1. Sherri Blankenship Release of Technical Data
UNCLASSIFIED
UNCLASSIFIED
Program Executive Office Special Operations Forces Support Activity (PEO SOFSA)
Trusted Experts for SOF Logistics
Sherri Blankenship Release of Technical Data
Contracting Officer
Special Operations Forces Support Activity

2. Release of Technical Data
I have data that I need to release
What is technical data?
How do I know if I can release this data?
What documentation/restrictive markings will I encounter?
Who can release what data, and to whom?
What is the processes (I.e. Do I have to ask someone? Who do I ask?)
What if I don’t agree with the restrictive markings?

3. What is Technical Data? Technical data is:
Recorded information regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation).* (DFARS )
*The term does not include computer software or data incidental to contract administration, such as financial and/or management information.
The most confused term in all rights in data discussions; formally means nearly everything; however in the vernacular means design data and drawings

4. Rights in Technical Data (FAR 52.227-13)
Burden is on the contractor to assert at proper level of detail Types
Unlimited Rights:
Developed exclusively at Government expense, and certain types of data (e.g., Form, Fit, and Function data [FFF]; Operation, Maintenance, Installation, and Training [OMIT]). These rights involve the right to use, modify, reproduce, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.
Limited Rights:
A limited rights agreement permits the Government to use proprietary technical data in whole or in part. It also means that the Government has to obtain the expressed permission of the party providing the technical data to release it, or disclose it, outside the Government.
Government Purpose Rights:
Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and Release or disclose technical data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.
Unlimited Rights
Government shall have unlimited rights to:
Data first produced in performance of this contract
Data delivered under this contract unless provided for otherwise as limited rights data or restricted computer software
Form, fit, and function data delivered under contract
Limited Rights
Pertains to:
Trade secrets
Privileged financial data
Other proprietary data developed at private expense
Restricted Rights (Same as above except pertains to computer software)
I might be able to include a meatball chart of different rights…

5. Development “Developed”: “Developed exclusively at private expense”*:
Means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.
*Sometimes referred to as IRAD (Internal Research & Development) by industry.
“Developed”:
Means that an item, component, or process exists and is workable. Thus, the item or component must have been constructed or the process practiced. Workability is generally established when the item, component, or process 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.
NOTE: To be considered “developed,” the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component, or process be actually reduced to practice within the meaning of Title 35 of the United States Code.

6. Ownership
DoD does not typically acquire title to or ownership of technical data or computer software – even if the Government funded 100% of the development. (
The Government acquires a license to use, release, or disclose technical data or computer software to persons who are not Government employees.
DoD often negotiates over license rights and not ownership of technical data or computer software to be delivered under a contract.

7. Can I Release This Data? First, ask yourself 2 questions:
Is this contract R&D or Procurement?
Where did I get the data?, then:
Check the specific documents you want to release for specific disclosure, restrictive or release information and markings
Check the Contract documents
The Request for Proposal (RFP), Proposal and Contract should indicate what the contractor has deemed restricted
If your data are considered Commercial items:
Agencies only acquire data (and rights) typically provided to the public with the item (FAR )
Contractor is NOT required to provide USG information not generally provided to the public
Must negotiate for additional rights
If R&D or Procurement, they are more likely to have a potential for limited rights. (I.e. non-commercial)
If the data originated from a commercial source, they will likely want protections for their information. If it is government source/owned, we can do what we want, but it then becomes more of a question of ‘IF’ or ‘CAN’ we release the data – and although some of the info is relative to what we are talking about here, we are not discussing how/what the government releases of our own source (similar to the classification/declassification process)
Commercial licenses under increased scrutiny

8. Documentation & Restrictive Markings
What documentation/restrictive markings will I encounter?
Unlabeled data is unlimited rights data
The Contractor shall not deliver any data with restrictive markings unless data is listed on Data Rights Assertion List*
Contractors, subcontractors and suppliers shall conspicuously and legibly mark all technical data that qualify for such markings
Proposal must include table identifying what data/software is being delivered with other than unlimited rights
Agency specific clauses (Section H)
DD1423 – CDRL, Distribution, Block 14
* Submitted as part of the proposal
Data Rights Assertion List
Technical Data to be Furnished with Restrictions
Basis for Assertion
Asserted Rights
Name of Company Asserting Rights
Formula to accurately predict winner of Presidential Election
Developed partially at private expense
Government Purpose
Elections “R” Us
Team management system to ensure Team Y always beats Team X
Developed exclusively at private expense
Limited Rights
World Series Champs
Early identification of technical data to be furnished to the Government with restrictions on use, reproduction or disclosure.
(a) 10 U.S.C requires, to the maximum extent practicable, an identification prior to delivery of any technical data to be delivered to the Government with restrictions on use.
(b) Use the provision at , Identification and Assertion of Use, Release, or Disclosure Restrictions, in all solicitations that include the clause at , Rights in Technical Data—Noncommercial Items. The provision requires offerors to identify any technical data for which restrictions, other than copyright, on use, release, or disclosure are asserted and to attach the identification and assertions to the offer.
(c) Subsequent to contract award, the clause at permits a contractor, under certain conditions, to make additional assertions of use, release, or disclosure restrictions. The prescription for the use of that clause and its alternate is at (a) and (b).

