Attachment J-9 Tech Data and Computer Software Data Rights_v2.0 [A00002].pdf

USCG Waterways Commerce Cutter ZRFP No. 70Z02321RPRT00300

USCG WATERWAYS COMMERCE CUTTER (WCC)

DATA RIGHTS TABLES INSTRUCTIONS

ATTACHMENT J-9

AMENDMENT 00002

09 July 2021

Prepared by:

COMMANDANT (CG-9327)

UNITED STATES COAST GUARD STOP 7800

2703 MARTIN LUTHER KING JR AVE SE

WASHINGTON DC 20593-7800

Distribution Statement A: Approved for public release; distribution is unlimited.

USCG Waterways Commerce Cutter J-9 Data Rights Tables Instructions

RFP NO. 70Z02321RPRT00300

Amendment 00002

Attachment J-9 Data Rights Tables Instructions (Including Technical Data, Computer Software and Computer Software

Documentation)

A. Introduction. The purpose of this Attachment is to identify the rights the U.S. Government will acquire to all WCC technical data, computer software and computer documentation delivered or otherwise provided to the Government during performance of this contract. Subsection (c)(1) identifies the rights the U.S. Government will acquire to all such noncommercial technical data, computer software and computer software documentation. Subsection c (2) identifies the rights the U.S. Government will acquire to all such commercial item technical data, computer software and computer software documentation. Subsection (c)(3) identifies the rights the Government will acquire to contract administrative data to include cost/financial and schedule data.

B. Definitions.

1) All terms other than the one listed below are defined in 52.227-14, Section I.

2) Commercial Item is defined at FAR 2.101.

3) Firmware is the combination of a hardware device with computer instructions or computer data or both that reside as read-only software on the hardware device.

4) Contract administrative data is defined as recorded information, regardless of form or method including specific cost/financial/schedule data contained in a computer database, of a financial, administrative, cost or pricing or management nature, or other information incidental to contract administration.

C. Types of Rights Tables

1) Rights in Technical Data, Computer Software and Computer Software Documentation (Table located at J-9A. Tab 2 “Tech Data (DD)” and Tab 3 Tech Data (Con)”). The Government shall have the rights in noncommercial technical data described in J-9A tabs 2 and 3. All technical data delivered or otherwise provided to the Government during performance of this contract under any Data Item is classified as non-commercial technical data unless expressly identified as commercial data in column J of J-9A Tabs 2 and 3. Tab 2, labelled “Tech Data (DD)”, lists all Data Items for Detail Design and includes technical data, computer software and computer software documentation. Tab 3, labelled “Tech Data (CON)”, lists all Data Items for Construction and includes technical data, computer software and computer software documentation.

(a) Instructions for Completing Tabs 2 and 3 of J-9A: Complete Tab 2 and Tab 3 in Attachment J-9A in the following manner:

i) The Offeror shall note in Column “G” if the Offeror disagrees with the asserted rights listed in Tabs 2 or 3 and list the basis of the contractor’s assertion in column “H” and list the cost for the Contractor to grant government purpose rights in column “K”. If the Contractor accepts, the asserted rights then state so in Column “G” and there shall be no associated cost listed in Column “I”. For the purpose of Column “K”, if the Contractor’s asserted right is Limited Rights then provide a cost to grant government purpose rights. The cost of that license will be considered part of the offeror’s price proposal for purposes of price evaluation of the Total Evaluated Price (TEP). See Section M.10. In addition, the contractor shall include an explanation as to why the asserted right is limited i.e. developed at private expense in Column “H”. The Government’s basis for its assertion of entitled rights in listed in Column “F”. The Government’s assertion in Column F is not create a requirement. If the Data Item requirement is for data more than the asserted basis then the offeror should address that in column H. If a Data Item contains more than one type of license right, the Offeror is to indicate such by creating another line item for a Data Item and using the same numbering sequence and adding an “a”, “b”, etc. as needed. The contractor shall list the name of the person or corporation with the right to grant the license to the government whether the Prime offeror or any subcontractors or suppliers in Column “I”.

ii) Complete Column G in accordance with the above paragraph. If the offered rights are more restrictive than the asserted rights, Offerors shall list the cost to grant government purpose rights or enter “DECLINE” if Offeror refuses to grant government purpose rights. If the asserted rights and offered rights are the same, the corresponding cell in Column K should be listed as $0.00.

iii) Complete Column K in accordance with the above paragraph. See Section L.15 for instructions for including pricing from Column K in the Pricing worksheet.

iv) For Data Items that contain both technical data and contract administrative (cost/financial, schedule and administrative data), and where the Offeror is proposing more restrictive rights than asserted by the Government, then the Offeror shall propose one estimated price in Tab 2 or 3 for the rights in technical data to be delivered for that Data Item. There shall be no additional cost associated with the contract administrative data.

