Proposed Rule2022-27196
Defense Federal Acquisition Regulation Supplement: Small Business Innovation Research Data Rights (DFARS Case 2019-D043)
Primary source
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Published
December 19, 2022
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the data-rights portions of the Small Business Innovation Research Program and Small Business Technology Transfer Program Policy Directives. DoD will hold a public meeting to hear the views of interested parties.
Full Text
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<title>Federal Register, Volume 87 Issue 242 (Monday, December 19, 2022)</title>
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[Federal Register Volume 87, Number 242 (Monday, December 19, 2022)]
[Proposed Rules]
[Pages 77680-77703]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27196]
[[Page 77679]]
Vol. 87
Monday,
No. 242
December 19, 2022
Part II
Department of Defense
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Defense Acquisition Regulations System
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48 CFR Parts 212, 227 and 252
Defense Federal Acquisition Regulation Supplement: Small Business
Innovation Research Data Rights (DFARS Case 2019-D043); Proposed Rule
Federal Register / Vol. 87 , No. 242 / Monday, December 19, 2022 /
Proposed Rules
[[Page 77680]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 227 and 252
[Docket DARS-2020-0033]
RIN 0750-AK71
Defense Federal Acquisition Regulation Supplement: Small Business
Innovation Research Data Rights (DFARS Case 2019-D043)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement the data-rights portions of
the Small Business Innovation Research Program and Small Business
Technology Transfer Program Policy Directives. DoD will hold a public
meeting to hear the views of interested parties.
DATES: Comment due date: Comments on the proposed rule should be
submitted in writing to the address shown below on or before February
17, 2023, to be considered in the formation of a final rule.
Public meeting date: A virtual public meeting will be held on
February 2, 2023, from 1 p.m. to 5 p.m., Eastern time. The public
meeting will end at the stated time, or when the discussion ends,
whichever comes first.
Registration date: Registration to attend the public meeting must
be received no later than close of business on January 26, 2023.
Information on how to register for the public meeting may be found
under the SUPPLEMENTARY INFORMATION section of this notice.
ADDRESSES: Public Meeting: A virtual public meeting will be held using
Zoom video conferencing software.
Submission of Comments: Submit comments identified by DFARS Case
2019-D043, using any of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for ``DFARS Case 2019-D043.'' Select ``Comment'' and follow the
instructions provided to submit a comment. Please include ``DFARS Case
2019-D043'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#1a75697e347e7c7b68695a777b737634777376"><span class="__cf_email__" data-cfemail="07687463296361667574476a666e6b296a6e6b">[email protected]</span></a>. Include DFARS Case 2019-D043 in
the subject line of the message.
Comments received generally will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Mr. David E. Johnson, telephone 202-
913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement the intellectual
property (e.g., data rights) portions of the revised Small Business
Innovation Research (SBIR) Program and Small Business Technology
Transfer (STTR) Program Policy Directives. The Small Business
Administration (SBA) published in the Federal Register proposed
amendments to the SBIR Program and STTR Program Policy Directives,
which included combining the two directives in a single document, on
April 7, 2016, at 81 FR 20483. The final combined SBIR/STTR Policy
Directive was published on April 2, 2019, at 84 FR 12794, and became
effective on May 2, 2019.
DoD published an advance notice of proposed rulemaking (ANPR) on
August 31, 2020, at 85 FR 53758, providing draft DFARS revisions and
requesting written public comments. DoD hosted public meetings to
obtain the views of interested parties regarding the ANPR on January
14, 2021, and January 15, 2021.
The preamble to the ANPR provided detailed explanations of
revisions related to--
<bullet> A single, non-extendable, 20-year SBIR/STTR data
protection period, rather than a 5-year period that can be extended
indefinitely;
<bullet> Perpetual government purpose rights (GPR) license rights
after the expiration of the SBIR/STTR data protection period, rather
than unlimited rights; and
<bullet> Definitions that harmonize terminology used in the Policy
Directive and the Federal Acquisition Regulation (FAR) and DFARS
implementations.
Eight respondents submitted public comments in response to the
ANPR.
II. Public Meeting
DoD is interested in continuing a dialogue with experts and
interested parties in Government and the private sector regarding
amending the DFARS to implement the SBIR/STTR Policy Directive.
Registration: Individuals wishing to participate in the virtual
meeting must register by January 26, 2023, to facilitate entry to the
meeting. Interested parties may register for the meeting by sending the
following information via email to <a href="/cdn-cgi/l/email-protection#69061a0d470d0f081b1a290408000547040005"><span class="__cf_email__" data-cfemail="c2adb1a6eca6a4a3b0b182afa3abaeecafabae">[email protected]</span></a> and including
``Public Meeting, DFARS Case 2019-D043'' in the subject line of the
message:
<bullet> Full name.
<bullet> Valid email address, which will be used for admittance to
the meeting.
<bullet> Valid telephone number, which will serve as a secondary
connection method. Registrants must provide the telephone number they
plan on using to connect to the virtual meeting.
<bullet> Company or organization name.
<bullet> Whether the individual desires to make a presentation.
Pre-registered individuals will receive instructions for connecting
using the Zoom video conferencing software not more than one week
before the meeting is scheduled to commence.
Presentations: Presentations will be limited to 5 minutes per
company or organization. This limit may be subject to adjustment,
depending on the number of entities requesting to present, in order to
ensure adequate time for discussion. If you wish to make a
presentation, please submit an electronic copy of your presentation via
email to <a href="/cdn-cgi/l/email-protection#5f302c3b713b393e2d2c1f323e363371323633"><span class="__cf_email__" data-cfemail="721d01165c1614130001321f131b1e5c1f1b1e">[email protected]</span></a> no later than the registration date for the
specific meeting. Each presentation should be in PowerPoint to
facilitate projection during the public meeting and should include the
presenter's name, title, organization affiliation, telephone number,
and email address on the cover page.
Correspondence, Comments, and Presentations: Please cite ``Public
Meeting, DFARS Case 2019-D043'' in all correspondence related to the
public meeting. There will be no transcription at the meeting. The
submitted presentations will be the only record of the public meeting
and will be posted to the following website at the conclusion of the
public meeting: <a href="https://www.acq.osd.mil/dpap/dars/technical_data_rights.html">https://www.acq.osd.mil/dpap/dars/technical_data_rights.html</a>.
III. Discussion and Analysis
DoD reviewed the public comments in the development of the proposed
rule. A discussion of the comments and the changes made to the proposed
rule in response to those comments is provided, as follows:
A. Summary of Significant Changes from the ANPR
Edits are made to the proposed rule based on the public comments.
The proposed rule clarifies DFARS 227.7104-1, 227.7104-2, and 227.7104-
3, and the following DFARS contract clauses to reflect the objectives
of the SBIR/STTR Policy Directive--
[[Page 77681]]
<bullet> 252.227-7013, Rights in Technical Data--Noncommercial
Items;
<bullet> 252.227-7014, Rights in Noncommercial Computer Software
and Noncommercial Computer Software Documentation;
<bullet> 252.227-7015, Technical Data--Commercial Items;
<bullet> 252.227-7016, Rights in Bid or Proposal Information; and
<bullet> 252.227-7018, Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program.
Edits are made to the guidance at DFARS 227.7104-1 that mirror the
policies at DFARS 227.7103-1(c) and (d). These instructions prohibit
contracting officers from requiring offerors to relinquish SBIR/STTR
data rights or from rejecting offerors solely due to SBIR/STTR data
rights restrictions. Similar to the guidance at DFARS 227.7103-
10(a)(5), the proposed rule also indicates that, during the source
selection process, the Government may evaluate the impact of
restrictions on the Government's ability to use or disclose technical
data or computer software in a manner consistent with acquisition
preferences and other guidance applicable to SBIR/STTR offerors.
DFARS 252.227-7018 and the associated guidance to contracting
officers are revised to indicate that the term SBIR/STTR data
encompasses all technical data or computer software developed or
generated in the performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
The proposed rule also deletes the Alternate I clause for DFARS
252.227-7018. The clause is directed to the Government's publication of
technical data or software with a perpetual GPR license, which
conflicts with the scope of that license.
In addition, the proposed rule updates the marking requirements in
DFARS 252.227-7018 to require an ``unlimited rights'' marking for
technical data or software furnished to the Government without
restrictions. Because the current marking paradigm does not include an
``unlimited rights'' marking, Government personnel may be unsure
whether technical data or computer software with no restrictive
markings has been provided with an ``unlimited rights'' license or the
restrictive marking was inadvertently omitted. The SBIR/STTR Policy
Directive emphasizes the need to protect the intellectual property (IP)
interests of small businesses. To achieve this goal, DoD has updated
its marking requirements to resolve a long-standing gap that may
negatively impact the IP interests of small businesses. The proposed
rule provides a transparent and consistent framework that permits the
Government to easily identify and resolve inadvertently omitted
restrictive markings. To ensure consistency between DFARS 252.227-7018
and the other noncommercial technical data and software rights clauses,
this revision has also been applied to DFARS 252.227-7013 and DFARS
252.227-7014 for noncommercial technical data and software. For similar
reasons, the ``omitted markings'' procedures in DFARS 252.227-7018
(which are discussed in the guidance at DFARS 227.7103-10 and 227.7203-
10) have been applied to DFARS 252.227-7013 and DFARS 252.227-7014.
This allows DoD to better protect the IP interests of all of its
industry partners.
Lastly, the proposed rule includes revisions to the requirements
governing restrictive markings to address concerns raised in the public
comments and recent case precedent (see, e.g., The Boeing Co. v.
Secretary of the Air Force, 983 F.3d 1321 (Fed. Cir. 2020)). The
proposed revisions clarify the long-standing intent of the DFARS
marking requirements to limit restrictive markings on noncommercial
technical data and software to those specified in the clauses
(including prohibiting restrictive markings directed to non-
Governmental third parties) and add an unlimited rights marking to
mitigate against the risk of loss of IP rights by an inadvertent
omission of restrictive markings. The prohibition of nonstandard
markings, including restrictive markings directed to third-party
recipients, will reduce confusion for Government personnel seeking to
understand the Government's rights, and avoids the need to make case-
by-case determinations regarding whether a nonstandard marking--
<bullet> Must be corrected as nonconforming;
<bullet> Can be ignored as marking the contractor intended to apply
only to non-Governmental third parties; or
<bullet> Otherwise is not intended to identify and restrict the
Government's rights.
This revision facilitates the Government's review of technical data
and software deliverables by increasing standardization of
noncommercial restrictive markings throughout all DoD contracts. In
addition, these simplified marking procedures may be more
understandable to small businesses that are unfamiliar with DoD's
marking requirements.
For similar reasons to avoid confusion regarding the Government's
license rights, the proposed rule also clarifies the more open-ended
marking requirement for commercial technical data at DFARS 252.227-
7015. The revisions preserve the long-standing approach allowing
contractor discretion to choose and use its favored restrictive
marking, consistent with commercial practices or other contractor
preferences, while clarifying only that the restrictive marking used
must accurately reflect the Government's license rights. The proposed
revision will prevent confusing restrictive markings that do not
comport with the Government's license rights, while preserving
flexibility for commercial contractors in how they elect to mark their
technical data.
The proposed rule bolsters the existing standards for marking
requirements while fostering efficiency, transparency, and consistency
for both DoD and its contractors.
B. Analysis of Public Comments
1. Virtual Public Meetings
Comment: One respondent recommended that the DAR Council host a
virtual public meeting to discuss the substance of the ANPR.
Response: DoD hosted virtual public meetings on January 14, 2021,
and January 15, 2021. The meetings received positive feedback, and DoD
plans to host additional virtual public meetings in the future.
2. Clarifying Definitions in DFARS 252.227-7018 and Related Clauses
a. Clarifying the Definition of ``Data''
Comment: A respondent asserted that the definition of the term
``data'' implies that the scope is broader than technical data and
computer software. The respondent recommended removing this term and
replacing all instances of the term ``data'' with technical data,
computer software, or both (as applicable).
Response: DoD has adopted the respondent's recommendation.
b. Clarifying the Definition of ``SBIR/STTR Data''
Comment: Several respondents recommended revising the definition of
SBIR/STTR data. The respondents recommended referencing SBIR
subcontracts in the definition. The respondents also recommended
emphasizing that SBIR/STTR data applies in the context of phase I, II,
and III contracts. Furthermore, the respondents recommend referencing
agreements that are not governed by the FAR, such as other transaction
agreements, grants, cooperative agreements, and cooperative research
and development agreements. In
[[Page 77682]]
addition, the respondents recommended referencing instruments such as
task orders, delivery orders, and blanket purchase agreements.
Response: DoD partially adopted the respondents' recommendations by
referencing phase I, II, and III SBIR/STTR contracts in the definition
of SBIR/STTR data in DFARS 252.227-7018 and the guidance at DFARS
227.7104-2(a)(2). Because the DFARS governs FAR-based procurement
contracts only, DoD has not revised the definition of SBIR/STTR data to
include references to instruments that are not procurement contracts.
c. Clarifying Definitions in DFARS 252.227-7016
Comment: One respondent stated that there are portions of paragraph
(a) of DFARS 252.227-7016 where the subject of these sentences is
unclear, and recommended revising the clause to resolve these
ambiguities.
Response: DoD reviewed DFARS 252.227-7016, paragraph (a), and made
clarifying changes in response to the comment.
d. Definition of ``Form, Fit, and Function Data''
Comment: A respondent recommended revising the definition of the
term ``form, fit, and function data'' in DFARS 252.227-7018 to
encompass technical data identifying source, functional
characteristics, and performance requirements for computer software.
Response: This recommended revision is related to DFARS Case 2021-
D005, which implements recent statutory amendments in 10 U.S.C. 2320
and 2446a related to modular open systems approaches. To ensure
thorough and consistent application of this revision throughout DFARS
252.227-7013, DFARS 252.227-7015, and DFARS 252.227-7018, this revision
will be addressed in DFARS Case 2021-D005.
e. Consistent Use of the Terms ``Generated'' and ``Developed''
Comment: One respondent noted that the term ``generated'' is
referenced in DFARS 252.227-7013, but the term is not defined.
Therefore, the respondent recommended revising DFARS 252.227-7013 to
incorporate the definition of ``generated'' in DFARS 252.227-7018. Some
respondents recommended revising DFARS 252.227-7018(c)(5) and the
associated guidance at DFARS 227.7104 to reference technical data or
software ``developed'' under SBIR/STTR contracts, to ensure consistent
use of this term through this clause. Lastly, a respondent recommended
revising the definition of the term ``SBIR/STTR data'' to reference
technical data or computer software ``first or originally'' developed
or generated under SBIR/STTR contracts.
Response: DoD adopted these suggested revisions except for the last
one, revising the definition of the term ``SBIR/STTR data''. DoD did
not adopt this suggested revision because it could create confusion
(e.g., ``first created'' is already included in the definition of the
term ``generated'').
3. Resolving Inconsistencies with the Perpetual Government Purpose
Rights License in DFARS 252.227-7018
In the ANPR, DoD revised DFARS 252.227-7018(c) to indicate that the
Government is granted a perpetual GPR license after the SBIR/STTR
protection period has expired. Various respondents noted ambiguities or
inconsistencies that resulted from this revision.
a. Alternate I Clause for DFARS 252.227-7018
Comment: One respondent asserted that the Alternate I clause for
DFARS 252.227-7018 encourages publication of the SBIR/STTR data,
inducing SBIR/STTR firms to publish its data as a requirement for the
award. For this reason, the respondent recommended deletion of the
Alternate I clause. Another respondent recommended revising the
Alternate I clause to specify the Government's license rights after the
SBIR/STTR protection period expires.
Response: The perpetual GPR license does not permit publication of
SBIR/STTR data after the SBIR/STTR protection period expires. Because
the Alternate I clause no longer comports with the Government's license
rights in the proposed rule, DoD has proposed to remove the Alternate I
clause for DFARS 252.227-7018 in this proposed rule.
b. Clarifying the Scope of DFARS 252.227-7018(c)(1)(vi)
Comment: A respondent asserted that the scope of the technical data
and software referenced in DFARS 252.227-7018(c)(1)(vi) is unclear, in
view of the Government's perpetual GPR license after the SBIR/STTR
protection period expires.
Response: DoD has clarified the scope of DFARS 252.227-
7018(c)(1)(vi) to reference ``[t]echnical data or computer software
furnished to the Government, under this or any other Government
contract or subcontract thereunder, with license rights for which all
restrictive conditions on the Government have expired.''
