--noncommercial items.
* * * * *
(a) * * *
(5) 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), provided that the contractor--
(i) 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
(ii) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
* * * * *
(14) Limited rights means the rights to 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 used by
another party, except that the Government may reproduce, release, or
disclose such data or authorize the use or reproduction of the data by
persons outside the Government if--
(i) The reproduction, release, disclosure, or use is--
(A) Necessary for emergency repair and overhaul; or
(B) A release or disclosure to--
(1) A covered Government support contractor, for use, modification,
reproduction, performance, display, or release or disclosure to
authorized person(s) in performance of a Government contract; or
(2) A foreign government, of technical data other than detailed
manufacturing or process data, when use of such data
[[Page 11368]]
by the foreign government is in the interest of the Government and is
required for evaluational or informational purposes;
(ii) The recipient of the technical data is subject to a
prohibition on the further reproduction, release, disclosure, or use of
the technical data; and
(iii) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
* * * * *
(b) * * *
(3) * * *
(iv) The Contractor acknowledges that--
(A) Limited rights data is authorized to be released or disclosed
to covered Government support contractors;
(B) The Contractor will be notified of such release or disclosure;
(C) The Contractor (or the party asserting restrictions as
identified in the limited rights legend) may require each such covered
Government support contractor to enter into a non-disclosure agreement
directly with the Contractor (or the party asserting restrictions)
regarding the covered Government support contractor's use of such data,
or alternatively, that the Contractor (or party asserting restrictions)
may waive in writing the requirement for a non-disclosure agreement;
(D) Any such non-disclosure agreement shall address the
restrictions on the covered Government support contractor's use of the
limited rights data as set forth in the clause at 252.227-7025, and
shall not include any additional terms and conditions unless mutually
agreed to by the parties to the non-disclosure agreement; and
(E) The Contractor shall provide a copy of any such non-disclosure
agreement or waiver to the Contracting Officer, upon request.
* * * * *
0
8. Amend section 252.227-7014 as follows:
0
(a) Amend the clause date by removing ``(JUN 1995)'' and adding in its
place ``(MAR 2011)'';
0
(b) Amend the introductory text of paragraph (a) by removing ``:'' and
adding in its place ``--'';
0
(c) Redesignate paragraphs (a)(6) through (a)(15) as paragraphs (a)(7)
through (a)(16);
0
(d) Add new paragraph (a)(6) to read as set forth below;
0
(e) Revise newly designated paragraphs (a)(15)(iv), (a)(15)(v)(C) and
(D), and (a)(15)(vi)(B), and add (a)(15)(vii) to read as set forth
below;
0
(f) Add paragraph (b)(3)(iii) to read as set forth below.
The additions and revisions read as follows:
252.227-7014 Rights in noncommercial computer software and
noncommercial computer software documentation.
* * * * *
(a) * * *
(6) 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), provided that the contractor--
(i) 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
(ii) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
* * * * *
(15) * * *
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs
(a)(15)(i) and (iii) of this clause; and
(B) Not release or disclose the modified software except as
provided in paragraphs (a)(15)(ii), (v), (vi), and (vii) of this
clause;
(v) * * *
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(15)(iv) of this clause, for any other
purpose; and
(D) Such use is subject to the limitation in paragraph (a)(15)(i)
of this clause;
(vi) * * *
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(15)(iv) of this clause, for any other
purpose; and
(vii) Permit covered Government support contractors to use, modify,
reproduce, perform, display, or release or disclose the computer
software to authorized person(s) in the performance of Government
contracts that contain the clause at 252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends.
* * * * *
(b) * * *
(3) * * *
(iii) The Contractor acknowledges that--
(A) Restricted rights computer software is authorized to be
released or disclosed to covered Government support contractors;
(B) The Contractor will be notified of such release or disclosure;
(C) The Contractor (or the party asserting restrictions, as
identified in the restricted rights legend) may require each such
covered Government support contractor to enter into a non-disclosure
agreement directly with the Contractor (or the party asserting
restrictions) regarding the covered Government support contractor's use
of such software, or alternatively, that the Contractor (or party
asserting restrictions) may waive in writing the requirement for a non-
disclosure agreement;
(D) Any such non-disclosure agreement shall address the
restrictions on the covered Government support contractor's use of the
restricted rights software as set forth in the clause at 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends, and shall not include any
additional terms and conditions unless mutually agreed to by the
parties to the non-disclosure agreement; and
(E) The Contractor shall provide a copy of any such non-disclosure
agreement or waiver to the Contracting Officer, upon request.
