Defense Federal Acquisition Regulation Supplement (DFARS) Subparts 227.71, Rights in Technical Data; and 227.72, Rights in computer software and computer software documentation, and ......

Defense Federal Acquisition Regulation Supplement
Part 227—Patents, Data, and Copyrights

SUBPART 227.71--RIGHTS IN TECHNICAL DATA
(Revised June 21, 2005)
227.7100 Scope of subpart.
This subpart—
(a) Prescribes policies and procedures for the acquisition of technical data and the
rights to use, modify, reproduce, release, perform, display, or disclose technical data. It
implements requirements in the following laws and Executive Order:
(1) 10 U.S.C. 2302(4).
(2) 10 U.S.C. 2305 (subsection (d)(4)).
(3) 10 U.S.C. 2320.
(4) 10 U.S.C. 2321.
(5) 10 U.S.C. 2325.
(6) Pub. L. 103-355.
(7) Executive Order 12591 (Subsection 1(b)(6)).
(b) Does not apply to computer software or technical data that is computer software
documentation (see Subpart 227.72).
227.7101 Definitions.
(a) As used in this subpart, unless otherwise specifically indicated, the terms
“offeror” and “contractor” include an offeror's or contractor's subcontractors, suppliers,
or potential subcontractors or suppliers at any tier.
(b) Other terms used in this subpart are defined in the clause at 252.227-7013,
Rights in Technical Data--Noncommercial Items.
227.7102 Commercial items, components, or processes.
Section 2320(b)(1) of Title 10 U.S.C. establishes a presumption that commercial items
are developed at private expense whether or not a contractor submits a justification in
response to a challenge notice. Therefore, do not challenge a contractor's assertion that
a commercial item, component, or process was developed at private expense unless the
Government can demonstrate that it contributed to development of the item,
component or process. Follow the procedures in 227.7103-13 and the clause at 252.2277037, Validation of Restrictive Markings on Technical Data, when information provided
by the Department of Defense demonstrates that an item, component, or process was
not developed exclusively at private expense. However, when a challenge is warranted,
a contractor's or subcontractor's failure to respond to the challenge notice cannot be the
sole basis for issuing a final decision denying the validity of an asserted restriction.

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227.7102-1 Policy.
(a) DoD shall acquire only the technical data customarily provided to the public
with a commercial item or process, except technical data that—
(1) Are form, fit, or function data;
(2) Are required for repair or maintenance of commercial items or processes, or
for the proper installation, operating, or handling of a commercial item, either as a
stand alone unit or as a part of a military system, when such data are not customarily
provided to commercial users or the data provided to commercial users is not sufficient
for military purposes; or
(3) Describe the modifications made at Government expense to a commercial
item or process in order to meet the requirements of a Government solicitation.
(b) To encourage offerors and contractors to offer or use commercial products to
satisfy military requirements, offerors and contractors shall not be required, except for
the technical data described in paragraph (a) of this subsection, to—
(1) Furnish technical information related to commercial items or processes that
is not customarily provided to the public; or
(2) Relinquish to, or otherwise provide, the Government rights to use, modify,
reproduce, release, perform, display, or disclose technical data pertaining to commercial
items or processes except for a transfer of rights mutually agreed upon.
227.7102-2 Rights in technical data.
(a) The clause at 252.227-7015, Technical Data--Commercial Items, provides the
Government specific license rights in technical data pertaining to commercial items or
processes. DoD may use, modify, reproduce, release, perform, display, or disclose data
only within the Government. The data may not be used to manufacture additional
quantities of the commercial items and, except for emergency repair or overhaul, may
not be released or disclosed to, or used by, third parties without the contractor's written
permission. Those restrictions do not apply to the technical data described in 227.71021(a).
(b) If additional rights are needed, contracting activities must negotiate with the
contractor to determine if there are acceptable terms for transferring such rights. The
specific additional rights granted to the Government shall be enumerated in a license
agreement made part of the contract.
227.7102-3 Contract clause.
(a) Except as provided in paragraph (b) of this subsection, use the clause at 252.2277015, Technical Data--Commercial Items, in all solicitations and contracts when the
contractor will be required to deliver technical data pertaining to commercial items,
components, or processes. Do not require the contractor to include this clause in its
subcontracts.

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(b) Use the clause at 252.227-7013, Rights in Technical Data--Noncommercial
Items, in lieu of the clause at 252.227-7015 if the Government will pay any portion of
the development costs. Do not require the contractor to include this clause in its
subcontracts for commercial items or commercial components.
(c) Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical
Data, in all solicitations and contracts for commercial items that include the clause at
252.227-7015 or the clause at 252.227-7013. Do not require the contractor to include
this clause in its subcontracts for commercial items or commercial components.
227.7103 Noncommercial items or processes.
227.7103-1 Policy.
(a) DoD policy is to acquire only the technical data, and the rights in that data,
necessary to satisfy agency needs.
(b) Solicitations and contracts shall—
(1) Specify the technical data to be delivered under a contract and delivery
schedules for the data;
(2) Establish or reference procedures for determining the acceptability of
technical data;
(3) Establish separate contract line items, to the extent practicable, for the
technical data to be delivered under a contract and require offerors and contractors to
price separately each deliverable data item; and
(4) Require offerors to identify, to the extent practicable, technical data to be
furnished with restrictions on the Government's rights and require contractors to
identify technical data to be delivered with such restrictions prior to delivery.
(c) Offerors shall not be required, either as a condition of being responsive to a
solicitation or as a condition for award, to sell or otherwise relinquish to the
Government any rights in technical data related to items, components or processes
developed at private expense except for the data identified at 227.7103-5(a)(2) and (a)(4)
through (9).
(d) Offerors and contractors shall not be prohibited or discouraged from furnishing
or offering to furnish items, components, or processes developed at private expense
solely because the Government's rights to use, modify, release, reproduce, perform,
display, or disclose technical data pertaining to those items may be restricted.
(e) As provided in 10 U.S.C. 2305, solicitations for major systems development
contracts shall not require offerors to submit proposals that would permit the
Government to acquire competitively items identical to items developed at private
expense unless a determination is made at a level above the contracting officer that—
(1) The offeror will not be able to satisfy program schedule or delivery
requirements; or

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Part 227—Patents, Data, and Copyrights

