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Proposed Executive Branch Position for
Recommendation I-11 of the
Report of the Commission on Government Procurement
Rendered October 31, 1973 1. Summation
a. Recommendation 1-11
Authorize agencies to acquire information and data. The Recommendation appears on page 129 of Volume 4 of the Report, and is in Category A.
b. Proposed Position
A few agencies have specific statutory authority to acquire data (or rights in data). Although all agencies probably have the inherent authority to purchase data or rights in data necessary to their missions, the existence of the specific authorities raises questions as to the scope of this inherent authority; i.e., if the specific authorities given some agencies are broad, does this mean that the inherent authority of other agencies must be narrower. The Commission recommends legislation to extend the broad authority to all agencies, thereby eliminating this problem. The Commission proposed legislation combines this with the authority to purchase interests in copyrights, patents and patent applications.
The Department of Defense in 10 U.S.C. 2386 (Appendix A), has broad authority to acquire intellectual and industrial property, and right therein. Other agencies have statutory authority to acquire personal property; for example, NASA under 42 U.S.C. 2473(b) and NSF under 42 U.S.C. 1870 (e); these statutes would include the authority to purchase information and data. However, most Government agencies do not have such specific statutory authority.
The answer to the question whether an agency's inherent authority to contract or conduct business is sufficient to permit it to acquire information or data, and rights therein, would depend upon an interpretation of 31 U.S.C. 665 (Appendix B) and 41 U.S.C. 11 (Appendix C), which impose certain limitations on expenditure of funds. A recent Decision of the Comptroller General (B-178104, May 3, 1973) (Appendix D), gives a very narrow interpretation of the inherent authority of the Department of Transportation to settle a claim for patent infringement by purchasing a license under the patent. By analogy, this could also apply to the purchase of data or a license or right to use data.
It cannot, therefore, be assumed that all agencies have broad inherent authority to purchase data or rights in data. It is not disputed that all agencies do, from time to time, have a need to purchase data and the rights to use it for specific purposes. Accordingly, it is considered desirable that this authorization be spelled out so that there can be no question as to the authority of all agencies to purchase rights in data.
Although the necessity for legislation authorizing agencies to purchase information and data may be subject to question, there is no doubt as to their needs to acquire these items. It is concluded that the authority to make such acquisitions should be spelled out in an appropriate statute to avoid any possibility of dispute.
This recommendation relates to the authority of agencies to acquire, by purchase, “information and data," but such acquisition usually is made because of the need to use the data for some specific purpose. In many cases the acquisition of data may inherently include the right to use it, but in others the mere possession of the information or data does not give the right to use it for all purposes. It is therefore necessary to interpret this Recommendation as relating to information and data, and the rights to use it.
A distinction must be made between information and data that the Government gets as a result of its R&D or production contracts, and the acquisition of privately-owned information and data. It is the latter area in which the question of authority arises. An argument can be made that the situation with respect to acquisition of information and data differs from that applying to the use of patents, which is covered by 28 U.S.C. 1498, and that the reasoning applied by the Comptroller General to patents does not carry over to data.
However, the argument that the existence of specific authorities in some agencies negates the existence of general authority in other agencies still applies. Title 10, U.S.C., Section 2386 provides that "funds appropriated for a military department for making or procuring supplies may be used to acquire ... (3) Designs, processes, and manufacturing data.” On the other hand, 41 U.S.C. 11 provides that “(a) No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fullfilment. ..." Taken together, these two statutes could be interpreted as denying agencies not having a statute similar to 10 U.S.C. 2386 the power to purchase, "designs, processes, and manufacturing data", unless funds are specifically appropriated for such purchase. This problem can easily be avoided by enacting legislation giving all agencies the same authority to purchase information and data, and interests therein.
The legislation proposed by the Commission to resolve this problem would provide:
"Every agency of the United States Government, including corporations owned or controlled by the United States Government, is hereby authorized in the performance of functions vested in the agency to acquire any of the following described property or any license or interest therein-copyrights, patents, applications for patents, and information and data in any form."
This proposed implementation includes Commission Recommendations 1-7 and 1-15 as well as I-11. The Lead Agency for Recommendations 1-14 through 1-16 on copyrights (NASA) has proposed enactment of legislation including the above language but limited to copyrights. The scope of Recommendation I-11 is limited to information and data. It is believed that the comprehensive legislation proposed by the Commission is preferable to piecemeal implementation. Accordingly, it is proposed that the more comprehensive legislation be implemented, subject to the concurrence of the Lead Agency charged with responsibility for Recommendation I-15.
VII. Dissenting Views
No dissenting views were voiced.
Title 10 U.S.C. 2386
§ 2386. Copyrights, patents, designs, etc.; acquisition.
Funds appropriated for a military department available for making or procuring supplies may be used to acquire any of the following if the acquisition relates to supplies or processes produced or used by or for, or useful to, that department:
(1) Copyrights, patents, and applications for patents.
(2) Licenses under copyrights, patents, and applications for patents.
(3) Designs, processes, and manufacturing data.
(4) Releases, before suit is brought, for past infringement of patents or copyrights. (Aug. 10, 1956, ch. 1041, 70A Stat. 137: Sept. 8, 1960, Pub. L. 86–726, § 3, 74 Stat. 855.)
The words “equipment, and materials" are omitted as covered by the word "supplies”. The word "hereafter” is omitted as executed. The words “may be used” are substituted for the words “shall * * * be available”. The words “if the acquisition relates to" are substituted for 31:649(b) (1st 8 words of last sentence). In clauses (1), (2), and (4), the word "patents" is substituted for the words "letters patent".
1960—Pub. L. 86–726 inserted “or copyrights" following "patents", in cl. (4).
Secretary of the Navy, purchase of patents, patent applications, and licenses, see section 7210 of this title.