Proposed Rule2024-08438
Defense Federal Acquisition Regulation Supplement: Update of Challenge Period for Validation of Asserted Restrictions on Technical Data and Computer Software (DFARS Case 2022-D016)
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Published
April 25, 2024
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2012, which addresses the validation of proprietary data restrictions. In addition to the request for written comments, DoD will hold a public meeting to hear the views of interested parties.
Full Text
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<title>Federal Register, Volume 89 Issue 81 (Thursday, April 25, 2024)</title>
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[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Proposed Rules]
[Pages 31686-31690]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08438]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
[Docket DARS-2022-0030]
RIN 0750-AL67
Defense Federal Acquisition Regulation Supplement: Update of
Challenge Period for Validation of Asserted Restrictions on Technical
Data and Computer Software (DFARS Case 2022-D016)
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 a section of the National
Defense Authorization Act for Fiscal Year 2012, which addresses the
validation of proprietary data restrictions. In addition to the request
for written comments, DoD will hold a public meeting to hear the views
of interested parties.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 24, 2024, to be considered in
the formation of a final rule.
Public Meeting: A virtual public meeting will be held on May 17,
2024, from 1:00 p.m. to 5:00 p.m. Eastern time. The public meeting will
end at the stated time, or when the discussion ends, whichever comes
first.
Registration: Registration to attend the public meeting must be
received no later than close of business on May 9, 2024. Information on
how to register for the public meeting is provided under the
SUPPLEMENTARY INFORMATION section of this proposed rule.
ADDRESSES: Public Meeting: A virtual public meeting will be held using
Zoom video conferencing software.
Submission of Comments: Submit comments identified by DFARS Case
2022-D016, using either of the following methods:
[cir] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Search for DFARS Case 2022-D016. Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2022-
D016'' on any attached documents.
[cir] Email: <a href="/cdn-cgi/l/email-protection#e18e9285cf8587809392a18c80888dcf8c888d"><span class="__cf_email__" data-cfemail="e6899582c88280879495a68b878f8ac88b8f8a">[email protected]</span></a>. Include DFARS Case 2022-D016 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: David Johnson, telephone 202-913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement section 815(b) of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012
(Pub. L. 112-81). Section 815(b) amended 10 U.S.C. 2321 (currently 10
U.S.C. 3782) by increasing the validation period for asserted
restrictions from three years to six years. Section 815(b) also amended
10 U.S.C. 2321 to provide an exception to the prescribed time limit for
validation of asserted restrictions if the technical data involved are
the subject of a fraudulently asserted use or release restriction.
DoD published an advance notice of proposed rulemaking (ANPR) in
the Federal Register on December 16, 2022, at 87 FR 77055, providing
draft DFARS revisions and requesting written public comments. DoD
hosted a public meeting to obtain the views of interested parties
regarding the ANPR on January 26, 2023.
The preamble to the ANPR provided detailed explanations of
revisions related to--
<bullet> The validation period for asserted restrictions; and
<bullet> The new statutory exception to the prescribed time limit
for validation of asserted restrictions.
One respondent submitted public comments in response to the ANPR.
II. Public Meeting
DoD is interested in continuing a dialogue with experts and
interested parties in the Government and the private sector regarding
amending the DFARS to implement section 815(b) of the NDAA for FY 2012.
Registration: Individuals wishing to participate in the virtual
meeting must register by May 9, 2024, 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#cea1bdaae0aaa8afbcbd8ea3afa7a2e0a3a7a2"><span class="__cf_email__" data-cfemail="dbb4a8bff5bfbdbaa9a89bb6bab2b7f5b6b2b7">[email protected]</span></a> and include
``Public Meeting, DFARS Case 2022-D016'' 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#5b34283f753f3d3a29281b363a323775363237"><span class="__cf_email__" data-cfemail="9ff0ecfbb1fbf9feedecdff2fef6f3b1f2f6f3">[email protected]</span></a> no later than the registration date for the
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 2022-D016'' in all correspondence related to the
public meeting. There will be no transcription at the meeting. The
submitted presentations 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 response to the ANPR in the
development of the proposed rule. No changes are made in this proposed
rule text as a result of the public comments. A discussion of the
comments is provided, as follows:
[[Page 31687]]
A. Analysis of Public Comments
1. Virtual Public Meetings
Comment: The respondent thanked DoD for the opportunity to
participate in the rulemaking process and provide input.