* * * * *
0
9. Amend section 252.227-7015 as follows:
0
(a) Amend the clause date by removing ``(NOV 1995)'' and adding in its
place ``(MAR 2011)'';
0
(b) Revise paragraphs (a) and (b)(2), and add paragraph (b)(3) to read
as set forth below; and
0
(c) Revise Alternate I to read as set forth below.
The additions and revisions read as follows:
252.227-7015 Technical data--Commercial items.
* * * * *
(a) Definitions. As used in this clause--
(1) Commercial item does not include commercial computer software.
(2) Covered Government support contractor means a contractor under
a
[[Page 11369]]
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), provided that the contractor--
(i) 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
(ii) Receives access to technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
(3) 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, component, or process to the extent necessary
to permit identification of physically and functionally interchangeable
items.
(4) The term item includes components or processes.
(5) Technical data means recorded information, regardless of the
form or method of recording, of a scientific or technical nature
(including computer software documentation). The term does not include
computer software or data incidental to contract administration, such
as financial and/or management information.
(b) * * *
(2) Except as provided in paragraph (b)(1) of this clause, the
Government may use, modify, reproduce, release, perform, display, or
disclose technical data within the Government only. 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 use of the
technical data outside the Government without the Contractor's written
permission unless a release, disclosure, or permitted use is necessary
for emergency repair or overhaul of the commercial items furnished
under this contract, or for performance of work by covered Government
support contractors.
(3) The Contractor acknowledges that--
(i) Technical data covered by paragraph (b)(2) of this clause is
authorized to be released or disclosed to covered Government support
contractors;
(ii) The Contractor will be notified of such release or disclosure;
(iii) The Contractor (or the party asserting restrictions as
identified in a restrictive legend) may require each such covered
Government support contractor to enter into a non-disclosure agreement
directly with the Contractor (or the party asserting restrictions)
regarding the covered Government support contractor's use of such data,
or alternatively, that the Contractor (or party asserting restrictions)
may waive in writing the requirement for an non-disclosure agreement;
(iv) Any such non-disclosure agreement shall address the
restrictions on the covered Government support contractor's use of the
data as set forth in the clause at 252.227-7025, Limitations on the Use
or Disclosure of Government-Furnished Information Marked with
Restrictive Legends, and shall not include any additional terms and
conditions unless mutually agreed to by the parties to the non-
disclosure agreement; and
(v) The Contractor shall provide a copy of any such non-disclosure
agreement or waiver to the Contracting Officer, upon request.
* * * * *
Alternate I (Mar 2011)
As prescribed in 227.7102-3(a)(2), add the following paragraphs
(a)(6) and (b)(4) to the basic clause:
(a)(6) 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)(4) 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.
0
10. Amend section 252.227-7018 as follows:
0
(a) Amend the clause date by removing ``(JAN 2011)'' and adding in its
place ``(MAR 2011)'';
0
(b) Amend the introductory text of paragraph (a) by removing ``:'' and
adding in its place ``--'';
0
(c) Redesignate paragraphs (a)(6) through (a)(20) as paragraphs (a)(7)
through (a)(21);
0
(d) Add new paragraph (a)(6) to read as set forth below;
0
(e) Revise newly designated paragraph (a)(15) to read as set forth
below;
0
(f) Revise newly designated paragraphs (a)(18)(iv) through (a)(18)(vi)
to read as set forth below;
0
(g) Add new paragraph (a)(18)(vii) to read as set forth below; and
0
(h) Add paragraph (b)(8) to read as set forth below.
The additions and revisions read as follows:
252.227-7018 Rights in noncommercial technical data and computer
software--small business innovation research (SBIR) program.
