DRAFT H CLAUSES.pdf

H CLAUSES

Guide for Clause H-1

Offerors are notified that paragraphs A and B of the clause will be incorporated into the contract. With respect to paragraphs C and D, Offerors may choose to incorporate either of the two paragraphs or neither paragraph.

H-1 Technical Data and Software Necessary to Enable In-service Repairs, Maintenance, and Sustainment A. Definitions. As used in this contract:

1) “In-service Repair and Maintenance” is defined as all activities required to carry out “Organizational level (O-Level) Maintenance,” “Intermediate level (I-Level) Maintenance,” and “Depot level (D-Level) maintenance” in accordance with COMNAVAIRFORINST 4790.2E Chapter-3, 28 Oct 2024, paragraph 3.1.1.1, 3.1.1.2, and 3.1.1.3, which definitions are herein incorporated by reference as if set forth in this document.

2) “Sustainment” is defined as technical support and programs in accordance with COMNAVAIRFORINST 4790.2E Chapter-12, 28 Oct 2024 which functions and activities are herein incorporated by reference as if set forth in this document.

3) “Operations, Maintenance, Installation, and Training,” referred to as “OMIT,” is further defined as:

a) “Operation” is any activity encompassing functional use of a weapon system to meet normal, safety, airworthiness, and readiness conditions, to include mission execution, handling, testing, emergency, utilization, and familiarization.

b) “Maintenance” is all scheduled and unscheduled organizational, intermediate, and depot-level maintenance and repair capabilities, to include sustaining engineering necessary to maintain, inspect, test, service, adjust, troubleshoot, analyze, remove, replace, repair, install, disassemble, reassemble, and overhaul to maintain in, or restore a weapon system to a serviceable, safe, or airworthy condition.

c) “Installation” is the integration, insertion, inclusion, fitting, or establishment of a component, system, or platform into larger systems, platforms, facilities, or infrastructure. It includes associated activities such as facility planning, site surveys, test and integration labs, operations and maintenance facilities (e.g., hangars, dry docks, runways, ramps, wash racks, fueling/defueling stations), supply chain management, test cells, test stands and benches, tools, support equipment, communications, data links, security, data information technology, and all other data and planning used in the initial standup and continued operations, training, sustainment, and maintenance at all operational sites as well as Organizational, Intermediate, and Depot-Level Maintenance requirements in support of a weapon system.

d) “Training” is all formal and informal classroom, simulation, or on-site instruction, supervised and unsupervised, for functional use of, operation of, testing of, supply chain management of and organizational, intermediate, and depot-level maintenance of a weapon system.

4) “Deliver” is defined as provision pursuant to applicable Contract Data Requirements Lists (DD Form 1423), regardless of the form or medium.

5) “Provide” is defined as Access, Download, Approval, and/or Collaborate ability on the part of the Government via the C-IDE pursuant to the terms identified in the Statement of Work (SOW).

B. Technical Data and Software Necessary to Enable In-Service Repair and Maintenance.

1) The Contractor shall provide or deliver to the Government (as applicable under the terms of this contract) all technical data and software that the OEMs of any part, system, subsystem, or equipment use or rely upon to fix, repair, overhaul, rework, calibrate, or maintain any part, system, subsystem or equipment associated with the weapon system and equipment associated with the life cycle of the weapon system, in order to enable the Government to perform the same. The technical data and software provided or delivered shall, at a minimum, allow performance of Organizational level (O-Level) Maintenance, Intermediate level (I-Level) Maintenance, and Depot level (D-Level) Maintenance as defined in the COMNA VAIRFORINST 4790.2 series and as stated in paragraph (A)(1) above; and shall include all data defined as OMIT in paragraph (A)(2) above.

2) The rights in the technical data and software provided or delivered under this contract pursuant to paragraph (B)(1) above will be determined in accordance with DFARS Clauses 252.227-7013, -7014, and - 7015. The contractor shall mark the technical data and software accordingly; except if the Contractor proposes paragraph (C), this paragraph (B)(2) shall be stricken.

3) The Contractor shall include this clause or language to this effect in all future EMD contracts (to include paragraph (C) if proposed by the Contractor).

Paragraph C or D (not both) will be incorporated into the resultant contract only if proposed by the Offeror. Neither C or D will be incorporated into the resultant contract if neither is selected.