2) Rights in Commercial Technical Data, Computer Software and Computer Software

Documentation (Column J in Tab 2 and Tab 3 of J-9A). The Government shall have the rights to use, perform, display or disclose commercial item technical data, computer software and computer software documentation, in whole or in part, within the Government. The Government may not, without the written permission of the Contractor, release or disclose the commercial item technical data outside the Government or use the commercial item technical data, except that the Government shall have the right to use modify, reproduce, release, perform, display or disclose that commercial technical data, computer software and computer software documentation to any covered government support contractor. Further the government does have the rights to use, perform, display or disclose commercial item technical data, computer software and computer software documentation that falls within the exceptions prescribed for in clause 52.227-14 (b)(1).

(a) Instructions for Completing Column J of Tabs 2 and 3 of J-9A: Complete Column J of Tabs 2 and 3 in Attachment J-9A in the following manner:

i) In Column J of that Tab 2 and 3, the contractor shall indicate if any technical data, computer software or computer software documentation is commercial or not by completing column “J” with a “Y” for Yes if commercial data, computer software or computer software documentation or a “N” for No if it is not commercial if commercial data, computer software or computer software documentation.

ii) To ensure all parties will maintain proper configuration control of all licenses throughout performance of the resulting contract, create an “Appendix A” to Attachment J-9A with a separate tab for each Data Item and corresponding vendor listed in Tab 2 and 3 as commercial. Insert as an attachment one copy of every commercial license associated with any technical data or computer software the Offeror will purchase from that vendor and subsequently deliver to the Government. For each license, identify the corresponding Data Item(s). The Government expects that prior to inserting any proposed license into Appendix A, the Offeror will have carefully read the license to ensure that its terms and conditions are consistent with all requirements of this RFP. In this regard, Attachment J- 9A includes an order of precedence provision placing the burden of compliance with those requirements on the prime contractor. Certain provisions in J-9A, summarize Federal Procurement law. The Government cannot accept any offer that proposes to modify any subsections in the order of precedence in a manner that is inconsistent with Federal Procurement law.

iii) The contractor shall not add, delete, or replace any commercial technical data, computer software, or computer software documentation listed in J-9A Tab 2 and Tab 3 unless the Government has approved that addition, deletion or replacement and the contract has been modified to add, delete or replace that item from the table and delete or replace the applicable license from the Appendix A.

(b) The duration of all such licenses shall be, at minimum, for the period of performance of this contract (including options, if exercised) unless the commercial license specifies a longer period. The Contractor will be relieved of all responsibilities with respect to such licenses upon the end of the period of performance of this contract at which time the Government will assume responsibility for acquiring additional licenses under existing or follow on contracts.

(c) License rights related to commercial item technical data described in, and granted to

U.S. Government under, 52.227-14(b)(1) shall apply to all such technical data associated with delivered computer software, including, but not limited to, user’s manuals, installation instructions, and operating instructions.

3) Rights in Contract Administrative Data (cost/ financial/ schedule and administrative data) (J-9A Tab 4). The Government desires a special license right to the data in J-9A Tab 4 to be known as ‘Special License Rights Category A’. This data does not meet the definition of technical data, computer software or computer software documentation as defined in 52.227-14. If the offeror believes the information in J-9A Tab 4 is technical data then the offeror may move the Data Item from J-9A Tab 4 to the appropriate tab

(either J-9A Tab 2 or 3). The Government shall have the right to use, modify, perform, display, disclose all such delivered cost/financial/schedule/administrative data listed in J- 9A Tab 4, in whole or in part, within the Government. The Government may not, without the written permission of the Contractor, release or disclose that data outside the Government, use the data for manufacture or authorize the data to be used by another party, except that the Government may reproduce, release or disclose such data or authorize the use or reproduction of such data by the following persons outside the Government (including their subcontractors who are also covered Government support contractors) to perform their respective contract(s):

Government Support Contractors: [Refer to L.5 for the list of current support contractors. This list will be included here at time of award.] The Contractor agrees that the Government shall have the right to unilaterally add or delete covered Government support contractors from this list at any time, and its exercise of that right shall not entitle the Contractor or its subcontractors to an equitable adjustment or a modification of any other terms and conditions of this contract. All contractors listed above now or in the future will be required to comply with FAR 9.505-4.

