Page images
PDF
EPUB

pertains to items, components or processes item. The Government may make any developed at private expense. Nevertheless, number of orders for technical data, but It cannot be so identified if it comes within

each order shall be made suficiently in paragraph (b) (1) of the "Rights in Technical Data” clause, for example, if it has

advance of the required delivery date to previously been furnished to the Government enable the contractor to provide data in without restriction by the offeror or his pro

the specified format. posed subcontractor. At the request of the (2) The price of the work includes the Contracting Oficer or his representative, the Government's right to use such data as offeror agrees to furnish evidence to support prescribed in the contract, and no addihis view that the data which will be so

tional payment shall be made to the conmarked comes within the definition of limited rights data.

tractor with respect to rights in such (c) The listing of a data item in para

data. However, at the time of delivery graph (a) above does not mean that the payment shall be made, by equitable adGovernment considers such item to come justment or otherwise, for converting within the definition of limited rights data. the data into the prescribed form, re(4) If completion of predetermina

producing it, and preparing it for tion proves impracticable before award,

delivery. or if contractual requirements relating

(g) Specific acquisition of data and to design or data items are changed dur

rights. (1) Notwithstanding any other ing the course of a contract, an appro

provision of this subpart, the Governpriate provision shall be included in the

ment may acquire unlimited rights in any contract, requiring the contractor to

data by means of negotiation with an complete the identification of limited

individual contractor or subcontractor, rights with respect to that data listed in

or as a part of a competition among the solicitation for which predetermina

several contractors or subcontractors. tion was proposed, or to identify limited

Such individual negotiation or competirights data relating to the changed

tion may be conducted either by the requirements.

Government, or upon Government re(e) Subcontracts. It is the policy of

quest by the prime contractor or higherthe Department of Defense that prime

tier subcontractor. Any such data shall contractors and higher tier subcontrac

be stated in the contract schedule as a tors shall not use their power to award separate item and shall be separately subcontracts as economic leverage to priced. No data or rights therein shall acquire rights in the data of their sub- be acquired under this section unless it contractors for themselves. Accordingly,

is determined after a finding upon a when there is a requirement in the prime documented record by the Head of the contract or deferred order for data to be Procuring Activity or his designee that: supplied with limited rights pursuant to

(i) There is a clear need for reproparagraph (c) of this section, and such curement of the item, component or data is to be obtained from a subcon- process to which the technical data pertractor, the subcontractor may submit tains; such data directly to the Government (ii) There is no suitable item, comrather than through the prime con- ponent or process of alternate design or tractor.

availability; (f) Deferred selection and delivery of (iii) The item or component can be data (1) The Government may defer manufactured or the process performed selection and delivery of all or any por

through the use of such technical data by tion of the data specified in the contract other competent manufacturers, without until actual requirements can be econom

the need for additional technical data ically determined. Accordingly, the Gov- which cannot be purchased reasonably or ernment may request the contractor to is not readily obtained by other ecodelivery any such data or portions thereof nomic means; and at any time during the performance of (iv) Anticipated net savings in rethe contract or within 2 years from either procurements will exceed the acquisition acceptance of all items (other than data) cost of the technical data and rights under the contract or termination of the therein. contract, whichever is later. However, (2) The analysis and findings referred the contractor's obligation to deliver to in subparagraph (1) of this paragraph data pertaining to any item obtained shall specifically identify each component from a subcontractor shall cease 2 years and the particular data therefor which after the date on which he accepts the is to be purchased.

(h) Notice of certain limited rights. lished in the appropriate Rights in Tech(1) Whether or not the procedure of nical Data clauses set forth in this subparagraph (d) of this section for prede- part. Except as provided in § 1.1707 and termination of rights in data is used, if subpart I, Part 18 of this chapter, no continuing information is desired under other clauses, directives, standards, speca contract about a contractor's intention ifications or other implementation shall to use in the performance of the con- be included, directly or by reference, to tract any item, component, or process for enlarge or diminish such rights. The which data suitable for competitive pro- Government's acceptance of technical curement could be furnished by the con- data subject to limited rights does not tractor or a subcontractor with limited impair any rights in such data to which rights in accordance with the policy of the Government is otherwise entitled or paragraph (c) of this section, the con- impair the Government's right to use tractor may be required to advise the similar or identical data acquired from contracting officer of this fact promptly other sources. (see § 9.203(c)). If possible, the schedule (c) Marking and identification of should indicate the specific areas per- technical data. Technical data detaining to which limited rights data is of livered to the Government pursuant to concern and the notice requirement any contract requirement shall be should be restricted to those areas of marked with the number of the prime concern.