4. Restrictive Markings
a. Applicability of the Marking Requirements to Prototypes and Other
Products
Comment: Some respondents recommended applying the marking
requirements to prototypes, end items, or products themselves.
Response: As discussed in the ANPR, the proposed rule recognizes
and references the SBIR/STTR Policy Directive guidance on prototypes in
DFARS 227.7104-2(c). Because the license rights and marking
requirements prescribed in DFARS part 227 apply only to technical data
and computer software rather than hardware, DoD has not adopted the
proposed revision to part 227 and the associated clauses.
b. Clarifying References to Restrictive Markings in DFARS 227.7104-1
Comment: One respondent asserted that it is unclear whether the
word ``appropriately'' in the phrase ``appropriately marked with the
SBIR/STTR data rights legend'' in DFARS 227.7104-1(a)(2) implies that
the marking: (1) conforms with the marking requirements; or (2) is
justified under the license terms in DFARS 252.227-7018. The respondent
recommended resolving this ambiguity by removing the word
``appropriately'' in DFARS 227.7104-1(a)(2).
Response: DoD has adopted the recommended revision to remove the
word ``appropriately'' in DFARS 227.7104-2(a)(2).
c. Protecting the IP Rights of Contractors by Reducing the Risk of
Inadvertent Omission of Restrictive Markings
Comment: A respondent noted that the SBIR/STTR program is intended
to foster innovation from small businesses. The respondent asserted the
current marking requirements penalize small businesses for making
inadvertent marking omissions, and the respondent indicated that the
proposed marking requirements will discourage new entrants from
entering the SBIR/STTR program. The respondent recommended deletion of
the ``Omitted Markings'' procedures in DFARS 252.227-7018(g)(2), and
suggested that the Government provide templates for guidance on
restrictive markings on technical data and software.
Response: Restrictive markings provide a critical tool for
protection of the IP interests of DoD contractors, facilitating proper
handling of technical data and software by the Government. The
``omitted markings'' procedures in DFARS 252.227-7018 provide
contractors with a mechanism for
[[Page 77683]]
correcting inadvertently omitted markings, to ensure that contractors
have ample opportunities to identify restrictions on technical data or
software. These procedures are based on the guidance on ``Terms of
Agreement Under SBIR/STTR Awards'' in the SBIR/STTR Policy Directive,
and are consistent with long-standing DFARS policy and procedures for
omitted markings on noncommercial technical data and computer software
(see DFARS 227.7103-10(c) and DFARS 227.7203-10(c)). Deletion of these
procedures would be inconsistent with the guidance in the Policy
Directive and established DoD noncommercial marking policy and
procedure.
DoD acknowledges the respondent's concerns about the risk of a
contractor unintentionally losing protection for its IP rights by
inadvertently omitting a required restrictive legend. The risk of
inadvertent omission may also be increased by the current lack of a
requirement for an ``unlimited rights'' marking, relying on the absence
of a restrictive marking to indicate that the Government has unlimited
rights. Under this approach, contractor and Government personnel may be
unsure whether technical data or computer software delivered with no
restrictive markings has been intentionally provided with ``unlimited
rights,'' or whether a restrictive marking was inadvertently omitted.
The proposed rule resolves this long-standing issue with the marking
requirements by adding an unlimited rights marking, similar to an
approach previously proposed in DFARS Case 2010-D001(see 75 FR 59412,
59448 September 27, 2010). The revisions establish a marking
requirement for all delivered technical data and computer software
governed by the SBIR/STTR data rights clause, eliminating the potential
confusion regarding whether unmarked data or software is provided with
unlimited rights or whether a restrictive marking was inadvertently
omitted. The proposed rule provides a transparent and consistent
framework that permits both Government and contractor personnel to
easily identify and avoid inadvertently omitted restrictive markings,
which improves protections for contractors' IP interests. To ensure
consistency and address this same concern in the markings required for
all noncommercial technical data and computer software, the unlimited
rights marking requirement has also been applied to DFARS 252.227-7013
and DFARS 252.227-7014. To minimize administrative burdens for
contractors, the unlimited rights marking is identical in all of these
clauses.
5. Narrowing or Clarifying the Scope of Certain Categories of License
Rights
a. Narrowing the Scope of the GPR License and SBIR/STTR Data Rights
License
Comment: One respondent recommended narrowing the GPR license to
only allow distribution to covered Government support contractors.
Another respondent recommended narrowing the scope of the SBIR/STTR
data rights license to prohibit uses of SBIR/STTR data within the
Government that would ``undermine the small business concern or
successor firm's future commercialization of the associated
technology.''
Response: DoD has not adopted the respondent's recommended
revisions because the current scope of the SBIR/STTR data rights
comports with the guidance set forth in the 2019 SBIR/STTR Policy
Directive. Furthermore, the respondent's recommendation does not
provide a clear scope of uses permitted within the Government.
b. Clarifying the Scope of the GPR License
Comment: A respondent recommended that the proposed rule provide
examples of ``competitive procurements'' to clarify the scope of the
GPR license.
Response: DoD has not adopted the recommended revision because this
term is well known and is used in various clauses. In addition,
examples of competitive procurements may be misconstrued to narrow the
scope of the GPR license.
c. Restrictions on Third-Party Recipients of SIBR/STTR Data
Comment: One of the respondents recommended emphasizing
restrictions on third-party use of SBIR/STTR data in DFARS 252.227-
7018(a)(16)(ii).
Response: DoD has not adopted the respondent's recommended
revisions because the restrictions on use of SBIR/STTR data by third-
party recipients are already specified in DFARS 252.227-
7018(c)(2)(iii).
d. Royalty-Free License Rights
Comment: A respondent recommended revising the scope of the SBIR/
STTR data rights license to grant a royalty-free license only upon
expiration of the SBIR/STTR data protection period. The respondent also
recommended clarifying DFARS 252.227-7018(c) to describe how the
royalty-free license rights differ or complement the Government's
license rights after the SBIR/STTR data protection period expires.
Response: In DFARS 252.227-7018(c), the grant of ``royalty-free,
worldwide, nonexclusive, irrevocable license rights'' applies to all of
the categories of license rights in paragraph (c) of the clause. DoD
has not adopted the recommended revisions, because the Government's
license rights under this clause comport with the guidance provided in
the 2019 SBIR/STTR Policy Directive; and the scope of the Government's
license rights, during and after the SBIR/STTR protection period, are
already defined in DFARS 252.227-7018 paragraphs (c)(2)(ii)(B) and
(c)(5).
6. Restructuring Clauses and Revising the Scope of the Applicability of
Clauses
Comment: A respondent recommended removing any revisions to the
guidance at DFARS 227.7104 related to SBIR/STTR data that later is
considered commercial. The respondent also recommended deleting the
applicability section in DFARS 252.227-7015(b); revising the
applicability sections in DFARS 252.227-7013(b) and DFARS 252.227-
7018(b); and retaining the original order of the paragraphs in DFARS
252.227-7013 and 252.227-7018. The respondent also recommended adding
an alternate version of DFARS 252.227-7015 that would recognize funding
contributions of the Government and the contractors. Other respondents
recommended restructuring DFARS 252.227-7018 to combine it with other
license rights clauses. One respondent recommended clarification of the
scope of the clauses (as discussed in paragraph (b) of these clauses)
and the further explanation of application of the prescribed license
rights.
Response: DoD added applicability sections to the clauses and the
associated guidance to contracting officers to clarify contractors' and
contracting officers' understanding of the scope of DFARS 252.227-7013,
252.227-7014, 252.227-7015, and 252.227-7018. These revisions will
ensure proper application of the SBIR/STTR data rights clause, as
prescribed in the SBIR/STTR Policy Directive, and other clauses. For
this reason, DoD has not adopted the respondents' recommendations for
removal or revision of the applicability sections. In response to
recommendations related to substantial restructuring of the
aforementioned clauses and allocation of licenses in DFARS 252.227-7015
based on funding contributions, these revisions are out of scope for
the current case.
[[Page 77684]]
7. Narrowing the Flowdown Requirements in DFARS 252.227-7018 and
Applicability of the Assertion Requirements in DFARS 252.227-7017
a. Assertion Requirements
Comment: One respondent asserted that the identification and
assertion requirements in DFARS 252.227-7017 should not be applied to
SBIR/STTR data. The respondent provides the following assertions to
support this position: (1) technical data and software requirements are
not known prior to contract award; (2) the assertions requirement is
redundant because Contract Data Requirements Lists (CDRLs) already
specify the applicable distribution statement; and (3) some details of
software deliverables (such as the software name and version) are
unknown prior to contract award.
Response: The assertion requirements are necessary to identify and
protect the IP interests of contractors and subcontractors under SBIR/
STTR contracts, because they provide a practical document that
specifically identifies SBIR/STTR technical data and software furnished
with restrictions. CDRLs (which should be included with the
solicitation) provide the technical data and software requirements that
will allow contractors to identify SBIR/STTR data with restrictions and
provide information to the Government on license restrictions. This
assertion requirement allows the Government to ask offerors or
contractors questions about assertions to efficiently resolve any
misconceptions about the Government's license rights. The assertions
should clearly identify the technical data or software furnished with
restrictions so the Government can understand what deliverables are
being referenced and cross-reference the assertions table and the
restrictive markings on the deliverables. Assertions tables and CDRLs
are not redundant, because distribution statements do not provide
specifics of license restrictions, and assertions tables allow
contracting officer technical representatives to cross-reference the
asserted restrictions with technical data and software deliverables to
ensure that they are properly marked. DFARS 252.227-7018 permits
revisions to the assertions table ``when based on new information or
inadvertent omissions unless the inadvertent omissions would have
materially affected the source selection decision.'' For these reasons,
DoD has not adopted the respondent's recommendations.
b. Flowdown Requirements
Comment: A respondent asserted that the flowdown requirements may
significantly increase administrative burden on small businesses.
Another respondent recommended revising DFARS 252.227-7013 and 252.227-
7014 to indicate that DFARS 252.227-7018 will govern technical data
that is SBIR/STTR data. Some respondents recommended revising the
flowdown requirements to require contractors to insert DFARS 252.227-
7018 in any SBIR/STTR subcontracts as defined by the SBA SBIR/STTR
Policy Directive.
Response: These flowdown requirements ensure that subcontractors,
including small businesses, are afforded the same protections as prime
contractors. If there are no subcontracts for the small business prime
contractor or the subcontractors are not delivering technical data,
then the flowdown requirements are not applicable. Regardless of the
flowdown requirements, the prime contractor is obligated to ensure that
the Government is granted the standard license rights under the
applicable clauses. The flowdown requirement provides a mechanism to
facilitate this license grant.
The DFARS 252.227-7013 definition of ``unlimited rights'' in
paragraph (a), DFARS 252.227-7013 paragraph (b)(2), the associated
guidance for contracting officers, and the mandatory flowdown
requirements in DFARS 252.227-7018 already include the suggested
revisions. The proposed rule instructs contracting officers to use
DFARS 252.227-7018 when SBIR/STTR data is delivered, developed, or
generated during contract performance. In addition, the proposed rule
indicates that when a portion of contract performance is governed by
the SBIR or STTR program (e.g., performance of one or more subcontracts
qualifies as a phase III SBIR or STTR award), the clause at 252.227-
7018 applies to the technical data or computer software that is
governed by the SBIR or STTR program. Furthermore, DFARS 252.227-
7013(b)(2) already indicates that DFARS 252.227-7018 governs SBIR/STTR
data, and the flowdown requirements in DFARS 252.227-7018 already
require flowdown to subcontracts. For these reasons, DoD has not
adopted the respondent's recommendations.
8. Application of the SBIR/STTR Protection Period
Comment: Some respondents recommended clarification on application
of the 20-year SBIR/STTR data protection period. One of the respondents
recommended clarification on how the SBIR/STTR data protection period
is applied for SBIR/STTR contracts that predate the SBIR/STTR Policy
Directive, contracts that were awarded with DFARS 252.227-7018, Rights
in Noncommercial Technical Data and Computer Software--Small Business
Innovation Research (SBIR) Program (MAR 2020) (DEVIATION 2020-O0007),
and contracts that are extensions or derivations from work performed
under those previous contracts.
Response: The proposed rule indicates that the SBIR/STTR data
``protection period is not extended by any subsequent SBIR/STTR
contracts under which any portion of that SBIR/STTR data is used or
delivered. The SBIR/STTR data protection period of any such subsequent
SBIR/STTR contract applies only to the SBIR/STTR data that are
developed or generated under that subsequent contract.'' However, DoD
has adopted the respondent's recommendation by further clarifying
application of the SBIR/STTR protection period in DFARS 252.227-
7018(c)(5).
9. STTR Solicitation and Clause Regarding Agreements Between
Contractors and Partnering Research Institutions Allocating IP Rights
Comment: A respondent recommended revising 252.227-70XX and
252.227-70YY to only require draft allocation agreements or agreements
to negotiate in good faith.
Response: The Government cannot and should not rely upon a draft
agreement that is not legally binding or an agreement to simply
negotiate with no contractual obligations. Therefore, DoD has not
adopted the respondent's recommendation.
10. Additional Comments and Recommendations
a. Negative Impacts of the Updated SBIR/STTR Data Protection Period
Comment: A respondent asserted that the 20-year SBIR/STTR data
protection period negatively impacts the Government's use of software
related to large systems developed by DoD program managers and
laboratories.
Response: DoD notes that the updated SBIR/STTR data protection
period limits extension of the protection period. Such limitations do
not exist in the extant version of DFARS 252.227-7018. Furthermore,
notwithstanding license restrictions on SBIR/STTR data, DoD regularly
achieves its technology transition goals using SBIR/STTR data.
[[Page 77685]]
b. Guidance on Source Selection Procedures Related to SBIR/STTR Data
Rights
Comment: One respondent recommended prescriptive guidance for
contracting officers that prohibits deeming an offeror ineligible for
contract award due to license restrictions on SBIR/STTR data.
Response: DoD adopted the respondent's recommendation in DFARS
227.7104-1, which mirrors existing language in DFARS 227.7103-1(c) and
(d) and 227.7103-10(a)(5).
c. Recommendations Addressed by Existing DFARS Guidance,
Recommendations Not Directed to Contracting Officers, and
Recommendations Unrelated to License Rights
Comment: A respondent recommended specific language that prohibits
preferences or requirements related to collaboration with Federal
laboratories or DoD sponsored or funded entities. The respondent also
recommended revising the proposed rule to include guidance that is
directed to policy or regulatory decision-makers (rather than
contracting officers). In addition, the respondent recommended
prescriptive guidance that indicates that the SBIR/STTR Policy
Directive supersedes DFARS prescriptive guidance, provisions, and
clauses. The respondent also recommended prescriptive guidance
regarding contractor copyright ownership; patent rights for small
businesses; prohibitions against preaward license negotiations related
to SBIR/STTR data; and improper uses of interagency acquisitions that
circumvent the DFARS prescriptive guidance on SBIR/STTR contracts.
Response: The respondent's first recommendation is related to
technical evaluation factor requirements that are not related to
license rights, which is beyond the scope of this rule. In response to
the respondent's second recommendation, the DFARS should only include
guidance or requirements for contracting officers rather than guidance
that is intended for policy or regulatory decision-makers. In response
to the respondent's third comment, the proposed rule includes guidance,
provisions, and clauses that are intended to fully implement IP
portions of the SBIR/STTR Policy Directive. However, the SBIR/STTR
Policy Directive does not supersede DFARS guidance for contracting
officers, provisions, and clauses. The respondent's other
recommendations are already addressed in existing guidance and clauses
related to postaward license negotiations regarding SBIR/STTR data in
DFARS 227.7104-2(a)(2); retention of rights by the contractor in DFARS
252.227-7018(c); patent rights for small businesses in FAR 52.227-11;
and interagency acquisitions in FAR subpart 17.7. For these reasons,
DoD has not adopted the respondent's recommendations.
d. Liability and Reimbursement Obligations
Comment: One respondent recommended revising the ``release from
liability'' section in DFARS 252.227-7018 to impose liability and
reimbursement obligations for the Government related to damages caused
by unauthorized disclosure of technical data or software.
Response: The Disputes clause and the Contracts Disputes statute
govern claims related to breach of contract. In addition, the
recommended revisions create open-ended funding obligations for
reimbursement of ``all costs and reasonable attorney fees'', which are
not authorized by any existing policy, statute, or regulation. For
these reasons, DoD has not adopted the respondent's recommendation.
e. Potential Topic for DoD Guidance and Training
Comment: A respondent recommended that DoD develop guidance and
workforce training on examples of modifications or changes to
preexisting commercial and noncommercial items made in the performance
of a DoD contract.