Response: DoD acknowledges the respondent's comment.
2. Definition of Fraud
Comment: The respondent requested clarification with respect to
when a use or release restriction would be considered ``fraudulently
asserted.'' In particular, the respondent asked whether there is a
knowledge requirement on behalf of the contractor asserting
restrictions.
Response: The statutory revisions being implemented in DFARS Case
2022-D016 do not establish a specialized definition of ``fraudulently
asserted'' or a knowledge requirement. DoD will rely upon the common
meaning of the terminology used in the statute and regulatory
implementation, informed by applicable procurement statutes, other
applicable statutes, and case precedent.
3. Deferred Ordering and the Challenge Period
Comment: The respondent requested clarification regarding
applicability to deferred ordering situations. The respondent asked if
the period related to final payment resets when a payment is made on a
deferred ordering basis.
Response: The proposed rule includes the following language related
to technical data: ``During the period within 6 years of final payment
on a contract or within 6 years of delivery of the technical data to
the Government, whichever is later, the Contracting Officer may review
and make a written determination to challenge the restriction.'' It
also includes the following language regarding software: ``the
Government may exercise this right only within 6 years after the
date(s) the software is delivered or otherwise furnished to the
Government, or 6 years following final payment under this contract,
whichever is later.''
Invocation of the deferred ordering clause institutes new technical
data or software delivery requirements; these deliverables may be
delivered under the original contract (in which the clause was
incorporated) or another contract. Accordingly, the expiration of the
challenge period will depend upon the date the data is furnished or the
date of final payment under the contract where the technical data or
software is delivered, whichever is later.
B. Other Changes
The proposed rule includes other changes to align the language in
the clauses at DFARS 252.227-7019, Validation of Asserted
Restrictions--Computer Software, and DFARS 252.227-7037, Validation of
Restrictive Markings on Technical Data. In addition, editorial changes
were made, including updates to comport with DFARS content and drafting
conventions. For example, the proposed rule includes changes to the
clauses to consistently refer to validation of ``asserted
restrictions'' (rather than ``restrictive markings''), thereby aligning
this language with the scope and purpose of the clauses and the
underlying statutes (10 U.S.C 3781-3786). In addition, the proposed
rule includes revisions to the clauses to ensure consistent syntax in
instances where the clause refers to striking or correcting a
restrictive marking. Furthermore, the proposed rule corrects all
references to the ``United States Claims Court'' to read as the
``United States Court of Federal Claims'', to reflect the correct name
of the applicable court.
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold, for Commercial Products (Including Commercially Available
Off-the-Shelf Items), and for Commercial Services
This proposed rule amends the clauses at DFARS 252.227-7019,
Validation of Asserted Restrictions--Computer Software, and DFARS
252.227-7037, Validation of Restrictive Markings on Technical Data.
However, this proposed rule does not impose any new requirements on
contracts at or below the SAT, for commercial products including COTS
items, or for commercial services. The clause will continue to apply to
acquisitions at or below the SAT, to acquisitions of commercial
products including COTS items, and to acquisitions of commercial
services.
V. Expected Impact of the Rule
The proposed rule includes changes to lengthen the validation
period for asserted restrictions from three years to six years. The
proposed rule also provides an exception to the prescribed time limit
for validation of asserted restrictions if the technical data or
computer software involved are the subject of a fraudulently asserted
restriction. Therefore, the proposed rule, when finalized, may increase
the number of challenges to which contractors must respond. However,
DoD cannot quantify the estimated number of the additional challenges
at this time.
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, as amended.
VII. Regulatory Flexibility Act
DoD does not expect this proposed rule, when finalized, 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 statutory requirements only lengthen the challenge
period for asserted restrictions. However, an initial regulatory
flexibility analysis has been performed and is summarized as follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement section 815(b) of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012,
which addresses the time period for validation of proprietary data
restrictions.
The objective of the rule is to implement section 815(b) of the
NDAA for FY 2012 (Pub. L. 112-81), which is the legal basis for the
rule. Section 815(b) amended 10 U.S.C. 2321 (currently 10 U.S.C. 3782)
by increasing the validation period for asserted restrictions from
three years to six years. Section 815(b) also amended 10 U.S.C. 2321 to
provide an exception to the prescribed time limit for validation of
asserted restrictions if the technical data involved are the subject of
a fraudulently asserted use or release restriction. This proposed rule,
when finalized, will ensure that the Government has adequate
opportunity to challenge discrepancies or inaccuracies in contractor
assertions of data and software rights.