(2) The offeror's proposal to meet mobilization requirements does not satisfy
mobilization needs.
227.7103-2 Acquisition of technical data.
(a) Contracting officers shall work closely with data managers and requirements
personnel to assure that data requirements included in solicitations are consistent with
the policy expressed in 227.7103-1.
(b)(1) Data managers or other requirements personnel are responsible for
identifying the Government's minimum needs for technical data. Data needs must be
established giving consideration to the contractor's economic interests in data
pertaining to items, components, or processes that have been developed at private
expense; the Government's costs to acquire, maintain, store, retrieve, and protect the
data; reprocurement needs; repair, maintenance and overhaul philosophies; spare and
repair part considerations; and whether procurement of the items, components, or
processes can be accomplished on a form, fit, or function basis. When it is anticipated
that the Government will obtain unlimited or government purpose rights in technical
data that will be required for competitive spare or repair parts procurements, such data
should be identified as deliverable data items. Reprocurement needs may not be a
sufficient reason to acquire detailed manufacturing or process data when items or
components can be acquired using performance specifications, form, fit and function
data, or when there are a sufficient number of alternate sources which can reasonably
be expected to provide such items on a performance specification or form, fit, or function
basis.
(2) When reviewing offers received in response to a solicitation or other request
for data, data managers must balance the original assessment of the Government's
data needs with data prices contained in the offer.
(c) Contracting officers are responsible for ensuring that, wherever practicable,
solicitations and contracts—
(1) Identify the type and quantity of the technical data to be delivered under
the contract and the format and media in which the data will be delivered;
(2) Establish each deliverable data item as a separate contract line item (this
requirement may be satisfied by listing each deliverable data item on an exhibit to the
contract);
(3) Identify the prices established for each deliverable data item under a fixedprice type contract;
(4) Include delivery schedules and acceptance criteria for each deliverable data
item; and
(5) Specifically identify the place of delivery for each deliverable item of
technical data.

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227.7103-3 Early identification of technical data to be furnished to the
Government with restrictions on use, reproduction or disclosure.
(a) 10 U.S.C. 2320 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 252.227-7017, Identification and Assertion of Use, Release,
or Disclosure Restrictions, in all solicitations that include the clause at 252.227-7013,
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 252.227-7013 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 227.71036(a) and (b).
227.7103-4 License rights.
(a) Grant of license. The Government obtains rights in technical data, including a
copyright license, under an irrevocable license granted or obtained for the Government
by the contractor. The contractor or licensor retains all rights in the data not granted to
the Government. For technical data that pertain to items, components, or processes,
the scope of the license is generally determined by the source of funds used to develop
the item, component, or process. When the technical data do not pertain to items,
components, or processes, the scope of the license is determined by the source of funds
used to create the data.
(1) Technical data pertaining to items, components, or processes. Contractors
or licensors may, with some exceptions (see 227.7103-5(a)(2) and (a)(4) through (9)),
restrict the Government's rights to use, modify, release, reproduce, perform, display or
disclose technical data pertaining to items, components, or processes developed
exclusively at private expense (limited rights). They may not restrict the Government's
rights in items, components, or processes developed exclusively at Government expense
(unlimited rights) without the Government's approval. When an item, component, or
process is developed with mixed funding, the Government may use, modify, release,
reproduce, perform, display or disclose the data pertaining to such items, components,
or processes within the Government without restriction but may release or disclose the
data outside the Government only for government purposes (government purpose
rights).
(2) Technical data that do not pertain to items, components, or processes.
Technical data may be created during the performance of a contract for a conceptual
design or similar effort that does not require the development, manufacture,
construction, or production of items, components or processes. The Government
generally obtains unlimited rights in such data when the data were created exclusively
with Government funds, government purpose rights when the data were created with
mixed funding, and limited rights when the data were created exclusively at private
expense.

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(b) Source of funds determination. The determination of the source of development
funds for technical data pertaining to items, components, or processes should be made
at any practical sub-item or sub-component level or for any segregable portion of a
process. Contractors may assert limited rights in a segregable sub-item, subcomponent, or portion of a process which otherwise qualifies for limited rights under
the clause at 252.227-7013, Rights in Technical Data--Noncommercial Items.
227.7103-5 Government rights.
The standard license rights that a licensor grants to the Government are unlimited
rights, government purpose rights, or limited rights. Those rights are defined in the
clause at 252.227-7013, Rights in Technical Data--Noncommercial Items. In unusual
situations, the standard rights may not satisfy the Government's needs or the
Government may be willing to accept lesser rights in data in return for other
consideration. In those cases, a special license may be negotiated. However, the
licensor is not obligated to provide the Government greater rights and the contracting
officer is not required to accept lesser rights than the rights provided in the standard
grant of license. The situations under which a particular grant of license applies are
enumerated in paragraphs (a) through (d) of this subsection.
(a) Unlimited rights. The Government obtains unlimited rights in technical data
that are—
(1) Data pertaining to an item, component, or process which has been or will be
developed exclusively with Government funds;
(2) Studies, analyses, test data, or similar data produced in the performance of
a contract when the study, analysis, test, or similar work was specified as an element of
performance;
(3) 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;
(5) Necessary for installation, operation, maintenance, or training purposes
(other than detailed manufacturing or process data);
(6) Corrections or changes to technical data furnished to the contractor by the
Government;
(7) Publicly available or have 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
the software to another party or the sale or transfer of some or all of a business entity
or its assets to another party;
(8) Data in which the Government has obtained unlimited rights under another
Government contract or as a result of negotiations; or

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(9) Data furnished to the Government, under a Government contract or
subcontract thereunder, with—
(i) Government purpose license rights or limited rights and the restrictive
condition(s) has/have expired; or
(ii) Government purpose rights and the contractor's exclusive right to use
such data for commercial purposes has expired.
(b) Government purpose rights.
(1) The Government obtains government purpose rights in technical data—
(i) That pertain to items, components, or processes developed with mixed
funding except when the Government is entitled to unlimited rights as provided in
paragraphs (a)(2) and (a)(4) through (9) of this subsection; or
(ii) Created with mixed funding in the performance of a contract that does
not require the development, manufacture, construction, or production of items,
components, or processes.
(2) The period during which government purpose rights are effective is
negotiable. The clause at 252.227-7013 provides a nominal five-year period. Either
party may request a different period. Changes to the government purpose rights period
may be made at any time prior to delivery of the technical data without consideration
from either party. Longer periods should be negotiated when a five-year period does
not provide sufficient time to apply the data for commercial purposes or when necessary
to recognize subcontractors' interests in the data.
(3) The government purpose rights period commences upon execution of the
contract, subcontract, letter contract (or similar contractual instrument), contract
modification, or option exercise that required the development. Upon expiration of the
Government rights period, the Government has unlimited rights in the data including
the right to authorize others to use the data for commercial purposes.
(4) During the government purpose rights period, the Government may not use,
or authorize other persons to use, technical data marked with government purpose
rights legends for commercial purposes. The Government shall not release or disclose
data in which it has government purpose rights to any person, or authorize others to do
so, unless—
(i) Prior to release or disclosure, the intended recipient is subject to the use
and non-disclosure agreement at 227.7103-7; or
(ii) The intended recipient is a Government contractor receiving access to
the data for performance of a Government contract that contains the clause at 252.2277025, Limitations on the Use or Disclosure of Government-Furnished Information
Marked with Restrictive Legends.
(5) When technical data marked with government purpose rights legends will
be released or disclosed to a Government contractor performing a contract that does not
include the clause at 252.227-7025, the contract may be modified, prior to release or
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disclosure, to include that clause in lieu of requiring the contractor to complete a use
and non-disclosure agreement.
(6) Contracting activities shall establish procedures to assure that technical
data marked with government purpose rights legends are released or disclosed,
including a release or disclosure through a Government solicitation, only to persons
subject to the use and non-disclosure restrictions. Public announcements in the
Commerce Business Daily or other publications must provide notice of the use and nondisclosure requirements. Class use and non-disclosure agreements (e.g., agreements
covering all solicitations received by the XYZ company within a reasonable period) are
authorized and may be obtained at any time prior to release or disclosure of the
government purpose rights data. Documents transmitting government purpose rights
data to persons under class agreements shall identify the technical data subject to
government purpose rights and the class agreement under which such data are
provided.
(c) Limited rights.
(1) The Government obtains limited rights in technical data—
(i) That pertain to items, components, or processes developed exclusively at
private expense except when the Government is entitled to unlimited rights as provided
in paragraphs (a)(2) and (a)(4) through (9) of this subsection; or
(ii) Created exclusively at private expense in the performance of a contract
that does not require the development, manufacture, construction, or production of
items, components, or processes.
(2) Data in which the Government has limited rights may not be used, released,
or disclosed outside the Government without the permission of the contractor asserting
the restriction except for a use, release or disclosure that is—
(i) Necessary for emergency repair and overhaul; or
(ii) To a foreign government, other than detailed manufacturing or process
data, when use, release, or disclosure is in the interest of the United States and is
required for evaluational or informational purposes.
(3) The person asserting limited rights must be notified of the Government's
intent to release, disclose, or authorize others to use such data prior to release or
disclosure of the data except notification of an intended release, disclosure, or use for
emergency repair or overhaul which shall be made as soon as practicable.
(4) When the person asserting limited rights permits the Government to
release, disclose, or have others use the data subject to restrictions on further use,
release, or disclosure, or for a release under paragraph (c)(2)(i) or (ii) of this subsection,
the intended recipient must complete the use and non-disclosure agreement at
227.7103-7 prior to release or disclosure of the limited rights data.