9. Government Purpose Rights Marking
Contract No.
Contractor Name
Contractor Address
Expiration Date
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2) of the Rights in Technical Data— Noncommercial Items clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.
(f)(2)

10. Limited Rights Marking
Contract No.
Contractor Name
Contractor Address
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(3) of the Rights in Technical Data--Noncommercial Items clause contained in the above identified contract. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.
(f)(3)

11. DD1423 – CDRL Distribution & Markings
Block 14 Markings:
DISTRIBUTION A. Approved for public release: distribution unlimited.
DISTRIBUTION B. Distribution authorized to U.S. Government agencies.
DISTRIBUTION C. Distribution authorized to U.S. Government agencies and their contractors.
DISTRIBUTION D. Distribution authorized to Department of Defense and U.S. DoD contractors only.
DISTRIBUTION E. Distribution authorized to DoD Components only.
DISTRIBUTION F. Further dissemination only as directed by (controlling office) (date of determination) or higher DoD authority.
NOTE: Distribution Statements also say “Other requests for this document shall be referred to (controlling DoD office). “

12. Other Forms of Marking Typical NDA/PIA language*: Typical Markings:
Information disclosed hereunder shall be considered “Proprietary Information” and subject to the terms and conditions of this agreement if conspicuously marked with a stamp or legend identifying it as “Proprietary” or “Confidential” or with a substantially equivalent designation
Typical Markings:
Proprietary or Company Confidential
Competition Sensitive
Most Private
Proprietary / Customer Funds or / Mixed Funds or / Company Funds or / Business Data
Proprietary Level I, II, III
*Government is not a party to NDAs

13. Distribution Statements on Technical Documents
DoDI
Statements shall be shown on the title page, front cover, and SF 298, where applicable
Review Enclosure 5 Third Party-imposed Distribution Statements (4 pages) for restrictive markings and applying distribution statements
Formerly DoDD

14. Tech Data/Data Rights; What To Look For In GLSS
Rights in Technical Data--Noncommercial Items
Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation
Technical Data--Commercial Items
Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends
Deferred Delivery Of Technical Data Or Computer Software
Deferred Ordering Of Technical Data Or Computer Software
Technical Data--Withholding Of Payment
Validation of Restrictive Markings on Technical Data
Warranty Of Data
Alt I Warranty Of Data (Mar 2014) - Alternate I
Alt II Warranty Of Data (Mar 2014) - Alternate II

15. Who can release what data to whom?
Authorities
Who can release what data to whom?
Subcontractors may submit asserted restrictive rights data directly to the Government rather than through a higher tier contractor (DFARS )
Other examples of WHO? Are the one here, the ones we want to verbalize, or should we just eliminate?
DFARS is a required flowdown without alteration

16. Process For Release
Per MIL-STD-31000A, Tech Data Packages must be prepared and submitted to the Procuring Activity specified as having approval authority.
Limited rights:
Contractor must be notified of disclosure
Government support contractors must treat data in accordance with
Contractor may require each support contractor to enter into an NDA
Unlimited rights:
No formal procedures, other than to verify/ensure the data is of unlimited rights
We may want to add specific process flow here, especially if we want to be notified or be a part of the process.
I would like to include a simple process chart here if prudent.

17. Can the release claim/decision be challenged?
Challenges
Can the release claim/decision be challenged?
The USG challenge must
Be in writing
Provide basis for the challenge
The Contractor is required to respond within 60 days providing justification for the marking
Non-conforming marking correction – DFARS (h)(2)/-7014(h)(2)
The Contracting Officer must issue a final decision
USG will honor the asserted restriction during any appeal of that final decision
USG deals directly with subcontractors/suppliers in challenging such restrictions

18. Questions / Discussion

19. Types of Data/Technical Rights
Common:
Unlimited Rights Definition
Government Purpose Rights Definition
Limited Rights Definition
Restricted Rights Definition
Specifically Negotiated License Rights Definition
Small Business Innovative Research (SBIR) Data Rights Definition
Commercial Technical Data License Rights Definition
Commercial Computer Software Licenses Definition
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20. Unlimited Rights
Developed exclusively at Government expense, and certain types of data (e.g., Form, Fit, and Function data [FFF]; Operation, Maintenance, Installation, and Training [OMIT]). These rights involve the right to use, modify, reproduce, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.
Types
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21. Government Purpose Rights
This right involves the right to use, duplicate, or disclose technical data for Government purposes only, and to have or permit others to do so for Government purposes only. Government purposes include competitive procurement, but do not include the right to permit others to use the data for commercial purposes.
Types
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22. Limited Rights
A limited rights agreement permits the Government to use proprietary technical data in whole or in part. It also means that the Government has to obtain the expressed permission of the party providing the technical data to release it, or disclose it, outside the Government.
Types
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23. Restricted Rights
Developed exclusively at private expense.
Types
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24. Specifically Negotiated License Rights
This right pertains whenever the standard license arrangements are modified to the mutual agreement of the contractor and the Government. In this case, the exact terms are spelled out in a specific license agreement unique to each application.
Types
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25. Small Business Innovative Research (SBIR) Data Rights
All technical data or computer software generated under a SBIR contract. Government users cannot release or disclose outside the Government except to Government support contractors.
Types
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26. Commercial Technical Data License Rights
Applies to technical data related to commercial items (developed at private expense). Managed in the same manner as Limited Rights.
Types
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27. Commercial Computer Software Licenses
Applies to any commercial computer software or software documentation. Managed as specified in the commercial license offered to the public.
Types
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28. Questions