This proposed rule will apply to small entities that have contracts
with DoD requiring delivery of data, including
[[Page 31688]]
technical data and computer software. DoD obtained data for fiscal
years 2020 through 2022 from the Procurement Business Intelligence
Service for all contracts and modifications that include one or more of
the following DFARS clauses: 252.227-7013, Rights in Technical Data--
Other Than Commercial Products or Commercial Services; 252.227-7014,
Rights in Other Than Commercial Computer Software and Other Than
Commercial Computer Software Documentation; 252.227-7015, Technical
Data--Commercial Products and Commercial Services; and 252.227-7018,
Rights in Other Than Commercial Technical Data and Computer Software--
Small Business Innovation Research (SBIR) Program. DoD awarded on
average 54,255 contract actions per year that included one or more of
the listed clauses to 9,550 unique entities, of which 28,657 contract
awards (53 percent) were made to 6,033 unique small entities (63
percent).
This proposed rule does not impose any new reporting,
recordkeeping, or other compliance requirements for small entities.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known alternatives that would accomplish the stated
objectives of the applicable statute.
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 proposed rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2022-
D016), in correspondence.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this
proposed rule. However, these changes to the DFARS do not impose
additional information collection requirements to the paperwork burden
previously approved by the Office of Management and Budget (OMB) under
OMB Control Number 0704-0369, entitled ``DFARS Subpart 227.71, Rights
in Technical Data; and Subpart 227.72, Rights in Computer Software and
Computer Software Documentation, and related provisions and clauses.''
List of Subjects in 48 CFR Part 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR part 252 is proposed to be amended as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for part 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Amend section 252.227-7019--
0
a. By revising the date of the clause;
0
b. By revising paragraph (b);
0
c. In paragraph (d)(2)(i)(B) by revising the second sentence;
0
d. In paragraph (e)(1) by revising the second sentence;
0
e. In paragraph (f)(1)(ii) by removing ``within sixty (60)'' and adding
``in writing within 60'' 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 (g)(1)(i) by removing ``ninety (90)'' and adding ``90''
in its place;
0
h. In paragraph (g)(1)(ii) by removing ``one'' and ``ninety (90)'' and
adding ``1'' and ``90'' in their places, respectively;
0
i. In paragraph (g)(1)(iii) by removing ``suit an appropriate'',
``ninety (90)'' wherever it appears, and ``one'' and adding ``suit in
an appropriate'', ``90'', and ``1'' in their places, respectively;
0
j. In paragraph (g)(2)(i) and (ii) by removing ``ninety (90)'' and
adding ``90'' in its place;
0
k. In paragraph (g)(2)(iii) removing ``one'' and ``ninety (90)'' and
adding ``1'' and ``90'' in their places, respectively; and
0
l. In paragraph (g)(3) removing ``government'' wherever it appears and
``non-disclosure'' and adding ``Government'' and ``nondisclosure'' in
their places, respectively.
The revisions read as follows:
252.227-7019 Validation of Asserted Restrictions-Computer Software.
* * * * *
Validation Of Asserted Restrictions--Computer Software (DATE)
* * * * *
(b) Justification. The Contractor shall maintain records sufficient
to justify the validity of any asserted restrictions on the
Government's rights to use, modify, reproduce, perform, display,
release, or disclose computer software delivered, required to be
delivered, or otherwise provided to the Government under this contract
and shall be prepared to furnish to the Contracting Officer a written
justification for such asserted restrictions in response to a request
for information under paragraph (d) of this clause or a challenge under
paragraph (f) of this clause.
* * * * *
(d) * * *
(2) * * *
(i) * * *
(B) * * * If the Contractor fails to correct or strike the
unjustified marking and return the corrected software to the
Contracting Officer within 60 days following receipt of the software,
the Contracting Officer may correct the strike the marking at the
Contractor's expense.
* * * * *
(e) * * *
(1) * * * Except for software that is publicly available, has been
furnished to the Government without restrictions, has been otherwise
made available without restrictions, or is the subject of a
fraudulently asserted use or release restriction, the Government may
exercise this right only within 6 years after the date(s) the software
is delivered or otherwise furnished to the Government, or 6 years
following final payment under this contract, whichever is later.
