DFARS Publication 2025-01-17

227.7103-5 Government rights.

227.7103-6 Contract clauses.

− 227.7103-7 Use and non-disclosure agreement.

+ 227.7103-7 Use and nondisclosure agreement.

227.7103-8 Deferred delivery and deferred ordering of technical data.

227.7103-9 Copyright.

Part 234 - MAJOR SYSTEM ACQUISITION

− 234.001 Definition.

+ 234.001 Reserved.

+ 234.001-70 Definitions.

234.003 Responsibilities.

234.004 Acquisition strategy.

252.227-7016 Rights in Bid or Proposal Information.

252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions.

− 252.227-7018 Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program.

+ 252.227-7018 Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program .

252.227-7019 Validation of Asserted Restrictions—Computer Software.

252.227-7020 Rights in Special Works.

PGI 204.1870-1 Instructions to contracting officers.

PGI 204.1870-2 Maintenance of the CAGE file.

− PGI 204.70 -PROCUREMENT ACQUISITION LEAD TIME

− PGI 204.7001 Procedures.

+ PGI 204.70 - RESERVED

+ PGI 204.7001 Reserved.

PGI 204.71 -UNIFORM CONTRACT LINE ITEM NUMBERING SYSTEM

PGI 204.7103 Contract line items.

PGI 205.1 - DISSEMINATION OF INFORMATION

PGI 205.102 Availability of solicitations.

− PGI 205.102-70 Exception for prototype projects for follow-on production contracts.

+ PGI 205.102-70 Availability of DoD solicitations.

PGI 205.2 - SYNOPSES OF PROPOSED CONTRACT ACTIONS

PGI 205.205 Special situations.

PGI 227.7103 Other than commercial products, commercial services, or commercial processes.

PGI 227.7103-2 Acquisition of technical data.

+ PGI 227.7104 Contracts under the Small Business Innovation Research Program and Small Business Technology Transfer Program.

+ PGI 227.7104-1 Policy.

+ PGI 227.7104-2 Rights in SBIR or STTR data.

PGI 227.72 - COMPUTER SOFTWARE, COMPUTER SOFTWARE DOCUMENTATION, AND ASSOCIATED RIGHTS

PGI 227.7200 Scope of subpart.

− PGI 204.70 -PROCUREMENT ACQUISITION LEAD TIME

+ PGI 204.70 - RESERVED

− PGI 205.102-70 Exception for prototype projects for follow-on production contracts.

+ PGI 205.102-70 Availability of DoD solicitations.

(a) Policy. The Solicitation Module within the Procurement Integrated Enterprise Environment, accessible at , provides DoD a secure and auditable mechanism to request and receive proposals or quotes from industry.

(1) The Solicitation Module—

PGI 252.103 Identification of provisions and clauses.

− (c) Local provisions and clauses

− developed by departments and agencies for a single-use intended

− to meet the needs of an individual acquisition shall be identified

− by the title, date, and name of the department or agency that developed

− the local clause. For example, if “X” Agency negotiated a single-use

− clause for use of special government facilities during discussions,

− such clause would be identified in the contract as follows:

− “Special Use of Government Facilities (DATE) X Agency”

− (d)(1)(A) Local provisions and clauses

− that will be used on a repetitive basis shall be identified by—

− (1) The chapter assigned to the

− department or agency under Title 48 of the Code of Federal Regulations

− (CFR);

+ (c)(i) Identify local provisions and clauses developed by departments and agencies for a single use intended to meet the needs of an individual acquisition by—

+ (A) The issuing activity DoDAAC associated with the suborganization within a department or agency followed by a period;

+ (B) FAR subpart “52.2”;

+ (C) The applicable part and a dash;

+ (D) A four-digit sequential number starting with “9Z” followed by two variable, alphanumeric digits excluding the letters I and O;

+ (E) Title (limited to 255 characters); and

+ (F) Date (MMM YYYY).

+ (ii) For example, if “Y” issuing agency’s DoDAAC is “DOD123,” and “Y” agency has developed a local single-use clause for a contract’s terms and conditions titled, Contract Specific Terms for Foreign Military Sales Case, this single-use clause would be identified as follows (also see Figure 1): DOD123.52.225-9Z01 Contract Specific Terms for Foreign Military Sales Case (MMM YYYY).

+ Figure 1

+ (d)(1)(A) Local provisions and clauses that will be used on a repetitive basis shall be identified by—

+ (1) The chapter assigned to the department or agency under Title 48 of the Code of Federal Regulations (CFR);

(2) FAR subpart “52.2”;

(3) The applicable FAR part;

− (4) A four-digit sequential number

− in the 9000 series for the suffix (see DFARS 252.101(b)(2)(ii)(B));

+ (4) A four-digit sequential number in the 9000 series for the suffix (see DFARS 252.101(b)(2)(ii)(B));

(5) Title; and

(6) Date.

− (B) For example, if “Y” Agency is assigned

− a CFR chapter number 99, and has developed a provision regarding

− an evaluation factor for past performance to be used on a repetitive

− basis in negotiated acquisitions, such provision would be identified

− as follows:

+ (B) For example, if “Y” Agency is assigned a CFR chapter number 99, and has developed a provision regarding an evaluation factor for past performance to be used on a repetitive basis in negotiated acquisitions, such provision would be identified as follows:

“9952.215-9XXX Past Performance Evaluation Factor (DATE)”

(d) Disposition of findings.

(2) Initial determination.

− (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a significant deficiency, the contracting officer should provide an initial determination of deficiencies and a copy of the report to the contractor and require the contractor to submit a written response.

+ (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a material weakness, the contracting officer should provide an initial determination of material weaknesses and a copy of the report to the contractor and require the contractor to submit a written response.

(C) Evaluation of contractor's response. Within 30 days of receiving the contractor’s response, the contracting officer, in consultation with the auditor or cognizant functional specialist, should evaluate the contractor’s response and make a final determination.

− (3) Final Determination.

− (ii)(A) Monitoring contractor's corrective action. The contracting officer and property administrator shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies. Examples of actions the contracting officer can take are: withdraw or withhold approval of the system; bringing the issue to the attention of higher level management, implementing or increasing the withholding in accordance with the clause at 252.242-7005, Contractor Business Systems, and recommending non-award of potential contracts.

− (B) Correction of significant deficiencies.

− (1) When the contractor notifies the contracting officer that the contractor has corrected the significant deficiencies, the contracting officer shall request the property administrator to review the correction to determine if the deficiencies have been resolved.

− (2) The contracting officer shall determine if the contractor has corrected the deficiencies.

− (3) If the contracting officer determines the contractor has corrected the deficiencies, the contracting officer's notification shall be sent to the property administrator; auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

+ (3) Final

+ determination.

+ (ii)(A) Monitoring contractor's corrective action. The contracting officer, with the assistance of the auditor, shall monitor the contractor's progress in correcting material weaknesses and deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the weaknesses and deficiencies. Actions the contracting officer may take include: withdraw

+ ing or withholding approval of the system; bringing the issue to the attention of higher level management;

+ recommending non-award of potential contracts, as applicable; and for material weaknesses, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems.

+ (B) Correction of

+ material weaknesses.

+ (1) When the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request that the auditor review the correction to determine if the weaknesses and deficiencies have been resolved.

+ (2) The contracting officer shall determine if the contractor has corrected the weaknesses and deficiencies.

+ (3) If the contracting officer determines the contractor has corrected the weaknesses and deficiencies, send the contracting officer's notification to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

(7) Disposition of findings.

(ii) Initial determination.

− (B)(1) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a significant deficiency, the contracting officer should provide an initial determination of deficiencies and a copy of the report to the contractor and require the contractor to submit a written response.

+ (B)(1) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a material weakness, the contracting officer should provide an initial determination of material weaknesses and a copy of the report to the contractor and require the contractor to submit a written response.

(3) Evaluation of contractor's response. Within 30 days of receiving the contractor’s response, the contracting officer, in consultation with the auditor or cognizant functional specialist, should evaluate the contractor’s response and make a final determination.

− (iii) Final determination.

− (B)(1) Monitoring contractor's corrective action. The contracting officer and cognizant functional specialist or auditor shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies. Examples of actions the contracting officer can take are: bringing the issue to the attention of higher level management, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems.

− (2) Correction of significant deficiencies.

− (i) When the contractor notifies the contracting officer that the contractor has corrected the significant deficiencies, the contracting officer shall request the cognizant functional specialist or auditor to review the correction to determine if the deficiencies have been resolved.

− (ii) The contracting officer shall determine if the contractor has corrected the deficiencies.

− (iii) If the contracting officer determines the contractor has corrected the deficiencies, the contracting officer’s notification shall be sent to the cognizant functional specialist; auditor; payment office; appropriate action officers at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

+ (iii) Final

+ d

+ etermination.

+ (B)(1) Monitoring contractors’ corrective action. The contracting officer and cognizant functional specialist or auditor shall monitor the contractor's progress in correcting material weaknesses and deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the weaknesses and deficiencies. Actions the contracting officer may take include: withdraw or withhold approval of the system; bringing the issue to the attention of higher level management

+ , as applicable; recommending non-award of potential contracts; and for material weaknesses, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems.

+ (2) Correction of

+ material weaknesses.

+ (i) When the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request the cognizant functional specialist or auditor to review the correction to determine if the weaknesses and deficiencies have been resolved.

+ (ii) The contracting officer shall determine if the contractor has corrected the weaknesses and deficiencies.

+ (iii) If the contracting officer determines the contractor has corrected the weaknesses and deficiencies, send the contracting officer's notification to the cognizant functional specialist; auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

(c) Disposition of findings.

(2) Initial determination.

− (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a significant deficiency, the contracting officer should provide an initial determination of deficiencies and a copy of the report to the contractor and require the contractor to submit a written response.

+ (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a material weakness, the contracting officer should provide an initial determination of material weaknesses and a copy of the report to the contractor and require the contractor to submit a written response.

(C) Evaluation of contractor's response. Within 30 days of receiving the contractor’s response, the contracting officer, in consultation with the auditor or cognizant functional specialist, should evaluate the contractor’s response and make a final determination.

− (3) Final Determination.

− (ii)(A) Monitoring contractors’ corrective action. The contracting officer and Purchasing System Analyst (PSA) or auditor shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies. Examples of actions the contracting officer can take are: withdraw or withhold approval of the system; bringing the issue to the attention of higher level management, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems, and recommending non-award of potential contracts.

− (B) Correction of significant deficiencies.

− (1) When the contractor notifies the contracting officer that the contractor has corrected the significant deficiencies, the contracting officer shall request the PSA or auditor to review the correction to determine if the deficiencies have been resolved.

− (2) The contracting officer shall determine if the contractor has corrected the deficiencies.

+ (3) Final

+ determination.

+ (ii)(A) Monitoring contractors’ corrective action. The contracting officer and Purchasing System Analyst (PSA) or auditor shall monitor the contractor's progress in correcting material weaknesses and deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the weaknesses and deficiencies. Actions the contracting officer may take include: withdrawing or withholding approval of the system; bringing the issue to the attention of higher level management;

+ recommending non-award of potential contracts, as applicable; and for material weaknesses, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems.

+ (B) Correction of

+ material weaknesses.

+ (1) When the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request the PSA or auditor to review the correction to determine if the weaknesses and deficiencies have been resolved.

+ (2) The contracting officer shall determine if the contractor has corrected the weaknesses and deficiencies.

(3) If the contracting officer determines the contractor has corrected the deficiencies, the contracting officer's notification shall be sent to the PSA; auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

PGI 215.404-2 Data to support proposal analysis.

(a) Field pricing assistance.

− (i) The contracting officer should consider requesting field pricing assistance (See PGI

− 215.404-2

− (c) for when audit assistance should be requested) for—

+ See PGI 215.404-2(c) regarding when to request audit assistance.

+ (i) The contracting officer should consider requesting field pricing assistance for—

(A) Fixed-price proposals exceeding the certified cost or pricing data threshold;

− (B) Cost-type proposals exceeding the certified cost or pricing data threshold from offerors with significant estimating system deficiencies (see DFARS 215.407-5-70(a)(4) and (c)(2)(i)); or

− (C) Cost-type proposals exceeding $10 million from offerors without significant estimating system deficiencies.

+ (B) Cost-type proposals exceeding the certified cost or pricing data threshold from offerors with material weaknesses; or

+ (C) Cost-type proposals exceeding $10 million from offerors without material weaknesses.

(ii) The contracting officer should not request field pricing support for proposed contracts or modifications in an amount less than that specified in paragraph (a)(i) of this subsection. An exception may be made when a reasonable pricing result cannot be established because of—

(A) A lack of knowledge of the particular offeror; or

(e) Disposition of findings.

(2) Initial determination.

− (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a significant deficiency, the contracting officer should provide an initial determination of deficiencies and a copy of the report to the contractor and require the contractor to submit a written response.

+ (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a material weakness, the contracting officer should provide an initial determination of material weaknesses and a copy of the report to the contractor and require the contractor to submit a written response.

(C) Evaluation of contractor's response. Within 30 days of receiving the contractor’s response, the contracting officer, in consultation with the auditor or cognizant functional specialist, should evaluate the contractor’s response and make a final determination.

− (3) Final Determination.

− (ii)(A) Monitoring contractor's corrective action. The auditor and the contracting officer shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies. Examples of actions the contracting officer can take are: bringing the issue to the attention of higher level management, reducing or suspending progress payments (see FAR 32.503-6), implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems, if applicable, and recommending non-award of potential contracts.

− (B) Correction of significant deficiencies.

− (1) When the contractor notifies the contracting officer, in writing, that the contractor has corrected the significant deficiencies, the contracting officer shall request that the auditor review the correction to determine if the deficiencies have been resolved.

− (2) The contracting officer shall determine if the contractor has corrected the deficiencies.

− (3) If the contracting officer determines the contractor has corrected the deficiencies, the contracting officer's notification shall be sent to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor, as applicable.

+ (3) Final

+ d

+ etermination.

+ (ii)(A) Monitoring contractor's corrective action. The auditor and the contracting officer shall monitor the contractor's progress in correcting material weaknesses and deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the weaknesses anddeficiencies. Actions the contracting officer may take include: withdraw or withhold approval of the system; bringing the issue to the attention of higher level management; reducing or suspending progress payments (see FAR 32.503-6); recommending non-award of potential contracts, as applicable; and for material weaknesses, implementing or increasing the withholding in accordance with

+ 252.242-7005, Contractor Business Systems.

+ (B) Correction of

+ material weaknesses.

+ (1) When the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request that the auditor review the correction to determine if the weaknesses anddeficiencies have been resolved.

+ (2) The contracting officer shall determine if the contractor has corrected the weaknesses and deficiencies.

+ (3) If the contracting officer determines the contractor has corrected the weaknesses and deficiencies, send the contracting officer's notification to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor, as applicable.

PGI 225.770-4 Identifying USML items.

− (1) The 21 categories of items on the United States Munitions List (USML) can be found at http://www.pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_121.pdf. Where applicable, the categories also contain a statement with regard to the coverage of components and parts of items included in a category. For example, a category may include all components and parts of covered items, or only those components and parts specifically designed or modified for military use.

+ (1) The 21 categories of items on the United States Munitions List (USML) can be found at https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-121. Where applicable, the categories also contain a statement with regard to the coverage of components and parts of items included in a category. For example, a category may include all components and parts of covered items, or only those components and parts specifically designed or modified for military use.

(2) In addition to the list of covered items, the USML provides explanation of terms needed to determine whether a particular item is or is not covered by the USML.

(3) Within DoD, the experts on export control and the USML are in the Defense Technology Security Administration (DTSA).

final determinations to implement payment withholding:

Payment Withholding

− (i) The purpose of this final determination

− is to disapprove your [identify the contractor business system(s)] and

− implement payment withholding per the terms of the DFARS clause

− at 252.242-7005,

− Contractor Business Systems.

− (ii) It is my final determination that

− XXX System(s) contains the following significant deficiencies:

− —[list all significant deficiencies]

− (iii) Effective immediately, five percent

− (or a lesser percentage if five percent will exceed the withhold

− limitations in the DFARS clause at 252.242-7005)

− of each request for payment under the contracts in Attachment A

− will be withheld as described below for significant deficiencies

− in XXX system. Upon receipt of an acceptable corrective action plan

− and my determination that this corrective action plan is being effectively

− implemented, I will issue a notification with respect to reducing

− the percentage being withheld to two percent until I determine that

− all significant deficiencies, as identified in this final determination,

− have been corrected. Failure to follow the accepted corrective action plan

− will result in an increase in the percentage withheld against each

− payment under this contract to five percent (or a lesser percentage

− if five percent will exceed the withhold limitations in DFARS 252.242-7005).[Repeat

− this paragraph, as necessary, if multiple withholds are being applied

− to multiple systems in accordance with 252.242-7005(

− d)]

+ (i) The purpose of this final determination is to disapprove your [identify the contractor business system(s)] and implement payment withholding per the terms of the clause at DFARS

+ 252.242-7005, Contractor Business Systems.

+ (ii) It is my final determination that XXX System(s) contains the following material weaknesses:

+ --[list all

+ material weaknesses

+ ]

+ (iii) Effective immediately, five percent (or a lesser percentage if five percent will exceed the withhold limitations in the clause at DFARS

+ 252.242-7005) of each request for payment under the contracts in Attachment A will be withheld as described below for material weaknesses in XXX system. Upon receipt of an acceptable corrective action plan and my determination that this corrective action plan is being effectively implemented, I will issue a notification with respect to reducing the percentage being withheld to two percent until I determine that all material weaknesses, as identified in this final determination, have been corrected. Failure to follow the accepted corrective action plan will result in an increase in the percentage withheld against each payment under this contract to five percent (or a lesser percentage if five percent will exceed the withhold limitations in DFARS 252.242-7005). [Repeat this paragraph, as necessary, if multiple withholds are being applied to multiple systems in accordance with

+ 252.242-7005

+ (d)]

(iv) For payments under cost, labor-hour,

or time-and-material contracts: The Contractor shall apply a five

− PGI 204.7001 Procedures.

− (a) When conducting an acquisition with an estimated value greater than $250 million, agencies shall ensure planned and actual procurement administrative lead time (PALT) milestone dates are entered into the Procurement Integrated Enterprise Environment (PIEE) module. The PIEE module can be accessed at https://wawf.eb.mil/.

− (b) The “planned” date indicates when the milestone is initially expected to be completed and the “actual” date is when the milestone is complete.

− (c) The following PALT milestones shall be entered into the PIEE module, if applicable:

− (1) The acquisition strategy/acquisition plan approval date.

− (2) The date the justification and approval is approved.

− (3) The date a funded purchase request is received by the contracting officer.

− (4) The date a procurement-ready requirements package is received by the contracting officer.

− (5) The solicitation issuance date.

− (6) The proposal receipt date.

− (7) The date the technical evaluation is complete.

− (8) The audit completion date.

− (9) The date the business clearance is approved.

− (10) The date negotiations/discussions are complete.

− (11) The date the contract clearance is complete.

− (12) The contract award date.

− (d) Planned milestone dates shall be entered into the PIEE module within one week of establishment of the milestones, but no later than the approval date of the acquisition strategy or plan. Actual milestone dates shall be entered into the PIEE module no later than one week after occurrence. Milestone dates shall be updated, as necessary, to reflect any changes.

− (e) A PowerPoint presentation with screenshots introducing the module is available on the DoD Procurement Toolbox at https://dodprocurementtoolbox.com/site-pages/palt.

+ PGI 204.7001 Reserved.

+ PGI 227.7104 Contracts under the Small Business Innovation Research Program and Small Business Technology Transfer Program.

+ PGI 227.7104-1 Policy.

+ See section 4(c) of the Small Business Administration’s Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Program Policy Directive (effective May 3, 2023) for guidance on examples of SBIR/STTR phase III, which is available at .

+ PGI 227.7104-2 Rights in SBIR or STTR data.

+ The clause under which the SBIR/STTR data were generated or developed will govern the Government’s license rights in such SBIR/STTR data. The following examples illustratethe definition of the SBIR/STTR data protection period and the applicability of the DFARS 252.227-7018 clause:

+ (1) Redelivery of SBIR data.

+ (i) SBIR data first generated under a prior SBIR clause and redelivered under the current SBIR clause. In this example, a contractor generates and delivers SBIR data under a 2016 phase II SBIR contract that includes a prior version of the clause at DFARS 252.227-7018. The contractor delivers identical data in a contiguous series of follow-on contracts, including a later phase III contract that is an extension of the research effort in the 2016 contract. That phase III contract includes the current version of the clause at DFARS 252.227-7018. The contractor asserts SBIR data rights in these data. The 2016 contract included the clause at DFARS 252.227-7018, which defined the SBIR data protection period as the period commencing with contract award and ending upon the date 5 years after completion of the project from which such data were generated. This previous definition of the SBIR data protection period applies to the redelivered SBIR data in the contiguous series of follow-on contracts, including the later phase III contract. The SBIR data protection period is extended because the later contract derives from, extends, or completes an effort made under a prior SBIR contract that included the prior version of the clause at DFARS 252.227-7018. This is the case even under later contracts that include the current version of the clause at DFARS 252.227-7018 with a non-extendable 20-year SBIR/STTR data protection period. In addition, the SBIR data protection period from the prior version of the clause at DFARS 252.227-7018 may be extended indefinitely for subsequent redeliveries of identical SBIR data as long as the SBIR project has not been completed.

+ (ii) SBIR data first delivered with the 20-year SBIR data protection period and later redelivered under the current SBIR clause. In another example, a contractor generates and delivers SBIR data under a 2021 phase II SBIR contract. The contractor delivers identical data under a later phase III contract that is an extension of the research effort in the 2021 contract. The contractor asserts SBIR data rights in these data. That 2021 contract included a version of the DFARS 252.227-7018 clause that defines the SBIR data protection period as the period commencing on the date of contract award and ending 20 years after that date. The same definition of the SBIR/STTR data protection period applies to the redelivered SBIR data in the later phase III contract. Redelivery of identical SBIR data under any later contract will not extend the 20-year SBIR data protection period.

+ (2) Modifications to previously delivered SBIR or STTR data. A contractor generates and delivers SBIR/STTR data under a phase II STTR contract with the current version of the clause at DFARS 252.227-7018. The contractor develops and delivers modified STTR data under a later phase III contract. The contractor asserts SBIR/STTR data rights in these data. The previously delivered portions of the STTR data will be governed by the previous SBIR/STTR data protection period, while the newly developed portions of the STTR data will be governed by a new 20-year SBIR/STTR data protection period.

+ (3) SBIR or STTR data delivered under a contract and the contractor was not awarded a SBIR or STTR contract. A subcontractor was awarded a SBIR phase I contract. Later, the subcontractor performed SBIR phase III work under a contract awarded to a contractor who was not awarded a SBIR or STTR contract. The subcontractor furnished technical data and computer software deliverables related to SBIR phase III work performed under this contract. This technical data and computer software was furnished to the Government with SBIR data rights. The clause at DFARS 252.227-7018 should have been included either in the initial contract or via a contract modification, and the Government’s rights in this SBIR data are subject to the terms of the clause at DFARS 252.227-7018.

(c) Disposition of findings.

(2) Initial determination.

− (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a significant deficiency, the contracting officer should provide an initial determination of deficiencies and a copy of the report to the contractor and require the contractor to submit a written response.

+ (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a material weakness, the contracting officer should provide an initial determination of material weaknesses and a copy of the report to the contractor and require the contractor to submit a written response.

(C) Evaluation of contractor's response. Within 30 days of receiving the contractor’s response, the contracting officer, in consultation with the auditor or cognizant functional specialist, should evaluate the contractor’s response and make a final determination.

− (3) Final Determination.

− (ii)(A) Monitoring contractor's corrective action. The contracting officer, with the assistance of the auditor, shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies. Examples of actions the contracting officer can take are: disapprove the contractor's MMAS; bringing the issue to the attention of higher level management; implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems, if applicable; and recommending non-award of potential contracts.

− (B) Correction of significant deficiencies.

− (1) When the contractor notifies the contracting officer that the contractor has corrected the significant deficiencies, the contracting officer shall request that the auditor review the correction to determine if the deficiencies have been resolved.

− (2) The contracting officer shall determine if the contractor has corrected the deficiencies.

− (3) If the contracting officer determines the contractor has corrected the deficiencies, the contracting officer's notification shall be sent to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

+ (3) Final

+ d

+ etermination.

+ (ii)(A) Monitoring contractor's corrective action. The contracting officer, with the assistance of the auditor, shall monitor the contractor's progress in correcting material weaknesses and deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the weaknesses and deficiencies. Actions the contracting officer may take include: disapproving the contractor's MMAS; bringing the issue to the attention of higher level management; recommending non-award of potential contracts, as applicable; and for material weaknesses, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems.

+ (B) Correction of

+ material weaknesses.

+ (1) When the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request that the auditor review the correction to determine if the weaknesses and deficiencies have been resolved.

+ (2) The contracting officer shall determine if the contractor has corrected the weaknesses and deficiencies.

+ (3) If the contracting officer determines the contractor has corrected the weaknesses and deficiencies, send the contracting officer's notification to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

(d) Disposition of findings.

(2) Initial determination.

− (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a significant deficiency, the contracting officer should provide an initial determination of deficiencies and a copy of the report to the contractor and require the contractor to submit a written response.

+ (ii)(A) Within 30 days of receiving the report, if the contracting officer makes a determination that there is a material weakness, the contracting officer should provide an initial determination of material weaknesses and a copy of the report to the contractor and require the contractor to submit a written response.

(C) Evaluation of contractor's response. Within 30 days of receiving the contractor’s response, the contracting officer, in consultation with the auditor or cognizant functional specialist, should evaluate the contractor’s response and make a final determination.

