10 U.S.C. § 2320 : US Code - Section 2320: Rights in technical data

Search 10 U.S.C. § 2320 : US Code - Section 2320: Rights in technical data

(a)(1) The Secretary of Defense shall prescribe regulations to
define the legitimate interest of the United States and of a
contractor or subcontractor in technical data pertaining to an item
or process. Such regulations shall be included in regulations of
the Department of Defense prescribed as part of the Federal
Acquisition Regulation. Such regulations may not impair any right
of the United States or of any contractor or subcontractor with
respect to patents or copyrights or any other right in technical
data otherwise established by law. Such regulations also may not
impair the right of a contractor or subcontractor to receive from a
third party a fee or royalty for the use of technical data
pertaining to an item or process developed exclusively at private
expense by the contractor or subcontractor, except as otherwise
specifically provided by law.
(2) Such regulations shall include the following provisions:
(A) In the case of an item or process that is developed by a
contractor or subcontractor exclusively with Federal funds (other
than an item or process developed under a contract or subcontract
to which regulations under section 9(j)(2) of the Small Business
Act (15 U.S.C. 638(j)(2)) apply), the United States shall have
the unlimited right to -
(i) use technical data pertaining to the item or process; or
(ii) release or disclose the technical data to persons
outside the government or permit the use of the technical data
by such persons.
(B) Except as provided in subparagraphs (C) and (D), in the
case of an item or process that is developed by a contractor or
subcontractor exclusively at private expense, the contractor or
subcontractor may restrict the right of the United States to
release or disclose technical data pertaining to the item or
process to persons outside the government or permit the use of
the technical data by such persons.
(C) Subparagraph (B) does not apply to technical data that -
(i) constitutes a correction or change to data furnished by
the United States;
(ii) relates to form, fit, or function;
(iii) is necessary for operation, maintenance, installation,
or training (other than detailed manufacturing or process
data); or
(iv) is otherwise publicly available or has been released or
disclosed by the contractor or subcontractor without
restriction on further release or disclosure.
(D) Notwithstanding subparagraph (B), the United States may
release or disclose technical data to persons outside the
Government, or permit the use of technical data by such persons,
if -
(i) such release, disclosure, or use -
(I) is necessary for emergency repair and overhaul; or
(II) is a release or disclosure of technical data (other
than detailed manufacturing or process data) to, or use of
such data by, a foreign government that is in the interest of
the United States and is required for evaluational or
informational purposes;
(ii) such release, disclosure, or use is made subject to a
prohibition that the person to whom the data is released or
disclosed may not further release, disclose, or use such data;
and
(iii) the contractor or subcontractor asserting the
restriction is notified of such release, disclosure, or use.
(E) In the case of an item or process that is developed in part
with Federal funds and in part at private expense, the respective
rights of the United States and of the contractor or
subcontractor in technical data pertaining to such item or
process shall be established as early in the acquisition process
as practicable (preferably during contract negotiations) and
shall be based upon negotiations between the United States and
the contractor, except in any case in which the Secretary of
Defense determines, on the basis of criteria established in the
regulations, that negotiations would not be practicable. The
establishment of such rights shall be based upon consideration of
all of the following factors:
(i) The statement of congressional policy and objectives in
section 200 of title 35, the statement of purposes in section
2(b) of the Small Business Innovation Development Act of 1982
(15 U.S.C. 638 note), and the declaration of policy in section
2 of the Small Business Act (15 U.S.C. 631).
(ii) The interest of the United States in increasing
competition and lowering costs by developing and locating
alternative sources of supply and manufacture.
(iii) The interest of the United States in encouraging
contractors to develop at private expense items for use by the
Government.
(iv) Such other factors as the Secretary of Defense may
prescribe.
(F) A contractor or subcontractor (or a prospective contractor
or subcontractor) may not be required, as a condition of being
responsive to a solicitation or as a condition for the award of a
contract -
(i) to sell or otherwise relinquish to the United States any
rights in technical data except -
(I) rights in technical data described in subparagraph (C);
or
(II) under the conditions described in subparagraph (D); or
(ii) to refrain from offering to use, or from using, an item
or process to which the contractor is entitled to restrict
rights in data under subparagraph (B).