Response: Although DoD is continuously improving its guidance and
training, this recommendation is outside the scope of this rule.
C. Other Changes
Because the terms ``legends'' and ``markings'' are interchangeable,
the proposed rule changes all instances of ``legends'' to ``markings''
in part 227 and the associated solicitations and clauses for the sake
of consistency. A minor change is also made at DFARS 212.301(f)(xii)(A)
for DFARS clause 252.227-7013 to add a cross-reference to 227.7102-
4(b).
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
The proposed rule clarifies the following DFARS solicitation
provision and contract clauses to reflect the objectives of the SBIR/
STTR Policy Directive: 252.227-7013, Rights in Technical Data-
Noncommercial Items; 252.227-7014, Rights in Noncommercial Computer
Software and Noncommercial Computer Software Documentation; 252.227-
7015, Technical Data-Commercial Items; 252.227-7016, Rights in Bid or
Proposal Information; 252.227-7017, Identification and Assertion of
Use, Release, or Disclosure Restrictions; 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software-Small Business
Innovation Research Program and Small Business Technology Transfer
Program; and 252.227-7025, Limitation on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends.
DFARS clauses 252.227-7013, 252.227-7015, and 252.227-7037 will
continue to apply to contracts at or below the SAT and for the
acquisition of commercial items, including COTS items. In addition,
DFARS 252.227-7018 will apply to contracts at or below the SAT and for
the acquisition of commercial items, including COTS items.
This rule also proposes to create a new provision and a new clause:
(1) DFARS 252.227-70XX, Additional Preaward Requirements for Small
Business Technology Transfer Program, and (2) DFARS 252.227-70YY,
Additional Postaward Requirements for Small Business Technology
Transfer Program. The new provision and clause will apply to
acquisitions at or below the SAT and to acquisitions of commercial
items, including COTS items. Not applying this provision and clause to
contracts below the SAT and for the acquisition of commercial items,
including COTS items, would exclude contracts intended to be covered by
this rule and undermine the overarching purpose of the rule.
Consequently, DoD plans to apply the rule to contracts below the SAT
and for the acquisition of commercial items, including COTS items.
V. Expected Impact of the Rule
The SBIR/STTR Policy Directive updates the SBIR/STTR data
protection period to a single, non-extendable 20-year period, rather
than an extendable 5-year period. The proposed rule also provides the
Government with perpetual GPR license rights after the expiration of
the SBIR/STTR data protection period, rather than unlimited rights. In
addition, the proposed rule implements STTR-unique requirements in the
SBIR/STTR Policy Directive related to allocation of IP rights between
partnering institutions and contractors under the STTR program. The
proposed
[[Page 77686]]
rule removes an alternate clause for DFARS 252.227-7018, which
previously allowed the Government to elect not to exercise its right to
publish or authorize others to publish SBIR data. Lastly, the proposed
rule updates the marking requirements in DFARS 252.227-7013, 252.227-
7014, and 252.227-7018 to require an ``unlimited rights'' marking for
technical data or software furnished to the Government without
restrictions. The updated marking requirements permit contractors to
use only the restrictive markings specified in the clause. The proposed
rule also revises DFARS 252.227-7015 to indicate that restrictive
markings on commercial technical data must accurately reflect the
Government's license rights.
The proposed rule therefore impacts the Government's license rights
in SBIR/STTR data and the contractor's marking obligations. The SBIR/
STTR Policy Directive emphasizes the need to protect the IP interests
of small businesses. The proposed rule provides a transparent and
consistent framework that permits the Government to easily identify and
resolve inadvertently omitted restrictive markings, which allows DoD to
better protect the IP interests of our small-business industry
partners.
VI. 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 not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VII. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. This rule is not
anticipated to be a major rule under 5 U.S.C. 804.
VIII. Regulatory Flexibility Act
DoD does not expect this proposed 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.,
because the rule primarily benefits small entities by emphasizing
protection of small entities' intellectual property, therefore
balancing any additional compliance requirements under the rule.
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
DoD is proposing to amend the DFARS to implement the data-rights
portions of the revised SBA Small Business Innovation Research (SBIR)
Program and Small Business Technology Transfer (STTR) Program Policy
Directive. The final combined SBA SBIR/STTR Policy Directive became
effective on May 2, 2019.
The objectives of the rule are to implement the data-rights
portions of the SBA SBIR/STTR Policy Directive. Accordingly, the rule
provides the following:
<bullet> A single, non-extendable, 20-year SBIR/STTR data
protection period, rather than the extant 5-year period that can be
extended indefinitely;
<bullet> Perpetual government purpose rights (GPR) license rights
after the expiration of the SBIR/STTR data protection period, rather
than unlimited rights; and
<bullet> Definitions that harmonize terminology used in the Policy
Directive and the Federal Acquisition Regulation (FAR) and DFARS
implementations.
The rule provides a new DFARS solicitation provision and a contract
clause applicable to STTR awards where no such coverage has existed.
Further, the rule updates DFARS provision and clauses 252.227-7013,
Rights in Technical Data--Noncommercial Item; 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; 252.227-7015, Technical Data-Commercial Items, 252.227-
7016; Rights in Bid or Proposal Information; 252.227-7017,
Identification and Assertion of Use, Release, or Disclosure
Restrictions; 252.227-7018, Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program;
252.227-7019, Validation of Asserted Restrictions--Computer Software;
and 252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information Marked with Restrictive Legends.
The SBIR/STTR Policy Directive emphasizes the need to protect the
intellectual property interests of small businesses. To achieve this
goal, DoD has updated its marking requirements to resolve a long-
standing gap that may negatively impact the intellectual property
interests of small businesses. The proposed rule provides a transparent
and consistent framework that permits the Government to easily identify
and resolve inadvertently omitted restrictive markings, which allows
DoD to better protect the intellectual property interests of our small-
business industry partners.
The legal basis for the rule is 41 U.S.C. 1303.
This proposed rule will apply to small entities that have contracts
with DoD requiring delivery of data, including technical data and
computer software. Based on data from Electronic Data Access for fiscal
year (FY) 2018 through FY 2020, DoD estimates that 23,771 contractors
may be impacted by the changes in this proposed rule. Of those
entities, approximately 15,718 (66 percent) are small entities.
This proposed rule imposes new reporting, recordkeeping, or other
compliance requirements for small entities participating in the STTR
program. The changes in this proposed rule add a requirement for
offerors responding to solicitations under the STTR program to submit,
to be eligible for award, both a written agreement and a written
representation to the contracting officer for review. Further, the
proposed rule requires STTR contractors to submit both an updated
written agreement and an updated written representation to the
contracting officer as occasioned. Based on data from SBA for FY 2018
through FY 2020, DoD estimates that an average of 302 unique small
entities are awarded an average of 444 STTR contract actions on an
annual basis. DoD estimates that senior employees are necessary to
prepare the written agreement and written representation because of the
complexity of the matter, and the written representation requires
execution by an employee authorized to bind the company.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known alternatives which would accomplish the stated
objectives of this proposed rule.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C.
[[Page 77687]]
610. Interested parties must submit such comments separately and should
cite 5 U.S.C. 610 (DFARS Case 2019-D043), in correspondence.
IX. Paperwork Reduction Act
This rule contains 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). Accordingly, DoD has submitted a
request for approval of a new information collection requirement
concerning DFARS Case 2019-D043, Small Business Innovation Research
Program Data Rights, to the Office of Management and Budget.
A. Estimated Public Reporting Burden
Public reporting burden for this collection of information is
estimated to average 20 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 302.
Responses per respondent: 1.5.
Total annual responses: 453.
Preparation hours per response: 20 hours.
Total response burden hours: 9,060.
B. Request for Comments Regarding Paperwork Burden
Written comments and recommendations on the proposed information
collection, including suggestions for reducing this burden, should be
sent to Ms. Susan Minson at the Office of Management and Budget, Desk
Officer for DoD, Room 10236, New Executive Office Building, Washington,
DC 20503, or email <a href="/cdn-cgi/l/email-protection#0c5f797f6d62534122534165627f63624c63616e2269637c226b637a"><span class="__cf_email__" data-cfemail="6e3d1b1d0f00312340312307001d01002e01030c400b011e40090118">[email protected]</span></a>, with a copy to the
Defense Acquisition Regulations System, Attn: David E. Johnson at
<a href="/cdn-cgi/l/email-protection#137c60773d7775726160537e727a7f3d7e7a7f"><span class="__cf_email__" data-cfemail="f39c8097dd9795928180b39e929a9fdd9e9a9f">[email protected]</span></a>. Comments can be received from 30 to 60 days after
the date of this notice, but comments to OMB will be most useful if
received by OMB within 30 days after the date of this notice. Public
comments are particularly invited on: whether this collection of
information is necessary for the proper performance of functions of the
DFARS, and will have practical utility; whether DoD's estimate of the
public burden of this collection of information is accurate, and based
on valid assumptions and methodology; ways to enhance the quality,
utility, and clarity of the information to be collected; and ways to
minimize the burden of the collection of information on those who are
to respond, through the use of appropriate technological collection
techniques or other forms of information technology.
To obtain a copy of the supporting statement and associated
collection instruments, please email <a href="/cdn-cgi/l/email-protection#ee819d8ac08a888f9c9dae838f8782c0838782"><span class="__cf_email__" data-cfemail="e8879b8cc68c8e899a9ba885898184c6858184">[email protected]</span></a>. Include DFARS
Case 2019-D043 in the subject line of the message.
List of Subjects in 48 CFR Parts 212, 227, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 227, and 252 are proposed to be
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
0
2. Amend section 212.301 by--
0
a. Revising paragraph (f)(xii)(A);
0
b. Redesignating paragraph (f)(xii)(C) as paragraph (f)(xii)(D);
0
c. Adding a new paragraph (f)(xii)(C) and paragraphs (f)(xii)(E) and
(F).
The revision and additions read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(xii) * * * (A) Use the clause at 252.227-7013, Rights in Technical
Data-Noncommercial Items, as prescribed in 227.7102-4(b) and 227.7103-
6(a). Use the clause with its Alternate I as prescribed in 227.7103-
6(b)(1). Use the clause with its Alternate II as prescribed in
227.7103-6(b)(2), to comply with 10 U.S.C. 8687 and 17 U.S.C. 1301, et
seq.
* * * * *
(C) Use the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software-Small Business Innovation Research
Program and Small Business Technology Transfer Program, as prescribed
in 227.7104-4(a)(1).
* * * * *
(E) Use the provision at 252.227-70XX, Additional Preaward
Requirements for Small Business Technology Transfer Program, as
prescribed in 227.7104-4(c)(1).
(F) Use the clause at 252.227-70YY, Additional Postaward
Requirements for Small Business Technology Transfer Program, as
prescribed in 227.7104-4(c)(2).
* * * * *
PART 227--PATENTS, DATA, AND COPYRIGHTS
227.7103-5 [Amended]
0
3. Amend section 227.7103-5--
0
a. In paragraph (b)(4) introductory text, by removing the words
``government'' and ``legends'' and adding ``Government'' and
``markings'' in their places, respectively;
0
b. In paragraph (b)(4)(i), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place;
0
c. In paragraph (b)(4)(ii), by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
d. In paragraph (b)(5), by removing ``legends'', ``252-227-7025'', and
``non-disclosure'' and adding ``markings'', ``252.227-7025'', and
``nondisclosure'' in their places, respectively;
0
e. In paragraph (b)(6), by removing ``legends'' and ``non-disclosure''
wherever it appears, and adding ``markings'' and ``nondisclosure'' in
their places, respectively; and removing ``Commerce Business Daily''
and adding ``System for Award Management'' in its place; and
0
f. In paragraph (c)(4) by removing ``non-disclosure'' and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'' and
``Information with Restrictive Markings'' in their places,
respectively.
0
4. Amend section 227.7103-6--
0
a. In paragraph (a), by revising the second sentence and adding a new
third sentence; and
0
b. In paragraph (c), by removing ``Information Marked with Restrictive
Legends'' and ``legend(s)'' and adding ``Information with Restrictive
Markings'' and ``marking(s)'' in their places, respectively.
The revision reads as follows:
227.7103-6 Contract clauses.
(a) * * * 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), or special works (see
227.7106). When contracting under the Small Business Innovation
Research (SBIR) Program or the Small Business Technology Transfer
(STTR) Program, see 227.7104-4(a). * * *
* * * * *
0
5. Amend section 227.7103-7--
0
a. By revising the section heading;
0
b. In paragraph (a) introductory text, by removing ``subsection'',
``parties'',
[[Page 77688]]
and ``non-disclosure'' and adding ``section'', ``parties,'', and
``nondisclosure'' in their places;
0
c. Revising paragraphs (a)(1) and (2);
0
d. In paragraph (b), by removing ``non-disclosure'' and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'' and
``Information with Restrictive Markings'' in their places,
respectively;
0
e. In paragraph (c) introductory text by removing ``non-disclosure''
and adding ``nondisclosure'' in its place;
0
f. In the agreement ``Use and Non-Disclosure Agreement'', by revising
the agreement title, and paragraphs (1) and (5) of the agreement and
the parenthetical clause at the end of the agreement.
The revisions read as follows:
227.7103-7 Use and nondisclosure agreement.
(a) * * *
(1) The specific conditions under which an intended recipient will
be authorized to use, modify, reproduce, release, perform, display, or
disclose technical data subject to limited rights, or SBIR/STTR data
rights, or computer software subject to restricted rights or SBIR/STTR
data rights must be stipulated in an attachment to the use and
nondisclosure agreement.
(2) For an intended release, disclosure, or authorized use of
technical data or computer software subject to special license rights,
modify paragraph (1)(d) of the use and nondisclosure agreement in
paragraph (c) of this section to enter the conditions, consistent with
the license requirements, governing the recipient's obligations
regarding use, modification, reproduction, release, performance,
display, or disclosure of the data or software.
* * * * *
Use and Nondisclosure Agreement
* * * * *
(1) The Recipient shall--
(a) Use, modify, reproduce, release, perform, display, or disclose
Data marked with government purpose rights markings or SBIR/STTR data
rights markings (after expiration of the SBIR/STTR data protection
period provided in the SBIR/STTR data rights marking) only for
government purposes and shall not do so for any commercial purpose. The
Recipient shall not release, perform, display, or disclose these Data,
without the express written permission of the contractor whose name
appears in the restrictive marking (the ``Contractor''), to any person
other than its subcontractors or suppliers, or prospective
subcontractors or suppliers, who require these Data to submit offers
for, or perform, contracts with the Recipient. The Recipient shall
require its subcontractors or suppliers, or prospective subcontractors
or suppliers, to sign a use and nondisclosure agreement prior to
disclosing or releasing these Data to such persons. Such agreement must
be consistent with the terms of this agreement.
(b) Use, modify, reproduce, release, perform, display, or disclose
technical data marked with limited rights or SBIR/STTR data rights
markings only as specified in the attachment to this Agreement.
Release, performance, display, or disclosure to other persons is not
authorized unless specified in the attachment to this Agreement or
expressly permitted in writing by the Contractor. The Recipient shall
promptly notify the Contractor of the execution of this Agreement and
identify the Contractor's Data that has been or will be provided to the
Recipient, the date and place the Data were or will be received, and
the name and address of the Government office that has provided or will
provide the Data.
(c) Use computer software marked with restricted rights or SBIR/
STTR data rights markings only in performance of Contract Number
[Insert contract number(s)]. The recipient shall not, for example,
enhance, decompile, disassemble, or reverse engineer the software; time
share, or use a computer program with more than one computer at a time.
The recipient may not release, perform, display, or disclose such
software to others unless expressly permitted in writing by the
licensor whose name appears in the restrictive marking. The Recipient
shall promptly notify the software licensor of the execution of this
Agreement and identify the software that has been or will be provided
to the Recipient, the date and place the software were or will be
received, and the name and address of the Government office that has
provided or will provide the software.
(d) Use, modify, reproduce, release, perform, display, or disclose
Data marked with special license rights markings. [To be completed by
the contracting officer. See 227.7103-7(a)(2). Omit if none of the data
requested is marked with special license rights markings.]