− (3) Final Determination.

− (ii)(A) Monitoring contractor's corrective action. The auditor and the contracting officer shall monitor the contractor's progress in correcting deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the deficiencies. Examples of actions the contracting officer can take are: disapproving the system; bringing the issue to the attention of higher level management; implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems, if applicable; and recommending non-award of potential contracts.

− (B) Correction of significant deficiencies.

− (1) When the contractor notifies the contracting officer that the contractor has corrected the significant deficiencies, the contracting officer shall request that the auditor review the correction to determine if the deficiencies have been resolved.

− (2) The contracting officer shall determine if the contractor has corrected the deficiencies.

− (3) If the contracting officer determines the contractor has corrected the deficiencies, the contracting officer's notification shall be sent to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

− (g) Mitigating the risk of accounting system deficiencies on specific proposals.

− (2) In the event that a contractor’s accounting system contains deficiencies, even if it has been disapproved, a cost reimbursement contract is not prohibited if the contracting officer determines that the contractor’s accounting system is adequate for determining costs applicable to the contract or order.

+ (3) Final

+ determination.

+ (ii)(A) Monitoring contractor's corrective action. The contracting officer, with the assistance of the auditor, shall monitor the contractor's progress in correcting material weaknesses and deficiencies. If the contractor fails to make adequate progress, the contracting officer shall take whatever action is necessary to ensure that the contractor corrects the material weaknesses and deficiencies. Actions the contracting officer may take include: disapproving the system; bringing the issue to the attention of higher level management, as applicable; and for material weaknesses, implementing or increasing the withholding in accordance with 252.242-7005, Contractor Business Systems.

+ (B) Correction of

+ material weaknesses.

+ (1) When the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request that the auditor review the correction to determine if the weaknesses and deficiencies have been resolved.

+ (2) The contracting officer shall determine if the contractor has corrected the material weaknesses.

+ (3) If the contracting officer determines the contractor has corrected the material weaknesses, send the contracting officer's notification to the auditor; payment office; appropriate action officers responsible for reporting past performance at the requiring activities; and each contracting and contract administration office having substantial business with the contractor as applicable.

+ (g) Mitigating the risk of

+ material weaknesses and

+ system deficiencies on specific proposals.

+ (2) In the event that a contractor’s accounting system contains material weaknesses or deficiencies, even if it has been disapproved, a cost reimbursement contract is not prohibited if the contracting officer determines that the contractor’s accounting system is adequate for determining costs applicable to the contract or order.

“Head of the agency” means, for DoD, the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force. Subject to the direction of the Secretary of Defense, the Under Secretary of Defense (Acquisition and Sustainment), and the Principal Director, Defense Pricing, Contracting, and Acquisition Policy, the directors of the defense agencies have been delegated authority to act as head of the agency for their respective agencies (i.e., to perform functions under the FAR or DFARS reserved to a head of agency or agency head), except for such actions that by terms of statute, or any delegation, must be exercised within the Office of the Secretary of Defense. (For emergency acquisition flexibilities, see 218.270 .)

“Major defense acquisition program” is defined in 10 U.S.C. 4201.

+ “Material weakness” means a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. A reasonable possibility exists when the likelihood of an event occurring is—

+ (1) Probable; or

+ (2) More than remote but less than likely (section 806 of Pub. L. 116-283).

“Milestone decision authority,” with respect to a major defense acquisition

program,

− 204.7001 Procedures.

− Follow the procedures at PGI

− 204.7001

− for reporting procurement acquisition lead time milestones in the Procurement Integrated Enterprise Environment module.

206.303-1 Requirements.

(a) In accordance with section 823 of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), no justification and approval is required for a sole-source contract under the 8(a) authority (15 U.S.C. 637(a)) for an amount not exceeding $100 million.

− (b) In lieu of FAR 6.303-1(b), in accordance with section 823 of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), contracting officers shall not award a sole source contract under the 8(a) authority (15 U.S.C. 637(a)) for an amount exceeding $100 million unless—

− (1) The contracting officer justifies the use of a sole source contract in writing in accordance with FAR 6.303-2;

+ (b) In lieu of FAR 6.303-1(b), in accordance with section 823 of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), contracting officers shall not award a sole-source contract under the 8(a) authority (15 U.S.C. 637(a)) for an amount exceeding $100 million unless—

+ (1) The contracting officer justifies the use of a sole-source contract in writing in accordance with FAR 6.303-2;

(2) The justification is approved in accordance with 206.304(a)(S-71); and

(3) The justification and related information are made public after award in accordance with FAR 6.305

209.505-4 Obtaining access to proprietary information.

− (b)(i) For contractors, other than litigation support contractors, accessing third party proprietary technical data or computer Software, non-disclosure requirements are addressed at 227.7103-7(b), through use of the clause at 252.227-7025 as prescribed at 227.7103-6(c) and 227.7203-6(d). Pursuant to that clause, covered Government support contractors may be required to enter into non-disclosure agreements directly with the third party asserting restrictions on limited rights technical data, commercial technical data, or restricted rights computer software. The contracting officer is not required to obtain copies of these agreements or to ensure that they are properly executed.

+ (b)(i) For contractors, other than litigation support contractors, accessing third party proprietary technical data or computer Software, nondisclosure requirements are addressed at 227.7103-7(b), through use of the clause at 252.227-7025 as prescribed at 227.7103-6(c) and 227.7203-6(d). Pursuant to that clause, covered Government support contractors may be required to enter into nondisclosure agreements directly with the third party asserting restrictions on limited rights technical data, commercial technical data, or restricted rights computer software. The contracting officer is not required to obtain copies of these agreements or to ensure that they are properly executed.

(ii) For litigation support contractors

accessing litigation information, including that originating from third parties, use and

− non-disclosure requirements are addressed through the use of the clause at 252.204-7014, as prescribed at

+ nondisclosure requirements are addressed through the use of the clause at 252.204-7014, as prescribed at

204.7403(a). Pursuant to the clause,

− litigation support contractors are not required to enter into non-disclosure agreements

+ litigation support contractors are not required to enter into nondisclosure agreements

directly with any third party asserting restrictions on any litigation information.

(OO) Use the clause at 252.225-7064, Restriction on Acquisition of Certain Satellite Components, as prescribed in 225.7004-7(d), to comply with 10 U.S.C. 4864.

(PP) Use the provision at 252.225-7065, Restriction on Acquisition of Fuel for Overseas Contingency Operations, as prescribed in 225.7024-4, to comply with section 843 of the National Defense Authorization Act for Fiscal Year 2022 (Pub. L. 117-81).

− (xi) Part 226 - Other Socioeconomic Programs. (A) Use the clause at 252.226-7001, Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns, as prescribed in 226.104, to comply with section 8021 of Pubic Law 107-248 and similar sections in subsequent DoD appropriations acts.

+ (xi) Part 226 - Other Socioeconomic Programs.

+ (A) Use the clause at 252.226-7001, Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns, as prescribed in 226.104, to comply with section 8021 of Pubic Law 107-248 and similar sections in subsequent DoD appropriations acts.

(B) Use the provision at 252.226-7002, Representation for Demonstration Project for Contractors Employing Persons with Disabilities, as prescribed in 226.7203, to comply with section 853 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136).

− (xii) Part 227 - Patents, Data, and Copyrights. (A) Use the clause at 252.227-7013, Rights in Technical Data-Other Than Commercial Products and Commercial Services, as prescribed in 227.7103-6(a). Use the clause with its Alternate I as prescribed in 227.7103-6(b)(1). Use the clause with its Alternate II as prescribed in 227.7103-6(b)(2), to comply with 10 U.S.C. 8687 and 17 U.S.C. 1301, et seq.

+ (xii) Part 227 - Patents, Data, and Copyrights.

+ (A) Use the clause at 252.227-7013, Rights in Technical Data-Other Than Commercial Products and Commercial Services, as prescribed in

+ 227.7102-4(b) and

+ 227.7103-6(a). Use the clause with its Alternate I as prescribed in 227.7103-6(b)(1). Use the clause with its Alternate II as prescribed in 227.7103-6(b)(2), to comply with 10 U.S.C. 8687 and 17 U.S.C. 1301, et seq.

(B) Use the clause at 252.227-7015, Technical Data-Commercial Products and Commercial Services, as prescribed in 227.7102-4(a)(1), to comply with 10 U.S.C. 3772(a). Use the clause with its Alternate I as prescribed in 227.7102-4(a)(2), to comply with 10 U.S.C. 8687 and 17 U.S.C. 1301, et seq.

− (C) Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, as prescribed in

− 227.7102-4(c), to comply with 10 U.S.C. 3781-3786.

+ (C) Use the clause at 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, as prescribed in 227.7104-4(a)(1).

+ (D) Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, as prescribed in 227.7102-4(c), to comply with 10 U.S.C. 3781-3786.

+ (E) Use the provision at 252.227-7040, Additional Preaward Requirements for Small Business Technology Transfer Program, as prescribed in 227.7104-4(c)(1).

+ (F) Use the clause at 252.227-7041, Additional Postaward Requirements for Small Business Technology Transfer Program, as prescribed in 227.7104-4(c)(2).

(xiii) Part 229—Taxes. Use the clause at 252.229-7014, Full Exemption from Two-Percent Excise Tax on Certain Foreign Procurements, as prescribed in 229.402-70, to comply with 26 U.S.C. 5000C.

(xiv) Part 232 - Contract Financing. (A) Use the clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports, as prescribed in 232.7004, to comply with 10 U.S.C. 4601.

215.305 Proposal evaluation.

− (a)(2) Past performance evaluation. (A) When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-9, Utilization of Small Business Concerns, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause. When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-9, Small Business Subcontracting Plan, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause.

+ (a)(2) Past performance evaluation.

+ (A) When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-8, Utilization of Small Business Concerns, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause. When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-9, Small Business Subcontracting Plan, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause.

(B) Contracting officers shall consider an offeror's failure to make a good faith effort to comply with its comprehensive subcontracting plan under the Test Program described at 219.702-70 as part of the evaluation of the past performance.

(C) When evaluating the past performance of an offeror that is a small business concern in response to a competitive solicitation, contracting officers shall consider relevant past performance information provided for affiliates of the offeror.

215.407-5-70 Disclosure, maintenance, and review requirements.

− (a) Definitions.

− (1) “Acceptable estimating system” is defined in the clause at

− 252.215-7002

− , Cost Estimating System Requirements.

− (2) “Contractor” means a business unit as defined in FAR 2.101.

− (3) “Estimating system” is as defined in the clause at

− 252.215-7002

− , Cost Estimating System Requirements.

− (4) “Significant deficiency” is defined in the clause at

− 252.215-7002

− , Cost Estimating System Requirements.

+ (a) Definitions. As used in this section—

+ “Acceptable estimating system” means an estimating system that complies with the system criteria in paragraph (d) of 252.215-7002, Cost Estimating System Requirements, and provides for a system that—

+ (i) Is maintained, reliable, and consistently applied;

+ (ii) Produces verifiable, supportable, documented, and timely cost estimates that are an acceptable basis for negotiation of fair and reasonable prices;

+ (iii) Is consistent with and integrated with the contractor’s related management systems; and

+ (iv) Is subject to applicable financial control systems.

+ “Contractor” means a business unit as defined in FAR 2.101.

+ “Estimating system” means the contractor’s policies, procedures, and practices for budgeting and planning controls and for generating estimates of costs and other data included in proposals submitted to customers in the expectation of receiving contract awards. Estimating system includes the contractor’s—

+ (i) Organizational structure;

+ (ii) Established lines of authority, duties, and responsibilities;

+ (iii) Internal controls and managerial reviews;

+ (iv) Flow of work, coordination, and communication; and

+ (v) Budgeting, planning, estimating methods, techniques, accumulation of historical costs, and other analyses used to generate cost estimates.

(b) Applicability.

(1) DoD policy is that all contractors have acceptable estimating systems that consistently produce well-supported proposals that are acceptable as a basis for negotiation of fair and reasonable prices.

219.702-70

, do not use the clause at FAR 52.219-16, Liquidated Damages–Subcontracting Plan.

− (c)(1) Do not use the clause at FAR 52.219-10, Incentive Subcontracting Program, in contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in

− 219.702-70

− .

− See DoD Class Deviation 2018-O0007, Small Business Subcontract Reporting, issued December 13, 2017. Use this class deviation in lieu of FAR 52.219-9, Alternate IV, and DFARS

− 252.219-7003

− . The purpose of this class deviation is to (1) require submission of the Standard Form (SF) 294 in lieu of Individual Subcontract Reports (ISRs) in the Electronic Subcontracting Reporting System (eSRS) for orders against basic ordering agreements and blanket purchase agreements, and (2) change the entity to which the contractor submits the SSR from the DoD department or agency to DoD. This deviation is effective until incorporated in the DFARS or otherwise rescinded.

+ (c)(1) Do not use the clause at FAR 52.219-10, Incentive Subcontracting Program, in contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70.

219.808-1 Sole source.

− For sole source requirements processed under the PA, follow the procedures at PGI

− 219.808-1

− .

+ For sole-source requirements processed under the PA, follow the procedures at PGI 219.808-1.

(a) In lieu of the threshold at FAR 19.808-1(a), the SBA may not accept for negotiation a DoD sole-source 8(a) contract exceeding $100 million unless DoD has completed a justification in accordance with FAR 6.303 and 206.303-1(b).

of operations in Afghanistan.

(iv) Use alternate II of the clause in lieu of the basic clause in solicitations and contracts if—

− (A) The acquisition is not of end products listed in in support of operations in Afghanistan; and

+ (A) The acquisition is not of end products listed in 225.401-70 in support of operations in Afghanistan; and

(B) An alternate domestic content threshold will apply to the entire period of performance as approved by the senior procurement executive (see 225.101(d)).

(v) Use alternate III of the clause in lieu of Alternate I of the clause in solicitations and contracts if—

(2) A waiver has been granted.

(c) Unless a waiver has been granted, use the clause at 252.225-7063, Restriction on Acquisition of Components of T–AO 205 and T-ARC Class Vessels, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, that exceed the simplified acquisition threshold and that require components of T-AO 205 and T-ARC class vessels.

− (d) Use the clause at 252.225-7064, Restriction on Acquisition of Certain Satellite Components, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, that exceed the simplified acquisition threshold unless—

+ (d) Use the clause at 252.225-7064, Restriction on Acquisition of Certain Satellite Components, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, that exceed the simplified acquisition threshold and that include the acquisition of star trackers unless—

(1) An exception at 225.7004-3(e) applies; or

(2) A waiver has been granted.

(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

+ (i) Prior to release or disclosure, the intended recipient is subject to the use and nondisclosure 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

252.227-7025

, 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 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 non-disclosure 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.

+ (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 disclosure, to include that clause in lieu of requiring the contractor to complete a use and nondisclosure 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 nondisclosure restrictions. Public announcements in the System for Award Management or other publications must provide notice of the use and nondisclosure requirements. Class use and nondisclosure 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—

227.7103-6 Contract clauses.

− (a) Use the clause at 252.227-7013, Rights in Technical Data-Noncommercial Other Than Commercial Products and Commercial Services, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, when the successful offeror(s) will be required to deliver to the Government technical data pertaining to other than commercial products or commercial services, or pertaining to commercial products or commercial services for which the Government will have paid for any portion of the development costs (in which case the clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial product or commercial service that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense). Do not use the clause when the only deliverable items are computer software or computer software documentation (see 227.72), commercial products or commercial services developed exclusively at private expense (see 227.7102-4), 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.

+ (a) Use the clause at 252.227-7013, Rights in Technical Data-Noncommercial Other Than Commercial Products and Commercial Services, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, when the successful offeror(s) will be required to deliver to the Government technical data pertaining to other than commercial products or commercial services, or pertaining to commercial products or commercial services for which the Government will have paid for any portion of the development costs (in which case the clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial product or commercial service that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense). Do not use the clause when the only deliverable items are computer software or computer software documentation (see 227.72), commercial products or commercial services developed exclusively at private expense (see 227.7102-4), existing works (see 227.7105 ), or special works (see 227.7106 ). When contracting under the Small Business Innovation Research (SBIR) Program or the Small Business Technology Transfer (STTR) Program, see

+ -4(a)227.7104 . Except as provided in 227.7107-2 , do not use the clause in architect-engineer and construction contracts.

(b)(1) Use the clause at 252.227-7013 with its Alternate I in research solicitations and contracts, including research solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, when the contracting officer determines, in consultation with counsel, that public dissemination by the contractor would be—

(i) In the interest of the Government; and

− 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

+ 227.7103-7 Use and nondisclosure agreement.

+ (a) Except as provided in paragraph (b) of this section, 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 nondisclosure 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 SBIR/STTR data rights, or computer software subject to restricted rights or SBIR/STTR data rights must be stipulated in an attachment to the use and nondisclosure 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 nondisclosure agreement in paragraph (c) of this section 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 nondisclosure 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

+ (c) The prescribed use and nondisclosure agreement is:

+ Use and nondisclosure Agreement

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.

− (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).

+ (a) Use, modify, reproduce, release, perform, display, or disclose Data marked with government purpose rights or SBIR/STTR data rights legends (after expiration of the SBIR/STTR data protection period provided in the SBIR/STTR data rights legend) 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 nondisclosure 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 or SBIR/STTR data 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 or SBIR/STTR data 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.

+ (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.

+ (5) The Recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorney’s 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.

227.7103-9 Copyright.

(a) Copyright license.

− (1) The clause at 252.227-7013, Rights in Technical Data - Other Than Commercial Products and Commercial Services, 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.

− (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.

+ (1) The clauses at 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, require 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 clauses. 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.

+ (2) The clauses at 252.227-7013 and 252.227-7018 do 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 that are not SBIR/STTR data.

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–Other Than Commercial Products and Commercial Services, 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.

+ (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 clauses at 252.227-7013, Rights in Technical Data— Other Than Commercial Products and Commercial Services, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, permit 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 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–Other Than Commercial Products and Commercial Services—

− (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.

+ (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, contracting officers shall not—

+ (i) Prohibit offerors from offering products for which the offeror is entitled to provide the technical data with restrictions; or

+ (ii) Require offerors, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish rights in technical data except for the standard rights specified in the applicable clauses.

+ (b) Contractor marking requirements. The clauses at 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services , and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program—

+ (1) Require a contractor that desires to restrict the Government's rights in technical data to place restrictive markings on the data, provide instructions for the placement of the restrictive markings, and authorize the use of certain restrictive markings; and

+ (2) Require 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 preexisting 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:

+ (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 6 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

+ (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 clauses at 252.227-7013 and 252.227-7018; and

(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–Other Than Commercial Products and Commercial Services, 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.

+ (a) The clauses at 252.227-7013, Rights in Technical Data— Other Than Commercial Products and Commercial Services, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, require 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–Other Than Commercial Products and Commercial Services. 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.

+ (1) Authorized markings are identified in the clauses at 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program. 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 clauses at 252.227-7013 and 252.227-7018 is also a nonconforming marking.

(2) The correction of nonconforming markings on technical data is not subject to

252.227-7037

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–Other Than Commercial Products and Commercial Services, governing use, modification, reproduction, release, performance, display, or disclosure of such data have been satisfied.

+ (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 nondisclosure agreement at 227.7103-7 and the requirements of the clause at 252.227-7013 , Rights in Technical Data–Other Than Commercial Products and Commercial Services, governing use, modification, reproduction, release, performance, display, or disclosure of such data have been satisfied.

− 227.7104 Contracts under the Small Business Innovation Research (SBIR) Program.

− (a) Use the clause at 252.227-7018 , Rights in Other Than Commercial 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 SBIR data rights in technical data and computer software generated under the contract and marked with the SBIR data rights legend. SBIR data rights provide the Government limited rights in such technical data and restricted rights in such computer software during the SBIR data protection 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 technical data and computer software.

− (c) During the SBIR data protection period, the Government may not release or disclose SBIR technical data or computer software to any person except as authorized for limited rights technical data or restricted rights computer software, respectively.

− (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 Government-Furnished Information Marked with Restrictive Legends; and

− (2)

− 252.227-7028

− , Technical Data or Computer Software Previously Delivered to the Government.

+ 227.7104 Contracts under the Small Business Innovation Research Program and Small Business Technology Transfer Program.

+ 227.7104-1 Policy.

+ (a) Do not require an offeror, 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 under a SBIR/STTR contract or any rights in computer software generated under a SBIR/STTR contract except for the standard rights identified at 227.7104-2.

+ (b) Do not prohibit contractors and offerors from furnishing or offering to furnish items, components, or processes developed under a SBIR/STTR contract or computer software generated under a SBIR/STTR contract solely because the Government's rights to use, modify, release, reproduce, perform, display, or disclose such computer software or technical data pertaining to those items, components, or processes may be restricted.

+ (c) Consistent with the guidance in this section, 227.7103-10(a)(5),227.7203-10(a)(5), and other acquisition guidance applicable to SBIR/STTR solicitations, the Government may use information provided by offerors in response to a solicitation in the source selection process to evaluate the impact of proposed restrictions on the Government's ability to use or disclose technical data or computer software.

+ (d) SBIR/STTR data rights apply to SBIR/STTR data that are delivered, developed, or generated in the performance of a contract or agreement that is covered by SBIR/STTR policies, including contracts and subcontracts that include phase III work. Phase III work refers to work that derives from, extends, or completes an effort made under prior SBIR/STTR contracts or agreements, and is funded by sources other than SBIR/STTR programs (see PGI 227.7104-1).

+ (e) For SBIR/STTR data that is other than commercial technical data, and other than commercial computer software and computer software documentation, see—

+ (1) 227.7103-9 and 227.7203-9 for guidance on copyright licenses;

+ (2) 227.7103-10 and 227.7203-10 for guidance on contractor identification and marking of technical data and computer software to be furnished with restrictive markings;

+ (3) 227.7103-11 and 227.7203-11 for guidance on maintenance of contractor records; and

+ (4) 227.7103-12 and 227.7203-12 for guidance on nonconforming and unjustified markings.

+ 227.7104-2 Rights in SBIR or STTR data.

+ (a) Under the clause at 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, the Government obtains the following standard license rights:

+ (1) Unlimited rights in the technical data and computer software listed in paragraph (c)(1) of the clause.

+ (2) SBIR/STTR data rights in all other technical data and computer software developed or generated under the phase I, II, or III SBIR/STTR contract or subcontract and marked with the SBIR/STTR data rights marking. SBIR/STTR data rights provide the Government limited rights in such technical data and restricted rights in such computer software during the SBIR/STTR data protection period commencing on the date of contract award and ending 20 years after that date unless, after award, the agency and the contractor negotiate for some other protection period for the SBIR/STTR data. Upon expiration of the SBIR/STTR data protection period, the Government has government purpose rights in the SBIR/STTR data. These government purpose rights do not expire. See 252.227-7018 for the definition of the SBIR/STTR data protection period and PGI 227.7104-2 for additional guidance on the SBIR/STTR data protection period.

+ (b) During the SBIR/STTR data protection period, the Government may not release or disclose technical data or computer software that is subject to SBIR/STTR data rights to any person except as authorized for limited rights technical data or restricted rights computer software, respectively.

+ (c) The Government and contractor or subcontractor may negotiate special license rights only after contract award. The Government shall not make contract award conditional on the contractor or subcontractor negotiating or consenting to negotiate special license rights. Negotiation of special license rights is authorized only after contract award by mutual agreement of the parties.

+ (d) The Small Business Administration’s SBIR and STTR Program Policy Directive (effective May 3, 2023) provides for special consideration regarding the handling (e.g., disclosure, reverse engineering) of prototypes generated under SBIR and STTR awards, to avoid effects that may appear to be inconsistent with the SBIR and STTR program objectives and to allow the SBIR/STTR awardee to retain rights in SBIR/STTR data during the SBIR/STTR data protection period.

+ (e) The clause at 252.227-7018 governs the Government’s license rights in SBIR/STTR data. However, the following clauses or guidance governs the Government’s license rights in any data that are not SBIR/STTR data:

+ (1) For technical data pertaining to other than commercial products or commercial services or to any portion of a commercial product or commercial service that was developed in any part at Government expense, the clause at 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, governs such technical datain accordance with 227.7102-4(b).

+ (2) For technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense, the clause at 252.227-7015, Technical Data—Commercial Products and Commercial Services, governs such technical data, in accordance with 227.7102-4(b).

+ (3) For other than commercial computer software or computer software documentation, the clause at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, governs such software and computer software documentation, in accordance with 227.7203-6(a)(1).

+ (4) For commercial computer software and computer software documentation, the license customarily provided to the public governs such software and documentation, in accordance with 227.7202-3.

+ 227.7104-3 STTR program requirements.

+ (a) Before award of a contract under the STTR program requirements only, the provision at 252.227-7040, Additional Preaward Requirements for Small Business Technology Transfer Program, requires offerors to submit, as part of their proposal, a written agreement between the offeror and a research institution that allocates any rights in intellectual property and the offeror’s written representation that the offeror is satisfied with the agreement. The contracting officer shall review the agreement to ensure it does not conflict with the requirements of the solicitation or any right to carry out follow-on research. If such conflicts exist and cannot be resolved, the submitted proposal is not eligible for award.

+ (b) At contract award for STTR program requirements, in accordance with the clause at 252.227-7041, Additional Postaward Requirements for Small Business Technology Transfer Program, the contracting officer shall attach to the contract the accepted written agreement and representation provided by the contractor pursuant to the provision at 252.227-7040.

+ (c) After contract award, for any modification to the written agreement between the contractor and research institution, the contracting officer shall review the agreement and representation to ensure the modified agreement adheres to the requirements of 252.227-7041. If acceptable, the contracting officer shall attach the modified agreement to the contract.

+ 227.7104-4 Solicitation provisions and contract clauses.

