FINAL VERSION

Proposed Executive Branch Position for

Recommendation I-10 of the

Report of the Commission on Government Procurement

Rendered October 31, 1973

I. Summation

a. Recommendation 1-10

Undertake, through the Federal Council for Science and Technology in coordination with the Office of Federal Procurement Policy, to develop and evaluate the implementation of a statement of Government policy on rights in technical data supplied under Government contracts. Give specific consideration to the relationships between prime contractors and subcontractors.

The Recommendation appears on page 129 of Volume 4 of the Report, and is in Category A.

b. Proposed Position

It is proposed that Recommendation I-10 be adopted by the Executive branch as stated by the Commission, and that in the development of a policy statement the Recommendation I-12 be included.

II. Background

There is a wide diversity among the various departments and agencies of the Government with respect to policies and procedures on the acquisition of rights in technical data supplied under Government contracts. Furthermore, the policies of an agency do not always remain the same, but may vary from time to time. This situation does not necessarily adversely affect the Government agencies themselves, but does result in a great deal of confusion for contractors doing business with more than one agency. The Commission Report stated that, because different agencies have different needs, a single policy may not be possible, but suggested that a greater uniformity than presently exists can be achieved. Any reduction in the present complexity would lessen the hardships experienced by contractors.

III. Findings

It has been noted that the policies and practices in the acquisition of rights in technical data under Government contracts in any two agencies of the Government are not the same. Each agency is free to develop its own policy and, even when an agency begins with a policy similar to that of another agency, it may soon evolve in a different direction. In many instances the differences may be unnecessary.

The diversity of policies can be very confusing to contractors, and particularly to small businesses which cannot afford a staff of attorneys to keep abreast of the variations.

The differences can also create an unreasonable situation within the Government because it may be possible for two agencies to acquire the same data from the same Contractor with different sets of "rights." This situation should not exist without good reason.

It is believed that a Government-wide policy on rights in technical data would benefit both the Government and its contractors.

The most promising method to bring order to the present situation is to develop a statement of Government policy on rights in technical data that is broad enough to meet the requirements of all agencies. Such a statement would provide guidelines within which agencies' policies could evolve.

IV. Conclusions

It is determined that development and implementation of a statement of Government policy on rights in technical data offers a means ultimately to eliminate unnecessary differences between agencies' practices and to reduce confusion among contractors dealing with different agencies.

V. Discussion

It is not the purpose of this Report to propose a specific statement of Government policy on rights in technical data, but only to determine whether it is appropriate and feasible to develop such a statement.

It is accepted that the technical data policies of various Government agencies vary widely. It is not a question whether one agency is right and another is wrong, or whether one is better than another. Obviously, each agency has developed its own practices to best suit its particular needs. The question is whether there is a need for such a great diversity and, if not, whether it is desirable to achieve a greater uniformity.

It is also accepted that the differing missions of the various departments and agencies require the use of technical data in different ways, and that these different uses may require different rights. However, it must be assumed that these various uses can at least be grouped into broad categories, and that for each category a broad set of rights can be defined which will be acceptable

to all agencies. It is probable that a limited number of standard situations can satisfy all Government needs. Accordingly, the present wide diversity may not be necessary.

It also appears that many agencies do not have any stated policy with respect to rights in technical data; one must read their contract clauses to determine their policy. Some agencies may have no standard contract provisions for technical data, but write them on a case-by-case basis. For these situations it should be advantageous to have a Government policy statement to explain present contract clauses, or within which clauses can be drafted.

Two arguments presented against development of a policy statement are that (i) a policy statement setting a uniform policy applicable to all agencies could not be flexible enough to accommodate the specific needs of certain agencies, and (ii) a policy statement broad enough to accommodate all agencies' needs could not accomplish the objective of reducing the present diversity. These two arguments represent the two extremes of what such a policy statement could be. Care must be exercised to assure that the statement ultimately developed does not fall in either category.

A further advantage of a policy statement, even one broad enough to encompass all the different policies, would be to inform contractors to expect different practices among the various agencies. This would at least reduce the degree of confusion if not the amount of variation.

Any statement of policy developed should be broad enough to encompass the requirements of all agencies that have stated policies on the acquisition of rights in technical data under their contracts. Because of this, and the diversity of present policies, the development of such a policy will require a working group having broad representation of knowledgeable people from agencies with existing policies. Considerable study and coordination will be required to find a common ground upon which a policy statement acceptable to all agencies can be established. Because the members of the working group would most likely be people who cannot be assigned full time to this task, the development of such a policy statement must be considered a long term effort, probably requiring two or more years.

The recommendation states that the policy statement should be developed in coordination with "The Office of Federal Procurement Policy" (OFPP), an office that does not yet exist. This should not delay appointment of a working group and their beginning on this task. Because this study is expected to be a relatively long-term effort, it should be begun immediately and coordination with OFPP effected if and when that office is established.

VI. Implementation

It is proposed that the present policies and practices of the various Government agencies with regard to acquisition of rights in technical data under Government contracts be studied and that a broad statement of Government policy be developed within which orderly progress may be made toward reduction of unnecessary differences between the agencies.

VII. Dissenting Views

No dissenting views were voiced.