In-service Repairs, Maintenance, and Sustainment Special License Rights C. Grant of License for System of Systems

1) The Contractor hereby agrees that all data and software necessary to enable In-Service Repair, Maintenance, and Sustainment, and OMIT as stated in paragraph (B)(1) above, including those which were developed exclusively at private expense and do not otherwise meet the criteria for unlimited rights or government purpose rights at DFARS 252.227-7013, -7014, and -7015, shall be provided or delivered to the Government with the special negotiated license rights set forth in this clause and marked in accordance with the SPECIAL LICENSE RIGHTS legend set forth in DFARS 252.227-7013 or DFARS 252.227-7014. The license identifier shall be “Clause H-1”

2) Terms of Special License (Choose i or ii)

i) The Contractor grants the United States Government special license rights consistent with “Government Purpose Rights” (as defined in DFARS 252.227- 7013 or DFARS 252.227-7014) for 10 years after contract completion for all data, software, interfaces, and associated artifacts necessary to enable Government In- Service Repairs, Maintenance, and Sustainment as stated in paragraph (B)(l) above, in support of the Engineering and Manufacturing Development (EMD) Program. These rights shall convert to unlimited Rights (as defined in OFARS

252.227-7013 or DFARS 252.227-7014) in perpetuity for the Government, ten years after contract completion.

OR

ii) The Contractor grants the United States Government special license rights consistent with “Limited Rights” (as defined in DFARS 252.227-7013 or DFARS 252.227-7014) for 10 years after contract completion for all data, software, interfaces, and associated artifacts necessary to enable Government In-Service Repairs, Maintenance, and Sustainment as stated in paragraph (B)(l) above, in support of the EMD program. These rights shall convert to Government Purpose Rights (as defined in DFARS 252.227-7013 or DFARS 252.227-7014) in perpetuity for the Government, ten years after contract completion.

a) In consideration of the license grant stated, the Government shall not seek or enforce “Unlimited Rights” that would otherwise attach to data created by the Contractor pursuant to DFARS Clauses 252.227-7013, -7014, and -7015, outside the bounds of this agreement.

b) In the event that the Government’s license grant is breached, the contractor withholds data necessary for the purposes under paragraph (B), fails to provide or deliver the data required, or the Government’s access or ability to use the data for the purposes described under paragraph (a) is inhibited or obstructed, the Contractor acknowledges and agrees that the Government reserves its right to enforce and exercise its rights pursuant to DFARS Clauses 252.227-7013, -7014, and -7015, in addition to the rights under the Special License as granted. Such breach, failure of delivery or inhibition/obstruction of access may constitute breach of contract and the Government reserves its right to seek remedies under all applicable contractual provisions.

3) Subcontractors and Suppliers. The Contractor shall include this clause in all subcontracts or other contractual or legal instruments with its subcontractors or suppliers at any tier, to ensure this license grant is comprehensive of all technical data including data created by, acquired from, or provided by third parties at any tier.

D. Grant of License for Defined Systems

1) For the following identified subsystems/parts ONLY (Check block next to ones that will be included in your offer)

� Air Data System � Altimeter � Canopy Assembly � Engine � External Lighting System � Flight Control System � Fuel System � Heads-up Display � Navigation Source � Oxygen System � Power Plant Indication � Power Supply � UHF/VHF Radio � Wheel/Tire & Brake

Assembly

The Contractor hereby agrees that all data and software necessary to enable In-Service Repair, Maintenance, and Sustainment, and OMIT as stated in paragraph (B)(1) above, including those which were developed exclusively at private expense and do not otherwise meet the criteria for unlimited rights or government purpose rights at DFARS 252.227-7013, -7014, and -7015, shall be provided or delivered to the Government with the special negotiated license rights set forth in this clause and marked in accordance with the SPECIAL LICENSE RIGHTS legend set forth in DFARS 252.227-7013 or DFARS 252.227-7014. The license identifier shall be “Clause H-1.”

2) Terms of Special License (Choose i or ii)

i) The Contractor grants the United States Government special license rights consistent with “Government Purpose Rights” (as defined in DFARS 252.227- 7013 or DFARS 252.227-7014) for 10 years after contract completion for all data, software, interfaces, and associated artifacts necessary to enable Government In- Service Repairs, Maintenance, and Sustainment as stated in paragraph (B)(l) above, in support of the EMO program. These rights shall convert to unlimited Rights (as defined in OFARS 252.227-7013 or DFARS 252.227-7014) in perpetuity for the Government, ten years after contract completion.

OR

ii) The Contractor grants the United States Government special license rights consistent with “Limited Rights” (as defined in DFARS 252.227-7013 or DFARS 252.227-7014) for 10 years after contract completion for all data, software, interfaces, and associated artifacts necessary to enable Government In-Service Repairs, Maintenance, and Sustainment as stated in paragraph (B)(l) above, in support of the EMD program. These rights shall convert to Government Purpose Rights (as defined in DFARS 252.227-7013 or DFARS 252.227-7014) in perpetuity for the Government, ten years after contract completion.

a) In consideration of the license grant stated, the Government shall not seek or enforce “Unlimited Rights” that would otherwise attach to data created by the Contractor pursuant to DFARS Clauses 252.227-7013, -7014, and -7015, outside the bounds of this agreement.

b) In the event that the Government’s license grant is breached, the contractor withholds data necessary for the purposes under paragraph (B), fails to provide or deliver the data required, or the Government’s access or ability to use the data for the purposes described under paragraph (a) is inhibited or obstructed, the Contractor acknowledges and agrees that the Government reserves its right to enforce and exercise its rights pursuant to DFARS Clauses 252.227-7013, -7014, and -7015, in addition to the rights under the Special License as granted. Such breach, failure of delivery or inhibition/obstruction of access may constitute breach of contract and the Government reserves its right to seek remedies under all applicable contractual provisions.

