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§ 9.202 Acquisition of rights in techni. technical data to cases of actual need. cal data.

Certainly the Government must not be (30 F.R. 6969, May 25, 1965)

barred from bargaining and contracting

to obtain such technical data as it needs, § 9.202–1 Background.

even though that data may normally not (a) Government's interest in technical be disclosed in commercial practice. data. The Government has extensive Moreover, when the Government pays needs for many kinds of technical data. for research and development work Its needs may well exceed those of pri which produces new knowledge, products vate commercial customers. For defense or processes, it has an obligation to foster purposes millions of separate equipment technological progress through wide disand supply items, ranging from standard semination of the new and useful inforto unique types, must be acquired, op mation derived from such work and erated, and maintained, often at points where practicable to provide competitive remote from the source of supply. Func opportunities for supplying the new tions requiring varied kinds of technical products and utilizing the new processes. data include training of personnel, over At the same time, acquiring, maintainhaul and repair, cataloging, standardiza ing, storing, retrieving, and distributing tion, inspection and quality control, technical data in the vast quantities packaging, and logistics operations. generated by modern technology is costly Data resulting from research and devel and burdensome for the Government. opment contracts must be obtained, or For this reason alone, it would be necesganized and disseminated to many dif- sary to control closely the extent and ferent users. Finally, the Government nature of data procurement. Such conmust make technical data widely avail- trol is also necessary to insure Goverable in the form of contract specifications ment respect for its contractors' ecoin order to obtain competition among its nomic interest in technical data relating suppliers, and thus further economy in to their privately developed items. The Government procurement.

policies and procedures of this subpart (b) Contractors' interest in technical are framed in the light of these condata. Commercial organizations have a siderations. valid economic interest in data they have (30 F.R. 6969, May 25, 1965, as amended at developed at their own expense for com 33 F.R. 7400, May 18, 1968) petitive purposes. Such data, particu

§ 9.202–2 Policy. larly technical data which discloses details of design or manufacture, is often

(a) General. It is the policy of the closely held because its disclosure to Department of Defense to acquire only competitors could jeopardize the com such data and rights therein as are petitive advantage it was developed to

essential to meet Government needs. provide. Public disclosure of such tech

(b) Unlimited rights. Technical data nical data can cause serious economic in the following categories, when specihardship to the originating company.

fied in any contract as being required for (c) The balancing of interests. It is delivery, or subject to order under the apparent that there is no necessary cor contract, shall be acquired with unrelation between the Government's need limited rights: for technical data and its contractors (1) Technical data resulting directly economic interests therein. However, in from performance of experimental, debalancing the Government's require- velopmental, or research work which was ments for technical data against the con

specified as an element of performance in tractor's interest in protecting his data,

a Government contract or subcontract; it should be recognized that there may

(2) Technical data necessary to enbe a considerable identity of interest. This is particularly true in the case of

able others to manufacture end-items, innovative contractors who can best be

components and modifications, or to enencouraged to develop at private expense

able them to perform processes, when the items of military usefulness where their end-items, components, modifications or rights in such items are scrupulously pro- processes have been, or are being, detected. It is equally important that the veloped under Government contracts or Government foster successful contractual subcontracts in which experimental, derelationships and encourage a ready velopmental or research work was speciflow of data essential to Government fied as an element of contract performneeds by confining its acquisitions of ance, except technical data pertaining to

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items, components or processes de veloped at private expense;

(3) Technical data constituting corrections or changes to Government-furnished data;

(4) Technical data pertaining to endItems, components or processes which was prepared for the purpose of identifying sources, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements (“form, fit and function" data, e.g., specification control drawings, catalog sheets, envelope drawings, etc.);

(5) Manuals or instructional materials prepared for installation, operation, maintenance or training purposes; and

(6) Other technical data which has been, or is normally furnished without restriction by a contractor or subcontractor.

(c) Limited rights. Except as provided in paragraph (b) of this section, technical data pertaining to items, components or processes developed at private expense will be acquired with limited rights if ordered.

(It should be clearly understood that the above statement of policy is a recital of rights to be acquired in certain categories of data is the data is called for under the contract. Neither the foregoing statement of data rights policy, nor its implementing paragraph (b) (1) and (2) of the Basic Data clause in $ 9.203(b), establishes data requirements for & particular contract. It should also be noted that data pertaining to items, components or processes developed at private expense may be called for, required, or otherwise furnished under paragraph (b) (1), (3), (4), (5) and (6) of this section and, as such, it will be acquired with unlimited rights. Contract clauses and the schedule establish the form and type of data to be furnished; the categories into which such delivered data fall, determine the rights to be obtained by the Government to use or publish such data.)

(d) Predetermination of rights in data. (1) (1) When the Government needs data with unlimited rights, any data which the offeror intends to deliver with Uimited rights pursuant to paragraph (c) of this section should be identified prior to contrct award, if feasible, and an agreement with respect thereto shall be incorporated in the contract. This procedure is called predetermination of rights in data.

(ii) The procedure may be initiated by the contracting officer or an offeror during the negotiation of a negotiated contract. In order to be productive, the

procedure should apply only to that data for which rights may practicably be identified. Although the agreement may also cover data to be delivered with unlimited rights, in no case shall the procedure be used to require the contractor to furnish, with unlimited rights, data which he is entitled to furnish with limited rights under the policy in paragraph (c) of this section. The contracting officer shall consult his counsel as fully as possible in determining whether to use the procedure and in connection with the various steps of the procedure.