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(d) Specifically negotiated license rights.
(1) Negotiate specific licenses when the parties agree to modify the standard
license rights granted to the Government or when the Government wants to obtain
rights in data in which it does not have rights. When negotiating to obtain, relinquish,
or increase the Government's rights in technical data, consider the acquisition strategy
for the item, component, or process, including logistics support and other factors which
may have relevance for a particular procurement. The Government may accept lesser
rights when it has unlimited or government purpose rights in data but may not accept
less than limited rights in such data. The negotiated license rights must stipulate what
rights the Government has to release or disclose the data to other persons or to
authorize others to use the data. Identify all negotiated rights in a license agreement
made part of the contract.
(2) When the Government needs additional rights in data acquired with
government purpose or limited rights, the contracting officer must negotiate with the
contractor to determine whether there are acceptable terms for transferring such
rights. Generally, such negotiations should be conducted only when there is a need to
disclose the data outside the Government or if the additional rights are required for
competitive reprocurement and the anticipated savings expected to be obtained through
competition are estimated to exceed the acquisition cost of the additional rights. Prior
to negotiating for additional rights in limited rights data, consider alternatives such
as—
(i) Using performance specifications and form, fit, and function data to
acquire or develop functionally equivalent items, components, or processes;
(ii) Obtaining a contractor's contractual commitment to qualify additional
sources and maintain adequate competition among the sources; or
(iii) Reverse engineering, or providing items from Government inventories
to contractors who request the items to facilitate the development of equivalent items
through reverse engineering.
227.7103-6 Contract clauses.
(a) Use the clause at 252.227-7013, Rights in Technical Data--Noncommercial
Items, in solicitations and contracts when the successful offeror(s) will be required to
deliver technical data to the Government. Do not use the clause when the only
deliverable items are computer software or computer software documentation (see
227.72), commercial items (see 227.7102-3), existing works (see 227.7105), special
works (see 227.7106), or when contracting under the Small Business Innovation
Research Program (see 227.7104). Except as provided in 227.7107-2, do not use the
clause in architect-engineer and construction contracts.
(b) Use the clause at 252.227-7013 with its Alternate I in research contracts when
the contracting officer determines, in consultation with counsel, that public
dissemination by the contractor would be—
(1) In the interest of the Government; and

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(2) Facilitated by the Government relinquishing its right to publish the work
for sale, or to have others publish the work for sale on behalf of the Government.

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(c) Use the clause at 252.227-7025, Limitations on the Use or Disclosure of
Government Furnished Information Marked with Restrictive Legends, in solicitations
and contracts when it is anticipated that the Government will provide the contractor,
for performance of its contract, technical data marked with another contractor's
restrictive legend(s).
(d) Use the provision at 252.227-7028, Technical Data or Computer Software
Previously Delivered to the Government, in solicitations when the resulting contract
will require the contractor to deliver technical data. The provision requires offerors to
identify any technical data specified in the solicitation as deliverable data items that
are the same or substantially the same as data items the offeror has delivered or is
obligated to deliver, either as a contractor or subcontractor, under any other federal
agency contract.
(e) Use the following clauses in solicitations and contracts that include the clause at
252.227-7013:
(1) 252.227-7016, Rights in Bid or Proposal Information;
(2) 252.227-7030, Technical Data--Withholding of Payment; and
(3) 252.227-7037, Validation of Restrictive Markings on Technical Data
(paragraph (e) of the clause contains information that must be included in a challenge).
227.7103-7 Use and non-disclosure agreement.
(a) Except as provided in paragraph (b) of this subsection, technical data or
computer software delivered to the Government with restrictions on use, modification,
reproduction, release, performance, display, or disclosure may not be provided to third
parties unless the intended recipient completes and signs the use and non-disclosure
agreement at paragraph (c) of this subsection prior to release, or disclosure of the data.
(1) The specific conditions under which an intended recipient will be authorized
to use, modify, reproduce, release, perform, display, or disclose technical data subject to
limited rights or computer software subject to restricted rights must be stipulated in an
attachment to the use and non-disclosure agreement.
(2) For an intended release, disclosure, or authorized use of technical data or
computer software subject to special license rights, modify paragraph (1)(d) of the use
and non-disclosure agreement to enter the conditions, consistent with the license
requirements, governing the recipient's obligations regarding use, modification,
reproduction, release, performance, display or disclosure of the data or software.
(b) The requirement for use and non-disclosure agreements does not apply to
Government contractors which require access to a third party's data or software for the
performance of a Government contract that contains the clause at 252.227-7025,
Limitations on the Use or Disclosure of Government-Furnished Information Marked
with Restrictive Legends.
(c) The prescribed use and non-disclosure agreement is:
Use and Non-Disclosure Agreement
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The undersigned, __________(Insert Name)__________, an authorized
representative of the __________(Insert Company Name)__________, (which
is hereinafter referred to as the “Recipient”) requests the Government to
provide the Recipient with technical data or computer software (hereinafter
referred to as “Data”) in which the Government's use, modification,
reproduction, release, performance, display or disclosure rights are
restricted. Those Data are identified in an attachment to this Agreement.
In consideration for receiving such Data, the Recipient agrees to use the
Data strictly in accordance with this Agreement:
(1) The Recipient shall—
(a) Use, modify, reproduce, release, perform, display, or disclose
Data marked with government purpose rights or SBIR data rights legends
only for government purposes and shall not do so for any commercial
purpose. The Recipient shall not release, perform, display, or disclose these
Data, without the express written permission of the contractor whose name
appears in the restrictive legend (the “Contractor”), to any person other than
its subcontractors or suppliers, or prospective subcontractors or suppliers,
who require these Data to submit offers for, or perform, contracts with the
Recipient. The Recipient shall require its subcontractors or suppliers, or
prospective subcontractors or suppliers, to sign a use and non-disclosure
agreement prior to disclosing or releasing these Data to such persons. Such
agreement must be consistent with the terms of this agreement.
(b) Use, modify, reproduce, release, perform, display, or disclose
technical data marked with limited rights legends only as specified in the
attachment to this Agreement. Release, performance, display, or disclosure
to other persons is not authorized unless specified in the attachment to this
Agreement or expressly permitted in writing by the Contractor. The
Recipient shall promptly notify the Contractor of the execution of this
Agreement and identify the Contractor's Data that has been or will be
provided to the Recipient, the date and place the Data were or will be
received, and the name and address of the Government office that has
provided or will provide the Data.
(c) Use computer software marked with restricted rights legends
only in performance of Contract Number __________(insert contract
number(s))__________. The recipient shall not, for example, enhance,
decompile, disassemble, or reverse engineer the software; time share, or use
a computer program with more than one computer at a time. The recipient
may not release, perform, display, or disclose such software to others unless
expressly permitted in writing by the licensor whose name appears in the
restrictive legend. The Recipient shall promptly notify the software licensor
of the execution of this Agreement and identify the software that has been
or will be provided to the Recipient, the date and place the software were or
will be received, and the name and address of the Government office that
has provided or will provide the software.