3) Subcontractors and Suppliers. The Contractor shall include this clause in all subcontracts or other contractual or legal instruments with its subcontractors or suppliers at any tier, to ensure this license grant is comprehensive of all technical data including data created by, acquired from, or provided by third parties at any tier.

Deferred Ordering. The terms and conditions of this clause shall apply to any Data provided or delivered under this contract pursuant to DFARS 252.227-7027.

H-2 CORRECTION OF DISCREPANCIES AND DEFICIENCIES

(a) During the execution of this contract, the Contractor shall be responsible for the correction of all discrepancies in accordance with the priorities described in this clause, that are discovered during UJTS Developmental Testing of aircraft, software, Ground Based Training Systems (GBTS), Live Virtual Construct (LVC), ground support stations, debrief stations, and any other hardware or software product that will be tested under this contract. The Contractor shall be responsible for correction of discrepancies from contract award until the end of the period of performance of CLIN 0001. For the purposes of this contract, a discrepancy is defined as a failure to meet one or more of the requirements contained within any Section J attachments and/or all exhibits, including problems and defects associated with both hardware and software.

(b) The Contractor shall prioritize discrepancies as follows:

1. Priority 1: Prevents the accomplishment of an operational or mission-essential capability or jeopardizes safety, security, or other requirements designated “critical”

2. Priority 2: Adversely affects the accomplishment of an operational or mission-essential capability and no operationally acceptable work-around solution is known

3. Priority 3: Adversely affects the accomplishment of an operational or mission-essential capability and an operationally acceptable work-around solution is known

4. Priority 4: Results in user/operator inconvenience or annoyance but does not affect a required operational or mission-essential capability

5. Priority 5: Any other effect

(c) In the event of a conflict between the Contractor’s priority classification of a discrepancies and the Government’s priority classification of a discrepancy, the Government’s priority classification of the discrepancy shall take precedence.

(d) The Contractor shall correct:

1. All priority 1, 2, and 3 discrepancies

2. All priority 4 discrepancy where correction of the problem costs less to implement than updating documentation and training materials for the approved workaround

3. Discrepancies at all priorities affecting documentation

4. Lower priority discrepancies that when combined with one or more lower priority discrepancies have a cumulative adverse effect that is of a higher priority and resulting severity which should be addressed in the same manner as a priority 1, 2, or 3 (e.g., combination of high-failure rate items identified via FRACAS that impact Operational Availability (AO))

(e) The Contractor shall deliver software that is in compliance with the following discrepancy quality limits:

Priority Limit 1 or 2 Zero 3 One per 8K Non-Comment, Non-Blank logical source lines of code or fraction thereof

4 or 5 One per 4K Non-Comment, Non-Blank logical source lines of code or fraction thereof; limit employs total of priority 4 and priority 5 discrepancies

(f) The Contractor shall analyze the data associated with all Naval Air Warfare Center

Aircraft Division (NAWCAD) Deficiency Reports (DRs) throughout aircraft ground and flight testing. The Contractor shall correct all Part **I and Part *I NAWCAD Deficiency Reports prior to the start of IOT&E or implement system changes resulting in the downgrade of these Deficiency Reports to Part I or below. The Contractor shall correct all Part I NAWCAD Deficiency Reports prior to IOC of the UJTS system or implement system changes resulting in the downgrade of these Deficiency Reports to Part II or below.

(g) The Contractor shall update the UJTS final product baseline, all items delivered and yet to be delivered, under this contract for CLIN 0001. The final product baseline is defined as a configuration that passes IOT&E with discrepancies corrected. The Contractor shall not be responsible for updating products to the UJTS final product baseline. This however does not alleviate the Contractors responsibility during testing to modify as necessary the products to meet successful testing requirements in accordance with this contract. The Contractor shall submit the necessary configuration documentation for Government’s approval.

(h) The Contractor shall ensure that Option Items 0101 - 0110 represent the final product baseline.

(i) The Contractor shall not be entitled to an adjustment to the contract’s Target Cost, Target Fee, Ceiling Prices, or Profit Adjustment formulas (share ratio) for correction of discrepancies and/or updates to the UJTS final product baseline.

