1. Government Contract Law – Post Award Shraddha Upadhyaya Contract Law Division U.S. Department of Commerce Office of General Counsel GSA Training Conference and Expo 2010

2. This session is sponsored by the Federal Acquisition Institute The primary organization providing knowledge and support to the federal civilian acquisition workforce. For more information about FAI, please visit our website at www.fai.gov

3. Shraddha Upadhyaya, Attorney –Department of Commerce, Office of General Counsel –Contract Law Division Patent Lawyer Satellite Procurement for National Oceanic and Atmospheric Administration (NOAA) Contact me: supadhyaya@doc.govsupadhyaya@doc.gov Background

4. Negotiate appropriate scope of data rights before contract award! Program Manager must determine what the future needs of the program will be prior to release of the solicitation. Anticipate the future needs of the program, including future upgrades, enterprise management, and in-house maintenance. Cost, schedule and performance impacts! DATA RIGHTS

5. FAR Subpart 27.4 Data Rights--Basics Unlimited Rights Limited Rights Restricted Rights

6. UNLIMITED RIGHTS FAR 27.404-1 Defines Unlimited Rights Data Data first produced in the performance of a contract –Excludes minor modifications to limited rights data or restricted computer software Form, fit and function data Data that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under a contract. –Excludes data included with restricted computer software All other data delivered under the contract other than limited rights data or restricted computer software

7. Limited Rights Data FAR 52.227-14 Data, other than computer software, that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications.

8. Limited Rights--Options in 52.227-14 Under basic clause, Contractor may protect limited rights data and restricted computer software by withholding the data and instead delivering form, fit and function data. (FAR 27.404-2). Alt II— Enables the Government to require delivery of limited rights data.

9. Limited Rights--Options in 52.227-14 Alt II—includes the following notice: (a) These data are submitted with limited rights under Government Contract No. _____ (and subcontract ______, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to prohibition against further use and disclosure: [Agencies may list additional purposes as set forth in 27.404-2(c)(1) or if none, so state.]27.404-2 (b) This notice shall be marked on any reproduction of these data, in whole or in part.

10. Limited Rights--Options in 52.227-14 Permissible purposes under FAR 27.404-2(c)(1) : (i) Use (except for manufacture) by support service contractors. (ii) Evaluation by nongovernment evaluators. (iii) Use (except for manufacture) by other contractors participating in the Government’s program of which the specific contract is a part. (iv) Emergency repair or overhaul work. (v) Release to a foreign government, or its instrumentalities, if required to serve the interests of the U.S. Government, for information or evaluation, or for emergency repair or overhaul work by the foreign government.

11. Restricted Computer Software Computer software developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is copyrighted computer software, including minor modifications of the computer software.

12. Restricted Computer Software ALT III enables the Government to require delivery of restricted computer software rather than allow the contractor to withhold it. The CO SHALL: –Identify and specify the deliverable computer software in the contract OR –Require by written request during contract performance

13. Government Purpose Rights Borrowed from DFARs Mixed Funding Represents the middle ground in the spectrum of data rights envisioned in the FAR.

14. Government Purpose Rights “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so. “Government purpose rights” means the rights to— (i) Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and (ii) 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.

15. Government Purpose Rights Because it is a DFARs clause 252.227-7013, incorporation into civilian agency solicitations likely requires an individual FAR deviation and should be a special clause tailored to the agency. Look into your Agency’s specific requirements for deviations.

16. Form, Fit and Function Data Data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For computer software it means data identifying source, functional characteristics, and performance requirements, but specifically excludes source code, algorithms, processes, formulas, and flow charts of the software.

17. Copyright Assertion Contractor must obtain permission to assert copyright. Incorporation of copyright notice on deliverables alters the scope of license the Government obtains to data first produced in the performance of the contract.

18. Appropriate markings required to safeguard both the contractor’s rights and the Government’s rights. If contractor delivers data without reserving limited rights, the Government obtains the data with unlimited rights license. By the same token, Government must safeguard against the Contractor marking entire packages with limited rights or restricted rights notices. Delivery of a definition package may not totally be proprietary rights. Require the contractor to use markings selectively. Mark each page, rather than entire package. Markings

19. Determine scope of data rights needed—not too broad and not too narrow Negotiate data rights prior to contract award, otherwise suffer consequences Conclusion