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(d) Use, modify, reproduce, release, perform, display, or disclose
Data marked with special license rights legends (To be completed by the
contracting officer. See 227.7103-7(a)(2). Omit if none of the Data
requested is marked with special license rights legends).
(2) The Recipient agrees to adopt or establish operating procedures and
physical security measures designed to protect these Data from inadvertent
release or disclosure to unauthorized third parties.
(3) The Recipient agrees to accept these Data “as is” without any
Government representation as to suitability for intended use or warranty
whatsoever. This disclaimer does not affect any obligation the Government
may have regarding Data specified in a contract for the performance of that
contract.
(4) The Recipient may enter into any agreement directly with the
Contractor with respect to the use, modification, reproduction, release,
performance, display, or disclosure of these Data.
(5) The Recipient agrees to indemnify and hold harmless the
Government, its agents, and employees from every claim or liability,
including attorneys fees, court costs, and expenses arising out of, or in any
way related to, the misuse or unauthorized modification, reproduction,
release, performance, display, or disclosure of Data received from the
Government with restrictive legends by the Recipient or any person to
whom the Recipient has released or disclosed the Data.
(6) The Recipient is executing this Agreement for the benefit of the
Contractor. The Contractor is a third party beneficiary of this Agreement
who, in addition to any other rights it may have, is intended to have the
rights of direct action against the Recipient or any other person to whom the
Recipient has released or disclosed the Data, to seek damages from any
breach of this Agreement or to otherwise enforce this Agreement.
(7) The Recipient agrees to destroy these Data, and all copies of the Data
in its possession, no later than 30 days after the date shown in paragraph
(8) of this Agreement, to have all persons to whom it released the Data do so
by that date, and to notify the Contractor that the Data have been
destroyed.
(8) This Agreement shall be effective for the period commencing with the
Recipient's execution of this Agreement and ending upon _________(Insert
Date)_________. The obligations imposed by this Agreement shall survive
the expiration or termination of the Agreement.

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Recipient's Business Name

_________________________________

By____________________________
Authorized Representative

_________________________________
Date

Representative’s Typed Name
and Title

_________________________________
_________________________________

(End of use and non-disclosure agreement)
227.7103-8 Deferred delivery and deferred ordering of technical data.
(a) Deferred delivery. Use the clause at 252.227-7026, Deferred Delivery of
Technical Data or Computer Software, when it is in the Government's interests to
defer the delivery of technical data. The clause permits the contracting officer to
require the delivery of technical data identified as “deferred delivery” data at any time
until two years after acceptance by the Government of all items (other than technical
data or computer software) under the contract or contract termination, whichever is
later. The obligation of subcontractors or suppliers to deliver such technical data
expires two years after the date the prime contractor accepts the last item from the
subcontractor or supplier for use in the performance of the contract. The contract
must specify which technical data is subject to deferred delivery. The contracting
officer shall notify the contractor sufficiently in advance of the desired delivery date for
such data to permit timely delivery.
(b) Deferred ordering. Use the clause at 252.227-7027, Deferred Ordering of
Technical Data or Computer Software, when a firm requirement for a particular data
item(s) has not been established prior to contract award but there is a potential need
for the data. Under this clause, the contracting officer may order any data that has
been generated in the performance of the contract or any subcontract thereunder at
any time until three years after acceptance of all items (other than technical data or
computer software) under the contract or contract termination, whichever is later. The
obligation of subcontractors to deliver such data expires three years after the date the
contractor accepts the last item under the subcontract. When the data are ordered, the
delivery dates shall be negotiated and the contractor compensated only for converting
the data into the prescribed form, reproduction costs, and delivery costs.
227.7103-9 Copyright.
(a) Copyright license.
(1) The clause at 252.227-7013, Rights in Technical Data--Noncommercial
Items, requires a contractor to grant or obtain for the Government license rights which
permit the Government to reproduce data, distribute copies of the data, publicly
perform or display the data or, through the right to modify data, prepare derivative
works. The extent to which the Government, and others acting on its behalf, may
exercise these rights varies for each of the standard data rights licenses obtained
under the clause. When non-standard license rights in technical data will be
negotiated, negotiate the extent of the copyright license concurrent with negotiations
for the data rights license. Do not negotiate a copyright license that provides less
rights than the standard limited rights license in technical data.