+ (a)(1) Use the clause at 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, when SBIR/STTR data are delivered, developed, or generated during contract performance, and when any portion of contract performance is governed by SBIR or STTR policies (e.g., performance of one or more subcontracts qualifies as a phase III SBIR or STTR award). See 227.7104-1(d) for guidance on contracts or subcontracts governed by SBIR or STTR policies.

+ (2) For the remainder of the technical data or computer software that is delivered, developed, or generated under the contract, use the following clauses as applicable, in accordance with the prescriptions for those clauses:

+ (i) 252.227-7013, Rights in Technical Data–Other Than Commercial Products and Commercial Services.

+ (ii) 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation.

+ (iii) 252.227-7015, Technical Data–Commercial Products and Commercial Services.

+ (b) Use the following provision in solicitations and the following clauses in solicitations and contracts that include the clause at 252.227-7018, in accordance with the prescriptions for the provision and clauses:

+ (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) 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

+ (5) 252.227-7028, Technical Data or Computer Software Previously Delivered to the Government.

+ (6) 252.227-7030, Technical Data–Withholding of Payment.

+ (7) 252.227-7037, Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause contains information that must be included in a challenge).

+ (c)(1) Use the provision at 252.227-7040, Additional Preaward Requirements for Small Business Technology Transfer Program, in solicitations that contain the clause at 252.227-7041.

+ (2) Use the clause at 252.227-7041, Additional Postaward Requirements for Small Business Technology Transfer Program, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, for acquisitions under the STTR program.

(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

+ (5) Obtain use and nondisclosure agreements (see

227.7103-7

) from all persons to whom government purpose rights data is released or disclosed; and

(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 development of the computer software. Upon expiration of the government purpose rights period, the Government has unlimited rights in the software 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, computer software marked with government purpose rights legends for commercial purposes. The Government shall not release or disclose, or authorize others to release or disclose, computer software in which it has government purpose rights to any person unless—

− (i) Prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at

+ (i) Prior to release or disclosure, the intended recipient is subject to the use and nondisclosure agreement at

227.7103-7

; or

− 227.7203-6 Contract clauses.

+ 227.7203-6

+ Solicitation provisions and contract clauses.

(a)(1) Use the clause at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, in solicitations and contracts when the successful offeror(s) will be required to deliver computer software or computer software documentation. Do not use the clause when the only deliverable items are technical data (other than computer software documentation), commercial computer software or commercial computer software documentation, commercial products, commercial services (see 227.7102-3), special works (see 227.7205), or contracts 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.

(2) Use the clause at

227.7203-9 Copyright.

(a) Copyright license.

− (1) The clause at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, requires a contractor to grant, or obtain for the Government license rights which permit the Government to reproduce the software or documentation, distribute copies, perform or display the software or documentation and, 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 computer software or computer software documentation will be negotiated, negotiate the extent of the copyright license concurrent with negotiations for the data rights license. Do not negotiate copyright licenses for computer software that provide less rights than the standard restricted rights in computer software license. For computer software documentation, do not negotiate a copyright license that provides less rights than the standard limited rights in technical data license.

− (2) The clause at 252.227-7013, Rights in Technical Than Commercial Products and Commercial Services, does not permit a contractor to incorporate a third party's copyrighted software into a deliverable software 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 software 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-special works. See 227.7205 for copyright considerations when acquiring special works.

+ (1) The clauses at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, require a contractor to grant, or obtain for the Government license rights which permit the Government to reproduce the software or documentation, distribute copies, perform or display the software or documentation and, 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 computer software or computer software documentation will be negotiated, negotiate the extent of the copyright license concurrent with negotiations for the data rights license. Do not negotiate copyright licenses for computer software that provide less rights than the standard restricted rights in computer software license. For computer software documentation, do not negotiate a copyright license that provides less rights than the standard limited rights in technical data license.

+ (2) The clauses at 252.227-7013, Rights in Technical Data— Other Than Commercial Products and Commercial Services, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, do not permit a contractor to incorporate a thirdparty's copyrighted software into a deliverable software 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 software 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—special works. See 227.7205 for copyright considerations when acquiring special works that are not SBIR/STTR data.

227.7203-13

.

− (3) The restrictions asserted by a successful offeror shall be attached to its contract unless, in accordance with the procedures at 227.7203-13 , the parties have agreed that an asserted restriction is not justified. The contract attachment shall provide the same information regarding identification of the computer software or computer software documentation, 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 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, permits a 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.

+ (3) The restrictions asserted by a successful offeror shall be attached to its contract unless, in accordance with the procedures at 227.7203-13, the parties have agreed that an asserted restriction is not justified. The contract attachment shall provide the same information regarding identification of the computer software or computer software documentation, 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 clauses at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, permit a 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 the respective rights of the parties. As provided at

227.7203-13

, the Government has the right to review, verify, challenge and validate restrictive markings.

− (5) Information provided by offerors in response to the solicitation provision at

− 252.227-7017

− 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 computer software or computer software documentation.

− (b) Contractor marking requirements. The clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation—

− (1) Requires a contractor who desires to restrict the Government's rights in computer software or computer software documentation to place restrictive markings on the software or documentation, provides instructions for the placement of the restrictive markings, and authorizes the use of certain restrictive markings. When it is anticipated that the software will or may be used in combat or situations which simulate combat conditions, do not permit contractors to insert instructions into computer programs that interfere with or delay operation of the software to display a restrictive rights legend or other license notice; and

− (2) Requires a contractor to deliver, furnish, or otherwise provide to the Government any computer software or computer software documentation in which the Government has previously obtained rights with the Government's pre-existing rights in that software or documentation unless the parties have agreed otherwise or restrictions on the Government's rights to use, modify, reproduce, release, or disclose the software or documentation have expired. When restrictions are still applicable, the contractor is permitted to mark the software or documentation with the appropriate restrictive legend.

+ (5) Information provided by offerors in response to the solicitation provision at 252.227-7017 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 computer software or computer software documentation. However, contracting officers shall not—

+ (i) Prohibit offerors from offering products for which the offeror is entitled to provide the computer software with restrictions; or

+ (ii) Require offerors, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish rights in computer software except for the standard rights specified in the applicable clauses.

+ (b)Contractor marking requirements. The clauses at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program—

+ (1) Require a contractor who desires to restrict the Government's rights in computer software or computer software documentation to place restrictive markings on the software or documentation, provide instructions for the placement of the restrictive markings, and authorize the use of certain restrictive markings. When it is anticipated that the software will or may be used in combat or situations which simulate combat conditions, do not permit contractors to insert instructions into computer programs that interfere with or delay operation of the software to display a restrictive rights legend or other license notice; and

+ (2) Require a contractor to deliver, furnish, or otherwise provide to the Government any computer software or computer software documentation in which the Government has previously obtained rights with the Government's preexisting rights in that software or documentation unless the parties have agreed otherwise or restrictions on the Government's rights to use, modify, produce, release, or disclose the software or documentation have expired. When restrictions are still applicable, the contractor is permitted to mark the software or documentation with the appropriate restrictive legend.

(c) Unmarked computer software or computer software documentation.

− (1) Computer software or computer software documentation 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 software or documentation pending evaluation of the request.

− (2) A contractor may request permission to have appropriate legends placed on unmarked computer software or computer software documentation at its expense. The request must be received by the contracting officer within six months following the furnishing or delivery of such software or documentation, or any extension of that time approved by the contracting officer. The person making the request must—

+ (1) Computer software or computer software documentation 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 section) to correct an inadvertent omission of markings, do not release or disclose the software or documentation pending evaluation of the request.

+ (2) A contractor may request permission to have appropriate legends placed on unmarked computer software or computer software documentation at its expense. The request must be received by the contracting officer within 6 months following the furnishing or delivery of such software or documentation, or any extension of that time approved by the contracting officer. The person making the request must—

(i) Identify the software or documentation 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 computer software or computer software documentation contained in the clause at

− 252.227-7014

− ; and

+ (ii) Demonstrate that the omission of the marking was inadvertent, the proposed marking is justified and conforms with the requirements for the marking of computer software or computer software documentation contained in the clauses at 252.227-7014 and 252.227-7018; and

(iii) Acknowledge, in writing, that the Government has no liability with respect to any disclosure, reproduction, or use of the software or documentation 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 software or documentation were not distributed outside the Government or were distributed outside the Government with restrictions on further use or disclosure.

227.7203-11 Contractor procedures and records.

− (a) The clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, requires a contractor, and its subcontractors or suppliers that will deliver computer software or computer software documentation 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 restrictive markings.

+ (a) The clauses at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, require a contractor, and its subcontractors or suppliers that will deliver computer software or computer software documentation 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 restrictive markings.

(b) The clause at

252.227-7019

227.7203-12 Government right to establish conformity of markings.

(a) Nonconforming markings.

− (1) Authorized markings are identified in the clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation. 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 252.227-7014 is also a nonconforming marking.

+ (1) Authorized markings are identified in the clauses at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, and 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program. 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 clauses at 252.227-7014 and 252.227-7018 is also a nonconforming marking.

(2) The correction of nonconforming markings on computer software is not subject to

252.227-7019

Computer software or computer software documentation 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 computer software or computer software documentation 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 computer software or computer software documentation for which restrictions on use, release, or disclosure have been asserted to such foreign entities or authorize the use of such 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 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, governing use, modification, reproduction, release, performance, display, or disclosure of such data have been satisfied.

+ (b) Shall not release or disclose computer software or computer software documentation for which restrictions on use, release, or disclosure have been asserted to such foreign entities or authorize the use of such data by those entities, unless the intended recipient is subject to the same provisions as included in the use and nondisclosure agreement at 227.7103-7 and the requirements of the clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, governing use, modification, reproduction, release, performance, display, or disclosure of such data have been satisfied.

− 234.001 Definition.

− As used in this subpart—

− “Acceptable earned value management system” and “earned value management system” are defined in the clause at

− 252.234-7002

− , Earned Value Management System.

− “Production of major defense acquisition program” means the production and deployment of a major system that is intended to achieve an operational capability that satisfies mission needs, or an activity otherwise defined as Milestone C under Department of Defense Instruction 5000.02 or related authorities.

− “Significant deficiency” is defined in the clause at

− 252.234-7002

− , Earned Value Management System, and is synonymous with “noncompliance.”

+ 234.001 Reserved.

+ 234.001-70 Definitions.

+ As used in this part—

+ “Acceptable earned value management system” means an earned value management system that generally complies with system criteria in paragraph (b) of 252.234-7002, Earned Value Management System.

+ “Earned value management system” means an earned value management system that complies with the earned value management system guidelines in the ANSI/EIA-748.

+ “Production of major defense acquisition program” means the production and deployment of a major system that is intended to achieve an operational capability that satisfies mission needs, or an activity otherwise defined as Milestone C under Department of Defense Instruction 5000.02 or related authorities.

(5) The cognizant contracting officer, in consultation with the functional specialist and auditor, shall—

(i) Determine the acceptability of the contractor‘s earned value management system and approve or disapprove the system; and

− (ii) Pursue correction of any deficiencies.

+ (ii) Pursue correction of any weaknesses or deficiencies.

(6) In evaluating the acceptability of a contractor’s earned value management system, the contracting officer, in consultation with the functional specialist and auditor, shall determine whether the contractor’s earned value management system complies with the system criteria for an acceptable earned value management system as prescribed in the clause at

252.234-7002

, Earned Value Management System.

(7) Disposition of findings—

− (i) Reporting of findings. The functional specialist or auditor shall document findings and recommendations in a report to the contracting officer. If the functional specialist or auditor identifies any significant deficiencies in the contractor’s earned value management system, the report shall describe the deficiencies in sufficient detail to allow the contracting officer to understand the deficiencies.

− (ii) Initial determination. (A) The contracting officer shall review all findings and recommendations and, if there are no significant deficiencies, shall promptly notify the contractor, in writing, that the contractor’s earned value management system is acceptable and approved; or

− (B) If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at

− 252.234-7002

− , Earned Value Management System) due to the contractor’s failure to meet one or more of the earned value management system criteria in the clause at

− 252.234-7002

− , the contracting officer shall—

− (1) Promptly make an initial written determination of any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiencies;

+ (i) Reporting of findings. The functional specialist or auditor shall document findings and recommendations in a report to the contracting officer. If the functional specialist or auditor identifies any material weakness in the contractor’s earned value management system, the report shall describe the weaknesses or deficiencies in sufficient detail to allow the contracting officer to understand the weaknesses or deficiencies.

+ (ii) Initial determination.

+ (A) The contracting officer shall review all findings and recommendations and, if there are no material weaknesses, shall promptly notify the contractor, in writing, that the contractor’s earned value management system is acceptable and approved; or

+ (B) If the contracting officer finds that there are one or more

+ material weaknesses due to the contractor’s failure to meet one or more of the earned value management system criteria in the clause at 252.234-7002, the contracting officer shall—

+ (1) Promptly make an initial written determination of any material weaknesses and notify the contractor, in writing, providing a description of each material weakness in sufficient detail to allow the contractor to understand the weaknesses

+ (see PGI 234.201(7)(ii));

(2) Request the contractor to respond, in writing, to the initial determination within 30 days; and

(3) Evaluate the contractor’s response to the initial determination, in consultation with the auditor or functional specialist, and make a final determination.

− (iii) Final determination. (A) The contracting officer shall make a final determination and notify the contractor, in writing, that—

− (1) The contractor’s earned value management system is acceptable and approved, and no significant deficiencies remain, or

− (2) Significant deficiencies remain. The notice shall identify any remaining significant deficiencies, and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

− (i) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the deficiencies;

− (ii) Disapprove the system in accordance with the clause at

− 252.234-7002

− , Earned Value Management System, when initial validation is not successfully completed within the timeframe approved by the contracting officer, or the contracting officer determines that the existing earned value management system contains one or more significant deficiencies in high-risk guidelines in ANSI/EIA-748 standards (guidelines 1, 3, 6, 7, 8, 9, 10, 12, 16, 21, 23, 26, 27, 28, 30, or 32). When the contracting officer determines that the existing earned value management system contains one or more significant deficiencies in one or more of the remaining 16 guidelines in ANSI/EIA-748 standards, the contracting officer shall use discretion to disapprove the system based on input received from functional specialists and the auditor; and

− (iii) Withhold payments in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems, if the clause is included in the contract.

− (B) Follow the procedures relating to monitoring a contractor's corrective action and the correction of significant deficiencies at PGI

− 234.201

− (7).

− (8) System approval. The contracting officer shall promptly approve a previously disapproved earned value management system and notify the contractor when the contracting officer determines that there are no remaining significant deficiencies.

+ (iii) Final determination.

+ (A) The contracting officer shall make a final determination and notify the contractor, in writing, that—

+ (1) The contractor’s earned value management system is acceptable and approved, and no material weaknesses remain; or

+ (2)

+ Material weaknesses remain. The notice shall identify any remaining material weaknesses and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

+ (i) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the weaknesses;

+ (ii) Disapprove the system in accordance with the clause at 252.234-7002 when initial validation is not successfully completed within the timeframe approved by the contracting officer, or the contracting officer determines that the existing earned value management system contains one or more material weaknesses in high-risk guidelines in ANSI/EIA-748 standards (guidelines 1, 3, 6, 7, 8, 9, 10, 12, 16, 21, 23, 26, 27, 28, 30, or 32). When the contracting officer determines that the existing earned value management system contains one or more material weaknesses in one or more of the remaining 16 guidelines in ANSI/EIA-748 standards, the contracting officer shall use discretion to disapprove the system based on input received from functional specialists and the auditor; and

+ (iii) Withhold payments in accordance with the clause at 252.242-7005 , Contractor Business Systems, if the clause is included in the contract.

+ (B) Follow the procedures relating to monitoring a contractor’s corrective action and the correction of material weaknesses at PGI 234.201(7)(iii).

+ (8) System approval. The contracting officer shall promptly approve a previously disapproved earned value management system and notify the contractor when the contracting officer determines that there are no remaining material weaknesses.

(9) Contracting officer notifications. The cognizant contracting officer shall promptly distribute copies of a determination to approve a system, disapprove a system and withhold payments, or approve a previously disapproved system and release withheld payments to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities.

242.302 Contract administration functions.

− (a)(7) See

− 242.7502

− for ACO responsibilities with regard to receipt of an audit report identifying significant accounting system or related internal control deficiencies.

+ (a)(7) See 242.7502 for ACO responsibilities with regard to receipt of an audit report identifying significant accounting system or related internal control weaknesses or deficiencies.

(9) For additional contract administration functions related to IR&D projects and B&P projects performed by major contractors, see 242.771-3(a).

(12) Also perform all payment administration in accordance with any applicable payment clauses.

242.7000 Contractor business system deficiencies.

(a) Definitions. As used in this subpart——

− “Acceptable contractor business systems” and “contractor business systems” are defined in the clause at

− 252.242-7005

− , Contractor Business Systems.

− “Covered contract” means a contract that is subject to the Cost Accounting Standards under 41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 9903.201-1 (see the FAR Appendix) (10 U.S.C. 3841 note prec., as amended by section 816 of Public Law 112-81).

− “Significant deficiency” is defined in the clause at

− 252.242-7005

− , Contractor Business Systems.

+ “Acceptable contractor business systems” means contractor business systems that comply with the terms and conditions of the applicable business system clauses listed in the definition of “contractor business systems” in this section.

+ Contractor business systemsmeans—

+ (i) Accounting system, if the contract includes the clause at 252.242-7006, Accounting System Administration;

+ (ii) Earned value management system, if the contract includes the clause at 252.234-7002, Earned Value Management System;

+ (iii) Estimating system, if the contract includes the clause at 252.215-7002, Cost Estimating System Requirements;

+ (iv) Material management and accounting system, if the contract includes the clause at 252.242-7004, Material Management and Accounting System;

+ (v) Property management system, if the contract includes the clause at 252.245-7003, Contractor Property Management System Administration; and

+ (vi) Purchasing system, if the contract includes the clause at 252.244-7001, Contractor Purchasing System Administration.

+ “Covered contract” means a contract that is subject to the Cost Accounting Standards under 41 U.S.C. chapter 15, as implemented in regulations found at48 CFR 9903.201-1 (10 U.S.C. 3841note prec., as amended by section 816 ofPub. L. 112-81).

(b) Determination to withhold payments. If the contracting officer makes a final determination to disapprove a contractor’s business system in accordance with the clause at

252.242-7005

, Contractor Business Systems, the contracting officer shall—

− (1) In accordance with agency procedures, identify one or more covered contracts containing the clause at

− 252.242-7005

− , Contractor Business Systems, from which payments will be withheld. When identifying the covered contracts from which to withhold payments, the contracting officer shall ensure that the total amount of payment withholding under

− 252.242-7005

− does not exceed 10 percent of progress payments, performance-based payments, and interim payments under cost-reimbursement, labor-hour, and time-and-materials contracts billed under each of the identified covered contracts. Similarly, the contracting officer shall ensure that the total amount of payment withholding under the clause at

− 252.242-7005

− , Contractor Business Systems, for each business system does not exceed five percent of progress payments, performance-based payments, and interim payments under cost-reimbursement, labor-hour, and time-and-materials contracts billed under each of the identified covered contracts. The contracting officer has the sole discretion to identify the covered contracts from which to withhold payments.

− (2) Promptly notify the contractor, in writing, of the contracting officer’s determination to implement payment withholding in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems. The notice of payment withholding shall be included in the contracting officer’s written final determination for the contractor business system and shall inform the contractor that—

− (i) Payments shall be withheld from the contract or contracts identified in the written determination in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems, until the contracting officer determines that there are no remaining significant deficiencies; and

+ (1) In accordance with agency procedures, identify one or more covered contracts containing the clause at 252.242-7005 from which payments will be withheld. When identifying the covered contracts from which to withhold payments, the contracting officer shall ensure that the total amount of payment withholding under 252.242-7005 does not exceed 10 percent of progress payments, performance-based payments, and interim payments under cost-reimbursement, labor-hour, and time-and-materials contracts billed under each of the identified covered contracts. Similarly, the contracting officer shall ensure that the total amount of payment withholding under the clause at 252.242-7005 for each business system does not exceed 5 percent of progress payments, performance-based payments, and interim payments under cost-reimbursement, labor-hour, and time-and-materials contracts billed under each of the identified covered contracts. The contracting officer has the sole discretion to identify the covered contracts from which to withhold payments.

+ (2) Promptly notify the contractor, in writing, of the contracting officer’s determination to implement payment withholding in accordance with the clause at 252.242-7005. The notice of payment withholding shall be included in the contracting officer’s written final determination for the contractor business system and shall inform the contractor that—

+ (i) Payments shall be withheld from the contract or contracts identified in the written determination in accordance with the clause at 252.242-7005, until the contracting officer determines that there are no remaining material weaknesses; and

(ii) The contracting officer reserves the right to take other actions within the terms and conditions of the contract.

− (3) Provide all contracting officers administering the selected contracts from which payments will be withheld, a copy of the determination. The contracting officer shall also provide a copy of the determination to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities.

− (c) Monitoring contractor’s corrective action. The contracting officer, in consultation with the auditor or functional specialist, shall monitor the contractor's progress in correcting the deficiencies. The contracting officer shall notify the contractor of any decision to decrease or increase the amount of payment withholding in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems.

− (d) Correction of significant deficiencies. (1) If the contractor notifies the contracting officer that the contractor has corrected the significant deficiencies, the contracting officer shall request the auditor or functional specialist to review the correction to verify that the deficiencies have been corrected. If, after receipt of verification, the contracting officer determines that the contractor has corrected all significant deficiencies as directed by the contracting officer’s final determination, the contracting officer shall discontinue the withholding of payments, release any payments previously withheld, and approve the system, unless other significant deficiencies remain.

− (2) Prior to the receipt of verification, the contracting officer may discontinue withholding payments pending receipt of verification, and release any payments previously withheld, if the contractor submits evidence that the significant deficiencies have been corrected, and the contracting officer, in consultation with the auditor or functional specialist, determines that there is a reasonable expectation that the corrective actions have been implemented and are expected to correct the significant deficiencies.

− (3) Within 90 days of receipt of the contractor notification that the contractor has corrected the significant deficiencies, the contracting officer shall—

+ (3) Provide a copy of the determination to all contracting officers administering the selected contracts from which payments will be withheld. The contracting officer shall also provide a copy of the determination to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities.

+ (c) Monitoring contractor’s corrective action. The contracting officer, in consultation with the auditor or functional specialist, shall monitor the contractor’s progress in correcting the weaknesses. The contracting officer shall notify the contractor of any decision to decrease or increase the amount of payment withholding in accordance with the clause at 252.242-7005.

+ (d) Correction of significant deficiencies.

+ (1) If the contractor notifies the contracting officer that the contractor has corrected the material weaknesses, the contracting officer shall request the auditor or functional specialist to review the correction to verify that the weaknesses have been corrected. If, after receipt of verification, the contracting officer determines that the contractor has corrected all material weaknesses as directed by the contracting officer’s final determination, the contracting officer shall discontinue the withholding of payments, release any payments previously withheld, and approve the system, unless other material weaknesses remain.

+ (2) Prior to the receipt of verification, the contracting officer may discontinue withholding payments pending receipt of verification, and release any payments previously withheld, if the contractor submits evidence that the material weaknesses have been corrected, and the contracting officer, in consultation with the auditor or functional specialist, determines that there is a reasonable expectation that the corrective actions have been implemented and are expected to correct the material weaknesses.

+ (3) Within 90 days of receipt of the contractor notification that the contractor has corrected the material weaknesses, the contracting officer shall—

(i) Make a determination that—

− (A) The contractor has corrected all significant deficiencies as directed by the contracting officer’s final determination in accordance with paragraph (d)(1) of this section;

+ (A) The contractor has corrected all material weaknesses as directed by the contracting officer’s final determination in accordance with paragraph (d)(1) of this section;

(B) There is a reasonable expectation that the corrective actions have been implemented in accordance with paragraph (d)(2) of this section; or

− (C) The contractor has not corrected all significant deficiencies as directed by the contracting officer’s final determination in accordance with paragraph (d)(1) of this section, or there is not a reasonable expectation that the corrective actions have been implemented in accordance with paragraph (d)(2) of this section; or

− (ii) Reduce withholding directly related to the significant deficiencies covered under the corrective action plan by at least 50 percent of the amount being withheld from progress payments and performance-based payments, and direct the contractor, in writing, to reduce the percentage withheld on interim cost vouchers by at least 50 percent, until the contracting officer makes a determination in accordance with paragraph (d)(3)(i) of this section.

− (4) If, at any time, the contracting officer determines that the contractor has failed to correct the significant deficiencies identified in the contractor's notification, the contracting officer will continue, reinstate, or increase withholding from progress payments and performance-based payments, and direct the contractor, in writing, to continue, reinstate, or increase the percentage withheld on interim cost vouchers to the percentage initially withheld, until the contracting officer determines that the contractor has corrected all significant deficiencies as directed by the contracting officer’s final determination.

− (e) For sample formats for written notifications of contracting officer determinations to initiate payment withholding, reduce payment withholding, and discontinue payment withholding in accordance with the clause at DFARS

− 252.242-7005

− , Contractor Business Systems, see PGI

− 242.7000

− .

+ (C) The contractor has not corrected all material weaknesses as directed by the contracting officer’s final determination in accordance with paragraph (d)(1) of this section, or there is not a reasonable expectation that the corrective actions have been implemented in accordance with paragraph (d)(2) of this section; or

+ (ii)Reduce withholding directly related to the material weaknesses covered under the corrective action plan by at least 50 percent of the amount being withheld from progress payments and performance-based payments, and direct the contractor, in writing, to reduce the percentage withheld on interim cost vouchers by at least 50 percent, until the contracting officer makes a determination in accordance with paragraph (d)(3)(i) of this section.