* * * * *
0
3. Amend section 252.227-7037--
0
a. By revising the section heading, and the heading and date of the
clause;
0
b. By revising paragraphs (c), and (d);
0
c. By revising paragraph (e)(1) introductory text;
0
d. In paragraph (e)(1)(i) removing ``services,'' and adding ``services,
with'' in its place;
0
e. By revising paragraph (e)(1)(iii);
0
f. In paragraph (e)(4) by removing ``restrictive markings'' and adding
``asserted restrictions'' in its place;
0
g. By revising paragraph (g)(1);
0
h. In paragraph (g)(2)(i) by removing ``restrictive marking'' and ``In
order to'' and adding ``asserted restriction'' and ``To'' in their
places, respectively;
0
i. By revising paragraphs (g)(2)(ii), (iii), and (iv);
0
j. In paragraph (h)(1)(i) by removing ``marking'' and adding ``marking
that is based on the asserted restriction'' in its place;
0
k. In paragraph (h)(1)(ii) by removing ``restrictive marking'' wherever
it appears and ``marking'' and adding ``asserted restriction'' in their
places;
0
l. By revising paragraph (i); and
0
m. In paragraph (k) by removing ``restrictive marking'' and
``subcontractors'' and adding
[[Page 31689]]
``restrictions'' and ``subcontractor'' in their places, respectively.
The revisions read as follows:
252.227-7037 Validation of Asserted Restrictions on Technical Data.
* * * * *
Validation of Asserted Restrictions on Technical Data (DATE)
* * * * *
(c) Justification. The Contractor or subcontractor at any tier is
responsible for maintaining records sufficient to justify the validity
of its asserted restrictions on the rights of the Government and others
to use, duplicate, release, or disclose technical data delivered,
required to be delivered, or otherwise provided to the Government under
the contract or subcontract. Except as provided in paragraph (b) of
this clause, the Contractor or subcontractor shall be prepared to
furnish to the Contracting Officer a written justification for such
asserted restrictions in response to a challenge under paragraph (e) of
this clause.
(d) Prechallenge request for information.
(1) The Contracting Officer may request the Contractor or
subcontractor to furnish a written explanation for any asserted
restriction on the right of the United States or others to use,
disclose, or release technical data. If, upon review of the explanation
submitted, the Contracting Officer cannot determine the basis of the
asserted restriction, the Contracting Officer may further request the
Contractor or subcontractor to furnish additional information in the
records of, or otherwise in the possession of or reasonably available
to, the Contractor or subcontractor to justify the validity of any
asserted restriction on technical data delivered, to be delivered, or
otherwise provided to the Government under the contract or subcontract
(e.g., a statement of facts accompanied with supporting documentation).
The Contractor or subcontractor shall submit such written data as
requested by the Contracting Officer within the time required or such
longer period as may be mutually agreed.
(2) If the Contracting Officer, after reviewing the written data
furnished pursuant to paragraph (d)(1) of this clause, or any other
available information pertaining to the validity of an asserted
restriction, determines that reasonable grounds exist to question the
current validity of the asserted restriction and that continued
adherence to the asserted restriction would make impracticable the
subsequent competitive acquisition of the item or process to which the
technical data relates, the Contracting Officer will follow the
procedures in paragraph (e) of this clause.
(3) If the Contractor or subcontractor fails to respond to the
Contracting Officer's request for information under paragraph (d)(1) of
this clause, and the Contracting Officer determines that continued
adherence to the asserted restriction would make impracticable the
subsequent competitive acquisition of the item or process to which the
technical data relates, the Contracting Officer may challenge the
validity of the asserted restriction as described in paragraph (e) of
this clause.
(e) * * *
(1) Notwithstanding any provision of this contract concerning
inspection and acceptance, if the Contracting Officer determines that a
challenge to the asserted restriction is warranted, the Contracting
Officer will send a written challenge notice to the Contractor or
subcontractor making the asserted restriction. The challenge notice and
all related correspondence shall be subject to handling procedures for
classified information and controlled unclassified information. Such
challenge shall--
* * * * *
(iii) State that a Contracting Officer's final decision, issued
pursuant to paragraph (g) of this clause, sustaining the validity of a
prior asserted restriction identical to the current asserted
restriction, within the 3-year period preceding the current challenge,
shall serve as justification for the current asserted restriction if
the prior validated restriction was asserted by the same Contractor or
subcontractor (or any licensee of such Contractor or subcontractor) to
which such notice is being provided; and
* * * * *
(g) * * *
(1) If the Contracting Officer determines that the Contractor or
subcontractor has justified the validity of the asserted restriction,
the Contracting Officer will issue a final decision to the Contractor
or subcontractor that sustains the validity of the asserted restriction
and that states that the Government will continue to be bound by the
asserted restriction. The Contracting Officer will issue this final
decision within 60 days after receipt of the Contractor's or
subcontractor's response to the challenge notice, or within such longer
period that the Contracting Officer has notified the Contractor or
subcontractor that the Government will require. The Contracting Officer
will provide notification of any longer period for issuance of a final
decision within 60 days after receipt of the response to the challenge
notice.