contract, and the name and address of (2) No such advice shall be required as the contractor or subcontractor who to items, components, or processes for generated the data. When technical which notice was previously given pursu- data is received subject to limited rights, ant to the predetermination procedure such identifying markings and the auin the same contract, or with respect to thorized restrictive legend shall be mainstandard commercial items which are tained on all reproductions thereof. manufactured by more than one source (d) Unmarked or improperly marked of supply. No contracting officer approval technical data. (1) Technical data reunder this clause is necessary for the ceived without a restrictive legend shall contractor to use any item, component, be deemed to have been furnished with or process, identified pursuant to this re- unlimited rights. However, the conquirement, in the performance of the tracting officer may permit the contraccontract.

tor to place a restrictive legend on such (3) If the contracting officer agrees data within six months of its delivery it that under the policy stated in paragraph the contractor demonstrates that the (c) of this section such contractor or sub- omission of the legend was inadvertent contractor data could be furnished with and the use of the legend is authorized. limited rights, he may then determine (2) Technical data received with a rewhether to invoke the procedure of para- strictive legend not permitted by the graph (g) of this section to negotiate terms of the contract shall be used with for the purchase of unlimited rights in limited rights pending inquiry to the consuch data or to adopt other suitable tractor whose name appears on the data alternatives. The contract shall be as the originator. If no response to a amended to reflect any changes required properly directed inquiry has been reby these procedures.

ceived within 60 days, or if the response (30 F.R. 6969, May 25, 1965, as amended at fails to show that the restriction was 33 F.R. 7400, May 18, 1968; 34 F.R. 17897, authorized the cognizant Government Nov. 5, 1969)

personnel shall obliterate such legend, $ 9.202–3 Procedures.

notify the contractor accordingly, and (a) Deviations. The authority of

thereafter may use such data as if it were $ 1.109–2 to make or authorize deviations

acquired with unlimited rights. affecting only one contract or transac- (3) If the contract authorizes the contion shall not apply to this subpart, but tractor to furnish technical data with such deviations shall be processed in ac- limited rights, but the restrictive legend cordance with the provisions of $ 1.109–3. employed by the contractor is not in the

(b) Establishing the Government's form prescribed by the content, the data rights to use technical data acquired. All shall be used with limited rights, and technical data specified in a contract or the contractor shall be required to amend subcontract for delivery thereunder shall the legend to conform with that specibe acquired subject to the rights estab- fied in the contract. If the contractor

a

fails to so amend the legend within 60 days after notice, the cognizant Government personnel shall obliterate the legend, notify the contractor accordingly, and thereafter may use such data with unlimited rights.

(e) Technical data furnished on a restricted basis in support of a proposal. When the contracting officer contemplates awarding a contract on a solicited or unsolicited proposal which was offered on restricted basis (see $$ 3.507 and 4.106–1 of this chapter), he shall ascertain whether to acquire rights to use all or part of the technical data furnished with the proposal. If such rights are desired, the contracting officer shall negotiate with the offerer in accordance with the policies set forth in $$ 9.202–9.202-3. If the offerer agrees to furnish the technical data under the contract, the appropriate clause in § 9.203 shall be inserted in the contract, and the contract shall identify the data to be covered by the clause.

(f) Delivery of technical data to foreign governments. As provided in $ 9.201(b), limited rights include the right of the Government to deliver the technical data to foreign governments as the national interest of the United States may require, subject to the same limitations which the Government accepts for itself. When the Government proposes to make technical data subject to limited rights available for use by a foreign government, it will, to the maximum extent practicable, give reasonable notice thereof to the contractor or subcontractor who generated the technical data and whose name and address appears thereon. (32 F.R. 531, Jan. 18, 1967, as amended at 32 F.R. 10172, July 11, 1967; 32 F.R. 12099, Aug. 23, 1967] $ 9.203 Contract clauses.

(a) General. In every contract in which technical data is specified to be delivered, insert the clause in paragraph (b) of this section: Provided, That such clause shall not be used in contracts

(1) When all technical data to be delivered is to be acquired with unlimited rights pursuant to $ 9.202–2(g), in which case the clause in paragraph (d) of this section shall be used;

(2) When existing works are acquired in accordance with $ 9.205;

(3) When the clause in $ 9.204 is used in accordance with the provisions of $ 9.204–2; or

(4) To be performed outside the United States, its territories, possessions, or Puerto Rico, in which case the clause in § 9.206 applies. In negotiated contracts in which experimental, developmental or research work is specified as an element of contract performance and the contracting oficer uses the procedure of $ 9.202-2(d) concerning predetermination of rights in data, the clause paragraph in paragraph (c) of this section will be added to the Basic Data clause in paragraph (b) of this section. In any contract in which the ordering data is to be deferred, the clause in paragraph (e) of this section is to be included.