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(2) The clause at 252.227-7013 does not permit a contractor to incorporate a
third party's copyrighted data into a deliverable data item unless the contractor has
obtained an appropriate license for the Government and, when applicable, others
acting on the Government's behalf, or has obtained the contracting officer's written
approval to do so. Grant approval to use third party copyrighted data in which the
Government will not receive a copyright license only when the Government's
requirements cannot be satisfied without the third party material or when the use of
the third party material will result in cost savings to the Government which outweigh
the lack of a copyright license.
(b) Copyright considerations--acquisition of existing and special works. See
227.7105 or 227.7106 for copyright considerations when acquiring existing or special
works.
227.7103-10 Contractor identification and marking of technical data to be
furnished with restrictive markings.
(a) Identification requirements.
(1) The solicitation provision at 252.227-7017, Identification and Assertion of
Use, Release, or Disclosure Restrictions, requires offerors to identify to the contracting
officer, prior to contract award, any technical data that the offeror asserts should be
provided to the Government with restrictions on use, modification, reproduction,
release or disclosure. This requirement does not apply to restrictions based solely on
copyright. The notification and identification must be submitted as an attachment to
the offer. If an offeror fails to submit the attachment or fails to complete the
attachment in accordance with the requirements of the solicitation provision, such
failure shall constitute a minor informality. Provide offerors an opportunity to remedy
a minor informality in accordance with the procedures at FAR 14.405 or 15.607. An
offeror's failure to correct the informality within the time prescribed by the contracting
officer shall render the offer ineligible for award.
(2) The procedures for correcting minor informalities shall not be used to
obtain information regarding asserted restrictions or an offeror's suggested asserted
rights category. Questions regarding the justification for an asserted restriction or
asserted rights category must be pursued in accordance with the procedures at
227.7103-13.
(3) The restrictions asserted by a successful offeror shall be attached to its
contract unless, in accordance with the procedures at 227.7103-13, the parties have
agreed that an asserted restriction is not justified. The contract attachment shall
provide the same information regarding identification of the technical data, the
asserted rights category, the basis for the assertion, and the name of the person
asserting the restrictions as required by paragraph (d) of the solicitation provision at
252.227-7017. Subsequent to contract award, the clause at 252.227-7013, Rights in
Technical Data--Noncommercial Items, permits the contractor to make additional
assertions under certain conditions. The additional assertions must be made in
accordance with the procedures and in the format prescribed by that clause.
(4) Neither the pre- or post-award assertions made by the contractor, nor the
fact that certain assertions are identified in the attachment to the contract, determine

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the respective rights of the parties. As provided at 227.7103-13, the Government has
the right to review, verify, challenge and validate restrictive markings.
(5) Information provided by offerors in response to the solicitation provision
may be used in the source selection process to evaluate the impact on evaluation
factors that may be created by restrictions on the Government's ability to use or
disclose technical data. However, offerors shall not be prohibited from offering
products for which the offeror is entitled to provide the Government limited rights in
the technical data pertaining to such products and offerors shall not be required, either
as a condition of being responsive to a solicitation or as a condition for award, to sell or
otherwise relinquish any greater rights in technical data when the offeror is entitled to
provide the technical data with limited rights.
(b) Contractor marking requirements. The clause at 252.227-7013, Rights in
Technical Data--Noncommercial Items—
(1) Requires a contractor that desires to restrict the Government's rights in
technical data to place restrictive markings on the data, provides instructions for the
placement of the restrictive markings, and authorizes the use of certain restrictive
markings; and
(2) Requires a contractor to deliver, furnish, or otherwise provide to the
Government any technical data in which the Government has previously obtained
rights with the Government's pre-existing rights in that data unless the parties have
agreed otherwise or restrictions on the Government's rights to use, modify, reproduce,
release, perform, display, or disclose the data have expired. When restrictions are still
applicable, the contractor is permitted to mark the data with the appropriate
restrictive legend for which the data qualified.
(c) Unmarked technical data.
(1) Technical data delivered or otherwise provided under a contract without
restrictive markings shall be presumed to have been delivered with unlimited rights
and may be released or disclosed without restriction. 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 technical data
pending evaluation of the request.
(2) A contractor may request permission to have appropriate legends placed on
unmarked technical data at its expense. The request must be received by the
contracting officer within six months following the furnishing or delivery of such data,
or any extension of that time approved by the contracting officer. The person making
the request must:
(i) Identify the technical data that should have been marked;
(ii) Demonstrate that the omission of the marking was inadvertent, the
proposed marking is justified and conforms with the requirements for the marking of
technical data contained in the clause at 252.227-7013; and

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(iii) Acknowledge, in writing, that the Government has no liability with
respect to any disclosure, reproduction, or use of the technical data made prior to the
addition of the marking or resulting from the omission of the marking.
(3) Contracting officers should grant permission to mark only if the technical
data were not distributed outside the Government or were distributed outside the
Government with restrictions on further use or disclosure.
227.7103-11 Contractor procedures and records.
(a) The clause at 252.227-7013, Rights in Technical Data--Noncommercial Items,
requires a contractor, and its subcontractors or suppliers that will deliver technical
data with other than unlimited rights, to establish and follow written procedures to
assure that restrictive markings are used only when authorized and to maintain
records to justify the validity of asserted restrictions on delivered data.
(b) The clause at 252.227-7037, Validation of Restrictive Markings on Technical
Data requires contractors and their subcontractors at any tier to maintain records
sufficient to justify the validity of restrictive markings on technical data delivered or to
be delivered under a Government contract.
227.7103-12 Government right to establish conformity of markings.
(a) Nonconforming markings.
(1) Authorized markings are identified in the clause at 252.227-7013, Rights in
Technical Data--Noncommercial Items. 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 252.227-7013 is also a nonconforming
marking.
(2) The correction of nonconforming markings on technical data is not subject
to 252.227-7037, Validation of Restrictive Markings on Technical Data. To the extent
practicable, the contracting officer should return technical data bearing nonconforming
markings to the person who has placed the nonconforming markings on such data to
provide that person an opportunity to correct or strike the nonconforming marking at
that person's expense. If that person fails to correct the nonconformity and return the
corrected data within 60 days following the person's receipt of the data, the contracting
officer may correct or strike the nonconformity at that person's expense. When it is
impracticable to return technical data for correction, contracting officers may
unilaterally correct any nonconforming markings at Government expense. Prior to
correction, the data may be used in accordance with the proper restrictive marking.
(b) Unjustified markings.
(1) An unjustified marking is an authorized marking that does not depict
accurately restrictions applicable to the Government's use, modification, reproduction,
release, performance, display, or disclosure of the marked technical data. For example,
a limited rights legend placed on technical data pertaining to items, components, or
processes that were 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.
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(2) Contracting officers have the right to review and challenge the validity of
unjustified markings. 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—
(i) Strike or correct the unjustified marking at that person's expense; or
(ii) Return the technical data to the person asserting the restriction for
correction at that person's expense. If the data are returned and that person fails to
correct or strike the unjustified restriction and return the corrected data to the
contracting officer within 60 days following receipt of the data, the unjustified marking
shall be corrected or stricken at that person's expense.
227.7103-13 Government right to review, verify, challenge and validate
asserted restrictions.
(a) General. An offeror's assertion(s) of restrictions on the Government's rights to
use, modify, reproduce, release, or disclose technical data do not, by themselves,
determine the extent of the Government's rights in the technical data. Under 10
U.S.C. 2321, the Government has the right to challenge asserted restrictions when
there are reasonable grounds to question the validity of the assertion and continued
adherence to the assertion would make it impractical to later procure competitively the
item to which the data pertain.
(b) Pre-award considerations. The challenge procedures required by 10 U.S.C.
2321 could significantly delay awards under competitive procurements. Therefore,
avoid challenging asserted restrictions prior to a competitive contract award unless
resolution of the assertion is essential for successful completion of the procurement.
(c) Challenge and validation. Contracting officers must have reasonable grounds
to challenge the current validity of an asserted restriction. Before issuing a challenge
to an asserted restriction, carefully consider all available information pertaining to the
assertion. All challenges must be made in accordance with the provisions of the clause
at 252.227-7037, Validation of Restrictive Markings on Technical Data.
(1) Challenge period. Asserted restrictions should be reviewed before
acceptance of technical data deliverable under the contract. Assertions must be
challenged within three years after final payment under the contract or three years
after delivery of the data, whichever is later. However, restrictive markings may be
challenged at any time if the technical data—
(i) Are publicly available without restrictions;
(ii) Have been provided to the United States without restriction; or
(iii) Have been otherwise made available without restriction other than a
release or disclosure resulting from the sale, transfer, or other assignment of interest
in the technical data to another party or the sale or transfer of some or all of a business
entity or its assets to another party.