* * * * *
(5) The Recipient agrees to indemnify and hold harmless the
Government, its agents, and employees from every claim or liability,
including attorneys' fees, court costs, and expenses arising out of, or
in any way related to, the misuse or unauthorized modification,
reproduction, release, performance, display, or disclosure of Data
received from the Government with restrictive markings by the Recipient
or any person to whom the Recipient has released or disclosed the Data.
* * * * *
(End of use and nondisclosure agreement)
227.7103-10 [Amended]
0
6. Amend section 227.7103-10--
0
a. In paragraph (b)(2), by removing ``pre-existing'' and ``legend'' and
adding ``preexisting'' and ``marking'' in their places, respectively;
0
b. In paragraph (c)(2), by removing ``legends'' and ``six months'' and
adding ``markings'' and ``6 months'' in their places, respectively; and
0
c. In paragraph (c)(3), by removing ``use or disclosure'' and adding
``use or disclosure that are consistent with the proposed restrictive
marking'' in its place.
227.7103-12 [Amended]
0
7. Amend section 227.7103-12 paragraph (b)(1) by removing ``legends''
and adding ``markings'' in its place.
227.7103-15 [Amended]
0
8. Amend section 227.7103-15--
0
a. In paragraph (c) introductory text, by removing ``non-commercial''
and adding ``noncommercial'' in its place; and
0
b. In paragraph (c)(2), by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place.
227.7103-16 [Amended]
0
9. Amend section 227.7103-16 in paragraph (b) by removing ``non-
disclosure'' and adding ``nondisclosure'' in its place.
0
10. Revise section 227.7104. to read as follows:
227.7104 Contracts under the Small Business Innovation Research (SBIR)
Program and Small Business Technology Transfer (STTR) Program.
0
11. Add new sections 227.7104-1, 227.7104-2, 227.7104-3, and 227.7104-4
to read as follows:
227.7104-1 Policy.
(a) Contracting officers shall not require an offeror, either as a
condition of being responsive to a solicitation or as a condition for
award, to sell or otherwise relinquish to the Government any rights in
technical data related to items, components, or processes developed
under a SBIR/STTR contract or any rights in software generated under a
SBIR/STTR contract except for
[[Page 77689]]
the technical data and computer software identified at 227.7104-2.
(b) Contracting officers shall not prohibit offerors and
contractors from furnishing or offering to furnish items, components,
or processes developed under a SBIR/STTR contract or software generated
under a SBIR/STTR contract solely because the Government's rights to
use, modify, release, reproduce, perform, display, or disclose
technical data pertaining to those items may be restricted.
(c) In a manner consistent with the guidance in this section and
acquisition preferences applicable to SBIR/STTR offerors, the
Government may use information provided by offerors in response to a
solicitation in the source selection process to evaluate the impact of
proposed restrictions on the Government's ability to use or disclose
technical data or computer software. However, contracting officers
shall not prohibit offerors from offering products for which the
offeror is entitled to provide the technical data or computer software
with restrictions. Contracting officers also shall not require
offerors, either as a condition of being responsive to a solicitation
or as a condition for award, to sell or otherwise relinquish any
greater rights in technical data or computer software when the offeror
is entitled to provide the technical data or computer software with
restrictions.
227.7104-2 Rights in SBIR or STTR data.
(a) Under the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software-Small Business Innovation Research
Program and Small Business Technology Transfer Program, the Government
obtains the following standard license rights:
(1) Unlimited rights in the technical data and computer software
listed in paragraph (c)(1) of the clause.
(2) SBIR/STTR data rights in all other technical data and computer
software developed or generated under the phase I, II, or III SBIR/STTR
contract or subcontract and marked with the SBIR/STTR data rights
marking. SBIR/STTR data rights provide the Government limited rights in
such technical data and restricted rights in such computer software
during the SBIR/STTR data protection period commencing on the date of
contract award and ending 20 years after that date unless, subsequent
to the award, the agency and the contractor negotiate for some other
protection period for the SBIR/STTR data. Upon expiration of the SBIR/
STTR data protection period, the Government has government purpose
rights in the SBIR/STTR data. These government purpose rights do not
expire. See 252.227-7018 for the definition of the SBIR/STTR data
protection period and PGI 227.7104-2 for additional guidance on the
SBIR/STTR data protection period.
(b) During the SBIR/STTR data protection period, the Government may
not release or disclose technical data or computer software that is
subject to SBIR/STTR data rights to any person except as authorized for
limited rights technical data or restricted rights computer software,
respectively.
(c) The Small Business Administration's SBIR and STTR Program
Policy Directive (effective May 2, 2019) provides for special
consideration regarding the handling (e.g., disclosure, reverse
engineering) of prototypes generated under SBIR and STTR awards, to
avoid effects that may appear to be inconsistent with the SBIR and STTR
program objectives and to allow the SBIR/STTR awardee to retain rights
in SBIR/STTR data during the SBIR/STTR data protection period.
227.7104-3 STTR program requirements.
(a) Before award of a contract under the STTR program requirements
only, the provision at 252.227-70XX, Additional Preaward Requirements
for Small Business Technology Transfer Program, requires offerors to
submit, as part of their proposal, a written agreement between the
offeror and a partnering research institution that allocates any rights
in intellectual property and the offeror's written representation that
it is satisfied with the agreement. The contracting officer shall
review the agreement to ensure it does not conflict with the
requirements of the solicitation or any right to carry out follow-on
research. If such conflicts exist and cannot be resolved, the submitted
proposal is not eligible for award.
(b) At contract award for STTR program requirements, in accordance
with the clause at 252.227-70YY, Additional Postaward Requirements for
Small Business Technology Transfer Program, the contracting officer
shall attach to the contract the accepted written agreement and
representation provided by the contractor pursuant to the provision at
252.227-70XX.
(c) After contract award, for any modification to the written
agreement between the contractor and partnering research institution,
the contracting officer shall review the agreement and representation
to ensure the modified agreement adheres to the requirements of
252.227-70YY. If acceptable, the contracting officer shall attach the
modified agreement to the contract.
227.7104-4 Solicitation provisions and contract clauses.
(a)(1) Use the clause at 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software-Small Business Innovation Research
Program and Small Business Technology Transfer Program, in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
when SBIR/STTR data are delivered, developed, or generated during
contract performance, and when any portion of contract performance is
governed by the SBIR or STTR program (e.g., performance of one or more
subcontracts qualifies as a phase III SBIR or STTR award).
(2) For the remainder of the technical data or computer software
that is delivered, developed, or generated under the contract, use the
following clauses as applicable, in accordance with the prescriptions
for those clauses:
(i) 252.227-7013, Rights in Technical Data-Noncommercial Items.
(ii) 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
(iii) 252.227-7015, Technical Data-Commercial Items.
(b) Use the following provision in solicitations and the following
clauses in solicitations and contracts that include the clause at
252.227-7018, in accordance with the prescriptions for the provision
and clauses:
(1) 252.227-7016, Rights in Bid or Proposal Information.
(2) 252.227-7017, Identification and Assertion of Use, Release, or
Disclosure Restrictions.
(3) 252.227-7019, Validation of Asserted Restrictions-Computer
Software.
(4) 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information with Restrictive Markings.
(5) 252.227-7028, Technical Data or Computer Software Previously
Delivered to the Government.
(6) 252.227-7030, Technical Data-Withholding of Payment.
(7) 252.227-7037, Validation of Restrictive Markings on Technical
Data (paragraph (e) of the clause contains information that must be
included in a challenge).
(c)(1) Use the provision at 252.227-70XX, Additional Preaward
Requirements for Small Business Technology Transfer Program, in
solicitations that contain the clause at 252.227-70YY.
(2) Use the clause at 252.227-70YY, Additional Postaward
Requirements for
[[Page 77690]]
Small Business Technology Transfer Program, in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, for acquisitions
under the STTR Program.
227.7108 [Amended]
0
12. Amend section 227.7108--
0
a. In paragraph (a)(5), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place; and
0
b. In paragraphs (c) and (d), by removing ``legends'' and adding
``markings'' in their places.
227.7203-5 [Amended]
0
13. Amend section 227.7203-5--
0
a. In paragraph (b)(4) introductory text, by removing ``legends'' and
adding ``markings'' in its place;
0
b. In paragraph (b)(4)(ii), by removing ``Information Marked with
Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
c. In paragraph (b)(5), by removing ``legends'' and ``non-disclosure''
and adding ``markings'' and ``nondisclosure'' in their places,
respectively; and
0
d. In paragraph (b)(6), by removing ``legends'' and ``non-disclosure''
wherever it appears and adding ``markings'' and ``nondisclosure'' in
their places, respectively; and removing ``Commerce Business Daily''
and adding ``System for Award Management'' in its place.
227.7203-6 [Amended]
0
14. Amend section 227.7203-6--
0
a. In the section heading, by removing ``Contract clauses'' and adding
``Solicitation provisions and contract clauses'' in its place; and
0
b. In paragraph (d), by removing ``Information Marked with Restrictive
Legends'' and ``legend(s)'' and adding ``Information with Restrictive
Markings'' and ``marking(s)'' in their places, respectively.
227.7203-10 [Amended]
0
15. Amend section 227.7203-10--
0
a. In paragraph (b)(1), by removing ``legend'' and adding ``marking''
in its place; and
0
b. In paragraph (b)(2), by removing ``pre-existing'' and ``legend'' and
adding ``preexisting'' and ``marking'' in their places, respectively;
0
c. In paragraph (c)(2) introductory text, by removing ``legends'' and
``six months'' and adding ``markings'' and ``6 months'' in their
places, respectively; and
0
d. In paragraph (c)(3), by removing ``use or disclosure'' and adding
``use or disclosure that are consistent with the proposed restrictive
marking'' in its place.
227.7203-12 [Amended]
0
16. Amend section 227.7203-12 in paragraph (a)(1) by removing
``legend'' and adding ``marking'' in its place.
227.7203-15 [Amended]
0
17. Amend section 227.7203-15 in paragraph (c)(3) by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Markings'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
18. Amend section 252.227-7013--
0
a. By revising the section heading, introductory text, and clause date;
0
b. In paragraph (a)--
0
i. Removing the designations for paragraphs (a)(1) through (16) and
placing the definitions in alphabetical order;
0
ii. In the defined term ``Covered Government support contractor''--
0
A. In the introductory text, by removing ``effort (rather than to
directly furnish an end item or service to accomplish a program or
effort)'' and adding ``effort, rather than to directly furnish an end
item or service to accomplish a program or effort'' in its place;
0
B. By redesignating paragraphs (i) and (ii) as (1) and (2)
respectively; and
0
C. In newly redesignated paragraph (2) by removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iii. In the defined term ``Developed exclusively at private expense''
0
A. introductory text, by removing ``government'' and adding
``Government'' in its place, and
0
B. By redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively;
0
iv. In the defined term ``Developed exclusively with government
funds'', by removing ``government'' and adding ``Government'' in its
place;
0
v. By adding, in alphabetical order, the definition of ``Generated'';
0
vi. By revising the definition of ``Government purpose rights'';
0
vii. In the defined term ``Limited rights'' by--
0
A. Redesignating paragraphs (i) introductory text, (ii), and (iii) as
paragraphs (1) introductory text, (2), and (3), respectively;
0
B. In the newly redesignated paragraph (1) by redesignating paragraphs
(1)(A) and (B) introductory text as paragraphs (1)(i) and (ii)
introductory text, respectively; and
0
C. In the newly redesignated paragraph (1)(ii) by redesignating
paragraphs (1)(ii)(1) and (2) as paragraphs (1)(ii)(A) and (B),
respectively;
0
viii. By adding, in alphabetical order, the definition of ``Small
Business Innovation Research/Small Business Technology Transfer (SBIR/
STTR) data'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing
``the Rights in Noncommercial Computer Software and Noncommercial
Software Documentation'' and adding ``the DFARS 252.227-7014, Rights in
Noncommercial Computer Software Documentation,'' in its place;
0
f. In newly redesignated paragraph (c)(2)(i) introductory text, by
removing ``five-year'' and adding ``5-year'' in its place;
0
g. In newly redesignated paragraph (c)(2)(i)(A), by removing
``(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix)'' and adding
``(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)'' in its place;
0
h. In newly redesignated paragraph (c)(2)(ii), by removing ``five-
year'', wherever it appears, and ``(b)(2)(i)(B)'' and adding ``5-year''
and ``(c)(2)(i)(B)'' in their places, respectively;
0
i. In newly redesignated paragraph (c)(2)(iii)(A), by removing ``non-
disclosure'' and ``227.7103-7 of the Defense Federal Acquisition
Regulation Supplement (DFARS)'' and adding ``nondisclosure'' and
``DFARS 227.7103-7'' in their places, respectively;
0
j. In newly redesignated paragraph (c)(2)(iii)(B), by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Markings'' in its place;
0
k. In newly redesignated paragraph (c)(2)(iv), by removing ``legend''
and ``(f)(2)'' and adding ``marking'' and ``(g)(2)'' in their places,
respectively;
0
l. In newly redesignated paragraph (c)(3)(i) introductory text, by
removing ``(b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix)'' and adding
``(c)(1)(ii) and (c)(1)(iv) through (c)(1)(ix)'' in its place;
0
m. In newly redesignated paragraph (c)(3)(i)(A), by removing ``legend''
and ``(f)'' and adding ``marking'' and ``(g)'' in their places,
respectively;
0
n. In newly redesignated paragraph (c)(3)(iv)(C), by removing
``legend'' and ``non-disclosure'' wherever it appears and adding
``marking'' and ``nondisclosure'' in their places, respectively;
0
o. In newly redesignated paragraph (c)(3)(iv)(D), by removing ``non-
disclosure'' wherever it appears,
[[Page 77691]]
``252.227-7025'', and ``Information Marked with Restrictive Legends''
and adding ``nondisclosure'', ``DFARS 252.227-7025'', and ``Information
with Restrictive Markings'' in their places, respectively;
0
p. In newly redesignated paragraph (c)(4), by removing ``(b)(1) through
(b)(3)'' and ``in paragraph (a)(14)'' and adding ``(c)(1) through
(c)(3)'' and ``in the definition of ``limited rights'' '' in their
places, respectively;
0
q. In newly redesignated paragraph (c)(5) introductory text, by
removing ``pre-existing'' and adding ``preexisting'' in its place;
0
r. In newly redesignated paragraph (c)(6), by removing ``paragraph
(a)(14) or (b)(2)(iii)'', ``(b)(4)'', and ``legends'' and adding ``the
definition of ``limited rights'' or paragraph (c)(2)(iii)'',
``(c)(4)'', and ``markings'' in their places, respectively;
0
s. In newly redesignated paragraph (e), by removing ``paragraph (b)''
and adding ``paragraph (c)'' in its place;
0
t. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
u. In newly redesignated paragraph (f)(3), by --
0
A. Adding a heading to the table; and
0
B. in note 3, by removing ``SBIR'' and adding ``SBIR/STTR'' in its
place;
0
v. In paragraph (f)(4), by removing ``Validation of Restrictive
Markings on Technical Data'' and adding ``DFARS 252.227-7037,
Validation of Restrictive Markings on Technical Data,'' in its place;
0
w. By revising newly redesignated paragraph (g);
0
x. In newly redesignated paragraph (i)(1) and (2), by removing
``Validation of Restrictive Markings on Technical Data'' and adding
``DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
y. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and
adding ``(k)(1)'' in its place;
0
z. By revising newly redesignated paragraph (l) heading and paragraphs
(l)(1) and (2);
0
aa. By redesignating paragraphs (l)(3), (l)(4), and (l)(5) as
paragraphs (l)(4), (l)(5), and (l)(6), respectively;
0
bb. By adding a new paragraph (l)(3);
0
cc. In alternate I--
0
i. By revising the clause date and in the introductory text removing
``paragraph (l)'' and adding ``paragraph (m)'' in its place;
0
ii. In newly redesignated paragraph (m)(2), by removing ``paragraph
(l)'' and ``twenty-four (24)'' and adding ``paragraph (m)'' and ``24''
in their places, respectively;
0
dd. In alternate II by--
0
i. Revising the clause date and the introductory text; and
0
ii. Redesignating paragraphs (a)(17) and (b)(7) as paragraphs (a) and
(c)(7), respectively.
The revisions and additions read as follows:
252.227-7013 Rights in Technical Data--Noncommercial Items.
As prescribed in 227.7102-4(b) and 227.7103-6(a), use the following
clause:
Rights In Technical Data--Noncommercial Items (Date)
(a) * * *
Generated means, with regard to technical data or computer
software, first created in the performance of this contract.