(b) Basic data clause. RIGHTS IN TECHNICAL DATA (AUGUST 1969)

(a) Definitions. (1) Technical data, as used in this clause, means technical writing, sound recordings, pictorial reproductions, drawings, or other graphic representations and works of a technical nature, whethor or not copyrighted, which are specified to bo delivered pursuant to this contract. Tho term does not include financial reports, cost analyses, and other information incidental to contract administration,

(2) Limited rights means rights to use, duplicate, or disclose technical data, in whole or in part, by or for the Government, with the express limitation that such technical data shall not, without the written permission of the party furnishing such technical data, be (a) released or disclosed in whole or in part outside the Government, (b) used in whole or in part by the Government for manufacture, or (c) used by a party other than the Government, except for:

(1) Emergency repair or overhaul work only, by or for the Government, where the item or process concerned is not otherwise reasonably available to enable timely performance of the work: Provided, That the release or disclosure thereof outside the Government shall be made subject to a prohibition against further use, release or disclosure; or

(ii) Release to a foreign government, as the interest of the United States may require, only for information or evaluation within such government or for emergency repair or overhaul work by or for such government under the conditions of (1) above.

(3) Unlimited rights means rights to use, duplicate or disclose technical data, in whole or in part, in any manner and for any purpose whatsoever, and to have or permit others to do so.

(b) Government rights. (1) The Govern. ment shall have unlimited rights in:

(1) Technical data resulting directly from performance of experimental, developmental

37

or research work which was specified as an ment, where the item or process concerned Is element of performance in this or any other not otherwise reasonably available to enable Government contract or subcontract;

tmely performance of the work: Provided, (11) Technical data necessary to enable That the release or disclosure hereof outside manufacture of end-items, components and the Government shall be made subject to a modifications, or to enable the performance prohibition against further use, release, or of processes, when the end-items, compo- disclosure; or (11) release to a foreign govnents, modifications or processes have been, ernment, as the interest of the United States or are being, developed under this or any may require, only for information or evaluother Government contract or subcontract ation within such government or for emerin which experimental, developmental or re- gency repair or overhaul work by or for such search work is, or was specified as an element government under the conditions of (1) of contract performance, except technical above. This legend shall be marked on any data pertaining to items, components or proc- reproduction hereof in whole or in part. esses developed at private expense (but see

No legend shall be marked on, nor shall any (2) (ii) below);

limitation on rights of use be asserted as (111) Technical data constituting correc

to, any data which the Contractor has pretions or changes to Government-furnished

viously delivered to the Government withdata;

out restriction. The limited rights provided (iv) Technical data pertaining to end

for by this paragraph (b) (2) shall not impair items, components or processes which was

the right of the Government to use similar prepared for the purpose of identifying

or identical data acquired from other sources. sources, size, configuration, mating and at

(c) Material covered by copyright. (1) tachment characteristics, functional characteristics and

Notwithstanding the provisions of (b) above, performance requirements ("form, fit, and function" data, e.g., speci

the Contractor agrees to and does hereby fication control drawings, catalog sheets, en

grant to the Government, and to its officers, velope drawings, etc.);

agents, and employees acting within the (v) Manuals or instructional materials

scope of their official duties, a royalty-free,

nonexclusive and Irrevocable license throughprepared for installation, operation, maintenance or training purposes;

out the world for Government purposes to

publish, translate, reproduce, deliver, per(vi) Other technical data which has been,

form, dispose of, and to authorize others so or is normally furnished without restriction

to do, all technical data now or hereafter by the Contractor or subcontractor; and

covered by copyright. (vii) Technical data listed or described in

(2) No such copyrighted matter shall be an agreement incorporated into the Schedule of this contract, which the parties have pre

included in technical data furnished here

under without the written permission of determined, on the basis of subparagraphs

the copyright owner for the Government to (1) through (vi) above, and agreed will be furnished with unlimited rights.

use such copyrighted matter in the manner

described above. (2) The Government shall have limited

(3) The Contractor shall report to the rights in:

Government (1) Technical data, listed or described in

(or higher-tier Contractor)

promptly and in reasonable written detail an agreement incorporated into the Schedule

each notice or claim of copyright infringeof this contract, which the parties have

ment received by the Contractor with respect agreed will be furnished with Imited rights;

to any technical data delivered hereunder. and

(d) Removal of unauthorized markings. (11) Technical data pertaining to items,

Notwithstanding any provisions of this concomponents or processes developed at private

tract concerning inspection and acceptance, expense, other than such data as may be

the Government may modify, remove, oblitincluded in the data referred to in (b) (1)

erate, or ignore any marking not authorized (1), (ii), (iv), (v), and (vi);

by the terms of this contract on any techniProvided that each piece of data to which cal data furnished hereunder, iflimited rights are to be asserted pursuant to

