Data Rights Brief

Maj Brian PutnamAFSC/PZADSN 339-3458Email: [email protected]

I n t e g r i t y - S e r v i c e - E x c e l l e n c e

AIR FORCE SUSTAINMENT CENTER

DATA RIGHTS 25 Aug 2014

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OVERVIEW

• PRIMARY MANDATES/ISSUES• FLOW CHART• CURRENT OPERATIONS• WAY FORWARD

– ACQUISITION PLANNING– ADDITIONAL CONSIDERATIONS

• BACKUP SLIDES– MAJOR DEFINITIONS– LEVELS OF RIGHTS– STATUTES & REGULATIONS

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PRIMARY MANDATES/ISSUES

• PRIMARY MANDATES– CONGRESS: INCREASE COMPETITION– USD(AT&L): UTILIZE BETTER BUYING POWER

• Remove competitive barriers, focus on data rights• PRIMARY ISSUES

– DIFFICULT TO COMPETE• Legacy systems

– Data rights not established decades ago• Diminishing manufacturing sources• Obsolete parts

– J&As cite lack of data rights as rationale• Ktrs fight to control niche; mark everything “Proprietary”

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Acqn Decision

Who paid to develop item/svc?

Ktr Only

USG Only

Mixed

Other DataF3 or

OMIT

Asserting rights

restriction?

Limited rights; releasable

Unlimited Rights

Yes

No

F3 orOMIT

Other Data

Government Purposefor 5 years

After 5 yrs

Different rights in best interest

Rights TBN

Unless

F3 – Form, Fit, and Function dataOMIT – Data related to operation, maintenance, installation and training

(Note: See Backup Slides – Applying Statutes & Regulations for deeper dive)

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CURRENT OPERATIONS

• Provide parts/drawings for reverse engineering• Seek to purchase data

• Seeking “unlimited” or “other” rights?• Repository checks markings against contract

– Can’t determine who paid for development• Legacy systems/services (aircraft, engines, repair)

• Data rights not purchased initially; records long lost/destroyed

• Difficult to prove who paid for development• Commercial vs. Non-Commercial Determination

– Comm’l: rebuttable presumption of development at private expense

– Non-Comm’l: burden of proof on contractor

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CURRENT OPERATIONS

• DATA RIGHTS REVIEW TEAM– Chartered at PK level– Reviewing past contracts to determine

• What rights we expected, what we got, and assess differences• Build “lessons learned” library• Propose educational, procedural methods to institutionalize

data rights– JEDMICS handles drawings, but not Tech Orders– Assess how we validate/challenge restrictive markings

» “Proprietary” is not a restriction– We have 6 years to challenge invalid restrictions from

whichever is later:• Date of final payment on contract, or• Date on which data are delivered under the contract

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WAY FORWARD

• ACQUISITION PLANNING– PMs for major weapon systems/subsystems shall

• Assess long-term tech data needs, and• Establish acquisition strategies providing for rights to sustain

the systems/subsystems throughout the life cycle• Assessments shall

– Be done pre-award– Address merits of priced options for future delivery of data not

acquired initially» Living with decisions made 30+ years ago; break the cycle now

– Address potential for changes in sustainment plan over life cycle, AND

– Apply to systems/subsystems to be supported by PBL and other sustainment approaches

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WAY FORWARD

• ADDITIONAL CONSIDERATIONS– USG may require at any time delivery of tech data

• Generated or utilized in performance of a contract• Pay ktr only for reasonable costs of delivery providing the data

– Is necessary for reprocurement, sustainment, modification or upgrade (including competitively) of major system/subsystem

AND– Pertains to item/process developed in whole or in part with Federal

funds, or– Is necessary for segregation/reintegration efforts

– Gap between this and “commercial” data requirement• Recall “commercial” data limited to use w/in Gov’t• Can’t use for competition• Team will study this gap

QUESTIONS?

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BACKUP SLIDES

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MAJOR DEFINITIONS

• FORM, FIT, AND FUNCTION (F3)– DFARS: required overall physical, functional, and

performance characteristics (and qualification requirements) of item/process sufficient to permit identification of physical/functional interchangeability

• OPERATION, MAINTENANCE, INSTALLATION, TRAINING (OMIT)– Tech manuals, etc.

• We have repository for drawings, but not manuals– Not yet apparent whether

• First line has same understanding • Proper/Consistent validation of contractor markings occurs• We ask for “specific” vice “unlimited” rights

– J&A issue: cite lack of data as primary or sole rationale

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MAJOR DEFINITIONS

• QUALIFICATION REQUIREMENTS (QRs)– 10 U.S.C. §2319: requirement for testing or other QA

demonstration offerors must complete prior to kt awd• J&A issue where requirements personnel state that

we have no way of establishing such requirements• If number of qualified sources less than two

– We shall seek additional sources, AND– Bear cost of test/eval for small businesses (excluding cost

of production) if agency head determines additional qualified sources or products likely to result in cost savings from increased competition

– Must examine & revalidate QRs w/in 7 years (unless waived) IAW 10 U.S.C. §2319(b)

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LEVELS OF RIGHTS

• Rights flow from whoever paid for development of item/service to which data pertains

• We must protect proprietary interests from unauthorized use/disclosure

• “Proprietary” is not a proper rights restriction; think only in terms of rights described below