* * * * *
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or
disclose technical data within the Government without restriction;
and
(2) Release or disclose technical data outside the Government
and authorize persons to whom release or disclosure has been made to
use, modify, reproduce, release, perform, display, or disclose that
data for United States Government purposes.
* * * * *
Small Business Innovation Research/Small Business Technology
Transfer (SBIR/STTR) data means all technical data or computer
software developed or generated in the performance of a phase I, II,
or III SBIR/STTR contract or subcontract.
* * * * *
(b) Applicability. (1) Except as provided in paragraph (b)(2) of
this clause, this clause will govern all 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
Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-
7015, Technical Data--Commercial Items, will govern the technical
data pertaining to any portion of a commercial item that was
developed exclusively at private expense.
(2) The clause at DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
will govern technical data that are SBIR/STTR data.
* * * * *
(f) * * *
(3) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data
* * * * *
(g)(1) Marking requirements. The Contractor, and its
subcontractors or suppliers, shall apply asserted restrictions on
technical data delivered under this contract only by marking such
technical data. Except as provided in paragraph (g)(9) of this
clause, only the following restrictive markings are authorized under
this contract:
(i) The unlimited rights markings at paragraph (g)(5) of this
clause.
(ii) The government purpose rights marking at paragraph (g)(6)
of this clause.
(iii) The limited rights marking at paragraph (g)(7) of this
clause.
(iv) The special license rights marking at paragraph (g)(8) of
this clause.
(v) A notice of copyright in the format prescribed under 17
U.S.C. 401 or 402.
(2) Other restrictive markings. Any other restrictive markings,
including markings that describe restrictions placed on third-party
recipients of the technical data, are not authorized and are
nonconforming markings governed by paragraph (i)(2) of this clause.
(3) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate restrictive marking on all technical data that
qualify for such markings. The authorized restrictive markings shall
be placed on the transmittal document or storage container and, for
printed material, each page of the printed material containing
technical data for which restrictions are asserted. When only
portions of a page of printed material are subject to the asserted
restrictions, such portions shall be identified by circling,
underscoring, with a note, or other appropriate identifier.
Technical data transmitted directly from one computer or computer
terminal to another shall contain a notice of asserted restrictions.
Reproductions of technical data or any portions thereof subject to
asserted restrictions shall also reproduce the asserted
restrictions.
(4) Omitted markings. (i) Technical data delivered or otherwise
provided under this contract without restrictive markings shall be
presumed to have been delivered with unlimited rights. To the extent
practicable, if the Contractor has requested permission (see
paragraph (g)(4)(ii) of this clause) to correct an inadvertent
omission of markings, the Contracting Officer will not release or
disclose the technical data pending evaluation of the request.
(ii) The Contractor may request permission to have conforming
and justified restrictive markings placed on unmarked technical data
at its expense. The request must be received by the Contracting
Officer within 6 months following the furnishing or delivery of such
technical data, or any extension of that time approved by the
Contracting Officer. The Contractor shall--
(A) Identify the technical data that should have been marked;
(B) Demonstrate that the omission of the marking was
inadvertent, the proposed marking is justified and conforms with the
requirements for the marking of technical data contained in this
clause; and
(C) Acknowledge, in writing, that the Government has no
liability with respect to any disclosure, reproduction, or use of
the technical data made prior to the addition of the marking or
resulting from the omission of the marking.
(5) Unlimited rights markings. Technical data or computer
software delivered or otherwise furnished to the Government with
unlimited rights shall be marked as follows:
[[Page 77692]]
Unlimited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government has unlimited rights in this technical data or
computer software pursuant to DFARS 252.227-7013, Rights in
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; or DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause of the above identified contract, as applicable. This marking
must be included in any reproduction of this technical data,
computer software, or portions thereof.
(End of marking)
(6) Government purpose rights markings. Data delivered or
otherwise furnished to the Government with government purpose rights
shall be marked as follows:
Government Purpose Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (c)(2) of the DFARS 252.227-7013, Rights in Technical
Data--Noncommercial Items, clause contained in the above identified
contract. No restrictions apply after the expiration date shown
above. Any reproduction of technical data or portions thereof marked
with this marking must also reproduce the markings.
(End of marking)
(7) Limited rights markings. Data delivered or otherwise
furnished to the Government with limited rights shall be marked as
follows:
Limited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (c)(3) of the DFARS 252.227-7013, Rights in Technical
Data--Noncommercial Items, clause contained in the above identified
contract. Any reproduction of technical data or portions thereof
marked with this marking must also reproduce the markings. Any
person, other than the Government, who has been provided access to
such data must promptly notify the above named Contractor.
(End of marking)
(8) Special license rights markings. (i) Data in which the
Government's rights stem from a specifically negotiated license
shall be marked as follows:
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these data are restricted by Contract
Number [Insert contract number], License Number [Insert license
identifier]. Any reproduction of technical data or portions thereof
marked with this marking must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (c)(5) of this clause).
(9) Preexisting data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data deliverable under this contract, and those
restrictions are still applicable, the Contractor may mark such data
with the appropriate restrictive marking for which the data
qualified under the prior contract or license. The Contractor shall
follow the marking procedures in paragraph (g)(1) of this clause.
* * * * *
(l) Subcontractors or suppliers.
(1) The Contractor shall ensure that the rights afforded its
subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321,
15 U.S.C. 638(j)(1)(B)(iii) and (v), and the identification,
assertion, and delivery processes of paragraph (f) of this clause
are recognized and protected.
(2) Whenever any technical data for noncommercial items, or for
commercial items developed in any part at Government expense, are to
be obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use the
following clause(s) in the subcontract or other contractual
instrument, including subcontracts or other contractual instruments
for commercial items, and require its subcontractors or suppliers to
do so, without alteration, except to identify the parties:
(i)(A) Except as provided in paragraph (l)(2)(ii) of this
clause, use this clause to 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.
(B) Use the clause at DFARS 252.227-7015, Technical Data--
Commercial Items, to govern the technical data pertaining to any
portion of a commercial item that was developed exclusively at
private expense.
(ii) Use the clause at DFARS 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, to govern technical data that are SBIR/STTR data.
(3) 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.
* * * * *
Alternate I (Date)
* * * * *
Alternate II (Date)
As prescribed in 227.7103-6(b)(2), add the following definition
of ``Vessel design'' in alphabetical order to paragraph (a) and add
paragraph (c)(7) to the basic clause:
* * * * *
0
19. Amend section 252.227-7014--
0
a. By revising the section heading, introductory text, and the clause
date;
0
b. In paragraph (a)--
0
i. By removing the designations for paragraphs (a)(1) through (16) and
placing the definitions in alphabetical order;
0
ii. In the defined term ``Commercial computer software'', by--
0
A. Redesignating paragraphs (i) through (iv) as paragraphs (1) through
(4), respectively; and
0
B. In newly redesignated paragraph (4) by removing ``(a)(1)(i), (ii),
or (iii) of this clause'' and adding ``(1), (2), or (3) of this
definition'' in its place;
0
iii. In the defined term ``Covered Government support contractor'',
by--
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively; and
0
B. In newly redesignated paragraph (2) by removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iv. In the defined term ``Developed'', by redesignating paragraphs (i),
(ii), and (iii) as paragraphs (1), (2), and (3), respectively;
0
v. In the defined terms ``Developed exclusively at private expense''
and ``Government purpose rights'', by redesignating paragraphs (i) and
(ii) as paragraphs (1) and (2), respectively;
0
vi. In the defined term ``Noncommercial computer software'', by
removing ``under paragraph (a)(1) of this clause'' and adding ``under
the definition of ``commercial computer software'' of this clause'' in
its place;
0
vii. By revising the defined term ``Restricted rights'';
0
viii. By adding, in alphabetical order, the definition ``Small Business
Innovation Research/Small Business Technology Transfer (SBIR/STTR)
data'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing
``world-wide'' and adding ``worldwide'' in its place;
0
f. In newly redesignated paragraph (c)(2)(i), by removing ``(b)(1)''
and adding ``(c)(1)'' in its place;
0
g. In newly redesignated paragraph (c)(2)(ii), by removing ``five
years'' and ``five-year'' and adding ``5 years'' and ``5-year'' in
their places, respectively;
0
h. In newly redesignated paragraph (c)(2)(iii)(A), by removing ``non-
[[Page 77693]]
disclosure'' and adding ``nondisclosure'' in its place;
0
i. In newly redesignated paragraph (c)(2)(iii)(B), by removing
``Information Marked with Restrictive Legends'' and adding
``Information with Restrictive Markings'' in its place;
0
j. In newly redesignated paragraph (c)(3)(ii), by removing ``(b)(4)''
and adding ``(c)(4)'' in its place;
0
k. In newly redesignated paragraph (c)(3)(iii)(C), by removing
``legend'' and ``non-disclosure'' wherever it appears and adding
``marking'' and ``nondisclosure'' in their places, respectively;
0
l. In newly redesignated paragraph (c)(3)(iii)(D), by removing ``non-
disclosure'' wherever it appears, ``252.227-7025'', and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'', ``DFARS
252.227-7025'' and ``Information with Restrictive Markings'', in their
places, respectively;
0
m. By revising paragraph (c)(4)(i);
0
n. In paragraph (c)(5) introductory text, by removing ``pre-existing''
and adding ``preexisting'' in its place;
0
o. By revising paragraph (c)(6);
0
p. In newly redesignated paragraph (e) introductory text, by removing
``(b)'' and adding ``(c)'' in its place;
0
q. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
r. By revising newly redesignated paragraph (f)(3) table;
0
s. In newly redesignated paragraph (f)(4), by removing ``Validation of
Asserted Restrictions--Computer Software'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software,'' in its
place;
0
t. By revising newly redesignated paragraph (g);
0
u. In newly redesignated paragraph (i)(1), by removing ``Validation of
Asserted Restrictions--Computer Software and the Validation of
Restrictive Markings on Technical Data'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software, and the
DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
v. In newly redesignated paragraph (i)(2), by removing ``Validation of
Asserted Restrictions--Computer Software, or the Validation of
Restrictive Markings on Technical Data'' and ``sixty (60) days'' and
adding ``DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software, or the DFARS 252.227-7037, Validation of Restrictive
Markings on Technical Data,'' and ``60 days'' in their places,
respectively;
0
w. In newly redesignated paragraph (k)(2) introductory text, by
removing ``(j)(1)'' and adding ``(k)(1)'' in its place;
0
x. In newly redesignated paragraph (l), by revising the heading and
paragraph (1);
0
y. In newly redesignated paragraph (l)(3), by removing ``(e)'' and
adding ``(f)'' in its place;
0
z. In alternate I--
0
i. By revising the clause date;
0
ii. In the introductory text, by removing ``(l)'' and adding ``(m)'' in
its place;
0
iii. By redesignating paragraph (l) as paragraph (m);
0
iv. In newly redesignated paragraph (m)(2), by removing ``(l)'' and
``twenty-four (24) months'' and adding ``(m)'' and ``24 months'' in
their places, respectively.
The revisions and additions read as follows:
252.227-7014 Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation.
As prescribed in 227.7203-6(a)(1), use the following clause:
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation (Date)
(a) * * *
Restricted rights apply only to noncommercial computer software
and mean the Government's rights to--
(1) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(2) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of
this clause;
(3) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(4) Modify computer software provided that the Government may--
(i) Use the modified software only as provided in paragraphs (1)
and (3) of this definition; and
(ii) Not release or disclose the modified software except as
provided in paragraphs (2), (5), (6) and (7) of this definition;
(5) 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--
(i) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(ii) Such contractors or subcontractors are subject to the use
and nondisclosure agreement at 227.7103-7 of the Defense Federal
Acquisition Regulation Supplement (DFARS) or are Government
contractors receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Markings;
(iii) 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 (4) of this definition, for any
other purpose; and
(iv) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition;
(6) 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--
(i) The intended recipient is subject to the use and
nondisclosure agreement at DFARS 227.7103-7 or is a Government
contractor receiving access to the software for performance of a
Government contract that contains the clause at DFARS 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Markings;
(ii) 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 (4) of this definition, for any other purpose;
and
(iii) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition; and
(7) Permit covered Government support contractors in the
performance of covered Government support contracts that contain the
clause at 252.227-7025, Limitations on the Use or Disclosure of
Government-Furnished Information with Restrictive Markings, to use,
modify, reproduce, perform, display, or release or disclose the
computer software to a person authorized to receive restricted
rights computer software, provided that--
(i) The Government shall not permit the covered Government
support contractor to decompile, disassemble, or reverse engineer
the software, or use software decompiled, disassembled, or reverse
engineered by the Government pursuant to paragraph (4) of this
definition, for any other purpose; and
(ii) Such use is subject to the limitations in paragraphs (1)
through (4) of this definition.
Small Business Innovation Research/Small Business Technology
Transfer (SBIR/STTR)
[[Page 77694]]
data means all technical data or computer software developed or
generated in the performance of a phase I, II, or III SBIR/STTR
contract or subcontract.
* * * * *
(b) Applicability. This clause governs all noncommercial
computer software or computer software documentation, except that
the clause at DFARS 252.227-7018, Rights in Noncommercial Technical
Data and Computer Software--Small Business Innovation Research
Program and Small Business Technology Transfer Program, will govern
any computer software or computer software documentation that is
SBIR/STTR data.
(c) * * *
(4) * * *
(i) The standard license rights granted to the Government under
paragraphs (c)(1) through (c)(3) of this clause, including the
period during which the Government shall have government purpose
rights in computer software, may be modified by mutual agreement to
provide such rights as the parties consider appropriate but shall
not provide the Government lesser rights in computer software than
are enumerated in the definition of ``restricted rights'' of this
clause, or lesser rights in computer software documentation than are
enumerated in the definition of ``limited rights'' of the DFARS
252.227-7013, Rights in Technical Data--Noncommercial Items, clause
of this contract.
* * * * *
(6) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of computer
software made in accordance with the definition of ``restricted
rights'' or paragraph (c)(2)(iii) of this clause, in accordance with
the terms of a license negotiated under paragraph (c)(4) of this
clause, or by others to whom the recipient has released or disclosed
the software, and to seek relief solely from the party who has
improperly used, modified, reproduced, released, performed,
displayed, or disclosed Contractor software marked with restrictive
markings.
* * * * *
(f) * * *
(3) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Computer Software
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Computer software to be
furnished with restrictions Basis for assertion \2\ Asserted rights category Name of person asserting
\1\ \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST) (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions on the Government's rights to use, release, or disclose computer software.
\2\ Indicate whether development was exclusively or partially at private expense. If development was not at
private expense, enter the specific reason for asserting that the Government's rights should be restricted.
\3\ Enter asserted rights category (e.g., restricted or government purpose rights in computer software,
government purpose license rights from a prior contract, rights in SBIR/STTR data generated under another
contract, or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
* * * * *
(g)(1) Marking requirements. The Contractor, and its
subcontractors or suppliers, shall apply asserted restrictions on
computer software or computer software documentation delivered under
this contract only by marking such software or documentation. Except
as provided in paragraph (g)(9) of this clause, only the following
restrictive markings are authorized under this contract:
(i) The unlimited rights marking at paragraph (g)(5) of this
clause;
(ii) The government purpose rights marking at paragraph (g)(6)
of this clause;
(iii) The restricted rights marking at paragraph (g)(7) of this
clause;
(iv) The special license rights marking at paragraph (g)(8) of
this clause; or
(v) A notice of copyright in the format prescribed under 17
U.S.C. 401 or 402.
(2) Other restrictive markings. Any other restrictive markings,
including markings that describe restrictions placed on third-party
recipients of the computer software or computer software
documentation, are not authorized and shall be deemed nonconforming
markings governed by paragraph (i)(2) of this clause.
(3) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate restrictive marking on all computer software that
qualify for such markings. The authorized restrictive marking shall
be placed on the transmitted document or software storage container
and each page, or portions thereof, of printed material containing
computer software for which restrictions are asserted. Computer
software transmitted directly from one computer or computer terminal
to another shall contain a notice of asserted restrictions. However,
instructions that interfere with or delay the operation of computer
software in order to display a restrictive rights marking or other
license statement at any time prior to or during use of the computer
software, or otherwise cause such interference or delay, shall not
be inserted in software that will or might be used in combat or
situations that simulate combat conditions, unless the Contracting
Officer's written permission to deliver such software has been
obtained prior to delivery. Reproductions of computer software or
any portions thereof subject to asserted restrictions, shall also
reproduce the asserted restrictions.
