Government Support Contractor Access to Technical Data (DFARS Case 2009-D031)
Summary:
DCN 20110302 includes an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 821 of the National Defense Authorization Act for Fiscal Year 2010. Section 821 provides authority for certain types of Government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a non-disclosure agreement having certain restrictions and remedies.
Additionally, this interim rule amends the DFARS to provide needed editorial changes.
Supplementary Information:
I. Background
Section 821 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84) was enacted October 28, 2009. Section 821 provides authority for certain types of Government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a non-disclosure agreement having certain restrictions and remedies.
The DFARS scheme for acquiring rights in technical data is based on 10 U.S.C. 2320 and 2321. Section 2320 establishes the basic allocation of rights in technical data, and provides, among other things, that a private party is entitled to restrict the Government's rights to release or disclose privately-developed technical data outside the Government. This restriction is implemented in the DFARS as the "limited rights" license, which essentially limits the Government's use of such data only for in-house use, which does not include release to Government support contractors.
Historically, the statutorily based scheme has included only two categorical exceptions to the basic non-disclosure requirements for such privately-developed data:
• A "type" exception, in which the Government is granted unlimited rights in certain types of "top-level" data that are considered not to provide a competitive advantage by being treated as proprietary (e.g., form, fit, and function data; data necessary for operation, maintenance, installation, or training; publicly available data) (2320(a)(2)(C)); and
• A "special needs" exception for certain important Government activities that are considered critical to Government operations (e.g., emergency repair and overhaul; evaluation by a foreign government), and are allowed only when the recipient of the data is made subject to strict non-disclosure restrictions on any further release of the data. (2320(a)(2)(D))
Section 821 amends 10 U.S.C. 2320 to add a new third statutory exception to the prohibition on release of privately developed data outside the Government that provides-"notwithstanding any limitation upon the license rights conveyed under subsection (a), allowing a covered Government support contractor access to, and use of, any technical data delivered under a contract 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 relates."
The statute also provides a definition of "covered Government support contractor" to mean--
"A contractor 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) Executes a contract with the Government agreeing to and acknowledging--
(A) That proprietary or non-public technical data furnished will be accessed and used only for the purposes stated in that contract;
(B) That the covered Government support contractor will enter into a non-disclosure agreement with the contractor to whom the rights to the technical data belong;
(C) That the covered Government support contractor will take all reasonable steps to protect the proprietary and non-public nature of the technical data furnished to the covered Government support contractor during the program or effort for the period of time in which the Government is restricted from disclosing the technical data outside of the Government;
(D) That a breach of that contract by the covered Government support contractor with regard to a third party's ownership or rights in such technical data may subject the covered Government support contractor--
(i) To criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and
(ii) To civil actions for damages and other appropriate remedies by the contractor or subcontractor whose technical data is affected by the breach; and
(E) That such technical data provided to the covered Government support contractor under the authority of this section shall not be used by the covered Government support contractor to compete against the third party for Government or non-Government contracts.
II. Discussion and Analysis
See full discussion and analysis here.
Dates:
The Effective Date for this interim rule is 2 March 2011.
Comments on the interim rule should be submitted on or before 2 May 2011, to be considered in the formation of the final rule.
Click here to read the entire Federal Register notice for this rule.
__________________________________________________________________________________