– Unlimited, Government Purpose, Limited

• UNLIMITED– Items developed exclusively at Government expense

• GOVERNMENT PURPOSE– Items developed with mixed funding

• LIMITED– Items developed exclusively at private expense

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STATUTES & REGULATIONS

• 10 U.S.C. §2319-21• Federal Acquisition Regulation (FAR)

– FAR 27.402, Policy• Recognizes we require data to perform mission• Requires protection of contractor’s proprietary data interests

– Beyond this policy, DoD agencies follow DFARS• Defense Federal Acquisition Regulation

Supplement (DFARS)– DFARS 227.71, Rights in Technical Data– DFARS 227.7102, Rights in Tech Data (Comm’l)– DFARS 227.7103, Rights in Tech Data (Non-comm’l)– DFARS 252.227-7013, Tech Data (Non-comm’l)– DFARS 252.227-7015, Tech Data (Comm’l)

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• 10 U.S.C. §2320– Items developed exclusively at Government expense

• Unlimited right to use tech data, release/disclose such data outside the Government, or permit others to use the data

– Items developed exclusively at private expense• Limited right to disclose/use data outside Gov’t except data

– Relating to form, fit, or function– Necessary for operation, maintenance, installation or training

(other than detailed manufacturing or process data)• SECDEF may agree to restrict data rights if Gov’t gets royalty-

free license to use, release, or disclose for Gov’t Purposes– Including purposes of competitive procurement

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• 10 U.S.C. §2320 (cont.)• Restricted rights also releasable outside USG if

– Necessary for emergency repair & OH– Necessary for segregation of item/process from or

reintegration into other items/processes» i.e. removing engine from wing; refitting subcomponent into

major component– For use by foreign Gov’t for eval or info purposes– For use by covered support contractor performing kt

management & oversight• Release must be made subject to NDA, and we

must notify the contractor

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• 10 U.S.C. §2320 (cont.)– Item/Service developed with mixed funding

• Includes anything created w/ mixed funding in performance of a contract not requiring development, manufacture, construction or production of items/components/processes

• Government Purpose rights for 5 years unless SECDEF determines negotiation of different rights in best interest of U.S.

– Factors considered involve inter alia:» U.S. interest in increasing competition and lowering costs by

developing and locating alternative sources of supply and manufacture

» U.S. interest in encouraging contractors to develop at private expense items for use by the Government

– Unlimited rights after negotiated period ends• Should be automatic, but ensure we make proper request!

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• DFARS 227.71, Policy– Acquire only tech data customarily provided to public– Exceptions:

• Form, fit, and function data• Data required for repair or maintenance of comm’l items

– When such data not customarily provided to public, or – When data provided to public insufficient for military purposes

• Data describing mods made at Gov’t expense to comm’l item/process

• Delineation of rights depends on – Type of data, and – Whether buy is commercial or non-commercial

• Determination necessary so proper DFARS clause(s) will be included in contract

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• DFARS 227.7102-2, Rights in Tech Data (Comm’l)– DoD may use, modify, reproduce, release, perform,

display, or disclose data only within the Government– Differs from Government Purpose rights in Non-

comm’l buys• We do not get Unlimited rights after 5 years• We cannot release for others to use competitively

– We can negotiate for additional rights, but contractors are not obliged to do so• Situations may arise where specifically limited additional

rights may be necessary• Such license agreements would become part of the contract,

be enumerated, and be monitored closely

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• DFARS 227.7103, Rights in Tech Data (Non-comm’l)– DoD policy: acquire only tech data & rights necessary

to satisfy agency needs• Do not ask for Unlimited rights when Gov’t Purpose will do• Remember SECDEF may agree to restrict data rights if Gov’t

gets royalty-free license to use, release, or disclose – Including purposes of competitive procurement

• Data managers/requirements personnel responsible for identifying minimum need

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• DFARS 252.227-7013 will apply– To all NON-COMMERCIAL items, and– To COMMERCIAL items developed w/ mixed funding

• Costs charged partially to indirect cost pools (and/or not allocated to a Gov’t contract), and partially to a Gov’t contract

• Gov’t has unrestricted right to use/disclose tech data that– Were developed exclusively w/ Gov’t funds (i.e. directly charged

to a contract)– Studies, analyses, test or similar data

• When specified as an element of performance– Relate to form, fit, and function data– Are necessary for operation, maintenance, installation, or

training (other than detailed manufacturing or process data);• Other situations are listed, but these are most common

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• DFARS 252.227-7015 applies– To items developed exclusively at private expense

• Gov’t has unrestricted right to use/disclose tech data that are/were– Provided to Gov’t or others w/o restrictions;– Form, fit, and function data;– Necessary for operation, maintenance, installation, or

training (other than detailed manufacturing or process data); or

– Provided to Gov’t under prior contract through which Gov’t acquired right to use/disclose w/o restrictions

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• Except as provided above, we have Government Purpose rights in COMMERCIAL tech data

• We cannot– Use the data to manufacture additional quantities of

comm’l items, or– Release or authorize external use w/o contractor's

written permission• Unless necessary for

– Emergency repair or overhaul of the comm’l items furnished under the contract, or

– Performance of work by covered support contractors

Documents

Data Rights Brief