(G) The Secretary of Defense may -
(i) negotiate and enter into a contract with a contractor or
subcontractor for the acquisition of rights in technical data
not otherwise provided under subparagraph (C) or (D), if
necessary to develop alternative sources of supply and
manufacture;
(ii) agree to restrict rights in technical data otherwise
accorded to the United States under this section if the United
States receives a royalty-free license to use, release, or
disclose the data for purposes of the United States (including
purposes of competitive procurement); or
(iii) permit a contractor or subcontractor to license
directly to a third party the use of technical data which the
contractor is otherwise allowed to restrict, if necessary to
develop alternative sources of supply and manufacture.
(3) The Secretary of Defense shall define the terms "developed",
"exclusively with Federal funds", and "exclusively at private
expense" in regulations prescribed under paragraph (1). In defining
such terms, the Secretary shall specify the manner in which
indirect costs shall be treated and shall specify that amounts
spent for independent research and development and bid and proposal
costs shall not be considered to be Federal funds for the purposes
of definitions under this paragraph.
(b) Regulations prescribed under subsection (a) shall require
that, whenever practicable, a contract for supplies or services
entered into by an agency named in section 2303 of this title
contain appropriate provisions relating to technical data,
including provisions -
(1) defining the respective rights of the United States and the
contractor or subcontractor (at any tier) regarding any technical
data to be delivered under the contract and providing that, in
the case of a contract for a commercial item, the item shall be
presumed to be developed at private expense unless shown
otherwise in accordance with section 2321(f);
(2) specifying the technical data, if any, to be delivered
under the contract and delivery schedules for such delivery;
(3) establishing or referencing procedures for determining the
acceptability of technical data to be delivered under the
contract;
(4) establishing separate contract line items for the technical
data, if any, to be delivered under the contract;
(5) to the maximum practicable extent, identifying, in advance
of delivery, technical data which is to be delivered with
restrictions on the right of the United States to use such data;
(6) requiring the contractor to revise any technical data
delivered under the contract to reflect engineering design
changes made during the performance of the contract and affecting
the form, fit, and function of the items specified in the
contract and to deliver such revised technical data to an agency
within a time specified in the contract;
(7) establishing remedies to be available to the United States
when technical data required to be delivered or made available
under the contract is found to be incomplete or inadequate or to
not satisfy the requirements of the contract concerning technical
data; and
(8) authorizing the head of the agency to withhold payments
under the contract (or exercise such other remedies as the head
of the agency considers appropriate) during any period if the
contractor does not meet the requirements of the contract
pertaining to the delivery of technical data.
(c) Nothing in this section or in section 2305(d) of this title
prohibits the Secretary of Defense from -
(1) prescribing standards for determining whether a contract
entered into by the Department of Defense shall provide for a
time to be specified in the contract after which the United
States shall have the right to use (or have used) for any purpose
of the United States all technical data required to be delivered
to the United States under the contract or providing for such a
period of time (not to exceed 7 years) as a negotiation
objective; or
(2) prescribing reasonable and flexible guidelines, including
negotiation objectives, for the conduct of negotiations regarding
the respective rights in technical data of the United States and
the contractor.
(d) The Secretary of Defense shall by regulation establish
programs which provide domestic business concerns an opportunity to
purchase or borrow replenishment parts from the United States for
the purpose of design replication or modification, to be used by
such concerns in the submission of subsequent offers to sell the
same or like parts to the United States. Nothing in this subsection
limits the authority of the head of an agency to impose
restrictions on such a program related to national security
considerations, inventory needs of the United States, the
improbability of future purchases of the same or like parts, or any
additional restriction otherwise required by law.
(e) The Secretary of Defense shall require program managers for
major weapon systems and subsystems of major weapon systems to
assess the long-term technical data needs of such systems and
subsystems and establish corresponding acquisition strategies that
provide for technical data rights needed to sustain such systems
and subsystems over their life cycle. Such strategies may include
the development of maintenance capabilities within the Department
of Defense or competition for contracts for sustainment of such
systems or subsystems. Assessments and corresponding acquisition
strategies developed under this section with respect to a weapon
system or subsystem shall -
(1) be developed before issuance of a contract solicitation for
the weapon system or subsystem;
(2) address the merits of including a priced contract option
for the future delivery of technical data that were not acquired
upon initial contract award;
(3) address the potential for changes in the sustainment plan
over the life cycle of the weapon system or subsystem; and
(4) apply to weapon systems and subsystems that are to be
supported by performance-based logistics arrangements as well as
to weapons systems and subsystems that are to be supported by
other sustainment approaches.