+ (4) If, at any time, the contracting officer determines that the contractor has failed to correct the material weaknesses identified in the contractor’s notification, the contracting officer will continue, reinstate, or increase withholding from progress payments and performance-based payments, and direct the contractor, in writing, to continue, reinstate, or increase the percentage withheld on interim cost vouchers to the percentage initially withheld, until the contracting officer determines that the contractor has corrected all material weaknesses as directed by the contracting officer’s final determination.

+ (e) Sample formats. For sample formats for written notifications of contracting officer determinations to initiate payment withholding, reduce payment withholding, and discontinue payment withholding in accordance with the clause at 252.242-7005, see PGI 242.7000.

242.7201 Definitions.

− “Acceptable material management and accounting system,” “material management and accounting system,” and “valid time-phased requirements” are defined in the clause at

− 252.242-7004

+ As used in this subpart—

+ “Acceptable material management and accounting system” means a material management and accounting system that generally complies with the system criteria in paragraph (d) of the clause at 252.242-7004

, Material Management and Accounting System.

− “Significant deficiency” is defined in the clause at 252.242.7004, Material Management and Accounting System.

+ “Material management and accounting system (MMAS)” means the contractor’s system or systems for planning, controlling, and accounting for the acquisition, use, issuing, and disposition of material. Material management and accounting systems may be manual or automated. They may be stand-alone systems, or they may be integrated with planning, engineering, estimating, purchasing, inventory, accounting, or other systems.

+ “Valid time-phased requirements” means material that is—

+ (1) Needed to fulfill the production plan, including reasonable quantities for scrap, shrinkage, yield, etc.; and

+ (2) Charged or billed to contracts or other cost objectives in a manner consistent with the need to fulfill the production plan.

(b) The cognizant contracting officer, in consultation with the auditor and functional specialist, if appropriate, shall—

(1) Determine the acceptability of the contractor’s MMAS and approve or disapprove the system; and

− (2) Pursue correction of any deficiencies.

+ (2) Pursue correction of any weaknesses or deficiencies.

(c) In evaluating the acceptability of the contractor’s MMAS, the contracting officer, in consultation with the auditor and functional specialist, if appropriate, shall determine whether the contractor’s MMAS complies with the system criteria for an acceptable MMAS as prescribed in the clause at

252.242-7004

(b) Qualifying sales. Qualifying sales are sales for which certified cost or pricing data were required under 10 U.S.C. 3702, as implemented in FAR 15.403, or that are contracts priced on other than a firm-fixed-price or fixed-price with economic price adjustment basis. Sales include prime contracts, subcontracts, and modifications to such contracts and subcontracts.

(c) Disposition of findings—

− (1) Reporting of findings. The auditor or functional specialist shall document findings and recommendations in a report to the contracting officer. If the auditor or functional specialist identifies any significant MMAS deficiencies, the report shall describe the deficiencies in sufficient detail to allow the contracting officer to understand the deficiencies.

− (2) Initial determination. (i) The contracting officer shall review findings and recommendations and, if there are no significant deficiencies, shall promptly notify the contractor, in writing, that the contractor's MMAS is acceptable and approved; or

− (ii) If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at

− 252.242-7004

− , Material Management and Accounting System) due to the contractor’s failure to meet one or more of the MMAS system criteria in the clause at

− 252.242-7004

− , Material Management and Accounting System, the contracting officer shall—

− (A) Promptly make an initial written determination on any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiency;

+ (1) Reporting of findings. The auditor or functional specialist shall document findings and recommendations in a report to the contracting officer. If the auditor or functional specialist identifies any material weakness, the report shall describe the weaknesses or deficiencies in sufficient detail to allow the contracting officer to understand the weaknesses or deficiencies.

+ (2) Initial determination.

+ (i) The contracting officer shall review findings and recommendations and, if there are no material weaknesses, shall promptly notify the contractor, in writing, that the contractor’s MMAS is acceptable and approved; or

+ (ii) If the contracting officer finds that there are one or more

+ material weaknesses due to the contractor’s failure to meet one or more of the MMAS system criteria in the clause at 252.242-7004, the contracting officer shall—

+ (A) Promptly make an initial written determination on any

+ material weaknesses and notify the contractor, in writing, providing a description of each material weakness in sufficient detail to allow the contractor to understand the weakness or deficiency;

(B) Request the contractor to respond, in writing, to the initial determination within 30 days; and

− (C) Promptly evaluate the contractor's response to the initial determination in consultation with the auditor or functional specialist, and make a final determination.

− (3) Final determination. (i) The ACO shall make a final determination and notify the contractor that—

− (A) The contractor's MMAS is acceptable and approved, and no deficiencies remain, or

− (B) Significant deficiencies remain. The notice shall identify any remaining significant deficiencies, and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

− (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the deficiencies;

− (2) Disapprove the system in accordance with the clause at

− 252.242-7004

− , Material Management and Accounting System; and

− (3) Withhold payments in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems, if the clause is included in the contract.

− (ii) Follow the procedures relating to monitoring a contractor's corrective action and the correction of significant deficiencies in PGI

− 242.7203

+ (C) Promptly evaluate the contractor’s response to the initial determination in consultation with the auditor or functional specialist and make a final determination (see PGI 242.7203(c)(2)).

+ (3) Final determination.

+ (i) The ACO shall make a final determination and notify the contractor that—

+ (A) The contractor’s MMAS is acceptable and approved, and no deficiencies remain; or

+ (B) Material weaknesses remain. The notice shall identify any remaining material weaknesses and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

+ (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the weaknesses or submit an acceptable corrective action plan showing milestones and actions to eliminate the weaknesses;

+ (2) Disapprove the system in accordance with the clause at 252.242-7004; and

+ (3) Withhold payments in accordance with the clause at 252.242-7005 , Contractor Business Systems, if the clause is included in the contract.

+ (ii) Follow the procedures relating to monitoring a contractor’s corrective action and the correction of material weaknesses in PGI 242.7203

+ (c)(3)

.

− (d) System approval. The contracting officer shall promptly approve a previously disapproved MMAS and notify the contractor when the contracting officer determines that there are no remaining significant deficiencies.

+ (d) System approval. The contracting officer shall promptly approve a previously disapproved MMAS and notify the contractor when the contracting officer determines that there are no remaining material weaknesses.

(e) Contracting officer notifications. The cognizant contracting officer shall promptly distribute copies of a determination to approve a system, disapprove a system and withhold payments, or approve a previously disapproved system and release withheld payments to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities.

242.7501 Definitions.

− As used in this subpart—

− “Acceptable accounting system,” and “accounting system” are defined in the clause at

− 252.242-7006

− , Accounting System Administration.

− “Significant deficiency” is defined in the clause at

− 252.242-7006

− , Accounting System Administration.

+ “Acceptable accounting system” means a system that complies with the system criteria in paragraph (c) of the clause at 252.242-7006, Accounting System Administration,to provide reasonable assurance that—

+ (1) Applicable laws and regulations are complied with;

+ (2) The accounting system and cost data are reliable;

+ (3) Risk of misallocations and mischarges are minimized; and

+ (4) Contract allocations and charges are consistent with billing procedures.

+ “Accounting system” means the contractor’s system or systems for accounting methods, procedures, and controls established to gather, record, classify, analyze, summarize, interpret, and present accurate and timely financial data for reporting in compliance with applicable laws, regulations, and management decisions, and may include subsystems for specific areas such as indirect and other direct costs, compensation, billing, labor, and general information technology.

(b) The cognizant contracting officer, in consultation with the auditor or functional specialist, shall—

(1) Determine the acceptability of a contractor’s accounting system and approve or disapprove the system; and

− (2) Pursue correction of any deficiencies.

+ (2) Pursue correction of any weaknesses or deficiencies.

(c) In evaluating the acceptability of a contractor’s accounting system, the contracting officer, in consultation with the auditor or functional specialist, shall determine whether the contractor’s accounting system complies with the system criteria for an acceptable accounting system as prescribed in the clause at

252.242-7006

, Accounting System Administration.

(d) Disposition of findings—

− (1) Reporting of findings. The auditor shall document findings and recommendations in a report to the contracting officer. If the auditor identifies any significant accounting system deficiencies, the report shall describe the deficiencies in sufficient detail to allow the contracting officer to understand the deficiencies. Follow the procedures at PGI

− 242.7502

− for reporting of deficiencies.

− (2) Initial determination. (i) The contracting officer shall review findings and recommendations and, if there are no significant deficiencies, shall promptly notify the contractor, in writing, that the contractor's accounting system is acceptable and approved; or

− (ii) If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at

− 252.242-7006

− , Accounting System Administration) due to the contractor’s failure to meet one or more of the accounting system criteria in the clause at

− 252.242-7006

− , the contracting officer shall—

− (A) Promptly make an initial written determination on any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiency;

+ (1) Reporting of findings. The auditor shall document findings and recommendations in a report to the contracting officer. If the auditor identifies any material weakness, the report shall describe the weaknesses or deficiencies in sufficient detail to allow the contracting officer to understand the weaknesses or deficiencies. Follow the procedures at PGI 242.7502 for reporting of deficiencies.

+ (2) Initial determination.

+ (i) The contracting officer shall review findings and recommendations and, if there are no material weaknesses, shall promptly notify the contractor, in writing, that the contractor’s accounting system is acceptable and approved; or

+ (ii) If the contracting officer finds that there are one or more

+ material weaknesses due to the contractor’s failure to meet one or more of the accounting system criteria in the clause at 252.242-7006, the contracting officer shall—

+ (A) Promptly make an initial written determination on any material weaknesses and notify the contractor, in writing, providing a description of each material weakness in sufficient detail to allow the contractor to understand the weakness

+ (see PGI 242.7502(d)(2));

(B) Request the contractor to respond, in writing, to the initial determination within 30 days; and

(C) Promptly evaluate the contractor‘s response to the initial determination, in consultation with the auditor or functional specialist, and make a final determination.

− (3) Final determination. (i) The contracting officer shall make a final determination and notify the contractor, in writing, that-

− (A) The contractor's accounting system is acceptable and approved, and no significant deficiencies remain, or

− (B) Significant deficiencies remain. The notice shall identify any remaining significant deficiencies, and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall-

− (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the deficiencies;

− (2) Make a determination to disapprove the system in accordance with the clause at

− 252.242-7006

− , Accounting System Administration; and

− (3) Withhold payments in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems, if the clause is included in the contract.

− (ii) Follow the procedures relating to monitoring a contractor's corrective action and the correction of significant deficiencies in PGI

− 242.7502

− .

− (e) System approval. The contracting officer shall promptly approve a previously disapproved accounting system and notify the contractor when the contracting officer determines that there are no remaining significant deficiencies.

+ (3) Final determination.

+ (i) The contracting officer shall make a final determination and notify the contractor, in writing, that-

+ (A) The contractor’s accounting system is acceptable and approved, and no material weaknesses remain; or

+ (B) Material weaknesses remain. The notice shall identify any remaining material weaknesses and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

+ (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the weaknesses or submit an acceptable corrective action plan showing milestones and actions to eliminate the weaknesses;

+ (2) Make a determination to disapprove the system in accordance with the clause at 252.242-7006; and

+ (3) Withhold payments in accordance with the clause at 252.242-7005 , Contractor Business Systems, if the clause is included in the contract.

+ (ii) Follow the procedures relating to monitoring a contractor’s corrective action and the correction of material weaknesses in PGI 242.7502

+ (d)(3).

+ (e) System approval. The contracting officer shall promptly approve a previously disapproved accounting system and notify the contractor when the contracting officer determines that there are no remaining material weaknesses.

(f) Contracting officer notifications. The cognizant contracting officer shall promptly distribute copies of a determination to approve a system, disapprove a system and withhold payments, or approve a previously disapproved system and release withheld payments to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities.

− (g) Mitigating the risk of accounting system deficiencies on specific proposals.

− (1) Field pricing teams shall discuss identified accounting system deficiencies and their impact in all reports on contractor proposals until the deficiencies are resolved.

+ (g) Mitigating the risk of deficiencies on specific proposals.

+ (1) Field pricing teams shall discuss identified deficiencies and their impact in all reports on contractor proposals until the deficiencies are resolved.

(2) The contracting officer responsible for negotiation of a proposal generated by an accounting system with an identified deficiency shall evaluate whether the deficiency impacts the negotiations. See PGI

242.7502

244.101 Definitions.

− As used in this subpart——

− “Acceptable purchasing system” and “purchasing system” are defined in the clause at

− 252.244-7001

− , Contractor Purchasing System Administration.

− “Significant deficiency” is defined in the clause at

− 252.244-7001

− , Contractor Purchasing System Administration.

+ “Acceptable purchasing system” means a purchasing system that complies with the system criteria in paragraph (c) of the clause at 252.244-7001.

+ “Purchasing system” means the contractor’s system or systems for purchasing and subcontracting, including make-or-buy decisions, the selection of vendors, analysis of quoted prices, negotiation of prices with vendors, placing and administering of orders, and expediting delivery of materials.

244.305-70 Policy.

− Use this subsection instead of FAR 44.305-2(c) and 44.305-3(b).

+ Use this section instead of FAR 44.305-2(c) and 44.305-3(b).

(a) The cognizant contracting officer, in consultation with the purchasing system analyst or auditor, shall—

(1) Determine the acceptability of the contractor’s purchasing system and approve or disapprove the system; and

245.105 Contractors property management system compliance.

− (a) Definitions—

− (1) “Acceptable property management system” and “property management system” are defined in the clause at

− 252.245-7003

− , Contractor Property Management System Administration.

− (2) “Significant deficiency” is defined in the clause at

− 252.245-7003

− , Contractor Property Management System Administration.

+ (a) Definitions

+ . As used in this subpart—

+ “Acceptable property management system” means a property system that complies with the system criteria in paragraph (c) of the clause at 252.245-7003, Contractor Property Management Administration.

+ “Property management system” means the contractor’s system or systems for managing and controlling Government property.

(b) Policy. The cognizant contracting officer, in consultation with the property administrator, shall—

(1) Determine the acceptability of the system and approve or disapprove the system; and

− (2) Pursue correction of any deficiencies.

+ (2) Pursue correction of any weaknesses or deficiencies.

(c) In evaluating the acceptability of a contractor’s property management system, the contracting officer, in consultation with the property administrator, shall determine whether the contractor’s property management system complies with the system criteria for an acceptable property management system as prescribed in the clause at

252.245-7003

, Contractor Property Management System Administration.

(d) Disposition of findings—

− (1) Reporting of findings. The property administrator shall document findings and recommendations in a report to the contracting officer. If the property administrator identifies any significant property system deficiencies, the report shall describe the deficiencies in sufficient detail to allow the contracting officer to understand the deficiencies.

− (2) Initial determination. (i) The contracting officer shall review findings and recommendations and, if there are no significant deficiencies, shall promptly notify the contractor, in writing, that the contractor’s property management system is acceptable and approved; or

− (ii) If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at

− 252.245-7003

− , Contractor Property Management System Administration) due to the contractor’s failure to meet one or more of the property management system criteria in the clause at

− 252.245-7003

− , the contracting officer shall—

− (A) Promptly make an initial written determination on any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiency;

+ (1) Reporting of findings. The property administrator shall document findings and recommendations in a report to the contracting officer. If the property administrator identifies any material weaknesses, the report shall describe the underlying deficiencies in sufficient detail to allow the contracting officer to understand the weaknesses or deficiencies.

+ (2) Initial determination.

+ (i) The contracting officer shall review findings and recommendations and, if there are no material weaknesses, shall promptly notify the contractor, in writing, that the contractor’s property management system is acceptable and approved; or

+ (ii) If the contracting officer finds that there are one or more

+ material weaknesses due to the contractor’s failure to meet one or more of the property management system criteria in the clause at 252.245-7003, the contracting officer shall—

+ (A) Promptly make an initial written determination on any material weaknesses and notify the contractor, in writing, providing a description of each material weakness in sufficient detail to allow the contractor to understand the weakness

+ (see PGI 245.105(d)(2));

(B) Request the contractor to respond, in writing, to the initial determination within 30 days and;

(C) Evaluate the contractor’s response to the initial determination, in consultation with the property administrator, and make a final determination.

− (3) Final determination. (i) The contracting officer shall make a final determination and notify the contractor, in writing, that—

− (A) The contractor's property management system is acceptable and approved, and no significant deficiencies remain, or

− (B) Significant deficiencies remain. The notice shall identify any remaining significant deficiencies, and indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

− (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the deficiencies;

− (2) Disapprove the system in accordance with the clause at

− 252.245-7003

− , Contractor Property Management System Administration; and

− (3) Withhold payments in accordance with the clause at

− 252.242-7005

− , Contractor Business Systems, if the clause is included in the contract.

− (ii) Follow the procedures relating to monitoring a contractor's corrective action and the correction of significant deficiencies in PGI

− 245.105

− .

− (e) System approval. The contracting officer shall promptly approve a previously disapproved property management system and notify the contractor when the contracting officer determines, in consultation with the property administrator, that there are no remaining significant deficiencies.

+ (3) Final determination.

+ (i) The contracting officer shall make a final determination and notify the contractor, in writing, that—

+ (A) Promptly make an initial written determination on any material weaknesses and notify the contractor, in writing, providing a description of each material weakness in sufficient detail to allow the contractor to understand the weakness

+ (see PGI 245.105(d)(2));

+ (B) Material weaknesses remain. The notice shall identify any remaining material weaknessesand indicate the adequacy of any proposed or completed corrective action. The contracting officer shall—

+ (1) Request that the contractor, within 45 days of receipt of the final determination, either correct the weaknesses or submit an acceptable corrective action plan showing milestones and actions to eliminate the weaknesses;

+ (2) Disapprove the system in accordance with the clause at 252.245-7003; and

+ (3) Withhold payments in accordance with the clause at 252.242-7005 , Contractor Business Systems, if the clause is included in the contract.

+ (ii) Follow the procedures relating to monitoring a contractor’s corrective action and the correction of material weaknesses in PGI 245.105

+ (d)(3).

+ (e) System approval. The contracting officer shall promptly approve a previously disapproved property management system and notify the contractor when the contracting officer determines, in consultation with the property administrator, that there are no remaining material weaknesses.

(f) Contracting officer notifications. The cognizant contracting officer shall promptly distribute copies of a determination to approve a system, disapprove a system and withhold payments, or approve a previously disapproved system and release withheld payments to the auditor; payment office; affected contracting officers at the buying activities; and cognizant contracting officers in contract administration activities.

, and shall not be used for any other purpose.

(2) The Contractor shall protect the information against unauthorized release or disclosure.

− (3) The Contractor shall ensure that its employees are subject to use and non-disclosure obligations consistent with this clause prior to the employees being provided access to or use of the information.

− (4) The third-party contractor that reported the cyber incident is a third-party beneficiary of the non-disclosure agreement between the Government and Contractor, as required by paragraph (b)(3) of this clause.

+ (3) The Contractor shall ensure that its employees are subject to use and nondisclosure obligations consistent with this clause prior to the employees being provided access to or use of the information.

+ (4) The third-party contractor that reported the cyber incident is a third-party beneficiary of the nondisclosure agreement between the Government and Contractor, as required by paragraph (b)(3) of this clause.

(5) A breach of these obligations or restrictions may subject the Contractor to—

(i) Criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and

or as critical technology as part of any system, unless a waiver

is granted.

− Representation. If in its annual representations and certifications

− in SAM the Offeror has represented in paragraph (c) of the provision

− at 252.204-7016 , Covered

− Defense Telecommunications Equipment or Services—Representation,

− that it “does” provide covered defense telecommunications equipment

− or services as a part of its offered products or services to the

− Government in the performance of any contract, subcontract, or other

− contractual instrument, then the Offeror shall complete the following additional

− representation:

+ (d) Representation. If in its annual representations and certifications in SAM the Offeror has represented in paragraph (c) of the provision at 252.204-7016 , Covered Defense Telecommunications Equipment or Services—Representation, that it “does” provide covered defense telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument, then the Offeror shall complete the following additional representation:

The Offeror represents that it [ ] will [ ] will not provide

covered defense telecommunications equipment or services as a part of

215.408

(1), use the following clause:

− COST ESTIMATING SYSTEM REQUIREMENTS (DEC 2012)

+ COST ESTIMATING SYSTEM REQUIREMENTS (JAN 2025)

(a) Definitions.

“Acceptable estimating system” means an estimating system that complies with the system criteria in paragraph (d) of this clause, and provides for a system that—

(a) The Government has the right to perform a program should-cost review, as described in Federal Acquisition Regulation (FAR) 15.407-4(b). The review may be conducted in support of a particular contract proposal or during contract performance to find opportunities to reduce program costs. The Government will communicate the elements of the proposed should-cost review to the prime contractor (Pub. L. 115-91).

(b) If the Government performs a program should-cost review, upon the Government’s request, the Contractor shall provide access to accurate and complete cost data and Contractor facilities and personnel necessary to permit the Government to perform the program should-cost review.

− (c) The Government has the right to use third-party experts to supplement the program should-cost review team. The Contractor shall provide access to the Contractor’s facilities and information necessary to support the program should-cost review to any third-party experts who have signed non-disclosure agreements in accordance with the FAR 52.203-16.

+ (c) The Government has the right to use third-party experts to supplement the program should-cost review team. The Contractor shall provide access to the Contractor’s facilities and information necessary to support the program should-cost review to any third-party experts who have signed nondisclosure agreements in accordance with the FAR 52.203-16.

(End of clause)

225.7204

(a), use the following provision:

− REPORT OF INTENDED PERFORMANCE OUTSIDE THE UNITED STATES AND CANADA—SUBMISSION WITH OFFER (OCT 2020)

+ REPORT OF INTENDED PERFORMANCE OUTSIDE THE UNITED STATES AND CANADA—SUBMISSION WITH OFFER (JAN 2025)

(a) Definition. “United States,” as used in this provision, means the 50 States, the District of Columbia, and outlying areas.

− (b) The offeror shall submit, with its offer, a report of intended performance outside the United States and Canada if—

+ (b) The Offeror shall submit, with its offer, a report of intended performance outside the United States and Canada if—

(1) The offer exceeds $15 million in value; and

− (2) The offeror is aware that the offeror or a first-tier subcontractor intends to perform any part of the contract outside the United States and Canada that—

+ (2) The Offeror is aware that the Offeror or a first-tier subcontractor intends to perform any part of the contract outside the United States and Canada that—

(i) Exceeds $750,000 in value; and

(ii) Could be performed inside the United States or Canada.

252.227-7013 Rights in Technical Data—Other Than Commercial Products and Commercial Services.

− As prescribed in 227.7103-6 (a), use the

− following clause:

− RIGHTS IN TECHNICAL DATA—OTHER THAN

− COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (MAR 2023)

+ As prescribed in 227.7102-4(b) and

+ 227.7103-6 (a), use the following clause:

+ RIGHTS IN TECHNICAL DATA—OTHER THAN COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (JAN 2025)

(a) Definitions. As

used in this clause—

− (1) “Computer data base”

− means a collection of data recorded in a form capable of being processed

− by a computer. The term does not include computer software.

− (2) “Computer program” means

− a set of instructions, rules, or routines recorded in a form that

− is capable of causing a computer to perform a specific operation

− or series of operations.

− (3) “Computer software” means

− computer programs, source code, source code listings, object code

− listings, design details, algorithms, processes, flow charts, formulae

− and related material that would enable the software to be reproduced,

− recreated, or recompiled. Computer software does not include computer

− data bases or computer software documentation.

− (4) “Computer software documentation”

− means owner's manuals, user's manuals, installation instructions,

− operating instructions, and other similar items, regardless of storage

− medium, that explain the capabilities of the computer software or

− provide instructions for using the software.

− (5)”Covered Government support

− contractor” means a contractor (other than a litigation support

− contractor covered by 252.204-7014) under a

− contract, the primary purpose of which is to furnish independent

− and impartial advice or technical assistance directly to the Government

− in support of the Government’s management and oversight of a program or

− effort (rather than to directly furnish an end item or service to

− accomplish a program or effort), provided that the contractor—

− (i) Is not affiliated with

− the prime contractor or a first-tier subcontractor on the program

− or effort, or with any direct competitor of such prime contractor

− or any such first-tier subcontractor in furnishing end items or

− services of the type developed or produced on the program or effort;

− and

− (ii) Receives access to technical

− data or computer software for 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.

− (6) “Detailed manufacturing

− or process data” means technical data that describe the steps, sequences,

− and conditions of manufacturing, processing or assembly used by

− the manufacturer to produce an item or component or to perform a

− process.

− (7) “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. Whether, how

− much, and what type of analysis or testing is required to establish

− workability depends on the nature of the item, component, or process,

− and the state of the art. 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.

− (8) “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.

− (i) Private expense determinations

− should be made at the lowest practicable level.

− (ii) Under fixed-price contracts,

− when total costs are greater than the firm-fixed-price or ceiling

− price of the contract, the additional development costs necessary

− to complete development shall not be considered when determining whether

− development was at government, private, or mixed expense.

− (9) “Developed exclusively

− with government funds” means development was not accomplished exclusively

− or partially at private expense.

− (10) “Developed with mixed

− funding” means development was accomplished partially with costs

− charged to indirect cost pools and/or costs not allocated to a government

− contract, and partially with costs charged directly to a government contract.

− (11) “Form, fit, and function

− data” means technical data that describes the required overall physical,

− functional, and performance characteristics (along with the qualification

− requirements, if applicable) of an item, component, or process to

− the extent necessary to permit identification of physically and

− functionally interchangeable items.

− (12) “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.

− (13) “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.

− (14) “Limited rights” means

− the rights to use, modify, reproduce, release, perform, display,

− or disclose technical data, in whole or in part, within the Government.