(4) Omitted markings. (i) Computer software or computer software
documentation delivered or otherwise provided under this contract
without restrictive markings shall be presumed to have been
delivered with unlimited rights. To the extent practicable, if the
Contractor has requested permission (see paragraph (g)(4)(ii) of
this clause) to correct an inadvertent omission of markings, the
Contracting Officer will not release or disclose the software or
documentation pending evaluation of the request.
(ii) The Contractor may request permission to have conforming
and justified restrictive markings placed on unmarked computer
software or computer software documentation at its expense. The
request must be received by the Contracting Officer within 6 months
following the furnishing or delivery of such software or
documentation, or any extension of that time approved by the
Contracting Officer. The Contractor shall--
(A) Identify the software or documentation that should have been
marked;
(B) Demonstrate that the omission of the marking was
inadvertent, the proposed marking is justified and conforms with the
requirements for the marking of computer software or computer
software documentation contained in this clause; and
(C) Acknowledge, in writing, that the Government has no
liability with respect to any disclosure, reproduction, or use of
the software or documentation made prior to the addition of the
marking or resulting from the omission of the marking.
(5) Unlimited rights markings. Technical data or computer
software delivered or otherwise furnished to the Government with
unlimited rights shall be marked as follows:
Unlimited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government has unlimited rights in these technical data or
this computer software pursuant to the DFARS 252.227-7013, Rights in
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; or DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause of the above identified contract, as applicable. This marking
must be included in
[[Page 77695]]
any reproduction of these technical data, computer software, or
portions thereof.
(End of marking)
(6) Government purpose rights markings. Computer software
delivered or otherwise furnished to the Government with government
purpose rights shall be marked as follows:
Government Purpose Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (c)(2) of the DFARS 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause contained in the above identified contract. No restrictions
apply after the expiration date shown above. Any reproduction of the
software or portions thereof marked with this marking must also
reproduce the markings.
(End of marking)
(7) Restricted rights markings. Software delivered or otherwise
furnished to the Government with restricted rights shall be marked
as follows:
Restricted Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (c)(3) of the DFARS 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause contained in the above identified contract. Any reproduction
of computer software or portions thereof marked with this marking
must also reproduce the markings. Any person, other than the
Government, who has been provided access to such software must
promptly notify the above named Contractor.
(End of marking)
(8) Special license rights markings. (i) Computer software or
computer documentation in which the Government's rights stem from a
specifically negotiated license shall be marked as follows:
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
Contract Number [Insert contract number], License Number [Insert
license identifier]. Any reproduction of computer software, computer
software documentation, or portions thereof marked with this marking
must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (c)(5) of this clause).
(9) Preexisting markings. If the terms of a prior contract or
license permitted the Contractor to restrict the Government's rights
to use, modify, release, perform, display, or disclose computer
software or computer software documentation and those restrictions
are still applicable, the Contractor may mark such software or
documentation with the appropriate restrictive marking for which the
software qualified under the prior contract or license. The
Contractor shall follow the marking procedures in paragraph (g)(1)
of this clause.
* * * * *
(l) Subcontractors or suppliers.
(1)(i) Except as provided in paragraph (l)(1)(ii) of this
clause, whenever any noncommercial computer software or computer
software documentation is to be obtained from a subcontractor or
supplier for delivery to the Government under this contract, the
Contractor shall use this clause in its subcontracts or other
contractual instruments, and require its subcontractors or suppliers
to do so, without alteration, except to identify the parties.
(ii) The Contractor shall use the clause at DFARS 252.227-7018,
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program, to govern computer software or computer software
documentation that is SBIR/STTR data.
(iii) 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 computer
software or computer software documentation.
* * * * *
Alternate I (Date)
* * * * *
0
20. Amend section 252.227-7015--
0
a. By revising the section heading and the clause date;
0
b. In paragraph (a)--
0
i. By removing the designations of paragraphs (a)(1) through (5) and
placing in alphabetical order;
0
ii. In the defined term ``Covered Government support contractor'', by
--
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively; and
0
B. In newly redesignated paragraph (2) removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iii. In the defined term ``The term item'', by removing ``The term
item'' and adding ``Item'' in its place;
0
c. By redesignating paragraphs (b) through (e) as paragraphs (c)
through (f), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c)(2) introductory text, by
removing ``(b)(1)'' and adding ``(c)(1)'' in its place;
0
f. In newly redesignated paragraph (c)(3)(i), by removing ``(b)(2)''
and adding ``(c)(2)'' in its place;
0
g. In newly redesignated paragraph (c)(3)(iii), by removing
``restrictive legend'', ``non-disclosure'' and ``an non-disclosure''
and adding ``restrictive marking'', ``nondisclosure'', and ``a
nondisclosure'' in their places, respectively;
0
h. In newly redesignated paragraph (c)(3)(iv), by removing ``non-
disclosure'' wherever it appears and ``252.227-7025, Limitations on the
Use or Disclosure of Government-Furnished Information Marked with
Restrictive Legends'' and adding ``nondisclosure'' and ``DFARS 252.227-
7025, Limitations on the Use or Disclosure of Government-Furnished
Information with Restrictive Markings'' in their places, respectively;
0
i. In newly redesignated paragraph (e), by adding a new sentence at the
end of the paragraph;
0
j. By revising newly redesignated paragraph (f);
0
k. In Alternate I by--
0
i. Revising the clause date and the introductory text; and
0
ii. Redesignating paragraphs (a)(6) and (b)(4) as paragraphs (a) and
(c)(4), respectively;
The revisions and additions read as follows:
252.227--7015 Technical Data--Commercial Items.
* * * * *
Technical Data--Commercial Items (Date)
* * * * *
(b) Applicability. This clause will govern the technical data
pertaining to any portion of a commercial item that was developed
exclusively at private expense. If the commercial item was developed
in any part at Government expense--
(1) The clause at Defense Federal Acquisition Regulation
Supplement (DFARS) 252.227-7018, Rights in Noncommercial Technical
Data and Computer Software--Small Business Innovation Research
Program and Small Business Technology Transfer Program, will govern
technical data that are generated during any portion of performance
that is covered under the Small Business Innovation Research (SBIR)
Program or Small Business Technology Transfer (STTR) Program; and
(2) The clause at DFARS 252.227-7013, Rights in Technical Data--
Noncommercial Items, will govern the technical data pertaining to
any portion of a commercial item that was developed in any part at
Government expense and is not covered under the SBIR or STTR
program.
* * * * *
(e) * * * The Contractor shall ensure that restrictive markings
on technical data accurately reflect the rights granted to the
Government.
(f) Subcontractors or suppliers.
(1) The Contractor shall recognize and protect the rights
afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10
[[Page 77696]]
U.S.C. 2321, and 15 U.S.C. 638(j)(1)(B)(iii) and (v).
(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 clause in the subcontract or
other contractual instrument, including subcontracts and other
contractual instruments for commercial items, 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 Contractor shall use the
following clauses to govern the technical data pertaining to any
portion of a commercial item that was developed in any part at
Government expense:
(i) Use the clause at DFARS 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, to govern technical data that are generated during any
portion of performance that is covered under the SBIR or STTR
program.
(ii) Use the clause at DFARS 252.227-7013, Rights in Technical
Data--Noncommercial Items, to govern any technical data that are not
generated during any portion of performance that is covered under
the SBIR or STTR program.
* * * * *
Alternate I (Date)
As prescribed in 227.7102-4(a)(2), add the following definition
of ``Vessel design'' in alphabetical order to paragraph (a) and add
paragraph (c)(4) to the basic clause:
0
21. Amend section 252.227-7016 by--
0
a. Revising the section heading, introductory text, and clause date;
0
b. Revising paragraph (a); and
0
c. Revising paragraph (c)(2).
The revisions read as follows:
252.227-7016 Rights in Bid or Proposal Information.
As prescribed in 227.7103-6(e)(1), 227.7104-4(b)(1), or 227.7203-
6(b), use the following clause:
Rights in Bid or Proposal Information (Date)
(a) Definitions. As used in this clause--
Computer software--
(1) Is defined in the 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause of this contract; or
(2) If this is a contract awarded under the Small Business
Innovation Research Program or Small Business Technology Transfer
Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this contract.
Technical data--
(1) Is defined in the 252.227-7013, Rights in Technical Data--
Noncommercial Items, clause of this contract; or
(2) If this is a contract awarded under the Small Business
Innovation Research Program or Small Business Technology Transfer
Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this contract.
* * * * *
(c) * * *
(2) The Government's right to use, modify, reproduce, release,
perform, display, or disclose information that is technical data or
computer software required to be delivered under this contract are
determined by the Defense Federal Acquisition Regulation Supplement
(DFARS) 252.227-7013, Rights in Technical Data--Noncommercial Items;
DFARS 252.227-7014, Rights in Noncommercial Computer Software and
Noncommercial Computer Software Documentation; or DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, clause of this contract.
* * * * *
0
22. Amend section 252.227-7017 by--
0
a. Revising the section heading, introductory text, and clause date;
0
b. Revising paragraphs (a) and (b);
0
c. Removing from paragraph (d) introductory text ``suppliers shall''
and adding ``suppliers, shall'' in its place; and
0
d. Revising the paragraph (d) table.
The revisions read as follows:
252.227-7017 Identification and Assertion of Use, Release, or
Disclosure Restrictions.
As prescribed in 227.7103-3(b), 227.7104-4(b)(2), or 227.7203-3(a),
use the following provision:
Identification and Assertion of Use, Release, or Disclosure
Restrictions (Date)
(a) Definitions. As used in this provision--Computer software--
(1) Is defined in the 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
clause of this solicitation; or
(2) If this solicitation contemplates a contract under the Small
Business Innovation Research Program or Small Business Technology
Transfer Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this solicitation.
Technical data--
(1) Is defined in the 252.227-7013, Rights in Technical Data--
Noncommercial Items, clause of this solicitation; or
(2) If this solicitation contemplates a contract under the Small
Business Innovation Research Program or Small Business Technology
Transfer Program, the term is defined in the 252.227-7018, Rights in
Noncommercial Technical Data and Computer Software--Small Business
Innovation Research Program and Small Business Technology Transfer
Program, clause of this solicitation.
(b) The identification and assertion requirements in this
provision apply only to technical data, including computer software
documentation, or computer software to be delivered with other than
unlimited rights. For contracts to be awarded under the Small
Business Innovation Research (SBIR) Program or Small Business
Technology Transfer (STTR) Program), these requirements apply to
SBIR/STTR data that will be generated under the resulting contract
and will be delivered with SBIR/STTR data rights and to any other
data that will be delivered with other than unlimited rights.
Notification and identification are not required for restrictions
based solely on copyright.
(d) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data or Computer Software
The Offeror asserts for itself, or the persons identified below,
that the Government's rights to use, release, or disclose the
following technical data or computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Technical data or computer
software to be furnished Basis for assertion \2\ Asserted rights category Name of person asserting
with restrictions \1\ \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST) \5\ (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ For technical data (other than computer software documentation) pertaining to items, components, or
processes developed at private expense, identify both the deliverable technical data and each such item,
component, or process. For computer software or computer software documentation identify the software or
documentation.
[[Page 77697]]
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions. For technical data, other than computer software documentation, development refers to
development of the item, component, or process to which the data pertain. The Government's rights in computer
software documentation generally may not be restricted. For computer software, development refers to the
software. Indicate whether development was accomplished exclusively or partially at private expense. If
development was not accomplished at private expense, or for computer software documentation, enter the
specific basis for asserting restrictions.
\3\ Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in
SBIR/STTR data generated under a contract resulting from this solicitation or under another contract, limited,
restricted, or government purpose rights under a contract resulting from this solicitation or under a prior
contract, or specially negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
\5\ Enter ``none'' when all data or software will be submitted without restrictions.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
* * * * *
0
23. Amend section 252.227-7018--
0
a. By revising the section heading, introductory text, clause title,
and date;
0
b. In paragraph (a)--
0
i. By removing designations for paragraphs (a)(1) through (16) and
placing in alphabetical order;
0
ii. In the defined term ``Commercial computer software'', by:
0
A. Redesignating paragraphs (i) through (iv) as paragraphs (1) and (4),
respectively; and
0
B. In newly redesignated paragraph (4) by removing ``(a)(1)(i) or (iii)
of this clause'' and adding ``(1), (2), or (3) of this definition'' in
its place;
0
iii. In the defined term ``Covered Government support contractor'', by:
0
A. Redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively; and
0
B. In newly redesignated paragraph (2) by removing ``Information Marked
with Restrictive Legends'' and adding ``Information with Restrictive
Markings'' in its place;
0
iv. In the defined term ``Developed'', by redesignating paragraphs (i)
through (iv) as paragraphs (1) through (4), respectively;
0
v. In the defined term ``Developed exclusively at private expense'', by
redesignating paragraphs (i) and (ii) as paragraphs (1) and (2),
respectively;
0
vi. Adding, in alphabetical order, the definition of ``Government
purpose rights'';
0
vii. In the defined term ``limited rights'', by:
0
A. Redesignating paragraphs (i) through (iii) as paragraphs (1) through
(3), respectively;
0
B. In newly redesignated paragraph (1) by redesignating paragraphs
(1)(A) and (B) as paragraphs (1)(i) and (ii), respectively;
0
C. In newly redesignated paragraph (1)(ii) by redesignating paragraphs
(1)(ii)(1) and (2) as paragraphs (1)(ii)(A) and (B), respectively;
0
viii. In the defined term ``Noncommercial computer software'', by
removing ``paragraph (a)(1) of this clause'' and adding ``the
``commercial computer software'' definition of this clause'' in its
place;
0
ix. By revising the defined term ``Restricted rights'';
0
x. By adding, in alphabetical order, definitions for ``Small Business
Innovation Research/Small Business Technology Transfer (SBIR/STTR)
data'' and ``SBIR/STTR data protection period'';
0
xi. By removing the defined term ``SBIR data rights'' and adding, in
alphabetical order, the definition of ``SBIR/STTR data rights'';
0
c. By redesignating paragraphs (b) through (k) as paragraphs (c)
through (l), respectively;
0
d. By adding a new paragraph (b);
0
e. In newly redesignated paragraph (c) introductory text, by removing
``world-wide'' and adding ``worldwide'' in its place;
0
f. In newly redesignated paragraph (c)(1), by removing ``data,
including computer software documentation, or computer software
generated under this contract'' and adding ``data or computer software,
including such data generated under this contract,'' in its place;
0
g. In newly redesignated paragraph (c)(1)(iv), by removing ``use,
release'' and adding ``use, release,'' in its place.
0
h. By revising newly redesignated paragraph (c)(1)(v);
0
i. By redesignating newly redesignated paragraph (c)(1)(vi) as
paragraph (c)(1)(vii);
0
j. By adding a new paragraph (c)(1)(vi);
0
k. By revising newly redesignated paragraph (c)(1)(vii);
0
l. By redesignating newly redesignated paragraphs (c)(2) through (8) as
paragraphs (c)(3) through (9), respectively;
0
m. By adding a new paragraph (c)(2);
0
n. In newly redesignated paragraph (c)(3), by removing ``(f)(1)'',
``legend'', and ``(f)(2)'' and adding ``(g)(1)'', ``restrictive
marking'', and ``(g)(3)'' in their places, respectively;
0
o. By revising newly redesignated paragraphs (c)(5) and (c)(6);
0
p. In newly redesignated paragraph (c)(7) introductory text, by
removing ``pre-existing'' and adding ``preexisting'' in its place;
0
q. By revising newly redesignated paragraph (c)(8);
0
r. In newly redesignated paragraph (c)(9)(iii), by removing ``non-
disclosure'', ``legend'', and ``an non-disclosure'' and adding
``nondisclosure'', ``marking'', and ``a nondisclosure'' in their
places, respectively;
0
s. In newly redesignated paragraph (c)(9)(iv), by removing ``non-
disclosure'' wherever it appears, ``252.227-7025'', and ``Information
Marked with Restrictive Legends'' and adding ``nondisclosure'', ``DFARS
252.227-7025'', and ``Information with Restrictive Markings'' in their
places, respectively;
0
t. In newly redesignated paragraph (e) introductory text, by removing
``(b)'' and adding ``(c)'' in its place;
0
u. In newly redesignated paragraph (f)(2), by removing ``(e)(3)'' and
adding ``(f)(3)'' in its place;
0
v. By revising the paragraph (f)(3) table;
0
w. In newly redesignated paragraph (f)(4), by removing ``Validation of
Asserted Restrictions--Computer Software and/or Validation of
Restrictive Markings on Technical Data'' and adding ``DFARS 252.227-
7019, Validation of Asserted Restrictions--Computer Software, and/or
DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data,'' in its place;
0
x. By revising paragraph (g);
0
y. In newly redesignated paragraph (i)(1), by removing ``Validation of
Restrictive Markings on Technical Data and the Validation of Asserted
Restrictions--Computer Software'' and adding ``DFARS 252.227-7037,
Validation of Restrictive Markings on Technical Data, and the DFARS
252.227-7019, Validation of Asserted Restrictions--Computer Software,''
in its place;
0
z. In newly redesignated paragraph (i)(2), by removing ``Validation of
Restrictive Markings on Technical Data or the Validation of Asserted
Restrictions--Computer Software'' and ``(sixty (6)) days'' and adding
``DFARS 252.227-7037, Validation of Restrictive Markings on Technical
Data, or the DFARS 252.227-7019, Validation of Asserted Restrictions--
Computer Software,'' and ``60 days'' in their places, respectively;
[[Page 77698]]
0
aa. In newly redesignated paragraph (k)(2), by removing ``(j)(1)'' and
adding ``(k)(1)'' in its place;
0
bb. In newly redesignated paragraph (l), by revising the heading and
paragraphs (l)(1) and (2); and
0
cc. By removing Alternate I.