(a) Instructions for completing Tab 4 of J-9A: Complete Tab 4 in Attachment J-9A in the following manner:

i) Where the Offeror agrees to grant to the Government the special license rights listed in Column E, the Offeror should copy that agreed to right into column F.

If, however, the Offeror is not willing to grant the Special License Rights asserted to an item labeled in Column E, then the Offeror shall identify the appropriate right the Offeror is willing to grant. NOTE: The Data Items listed in Tab 4 of J-9A do not meet the definition of technical data and therefore are not covered by clause 52.227-14. If an Offeror believes a Data Item listed in Tab 4 is technical data, computer software or computer software documentation, then the Offeror may move a Data Item from Tab 4 to Tab 2 or 3 in Attachment J-9A.

4) Instructions for completing Restricted Data Lists

(a) K.4, Identification and Assertion of Use, Release, or Disclosure Restrictions: The Offeror shall list all noncommercial Technical Data (TD), Computer Software (CS), and Computer Software Documentation (CSD) that it asserts will be delivered with other than unlimited rights. Specific instructions and requirements concerning this list are set forth in “Technical Data and Computer Software Matrices”, Attachment J-9B in accordance with K.4 FAR 52.227-15 “Representation of Limited Rights and Restricted Computer Software.” Additionally, if there is no data or software to be identified in the K.4 List, the Offeror shall submit the list and enter “None” in the body of the list. If the Offeror is awarded a contract, the completed Attachment J-9B shall be attached to the contract.

(b) K.4, Technical Data or Computer Software Previously Delivered to the Government:

The Offeror shall list all noncommercial Technical Data, Computer Software, and Computer Software Documentation that it intends to deliver with other than unlimited rights and that are identical or substantially similar to noncommercial TD, CS, or CSD that the Offeror has delivered to, or is obligated to deliver to, the Government under any contract or subcontract. Specific instructions and requirements concerning this list are set forth in the provision under this solicitation entitled K.4, “Technical Data or Computer Software Previously Delivered to the Government.” Additionally, if there is no data or software to be identified in the K.4 List, the Offeror shall submit the list and enter “None” in the body of the list. If the Offeror is awarded a contract, the K.4 List shall be attached to the contract as part of a new tab in “Technical Data and Computer Software Matrices”, Attachment J-9B.

(c) Commercial Restriction List: The Offeror shall submit a list entitled “Commercial Technical Data, Commercial Computer Software, and Commercial Computer Software Documentation-Government Use Restrictions” (the Commercial Restrictions List) describing those commercial TD/CS/CSD items that the Offeror (including its subcontractors or suppliers, or potential subcontractors or suppliers, at any tier) intends to deliver with other than unlimited rights. The list of commercial TD/CS/CSD with restrictions shall include as part of the “Technical Data and Computer Software Matrices”, Attachment J-9B and in accordance with instructions on Tab 2 of that attachment.

D. Additional Marking Requirements.

1) Commercial technical data, computer software and computer software documentation: If the contents of any Data Item delivered to the Government contains commercial item technical data, computer software and computer documentation prior to delivery, the Contractor shall physically attach a copy of the applicable commercial license(s) for those Data Items identified as commercial in J-9A Tab 2 and Tab 3 with the Data Item submission. A copy of each commercial license applicable to this contract shall be provided at time of proposal submission as Attachment A to this instruction J-9A. See clause 52.227-14(e), (f) and (g)(3) [Alt II to 52.227-14] for general instructions regarding markings. The Contractor shall also expressly identify by highlighting in red ink, which specific items of commercial technical data located on which specific portions of that Data Item the release of which outside the Government is restricted by that/those license(s).

2) Special License Rights Category A: If a Data Item listed in J-9A Tab 4 will be delivered with ‘Special License Rights Category A’ described in subsection c. (3) above, the contractor shall affix to the cover page of that Data Item the following legend: SPECIAL LICENSE RIGHTS. The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No.

(Insert contract number) , License No.

(Insert license identifier if applicable) . Any reproduction of data or portions thereof marked with this legend must also reproduce the markings.

3) Combined Data Item w/ Technical Data and Contract Administrative Data

(Financial/Schedule and Administrative data): For Data Items that require delivery of both technical data, computer software, or computer software documentation and contract administrative data to include financial or schedule and other administrative data, different license rights will apply to those portions of that Data Item that requires the delivery of technical data than those portions that require the delivery of contract administrative data.