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(2) Pre-challenge requests for information.
(i) After consideration of the situations described in paragraph (c)(3) 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 ascertain the basis of
the restrictive markings. Additional supporting documentation may be requested
when the explanation provided by the person making the assertion does not, in the
contracting officer's opinion, establish the validity of the assertion.
(ii) If the person asserting the restriction fails to respond to the contracting
officer's request for information or additional supporting documentation, or if the
information submitted or any other available information pertaining to the validity of
a restrictive marking does not justify the asserted restriction, a challenge should be
considered.
(3) Transacting matters directly with subcontractors. The clause at 252.2277037 obtains the contractor's agreement that the Government may transact matters
under the clause directly with a subcontractor, at any tier, without creating or
implying privity of contract. Contracting officers should permit a subcontractor or
supplier to transact challenge and validation matters directly with the Government
when—
(i) A subcontractor's or supplier's business interests in its technical data
would be compromised if the data were disclosed to a higher tier contractor;
(ii) There is reason to believe that the contractor will not respond in a
timely manner to a challenge and an untimely response would jeopardize a
subcontractor's or supplier's right to assert restrictions; or
(iii) Requested to do so by a subcontractor or supplier.
(4) Challenge notice. Do not issue a challenge notice unless there are
reasonable grounds to question the validity of an assertion. Assertions may be
challenged whether or not supporting documentation was requested from the person
asserting the restriction. Challenge notices must be in writing and issued to the
contractor or, after consideration of the situations described in paragraph (c)(3) of this
subsection, the person asserting the restriction. The challenge notice must include the
information in paragraph (e) of the clause at 252.227-7037.
(5) Extension of response time. The contracting officer, at his or her discretion,
may extend the time for response contained in a challenge notice, as appropriate, if the
contractor submits a timely written request showing the need for additional time to
prepare a response.
(6) Contracting officer's final decision. Contracting officers must issue a final
decision for each challenged assertion, whether or not the assertion has been justified.
(i) A contracting officer's final decision that an assertion is not justified
must be issued as soon as practicable following the failure of the person asserting the
restriction to respond to the contracting officer's challenge within 60 days, or any
extension to that time granted by the contracting officer.
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(ii) A contracting officer who, following a challenge and response by the
person asserting the restriction, determines that an asserted restriction is justified,
shall issue a final decision sustaining the validity of the asserted restriction. If the
asserted restriction was made subsequent to submission of the contractor's offer, add
the asserted restriction to the contract attachment.
(iii) A contracting officer who determines that the validity of an asserted
restriction has not been justified shall issue a contracting officer's final decision within
the time frames prescribed in 252.227-7037. As provided in paragraph (g) of that
clause, 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.
(7) Multiple challenges to an 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.
(8) Validation. Only a contracting officer's final decision, or actions of an
agency board of contract appeals or a court of competent jurisdiction, that sustain the
validity of an asserted restriction constitute validation of the asserted restriction.
227.7103-14 Conformity, acceptance, and warranty of technical data.
(a) Statutory requirements. 10 U.S.C. 2320—
(1) Provides for the establishment of remedies applicable to technical data
found to be incomplete, inadequate, or not to satisfy the requirements of the contract
concerning such data; and
(2) Authorizes agency heads to withhold payments (or exercise such other
remedies an agency head considers appropriate) during any period if the contractor
does not meet the requirements of the contract pertaining to the delivery of technical
data.
(b) Conformity and acceptance.
(1) Solicitations and contracts requiring the delivery of technical data shall
specify the requirements the data must satisfy to be acceptable. Contracting officers,
or their authorized representatives, are responsible for determining whether technical
data tendered for acceptance conform to the contractual requirements.
(2) The clause at 252.227-7030, Technical Data--Withholding of Payment,
provides for withholding up to 10 percent of the contract price pending correction or
replacement of the nonconforming technical data or negotiation of an equitable
reduction in contract price. The amount subject to withholding may be expressed as a
fixed dollar amount or as a percentage of the contract price. In either case, the amount
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shall be determined giving consideration to the relative value and importance of the
data. For example—
(i) When the sole purpose of a contract is to produce the data, the relative
value of that data may be considerably higher than the value of data produced under a
contract where the production of the data is a secondary objective; or
(ii) When the Government will maintain or repair items, repair and
maintenance data may have a considerably higher relative value than data that
merely describe the item or provide performance characteristics.
(3) Do not accept technical data that do not conform to the contractual
requirements in all respects. Except for nonconforming restrictive markings (see
paragraph (b)(4) of this subsection), correction or replacement of nonconforming data,
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—
(i) The provisions of a contract clause providing for inspection and
acceptance of deliverables and remedies for nonconforming deliverables; or
(ii) The procedures at FAR 46.407(c) through (g), if the contract does not
contain an inspection clause providing remedies for nonconforming deliverables.
(4) Follow the procedures at 227.7103-12(a)(2) if nonconforming markings are
the sole reason technical data fail to conform to contractual requirements. The clause
at 252.227-7030 may be used to withhold an amount from payment, consistent with
the terms of the clause, pending correction of the nonconforming markings.
(c) Warranty.
(1) The intended use of the technical data and the cost, if any, to obtain the
warranty should be considered before deciding to obtain a data warranty (see FAR
46.703). The fact that a particular item, component, or process is or is not warranted
is not a consideration in determining whether or not to obtain a warranty for the
technical data that pertain to the item, component, or process. For example, a data
warranty should be considered if the Government intends to repair or maintain an
item and defective repair or maintenance data would impair the Government's
effective use of the item or result in increased costs to the Government.
(2) As prescribed in 246.710, use the clause at 252.246-7001, Warranty of
Data, and its alternates, or a substantially similar clause when the Government needs
a specific warranty of technical data.
227.7103-15 Subcontractor rights in technical data.
(a) 10 U.S.C. 2320 provides subcontractors at all tiers the same protection for their
rights in data as is provided to prime contractors. The clauses at 252.227-7013, Rights
in Technical Data--Noncommercial Items, and 252.227-7037, Validation of Restrictive
Markings on Technical Data, implement the statutory requirements.