(2) * * *
(i) * * *
(ii) The Government agrees that it will continue to be bound by the
asserted restriction for a period of 90 days from the issuance of the
Contracting Officer's final decision under paragraph (g)(2)(i) of this
clause. The Contractor or subcontractor agrees that, if it intends to
file suit in the United States Court of Federal Claims, it will provide
a notice of intent to file suit to the Contracting Officer within 90
days from the issuance of the Contracting Officer's final decision
under paragraph (g)(2)(i) of this clause. If the Contractor or
subcontractor fails to appeal, file suit, or provide a notice of intent
to file suit to the Contracting Officer within the 90-day period, the
Government may cancel or ignore the restrictive markings that are based
on the asserted restrictions, and the failure of the Contractor or
subcontractor to take the required action constitutes agreement with
such Government action.
(iii) The Government agrees that it will continue to be bound by
the asserted restriction where a notice of intent to file suit in the
United States Court of Federal Claims is provided to the Contracting
Officer within 90 days from the issuance of the final decision under
paragraph (g)(2)(i) of this clause. The Government will no longer be
bound, and the Contractor or subcontractor agrees that the Government
may strike or ignore the restrictive marking that is based on the
asserted restriction, if the Contractor or subcontractor fails to file
its suit within 1 year after issuance of the final decision.
Notwithstanding the foregoing, where the head of an agency determines,
on a nondelegable basis, that urgent or compelling circumstances will
not permit waiting for the filing of a suit in the United States Court
of Federal Claims, the Contractor or subcontractor agrees that the
agency may, following notice to the Contractor or subcontractor,
authorize release or disclosure of the technical data. Such agency
determination may be made at any time after issuance of the final
decision and will not affect the Contractor's or subcontractor's right
to damages against the United States where its asserted restrictions
are ultimately upheld or to pursue other relief, if any, as may be
provided by law.
(iv) The Government agrees that it will be bound by the asserted
restrictions where an appeal or suit is filed pursuant to the Contract
Disputes
[[Page 31690]]
statute until final disposition by an agency Board of Contract Appeals
or the United States Court of Federal Claims. Notwithstanding the
foregoing, where the head of an agency determines, on a nondelegable
basis, following notice to the Contractor that urgent or compelling
circumstances will not permit awaiting the decision by such Board of
Contract Appeals or the United States Court of Federal Claims, the
Contractor or subcontractor agrees that the agency may authorize
release or disclosure of the technical data. Such agency determination
may be made at any time after issuance of the final decision and will
not affect the Contractor's or subcontractor's right to damages against
the United States where its asserted restrictions are ultimately upheld
or to pursue other relief, if any, as may be provided by law.
* * * * *
(i) Duration of right to challenge.
(1) The Government may review the validity of any restriction on
technical data, delivered or to be delivered under a contract, asserted
by the Contractor or subcontractor. During the period within 6 years of
final payment on a contract or within 6 years of delivery of the
technical data to the Government, whichever is later, the Contracting
Officer may review and make a written determination to challenge the
restriction. The Government may, however, challenge a restriction on
the release, disclosure, or use of technical data at any time if such
technical data--
(i) Are publicly available;
(ii) Have been furnished to the United States without restriction;
(iii) Have been otherwise made available without restriction; or
(iv) Are the subject of a fraudulently asserted use or release
restriction.
(2) Only the Contracting Officer's final decision resolving a
formal challenge by sustaining the validity of a restrictive marking
constitutes ``validation'' as addressed in 10 U.S.C. 3785(c).
* * * * *
[FR Doc. 2024-08438 Filed 4-24-24; 8:45 am]
BILLING CODE 6001-FR-P
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