Under such circumstances, the Contractor shall affix all restrictive markings required by J- 9A Tab 2 and Tab 3 to the cover sheet of the Data Item and shall expressly highlight in green which specific contract administrative data located on which specific portions of that Data Item the release of which outside the Government is restricted by the ‘Special License Rights Category A’ described in section c. (3) above.

4) The Contractor acknowledges that, given the types of licenses described in subsection

c. (3) that apply to (i) specific persons for (ii) specific purposes for (iii) specific items of data (iv) delivered at specific times during performance of this contract, failure to affix the proper restrictive markings to the appropriate data prior to delivering or otherwise providing that data to the Government exponentially increases the risk that data will be released to unauthorized persons for unauthorized purposes. The Contractor agrees to release the Government from liability for any release or disclosure of data other than technical data, computer software, and computer software documentation made in accordance with this Attachment in any Data Item delivered to the Government which does not comply in all respects with the marking requirements specified herein.

E. Allocability of Costs to CLINS. For Data Items where the Contractor’s proposed or offered rights match the Government’s asserted rights, the price of the rights described above in subsection c. (1-

3) shall be built into the estimated cost of the CLIN under which the development or creation of that Data Item will occur. For Data Items where the Contractor’s proposed or offered rights differ from the Government’s asserted rights, and where the Contractor is proposing a price to grant government purpose rights, those prices shall totaled and included in CLIN XX10 which is part of the total evaluated price.

F. Updates. The price of any rights in data described above includes the price of the rights in data to any changes (e.g. updates, software maintenance patches, minor version changes – e.g. from V1.1 to V1.2 not V1.1 to V2.0, substitutions) made to that data by the Contractor anytime during performance of this contract.

G. License transferee. Any license associated with any technical data, computer software, or computer software documentation delivered under a CLIN shall transfer upon delivery of that Data Item to the Government.

H. Order of Precedence. Upon delivery of any commercial item technical data, computer software, computer software documentation, or any combination thereof, to the Government contained in any Data Item, the following provisions shall take precedence over conflicting provisions in any license associated with those items, notwithstanding any provisions in those licenses to the contrary through renewals or extensions, as needed, to this contract:

1) The duration of this license shall be, at minimum, for the period of performance of [this] Contract (including options, if exercised) unless the license specifies a longer period.

2) License Rights related to technical data described in, and granted to the U.S. Government under 52.227-14(b)(1) shall apply to all such technical data associated with delivered computer software including, but not limited to, user’s manuals, installation instructions, and operating instructions.

3) Disputes arising between the Licensee and the U.S. Government pertaining to the provisions of the License shall be subject to the Contract Disputes Act. Furthermore, the jurisdiction and forum for disputes hereunder upon delivery to the U.S. Government shall be the Civilian Board of Contract Appeals (CBCA) or the U.S. Court of Federal Claims (COFC), as appropriate.

4) In the event of a claim or dispute arising under or relating to this contract, binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or junctive relief, including the award of attorney fees, costs or interest, may be awarded against the US Government only when explicitly provided by statute (e.g.

Prompt Payment Act, Equal Access to Justice Act).

5) In accordance with FAR 52.232-39 Unenforceability of Unauthorized Obligation and provision in any license that would require the Government to indemnify the Contractor is unenforceable against the Government.

6) In the event the Licensee files a claim with the U.S. Government on behalf of the Licensor and prevails in a dispute with the Government relating to that claim, the Licensor agrees that damages and remedies awarded shall exclude attorney’s fees.

7) Under no circumstances shall terms of the License or any modifications thereto renew automatically so as to obligate funds in advance of funds being appropriated in contravention of the Anti-Deficiency Act.

8) The Licensor understands that the ultimate purpose of the Licensee entering into this License with the Licensor is for the Licensor to supply the U.S. Government technical data and computer software and computer software documentation to be used by the Coast Guard to sustain the OPC. Accordingly, should the U.S. Government use, release, disclose the Items described in this License in a manner inconsistent with the terms of this License, the U.S. Government shall not be required to remove, uninstall or stop using those Items or return such Items to the Licensee and the Licensor’s remedy will be limited to monetary damages.

9) In the event of the inconsistencies between the License and Federal law (e.g. FAR 52.232- 25 (Prompt Payment), 52.246-4 (Inspection of Supplies – Fixed- Price)), Federal law shall apply.

10) Copies of this license may be disclosed to third parties consistent with the Freedom of Information Act.

11) No individual other than a warranted contracting officer shall have the authority to bind the Government contractually.