C.  Application of Statutory Technical Data Rules to Computer Software

Comment: A respondent argued that the proposed rule should not make any changes to the validation procedures for computer software; in particular, the clause at DFARS 252.227-7019, "Validation of Asserted Restrictions--Computer Software," should not be amended to include the proposed new paragraph (f) that implements the "Major Systems Rule."  In addition, a respondent contended that the decision to cover software was flawed because: (1) There is no statutory basis for the change and (2) not all rights determinations are "black and white."

Response: (1) Although 10 U.S.C. 2320 and 2321 apply only to technical data and not to computer software, it is longstanding DoD policy and practice to apply the same or analogous requirements to computer software, whenever appropriate. Accordingly, the proposed rule implements revisions to the validation procedures for computer software only to the extent that those procedures are based on the technical data validation procedures that are affected by the statutory changes. The result is that it is only the Major Systems Rule that is adapted for application only to noncommercial computer software. (2) The new Major Systems Rule is applicable only to challenges of contractor assertions that development was exclusively at private expense. Thus, the proposed adaptation of the new Major Systems Rule to noncommercial software validation also is not applicable to assertions based on mixed funds, and does not in any way restrict the ability to segregate mixed-funding development into its privately-funded and Government-funded portions.