* * * * *
(a) * * *
(6) 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), provided that the contractor--
(i) 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
(ii) Receives access to the technical data or computer software for
performance of a Government contract that contains the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
* * * * *
(15) Limited rights means the rights to 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 used by
another party, except that the Government may reproduce, release, or
disclose such data or authorize the use or reproduction of the data by
persons outside the Government if--
(i) The reproduction, release, disclosure, or use is--
[[Page 11370]]
(A) Necessary for emergency repair and overhaul; or
(B) A release or disclosure to--
(1) A covered Government support contractor, for use, modification,
reproduction, performance, display, or release or disclosure to
authorized person(s) in performance of a Government contract; or
(2) A foreign government, of technical data (other than detailed
manufacturing or process data), when use of such data by the foreign
government is in the interest of the Government and is required for
evaluational or informational purposes;
(ii) The recipient of the technical data is subject to a
prohibition on the further reproduction, release, disclosure, or use of
the technical data; and
(iii) The contractor or subcontractor asserting the restriction is
notified of such reproduction, release, disclosure, or use.
* * * * *
(18) Restricted rights apply only to noncommercial computer
software and mean the Government's rights to--
* * * * *
(iv) Modify computer software provided that the Government may--
(A) Use the modified software only as provided in paragraphs
(a)(18)(i) and (iii) of this clause; and
(B) Not release or disclose the modified 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, 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 are subject to the non-
disclosure agreement at 227.7103-7 of the Defense Federal Acquisition
Regulation Supplement or are Government contractors receiving access to
the software for performance of a Government contract that contains the
clause at 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends;
(C) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use 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;
(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 is subject to the non-disclosure
agreement at 227.7103-7 or is a Government contractor receiving access
to the software for performance of a Government contract that contains
the clause at 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends; and
(B) The Government shall not permit the recipient to decompile,
disassemble, or reverse engineer the software, or use software
decompiled, disassembled, or reverse engineered by the Government
pursuant to paragraph (a)(18)(iv) of this clause, for any other
purpose; and
(vii) Permit covered Government support contractors to use, modify,
reproduce, perform, display, or release or disclose the computer
software to authorized person(s) in the performance of Government
contracts that contain the clause at 252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends.
* * * * *
(b) * * *
(8) Covered Government support contractors. The Contractor
acknowledges that--
(i) Limited rights technical data and restricted rights computer
software are authorized to be released or disclosed to covered
Government support contractors;
(ii) The Contractor will be notified of such release or disclosure;
(iii) The Contractor may require each such covered Government
support contractor to enter into a non-disclosure agreement directly
with the Contractor (or the party asserting restrictions as identified
in a restrictive legend) regarding the covered Government support
contractor's use of such data or software, or alternatively that the
Contractor (or party asserting restrictions) may waive in writing the
requirement for a non-disclosure agreement;
(iv) Any such non-disclosure agreement shall address the
restrictions on the covered Government support contractor's use of the
data or software as set forth in the clause at 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information Marked with Restrictive Legends, and shall not include any
additional terms and conditions unless mutually agreed to by the
parties to the non-disclosure agreement; and
(v) The Contractor shall provide a copy of any such non-disclosure
agreement or waiver to the Contracting Officer, upon request.
* * * * *
0
11. Amend section 252.227-7025 as follows:
0
(a) Amend the clause date by removing ``(JAN 2011)'' and adding in its
place ``(MAR 2011)''; and
0
(b) Revise paragraphs (a) and (b) to read as set forth below.
252.227-7025 Limitations on the use or disclosure of government-
furnished information marked with restrictive legends.
* * * * *
(a)(1) For contracts in which the Government will furnish the
Contractor with technical data, the terms ``covered Government support
contractor,'' ``limited rights,'' and ``Government purpose rights'' are
defined in the clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items.
(2) For contracts in which the Government will furnish the
Contractor with computer software or computer software documentation,
the terms ``covered Government support contractor,'' ``government
purpose rights,'' and ``restricted rights'' are defined in the clause
at 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
(3) For Small Business Innovation Research program contracts, the
terms ``covered Government support contractor,'' ``limited rights,''
and ``restricted rights'' are defined in the clause at 252.227-7018,
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research (SBIR) Program.
(b) Technical data or computer software provided to the Contractor
as Government-furnished information (GFI) under this contract may be
subject to restrictions on use, modification, reproduction, release,
performance, display, or further disclosure.
(1) GFI marked with limited or restricted rights legends.
[[Page 11371]]
(i) The Contractor shall use, modify, reproduce, perform, or
display technical data received from the Government with limited rights
legends or computer software received with restricted rights legends
only in the performance of this contract. The Contractor shall not,
without the express written permission of the party whose name appears
in the legend, release or disclose such data or software to any
unauthorized person.
