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Fernand A. Lavallee, Partner, DLA Piper US LLP Date July 27, 2007 Time 10:45 a.m. – 11:45 a.m.

Protecting the Crown Jewels: The Recent Changes in Government Data Rights. Fernand A. Lavallee, Partner, DLA Piper US LLP Date July 27, 2007 Time 10:45 a.m. – 11:45 a.m. What I’m Going to Tell You:. The “Funding Test” and Early Identification of Rights in Tech Data;

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Fernand A. Lavallee, Partner, DLA Piper US LLP Date July 27, 2007 Time 10:45 a.m. – 11:45 a.m.

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  1. Protecting the Crown Jewels: The Recent Changes in Government Data Rights Fernand A. Lavallee, Partner, DLA Piper US LLP Date July 27, 2007 Time 10:45 a.m. – 11:45 a.m.

  2. What I’m Going to Tell You: • The “Funding Test” and Early Identification of Rights in Tech Data; • The presumption enjoyed by Commercial Items Regarding Development Exclusively at Private Expense; and • The Change in the DoD Tech Data Statute Including the Change in the Presumption Regarding Commercial Item Tech Data.

  3. Definition of Technical Data • Recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). • The term does not include computer software or data incidental to contract administration, such as financial and/or management information. DFARS § 252.227-7013 (Non-commercial Items)DFARS § 252.227-7015 (Commercial Items)

  4. Follow the Funds • Allocation of rights in technical data is a funding test. • Who funded (paid for) the development of the Technical Data.

  5. Early Identification of Rights in Technical DataIdentification of any technical data to be delivered to the Government with restrictions on its use (i.e., other than an Unlimited Rights license) is required to the maximum extent practicable prior to delivery of such technical data. See 10 U.S.C. 2320. See also DFARS 227.7103-3(a).

  6. Data Rights Assertions • Early identification is accomplished by open communications, and • DFARS 252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions (sometimes called a “Data Rights Assertion Chart”); • DFARS 252.227-7013(e) contains a Data Rights Assertion Chart.

  7. Rights in Non-Commercial Tech Data The Government’s policy is to acquire only the technical data, and the rights in that data, necessary to satisfy agency needs. DFARS 227.7103-1(a).

  8. For Non-Commercial Tech Data The Government Obtains Unlimited Rights In: • Data pertaining to an item, component, or process which has been or will be developed exclusively with Government funds; • Studies, analyses, test data, or similar data produced in the performance of a contract when specified as an element of performance;

  9. Non-Commercial Tech Data: Unlimited Rights • Created exclusively with Government funds in the performance of a contract that does not require the development, manufacture, construction or production of items, components or processes; 4. Form, fit and function data;

  10. Non-Commercial Tech Data: Unlimited Rights • Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing/process data); 6. Corrections or changes to technical data furnished to the contractor by the Government;

  11. Non-Commercial Tech Data: Unlimited Rights 7. Publicly available or has been released or disclosed by the contractor or subcontractor without restrictions on further use, release or disclosure other than a release or disclosure resulting from the sale, transfer or other assignment of interest in software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

  12. Non-Commercial Tech Data: Unlimited Rights 8.Data in which the Government has obtained unlimited rights under another Government contract or as a result of negotiations; or 9. Government Purpose License Rights or limited rights or restrictive conditions has/have expired; or Government purpose license rights and K’s exclusive right to use for commercial purposes has expired. DFARS 227.7103-5(a)

  13. Rights in Commercial Tech Data The Government acquires only the tech data customarily provided to the public, except: (i) form, fit and function; (ii) required for repair or maintenance; and (iii) describes mods to a commercial item made at Government expense to meet requirements of a Government solicitation. DFARS 227.7102-1(a)

  14. Commercial Items: Presumed To Be Developed at Private Expense • 10 U.S.C. 2320(b)(1) established presumption; • Now presumption only for items, components and processes not related to a major weapon system, subsystem or component thereof.

  15. Government Challenge to Assertion of Commercial Item • Government not to challenge a contractor’s assertion unless it can demonstrate that it contributed to the development. DFARS 227.7102. • Contractor’s failure to respond to a challenge notice cannot be the sole basis for denial of validity of assertion. Id.

  16. Recent Changes toDoD’s Tech Data Statute The John Warner National Defense Authorization Act for FY 2007 amended 10 U.S.C. §§ 2320 and 2321.

  17. Recent Changes to 10 U.S.C. § 2320 Requires program managers for major weapon systems and subsystems to: • assess the long term technical data needs; • establish corresponding acquisition strategies that provide for technical data rights necessary to sustain such systems and subsystems over their lifecycle.

  18. Recent Changes to 10 U.S.C. § 2321 Changes the presumption that a Commercial Item was developed exclusively at private expense with respect to major systems, subsystems and components if the Government challenges the assertion of Commercial Item rights by a contractor.

  19. Implementation of Changes to the DoD Tech Data Statute • Guidance to be in DFARS Parts 207 and 227; • No software statute BUT software and tech data treated similarly in the FAR and DFARS.

  20. Impact of Changes • Good faith basis still required for challenge; • Burden of proof of development exclusively at private expense is shifted to Contractor; • Contractor well advised to submit a justification in response to a challenge notice.

  21. Impact of Changes (Cont’d) • The contractor MUST maintain records sufficient to justify the validity of a Commercial Item assertion. • Similar to the requirement for Non-Commercial Items contained in DFARS § 252.227-7103(g)(Tech Data) and DFARS § 252.227.7104(g) (Software).

  22. Questions?

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