Subsequently, an addition to that item, component, or process may have been directly financed by the Government. Correctly analyzed, the contractor should be able to retain proprietary rights i. This break-out or segregation of items, components, or processes developed at private expense from related items, components, or processes developed with Government funding is sometimes referred to as the doctrine of "segregability.
Few issues strike at the core of contractor profitability as much as do those related to rights in technical data and computer software. The competitive advantage represented by technical know-how, trade secrets, or unique designs is translatable directly into profits. Contractors go to great lengths to protect whatever competitive advantage is attained. In Government contracting, competitive advantage can easily evolve into sole-source monopoly. Contractor ownership of critical technology, manufacturing techniques, or cost-saving procedures can eliminate effective competition.
These regulations, and the contract clauses they prescribe, provide a mechanism by which a proper balance may be struck. Please contact and consult with your legal department when dealing with data rights, since this topic covers many complex laws, policies, and regulations.
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Acquipedia Sign In. Data Rights Data Rights for technical data and computer software fall into eight categories: Unlimited Rights. Developed exclusively at Government expense, and certain types of data e.
Whether the computer software that you provide to the government is produced under the contract or is software that was developed at your own private expense, if you have copyrighted or intend to copyright such software, FAR requires that you grant the government a license in the software.
The basic license that is granted to the government shall be a fully paid, nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, perform publicly and display publicly by or on behalf of the government. The provisions set forth in FAR related to intellectual property are numerous and may be changed by the terms of the contract itself. If you enter into a contract with the government to produce intellectual property, make certain that you review both the contract and all relevant FAR provisions so that you will be aware of your rights.
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Contact BTLG to learn what to avoid in business lawyers and legal representation for your business, or to answer your questions, including "why is a business lawyer worth it". Skip Navigation. Enter Search Phrase. The additional assertions must be made in accordance with the procedures and in the format prescribed by that clause. As provided at When it is anticipated that the software will or may be used in combat or situations which simulate combat conditions, do not permit contractors to insert instructions into computer programs that interfere with or delay operation of the software to display a restrictive rights legend or other license notice; and.
When restrictions are still applicable, the contractor is permitted to mark the software or documentation with the appropriate restrictive legend. To the extent practicable, if a contractor has requested permission see paragraph c 2 of this subsection to correct an inadvertent omission of markings, do not release or disclose the software or documentation pending evaluation of the request.
The request must be received by the contracting officer within six months following the furnishing or delivery of such software or documentation, or any extension of that time approved by the contracting officer.
The person making the request must—. All other markings are nonconforming markings. An authorized marking that is not in the form, or differs in substance, from the marking requirements in the clause at To the extent practicable, the contracting officer should return computer software or computer software documentation bearing nonconforming markings to the person who has placed the nonconforming markings on the software or documentation to provide that person an opportunity to correct or strike the nonconforming markings at that person's expense.
If that person fails to correct the nonconformity and return the corrected software or documentation within 60 days following the person's receipt of the software or documentation, the contracting officer may correct or strike the nonconformity at that person's expense. When it is impracticable to return computer software or computer software documentation for correction, contracting officers may unilaterally correct any nonconforming markings at Government expense.
Prior to correction, the software or documentation may be used in accordance with the proper restrictive marking. For example, a restricted rights legend placed on computer software developed under a Government contract either exclusively at Government expense or with mixed funding situations under which the Government obtains unlimited or government purpose rights is an unjustified marking.
However, at any time during performance of a contract and notwithstanding existence of a challenge, the contracting officer and the person who has asserted a restrictive marking may agree that the restrictive marking is not justified.
Upon such agreement, the contracting officer may, at his or her election, either—. If the software or documentation are returned and that person fails to correct or strike the unjustified restriction and return the corrected software or documentation to the contracting officer within 60 days following receipt of the software or documentation, the unjustified marking shall be corrected or stricken at that person's expense.
An offeror's or contractor's assertion s of restrictions on the Government's rights to use, modify, reproduce, release, or disclose computer software or computer software documentation do not, by themselves, determine the extent of the Government's rights in such software or documentation. The Government may require an offeror or contractor to submit sufficient information to permit an evaluation of a particular asserted restriction and may challenge asserted restrictions when there are reasonable grounds to believe that an assertion is not valid.
Contracting officers should have a reason to suspect that an asserted restriction might not be correct prior to requesting information. When requesting information, provide the offeror or contractor the reason s for suspecting that an asserted restriction might not be correct. A need for additional license rights is not, by itself, a sufficient basis for requesting information concerning an asserted restriction.
Follow the procedures at Contracting officers should permit a subcontractor or supplier to transact challenge and validation matters directly with the Government when—.
The challenge procedures in the clause at Therefore, avoid challenging asserted restrictions prior to a competitive contract award unless resolution of the assertion is essential for successful completion of the procurement. Computer software documentation is technical data. Challenges to asserted restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software documentation must be made in accordance with the clause at The procedures in the clause at Resolution of questions regarding the validity of asserted restrictions using the process described at The Government's right to challenge an assertion expires three years after final payment under the contract or three years after delivery of the software, whichever is later.
Those limitations on the Government's challenge rights do not apply to software that is publicly available, has been furnished to the Government without restrictions, or has been otherwise made available without restrictions. Before challenging an asserted restriction, carefully consider all available information pertaining to the asserted restrictions.
After consideration of the situations described in paragraph c of this subsection, contracting officers may request the person asserting a restriction to furnish a written explanation of the facts and supporting documentation for the assertion in sufficient detail to enable the contracting officer to determine the validity of the assertion. Additional supporting documentation may be requested when the explanation provided by that person does not, in the contracting officer's opinion, establish the validity of the assertion.
Challenges must be in writing and issued to the person asserting the restriction. The contracting officer, at his or her discretion, may extend the time for response contained in a challenge, as appropriate, if the contractor submits a timely written request showing the need for additional time to prepare a response. When a final decision denying the validity of an asserted restriction is made following a timely response to a challenge, the Government is obligated to continue to respect the asserted restrictions through final disposition of any appeal unless the agency head notifies the person asserting the restriction that urgent or compelling circumstances do not permit the Government to continue to respect the asserted restriction.
When more than one contracting officer challenges an asserted restriction, the contracting officer who made the earliest challenge is responsible for coordinating the Government challenges. That contracting officer shall consult with all other contracting officers making challenges, verify that all challenges apply to the same asserted restriction and, after consulting with the contractor, subcontractor, or supplier asserting the restriction, issue a schedule that provides that person a reasonable opportunity to respond to each challenge.
Solicitations and contracts requiring the delivery of computer software shall specify the requirements the software must satisfy to be acceptable. Contracting officers, or their authorized representatives, are responsible for determining whether computer software tendered for acceptance conforms to the contractual requirements. Except for nonconforming restrictive markings follow the procedures at Correction or replacement of nonconforming software, or an equitable reduction in contract price when correction or replacement of the nonconforming data is not practicable or is not in the Government's interests, shall be accomplished in accordance with—.
Computer software that is a component of a weapon system or major subsystem should be warranted as part of the weapon system warranty.
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