Presumption of Development Exclusively at Private Expense (DFARS Case 2007-D003)

Summary:

DCN 20110920 includes a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the Fiscal Year (FY) 2007 and 2008 National Defense Authorization Act, including special requirements and procedures related to the validation of a contractor's or subcontractor's asserted restrictions on technical data and computer software.

Supplementary Information:

I. Background

This final rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 802(b) of the FY 2007 National Defense Authorization Act (NDAA) (Pub. L. 109-364) and section 815 of the FY 2008 NDAA (Pub. L. 110-181). Section 802(b) modified 10 U.S.C. 2321(f)(2) with regard to the presumption of development at private expense for major systems. Section 815 revised 10 U.S.C. 2321(f)(2) to exempt commercially available off-the-shelf items from the requirements that section 802(b) established for major systems.

This final rule implements special requirements and procedures related to the validation of a contractor's or subcontractor's asserted restrictions on technical data and computer software. More specifically, the final rule affects these validation procedures in the context of two special categories of items: Commercial items (including commercially available off-the-shelf items), which may be referred to as the "Commercial Rule;" and major systems (including subsystems and components of major systems), which may be referred to as the "Major Systems Rule."

DoD published a proposed rule with a request for comments in the Federal Register on May 7, 2010 (75 FR 25161). Two respondents provided comments.