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(b) 10 U.S.C. 2321 permits a subcontractor to transact directly with the
Government matters relating to the validation of its asserted restrictions on the
Government's rights to use or disclose technical data. The clause at 252.227-7037
obtains a contractor's agreement that the direct transaction of validation or challenge
matters with subcontractors at any tier does not establish or imply privity of contract.
When a subcontractor or supplier exercises its right to transact validation matters
directly with the Government, contracting officers shall deal directly with such
persons, as provided at 227.7103-13(c)(3).
(c) Require prime contractors whose contracts include the following clauses to
include those clauses, without modification except for appropriate identification of the
parties, in contracts with subcontractors or suppliers, at all tiers, who will be
furnishing technical data for non-commercial items in response to a Government
requirement:
(1) 252.227-7013, Rights in Technical Data--Noncommercial Items;
(2) 252.227-7025, Limitations on the Use or Disclosure of GovernmentFurnished Information Marked with Restrictive Legends;
(3) 252.227-7028, Technical Data or Computer Software Previously Delivered
to the Government; and
(4) 252.227-7037, Validation of Restrictive Markings on Technical Data.
(d) Do not require contractors to have their subcontractors or suppliers at any tier
relinquish rights in technical data to the contractor, a higher tier subcontractor, or to
the Government, as a condition for award of any contract, subcontract, purchase order,
or similar instrument except for the rights obtained by the Government under the
Rights in Technical Data--Noncommercial Items clause contained in the contractor's
contract with the Government.
227.7103-16 Providing technical data to foreign governments, foreign
contractors, or international organizations.
Technical data may be released or disclosed to foreign governments, foreign
contractors, or international organizations only if release or disclosure is otherwise
permitted both by Federal export controls and other national security laws or
regulations. Subject to such laws and regulations, the Department of Defense—
(a) May release or disclose technical data in which it has obtained unlimited rights
to such foreign entities or authorize the use of such data by those entities; and
(b) Shall not release or disclose technical data for which restrictions on use,
release, or disclosure have been asserted to foreign entities, or authorize the use of
technical data by those entities, unless the intended recipient is subject to the same
provisions as included in the use and non-disclosure agreement at 227.7103-7 and the
requirements of the clause at 252.227-7013, Rights in Technical Data--Noncommercial
Items, governing use, modification, reproduction, release, performance, display, or
disclosure of such data have been satisfied.
227.7103-17 Overseas contracts with foreign sources.

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(a) The clause at 252.227-7032, Rights in Technical Data and Computer Software
(Foreign), may be used in contracts with foreign contractors to be performed overseas,
except Canadian purchases (see paragraph (c) of this subsection), in lieu of the clause
at 252.227-7013, Rights in Technical Data--Noncommercial Items, when the
Government requires the unrestricted right to use, modify, reproduce, perform,
display, release or disclose all technical data to be delivered under the contract. Do not
use the clause in contracts for existing or special works.
(b) When the Government does not require unlimited rights, the clause at 252.2277032 may be modified to accommodate the needs of a specific overseas procurement
situation. The Government should obtain rights in the technical data that are not less
than the rights the Government would have obtained under the data rights clause(s)
prescribed in this part for a comparable procurement performed within the United
States or its outlying areas.
(c) Contracts for Canadian purchases shall include the appropriate data rights
clause prescribed in this part for a comparable procurement performed within the
United States or its outlying areas.
227.7104 Contracts under the Small Business Innovation Research (SBIR)
Program.
(a) Use the clause at 252.227-7018, Rights in Noncommercial Technical Data and
Computer Software--Small Business Innovation Research (SBIR) Program, when
technical data or computer software will be generated during performance of contracts
under the SBIR program.
(b) Under the clause at 252.227-7018, the Government obtains a royalty-free
license to use technical data marked with an SBIR data rights legend only for
government purposes during the period commencing with contract award and ending
five years after completion of the project under which the data were generated. Upon
expiration of the five-year restrictive license, the Government has unlimited rights in
the SBIR data. During the license period, the Government may not release or disclose
SBIR data to any person other than its support services contractors except—
(1) For evaluational purposes;
(2) As expressly permitted by the contractor; or
(3) A use, release, or disclosure that is necessary for emergency repair or
overhaul of items operated by the Government.
(c) Do not make any release or disclosure permitted by paragraph (b) of this section
unless, prior to release or disclosure, the intended recipient is subject to the use and
non-disclosure agreement at 227.7103-7.

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(d) Use the clause at 252.227-7018 with its Alternate I in research contracts when
the contracting officer determines, in consultation with counsel, that public
dissemination by the contractor would be—
(1) In the interest of the Government; and
(2) Facilitated by the Government relinquishing its right to publish the work
for sale, or to have others publish the work for sale on behalf of the Government.
(e) Use the following provision and clauses in SBIR solicitations and contracts that
include the clause at 252.227-7018:
(1) 252.227-7016, Rights in Bid or Proposal Information;
(2) 252.227-7017, Identification and Assertion of Use, Release, or Disclosure
Restrictions;
(3) 252.227-7019, Validation of Asserted Restrictions--Computer Software;
(4) 252.227-7030, Technical Data--Withholding of Payment; and
(5) 252.227-7037, Validation of Restrictive Markings on Technical Data
(paragraph (e) of the clause contains information that must be included in a challenge).
(f) Use the following clauses and provision in SBIR solicitations and contracts in
accordance with the guidance at 227.7103-6(c) and (d):
(1) 252.227-7025, Limitations on the Use or Disclosure of GovernmentFurnished Information Marked with Restrictive Legends; and
(2) 252.227-7028, Technical Data or Computer Software Previously Delivered
to the Government.
227.7105 Contracts for the acquisition of existing works.
227.7105-1 General.
(a) Existing works include motion pictures, television recordings, video recordings,
and other audiovisual works in any medium; sound recordings in any medium;
musical, dramatic, and literary works; pantomimes and choreographic works; pictorial,
graphic, and sculptural works; and works of a similar nature. Usually, these or
similar works were not first created, developed, generated, originated, prepared, or
produced under a Government contract. Therefore, the Government must obtain a
license in the work if it intends to reproduce the work, distribute copies of the work,
prepare derivative works, or perform or display the work publicly. When the
Government is not responsible for the content of an existing work, it should require the
copyright owner to indemnify the Government for liabilities that may arise out of the
content, performance, use, or disclosure of such data.
(b) Follow the procedures at 227.7106 for works which will be first created,
developed, generated, originated, prepared, or produced under a Government contract
and the Government needs to control distribution of the work or has a specific need to
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obtain indemnity for liabilities that may arise out of the creation, content,
performance, use, or disclosure of the work or from libelous or other unlawful material
contained in the work. Follow the procedures at 227.7103 when the Government does
not need to control distribution of such works or obtain such indemnities.
227.7105-2 Acquisition of existing works without modification.
(a) Use the clause at 252.227-7021, Rights in Data--Existing Works, in lieu of the
clause at 252.227-7013, Rights in Technical Data--Noncommercial Items, in
solicitations and contracts exclusively for existing works when—
(1) The existing works will be acquired without modification; and
(2) The Government requires the right to reproduce, prepare derivative works,
or publicly perform or display the existing works; or
(3) The Government has a specific need to obtain indemnity for liabilities that
may arise out of the content, performance, use, or disclosure of such data.
(b) The clause at 252.227-7021 provides the Government, and others acting on its
behalf, a paid-up, non-exclusive, irrevocable, world-wide license to reproduce, prepare
derivative works and publicly perform or display the works called for by a contract and
to authorize others to do so for government purposes.
(c) A contract clause is not required to acquire existing works such as books,
magazines and periodicals, in any storage or retrieval medium, when the Government
will not reproduce the books, magazines or periodicals, or prepare derivative works.
227.7105-3 Acquisition of modified existing works.
Use the clause at 252.227-7020, Rights in Special Works, in solicitations and contracts
for modified existing works in lieu of the clause at 252.227-7021, Rights in Data-Existing Works.
227.7106 Contracts for special works.
(a) Use the clause at 252.227-7020, Rights in Special Works, in solicitations and
contracts where the Government has a specific need to control the distribution of
works first produced, created, or generated in the performance of a contract and
required to be delivered under that contract, including controlling distribution by
obtaining an assignment of copyright, or a specific need to obtain indemnity for
liabilities that may arise out of the creation, delivery, use, modification, reproduction,
release, performance, display, or disclosure of such works. Use the clause—
(1) In lieu of the clause at 252.227-7013, Rights in Technical Data-Noncommercial Items, when the Government must own or control copyright in all
works first produced, created, or generated and required to be delivered under a
contract; or
(2) In addition to the clause at 252.227-7013 when the Government must own
or control copyright in a portion of a work first produced, created, or generated and
required to be delivered under a contract. The specific portion in which the

