March 12, 2007NDIA Procurement Division Seminar--San Antonio Texas 1 Technical Data Rights:...

March 12, 2007 NDIA Procurement Division Seminar--San Antonio Texas

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Technical Data Rights: “Everything We Don’t Tell the

Contractors”


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Organization for Today’s Presentation

1. Quick Primer on 10 USC 2320

2. Quick Primer on 10 USC 2321

3. Settling Tech Data Rights

4. Review of an Example


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Quick Primer on 10 USC 2320

• Describes three funding “pathways” and consequences as to use of Technical Data

• Relies on -7013, -7014 and -7018 clauses for Technical Data and Computer Software– Funding Exclusively by the Government

• SBIR Funding per other laws– Funding Exclusively by the Contractor– Mixed Funding


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The General Rule

• The general rule to follow when making a Data Rights determination in Government contracting is that the rights to data or software follow the money


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Quick Primer on 10 USC 2321

• Generally known as the “challenge” statute

• Deals with use or release restrictions asserted by a Contractor– But NOTE: you must refer to -7013, -7014 or -7018

to be aware of proper marking legends!

• Gives the Government 3 years after final payment to challenge improper restrictions (remember the exception)

• Contractors cannot restrict the Government’s distribution of reports submitted at the end of their work


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Why do we need to get Data Rights settled?

• Why start out with the wrong idea of “ownership” of Tech Data?

• Is there a “meeting of the minds?”

• Remember 10 USC 2321


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Tech Data Rights Categories from the DFARS

(see 227.7100 & 227.7200)

1. Funding Exclusively by the Government Means Unlimited Rights

2. Mixed Funding Means Government Purpose Rights

3. Funding Exclusively by the Contractor Means Limited/Restricted Rights

4. SBIR Rights


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What does the DFARS require for a “Completed” Data Rights Assertion

(DRA)?

• Focus on the instructions (for each Table) as stated in -7013(e) or -7014(e) or -7018(e)

• Look for restrictions on Data or Software that will be FURNISHEDFURNISHED to the Navy, i.e., in some Deliverable!!

• NOTE: Be aware of marking requirements--refer to -7013(f), -7014(f) or -7018(f)


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What do we do when a Contractor claims “Developed at Private Expense or under

IR&D”?

• The Government may request the Contractor to provide the Government with information to validate a claim of “Developed at Private Expense” or under a company’s “Independent Research and Development Program”


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Developed at Private Expense–General Information:»Company Project Name and Number; Location of Project Records;»Date Project was initiated; Name/telephone number/email of Project POC; Records of any Government funding during Project;

–Date Project was Developed:

»For TD: the item, component or process exists and has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended.

»For CS: the program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose.

–List of any Government contracts where this Project was claimed as “Developed at Private Expense.”


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Developed under IR&D–General Information:»IR&D Project Number»Location of Project Records»Records of any Government funding during Project

–Date Project was Developed:

»For TD: the item, component or process exists and has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended.

»For CS: the program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose.

–List of any Government contracts where this Project was claimed as “Developed under IR&D.”


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Problems with Data Rights Assertions

Language is not precise, not specific enough

Language does not relate to what is being furnished

Language does not relate to SOW

Background Information does not conform to past Contractual rights

“Basis” does not say “Developed exclusively/partially at private expense”

Prime tries to make assertions for a sub


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An example… not very precise!

• “All technical data developed in connection with X Company’s widget, including but not limited to sketches, drawings, plans, diagrams, reports, means of use, computer code, computer programs and renditions.”


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QUESTIONS???

March 12, 2007NDIA Procurement Division Seminar--San Antonio Texas 1 Technical Data Rights:...

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