− The Government may not, without the written permission of the party

− asserting limited rights, release or disclose the technical data

− outside the Government, use the technical data for manufacture, or

− authorize the technical data to be used by another party, except

− that the Government may reproduce, release, or disclose such data

− or authorize the use or reproduction of the data by persons outside

− the Government if—

− (i) The reproduction, release,

− disclosure, or use is—

− (A) Necessary for emergency

− repair and overhaul; or

− (B) A release or disclosure

− to—

− (1) A covered Government

− support contractor in performance of its covered Government support

− contract for use, modification, reproduction, performance, display,

− or release or disclosure to a person authorized to receive limited

− rights technical data; or

− (2) A foreign government,

− of technical data other than detailed manufacturing or process data,

− when use of such data by the foreign government is in the interest

− of the Government and is required for evaluational or informational

− purposes;

− (ii) The recipient of the

− technical data is subject to a prohibition on the further reproduction,

− release, disclosure, or use of the technical data; and

− (iii) The contractor or subcontractor

− asserting the restriction is notified of such reproduction, release,

− disclosure, or use.

− (15) “Technical data” means recorded information,

− regardless of the form or method of the recording, of a scientific

− or technical nature (including computer software documentation). The

− term does not include computer software or data financial, administrative, cost or

− pricing, or management information, or information incidental to

− contract administration.

− (16) “Unlimited rights” means

− rights to use, modify, reproduce, perform, 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.

− (b) Rights in technical data. The Contractor grants or shall obtain for the Government the following royalty free, worldwide, nonexclusive, irrevocable license rights in technical data other than computer software documentation (see the Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation clause of this contract for rights in computer software documentation):

+ “Computer data base” means a collection of data recorded in a form capable of being processed by a computer. The term does not include computer software.

+ “Computer program” means a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

+ “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer data bases or computer software documentation.

+ “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

+ ”Covered Government support contractor” means a contractor (other than a litigation support contractor covered by 252.204-7014) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort, (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor—

+ (1) Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

+ (2) Receives access to technical data or computer software for 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.

+ “Detailed manufacturing or process data” means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.

+ “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. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. 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.

+ “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.

+ (1) Private expense determinations should be made at the lowest practicable level.

+ (2) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at Government, private, or mixed expense.

+ “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

+ “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

+ “Form, fit, and function data” means technical data that describe the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

+ “Generated” means, with regard to technical data or computer software, first created in the performance of this contract.

+ “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—

+ (1) Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and

+ (2) 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.

+ “Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the data by persons outside the Government if—

+ (1) The reproduction, release, disclosure, or use is—

+ (i) Necessary for emergency repair and overhaul; or

+ (ii) A release or disclosure to—

+ (A) A covered Government support contractor in performance of its covered Government support contract for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or

+ (B) A foreign government, of technical data other than detailed manufacturing or process data, when use of such data by the foreign government is in the interest of the Government and is required for evaluational or informational purposes;

+ (2) The recipient of the technical data is subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and

+ (3) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

+ “Small Business Innovation Research/Small Business” Technology Transfer (SBIR/STTR) data means all technical data or computer software developed or generated in the performance of a phase I, II, or III SBIR/STTR contract or subcontract.

+ “Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data financial, administrative, cost or pricing, or management information, or information incidental to contract administration.

+ “Unlimited rights” means rights to use, modify, reproduce, perform, 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.

+ (b) Applicability.

+ (1) Except as provided in paragraph (b)(2) of this clause—

+ (i) This clause governs all technical data pertaining to other than commercial products or commercial services or to any portion of a commercial product or commercial servicethat was developed in any part at Government expense; and

+ (ii) The clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7015, Technical Data—Commercial Products and Commercial Services, governs the technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense.

+ (2) The clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, governs technical data that are SBIR/STTR data.

+ (c) Rights in technical data. The Contractor grants or shall obtain for the Government the following royalty free, worldwide, nonexclusive, irrevocable license rights in technical data other than computer software documentation (see the DFARS 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, clause of this contract for rights in computer software documentation):

(1) Unlimited rights.

The Government shall have unlimited rights in technical data that

227.7203-6

(a)(1), use the following clause:

− RIGHTS IN OTHER THAN COMMERCIAL

− COMPUTER SOFTWARE AND OTHER THAN COMMERCIAL COMPUTER SOFTWARE

− DOCUMENTATION (MAR 2023)

+ RIGHTS IN OTHER THAN COMMERCIAL COMPUTER SOFTWARE AND OTHER THAN COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION (JAN 2025)

(a) Definitions. As used in this clause—

− (1) “Commercial computer software” means software developed or regularly used for non-governmental purposes which—

− (i) Has been sold, leased, or licensed to the public;

− (ii) Has been offered for sale, lease, or license to the public;

− (iii) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

− (iv) Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.

− (2) “Computer database” means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.

− (3) “Computer program” means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

− (4) “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer databases or computer software documentation.

− (5) “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

− (6) "Covered Government support contractor" means a contractor (other than a litigation support contractor covered by

− 252.204-7014

− ) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor—

− (i) Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

− (ii) Receives access to technical data or computer software for 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.

− (7) “Developed” means that—

− (i) A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

− (ii) Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

− (iii) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

− (8) “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.

− (i) Private expense determinations should be made at the lowest practicable level.

− (ii) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

− (9) “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

− (10) “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

− (11) “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 computer software or computer software documentation for commercial purposes or authorize others to do so.

− (12) “Government purpose rights” means the rights to—

− (i) Use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation within the Government without restriction; and

− (ii) Release or disclose computer software or computer software documentation outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the software or documentation for United States government purposes.

− (13) “Minor modification” means a modification that does not significantly alter the nongovernmental function or purpose of the software or is of the type customarily provided in the commercial marketplace.

− (14) “Other than commercial computer software” means software that does not qualify as commercial computer software under the definition of “commercial computer software” of this clause.

− (15) “Restricted rights” apply only to other than commercial computer software and mean the Government's rights to—

− (i) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

− (ii) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;

− (iii) Make a reasonable number of copies of

− the computer software required for the purposes of safekeeping

− (archive), backup, or modification,

− or other activities authorized in

− paragraphs (a)(15)(i), (ii), and (iv) through (vii) of this

− clause;

− (iv) Modify computer software provided that the Government may—

− (A) Use the modified software only as provided in paragraphs (a)(15)(i) and (iii) of this clause; and

− (B) Not release or disclose the modified software except as provided in paragraphs (a)(15)(ii), (v), (vi) and (vii) of this clause;

− (v) Use, and permit contractors or

− subcontractors performing service contracts (see 37.101 of the

− Federal Acquisition Regulation) in support of this or a related

− contract to use computer software to diagnose and correct

− deficiencies in a computer program, to modify computer software to

− enable a computer program to be combined with, adapted to, or merged

− with other computer programs or when necessary to respond to urgent

− tactical situations, provided that—

− (A) The Government notifies the party which has

− granted restricted rights that any such release or disclosure to

− particular contractors or subcontractors was made;

− (B) Such contractors or subcontractors are

− subject to the use and nondisclosure agreement at 227.7103-7 of the Defense Federal

− Acquisition Regulation Supplement (DFARS) or are Government

− contractors receiving access to the software for performance of a

− Government contract that contains the clause at DFARS 252.227-7025 , Limitations on the Use

− or Disclosure of Government-Furnished Information Marked with

− Restrictive Legends;

− (C) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and

− (D) Such use is subject to the limitations in paragraphs (a)(15)(i) through (iii) of this clause;

− (vi) Use, and permit contractors or

− subcontractors performing emergency repairs or overhaul of items or

− components of items procured under this or a related contract to use, the computer software when

− necessary to perform the emergency repairs or overhaul, or

− to modify the computer software to reflect the repairs or overhaul

− made, provided that—

− (A) The intended recipient is subject to the use

− and nondisclosure agreement at DFARS 227.7103-7 or is a Government

− contractor receiving access to the software for performance of a

− Government contract that contains the clause at DFARS 252.227-7025 , Limitations on the Use

− or Disclosure of Government-Furnished Information Marked with

− Restrictive Legends;

− (B) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and

− (C) Such use is subject to the limitations in paragraphs (a)(15)(i) through (iii) of this clause; and

− (vii) Use, modify, reproduce, perform,

− display, or release or disclose computer software to a person

− authorized to receive restricted rights computer software for

− management and oversight of a program or effort, and permit

− covered Government support contractors in the performance of covered

− Government support contracts that contain the clause at 252.227-7025 , Limitations on the Use

− or Disclosure of Government-Furnished Information Marked with

− Restrictive Legends, to use, modify, reproduce, perform, display, or

− release or disclose the computer software to a person authorized to

− receive restricted rights computer software, provided that—

− (A) The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(15)(iv) of this clause, for any other purpose; and

− (B) Such use is subject to the limitations in paragraphs (a)(15)(i) through (iv) of this clause.

− (16) “Unlimited rights” means rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

− (b) Rights in computer software or computer software documentation. The Contractor grants or shall obtain for the Government the following royalty free, worldwide, nonexclusive, irrevocable license rights in other than commercial computer software or computer software documentation. All rights not granted to the Government are retained by the Contractor.

+ “Commercial computer software” means software developed or regularly used for non-governmental purposes which—

+ (1) Has been sold, leased, or licensed to the public;

+ (2) Has been offered for sale, lease, or license to the public;

+ (3) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

+ (4) Satisfies a criterion expressed in paragraph (1), (2), or (3) of this definition and would require only minor modification to meet the requirements of this contract.

+ “Computer database” means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.

+ “Computer program” means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

+ “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer databases or computer software documentation.

+ “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

+ "Covered Government support contractor" means a contractor (other than a litigation support contractor covered by 252.204-7014 ) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor—

+ (1) Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

+ (2) Receives access to technical data or computer software for 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.

+ “Developed” means that—

+ (1) A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

+ (2) Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

+ (3) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

+ “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.

+ (1) Private expense determinations should be made at the lowest practicable level.

+ (2) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

+ “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

+ “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

+ “Generated” means, with regard to technical data or computer software, first created in the performance of this contract.

+ “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 computer software or computer software documentation for commercial purposes or authorize others to do so.

+ “Government purpose rights” means the rights to—

+ (1) Use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation within the Government without restriction; and

+ (2) Release or disclose computer software or computer software documentation outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the software or documentation for United States government purposes.

+ “Minor modification” means a modification that does not significantly alter the nongovernmental function or purpose of the software or is of the type customarily provided in the commercial marketplace.

+ “Other than commercial computer software” means software that does not qualify as commercial computer software under the definition of “commercial computer software” of this clause.

+ “Restricted rights” apply only to other than commercial computer software and mean the Government's rights to—

+ (1) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

+ (2) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;

+ (3) Make a reasonable number of copies of the computer software required for the purposes of safekeeping (archive), backup, modification, or other activities authorized in paragraphs (1), (2), and (4) through (7) of this definition;

+ (4) Modify computer software provided that the Government may—

+ (i) Use the modified software only as provided in paragraphs (1) and (3) of this definition; and

+ (ii) Not release or disclose the modified software except as provided in paragraphs (2), (5), (6), and (7) of this definition;

+ (5) Use, and permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that—

+ (i) The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made;

+ (ii) Such contractors or subcontractors are subject to the use and nondisclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS) or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

+ (iii) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

+ (iv) Such use is subject to the limitations in paragraphs (1) through (3) of this definition;

+ (6) Use, and permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use, the computer software when necessary to perform or overhaul, or to modify the computer software to reflect the emergency repairs or overhaul made, provided that—

+ (i) The intended recipient is subject to the use and nondisclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

+ (ii) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

+ (iii) Such use is subject to the limitations in paragraphs (1) through (3) of this definition; and

+ (7) Use, modify, reproduce, perform, display, or release or disclose computer software to a person authorized to receive restricted rights computer software for management and oversight of a program or effort, and permit covered Government support contractors in the performance of covered Government support contracts that contain the clause at 252.227–7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted rights computer software, provided that—

+ (i) The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

+ (ii) Such use is subject to the limitations in paragraphs (1) through (4) of this definition.

+ “Small Business Innovation Research/Small Business Technology Transfer (SBIR/STTR) data” means all technical data or computer software developed or generated in the performance of a phase I, II, or III SBIR/STTR contract or subcontract.

+ “Unlimited rights” means rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

+ (b) Applicability. This clause governs all other than commercial computer software or other than commercial computer software documentation, except that the clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software--Small Business Innovation Research Program and Small Business Technology Transfer Program, governs any computer software or computer software documentation that is SBIR/STTR data.

+ (c) Rights in computer software or computer software documentation. The Contractor grants or shall obtain for the Government the following royalty free, worldwide, nonexclusive, irrevocable license rights in other than commercial computer software or computer software documentation. All rights not granted to the Government are retained by the Contractor.

(1) Unlimited rights. The Government shall have unlimited rights in—

(i) Computer software developed exclusively with Government funds;

As prescribed in 227.7102-4 (a)(1), use

the following clause:

− TECHNICAL DATA—COMMERCIAL PRODUCTS AND COMMERCIAL

− SERVICES (MAR 2023)

+ TECHNICAL DATA—COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (JAN 2025)

(a) Definitions. As

used in this clause—

− (1) Commercial product and commercial service

− includes commercial components and commercial processes but does not include commercial computer software.

− (2) “Covered Government support

− contractor” means a contractor (other than a litigation support

− contractor covered by 252.204-7014 ) under a

− contract, the primary purpose of which is to furnish independent

− and impartial advice or technical assistance directly to the Government

− in support of the Government’s management and oversight of a program or

− effort (rather than to directly furnish an end item or service to

− accomplish a program or effort), provided that the contractor—

− (i) Is not affiliated with

− the prime contractor or a first-tier subcontractor on the program

− or effort, or with any direct competitor of such prime contractor

− or any such first-tier subcontractor in furnishing end items or

− services of the type developed or produced on the program or effort;

− and

− (ii) Receives access to technical

− data or computer software for 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.

− (3) “Form, fit, and function

− data” means technical data that describes the required overall physical,

− functional, and performance characteristics (along with the qualification

− requirements, if applicable) of an item, component, or process to

− the extent necessary to permit identification of physically and

− functionally interchangeable items.

− (4) “Technical data” means recorded information, regardless

− of the form or method of recording, of a scientific or technical nature

− (including computer software documentation). The term does not include computer

− software or financial, administrative, cost or pricing, or

− management information, or information incidental to contract

− administration.

− (b) License.

+ “Commercial product and commercial service” includes commercial components and commercial processes but does not include commercial computer software.

+ “Covered Government support contractor” means a contractor (other than a litigation support contractor covered by 252.204-7014 ) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor—

+ (1) Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

+ (2) Receives access to technical data or computer software for 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.

+ “Form, fit, and function data” means technical data that describe the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

+ “Technical data” means recorded information, regardless of the form or method of recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or financial, administrative, cost or pricing, or management information, or information incidental to contract administration.

+ (b) Applicability. This clause governs the technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense. If the commercial product or commercial service was developed in any part at Government expense—

+ (1) The clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, governs technical data that are generated during any portion of performance that is covered under the Small Business Innovation Research (SBIR) Program or Small Business Technology Transfer (STTR) Program; and

+ (2) The clause at DFARS 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, governs the technical data pertaining to any portion of a commercial product or commercial service that was developed in any part at Government expense and is not covered under the SBIR or STTR program.

+ (c) License.

(1) The Government shall

have the unrestricted right to use, modify, reproduce, release,

252.227-7016 Rights in Bid or Proposal Information.

− As prescribed in 227.7103-6(e)(1), 227.7104 (e)(1), or 227.7203-6 (b), use the

− following clause:

+ As prescribed in 227.7103-6(e)(1), 227.7104

+ -4(b)(1), or 227.7203-6(b), use the following clause:

RIGHTS IN BID OR PROPOSAL INFORMATION

(JAN 2023)

− (a) Definitions.

− (1) For contracts that require the delivery of technical data, the terms “technical data” and “computer software” are defined in the Rights in Technical Data—Other Than Commercial Products and Commercial Services clause of this contract or, if this is a contract awarded under the Small Business Innovation Research Program, the Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program clause of this contract.

− (2) For contracts that do not require the delivery of technical data, the term “computer software” is defined in the Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation clause of this contract or, if this is a contract awarded under the Small Business Innovation Research Program, the Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program clause of this contract.

− (b Government rights prior to contract

− award. By submission of its offer, the Offeror agrees that the Government—

+ (a) Definitions. As used in this clause—

+ “Computer software” is defined in—

+ (1) The 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, clause of this contract; or

+ (2) If this is a contract awarded under the Small Business Innovation Research Program or Small Business Technology Transfer Program, the 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, clause of this contract.

+ “Technical data” is defined in—

+ (1) The 252.227-7013, Rights in Technical Data— Other Than Commercial Products and Commercial Services, clause of this contract; or

+ (2) If this is a contract awarded under the Small Business Innovation Research Program or Small Business Technology Transfer Program, the 252.227-7018,

+ Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer

+ Program, clause of this contract.

+ (b) Government rights prior to contract award. By submission of its offer, the Offeror agrees that the Government—

(1) May reproduce the bid or proposal,

or any portions thereof, to the extent necessary to evaluate the

252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions.

− As prescribed in

− 227.7104

− (e)(2), or

− 227.7203-3

− (a), use the following provision:

− IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE RESTRICTIONS (JAN 2023)

− (a) The terms used in this provision are defined in following clause or clauses contained in this solicitation—

− (1) If a successful offeror will be required to deliver technical data, the Rights in Technical Data—Other Than Commercial Products and Commercial Services clause, or, if this solicitation contemplates a contract under the Small Business Innovation Research Program, the Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program clause.

− (2) If a successful offeror will not be required to deliver technical data, the Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation clause, or, if this solicitation contemplates a contract under the Small Business Innovation Research Program, the Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program clause.

− (b) The identification and assertion requirements in this provision apply only to technical data, including computer software documentation, or computer software to be delivered with other than unlimited rights. For contracts to be awarded under the Small Business Innovation Research Program, the notification and identification requirements do not apply to technical data or computer software that will be generated under the resulting contract. Notification and identification is not required for restrictions based solely on copyright.

+ As prescribed in 227.7103-3(b), 227.7104

+ -4(b)(2), or 227.7203-3(a), use the following provision:

+ IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE RESTRICTIONS (JAN 2025)

+ (a) Definitions.

+ As used in this provision—

+ “Computer software” is defined in—

+ (1) The 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, clause of this solicitation; or

+ (2) If this solicitation contemplates a contract under the Small Business Innovation Research Program or Small Business Technology Transfer Program,the 252.227-7018, Rights in Other Than CommercialTechnical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, clause of this solicitation.

+ “SBIR/STTR data” is defined in the 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, clause of this solicitation.

+ “Technical data” is defined in—

+ (1) The 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, clause of this solicitation; or

+ (2) If this solicitation contemplates a contract under the Small Business Innovation Research Program or Small Business Technology Transfer Program, the 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, clause of this solicitation.

+ (b) The identification and assertion requirements in this provision apply only to technical data, including computer software documentation, or computer software to be delivered with other than unlimited rights. For contracts to be awarded under the Small Business Innovation Research (SBIR) Program or Small Business Technology Transfer (STTR) Program, theserequirements apply to SBIR/STTR data that will be generated under the resulting contract and will be delivered with SBIR/STTR data rights and to any other data that will be delivered with other than unlimited rights. Notification and identification are not required for restrictions based solely on copyright.

(c) Offers submitted in response to this solicitation shall identify, to the extent known at the time an offer is submitted to the Government, the technical data or computer software that the Offeror, its subcontractors or suppliers, or potential subcontractors or suppliers, assert should be furnished to the Government with restrictions on use, release, or disclosure.

− (d) The Offeror's assertions, including the assertions of its subcontractors or suppliers or potential subcontractors or suppliers, shall be submitted as an attachment to its offer in the following format, dated and signed by an official authorized to contractually obligate the Offeror:

+ (d) The Offeror’s assertions, including the assertions of its subcontractors or suppliers or potential subcontractors or suppliers[,] shall be submitted as an attachment to its offer in the following format, dated and signed by an official authorized to contractually obligate the Offeror:

Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data or Computer Software.

The Offeror asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data or computer software should be restricted:

− Technical Data or

− Computer Software

− Name of Person

− to be Furnished

− Basis for

− Asserted Rights

− Asserting

− With Restrictions*

− Assertion**

− Category***

− Restrictions****

+ Technical Data or Computer Software to be Furnished With Restrictions*

+ [1]

+ Basis for Assertion**

+ [2]

+ Asserted Rights Category***

+ [3]

+ Name of Person Asserting Restrictions****

+ [4]

(LIST)*****

+ [5]

(LIST)

(LIST)

(LIST)

− *For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify both the deliverable technical data and each such item, component, or process. For computer software or computer software documentation identify the software or documentation.

− **Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The Government's rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether development was accomplished exclusively or partially at private expense. If development was not accomplished at private expense, or for computer software documentation, enter the specific basis for asserting restrictions.

− ***Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract, limited, restricted, or government purpose rights under this or a prior contract, or specially negotiated licenses).

− ****Corporation, individual, or other person, as appropriate.

− *****Enter “none” when all data or software will be submitted without restrictions.

+ *

+ [1]

+ For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify both the deliverable technical data and each such item, component, or process. For computer software or computer software documentation identify the software or documentation.

+ **

+ [2]

+ Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions. For technical data, other than computer software documentation, development refers to development of the item, component, or process to which the data pertain. The Government's rights in computer software documentation generally may not be restricted. For computer software, development refers to the software. Indicate whether development was accomplished exclusively or partially at private expense. If development was not accomplished at private expense, or for computer software documentation, enter the specific basis for asserting restrictions.

+ ***

+ [3]

+ Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract, limited, restricted, or government purpose rights under this or a prior contract, or specially negotiated licenses).

+ ****

+ [4]

+ Corporation, individual, or other person, as appropriate.

+ *****

+ [5]

+ Enter “none” when all data or software will be submitted without restrictions.

Date

_________________________________

− 252.227-7018 Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program.

− As prescribed in

− 227.7104

− (a), use the following clause:

− RIGHTS IN OTHER THAN COMMERCIAL

− TECHNICAL DATA AND COMPUTER SOFTWARE—SMALL BUSINESS INNOVATION

− RESEARCH (SBIR) PROGRAM (NOV 2023)

+ 252.227-7018 Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program.

+ As prescribed in 227.7104

+ -4(a)(1), use the following clause:

+ RIGHTS IN OTHER THAN COMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE—SMALL BUSINESS INNOVATION RESEARCH PROGRAM AND SMALL BUSINESS TECHNLOGY TRANSFER PROGRAM(JAN 2025)

(a) Definitions. As used in this clause -

− (1) Commercial computer software means software developed or regularly used for nongovernmental purposes which -

− (i) Has been sold, leased, or licensed to the public;

− (ii) Has been offered for sale, lease, or license to the public;

− (iii) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

− (iv) Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.

− (2) Computer database means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.

− (3) Computer program means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

− (4) Computer software means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, re-created, or recompiled. Computer software does not include computer databases or computer software documentation.

− (5) Computer software documentation means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

− (6) Covered Government support contractor means a contractor (other than a litigation support contractor covered by 252.204-7014) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government's management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor -

− (i) Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

− (ii) Receives access to the technical data or computer software for 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.

− (7) Detailed manufacturing or process data means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.

− (8) Developed means -

− (i) (Applicable to technical data other than computer software documentation.) 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. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. 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;

− (ii) A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

− (iii) Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

− (iv) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

− (9) 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.

− (i) Private expense determinations should be made at the lowest practicable level.

− (ii) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

− (10) Developed exclusively with government funds means development was not accomplished exclusively or partially at private expense.

− (11) Developed with mixed funding means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

− (12) Form, fit, and function data means technical data that describe the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

− (13) Generated means technical data or computer software first created in the performance of this contract.

− (14) 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 or computer software for commercial purposes or authorize others to do so.

− (15) “Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the data by persons outside the Government if -

− (i) The reproduction, release, disclosure, or use is -

− (A) Necessary for emergency repair and overhaul;

− or

− (B) A release or disclosure to -

− (1) A covered Government support contractor in performance of its covered Government support contracts for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or

− (2) A foreign government, of technical data other than detailed manufacturing or process data, when use of such data by the foreign government is in the interest of the Government and is required for evaluational or informational purposes;

− (ii) The recipient of the technical data is subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and

− (iii) The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

− (16) Minor modification means a modification that does not significantly alter the nongovernmental function or purpose of computer software or is of the type customarily provided in the commercial marketplace.

− (17)

− Other than commercial computer software means software that does not qualify as commercial computer software under the definition of “commercial computer software” of this clause.