(2) Any agreements reached shall be incorporated in the Schedule of the contract directly or by reference and shall describe specifically the data which may be furnished with limited rights pursuant to paragraph (c) of this section. The contracting officer may, however, review the data asserted to be limited rights data to determine whether to invoke the procedures of paragraph (g) of this section to negotiate to purchase unlimited rights in any of the data, or adopt some alternative such as to:

(i) Delete or modify the requirement for the data in which the Government would need unlimited rights if it were ordered, or

(ii) Modify the specifications so as not to require or permit the use of the item, component or process covered by the limited rights data, or

(iii) Include a contractual option to acquire unlimited rights.

(3) When the predetermination of rights in data procedure is to be used, include the following provision in the Request for Proposals. PREDETERMINATION OF RIGHTS IN DATA

(AUGUST 1969) (a) The offeror is requested to identify in his proposal which of the below listed data (including those to be furnished in whole or in part by a subcontractor) when delivered, may be marked with a restrictive legend of the kind quoted in paragraph (b) of the "Rights in Technical Data” clause of this Solicitation. This identification need not be made as to data which relate to standard commercial items which are manufactured by more than one source of supply.

(The Solicitation should list here that data or portions thereof with respect to which the Government proposes use of the predetermination procedure. Data which clearly comes within paragraph (b) (1) of the "Rights in Technical Data" clause and would therefore be acquired with unlimited rights should not be listed.)

(b) Limited rights data may be identified as such, pursuant to (a) above only if it

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 Officer 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, richts 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. (1) Whether or not the procedure of paragraph (d) of this section for predetermination of rights in data is used, if continuing information is desired under a contract about a contractor's intention to use in the performance of the contract any item, component, or process for which data suitable for competitive procurement could be furnished by the contractor or a subcontractor with limited rights in accordance with the policy of paragraph (c) of this section, the contractor may be required to advise the contracting officer of this fact promptly (see $ 9.203(c)). If possible, the schedule should indicate the specific areas pertaining to which limited rights data is of concern and the notice requirement should be restricted to those areas of concern.

(2) No such advice shall be required as to items, components, or processes for which notice was previously given pursuant to the predetermination procedure in the same contract, or with respect to standard commercial items which are manufactured by more than one source of supply. No contracting officer approval under this clause is necessary for the contractor to use any item, component, or process, identified pursuant to this requirement, in the performance of the contract.

(3) If the contracting officer agrees that under the policy stated in paragraph (c) of this section such contractor or subcontractor data could be furnished with limited rights, he may then determine whether to invoke the procedure of paragraph (g) of this section to negotiate for the purchase of unlimited rights in such data or to adopt other suitable alternatives. The contract shall be amended to reflect any changes required by these procedures. [30 F.R. 6969, May 25, 1965, as amended at 33 F.R. 7400, May 18, 1968; 34 F.R. 17897, Nov. 5, 1969) $9.202–3 Procedures.

(a) Deviations. The authority of $ 1.109–2 to make or authorize deviations affecting only one contract or transaction shall not apply to this subpart, but such deviations shall be processed in accordance with the provisions of $ 1.109–3.

(b) Establishing the Government's rights to use technical data acquired. All technical data specified in a contract or subcontract for delivery thereunder shall be acquired subject to the rights estab

lished in the appropriate Rights in Technical Data clauses set forth in this subpart. Except as provided in § 1.1707 and subpart I, Part 18 of this chapter, no other clauses, directives, standards, specifications or other implementation shall be included, directly or by reference, to enlarge or diminish such rights. The Government's acceptance of technical data subject to limited rights does not impair any rights in such data to which the Government is otherwise entitled or impair the Government's right to use similar or identical data acquired from other sources.

(c) Marking and identification of technical data. Technical data delivered to the Government pursuant to any contract requirement shall be marked with the number of the prime contract, and the name and address of the contractor or subcontractor who generated the data. When technical data is received subject to limited rights, such identifying markings and the authorized restrictive legend shall be maintained on all reproductions thereof.

(d) Unmarked or improperly marked technical data. (1) Technical data received without a restrictive legend shall be deemed to have been furnished with unlimited rights. However, the contracting officer may permit the contractor to place a restrictive legend on such data within six months of its delivery it the contractor demonstrates that the omission of the legend was inadvertent and the use of the legend is authorized.

(2) Technical data received with a restrictive legend not permitted by the terms of the contract shall be used with limited rights pending inquiry to the contractor whose name appears on the data as the originator. If no response to a properly directed inquiry has been received within 60 days, or if the response fails to show that the restriction was authorized the cognizant Government personnel shall obliterate such legend, notify the contractor accordingly, and thereafter may use such data as if it were acquired with unlimited rights.

(3) If the contract authorizes the contractor to furnish technical data with limited rights, but the restrictive legend employed by the contractor is not in the form prescribed by the content, the data shall be used with limited rights, and the contractor shall be required to amend the legend to conform with that specified in the contract. If the contractor 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 a 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 officer 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, whether or not copyrighted, which are specified to bo delivered pursuant to this contract. The 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 Government shall have unlimited rights in:

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

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