A. Prescribing a Noncommercial Clause for Technical Data Related to a Commercial Item
Comment: Two respondents described the prescriptions at DFARS 227.7102-3(b) and 227.7103-6(a) as new requirements that exceed the changes necessary to implement the statute.
Response: The operative elements of the clause prescription at DFARS 227.7102-3(b) were a part of the last major revision of Part 227 in 1995. The substance of the prescription has not changed in the proposed rule; the requirement was redesignated as DFARS 227.7102-(4)(b) and revised to cross-reference the prescription added to DFARS 227.7103-6(a). This follows DFARS drafting principles to use only a single prescription for each clause, using cross-references when necessary. As such, the prescription at DFARS 227.7103-6(a) serves as the primary source for prescribing all uses of the clause at DFARS 252.227-7013, with a cross-reference at 227.7102-(4)(b).
Comment: A respondent recommended that the criteria "or will pay any portion of the development costs" should be eliminated because the Government should not receive the benefit of something it may or may not pay for in the future outside of the contract.
Response: The "will pay" criterion has been used since 1995. The term "will" is used to denote an anticipated future action or result, and there is no evidence that this criterion has been or should be interpreted as seeking to be used in a contract when the criteria used to invoke the clause has not, and is not, expected to occur during the contract.
Comment: Two respondents outlined specific concerns that prescribing use of the noncommercial clause for technical data related to a commercial item is unnecessarily burdensome with regard to the noncommercial marking requirements. One respondent argued that this could result in the contractor unintentionally forfeiting its intellectual property rights by delivering with commercial markings that do not comply with the DFARS noncommercial marking requirements.
Response: The prescription for the use of the clause at DFARS 252.227-7013 in this scenario already exists. Use of commercial restrictive markings would not directly result in the forfeiture of the contractor's intellectual property rights in cases in which the noncommercial marking rules were used. The restrictive marking required by the clause at DFARS 252.227-7015(d) for technical data related to commercial items should be sufficient to: (1) Preserve the contractor's rights under the noncommercial clause procedures for correcting "nonconforming" markings (see DFARS 252.227-7013(h)(1)) or (2) validate asserted restrictions under DFARS 252.227-7037, which is used regardless of whether the clauses at DFARS 252.227-7013 or 252.227-7015 are included.
The final rule is amended to address concerns about the desirability of requiring noncommercial markings for the entire technical data package, in cases where the Government may have funded only a small portion of the development. The final rule revises the prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a), to clarify that in cases when the Government "will have paid" for any portion of the development of a commercial item, both the commercial clause at DFARS 252.227-7015 and the noncommercial clause at DFARS 252.227-7013 should be used together. In these cases, the noncommercial clause will apply only to the technical data related to those portions of the commercial item that were developed in some part at Government expense, and the commercial clause will remain applicable to the rest of the data. This preserves the preexisting allocation of rights between the parties, but avoids the necessity of applying noncommercial markings to data related to commercial technologies that were developed exclusively at private expense. In addition, the flowdown requirements of DFARS clause 252.227-7013(k) and clause 252.227-7015(e) are clarified to enable the use of the appropriate clause(s) to lower-tier subcontracts.
Comment: Two respondents commented that the proposed revisions result in a commercial item losing its commercial item status. One of these respondents recommended the elimination of the "developed exclusively at private expense" component of the proposed revisions to the clause at DFARS 252.227-7019, to avoid the application of the noncommercial clauses to commercial technologies.
Response: The prescription for the use of the clause at DFARS 252.227-7013 does not affect the commercial status of an item that otherwise meets the definition of commercial item at FAR 2.101 (based on 41 U.S.C. 403(12), and 10 U.S.C. 2302(3)(I)). If the item still qualifies as a commercial item, then it is a commercial item. If that commercial item was not developed exclusively at private expense, then the rules apply that govern the treatment of technical data deliverables and associated license rights related to that commercial item.
Comment: Two respondents identified several ways in which the prescribed use of the clause at DFARS 252.227-7013, instead of 252.227-7015, appears to be inconsistent with FAR and DFARS policies regarding data deliverables and data rights in commercial technologies. The respondents noted that DFARS 227.7102-1 states DoD's basic policy that DoD shall acquire only the technical data deliverables that are customarily provided to the public, with a few exceptions.
Response: The prescription for the use of the clause at DFARS 252.227-7013, when the item has been developed in part at Government expense but the item still qualifies as commercial, does not change the applicability of this policy statement. The policy provides exceptions, one of which allows the Government to require the delivery of technical data that describes modifications made at Government expense even if such data is not typically provided to the public (see DFARS 227.7102-1(a)(3)).
Comment: A respondent recommended the elimination of the "developed exclusively at private expense" component of the proposed revisions to the clause at DFARS 252.227-7019, to avoid the application of the noncommercial clauses to commercial technologies.
Response: The respondent's basis for concern is unclear in view of the limited applicability of the clause at DFARS 252.227-7019 to only noncommercial computer software, and the proposed revisions address only the noncommercial aspects of the Major Systems Rule. Accordingly, the proposed revisions to the validation procedures for noncommercial computer software at DFARS 227.7203-13 and 252.227-7019 are retained in the final rule.
Comment: One respondent noted that DFARS 227.7202-1 states the basic policy governing commercial computer software and computer software documentation is that the Government acquires the licenses customarily provided to the public unless such licenses are inconsistent with Federal procurement law or do not otherwise satisfy the agency's needs.
Response: The proposed rule creates no issues or conflicts with this policy since there are no changes proposed for any DFARS coverage related to commercial computer software or documentation.