(1) The Contractor fails to respond within (2) (1) and (u) above is marked with the sixty (60) days to a written inquiry by the following legend in which is inserted the Government concerning the propriety of the number of the prime contract under which

use of the marking, or the technical data is to be delivered and the (11) The Contractor's response fails to name of the Contractor or subcontractor by

substantiate his contention that the use of whom the technical data was generated:

the marking is authorized, in which case the This technical data, furnished under U.S. Government shall give written notice to the Government Contract No.

shall Contractor. not, without the written permission of

(e) Relation to patents. Nothing conbe either (a) used, re- tained in this clause shall imply a license to leased or disclosed in whole or in part outside the Government under any patent or be conthe Government, (b) used in whole or in strued as affecting the scope of any license part by the Government for manufacture or other right otherwise granted to the Govvor (c) used by a party other than the Gov- ernment under any patent. ernment, except for: (1) Emergency repair (1) Limitation on charges for data. The or overhaul work only, by or for the Govern- Contractor recognizes that the Government,

or a foreign government with funds derived through the Military Assistance Program or otherwise through the U.S. Government, may contract for property or services with respect to which the vendor may be uable to the Contractor for charges for the use of technical data on account of such a contract. The Contractor further recognizes that it is the policy of the Government not to pay in connection with its contracts, or to allow to be paid in connection with contracts made with funds derived through the Military Assistance Program or otherwise through the U.S. Government, charges for data which the Government has a right to use and disclose to others, which is in the public domain, or which the Government has been given without restrictions upon its use and disclosure to others. This policy does not apply to reasonable reproduction, handling, malling, and similar administrative costs incident to the furnishing of such data. In recognition of this policy, the Contractor agrees to participate in and make appropriate arrangements for the exclusion of such charges from such contracts, or for the refund of amounts received by the Contractor with respect to any such charges not so excluded.

(g) Acquisition of data from subcontractors. (1) Whenever any technical data is to be obtained from a subcontractor under this contract, the Contractor shall use this same clause in the subcontract, without alteration, and no other clause shall be used to enlarge or diminish the Government's or the Contractor's rights in that subcontractor data which is required for the Government.

(2) Technical data required to be delivered by a subcontractor shall normally be delivered to the next higher-tier Contractor. However, when there is a requirement in the prime contract, or in the deferred order, for data which may be supplied with limited rights pursuant to (b) (2) above, a subcontractor may fulfill such requirement by submitting such data directly to the Gopernment rather than through the prime Contractor.

(3) The Contractor and higher-tier subcontractors will not use their power to award subcontracts as economic leverage to acquire rights in data from their subcontractors for themselves.

(c) Notice of certain limited rights. The paragraph (h) set forth below may be added to the clause in paragraph (b) of this section in any contract in which the contracting officer desires notification of limited rights data (see $ 9.202-2(h)).

(h) (1) Unless the Schedule provides otherwise, and subject to (2) below, the contractor will promptly notify the Contracting Officer in writing of the intended use by the Contractor or a subcontractor in performance of this contract of any item, component or process for which data (called for by this

contract,]' (whether or not called for by this contract,] 2 suitable for competitive procurement, would fall within paragraph (b) (2) above (1.e., if and when furnished, might be furnished with limited rights).

(2) Such notification is not required with respect to:

(1) Standard commercial items which are manufactured by more than one source of supply; or

(11) Items, components or processes for which such notice was given pursuant to predetermination of rights in data in connection with this contract.

(3) Contracting Oficer approval is not necessary under this clause for the Contractor to use the item, component or process in the performance of the contract. (August 1969)

(d) Technical data clause-specific acquisition. The following clause shall be used in contracts in which all technical data is to be acquired with unlimited rights pursuant to $ 9.202—2(g). In addition, if the Government has determined to acquire all technical data with unlimited rights from a subcontractor pursuant to $ 9.202–2(g), the following clause shall be used in the subcontract In lieu of the Rights in Technical Data clause whether or not the prime contract makes provision therefor. The clause shall not be used under any other circumstances. RIGHTS IN TECHNICAL DATA-SPECIFIC ACQUI

SITION (MAY 1964) (a) Definition. "Technical data" as used in this clause means technical writing, sound recordings, pictorial reproductions drawings, or other graphic representations and works of a technical nature, whether or not copyrighted, which are specified to be delivered pursuant to this contract. The term does not include financial reports, cost analyses, and other information incidental to contract administration.

(b) Government rights. The Government may duplicate, use and disclose in any manner and for any purpose whatsoever, and have others so do, all or any part of the technical data delivered by the Contractor to the Government under this contract.

(c) Material covered by copyright.

(1) The Contractor agrees to and does hereby grant to the Government, and to its officers, agents, and employees acting within the scope of their oficial duties, a

1 Use this language, without brackets, unless the language at 2 is used. 2 Use

this language, without brackets, when the data is not called for under the present contract, but the Contracting Officer is reasonably sure that data suitable for competitive procurment will be called for in follow-on contracts.

« PreviousContinue »