− (18) “Restricted rights” apply only to other than commercial computer software and mean the Government's rights to -

− (i) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

− (ii) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;

− (iii) Make a reasonable number of copies of the

− computer software required for the purposes of safekeeping

− (archive), backup, modification , or other activities authorized in

− paragraphs (a)(18)(i), (ii), and (iv) through (vii) of this clause

− ;

− (iv) Modify computer software provided that the Government may -

− (A) Use the modified software only as provided in paragraphs (a)(18)(i) and (iii) of this clause; and

− (B) Not release or disclose the modified software except as provided in paragraphs (a)(18)(ii), (v), (vi), and (vii) of this clause;

− (v) Use, and permit contractors or

− subcontractors performing service contracts (see 37.101 of the

− Federal Acquisition Regulation) in support of this or a related

− contract to use computer software to diagnose and correct

− deficiencies in a computer program, to modify computer software to

− enable a computer program to be combined with, adapted to, or merged

− with other computer programs or when necessary to respond to urgent

− tactical situations, provided that -

− (A) The Government notifies the party which has

− granted restricted rights that any such release or disclosure to

− particular contractors or subcontractors was made;

− (B) Such contractors or subcontractors are

− subject to the nondisclosure agreement at 227.7103-7 of the

− Defense Federal Acquisition Regulation Supplement or are Government

− contractors receiving access to the software for 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 Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; and

− (D) Such use is subject to the limitations in paragraphs (a)(18)(i) through (iii) of this clause;

− (vi) Use, and permit contractors or

− subcontractors performing emergency repairs or overhaul of items or

− components of items procured under this or a related contract to use

− the computer software when necessary to perform the emergency

− repairs or overhaul, or to modify the computer software to reflect

− the repairs or overhaul made, provided that -

− (A) The intended recipient is subject to the

− nondisclosure agreement at 227.7103-7 or is a

− Government contractor receiving access to the software for

− 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;

− (B) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; and

− (C) Such use is subject to the limitations in paragraphs (a)(18)(i) through (iii) of this clause; and

− (vii) Use, modify, reproduce, perform, display,

− or release or disclose computer software to a person authorized to

− receive restricted rights computer software for management and

− oversight of a program or effort, and permit covered Government

− support contractors in the performance of covered Government support

− contracts that contain the clause at 252.227-7025,

− Limitations on the Use or Disclosure of Government-Furnished

− Information Marked with Restrictive Legends, to use, modify,

− reproduce, perform, display, or release or disclose the computer

− software to a person authorized to receive restricted rights

− computer software, provided that -

− (A) The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(18)(iv) of this clause, for any other purpose; and

− (B) Such use is subject to the limitations in paragraphs (a)(18)(i) through (iv) of this clause.

− (19) “SBIR data rights” means the Government's rights during the SBIR data protection period (specified in paragraph (b)(4) of this clause) to use, modify, reproduce, release, perform, display, or disclose technical data or computer software generated a SBIR award as follows:

− (i) Limited rights in such SBIR technical data; and

− (ii) Restricted rights in such SBIR computer software.

− (20) Technical data means recorded

− information, regardless of the form or method of the recording, of a

− scientific or technical nature (including computer software

− documentation). The term does not include computer software or

− financial, administrative, cost or pricing, or management

− information, or information incidental to contract

− administration .

− (21) Unlimited rights means rights to use, modify, reproduce, release, perform, display, or disclose, technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

− (b) Rights in technical data and computer software. The Contractor grants or shall obtain for the Government the following royalty-free, worldwide, nonexclusive, irrevocable license rights in technical data or other than commercial computer software. All rights not granted to the Government are retained by the Contractor.

− (1) Unlimited rights. The Government shall have unlimited rights in technical data, including computer software documentation, or computer software generated under this contract that are -

+ “Commercial computer software” means software developed or regularly used for nongovernmental purposes which—

+ (1) Has been sold, leased, or licensed to the public;

+ (2) Has been offered for sale, lease, or license to the public;

+ (3) Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

+ (4) Satisfies a criterion expressed in paragraph (1), (2), or (3) of this definition and would require only minor modification to meet the requirements of this contract.

+ “Computer database” means a collection of recorded data in a form capable of being processed by a computer. The term does not include computer software.

+ “Computer program” means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

+ “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer software does not include computer databases or computer software documentation.

+ “Computer software documentation” means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

+ “Covered Government support contractor” means a contractor (other than a litigation support contractor covered by 252.204-7014) under a contract, the primary purpose of which is to furnish independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of a program or effort (rather than to directly furnish an end item or service to accomplish a program or effort), provided that the contractor—

+ (1) Is not affiliated with the prime contractor or a first-tier subcontractor on the program or effort, or with any direct competitor of such prime contractor or any such first-tier subcontractor in furnishing end items or services of the type developed or produced on the program or effort; and

+ (2) Receives access to the technical data or computer software for 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.

+ “Detailed manufacturing or process data” means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.

+ “Developed” means—

+ (1) (Applicable to technical data other than computer software documentation.) 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. Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art. 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;

+ (2) A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

+ (3) Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

+ (4) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

+ “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.

+ (1) Private expense determinations should be made at the lowest practicable level.

+ (2) Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

+ “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

+ “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

+ “Form, fit, and function data” means technical data that describe the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

+ “Generated” means, with respect to technical data or computer software, first created in the performance of this contract.

+ “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 or computer software for commercial purposes or authorize others to do so.

+ “Government purpose rights” means the rights to—

+ (1) Use, modify, reproduce, release, perform, display, or disclose technical data or computer software within the Government without restriction; and

+ (2) Release or disclose technical data or computer software 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.

+ “Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government. The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release, or disclose such data or authorize the use or reproduction of the data by persons outside the Government if -

+ (1) The reproduction, release, disclosure, or use is -

+ (i) Necessary for emergency repair and overhaul; or

+ (ii) A release or disclosure to -

+ (A) A covered Government support contractor in performance of its covered Government support contracts for use, modification, reproduction, performance, display, or release or disclosure to a person authorized to receive limited rights technical data; or

+ (B) A foreign government, of technical data other than detailed manufacturing or process data, when use of such data by the foreign government is in the interest of the Government and is required for evaluational or informational purposes;

+ (2) The recipient of the technical data is subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and

+ (3) The Contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

+ “Minor modification” means a modification that does not significantly alter the nongovernmental function or purpose of computer software or is of the type customarily provided in the commercial marketplace.

+ “Other than commercial computer software” means software that does not qualify as commercial computer software under the definition of “commercial computer software” of this clause.

+ “Restricted rights” apply only to other than commercial computer software and mean the Government's rights to -

+ (1) Use a computer program with one computer at one time. The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

+ (2) Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer. Transferred programs remain subject to the provisions of this clause;

+ (3) Make a reasonable number of copies of the computer software required for the purposes of safekeeping (archive), backup, modification, or other activities authorized in paragraphs (1), (2), and (4) through (7) of this definition;

+ (4) Modify computer software provided that the Government may -

+ (i) Use the modified software only as provided in paragraphs (1) and (3) of this definition; and

+ (ii) Not release or disclose the modified software except as provided in paragraphs (2), (

+ 5), (6), and (7) of this definition;

+ (5) Use, and permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that -

+ (i) The Government notifies the party which has granted restricted rights that any such release or disclosure to particular contractors or subcontractors was made;

+ (ii) Such contractors or subcontractors are subject to the nondisclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement or are Government contractors receiving access to the software for 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;

+ (iii) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph 4) of this definition, for any other purpose; and

+ (iv) Such use is subject to the limitations in paragraphs (1) through (3) of this definition;

+ (6) Use, and permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the emergency repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that -

+ (i) The intended recipient is subject to the nondisclosure agreement at 227.7103-7 or is a Government contractor receiving access to the software for 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;

+ (ii) The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

+ (iii) Such use is subject to the limitations in paragraphs (1) through (3) of this definition; and

+ (7) Use, modify, reproduce, perform, display, or release or disclose computer software to a person authorized to receive restricted rights computer software for management and oversight of a program or effort, and permit covered Government support contractors in the performance of covered Government support contracts that contain the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends, to use, modify, reproduce, perform, display, or release or disclose the computer software to a person authorized to receive restricted rights computer software, provided that -

+ (i) The Government shall not permit the covered Government support contractor to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (4) of this definition, for any other purpose; and

+ (ii) Such use is subject to the limitations in paragraphs (1) through (4) of this definition.

+ “Small Business Innovation Research/Small Business Technology Transfer (SBIR/STTR) data” means all technical data or computer software developed or generated in the performance of a phase I, II, or III SBIR/STTR contract or subcontract.

+ “SBIR/STTR data protection period” means the time periodduring which the Government is obligated to protect SBIR/STTR data against unauthorized use and disclosure in accordance with SBIR/STTR data rights. The SBIR/STTR data protection period begins on the date of award of the contract under which the SBIR/STTR data are developed or generated and ends 20 years after that date unless,after the award, the agency and the Contractor negotiate for some other protection period for the SBIR/STTR data developed or generated under that contract.

+ “SBIR/STTR data rights” means the Government’s rights, during the SBIR/STTR data protection period, in SBIR/STTR data covered by paragraph (c)(5) of this clause,as follows:

+ (1) Limited rights in such SBIR/STTR technical data; and

+ (2) Restricted rights in such SBIR/STTR computer software.

+ “Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or financial, administrative, cost or pricing, or management information, or information incidental to contract administration .

+ “Unlimited rights” means rights to use, modify, reproduce, release, perform, display, or disclose, technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

+ (b) Applicability. This clause governs all SBIR/STTR data. For any data that are not SBIR/STTR data—

+ (1) The clause at Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, governs the technical data pertaining to other than commercial products and commercial services or to any portion of a commercial product or commercial service that was developed in any part at Government expense, and the clause at DFARS 252.227-7015, Technical Data—Commercial Products and Commercial Services, governs the technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense;

+ (2) The clause at DFARS 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, governs other than commercial computer software and other than commercial computer software documentation; and

+ (3) A license consistent with DFARS 227.7202 governs commercial computer software and commercial computer software documentation.

+ (c) Rights in technical data and computer software. The Contractor grants or shall obtain for the Government the following royalty-free, worldwide, nonexclusive, irrevocable license rights in technical data or other than commercial computer software. All rights not granted to the Government are retained by the Contractor.

+ (1) Unlimited rights. The Government shall have unlimited rights in technical data or computer software, including such data generated under this contract, that are—

(i) Form, fit, and function data;

(ii) Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);

(iii) Corrections or changes to Government-furnished technical data or computer software;

− (iv) Otherwise publicly available or have been released or disclosed by the Contractor or a 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 technical data or computer software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

− (v) Data or software in which the Government has acquired previously unlimited rights under another Government contract or through a specific license; and

− (vi) SBIR data upon expiration of the SBIR data rights period.

− (2) Limited rights. The Government shall have limited rights in technical data, that were not generated under this contract, pertain to items, components or processes developed exclusively at private expense, and are marked, in accordance with the marking instructions in paragraph (f)(1) of this clause, with the legend prescribed in paragraph (f)(2) of this clause.

− (3) Restricted rights in computer software. The Government shall have restricted rights in other than commercial computer software required to be delivered or otherwise furnished to the Government under this contract that were developed exclusively at private expense and were not generated under this contract.

− (4) SBIR data rights. Except for technical data, including computer software documentation, or computer software in which the Government has unlimited rights under paragraph (b)(1) of this clause, the Government shall have SBIR data rights in all technical data or computer software generated under this contract during the period commencing with contract award and ending upon the date five years after completion of the project from which such data were generated.

− (5) Specifically negotiated license rights. The standard license rights granted to the Government under paragraphs (b)(1) through (b)(4) of this clause may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in technical data, including computer software documentation, than are enumerated in paragraph (a)(15) of this clause or lesser rights in computer software than are enumerated in paragraph (a)(18) of this clause. Any rights so negotiated shall be identified in a license agreement made part of this contract.

− (6) Prior government rights. Technical data, including computer software documentation, or computer software that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless -

+ (iv) Otherwise publicly available or have been released or disclosed by the Contractor or a 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 technical data or computer software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

+ (v) Technical data or computer softwarein which the Government has acquired previously unlimited rights under another Government contract or as a result of negotiations;

+ (vi) Technical data or computer software furnished to the Government, under this or any other Government contract or subcontract thereunder, with license rights for which all restrictive conditions on the Government have expired; and

+ (vii) Computer software documentation generated or required to be delivered under this contract.

+ (2) Government purpose rights.

+ (i) The Government shall have government purpose rights for the period specified in paragraph (c)(2)(ii) of this clause in data that are—

+ (A) Not SBIR/STTR data, and are—

+ (1) Technical data pertaining to items, components, or processes developed with mixed funding, or are computer software developed with mixed funding, except when the Government is entitled to unlimited rights in such data as provided in paragraph (c)(1) of this clause;

+ (2) 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; or

+ (B) SBIR/STTR data, upon expiration of the SBIR/STTR data protection period.

+ (ii)(A) For the non-SBIR/STTR data described in paragraph (c)(2)(i)(A) of this clause, the Government shall have government purpose rights for a period of 5 years, or such other period as may be negotiated. This period shall commence upon award of the contract, subcontract, letter contract (or similar contractual instrument), or contract modification (including a modification to exercise an option) that required development of the items, components, or processes, or creation of the data described in paragraph (c)(2)(i)(A)(2) of this clause. Upon expiration of the 5-year or other negotiated period, the Government shall have unlimited rights in the data.

+ (B) For the SBIR/STTR data described in paragraph (c)(2)(i)(B) of this clause, the Government shall have government purpose rights perpetually. This Government purpose rights period commences upon the expiration of the SBIR/STTR data protection period.

+ (iii) The Government shall not release or disclose data in which it has government purpose rights unless—

+ (A) Prior to release or disclosure, the intended recipient is subject to the nondisclosure agreement at DFARS 227.7103-7; or

+ (B) The recipient is a Government contractor receiving access to the data for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

+ (iv) The Contractor has the exclusive right, including the right to license others, to use technical data in which the Government has obtained government purpose rights under this contract for any commercial purpose during the time period specified in the government purpose rights marking prescribed in paragraph (g)(3) of this clause.

+ (3) Limited rights. The Government shall have limited rights in technical data that were not generated under this contract, pertain to items, components, or processes developed exclusively at private expense, and are marked, in accordance with the marking instructions in paragraph (g)(1) of this clause, with the legend prescribed in paragraph (g)(4) of this clause.

+ (4) Restricted rights in computer software. The Government shall have restricted rights in other than commercial computer software required to be delivered or otherwise furnished to the Government under this contract that were developed exclusively at private expense and were not generated under this contract.

+ (5) SBIR/STTR data rights. Except for technical data, including computer software documentation, or computer software in which the Government has unlimited rights under paragraph (c)(1) of this clause, the Government shall have SBIR/STTR data rights, during the SBIR/STTR data protection period of this contract, in all SBIR/STTR data developed or generatedunder this contract . This protection period is not extended by any subsequent SBIR/STTR contracts under which any portion of that SBIR/STTR data is used or delivered. The SBIR/STTR data protection period of any such subsequent SBIR/STTR contract applies only to the SBIR/STTR data that are developed or generated under that subsequent contract. The SBIR/STTR data protection period is governed by the version of this clause that is incorporated in the contract under which the SBIR/STTR data are developed or generated. If the SBIR/STTR data were developed or generated under a contract that included a previous version of this clause, then the SBIR/STTR data protection period is governed by that previous version of this clause.

+ (6) Specifically negotiated license rights. After contract award, the standard license rights granted to the Government under paragraphs (c)(1) through (5) of this clause may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in technical data, including computer software documentation, than are enumerated in ) the definition of “limited rights” of this clause or lesser rights in computer software than are enumerated the definition of “restricted rights” of this clause. Any rights so negotiated shall be identified in a license agreement made part of this contract.

+ (7) Prior government rights. Technical data, including computer software documentation, or computer software that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the preexisting rights, unless—

(i) The parties have agreed otherwise; or

(ii) Any restrictions on the Government's rights to use, modify, release, perform, display, or disclose the technical data or computer software have expired or no longer apply.

− (7) Release from liability. The Contractor agrees to release the Government from liability for any release or disclosure of technical data, computer software, or computer software documentation made in accordance with paragraph (a)(14), (a)(17), or (b)(4) of this clause, or in accordance with the terms of a license negotiated under paragraph (b)(5) of this clause, or by others to whom the recipient has released or disclosed the data, software, or documentation and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor data or software marked with restrictive legends.

− (8) Covered Government support contractors. The Contractor acknowledges that -

+ (8) Release from liability. The Contractor agrees to release the Government from liability for any release or disclosure of technical data, computer software, or computer software documentation made in accordance with , the definitions of “Government purpose,” “other than commercial computer software,” or paragraph (c)(5) of this clause, or in accordance with the terms of a license negotiated under paragraph (c)(6) of this clause, or by others to whom the recipient has released or disclosed the data, software, or documentation and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor data or software marked with restrictive legends.

+ (9) Covered Government support contractors. The Contractor acknowledges that -

(i) Limited rights technical data and restricted rights computer software are authorized to be released or disclosed to covered Government support contractors;

(ii) The Contractor will be notified of such release or disclosure;

− (iii) The Contractor may require each such covered Government support contractor to enter into a non-disclosure agreement directly with the Contractor (or the party asserting restrictions as identified in a restrictive legend) regarding the covered Government support contractor's use of such data or software, or alternatively that the Contractor (or party asserting restrictions) may waive in writing the requirement for a non-disclosure agreement; and

− (iv) Any such non-disclosure agreement shall address the restrictions on the covered Government support contractor's use of the data or software as set forth in the clause at 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement.

− (c) Rights in derivative computer software or computer software documentation. The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under this contract that the Contractor uses to prepare, or includes in, derivative software or documentation.

− (d) Third party copyrighted technical data and computer software. The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted technical data, including computer software documentation, or computer software in the data or software to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data or software of the appropriate scope set forth in paragraph (b) of this clause and, prior to delivery of such -

+ (iii) The Contractor may require each such covered Government support contractor to enter into a nondisclosure agreement directly with the Contractor (or the party asserting restrictions as identified in a restrictive legend) regarding the covered Government support contractor's use of such data or software, or alternatively that the Contractor (or party asserting restrictions) may waive in writing the requirement for a nondisclosure agreement; and

+ (iv) Any such nondisclosure agreement shall address the restrictions on the covered Government support contractor’s use of the data or software as set forth in the clause at DFARS

+ 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends. The nondisclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the nondisclosure agreement.

+ (d) Rights in derivative computer software or computer software documentation. The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under this contract that the Contractor uses to prepare, or includes in, derivative software or documentation.

+ (e) Third party copyrighted technical data and computer software. The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted technical data, including computer software documentation, or computer software in the data or software to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data or software of the appropriate scope set forth in paragraph (c) of this clause and, prior to delivery of such -

(1) Technical data, has affixed to the transmittal document a statement of the license rights obtained; or

(2) Computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer.

− (e) Identification and delivery of technical data or computer software to be furnished with restrictions on use, release, or disclosure. (1) This paragraph does not apply to technical data or computer software that were or will be generated under this contract or to restrictions based solely on copyright.

− (2) Except as provided in paragraph (e)(3) of this clause, technical data or computer software that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure is identified in an attachment to this contract (the Attachment). The Contractor shall not deliver any technical data or computer software with restrictive markings unless the technical data or computer software are listed on the Attachment.

+ (f) Identification and delivery of technical data or computer software to be furnished with restrictions on use, release, or disclosure.

+ (1) This paragraph does not apply to technical data or computer software that were or will be generated under this contract or to restrictions based solely on copyright.

+ (2) Except as provided in paragraph (f)(3) of this clause, technical data or computer software that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure is identified in an attachment to this contract (the Attachment). The Contractor shall not deliver any technical data or computer software with restrictive markings unless the technical data or computer software are listed on the Attachment.

(3) In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision. Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the technical data or computer software, in the following format, and signed by an official authorized to contractually obligate the Contractor:

− Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data or Computer Software

+ IDENTIFICATION AND ASSERTION OF RESTRICTIONS ON THE GOVERNMENT'S USE, RELEASE, OR DISCLOSURE OF TECHNICAL DATA OR COMPUTER SOFTWARE

The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data or computer software should be restricted:

− Technical data or computer software to be furnished with restrictions 1

− Basis for assertion 2

− Asserted rights category 3

− Name of person asserting restrictions 4

− (LIST)

− (LIST)

− (LIST)

+ Technical Data or Computer Software to be Furnished With Restrictions 1

+ Basis for Assertion 2

+ Asserted Rights Category 3

+ Name of Person Asserting Restrictions 4

+ (LIST)(LIST)(LIST) (LIST)

1 If the assertion is applicable to items, components, or processes developed at private expense, identify both the technical data and each such item, component, or process.

2 Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data or computer software. Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

− 3 Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or government purpose license rights from a prior contract, SBIR data rights under another contract, or specifically negotiated licenses).

+ 3Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or government purpose license rights from a prior contract, SBIR/STTR data rights under this or another contract, or specifically negotiated licenses).

4 Corporation, individual, or other person, as appropriate.

− (LIST)

Date

Printed Name and Title

Signature

(End of identification and assertion)

− (4) When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor's assertions. The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertions, at a later date, in accordance with the procedures of the Validation of Asserted Restrictions - Computer Software and/or Validation of Restrictive Markings on Technical Data clauses of this contract.

− (f) Marking requirements. The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software to be delivered under this contract by marking the deliverable data or software subject to restriction. Except as provided in paragraph (f)(6) of this clause, only the following markings are authorized under this contract: the limited rights legend at paragraph (f)(2) of this clause; the restricted rights legend at paragraph (f)(3) of this clause, the SBIR data rights legend at paragraph (f)(4) of this clause, or the special license rights legend at paragraphs (f)(5) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.

+ (4) When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor’s assertions. The Contracting Officer reserves the right to add the Contractor’s assertions to the Attachment and validate any listed assertions, at a later date, in accordance with the procedures in the DFARS 252.227-7019, Validation of Asserted Restrictions—Computer Software, and/or DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data, clauses of this contract.

+ (g) Marking requirements. The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software to be delivered under this contract by marking the deliverable data or software subject to restriction. Except as provided in paragraph (g)(8) of this clause, only the following markings are authorized under this contract:

+ the government purpose rights marking at paragraph (g)

+ (3) of this clause; the limited rights legend at paragraph (g)(4) of this clause; the restricted rights legend at paragraph (g)(5) of this clause; the SBIR/STTR data rights legend at paragraph (g)(6) of this clause; the special license rights legend at paragraph

+ (g)(7) of this clause; and a notice of copyright as prescribed under 17 U.S.C. 401 or 402.

(1) General marking instructions. The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend to all technical data and computer software that qualify for such markings. The authorized legends shall be placed on the transmittal document or storage container and, for printed material, each page of the printed material containing technical data or computer software for which restrictions are asserted. When only portions of a page of printed material are subject to the asserted restrictions, such portions shall be identified by circling, underscoring, with a note, or other appropriate identifier. Technical data or computer software transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions. However, instructions that interfere with or delay the operation of computer software in order to display a restrictive rights legend or other license statement at any time prior to or during use of the computer software, or otherwise cause such interference or delay, shall not be inserted in software that will or might be used in combat or situations that simulate combat conditions, unless the Contracting Officer's written permission to deliver such software has been obtained prior to delivery. Reproductions of technical data, computer software, or any portions thereof subject to asserted restrictions shall also reproduce the asserted restrictions.

− (2) Limited rights markings. Technical data not generated under this contract that pertain to items, components, or processes developed exclusively at private expense and delivered or otherwise furnished with limited rights shall be marked with the following legend:

− Limited Rights

− 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)(2) of the Rights in Other Than Commercial Technical Data and Computer Software - Small Business Innovation Research (SBIR) Program 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.

+ (2) Omitted markings.

+ (i) Technical data, computer software, or computer software documentation delivered or otherwise provided under this contract without restrictive markings shall be presumed to have been delivered with unlimited rights. To the extent practicable, if the Contractor has requested permission (see paragraph (g)(2)(ii) of this clause) to correct an inadvertent omission of markings, the Contracting Officer will not release or disclose the technical data, software, or documentation pending evaluation of the request.

+ (ii) The Contractor may request permission to have conforming and justified restrictive markings placed on unmarked technical data, computer software, or computer software documentation at its expense. The request must be received by the Contracting Officer within 6 months following the furnishing or delivery of such technical data, software, or documentation, or any extension of that time approved by the Contracting Officer. The Contractor shall—

+ (A) Identify the technical data, software, or documentation that should have been marked;

+ (B) 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, computer software, or computer software documentation contained in this clause; and

+ (C) Acknowledge, in writing, that the Government has no liability with respect to any disclosure, reproduction, or use of the technical data, software, or documentation made prior to the addition of the marking or resulting from the omission of the marking.

+ (3) Government purpose rights markings. Technical data or computer software delivered or otherwise furnished to the Government with government purpose rights shall be marked as follows:

+ GOVERNMENT PURPOSE RIGHTS

+ Contract NumberContractor NameContractor AddressExpiration DateThe Government’s rights to use, modify, reproduce, release, perform, display, or disclose these technical data or computer software are restricted by paragraph (c)(2) of the DFARS 252.227-7018, Rights inOther Than Commercial Technical Dataand Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of technical data or computer software or portions thereof marked with this restrictive marking must also reproduce the markings.

(End of legend)

− (3) Restricted rights markings. Computer software delivered or otherwise furnished to the Government with restricted rights shall be marked with the following legend:

− Restricted Rights

− Contract No.

− Contractor Name

− Contractor Address

− The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(3) of the Rights in Other Than Commercial Technical Data and Computer Software - Small Business Innovation Research (SBIR) Program clause contained in the above identified contract. Any reproduction of computer software 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.

+ (4) Limited rights markings. Technical data not generated under this contract that pertain to items, components, or processes developed exclusively at private expense and delivered or otherwise furnished with limited rights shall be marked as follows:

+ LIMITED RIGHTS

+ Contract Number

+ Contractor NameContractor AddressThe Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (c)(3) of the DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program, 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.

(End of legend)

− (4) SBIR data rights markings: Except for technical data or computer software in which the Government has acquired unlimited rights under paragraph (b)(1) of this clause, or negotiated special license rights as provided in paragraph (b)(5) of this clause, technical data or computer software generated under this contract shall be marked with the following legend. The Contractor shall enter the expiration date for the SBIR data rights period on the legend:

− SBIR Data Rights

− Contract No.

− Contractor Name

− Address

− Expiration of SBIR Data Rights Period

− The Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software marked with this legend are restricted during the period shown as provided in paragraph (b)(4) of the Rights in Other Than Commercial Technical Data and Computer Software - Small Business Innovation Research (SBIR) Program clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.