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Government must own or control copyright must be identified in a special contract
requirement.
(b) Although the Government obtains an assignment of copyright and unlimited
rights in a special work under the clause at 252.227-7020, the contractor retains use
and disclosure rights in that work. If the Government needs to restrict a contractor's
rights to use or disclose a special work, it must also negotiate a special license which
specifically restricts the contractor's use or disclosure rights.
(c) The clause at 252.227-7020 does not permit a contractor to incorporate into a
special work any works copyrighted by others unless the contractor obtains the
contracting officer's permission to do so and obtains for the Government a nonexclusive, paid up, world-wide license to make and distribute copies of that work, to
prepare derivative works, to perform or display publicly any portion of the work, and to
permit others to do so for government purposes. Grant permission only when the
Government's requirements cannot be satisfied unless the third party work is included
in the deliverable work.
(d) Examples of works which may be procured under the Rights in Special Works
clause include, but are not limited, to audiovisual works, computer data bases,
computer software documentation, scripts, soundtracks, musical compositions, and
adaptations; histories of departments, agencies, services or units thereof; surveys of
Government establishments; instructional works or guidance to Government officers
and employees on the discharge of their official duties; reports, books, studies, surveys
or similar documents; collections of data containing information pertaining to
individuals that, if disclosed, would violate the right of privacy or publicity of the
individuals to whom the information relates; or investigative reports.
227.7107 Contracts for architect-engineer services.
This section sets forth policies and procedures, pertaining to data, copyrights, and
restricted designs unique to the acquisition of construction and architect-engineer
services.
227.7107-1 Architectural designs and data clauses for architect-engineer or
construction contracts.
(a) Except as provided in paragraph (b) of this subsection and in 227.7107-2, use
the clause at 252.227-7022, Government Rights (Unlimited), in solicitations and
contracts for architect-engineer services and for construction involving
architect-engineer services.
(b) When the purpose of a contract for architect-engineer services, or for
construction involving architect-engineer services, is to obtain a unique architectural
design of a building, a monument, or construction of similar nature, which for artistic,
aesthetic or other special reasons the Government does not want duplicated, the
Government may acquire exclusive control of the data pertaining to the design by
including the clause at 252.227-7023, Drawings and Other Data to Become Property of
Government, in solicitations and contracts.
(c) The Government shall obtain unlimited rights in shop drawings for
construction. In solicitations and contracts calling for delivery of shop drawings,
include the clause at 252.227-7033, Rights in Shop Drawings.
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227.7107-2 Contracts for construction supplies and research and
development work.
Use the provisions and clauses required by 227.7103-6 and 227.7203-6 when the
acquisition is limited to—
(a) Construction supplies or materials;
(b) Experimental, developmental, or research work, or test and evaluation studies
of structures, equipment, processes, or materials for use in construction; or
(c) Both.
227.7107-3 Approval of restricted designs.
The clause at 252.227-7024, Notice and Approval of Restricted Designs, may be
included in architect-engineer contracts to permit the Government to make informed
decisions concerning noncompetitive aspects of the design.
227.7108 Contractor data repositories.
(a) Contractor data repositories may be established when permitted by agency
procedures. The contractual instrument establishing the data repository must require,
as a minimum, the data repository management contractor to—
(1) Establish and maintain adequate procedures for protecting technical data
delivered to or stored at the repository from unauthorized release or disclosure;
(2) Establish and maintain adequate procedures for controlling the release or
disclosure of technical data from the repository to third parties consistent with the
Government's rights in such data;
(3) When required by the contracting officer, deliver data to the Government
on paper or in other specified media;
(4) Be responsible for maintaining the currency of data delivered directly by
Government contractors or subcontractors to the repository;
(5) Obtain use and non-disclosure agreements (see 227.7103-7) from all
persons to whom government purpose rights data is released or disclosed; and
(6) Indemnify the Government from any liability to data owners or licensors
resulting from, or as a consequence of, a release or disclosure of technical data made by
the data repository contractor or its officers, employees, agents, or representatives.
(b) If the contractor is or will be the data repository manager, the contractor's data
management and distribution responsibilities must be identified in the contract or the
contract must reference the agreement between the Government and the contractor
that establishes those responsibilities.
(c) If the contractor is not and will not be the data repository manager, do not
require a contractor or subcontractor to deliver technical data marked with limited
rights legends to a data repository managed by another contractor unless the
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contractor or subcontractor who has asserted limited rights agrees to release the data
to the repository or has authorized, in writing, the Government to do so.
(d) Repository procedures may provide for the acceptance, delivery, and
subsequent distribution of technical data in storage media other than paper, including
direct electronic exchange of data between two computers. The procedures must
provide for the identification of any portions of the data provided with restrictive
legends, when appropriate. The acceptance criteria must be consistent with the
authorized delivery format.

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