(a) Government's interest in technical data. The Government has extensive needs for many kinds of technical data. Its needs may well exceed those of private commercial customers. For defense purposes millions of separate equipment and supply items, ranging from standard to unique types, must be acquired, operated, and maintained, often at points remote from the source of supply. Functions requiring varied kinds of technical data include training of personnel, overhaul and repair, cataloging, standardization, inspection and quality control, packaging, and logistics operations. Data resulting from research and development contracts must be obtained, organized and disseminated to many different users. Finally, the Government must make technical data widely available in the form of contract specifications in order to obtain competition among its suppliers, and thus further economy in Government procurement.

(b) Contractors' interest in technical data. Commercial organizations have a valid economic interest in data they have developed at their own expense for competitive purposes. Such data, particularly technical data which discloses details of design or manufacture, is often closely held because its disclosure to competitors could jeopardize the competitive advantage it was developed to provide. Public disclosure of such technical data can cause serious economic hardship to the originating company.

(c) The balancing of interests. It is apparent that there is no necessary correlation between the Government's need for technical data and its contractors' economic interests therein. However, in balancing the Government's requirements for technical data against the contractor's interest in protecting his data, it should be recognized that there may be a considerable identity of interest. This is particularly true in the case of innovative contractors who can best be encouraged to develop at private expense items of military usefulness where their rights in such items are scrupulously protected. It is equally important that the Government foster successful contractual relationships and encourage a ready flow of data essential to Government needs by confining its acquisitions of

technical data to cases of actual need. Certainly the Government must not be barred from bargaining and contracting to obtain such technical data as it needs, even though that data may normally not be disclosed in commercial practice. Moreover, when the Government pays for research and development work which produces new knowledge, products or processes, it has an obligation to foster technological progress through wide dissemination of the new and useful information derived from such work and where practicable to provide competitive opportunities for supplying the new products and utilizing the new processes. At the same time, acquiring, maintaining, storing, retrieving, and distributing technical data in the vast quantities generated by modern technology is costly and burdensome for the Government. For this reason alone, it would be necessary to control closely the extent and nature of data procurement. Such control is also necessary to insure Goverment respect for its contractors' economic interest in technical data relating to their privately developed items. The policies and procedures of this subpart are framed in the light of these considerations.

[30 F.R. 6969, May 25, 1965, as amended at 33 F.R. 7400, May 18, 1968]

(a) General. It is the policy of the Department of Defense to acquire only such data and rights therein as are essential to meet Government needs.

(b) Unlimited rights. Technical data in the following categories, when specified in any contract as being required for delivery, or subject to order under the contract, shall be acquired with unlimited rights:

(1) Technical data resulting directly from performance of experimental, developmental, or research work which was specified as an element of performance in a Government contract or subcontract;

(2) Technical data necessary to enable others to manufacture end-items, components and modifications, or to enable them to perform processes, when the end-items, components, modifications or processes have been, or are being, developed under Government contracts or subcontracts in which experimental, developmental or research work was specified as an element of contract performance, except technical data pertaining to

items, components or processes developed 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 if 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 a 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 limited 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 developed at private expense. Nevertheless, it cannot be so identified if it comes within paragraph (b)(1) of the "Rights in Technical Data" clause, for example, if it has previously been furnished to the Government without restriction by the offeror or his proposed subcontractor. At the request of the Contracting Officer or his representative, the offeror agrees to furnish evidence to support his view that the data which will be so marked comes within the definition of limited rights data.

(c) The listing of a data item in paragraph (a) above does not mean that the Government considers such item to come within the definition of limited rights data.

(4) If completion of predetermination proves impracticable before award, or if contractual requirements relating to design or data items are changed during the course of a contract, an appropriate provision shall be included in the contract, requiring the contractor to complete the identification of limited rights with respect to that data listed in the solicitation for which predetermination was proposed, or to identify limited rights data relating to the changed requirements.

(e) Subcontracts. It is the policy of the Department of Defense that prime contractors and higher tier subcontractors shall not use their power to award subcontracts as economic leverage to acquire rights in the data of their subcontractors for themselves. Accordingly, when there is a requirement in the prime contract or deferred order for data to be supplied with limited rights pursuant to paragraph (c) of this section, and such data is to be obtained from a subcontractor, the subcontractor may submit such data directly to the Government rather than through the prime contractor.

(f) Deferred selection and delivery of data.

(1) The Government may defer selection and delivery of all or any portion of the data specified in the contract until actual requirements can be economically determined. Accordingly, the Government may request the contractor to delivery any such data or portions thereof at any time during the performance of the contract or within 2 years from either acceptance of all items (other than data) under the contract or termination of the contract, whichever is later. However, the contractor's obligation to deliver data pertaining to any item obtained from a subcontractor shall cease 2 years after the date on which he accepts the

item. The Government may make any number of orders for technical data, but each order shall be made sufficiently in advance of the required delivery date to enable the contractor to provide data in the specified format.

(2) The price of the work includes the Government's right to use such data as prescribed in the contract, and no additional payment shall be made to the contractor with respect to rights in such data. However, at the time of delivery payment shall be made, by equitable adjustment or otherwise, for converting the data into the prescribed form, reproducing it, and preparing it for delivery.

(g) Specific acquisition of data and rights. (1) Notwithstanding any other provision of this subpart, the Government may acquire unlimited rights in any data by means of negotiation with an individual contractor or subcontractor, or as a part of a competition among several contractors or subcontractors. Such individual negotiation or competition may be conducted either by the Government, or upon Government request by the prime contractor or highertier subcontractor. Any such data shall be stated in the contract schedule as a separate item and shall be separately priced. No data or rights therein shall be acquired under this section unless it is determined after a finding upon a documented record by the Head of the Procuring Activity or his designee that: (i) There is a clear need for reprocurement of the item, component or process to which the technical data pertains;

(ii) There is no suitable item, component or process of alternate design or availability;

(iii) The item or component can be manufactured or the process performed through the use of such technical data by other competent manufacturers, without the need for additional technical data which cannot be purchased reasonably or is not readily obtained by other economic means; and

(iv) Anticipated net savings in reprocurements will exceed the acquisition cost of the technical data and rights therein.

(2) The analysis and findings referred to in subparagraph (1) of this paragraph shall specifically identify each component and the particular data therefor which 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]

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 if 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 be 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