+ (5) Restricted rights markings. Computer software delivered or otherwise furnished to the Government with restricted rights shall be marked as follows:

+ RESTRICTED RIGHTS

+ Contract Number

+ Contractor NameContractor AddressThe Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (c)(4) of the DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and

+ Small Business Technology Transfer Program,

+ clause contained in the above identified contract. Any reproduction of computer software 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 software must promptly notify the above named Contractor.

(End of legend)

− (5) Special license rights markings. (i) Technical data or computer software in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:

− Special License Rights

− The Government's rights to use, modify, reproduce, release, perform, display, or disclose this technical data or computer software are restricted by Contract No. ________ (Insert contract number) ________, License No. ________ (Insert license identifier) ________. Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.

+ (6) SBIR/STTR data rights markings. Except for technical data or computer software in which the Government has acquired unlimited rights under paragraph (c)(1) of this clause or negotiated special license rights as provided in paragraph (c)(6) of this clause, technical data or computer software generated under this contract shall be marked as follows. The Contractor shall enter the expiration date for the SBIR/STTR data protection period on the legend:

+ SBIR/STTR DATA RIGHTS

+ Contract Number Contractor Name Contractor AddressExpiration of SBIR/STTR Data Protection Period

+ Expiration of the Government Purpose Rights Period

+ The Government’s rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software marked with this legend are restricted during the period shown as provided in paragraph (c)(5) of the DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, clause contained in the above identified contract. After the SBIR/STTR data protection period expiration date shown above, the Government has perpetual government purpose rights as provided in paragraph (c)(4) of that clause, unless otherwise indicated by the government purpose rights expiration date shown above. Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.

(End of legend)

− (ii) For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(6) of this clause).

− (6) Pre-existing data markings. If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software, and those restrictions are still applicable, the Contractor may mark such data or software with the appropriate restrictive legend for which the data or software qualified under the prior contract or license. The marking procedures in paragraph (f)(1) of this clause shall be followed.

− (g) Contractor procedures and records. Throughout performance of this contract, the Contractor, and its subcontractors or suppliers that will deliver technical data or computer software with other than unlimited rights, shall -

+ (7)

+ Special license rights markings.

+ (i) Technical data or computer software in which the Government's rights stem from a specifically negotiated license shall be marked as follows:

+ SPECIAL LICENSE RIGHTS

+ The Government's rights to use, modify, reproduce, release, perform, display, or disclose this technical data or computer software are restricted by Contract Number_____

+ Insert contract number

+ ____, License Number ____

+ Insert license identifier

+ ____. Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.

+ (End of legend)

+ (ii) For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (c)(7) of this clause).

+ (8) Preexisting

+ data markings. If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software, and those restrictions are still applicable, the Contractor may mark such data or software with the appropriate restrictive legend for which the data or software qualified under the prior contract or license. The Contractor shall follow the marking procedures in paragraph (g)(1) of this clause.

+ (h) Contractor procedures and records. Throughout performance of this contract, the Contractor, and its subcontractors or suppliers that will deliver technical data or computer software with other than unlimited rights, shall—

(1) Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and

(2) Maintain records sufficient to justify the validity of any restrictive markings on technical data or computer software delivered under this contract.

− (h) Removal of unjustified and nonconforming

− markings

− (1) Unjustified markings. The rights and

− obligations of the parties regarding the validation of restrictive

− markings on technical data or computer software furnished or to be

− furnished under this contract are contained in the Validation of

− Restrictive Markings on Technical Data and the Validation of

− Asserted Restrictions - Computer Software clauses of this contract,

− respectively. Notwithstanding any provision of this contract

− concerning inspection and acceptance, the Government may ignore or,

− at the Contractor's expense, correct or strike a marking if, in

− accordance with the applicable procedures of those clauses, a

− restrictive marking is determined to be unjustified.

− (2) Nonconforming markings. A

− nonconforming marking is a marking placed on technical data or

− computer software delivered or otherwise furnished to the Government

− under this contract that is not in the format authorized by this

− contract. Correction of nonconforming markings is not subject to the

− Validation of Restrictive Markings on Technical Data or the

− Validation of Asserted Restrictions - Computer Software clause of

− this contract. If the Contracting Officer notifies the Contractor of

− a nonconforming marking or markings and the Contractor fails to

− remove or correct such markings within sixty (60) days, the

− Government may ignore or, at the Contractor's expense, remove or

− correct any nonconforming markings.

− (i) Relation to patents. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.

− (j) Limitation on charges for rights in technical data or computer software. (1) The Contractor shall not charge to this contract any cost, including but not limited to, license fees, royalties, or similar charges, for rights in technical data or computer software to be delivered under this contract when -

+ (i) Removal of unjustified and nonconforming markings.

+ (1) Unjustified markings. The rights and obligations of the parties regarding the validation of restrictive markings on technical data or computer software furnished or to be furnished under this contract are contained in the DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data, and the DFARS 252.227-7019, Validation of Asserted Restrictions–Computer Software, clauses of this contract, respectively. Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the applicable procedures of those clauses, a restrictive marking is determined to be unjustified.

+ (2) Nonconforming markings. A nonconforming marking is a marking placed on technical data or computer software delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract. Correction of nonconforming markings is not subject to the DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data, or the DFARS 252.227-7019, Validation of Asserted Restrictions—Computer Software, clause of this contract. If the Contracting Officer notifies the Contractor of a nonconforming marking or markings and the Contractor fails to remove or correct such markings within 60 days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming markings.

+ (j) Relation to patents. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.

+ (k) Limitation on charges for rights in technical data or computer software.

(i) The Government has acquired, by any means, the same or greater rights in the data or software; or

(ii) The data are available to the public without restrictions.

− (2) The limitation in paragraph (j)(1) of this clause -

+ (2) The limitation in paragraph (k)(1) of this clause—

(i) Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor of supplier technical data or computer software, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and

(ii) Does not include the reasonable costs of reproducing, handling, or mailing the documents or other media in which the technical data or computer software will be delivered.

− (k) Applicability to subcontractors or suppliers. (1) The Contractor shall assure that the rights afforded its subcontractors and suppliers under 10 U.S.C. 3771-3775, 10 U.S.C. 3781-3786, and the identification, assertion, and delivery processes required by paragraph (e) of this clause are recognized and protected.

− (2) Whenever any other than commercial technical data or computer software is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties. The Contractor shall use the Technical Data - Commercial Products and Commercial Services clause of this contract to obtain technical data pertaining to commercial products, commercial components, commercial services, or commercial processes. No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data or computer software.

+ (l) Subcontractors or suppliers.

+ (1) The Contractor shall assure that the rights afforded its subcontractors and suppliers under 10 U.S.C.3771–3775, 10 U.S.C. 3781-3786, 15 U.S.C. 638(j)(1)(B)(iii) and (v), and the identification, assertion, and delivery processes required by paragraph (f) of this clause are recognized and protected.

+ (2) Whenever any other than commercial technical data or computer software is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use the following clause(s) in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties:

+ (i) Except as provided in paragraph (l)(2)(ii) of this clause, use this clause to govern SBIR/STTR data.

+ (ii) For data that are not SBIR/STTR data—

+ (A) Use the clause at DFARS 252.227-7013, Rights in Technical Data—Other Than Commercial Products and Commercial Services, to govern the technical data pertaining to other than commercial products or commercial services or to any portion of a commercial product or commercial service that was developed in any part at Government expense, and use the clause at DFARS 252.227-7015, Technical Data—Commercial Products and Commercial Services, to govern the technical data pertaining to any portion of a commercial product or commercial service that was developed exclusively at private expense;

+ (B) Use the DFARS clause at 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, to govern other than commercial computer software and computer software documentation; and

+ (C) Use the license under which the data are customarily provided to the public, in accordance with DFARS 227.7202, for commercial computer software and commercial computer software documentation.

+ (iii) No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data or computer software.

(3) Technical data required to be delivered by a subcontractor or supplier shall normally be delivered to the next higher tier contractor, subcontractor, or supplier. However, when there is a requirement in the prime contract for technical data which may be submitted with other than unlimited rights by a subcontractor or supplier, then said subcontractor or supplier may fulfill its requirement by submitting such technical data directly to the Government, rather than through a higher tier contractor, subcontractor, or supplier.

(4) The Contractor and higher tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data or computer software from their subcontractors or suppliers.

(5) In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in technical data or computer software as an excuse for failing to satisfy its contractual obligation to the Government.

(End of clause)

− Alternate I (JUN 1995). As prescribed in 227.7104(d), add the following paragraph (l) to the basic clause:

− (l) Publication for sale. (1) This paragraph applies only to technical data or computer software delivered to the Government with SBIR data rights.

− (2) Upon expiration of the SBIR data rights period, the Government will not exercise its right to publish or authorize others to publish an item of technical data or computer software identified in this contract as being subject to paragraph (l) of this clause if the Contractor, prior to the expiration of the SBIR data rights period, or within two years following delivery of the data or software item, or within twenty-four months following the removal of any national security or export control restrictions, whichever is later, publishes such data or software item(s) and promptly notifies the Contracting Officer of such publication(s). Any such publication(s) shall include a notice identifying the number of this contract and the Government's rights in the published data.

− (3) This limitation on the Government's right to publish for sale shall continue as long as the technical data or computer software are reasonably available to the public for purchase.

252.227-7019 Validation of Asserted Restrictions—Computer Software.

− As prescribed in

− 227.7104

− (e)(3) or

− 227.7203-6

− (c), use the following clause:

− VALIDATION OF ASSERTED RESTRICTIONS—COMPUTER SOFTWARE (JAN 2023)

− (a) Definitions.

− (1) As used in this clause, unless otherwise specifically indicated, the term “Contractor” means the Contractor and its subcontractors or suppliers.

− (2) Other terms used in this clause are defined in the Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation clause of this contract.

− (b) Justification. The Contractor shall maintain records sufficient to justify the validity of any markings that assert restrictions on the Government's rights to use, modify, reproduce, perform, display, release, or disclose computer software delivered or required to be delivered under this contract and shall be prepared to furnish to the Contracting Officer a written justification for such restrictive markings in response to a request for information under paragraph (d) or a challenge under paragraph (f) of this clause.

+ As prescribed in 227.7104-4(b)(3) or 227.7203-6(c), use the following clause:

+ VALIDATION OF ASSERTED RESTRICTIONS—COMPUTER SOFTWARE (JAN 2025)

+ (a) Definitions. As used in this clause—

+ “Contractor”, unless otherwise specifically indicated, means the Contractor and its subcontractors or suppliers.

+ Other terms are defined in the 252.227-7014, Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation, clause of this contract.

+ (b) Justification. The Contractor shall maintain records sufficient to justify the validity of any asserted restrictions on the Government's rights to use, modify, reproduce, perform, display, release, or disclose computer software delivered, required to be delivered, or otherwise provided to the Government under this contract and shall be prepared to furnish to the Contracting Officer a written justification for such asserted restrictions in response to a request for information under paragraph (d) of this clause or a challenge under paragraph (f) of this clause.

(c) Direct contact with subcontractors or suppliers. The Contractor agrees that the Contracting Officer may transact matters under this clause directly with subcontractors or suppliers at any tier who assert restrictions on the Government's right to use, modify, reproduce, release, perform, display, or disclose computer software. Neither this clause, nor any action taken by the Government under this clause, creates or implies privity of contract between the Government and the Contractor's subcontractors or suppliers.

(d) Requests for information.

252.227-7025 Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

− As prescribed in 227.7103-6(c),

− 227.7104

− (f)(1), or

− 227.7203-6

− (d), use the following clause:

− LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED INFORMATION MARKED WITH RESTRICTIVE LEGENDS (JAN 2023)

− (a)(1) For contracts in which the Government will furnish the Contractor with technical data, the terms "covered Government support contractor," "limited rights," and "Government purpose rights" are defined in the clause at 252.227-7013 , Rights in Technical Data–Other Than Commercial Products and Commercial Services.

+ As prescribed in 227.7103-6(c), 227.7104-4(b)(4), or 227.7203-6(d), use the following clause:

+ LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED INFORMATION MARKED WITH RESTRICTIVE LEGENDS (JAN 2025)

+ (a) Definitions. As used in this clause—

+ (1) For contracts in which the Government will furnish the Contractor with technical data, the terms "covered Government support contractor," "limited rights," and "Government purpose rights" are defined in the clause at 252.227-7013 , Rights in Technical Data–Other Than Commercial Products and Commercial Services.

(2) For contracts in which the Government will furnish the Contractor with computer software or computer software documentation, the terms "covered Government support contractor," "government purpose rights," and "restricted rights" are defined in the clause at 252.227-7014 , Rights in Other Than Commercial Computer Software and Other Than Commercial Computer Software Documentation.

− (3) For Small Business Innovation Research program contracts, the terms "covered Government support contractor," “limited rights,” “restricted rights,” and “SBIR data rights” are defined in the clause at 252.227-7018 , Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program.

+ (3) For Small Business Innovation Research (SBIR) Program

+ and Small Business Technology Transfer (STTR) Program contracts, the terms “covered Government support contractor,” “government purpose rights,” “limited rights,” “restricted rights,” and “SBIR/STTR data rights” are defined in the clause at 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software—Small Business Innovation Research Program and Small Business Technology Transfer Program.

(b) Technical data or computer software provided to the Contractor as Government-furnished information (GFI) under this contract may be subject to restrictions on use, modification, reproduction, release, performance, display, or further disclosure.

− (1) GFI marked with limited rights, restricted rights, or SBIR data rights legends.

− (i) The Contractor shall use, modify, reproduce, perform, or display technical data received from the Government with limited rights legends, computer software received with restricted rights legends, or SBIR technical data or computer software received with SBIR data rights legends (during the SBIR data protection period) only in the performance of this contract. The Contractor shall not, without the express written permission of the party whose name appears in the legend, release or disclose such data or software to any unauthorized person.

+ (1) GFI marked with limited rights, restricted rights, or SBIR/STTR data rights legends.

+ (i) The Contractor shall use, modify, reproduce, perform, or display technical data received from the Government with limited rights legends, computer software received with restricted rights legends, or SBIR/STTR technical data or computer software received with SBIR/STTR data rights legends (during the SBIR/STTR data protection period) only in the performance of this contract. The Contractor shall not, without the express written permission of the party whose name appears in the legend, release or disclose such data or software to any unauthorized person.

(ii) If the Contractor is a covered Government support contractor, the Contractor is also subject to the additional terms and conditions at paragraph (b)(5) of this clause.

− (2) GFI marked with government purpose rights legends. The Contractor shall use technical data or computer software received from the Government with government purpose rights legends for government purposes only. The Contractor shall not, without the express written permission of the party whose name appears in the restrictive legend, use, modify, reproduce, release, perform, or display such data or software for any commercial purpose or disclose such data or software to a person other than its subcontractors, suppliers, or prospective subcontractors or suppliers, who require the data or software to submit offers for, or perform, contracts under this contract. Prior to disclosing the data or software, the Contractor shall require the persons to whom disclosure will be made to complete and sign the non-disclosure agreement at

− 227.7103-7

− .

+ (2) GFI marked with government purpose rights legends. The Contractor shall use technical data or computer software received from the Government with government purpose rights legends for government purposes only. The Contractor shall not, without the express written permission of the party whose name appears in the restrictive legend, use, modify, reproduce, release, perform, or display such data or software for any commercial purpose or disclose such data or software to a person other than its subcontractors, suppliers, or prospective subcontractors or suppliers, who require the data or software to submit offers for, or perform, contracts under this contract. Prior to disclosing the data or software, the Contractor shall require the persons to whom disclosure will be made to complete and sign the nondisclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS).

(3) GFI marked with specially negotiated license rights legends.

− (i) The Contractor shall use, modify, reproduce, release, perform, or display technical data or computer software received from the Government with specially negotiated license legends only as permitted in the license. Such data or software may not be released or disclosed to other persons unless permitted by the license and, prior to release or disclosure, the intended recipient has completed the non-disclosure agreement at

− 227.7103-7

− . The Contractor shall modify paragraph (1)(c) of the non-disclosure agreement to reflect the recipient's obligations regarding use, modification, reproduction, release, performance, display, and disclosure of the data or software.

+ (i) The Contractor shall use, modify, reproduce, release, perform, or display technical data or computer software received from the Government with specially negotiated license legends only as permitted in the license. Such data or software may not be released or disclosed to other persons unless permitted by the license and, prior to release or disclosure, the intended recipient has completed the nondisclosure agreement at DFARS 227.7103-7. The Contractor shall modify paragraph (1)(c) of the nondisclosure agreement to reflect the recipient's obligations regarding use, modification, reproduction, release, performance, display, and disclosure of the data or software.

(ii) If the Contractor is a covered Government support contractor, the Contractor may also be subject to some or all of the additional terms and conditions at paragraph (b)(5) of this clause, to the extent such terms and conditions are required by the specially negotiated license.

(4) GFI technical data marked with commercial restrictive legends.

− (i) The Contractor shall use, modify, reproduce, perform, or display technical data that is or pertains to a commercial product or commercial service and is received from the Government with a commercial restrictive legend (i.e., marked to indicate that such data are subject to use, modification, reproduction, release, performance, display, or disclosure restrictions) only in the performance of this contract. The Contractor shall not, without the express written permission of the party whose name appears in the legend, use the technical data to manufacture additional quantities of the commercial products, or release or disclose such data to any unauthorized person.

+ (i) The Contractor shall use, modify, reproduce, perform, or display technical data that are or pertain to a commercial product or commercial service and are received from the Government with a commercial restrictive legend (i.e., marked to indicate that such data are subject to use, modification, reproduction, release, performance, display, or disclosure restrictions) only in the performance of this contract. The Contractor shall not, without the express written permission of the party whose name appears in the legend, use the technical data to manufacture additional quantities of the commercial products or commercial services, or release or disclose such data to any unauthorized person.

(ii) If the Contractor is a covered Government support contractor, the Contractor is also subject to the additional terms and conditions at paragraph (b)(5) of this clause.

(5) Covered Government support contractors. If the Contractor is a covered Government support contractor receiving technical data or computer software marked with restrictive legends pursuant to paragraphs (b)(1)(ii), (b)(3)(ii), or (b)(4)(ii), the Contractor further agrees and acknowledges that—

(i) The technical data or computer software will be accessed and used for the sole purpose of furnishing independent and impartial advice or technical assistance directly to the Government in support of the Government’s management and oversight of the program or effort to which such technical data or computer software relates, as stated in this contract, and shall not be used to compete for any Government or non-Government contract;

(ii) The Contractor will take all reasonable steps to protect the technical data or computer software against any unauthorized release or disclosure;

− (iii) The Contractor will ensure that the party whose name appears in the legend is notified of the access or use within thirty (30) days of the Contractor's access or use of such data or software;

− (iv) The Contractor will enter into a non-disclosure agreement with the party whose name appears in the legend, if required to do so by that party, and that any such non-disclosure agreement will implement the restrictions on the Contractor's use of such data or software as set forth in this clause. The non-disclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the non-disclosure agreement; and

+ (iii) The Contractor will ensure that the party whose name appears in the legend is notified of the access or use within 30days of the Contractor's access or use of such data or software;

+ (iv) The Contractor will enter into a nondisclosure agreement with the party whose name appears in the legend, if required to do so by that party, and that any such nondisclosure agreement will implement the restrictions on the Contractor's use of such data or software as set forth in this clause. The nondisclosure agreement shall not include any additional terms and conditions unless mutually agreed to by the parties to the nondisclosure agreement; and

(v) That a breach of these obligations or restrictions may subject the Contractor to—

(A) Criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and

252.227-7028 Technical Data or Computer Software Previously Delivered to the Government.

− As prescribed in

− 227.7104

− (f)(2), or

− 227.7203-6

− (e), use the following provision:

+ As prescribed in 227.7103-6(d), 227.7104-4(b)(5), or 227.7203-6(e), use the following provision:

TECHNICAL DATA OR COMPUTER SOFTWARE PREVIOUSLY DELIVERED TO THE GOVERNMENT (JUN 1995)

The Offeror shall attach to its offer an identification of all documents or other media incorporating technical data or computer software it intends to deliver under this contract with other than unlimited rights that are identical or substantially similar to documents or other media that the Offeror has produced for, delivered to, or is obligated to deliver to the Government under any contract or subcontract. The attachment shall identify—

252.227-7030 Technical Data—Withholding of Payment.

− As prescribed at 227.7103-6(e)(2) or

− 227.7104

− (e)(4), use the following clause:

+ As prescribed at 227.7103-6(e)(2) or 227.7104-4(b)(6), use the following clause:

TECHNICAL DATA—WITHHOLDING OF PAYMENT (MAR 2000)

(a) If technical data specified to be delivered under this contract, is not delivered within the time specified by this contract or is deficient upon delivery (including having restrictive markings not identified in the list described in the clause at

− 252.227-7037 Validation of Restrictive Markings on Technical Data.

− As prescribed in 227.7102-4(c), 227.7103-6(e)(3),

− 227.7104

− (e)(5), or 227.7203-6 (f), use the following clause:

− VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (JAN 2023)

+ 252.227-7037 Validation of Asserted Restrictions on Technical Data.

+ As prescribed in 227.7102-4(c), 227.7103-6(e)(3), 227.7104-4(b)(7), or 227.7203-6(f), use the following clause:

+ VALIDATION OF ASSERTED RESTRICTIONS ON TECHNICAL DATA (JAN 2025)

(a) Definitions. The terms used in this clause are defined in the Rights in Technical Data—Other Than Commercial Products and Commercial Services clause of this contract.

(b) Commercial products or commercial services–presumption regarding development exclusively at private expense. The Contracting Officer will presume that the Contractor’s or a subcontractor’s asserted use or release restrictions with respect to a commercial product or commercial service are justified on the basis that the item was developed exclusively at private expense. The Contracting Officer will not issue a challenge unless there are reasonable grounds to question the validity of the assertion that the commercial product or commercial service was developed exclusively at private expense.

− (c) Justification. The Contractor or subcontractor at any tier is responsible for maintaining records sufficient to justify the validity of its markings that impose restrictions on the Government and others to use, duplicate, or disclose technical data delivered or required to be delivered under the contract or subcontract. Except as provided in paragraph (b)(1) of this clause, the Contractor or subcontractor shall be prepared to furnish to the Contracting Officer a written justification for such restrictive markings in response to a challenge under paragraph (e) of this clause.

+ (c) Justification. The Contractor or subcontractor at any tier is responsible for maintaining records sufficient to justify the validity of its asserted restrictions on the rights of the Government and others to use, duplicate, release, or disclose technical data delivered, required to be delivered, or otherwise provided to the Government under the contract or subcontract. Except as provided in paragraph (b) of this clause, the Contractor or subcontractor shall be prepared to furnish to the Contracting Officer a written justification for such asserted restrictions in response to a challenge under paragraph (e) of this clause.

(d) Prechallenge request for information.

− (1) The Contracting Officer may request the Contractor or subcontractor to furnish a written explanation for any restriction asserted by the Contractor or subcontractor on the right of the United States or others to use technical data. If, upon review of the explanation submitted, the Contracting Officer remains unable to ascertain the basis of the restrictive marking, the Contracting Officer may further request the Contractor or subcontractor to furnish additional information in the records of, or otherwise in the possession of or reasonably available to, the Contractor or subcontractor to justify the validity of any restrictive marking on technical data delivered or to be delivered under the contract or subcontract (e.g., a statement of facts accompanied with supporting documentation). The Contractor or subcontractor shall submit such written data as requested by the Contracting Officer within the time required or such longer period as may be mutually agreed.

− (2) If the Contracting Officer, after reviewing the written data furnished pursuant to paragraph (d)(1) of this clause, or any other available information pertaining to the validity of a restrictive marking, determines that reasonable grounds exist to question the current validity of the marking and that continued adherence to the marking would make impracticable the subsequent competitive acquisition of the item, component, or process to which the technical data relates, the Contracting Officer will follow the procedures in paragraph (e) of this clause.

− (3) If the Contractor or subcontractor fails to respond to the Contracting Officer's request for information under paragraph (d)(1) of this clause, and the Contracting Officer determines that continued adherence to the marking would make impracticable the subsequent competitive acquisition of the item, component, or process to which the technical data relates, the Contracting Officer may challenge the validity of the marking as described in paragraph (e) of this clause.

+ (1) The Contracting Officer may request the Contractor or subcontractor to furnish a written explanation for any asserted restriction on the right of the United States or others to use, disclose, or release technical data. If, upon review of the explanation submitted, the Contracting Officer cannot determine the basis of the asserted restriction, the Contracting Officer may further request the Contractor or subcontractor to furnish additional information in the records of, or otherwise in the possession of or reasonably available to, the Contractor or subcontractor to justify the validity of any asserted restriction on technical data delivered,to be delivered, or otherwise provided to the Government under the contract or subcontract (e.g., a statement of facts accompanied with supporting documentation). The Contractor or subcontractor shall submit such written data as requested by the Contracting Officer within the time required or such longer period as may be mutually agreed.

+ (2) If the Contracting Officer, after reviewing the written data furnished pursuant to paragraph (d)(1) of this clause, or any other available information pertaining to the validity of an asserted restriction, determines that reasonable grounds exist to question the current validity of the asserted restriction and that continued adherence to the asserted restriction would make impracticable the subsequent competitive acquisition of the item or process to which the technical data relates, the Contracting Officer will follow the procedures in paragraph (e) of this clause.

+ (3) If the Contractor or subcontractor fails to respond to the Contracting Officer's request for information under paragraph (d)(1) of this clause, and the Contracting Officer determines that continued adherence to the asserted restriction would make impracticable the subsequent competitive acquisition of the item or process to which the technical data relates, the Contracting Officer may challenge the validity of the asserted restriction as described in paragraph (e) of this clause.

(e) Challenge.