The revisions and additions read as follows:
252.227-7018 Rights in Noncommercial Technical Data and Computer
Software--Small Business Innovation Research Program and Small Business
Technology Transfer Program.
As prescribed in 227.7104-4(a), use the following clause:
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technlogy
Transfer Program (Date)
(a) * * *
Government purpose rights means the rights to--
(1) Use, modify, reproduce, release, perform, display, or
disclose technical data or computer software within the Government
without restriction; and
(2) Release or disclose technical data or computer software
outside the Government and authorize persons to whom release or
disclosure has been made to use, modify, reproduce, release,
perform, display, or disclose that data for United States Government
purposes.
* * * * *
Restricted rights apply only to noncommercial computer software
and mean the Government's rights to--
(1) Use a computer program with one computer at one time. The
program may not be accessed by more than one terminal or central
processing unit or time shared unless otherwise permitted by this
contract;
(2) Transfer a computer program to another Government agency
without the further permission of the Contractor if the transferor
destroys all copies of the program and related computer software
documentation in its possession and notifies the licensor of the
transfer. Transferred programs remain subject to the provisions of
this clause;
(3) Make the minimum number of copies of the computer software
required for safekeeping (archive), backup, or modification
purposes;
(4) Modify computer software provided that the Government may--
(i) Use the modified software only as provided in paragraphs (1)
and (3) of this definition; and
(ii) Not release or disclose the modified software except as
provided in paragraphs (2), (5), (6), and (7) of this definition;
(5) 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--
(i) The Government notifies the party which has granted
restricted rights that a release or disclosure to particular
contractors or subcontractors was made;
(ii) Such contractors or subcontractors are subject to the
nondisclosure 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 with
Restrictive Markings;
(iii) 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 (4) of this definition, for any
other purpose; and
(iv) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition;
(6) 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--
(i) The intended recipient is subject to the nondisclosure
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 with Restrictive
Markings;
(ii) 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 (4) of this definition, for any other purpose;
and
(iii) Such use is subject to the limitations in paragraphs (1)
through (3) of this definition; and
(7) Permit covered Government support contractors in the
performance of Government contracts that contain the clause at
252.227-7025, Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Markings, to use, modify,
reproduce, perform, display, or release or disclose the computer
software to a person authorized to receive restricted rights
computer software, provided that--
(i) The Government shall not permit the covered Government
support contractor to decompile, disassemble, or reverse engineer
the software, or use software decompiled, disassembled, or reverse
engineered by the Government pursuant to paragraph (4) of this
definition, for any other purpose; and
(ii) Such use is subject to the limitations in paragraphs (1)
through (4) of this definition.
Small Business Innovation Research/Small Business Technology
Transfer (SBIR/STTR) data means all technical data or computer
software developed or generated in the performance of a phase I, II,
or III SBIR/STTR contract or subcontract.
SBIR/STTR data protection period means the period of time during
which the Government is obligated to protect SBIR/STTR data against
unauthorized use and disclosure in accordance with SBIR/STTR data
rights. The SBIR/STTR data protection period begins on the date of
award of the contract under which the SBIR/STTR data are developed
or generated and ends 20 years after that date unless, subsequent to
the award, the agency and the Contractor negotiate for some other
protection period for the SBIR/STTR data developed or generated
under that contract.
SBIR/STTR data rights means the Government's rights, during the
SBIR/STTR data protection period, in SBIR/STTR data covered by
paragraph (c)(5) of this clause, as follows:
(1) Limited rights in such SBIR/STTR technical data; and
(2) Restricted rights in such SBIR/STTR computer software.
* * * * *
(b) Applicability. This clause will govern all SBIR/STTR data.
For any data that are not SBIR/STTR data--
(1) The Defense Federal Acquisition Regulation Supplement
(DFARS) clause at 252.227-7013, Rights in Technical Data--
Noncommercial Items, 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 DFARS clause at
252.227-7015, Technical Data--Commercial Items, will govern the
technical data pertaining to any portion of a commercial item that
was developed exclusively at private expense;
(2) The DFARS clause at 252.227-7014, Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation,
will govern noncommercial computer software and computer software
documentation; and
(3) A license consistent with DFARS 227.7202 will govern
commercial computer software and commercial computer software
documentation.
* * * * *
(c) * * *
(1) * * *
(v) Technical data or computer software in which the Government
has acquired previously unlimited rights under another Government
contract or as a result of negotiations;
(vi) Technical data or computer software furnished to the
Government, under this or any other Government contract or
subcontract thereunder, with license rights for which all
restrictive conditions on the Government have expired; and
(vii) Computer software documentation generated or required to
be delivered under this contract.
(2) Government purpose rights. (i) The Government shall have
government purpose rights for the period specified in paragraph
(c)(2)(ii) of this clause in data that are--
(A) Not SBIR/STTR data, and are--
(1) Technical data pertaining to items, components, or processes
developed with mixed funding, or are computer software developed
with mixed funding, except when
[[Page 77699]]
the Government is entitled to unlimited rights in such data as
provided in paragraph (c)(1) of this clause;
(2) Created with mixed funding in the performance of a contract
that does not require the development, manufacture, construction, or
production of items, components, or processes; or
(B) SBIR/STTR data, upon expiration of the SBIR/STTR data
protection period.
(ii)(A) For the non-SBIR/STTR data described in paragraph
(c)(2)(i)(A) of this clause, the Government shall have government
purpose rights for a period of 5 years, or such other period as may
be negotiated. This period shall commence upon award of the
contract, subcontract, letter contract (or similar contractual
instrument), or contract modification (including a modification to
exercise an option) that required development of the items,
components, or processes, or creation of the data described in
paragraph (c)(2)(i)(A)(2) of this clause. Upon expiration of the 5-
year or other negotiated period, the Government shall have unlimited
rights in the data.
(B) For the SBIR/STTR data described in paragraph (c)(2)(i)(B)
of this clause, the Government shall have government purpose rights
perpetually or for such other period as may be negotiated. This
Government purpose rights period commences upon the expiration of
the SBIR/STTR data protection period. Upon expiration of any such
negotiated government purpose rights period, the Government shall
have unlimited rights in the data.
(iii) The Government shall not release or disclose data in which
it has government purpose rights unless--
(A) Prior to release or disclosure, the intended recipient is
subject to the nondisclosure agreement at DFARS 227.7103-7; or
(B) The recipient is a Government contractor receiving access to
the data for performance of a Government contract that contains the
clause at DFARS 252.227-7025, Limitations on the Use or Disclosure
of Government-Furnished Information with Restrictive Markings.
(iv) The Contractor has the exclusive right, including the right
to license others, to use technical data in which the Government has
obtained government purpose rights under this contract for any
commercial purpose during the time period specified in the
government purpose rights marking prescribed in paragraph (g)(2) of
this clause.
* * * * *
(5) SBIR/STTR data rights. Except for technical data, including
computer software documentation, or computer software in which the
Government has unlimited rights under paragraph (c)(1) of this
clause, the Government shall have SBIR/STTR data rights, during the
SBIR/STTR data protection period of this contract, in all SBIR/STTR
data developed or generated under this contract. This protection
period is not extended by any subsequent SBIR/STTR contracts under
which any portion of that SBIR/STTR data is used or delivered. The
SBIR/STTR data protection period of any such subsequent SBIR/STTR
contract applies only to the SBIR/STTR data that are developed or
generated under that subsequent contract. The SBIR/STTR data
protection period is governed by the version of this clause that is
incorporated in the contract under which the SBIR/STTR data are
developed or generated. If the SBIR/STTR data were developed or
generated under a contract that included a previous version of this
clause, then the SBIR/STTR data protection period is governed by
that previous version of this clause.
(6) Specifically negotiated license rights. The standard license
rights granted to the Government under paragraphs (c)(1) through
(c)(5) of this clause may be modified by mutual agreement to provide
such rights as the parties consider appropriate but shall not
provide the Government lesser rights in technical data, including
computer software documentation, than are enumerated in the
definition of ``limited rights'' of this clause or lesser rights in
computer software than are the definition of ``restricted rights''
of this clause. Any rights so negotiated shall be identified in a
license agreement made part of this contract.
* * * * *
(8) Release from liability. The Contractor agrees to release the
Government from liability for any release or disclosure of technical
data, computer software, or computer software documentation made in
accordance with the definitions of ``Government purpose,''
``noncommercial computer software,'' or paragraph (c)(5) of this
clause, or in accordance with the terms of a license negotiated
under paragraph (c)(6) of this clause, or by others to whom the
recipient has released or disclosed the data, software, or
documentation and to seek relief solely from the party who has
improperly used, modified, reproduced, released, performed,
displayed, or disclosed Contractor data or software marked with
restrictive markings.
* * * * *
(f) * * *
Identification and Assertion of Restrictions on the Government's Use,
Release, or Disclosure of Technical Data or Computer Software
The Contractor asserts for itself, or the persons identified
below, that the Government's rights to use, release, or disclose the
following technical data or computer software should be restricted:
----------------------------------------------------------------------------------------------------------------
Technical data or Computer
software to be furnished Basis for assertion \2\ Asserted Rights category Name of person asserting
with restrictions \1\ \3\ restrictions \4\
----------------------------------------------------------------------------------------------------------------
(LIST) \5\ (LIST) (LIST) (LIST)
----------------------------------------------------------------------------------------------------------------
\1\ If the assertion is applicable to items, components, or processes developed at private expense, identify
both the technical data and each such item, component, or process.
\2\ Generally, development at private expense, either exclusively or partially, is the only basis for asserting
restrictions on the Government's rights to use, release, or disclose technical data or computer software.
Indicate whether development was accomplished exclusively or partially at private expense. If development was
not at private expense enter the specific reason for asserting that the Government's rights should be
restricted.
\3\ Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or
government purpose license rights from a prior contract, SBIR/STTR data rights under this or another contract,
or specifically negotiated licenses).
\4\ Corporation, individual, or other person, as appropriate.
Date-------------------------------------------------------------------
Printed Name and Title-------------------------------------------------
Signature--------------------------------------------------------------
(End of identification and assertion)
* * * * *
(g)(1) Marking requirements. The Contractor, and its
subcontractors or suppliers, shall apply asserted restrictions on
technical data or computer software delivered under this contract
only by marking such technical data or software. Except as provided
in paragraph (g)(11) of this clause, only the following restrictive
markings are authorized under this contract:
(i) The unlimited rights marking at paragraph (g)(5) of this
clause.
(ii) The government purpose rights marking at paragraph (g)(6)
of this clause.
(iii) The limited rights marking at paragraph (g)(7) of this
clause.
(iv) The restricted rights marking at paragraph (g)(8) of this
clause.
(v) The SBIR/STTR data rights marking at paragraph (g)(9) of
this clause.
(vi) The special license rights marking at paragraph (g)(10) of
this clause.
(vii) A notice of copyright in the format prescribed under 17
U.S.C. 401 or 402.
(2) Other restrictive makings. Any other restrictive markings,
including markings that describe restrictions placed on third-party
recipients of the technical data or computer software, are not
authorized and shall be deemed nonconforming markings governed by
paragraph (i)(2) of this clause.
(3) General marking instructions. The Contractor, or its
subcontractors or suppliers, shall conspicuously and legibly mark
the appropriate restrictive marking to all technical data and
computer software that qualify for such markings. The authorized
restrictive markings shall be placed on the
[[Page 77700]]
transmittal document or storage container and, for printed material,
each page of the printed material containing technical data or
computer software for which restrictions are asserted. When only
portions of a page of printed material are subject to the asserted
restrictions, such portions shall be identified by circling,
underscoring, with a note, or other appropriate identifier.
Technical data or computer software transmitted directly from one
computer or computer terminal to another shall contain a notice of
asserted restrictions. However, instructions that interfere with or
delay the operation of computer software in order to display a
restrictive rights marking or other license statement at any time
prior to or during use of the computer software, or otherwise cause
such interference or delay, shall not be inserted in software that
will or might be used in combat or situations that simulate combat
conditions, unless the Contracting Officer's written permission to
deliver such software has been obtained prior to delivery.
Reproductions of technical data, computer software, or any portions
thereof subject to asserted restrictions shall also reproduce the
asserted restrictions.
(4) Omitted markings. (i) Technical data, computer software, or
computer software documentation delivered or otherwise provided
under this contract without restrictive markings shall be presumed
to have been delivered with unlimited rights. To the extent
practicable, if the Contractor has requested permission (see
paragraph (g)(4)(ii) of this clause) to correct an inadvertent
omission of markings, the Contracting Officer will not release or
disclose the technical data, software, or documentation pending
evaluation of the request.
(ii) The Contractor may request permission to have conforming
and justified restrictive markings placed on unmarked technical
data, computer software, or computer software documentation at its
expense. The request must be received by the Contracting Officer
within 6 months following the furnishing or delivery of such
technical data, software, or documentation, or any extension of that
time approved by the Contracting Officer. The Contractor shall--
(A) Identify the technical data, software, or documentation that
should have been marked;
(B) Demonstrate that the omission of the marking was
inadvertent, the proposed marking is justified and conforms with the
requirements for the marking of technical data, computer software,
or computer software documentation contained in this clause; and
(C) Acknowledge, in writing, that the Government has no
liability with respect to any disclosure, reproduction, or use of
the technical data, software, or documentation made prior to the
addition of the marking or resulting from the omission of the
marking.
(5) Unlimited rights markings. Technical data or computer
software delivered or otherwise furnished to the Government with
unlimited rights shall be marked as follows:
Unlimited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government has unlimited rights in these technical data or
this computer software pursuant to DFARS 252.227-7013, Rights in
Technical Data--Noncommercial Items; DFARS 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation; or DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause of the above identified contract, as applicable. This marking
must be included in any reproduction of these technical data,
computer software, or portions thereof. (End of marking)
(6) Government purpose rights markings. Technical data or
computer software delivered or otherwise furnished to the Government
with government purpose rights shall be marked as follows:
Government Purpose Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration Date--------------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data or computer
software are restricted by paragraph (c)(2) of the DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, clause contained in the above
identified contract. No restrictions apply after the expiration date
shown above. Any reproduction of technical data or computer software
or portions thereof marked with this restrictive marking must also
reproduce the markings.
(End of marking)
(7) Limited rights markings. Technical data not generated under
this contract that pertain to items, components, or processes
developed exclusively at private expense and delivered or otherwise
furnished with limited rights shall be marked as follows:
Limited Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are restricted by
paragraph (c)(3) of the DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause contained in the above identified contract. Any reproduction
of technical data or portions thereof marked with this restrictive
marking must also reproduce the markings. Any person, other than the
Government, who has been provided access to such data must promptly
notify the above named Contractor.
(End of marking)
(8) Restricted rights markings. Computer software delivered or
otherwise furnished to the Government with restricted rights shall
be marked as follows:
Restricted Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this software are restricted by
paragraph (c)(4) of the DFARS 252.227-7018, Rights in Noncommercial
Technical Data and Computer Software--Small Business Innovation
Research Program and Small Business Technology Transfer Program,
clause contained in the above identified contract. Any reproduction
of computer software or portions thereof marked with this
restrictive marking must also reproduce the markings. Any person,
other than the Government, who has been provided access to such
software must promptly notify the above named Contractor.