(ii) If the Contractor is a covered Government support contractor,
the Contractor further agrees and acknowledges that--
(A) The data or software will be accessed and used only for the
purposes stated in this contract and shall not be used to compete for
any Government or non-Government contract;
(B) The Contractor will take all reasonable steps to protect the
technical data or computer software against any unauthorized release or
disclosure;
(C) The Contractor will ensure that the party whose name appears in
the legend is notified of the Contractor's access or use of such data
or software;
(D) The Contractor will enter into a non-disclosure agreement with
the party whose name appears in the legend, if required to do so by
that party, and that any such non-disclosure agreement will implement
the restrictions on the Contractor's use of such data or software as
set forth in this clause, and shall not include any additional terms
and conditions unless mutually agreed to by the parties to the non-
disclosure agreement;
(E) The Contractor shall provide a copy of any such non-disclosure
agreement or waiver to the Contracting Officer, upon request; and
(F) That a breach of these obligations or restrictions may subject
the Contractor to--
(1) Criminal, civil, administrative, and contractual actions in law
and equity for penalties, damages, and other appropriate remedies by
the United States; and
(2) Civil actions for damages and other appropriate remedies by the
party whose name appears in the legend.
(2) GFI marked with government purpose rights legends. The
Contractor shall use technical data or computer software received from
the Government with government purpose rights legends for government
purposes only. The Contractor shall not, without the express written
permission of the party whose name appears in the restrictive legend,
use, modify, reproduce, release, perform, or display such data or
software for any commercial purpose or disclose such data or software
to a person other than its subcontractors, suppliers, or prospective
subcontractors or suppliers, who require the data or software to submit
offers for, or perform, contracts under this contract. Prior to
disclosing the data or software, the Contractor shall require the
persons to whom disclosure will be made to complete and sign the non-
disclosure agreement at 227.7103-7.
(3) GFI marked with specially negotiated license rights legends.
The Contractor shall use, modify, reproduce, release, perform, or
display technical data or computer software received from the
Government with specially negotiated license legends only as permitted
in the license. Such data or software may not be released or disclosed
to other persons unless permitted by the license and, prior to release
or disclosure, the intended recipient has completed the non-disclosure
agreement at 227.7103-7. The Contractor shall modify paragraph (1)(c)
of the non-disclosure agreement to reflect the recipient's obligations
regarding use, modification, reproduction, release, performance,
display, and disclosure of the data or software.
(4) GFI marked with commercial restrictive legends.
(i) The Contractor shall use, modify, reproduce, perform, or
display technical data that is or pertains to a commercial item and is
received from the Government with a commercial restrictive legend
(i.e., marked to indicate that such data are subject to use,
modification, reproduction, release, performance, display, or
disclosure restrictions) only in the performance of this contract. The
Contractor shall not, without the express written permission of the
party whose name appears in the legend, use the technical data to
manufacture additional quantities of the commercial items, or release
or disclose such data to any unauthorized person.
(ii) If the Contractor is a covered Government support contractor,
the Contractor further agrees and acknowledges that--
(A) The data or software will be accessed and used only for the
purposes stated in this contract and shall not be used to compete for
any Government or non-Government contract;
(B) The Contractor will take all reasonable steps to protect the
technical data against any unauthorized release or disclosure;
(C) The Contractor will ensure that the party whose name appears in
the legend is or has been notified of the Contractor's access or use of
such data;
(D) The Contractor will enter into a non-disclosure agreement with
the party whose name appears in the legend, if required to do so by
that party, and that any such non-disclosure agreement will implement
the restrictions on the Contractor's use of such data as set forth in
this clause, and shall not include any additional terms and conditions
unless mutually agreed to by the parties to the non-disclosure
agreement;
(E) The Contractor shall provide a copy of any such non-disclosure
agreement or waiver to the Contracting Officer, upon request; and
(F) That a breach of these obligations or restrictions may subject
the Contractor to--
(1) Criminal, civil, administrative, and contractual actions in law
and equity for penalties, damages, and other appropriate remedies by
the United States; and
(2) Civil actions for damages and other appropriate remedies by the
contractor or subcontractor whose technical data is affected by the
breach.
* * * * *
[FR Doc. 2011-4531 Filed 3-1-11; 8:45 am]
BILLING CODE 5001-08-P