− (1) Notwithstanding any provision of this contract concerning inspection and acceptance, if the Contracting Officer determines that a challenge to the restrictive marking is warranted, the Contracting Officer will send a written challenge notice to the Contractor or subcontractor asserting the restrictive markings. The challenge notice and all related correspondence shall be subject to handling procedures for classified information and controlled unclassified information. Such challenge will —

+ (1) Notwithstanding any provision of this contract concerning inspection and acceptance, if the Contracting Officer determines that a challenge to the asserted restriction is warranted, the Contracting Officer will send a written challenge notice to the Contractor or subcontractor making the asserted restriction. The challenge notice and all related correspondence shall be subject to handling procedures for classified information and controlled unclassified information. Such challenge will—

(i) State the specific grounds for challenging the asserted restriction including, for commercial products or commercial services, sufficient information to reasonably demonstrate that the commercial product or commercial service was not developed exclusively at private expense ;

(ii) Require a response within 60 days justifying and providing sufficient evidence as to the current validity of the asserted restriction;

− (iii) State that a DoD Contracting Officer's final decision, issued pursuant to paragraph (g) of this clause, sustaining the validity of a restrictive marking identical to the asserted restriction, within the three-year period preceding the challenge, shall serve as justification for the asserted restriction if the validated restriction was asserted by the same Contractor or subcontractor (or any licensee of such Contractor or subcontractor) to which such notice is being provided; and

+ (iii) State that a DoD Contracting Officer's final decision, issued pursuant to paragraph (g) of this clause, sustaining the validity of a prior asserted restrictionrestrictive marking identical to the current asserted restriction, within the three3-year period preceding the current challenge, shall serve as justification for the current asserted restriction if the prior validated restriction was asserted by the same Contractor or subcontractor (or any licensee of such Contractor or subcontractor) to which such notice is being provided; and

(iv) State that failure to respond to the challenge notice may result in issuance of a final decision pursuant to paragraph (f) of this clause.

(2) The Contracting Officer will extend the time for response as appropriate if the Contractor or subcontractor submits a written request showing the need for additional time to prepare a response.

(3) The Contractor's or subcontractor's written response shall be considered a claim within the meaning of 41 U.S.C. 7101, Contract Disputes, and shall be certified in the form prescribed at 33.207 of the Federal Acquisition Regulation, regardless of dollar amount.

− (4) A Contractor or subcontractor receiving challenges to the same restrictive markings from more than one Contracting Officer shall notify each Contracting Officer of the existence of more than one challenge. The notice shall also state which Contracting Officer initiated the first in time unanswered challenge. The Contracting Officer initiating the first in time unanswered challenge after consultation with the Contractor or subcontractor and the other Contracting Officers, will formulate and distribute a schedule for responding to each of the challenge notices to all interested parties. The schedule will afford the Contractor or subcontractor an opportunity to respond to each challenge notice. All parties will be bound by this schedule.

+ (4) A Contractor or subcontractor receiving challenges to the same asserted restrictions from more than one Contracting Officer shall notify each Contracting Officer of the existence of more than one challenge. The notice shall also state which Contracting Officer initiated the first in time unanswered challenge. The Contracting Officer initiating the first in time unanswered challenge after consultation with the Contractor or subcontractor and the other Contracting Officers, will formulate and distribute a schedule for responding to each of the challenge notices to all interested parties. The schedule will afford the Contractor or subcontractor an opportunity to respond to each challenge notice. All parties will be bound by this schedule.

(f) Final decision when Contractor or subcontractor fails to respond.Upon a failure of a Contractor or subcontractor to submit any response to the challenge notice the Contracting Officer will issue a final decision to the Contractor or subcontractor in accordance with the Disputes clause of this contract. In order to sustain the challenge for commercial products or commercial services, the Contracting Officer will provide information demonstrating that the commercial product or commercial service was not developed exclusively at private expense . This final decision will be issued as soon as possible after the expiration of the time period of paragraph (e)(1)(ii) or (e)(2) of this clause. Following issuance of the final decision, the Contracting Officer will comply with the procedures in paragraphs (g)(2)(ii) through (iv) of this clause.

(g) Final decision when Contractor or subcontractor responds.

− (1) If the Contracting Officer determines that the Contractor or subcontractor has justified the validity of the restrictive marking, the Contracting Officer will issue a final decision to the Contractor or subcontractor sustaining the validity of the restrictive marking, and stating that the Government will continue to be bound by the restrictive marking. This final decision will be issued within 60 days after receipt of the Contractor's or subcontractor's response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor that the Government will require. The notification of a longer period for issuance of a final decision will be made within 60 days after receipt of the response to the challenge notice.

− (2)(i) If the Contracting Officer determines that the validity of the restrictive marking is not justified, the Contracting Officer will issue a final decision to the Contractor or subcontractor in accordance with the Disputes clause of this contract. In order to sustain the challenge for commercial products or commercial services, the Contracting Officer will provide information demonstrating that the commercial product or service was not developed exclusively at private expense. Notwithstanding paragraph (e) of the Disputes clause, the final decision will be issued within 60 days after receipt of the Contractor's or subcontractor's response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor that the Government will require. The notification of a longer period for issuance of a final decision will be made within 60 days after receipt of the response to the challenge notice.

− (ii) The Government agrees that it will continue to be bound by the restrictive marking for a period of 90 days from the issuance of the Contracting Officer's final decision under paragraph (g)(2)(i) of this clause. The Contractor or subcontractor agrees that, if it intends to file suit in the United States Claims Court it will provide a notice of intent to file suit to the Contracting Officer within 90 days from the issuance of the Contracting Officer's final decision under paragraph (g)(2)(i) of this clause. If the Contractor or subcontractor fails to appeal, file suit, or provide a notice of intent to file suit to the Contracting Officer within the 90-day period, the Government may cancel or ignore the restrictive markings, and the failure of the Contractor or subcontractor to take the required action constitutes agreement with such Government action.

− (iii) The Government agrees that it will continue to be bound by the restrictive marking where a notice of intent to file suit in the United States Claims Court is provided to the Contracting Officer within 90 days from the issuance of the final decision under paragraph (g)(2)(i) of this clause. The Government will no longer be bound, and the Contractor or subcontractor agrees that the Government may strike or ignore the restrictive markings, if the Contractor or subcontractor fails to file its suit within 1 year after issuance of the final decision. Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, that urgent or compelling circumstances will not permit waiting for the filing of a suit in the United States Claims Court, the Contractor or subcontractor agrees that the agency may, following notice to the Contractor or subcontractor, authorize release or disclosure of the technical data. Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor's or subcontractor's right to damages against the United States where its restrictive markings are ultimately upheld or to pursue other relief, if any, as may be provided by law.

− (iv) The Government agrees that it will be bound by the restrictive marking where an appeal or suit is filed pursuant to the Contract Disputes statute until final disposition by an agency Board of Contract Appeals or the United States Claims Court. Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, following notice to the Contractor that urgent or compelling circumstances will not permit awaiting the decision by such Board of Contract Appeals or the United States Claims Court, the Contractor or subcontractor agrees that the agency may authorize release or disclosure of the technical data. Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor's or subcontractor's right to damages against the United States where its restrictive markings are ultimately upheld or to pursue other relief, if any, as may be provided by law.

+ (1) If the Contracting Officer determines that the Contractor or subcontractor has justified the validity of the asserted restrictionrestrictive marking, the Contracting Officer will issue a final decision to the Contractor or subcontractor sustaining that sustains the validity of the asserted restrictionrestrictive marking, and statingthat states that the Government will continue to be bound by the asserted restrictionrestrictive marking. The Contracting Officer will issue thisThis final decision will be issued within 60 days after receipt of the Contractor's or subcontractor's response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor that the Government will require. The Contracting Officer will provide notification of aany longer period for issuance of a final decision will be made within 60 days after receipt of the response to the challenge notice.

+ (2)(i) If the Contracting Officer determines that the validity of the asserted restriction is not justified, the Contracting Officer will issue a final decision to the Contractor or subcontractor in accordance with the Disputes clause of this contract. To sustain the challenge for commercial products or commercial services, the Contracting Officer will provide information demonstrating that the commercial product or commercial service was not developed exclusively at private expense. Notwithstanding paragraph (e) of the Disputes clause, the final decision will be issued within 60 days after receipt of the Contractor’s or subcontractor’s response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor that the Government will require. The notification of a longer period for issuance of a final decision will be made within 60 days after receipt of the response to the challenge notice.

+ (ii) The Government agrees that it will continue to be bound by the asserted restriction for a period of 90 days from the issuance of the Contracting Officer’s final decision under paragraph (g)(2)(i) of this clause. The Contractor or subcontractor agrees that, if it intends to file suit in the United States Court of Federal Claims, it will provide a notice of intent to file suit to the Contracting Officer within 90 days from the issuance of the Contracting Officer's final decision under paragraph (g)(2)(i) of this clause. If the Contractor or subcontractor fails to appeal, file suit, or provide a notice of intent to file suit to the Contracting Officer within the 90-day period, the Government may cancel or ignore the restrictive markingsthat are based on the asserted restrictions, and the failure of the Contractor or subcontractor to take the required action constitutes agreement with such Government action.

+ (iii) The Government agrees that it will continue to be bound by the asserted restriction where a notice of intent to file suit in the United States Court of Federal Claims is provided to the Contracting Officer within 90 days from the issuance of the final decision under paragraph (g)(2)(i) of this clause. The Government will no longer be bound, and the Contractor or subcontractor agrees that the Government may strike or ignore the restrictive marking that is based on the asserted restriction, if the Contractor or subcontractor fails to file its suit within 1 year after issuance of the final decision. Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, that urgent or compelling circumstances will not permit waiting for the filing of a suit in the United States Court of Federal Claims , the Contractor or subcontractor agrees that the agency may, following notice to the Contractor or subcontractor, authorize release or disclosure of the technical data. Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor's or subcontractor's right to damages against the United States where its asserted restrictions are ultimately upheld or to pursue other relief, if any, as may be provided by law.

+ (iv) The Government agrees that it will be bound by the asserted restrictions where an appeal or suit is filed pursuant to the Contract Disputes statute until final disposition by an agency Board of Contract Appeals or the United States Court of Federal Claims. Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, following notice to the Contractor that urgent or compelling circumstances will not permit awaiting the decision by such Board of Contract Appeals or the United States Court of Federal Claims, the Contractor or subcontractor agrees that the agency may authorize release or disclosure of the technical data. Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor's or subcontractor's right to damages against the United States where its asserted restrictions are ultimately upheld or to pursue other relief, if any, as may be provided by law.

(h) Final disposition of appeal or suit.

(1) If the Contractor or subcontractor appeals or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's decision is sustained—

− (i) The restrictive marking on the technical data shall be cancelled, corrected or ignored; and

− (ii) If the restrictive marking is found not to be substantially justified, the Contractor or subcontractor, as appropriate, shall be liable to the Government for payment of the cost to the Government of reviewing the restrictive marking and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in challenging the marking, unless special circumstances would make such payment unjust.

+ (i) The restrictive marking that is based on the asserted restriction on the technical data shall be cancelled, corrected, or ignored; and

+ (ii) If the asserted restriction is found not to be substantially justified, the Contractor or subcontractor, as appropriate, shall be liable to the Government for payment of the cost to the Government of reviewing the asserted restriction and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in challenging the asserted restriction, unless special circumstances would make such payment unjust.

(2) If the Contractor or subcontractor appeals or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's decision is not sustained—

(i) The Government will continue to be bound by the restrictive marking; and

(ii) The Government will be liable to the Contractor or subcontractor for payment of fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor or subcontractor in defending the marking, if the challenge by the Government is found not to have been made in good faith.

− (i) Duration of right to challenge. The Government may review the validity of any restriction on technical data, delivered or to be delivered under a contract, asserted by the Contractor or subcontractor. During the period within three 3 years of final payment on a contract or within three 3 years of delivery of the technical data to the Government, whichever is later, the Contracting Officer may review and make a written determination to challenge the restriction. The Government may, however, challenge a restriction on the release, disclosure , or use of technical data at any time if such technical data—

− (1) Is publicly available;

− (2) Has been furnished to the United States without restriction; or

− (3) Has been otherwise made available without restriction. Only the Contracting Officer's final decision resolving a formal challenge by sustaining the validity of a restrictive marking constitutes “validation” as addressed in 10 U.S.C. 3785(c).

+ (i) Duration of right to challenge.

+ (1) The Government may review the validity of any restriction on technical data, delivered or to be delivered under a contract, asserted by the Contractor or subcontractor. During the period within 6 years of final payment on a contract or within 6 years of delivery of the technical data to the Government, whichever is later, the Contracting Officer may review and make a written determination to challenge the restriction. The Government may, however, challenge a restriction on the release, disclosure, or use of technical data at any time if such technical data—

+ (i) Are publicly available;

+ (ii) Have been furnished to the United States without restriction;

+ (iii) Have been otherwise made available without restriction; or

+ (iv) Are the subject of a fraudulently asserted use or release restriction.

+ (2) Only the Contracting Officer's final decision resolving a formal challenge by sustaining the validity of a restrictive marking constitutes “validation” as addressed in 10 U.S.C. 3785(c).

(j) Decision not to challenge. A decision by the Government, or a determination by the Contracting Officer, to not challenge the restrictive marking or asserted restriction shall not constitute “validation.”

− (k) Privity of contract. The Contractor or subcontractor agrees that the Contracting Officer may transact matters under this clause directly with subcontractors at any tier that assert restrictive markings. However, this clause neither creates nor implies privity of contract between the Government and subcontractors.

+ (k) Privity of contract. The Contractor or subcontractor agrees that the Contracting Officer may transact matters under this clause directly with subcontractors at any tier that assert restrictions. However, this clause neither creates nor implies privity of contract between the Government and subcontractor.

(l) Flowdown. The Contractor or subcontractor agrees to insert this clause in contractual instruments, including subcontracts and other contractual instruments for commercial products or commercial services, with its subcontractors or suppliers at any tier requiring the delivery of technical data.

(End of clause)

+ 252.227-7040 Additional Preaward Requirements for Small Business Technology Transfer Program.

+ As prescribed in 227.7104-4(c)(1), use the following provision:

+ ADDITIONAL PREAWARD REQUIREMENTS FOR SMALL BUSINESS TECHNOLOGY TRANSFER PROGRAM (JAN 2025)

+ (a) Definitions. As used in this provision, the terms “research institution” and “United States” have the meaning given in the 252.227-7041, Additional Postaward Requirements for Small Business Technology Transfer Program,clause of this solicitation.

+ (b) Offers submitted in response to this solicitation shall include the following:

+ (1) The written agreement between the Offeror and a research institution, which shall contain—

+ (i) A specific allocation of ownership, rights, and responsibilities for intellectual property (including inventions, patents, technical data, and computer software) resulting from the Small Business Technology Transfer (STTR) Program award;

+ (ii) Identification of which party to the written agreement may obtain United States or foreign patents or otherwise protect any inventions that result from a STTR award; and

+ (iii) No terms or conditions that conflict with the requirements of the clause at 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, or this provision, including the rights of the United States, the Offeror, and the research institution regarding intellectual property, and regarding any right to carry out follow-on research.

+ (2) The Offeror’s written representation that—

+ (i) The Offeror is satisfied with its written agreement with the research institution; and

+ (ii) The written agreement does not conflict with the requirements of this solicitation.

+ (c) The Offeror shall submit the written representation required by paragraph (b)(2) of this provision as an attachment to its offer, dated and signed by an official authorized to contractually obligate the Offeror.

+ (d) The Offeror’s failure to submit the written agreement or written representation required by paragraph (b) of this provision with its offer may render the offer ineligible for award.

+ (e) If the Offeror is awarded a contract, the Contracting Officer will include the written agreement and written representation required by paragraph (b) of this provision in an attachment to that contract.

+ (End of provision)

+ 252.227-7041 Additional Postaward Requirements for Small Business Technology Transfer Program.

+ As prescribed in 227.7104-4(c)(2), use the following clause:

+ ADDITIONAL POSTAWARD REQUIREMENTS FOR SMALL BUSINESS TECHNOLOGY TRANSFER PROGRAM (JAN 2025)

+ (a) Definitions. As used in this clause—

+ “Research institution” means an institution or entity that—

+ (1) Has a place of business located in the United States;

+ (2) Operates primarily within the United States or makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials, or labor; and

+ (3) Is either—

+ (i) A nonprofit institution that is owned and operated exclusively for scientific or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual (section 4(3) of the Stevenson-Wydler Technology Innovation Act of 1980); or

+ (ii) A federally-funded research or research and development center as identified by the National Science Foundation (https://www.nsf.gov/statistics/ffrdclist/) in accordance with the guidance atFederal Acquisition Regulation 35.017.

+ “United States” means the 50 States and the District of Columbia, the territories and possessions of the Government, the Commonwealth of Puerto Rico, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.

+ (b) Preaward submissions. Attached to this contract are the following documents, submitted by the Contractor pursuant to Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7040, Additional Preaward Requirements for Small Business Technology Transfer Program:

+ (1) The written agreement between the Contractor and a research institution.

+ (2) The Contractor’s written representation that the Contractor is satisfied with that written agreement, which does not conflict with the clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, or this clause.

+ (c) Postaward updates. The Contractor shall not allow any modification to its written agreement with the research institution, unless the written agreement, as modified, contains—

+ (1) A specific allocation of ownership, rights, and responsibilities for intellectual property (including inventions, patents, technical data, and computer software) resulting from performance of this contract;

+ (2) Identification of which party to the written agreement may obtain United States or foreign patents or otherwise protect any inventions that result from a Small Business Technology Transfer Program award;

+ (3) The Contractor’s written, dated, and signed representation that—

+ (i) The Contractor is satisfied with its written agreement with the research institution, as modified; and

+ (ii) The written agreement, as modified, does not conflict with the clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, or this clause; and

+ (4) No terms and conditions that conflict with the clause at DFARS 252.227-7018, Rights in Other Than Commercial Technical Data and Computer Software–Small Business Innovation Research Program and Small Business Technology Transfer Program, or this clause, including the rights of the United States, the Contractor, and the research institution regarding intellectual property, and regarding any right to carry out follow-on research.

+ (d) Submission of updated agreement. Within 30 days of execution of the modified written agreement described in paragraph (b)(1) of this clause, the Contractor shall submit a copy of that updated written agreement and the updated written representation described in paragraph (b)(2) of this clause to the Contracting Officer for review and attachment to this contract.

+ (End of clause)

234.203

(2), use the following clause:

− EARNED VALUE MANAGEMENT SYSTEM (MAY 2011)

+ EARNED VALUE MANAGEMENT SYSTEM (JAN 2025)

(a) Definitions. As used in this clause——

“Acceptable earned value management system” means an earned value management system that generally complies with system criteria in paragraph (b) of this clause.

“Earned value management system” means an earned value management system that complies with the earned value management system guidelines in the ANSI/EIA-748.

− “Significant deficiency” means a shortcoming in the system that materially affects the ability of officials of the Department of Defense to rely upon information produced by the system that is needed for management purposes.

+ “Material weakness” means a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. A reasonable possibility exists when the likelihood of an event occurring is—

+ (1) Probable; or

+ (2) More than remote but less than likely (section 806 of Pub. L. 116-283).

(b) System criteria. In the performance of this contract, the Contractor shall use—

(1) An Earned Value Management System (EVMS) that complies with the EVMS guidelines in the American National Standards Institute/Electronic Industries Alliance Standard 748, Earned Value Management Systems (ANSI/EIA-748); and

242.7204

, use the following clause:

− MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM (MAY 2011)

+ MATERIAL MANAGEMENT AND ACCOUNTING SYSTEM (JAN 2025)

(a) Definitions.As used in this clause—

− (1) “Material management and accounting system (MMAS)” means the Contractor's system or systems for planning, controlling, and accounting for the acquisition, use, issuing, and disposition of material. Material management and accounting systems may be manual or automated. They may be stand-alone systems or they may be integrated with planning, engineering, estimating, purchasing, inventory, accounting, or other systems.

− (2) “Valid time-phased requirements” means material that is—

− (i) Needed to fulfill the production plan, including reasonable quantities for scrap, shrinkage, yield, etc.; and

− (ii) Charged/billed to contracts or other cost objectives in a manner consistent with the need to fulfill the production plan.

− (3) “Contractor” means a business unit as defined in section 31.001 of the Federal Acquisition Regulation (FAR).

− (4) “Acceptable material management and accounting system” means a MMAS that generally complies with the system criteria in paragraph (d) of this clause.

− (5) “Significant deficiency” means a shortcoming in the system that materially affects the ability of officials of the Department of Defense to rely upon information produced by the system that is needed for management purposes.

+ “Acceptable material management and accounting system” means a material management and accounting system that generally complies with the system criteria in paragraph (d) of this clause.

+ “Contractor” means a business unit as defined in Federal Acquisition Regulation (FAR) 2.101.

+ “Material management and accounting system (MMAS)” means the Contractor’s system or systems for planning, controlling, and accounting for the acquisition, use, issuing, and disposition of material. Material management and accounting systems may be manual or automated. They may be stand-alone systems, or they may be integrated with planning, engineering, estimating, purchasing, inventory, accounting, or other systems.

+ “Material weakness” means a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. A reasonable possibility exists when the likelihood of an event occurring is—

+ (1) Probable; or

+ (2) More than remote but less than likely (section 806 of Pub. L. 116-283).

+ “Valid time-phased requirements” means material that is—

+ (1) Needed to fulfill the production plan, including reasonable quantities for scrap, shrinkage, yield, etc.; and

+ (2) Charged or billed to contracts or other cost objectives in a manner consistent with the need to fulfill the production plan.

(b) General.The Contractor shall—

(1) Maintain an MMAS that—

242.7001

, use the following clause:

− CONTRACTOR BUSINESS SYSTEMS (FEB 2012)

+ CONTRACTOR BUSINESS SYSTEMS (JAN 2025)

(a) This clause only applies to covered contracts that are subject to the Cost Accounting Standards under 41 U.S.C. chapter 15, as implemented in regulations found at 48 CFR 9903.201-1 (see the FAR Appendix).

(b) Definitions. As used in this clause—

242.7503

, use the following clause:

− ACCOUNTING SYSTEM ADMINISTRATION (FEB 2012)

+ ACCOUNTING SYSTEM ADMINISTRATION (JAN 2025)

(a) Definitions. As used in this clause—

− (1) “Acceptable accounting system” means a system that complies with the system criteria in paragraph (c) of this clause to provide reasonable assurance that—

− (i) Applicable laws and regulations are complied with;

− (ii) The accounting system and cost data are reliable;

− (iii) Risk of misallocations and mischarges are minimized; and

− (iv) Contract allocations and charges are consistent with billing procedures.

− (2) “Accounting system” means the Contractor’s system or systems for accounting methods, procedures, and controls established to gather, record, classify, analyze, summarize, interpret, and present accurate and timely financial data for reporting in compliance with applicable laws, regulations, and management decisions, and may include subsystems for specific areas such as indirect and other direct costs, compensation, billing, labor, and general information technology.

− (3) “Significant deficiency” means a shortcoming in the system that materially affects the ability of officials of the Department of Defense to rely upon information produced by the system that is needed for management purposes.

+ “Acceptable accounting system” means a system that complies with the system criteria in paragraph (c) of this clause to provide reasonable assurance that—

+ (1) Applicable laws and regulations are complied with;

+ (2) The accounting system and cost data are reliable;

+ (3) Risk of misallocations and mischarges are minimized; and

+ (4) Contract allocations and charges are consistent with billing procedures.

+ “Accounting system” means the Contractor’s system or systems for accounting methods, procedures, and controls established to gather, record, classify, analyze, summarize, interpret, and present accurate and timely financial data for reporting in compliance with applicable laws, regulations, and management decisions, and may include subsystems for specific areas such as indirect and other direct costs, compensation, billing, labor, and general information technology.

+ Material weakness

+ means a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. A reasonable possibility exists when the likelihood of an event occurring is—

+ (1) Probable; or

+ (2) More than remote but less than likely (section 806 of Pub. L. 116-283).

(b) General. The Contractor shall establish and maintain an acceptable accounting system. Failure to maintain an acceptable accounting system, as defined in this clause, shall result in the withholding of payments if the contract includes the clause at

252.242-7005

244.305-71

(a), use the following clause:

− CONTRACTOR PURCHASING SYSTEM ADMINISTRATION-BASIC (MAY 2014)

+ CONTRACTOR PURCHASING SYSTEM ADMINISTRATION-BASIC (JAN 2025)

(a) Definitions. As used in this clause—

“Acceptable purchasing system” means a purchasing system that complies with the system criteria in paragraph (c) of this clause.

+ [Material weakness means a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. A reasonable possibility exists when the likelihood of an event occurring is—

+ (1) Probable; or

+ (2) More than remote but less than likely (section 806 of Pub. L. 116-283).

“Purchasing system” means the Contractor’s system or systems for purchasing and subcontracting, including make-or-buy decisions, the selection of vendors, analysis of quoted prices, negotiation of prices with vendors, placing and administering of orders, and expediting delivery of materials.

− “Significant deficiency” means a shortcoming in the system that materially affects the ability of officials of the Department of Defense to rely upon information produced by the system that is needed for management purposes.

(b) General. The Contractor shall establish and maintain an acceptable purchasing system. Failure to maintain an acceptable purchasing system, as defined in this clause, may result in disapproval of the system by the Contracting Officer and/or withholding of payments.

(c) System criteria. The Contractor’s purchasing system shall—

252.245-7003 Contractor Property Management System Administration.

As prescribed in 245.107 (3), insert the following clause:

− CONTRACTOR PROPERTY MANAGEMENT SYSTEM

− ADMINISTRATION (APR 2012)

+ CONTRACTOR PROPERTY MANAGEMENT SYSTEM ADMINISTRATION (JAN 2025)

(a) Definitions. As used in this

clause—