(End of marking)
(9) SBIR/STTR data rights markings. Except for technical data or
computer software in which the Government has acquired unlimited
rights under paragraph (c)(1) of this clause or negotiated special
license rights as provided in paragraph (c)(6) of this clause,
technical data or computer software generated under this contract
shall be marked as follows. The Contractor shall enter the
expiration date for the SBIR/STTR data protection period on the
marking:
SBIR/STTR Data Rights
Contract Number--------------------------------------------------------
Contractor Name--------------------------------------------------------
Contractor Address-----------------------------------------------------
Expiration of SBIR/STTR Data Protection Period-------------------------
Expiration of the Government Purpose Rights Period---------------------
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose technical data or computer software
marked with this restrictive marking are restricted during the
period shown as provided in paragraph (c)(5) of the DFARS 252.227-
7018, Rights in Noncommercial Technical Data and Computer Software--
Small Business Innovation Research Program and Small Business
Technology Transfer Program, clause contained in the above
identified contract. After the SBIR/STTR data protection period
expiration date shown above, the Government has perpetual government
purpose rights as provided in paragraph (c)(4) of that clause,
unless otherwise indicated by the government purpose rights
expiration date shown above. Any reproduction of technical data,
computer software, or portions thereof marked with this restrictive
marking must also reproduce the markings.
(End of marking)
(10) Special license rights markings.
(i) Technical data or computer software in which the
Government's rights stem from a specifically negotiated license
shall be marked as follows:
[[Page 77701]]
Special License Rights
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose this technical data or computer
software are restricted by Contract Number [Insert contract number],
License Number [Insert license identifier]. Any reproduction of
technical data, computer software, or portions thereof marked with
this restrictive marking must also reproduce the markings.
(End of marking)
(ii) For purposes of this clause, special licenses do not
include government purpose license rights acquired under a prior
contract (see paragraph (c)(7) of this clause).
(11) Preexisting data markings. If the terms of a prior contract
or license permitted the Contractor to restrict the Government's
rights to use, modify, reproduce, release, perform, display, or
disclose technical data or computer software, and those restrictions
are still applicable, the Contractor may mark such data or software
with the appropriate restrictive marking for which the data or
software qualified under the prior contract or license. The
Contractor shall follow the marking procedures in paragraph (g)(1)
of this clause.
* * * * *
(l) Subcontractors or suppliers. (1) The Contractor shall assure
that the rights afforded its subcontractors and suppliers under 10
U.S.C. 2320, 10 U.S.C. 2321, 15 U.S.C. 638(j)(1)(B)(iii) and (v),
and the identification, assertion, and delivery processes required
by paragraph (f) of this clause are recognized and protected.
(2) Whenever any technical data or computer software is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use the
following clause(s) in the subcontract or other contractual
instrument, and require its subcontractors or suppliers to do so,
without alteration, except to identify the parties:
(i) Except as provided in paragraph (l)(2)(ii) of this clause,
use this clause to govern SBIR/STTR data.
(ii) For data that are not SBIR/STTR data--
(A) Use the DFARS clause at 252.227-7013, Rights in Technical
Data--Noncommercial Items, to 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 use the DFARS
clause at 252.227-7015, Technical Data--Commercial Items, to govern
the technical data pertaining to any portion of a commercial item
that was developed exclusively at private expense;
(B) Use the DFARS clause at 252.227-7014, Rights in
Noncommercial Computer Software and Noncommercial Computer Software
Documentation, to govern noncommercial computer software and
computer software documentation; and
(C) Use the license under which the data are customarily
provided to the public, in accordance with DFARS 227.7202, for
commercial computer software and commercial computer software
documentation.
(iii) 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
or computer software.
* * * * *
0
24. Amend section 252.227-7019--
0
a. By revising the section heading, introductory text, and clause date;
0
b. By revising paragraph (a);
0
c. In paragraph (d)(2)(i)(B) by removing ``sixty (60) days'' and the
period at the end of the paragraph and adding ``60 days'' and a
semicolon in their places, respectively;
0
d. In paragraph (e)(1) by removing ``three years'' wherever it appears
and adding ``3 years'' in its place;
0
e. In paragraph (f)(1)(ii) by removing ``sixty (60) days'' and adding
``60 days'' in its place;
0
f. In paragraph (f)(1)(iv) by removing ``three-year'' and adding ``3-
year'' in its place;
0
g. In paragraph (f)(7) by removing ``provides the contractor'' and
adding ``provides the Contractor'' in its place;
0
h. In paragraph (g)(1)(i), by removing ``ninety (90) days'' and adding
``90 days'' in its place;
0
i. In paragraph (g)(1)(ii), by removing ``one year'' and ``ninety (90)
days'' and adding ``1 year'' and ``90 days'' in their places,
respectively;
0
j. Revising paragraph (g)(1)(iii);
0
k. In paragraphs (g)(2)(i) and (ii), by removing ``ninety (90) days''
and adding ``90 days'' in its place;
0
l. In paragraph (g)(2)(iii), by removing ``one year'' and ``ninety (90)
days'' and adding ``1 year'' and ``90 days'' in their places,
respectively; and
0
m. Revising paragraph (g)(3).
The revisions read as follows:
252.227-7019 Validation of Asserted Restrictions--Computer Software.
As prescribed in 227.7104-4(b)(3) or 227.7203-6(c), use the
following clause:
Validation of Asserted Restrictions--Computer Software (Date)
(a) Definitions. As used in this clause--
Contractor, unless otherwise specifically indicated, means the
Contractor and its subcontractors or suppliers.
Other terms used in this clause are defined in the 252.227-7014,
Rights in Noncommercial Computer Software and Noncommercial Computer
Software Documentation, clause of this contract.
* * * * *
(g) * * *
(1) * * *
(iii) Until final disposition by the appropriate Board of
Contract Appeals or court of competent jurisdiction, if the
Contractor has--
(A) Appealed to the Board of Contract Appeals or filed suit in
an appropriate court within 90 days; or
(B) Submitted, within 90 days, a notice of intent to file suit
in an appropriate court and filed suit within 1 year.
* * * * *
(3)(i) The agency head, on a nondelegable basis, may determine
that urgent or compelling circumstances do not permit awaiting the
filing of suit in an appropriate court, or the rendering of a
decision by a court of competent jurisdiction or Board of Contract
Appeals. In that event, the agency head shall notify the Contractor
of the urgent or compelling circumstances. Notwithstanding paragraph
(g)(1) of this clause, the Contractor agrees that the agency may
use, modify, reproduce, release, perform, display, or disclose
computer software marked with--
(A) Government purpose markings for any purpose, and authorize
others to do so; or
(B) Restricted or special license rights for government purposes
only.
(ii) The Government agrees not to release or disclose such
software unless, prior to release or disclosure, the intended
recipient is subject to the use and nondisclosure agreement at DFARS
227.7103-7, or is a Government contractor receiving access to the
software for performance of a Government contract that contains the
clause at DFARS 252.227-7025, Limitations on the Use or Disclosure
of Government-Furnished Information with Restrictive Markings. The
agency head's determination may be made at any time after the date
of the Contracting Officer's final decision and shall not affect the
Contractor's right to damages against the United States, or other
relief provided by law, if its asserted restrictions are ultimately
upheld.
* * * * *
0
25. Amend section 252.227-7025--
0
a. By revising the section heading, introductory text, and clause date;
0
b. By adding paragraph (a) introductory text and revising paragraph
(a)(3);
0
c. By revising paragraph (b)(1) heading, paragraphs (b)(1)(i), (b)(2),
(3) and (4);
0
d. In paragraph (b)(5) introductory text, by removing ``legends'' and
adding ``markings'' in its place;
0
e. In paragraph (b)(5)(iii), by removing ``legend'' and ``thirty (30)
days'' and adding ``marking'' and ``30 days'' in their places,
respectively;
0
f. In paragraph (b)(5)(iv), by removing ``non-disclosure'' wherever it
appears and ``legend'' and adding ``nondisclosure'' and ``marking'' in
their places, respectively;
0
g. In paragraph (b)(5)(v)(B), by removing ``legend'' and adding
``marking'' in its place;
0
h. In paragraph (c)(1), by removing ``legends'' and adding ``markings''
in its place'';
0
i. In paragraph (c)(2), by removing ``legend'' and ``legends'' and
adding ``marking'' and ``markings'' in their places, respectively; and
[[Page 77702]]
0
j. In paragraph (d), by removing ``non-disclosure'' and adding
``nondisclosure'' in its place; and
0
k. By adding ``(End of clause)'' at the end of the clause.
The revisions and addition read as follows:
252.227-7025 Limitations on the Use or Disclosure of Government-
Furnished Information with Restrictive Markings.
As prescribed in 227.7103-6(c), 227.7104-4(b)(4), or 227.7203-6(d),
use the following clause:
Limitations on the Use or Disclosure of Government-Furnished
Information With Restrictive Markings (Date)
(a) Definitions. As used in this clause--
* * * * *
(3) For Small Business Innovation Research (SBIR) Program and
Small Business Technology Transfer (STTR) Program contracts, the
terms ``covered Government support contractor,'' ``government
purpose rights,'' ``limited rights,'' ``restricted rights,'' and
``SBIR/STTR data rights'' are defined in the clause at 252.227-7018,
Rights in Noncommercial Technical Data and Computer Software--Small
Business Innovation Research Program and Small Business Technology
Transfer Program.
(b) * * *
(1) GFI marked with limited rights, restricted rights, or SBIR/
STTR data rights markings. (i) The Contractor shall use, modify,
reproduce, perform, or display technical data received from the
Government with limited rights markings, computer software received
with restricted rights markings, or SBIR/STTR technical data or
computer software received with SBIR/STTR data rights markings
(during the SBIR/STTR data protection period) only in the
performance of this contract. The Contractor shall not, without the
express written permission of the party whose name appears in the
marking, release or disclose such data or software to any
unauthorized person.
* * * * *
(2) GFI marked with government purpose rights markings. The
Contractor shall use technical data or computer software received
from the Government with government purpose rights markings for
government purposes only. The Contractor shall not, without the
express written permission of the party whose name appears in the
restrictive marking, 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 nondisclosure agreement at 227.7103-7 of
the Defense Federal Acquisition Regulation Supplement (DFARS).
(3) GFI marked with specially negotiated license rights
markings. (i) The Contractor shall use, modify, reproduce, release,
perform, or display technical data or computer software received
from the Government with specially negotiated license markings 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 nondisclosure agreement at DFARS 227.7103-7. The
Contractor shall modify paragraph (1)(c) of the nondisclosure
agreement to reflect the recipient's obligations regarding use,
modification, reproduction, release, performance, display, and
disclosure of the data or software.
* * * * *
(4) GFI technical data marked with commercial restrictive
markings. (i) The Contractor shall use, modify, reproduce, perform,
or display technical data that are or pertain to a commercial item
and are received from the Government with a commercial restrictive
marking (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 marking, use the technical data
to manufacture additional quantities of the commercial items, or
release or disclose such data to any unauthorized person.
* * * * *
(End of clause)
0
26. Revise section 252.227-7028 heading and introductory text to read
as follows:
252.227-7028 Technical Data or Computer Software Previously Delivered
to the Government.
As prescribed in 227.7103-6(d), 227.7104-4(b)(5), or 227.7203-6(e),
use the following provision:
* * * * *
0
27. Revise section 252.227-7030 heading and introductory text to read
as follows:
252.227-7030 Technical Data--Withholding of Payment.
As prescribed at 227.7103-6(e)(2) or 227.7104-4(b)(6), use the
following clause:
* * * * *
252.227-7037 [Amended]
0
28. Amend section 252.227-7037 introductory text by removing
``,227.7104(c)(5)'' and adding ``, 227.7104-4(b)(7)'' in its place.
0
29. Add new sections 252.227-70XX and 252.227-70YY to read as follows:
252.227-70XX Additional Preaward Requirements for Small Business
Technology Transfer Program.
As prescribed in 227.7104-4(c)(1), use the following provision:
Additional Preaward Requirements for Small Business Technology Transfer
Program (Date)
(a) Definitions. As used in this provision, the terms research
institution and United States have the meaning given in the 252.227-
70YY, Additional Postaward Requirements for Small Business
Technology Transfer Program, clause of this solicitation.
(b) Offers submitted in response to this solicitation shall
include the following:
(1) The written agreement between the Offeror and a partnering
research institution, which shall contain--
(i) A specific allocation of ownership, rights, and
responsibilities for intellectual property (including inventions,
patents, technical data, and computer software) resulting from the
Small Business Technology Transfer (STTR) Program award;
(ii) Identification of which party to the written agreement may
obtain United States or foreign patents or otherwise protect any
inventions that result from a STTR award; and
(iii) No provisions that conflict with the requirements of this
solicitation, including the rights of the United States and the
Offeror regarding intellectual property, and regarding any right to
carry out follow-on research.
(2) The Offeror's written representation that--
(i) The Offeror is satisfied with its written agreement with the
partnering research institution; and
(ii) The written agreement does not conflict with the
requirements of this solicitation.
(c) The Offeror shall submit the written representation required
by paragraph (b)(2) of this provision as an attachment to its offer,
dated and signed by an official authorized to contractually obligate
the Offeror.
(d) The Offeror's failure to submit the written agreement or
written representation required by paragraph (b) of this provision
with its offer may render the offer ineligible for award.
(e) If the Offeror is awarded a contract, the Contracting
Officer will include the written agreement and written
representation required by paragraph (b) of this provision in an
attachment to that contract.
(End of provision)
252.227-70YY Additional Postaward Requirements for Small Business
Technology Transfer Program.
As prescribed in 227.7104-4(c)(2), use the following clause:
Additional Postaward Requirements for Small Business Technology
Transfer Program (Date)
(a) Definitions. As used in this clause--
Research institution means an institution or entity that--
(1) Has a place of business located in the United States;
(2) Operates primarily within the United States or makes a
significant contribution to the U.S. economy through payment of
taxes or use of American products, materials or labor; and
(3) Is either--
(i) A nonprofit institution that is owned and operated
exclusively for scientific or
[[Page 77703]]
educational purposes, no part of the net earnings of which inures to
the benefit of any private shareholder or individual (section 4(3)
of the Stevenson-Wydler Technology Innovation Act of 1980); or
(ii) A Federally-funded research or research and development
center as identified by the National Science Foundation (<a href="https://www.nsf.gov/statistics/ffrdclist/">https://www.nsf.gov/statistics/ffrdclist/</a>) in accordance with the Federal
Acquisition Regulation (FAR).
United States means the 50 States and the District of Columbia,
the territories and possessions of the Government, the Commonwealth
of Puerto Rico, the Republic of the Marshall Islands, the Federated
States of Micronesia, and the Republic of Palau.
(b) Preaward submissions. Attached to this contract are the
following documents, submitted by the Contractor pursuant to Defense
Federal Acquisition Regulation Supplement 252.227-70XX, Additional
Preaward Requirements for Small Business Technology Transfer
Program:
(1) The written agreement between the Contractor and a
partnering research institution.
(2) The Contractor's written representation that it is satisfied
with that written agreement, which does not conflict with the
requirements of this contract.
(c) Postaward updates. The Contractor shall not allow any
modification to its written agreement with the partnering research
institution, unless the written agreement, as modified, contains--
(1) A specific allocation of ownership, rights, and
responsibilities for intellectual property (including inventions,
patents, technical data, and computer software) resulting from
performance of this contract;
(2) Identification of which party to the written agreement may
obtain United States or foreign patents or otherwise protect any
inventions that result from a Small Business Technology Transfer
Program award;
(3) The Contractor's written, dated, and signed representation
that--
(i) The Contractor is satisfied with its written agreement with
the partnering research institution, as modified; and
(ii) The written agreement, as modified, does not conflict with
the requirements of this contract; and
(4) No provisions that conflict with the requirements of this
contract, including the rights of the United States and the
Contractor regarding intellectual property, and regarding any right
to carry out follow-on research.
(d) Submission of updated agreement. Within 30 days of execution
of the modified written agreement described in paragraph (b)(1) of
this clause, the Contractor shall submit a copy of that updated
written agreement and the updated written representation described
in paragraph (b)(2) of this clause to the Contracting Officer for
review and attachment to this contract.
(End of clause)
[FR Doc. 2022-27196 Filed 12-15-22; 8:45 am]
BILLING CODE 6820-ep-P
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