Under the proposed policy "product data" results from a contract requirement that directs contractors to collect, organize, prepare, maintain, transmit, deliver or retain information incident to the design, development, production, operation, preservation, maintenance or repair of contract end items. Product data include engineering drawings, product specifications and standards, part breakdown lists, catalog item identifications, operation and/or maintenance instructions, descriptions of product physical qualities and characteristics, computerized product definition media, and reprocurement data.

"Non-product data" results from contract requirements that direct contractors to collect, organize, prepare, maintain, transmit, deliver, or retain information, plans or reports other than product data. Non-product data include financial reports, progress reports, design analyses, test data, configuration management reports, engineering change proposals, and other such business and technical management information.

It should be noted that either type of data may be transmitted to the Government, or remain in the hands of the contractor for Government use when required.

Generally speaking, product data and non-product data may be subject to such disposition constraints as national

security classification, patent rights, copyrights, or proprietary rights. This data may in some unusual instances

also be subject to Privacy Act restrictions.

Our proposed policy directs, among other things that:

a.

Agencies will control the development and application of data requirements intended for use in more than one procurement.

Agencies will establish and maintain a list

or lists of approved data requirements, and assure that unauthorized requirements are not used in procurements. Agencies will verify that there is a demonstrated need for each data requirement, and that they are cost beneficial before approving them for use and inclusion on the authorized lists.

b. Agencies will assure compatability among data requirements, and make maximum use of uniform terminology and classification. Intra-agency coordination is mandatory to

reduce costs.

C.

For individual procurements, the Government program manager or contracting officer will identify the Government data requirements in the solicitation, and request contractors to propose how the requirements may be met and what data should be provided. The Government program manager or contracting officer will tailor the application of data requirements to the specific needs of individual procurements,

taking into consideration the objective of the procurement, the type of contract, the Government's needs, practical utility, the contractor's proprietary interests, the contractor's proposal, and the desired form and depth of Government management control (prior approval of proposed contractor actions, surveillance, or visibility).

d. Agency data requirements will permit the use of contractor's formats whenever possible.

e. A firm commitment to procure product data requirements will, whenever practicable, be defered until the time of actual need, and scheduled so as to be within the time frame when the product data are normally generated by the contractor. The intention to procure product data should, however, be identified in the solicitation and subsequent

contract.

f. The price of data requirements and rights will be negotiated at the time of contracting, where circumstances permit identification of the requirements at that time. Otherwise they will be negotiated not later than the time they are ordered.

g.

Consideration should be given to have the contractor

be a data repository for the Government.

h. Agency non-product data requirements covered by OMB Circular No. A-40 (implementing the Federal Reports Act) shall conform to the provisions of that Circular.

The proposed policy is intended to implement recommendation A-33 of the Commission on Government Procurement which recommended more effective control over the selection and imposition of contract data requirements.

In addition to appearing as an OMB Circular, the final version of this policy will be implemented in the new Federal Acquisition Regulation (FAR), a uniform Government-wide

procurement regulation now under development by our Office.

Data Generated by the Contractor in Connection

with Contract Performance But Not Expressly

or Impliedly Required by the Contract

This type of data may be subject to patent rights, copyrightable, or subject to a national security classification. However, unless there is a clause in the contract expressly giving the Government some rights in the data, the contractor owns the data and is free to use it as it pleases.

Basically, the Federal Government relies on the private sector to provide needed goods and services (see OMB Circular A-76). We, therefore, believe that further thought should be given to the need for any general contract clauses or precautions with respect to this category of data.

Data Furnished the Contractor by the Government for Use in Performing the Contract

This category of data includes contracts where data is furnished the contractor for use in production of equipment or supplies, for analysis, or for general background in

performing the contract. Again, the data may be subject to

patent rights, copyrights, national security classifications, or the Privacy Act.

Generally, in this case, the contract should specify the uses to which the data may be put, and the disposition of the data at the completion of the contract. As the draft subcommittee report indicates, there are a number of such contract clauses in use, and this is an area where more uniformity and precise guidelines may be in order. could be accomplished in the development of our Federal Acquisition Regulation.

Surveys Ordered by the Government

This

A final category, which although more limited than the other three may merit special attention, is when the principal purpose of the contract is to collect data, as where the contractor is to conduct a survey as an agent of the Government. Here copyrightable material and the Privacy Act may be involved and the contract clearly should spell out the rights of the contracting parties in the data, and the controls to be exercised over the data both during and after contract performance. If the contractor is to have some rights in the data, the value of those rights clearly should be taken into account in negotiating the price of the contract.

Again, this seems to be an area where some uniformity and more precise guidelines would be desirable and could be implemented through the Federal Acquisition Regulation.