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.

was

(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 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 FR. 10172, July 11, 1967; 32 F.R. 12099, Aug. 23, 1967]

(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:

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

or research work which was specified as an element of performance in this or any other Government contract or subcontract;

(11) Technical data necessary to enable manufacture of end-items, components and modifications, or to enable the performance of processes, when the end-items, components, modifications or processes have been, or are being, developed under this or any other Government contract or subcontract in which experimental, developmental or research work is, or was specified as an element of contract performance, except technical data pertaining to items, components or processes developed at private expense (but see (2) (ii) below);

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

(iv) 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.);

or instructional

materials

(v) Manuals prepared for installation, operation, maintenance or training purposes;

(vi) Other technical data which has been, or is normally furnished without restriction by the Contractor or subcontractor; and

(vii) Technical data listed or described in an agreement incorporated into the Schedule of this contract, which the parties have predetermined, on the basis of subparagraphs (1) through (vi) above, and agreed will be furnished with unlimited rights.

(2) The Government shall have limited rights in:

(i) Technical data, listed or described in an agreement incorporated into the Schedule of this contract, which the parties have agreed will be furnished with limited rights; and

(ii) Technical data pertaining to items, components or processes developed at private expense, other than such data as may be included in the data referred to in (b) (1) (1), (iii), (iv), (v), and (vi);

Provided that each piece of data to which limited rights are to be asserted pursuant to (2) (1) and (11) above is marked with the following legend in which is inserted the number of the prime contract under which the technical data is to be delivered and the name of the Contractor or subcontractor by whom the technical data was generated:

ment, where the item or process concerned is not otherwise reasonably available to enable timely performance of the work: Provided, That the release or disclosure hereof outside the Government shall be made subject to a prohibition against further use, release, or disclosure; or (11) 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. This legend shall be marked on any reproduction hereof in whole or in part.

No legend shall be marked on, nor shall any limitation on rights of use be asserted as to, any data which the Contractor has previously delivered to the Government without restriction. The limited rights provided for by this paragraph (b) (2) shall not impair the right of the Government to use similar or identical data acquired from other sources.

(c) Material covered by copyright. (1) Notwithstanding the provisions of (b) above, the Contractor agrees to and does hereby grant to the Government, and to its officers, agents, and employees acting within the scope of their official duties, a royalty-free, nonexclusive and irrevocable license throughout the world for Government purposes to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others so to do, all technical data now or hereafter covered by copyright.

(2) No such copyrighted matter shall be included in technical data furnished hereunder without the written permission of the copyright owner for the Government to use such copyrighted matter in the manner described above.

(3) The Contractor shall report to the Government (or higher-tier Contractor) promptly and in reasonable written detail each notice or claim of copyright infringement received by the Contractor with respect to any technical data delivered hereunder.

(d) Removal of unauthorized markings. Notwithstanding any provisions of this contract concerning inspection and acceptance, the Government may modify, remove, obliterate, or ignore any marking not authorized by the terms of this contract on any technical data furnished hereunder, if—

(1) The Contractor fails to respond within sixty (60) days to a written inquiry by the Government concerning the propriety of the use of the marking, or

(11) The Contractor's response fails to substantiate his contention that the use of the marking is authorized, in which case the Government shall give written notice to the Contractor.

(e) Relation to patents. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.

(f) Limitation on charges for data. The 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 liable 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, mailing, 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 Government 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

1

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 Officer 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 ACQUISITION (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 official 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.