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

1. Technical Data Rights: “Everything We Don’t Tell the Contractors” NDIA Procurement Division Seminar--San Antonio Texas

2. Organization for Today’s Presentation • Quick Primer on 10 USC 2320 • Quick Primer on 10 USC 2321 • Settling Tech Data Rights • Review of an Example NDIA Procurement Division Seminar--San Antonio Texas

3. 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 NDIA Procurement Division Seminar--San Antonio Texas

4. 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 NDIA Procurement Division Seminar--San Antonio Texas

5. 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 NDIA Procurement Division Seminar--San Antonio Texas

6. 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 NDIA Procurement Division Seminar--San Antonio Texas

7. Tech Data Rights Categories from the DFARS (see 227.7100 & 227.7200) • Funding Exclusively by the Government Means Unlimited Rights • Mixed Funding Means Government Purpose Rights • Funding Exclusively by the Contractor Means Limited/Restricted Rights • SBIR Rights NDIA Procurement Division Seminar--San Antonio Texas

8. 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 FURNISHED to the Navy, i.e., in some Deliverable!! • NOTE: Be aware of marking requirements--refer to -7013(f), -7014(f) or -7018(f) NDIA Procurement Division Seminar--San Antonio Texas

9. 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” NDIA Procurement Division Seminar--San Antonio Texas

10. 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.” NDIA Procurement Division Seminar--San Antonio Texas

11. 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.” NDIA Procurement Division Seminar--San Antonio Texas

12. 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 NDIA Procurement Division Seminar--San Antonio Texas

13. 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.” NDIA Procurement Division Seminar--San Antonio Texas

14. QUESTIONS??? NDIA Procurement Division Seminar--San Antonio Texas