(j) The three-year warranty period as specified in paragraph (b) of DFARS 252.246-7001 shall not commence until all deliverables have been accepted or the period of performance has ended, whichever is later. This time period is consistent with the longer period that may be specified in this contract.

H-3 Integrated Data Environment The intent of this clause is to enable knowledge parity as referenced in SOW paragraph 2.1.6.2.

The Contractor shall support use/consumption of data created as part of the EMD program, through the Contractor Integrated Data Environment (C-IDE) in the following ways. These are high level descriptions and not inclusive of every potential scenario.

• Accessing programmatic and technical data within the C-IDE

• Downloading programmatic and technical data from the C-IDE

• Reviewing of data residing within the C-IDE

• Exporting a model to be run on an external information system

• Government team members providing inputs to a model or model output within the C-

IDE

1.) Definitions

a. “Access” means, at a minimum, the ability to view, use, display, provide feedback, comment, and/or collaborate on data residing on the C-IDE for the purposes of supporting the performance and execution of the contract.

b. “Download” means the ability for the Government to electronically extract or export, in a useable format in support of the performance and execution of the contract.

c. “Collaborate” means the ability of the Government, within the C-IDE, to interact, comment on, and work with, real time, C-IDE data in conjunction with Contractor personnel to support the performance and execution of the contract.

d. “Provide” is defined as Access, Download, and/or Collaborate ability on the part of the Government in the C-IDE pursuant to the terms of this clause. For the purposes of this contract, “Access, Download, and/or Collaborate” as stated above is sufficient to satisfy the requirement to “Provide.”

2.) User Agreements

a. The Contractor shall provide a User Agreement, consistent with the terms of this clause, which shall enable Access, Download, and Collaborative privileges. Such agreements shall be provided to the Government in advance of required C-IDE access and shall be fully comprehensive of the scope of this contract, including all terms and conditions and the SOWs. In the events of a disagreement between the contract and the user agreement, the contract shall control.

b. FAR 52.232-39 Unenforceability of Unauthorized Obligations shall be applicable to any End User License Agreement (EULA), Terms of Service (TOS), restrictive login screen, embed or click-wrap type license, or similar legal instrument or agreement that may be encountered as a result of entering the C-IDE and viewing, downloading, or printing data required to be made accessible via the C-IDE.

3.) Licenses. By its actions in providing data within the C-IDE, the Contractor asserts that such data is provided with all adequate license, third party of otherwise, to ensure Government Access and user, and where appropriate, Government Download and Collaborate Ability. The Government will Access, Download, and otherwise use C-IDE data in reliance on this assertion. The Contractor shall provide to the Government copies of all such licenses upon request.

4.) Disputes. All disputes arising under the terms and conditions of this clause shall be addressed in accordance with the applicable FAR disputes clause under this contract.

5.) C-IDE Data Marking and Legends

a. The Contractor shall ensure that all markings, including details or auto-generated markings, placed on the C-IDE are accurate and comprehensive in accordance with the terms of this contract.

b. Identification and Marking requirements for the C-IDE. The Contractor and its subcontracts or suppliers shall assert restrictions on the Government’s rights to use, modify, reproduce, release, perform or display data provided or delivered under this contract only by marking the Data with a restrictive legend.

c. Upon Government request, C-IDE data to be downloaded, exported, and/or otherwise extracted from the C-IDE shall be marked by the Contractor with the appropriate level of rights in accordance with the terms and conditions of this contract.

6.) When the Contractor, and its subcontractors or suppliers, mark data, it shall be conspicuously and legibly marked. For multipage documents, the applicable marking shall be on each page. Data, including individual pages within documents, to which the Government is provided Access, Download, and Collaborate ability that is not marked shall be presumed to have been publicly released without restriction by the Contractor.

The provisions on DFARS 227.7103-10(c) relating to unmarked technical data and DFARS 227-7203-10(c) with respect to computer software apply to all data under this contract.

7.) C-IDE Accessibility. C-IDE data shall remain accessible until the end of the period of performance of this contract. Any unilateral or intentional interference with the ability of Government personnel to access Data shall be a material breach of this contract.

8.) In Future Contracts. The Contractor shall include this clause or language to this effect in all future UJTS contracts.

9.) C-IDE Custody and Ownership. In the event the Contractor is no longer able, willing, or required by the Government to maintain the C-IDE and C-IDE data, the Contractor shall provide the Government with the right of first refusal, with sufficient notice, to take custody and/or ownership of the C-IDE data. In this case, if the Government desires, the Contractor shall perform all necessary steps to initiate and execute transfer of all data to effectuate Government custody and/or ownership of the C-IDE data. When such transfer is ordered, the Contractor will be compensated its reasonable costs for the transfer of the data, but no profit or fee shall be permitted.