Section J-09A Technical Data Rights Table Instructions.pdf

Attachment J- 9A

Attachment J-9A Technical Data Rights Table 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 the 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 commercial item technical data, computer software and computer software documentation. Subsection (c)(2) identifies the rights the Government will acquire to contract administrative data to include cost/financial and schedule data.

b. Definitions.

i. All terms other than the one listed below are defined in Section H.

ii. Commercial Item is defined at FAR 2.101.

i. 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-9B. Tab 2 Tech Data and Tab 3 Contract Admin Data). 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 document and computer software documentation that falls within the exceptions prescribed for in clause 52.227-14 in Section I. Tab 2 of Attachment J-9B, labelled “Tech Data”, lists all CDRLs for this contract and includes technical data, computer software and computer software documentation. Tab 3, labelled “Contract Admin Data”, lists all CDRLs related to contract administration data as defined above.

(a) Instructions for Completing Tabs 2 and 3 of J-9B: Complete Tab 2 and Tab 3 in

Attachment J-9B in the following manner:

i) The Offeror shall note in Column “E” if the Offeror agrees or disagrees with the asserted rights listed in Tabs 2 or 3 by selecting the same rights as stated by the government or listing a different right.” If the contractor disagrees with the Government’s stated rights, the contractor shall include an explanation as to why the asserted right is limited, i.e., developed at private expense in Column “F”. The Government’s basis for its assertion of entitled rights in listed in Column “D”. If a CDRL contains more than one type of license right, the Offeror is to indicate such by creating another line item for a CDRL 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 “G”.

2) Rights in Contract Administrative Data (cost/ financial/ schedule and administrative data)

(J-9B Tab 3). The Government desires a special license right to the data in J-9B Tab 3 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 in Section I.. If the offeror believes the information in J-9B Tab 3 is technical data then the offeror may move the CDRL from J-9B Tab 3 to the appropriate tab (either J-9B 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-9B Tab 3, 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 section XX. The name of current support contractors will be listed 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 3 of J-9B: Complete Tab 3 in Attachment J-9B in the following manner:

Where the Offeror agrees to grant to the Government the special license rights listed in Column C, the Offeror should copy that agreed to right into column D. If, however, the Offeror is not willing to grant the Special License Rights asserted to an item labeled in Column C, then the Offeror shall identify the appropriate right the Offeror is willing to grant.

d. Additional Marking Requirements.

(1) Commercial technical data, computer software and computer software documentation: If the contents of any CDRL 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). Special License Rights Category A: If a CDRL listed in J-9B Tab 3 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 CDRL 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.

(2) Combined CDRL w/ Technical Data and Contract Administrative Data (Financial/Schedule and Administrative data): For CDRLs 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 CDRL 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-9B Tab 2 and Tab 3 to the cover sheet of the CDRL and shall expressly highlight in green which specific contract administrative data located on which specific portions of that CDRL the release of which outside the Government is restricted by the ‘Special License Rights Category A’ described in section c. (3) above.

(3) The Contractor acknowledges that, given the types of licenses described in subsection c. 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. Accordingly, 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 CDRL delivered to the Government which does not comply in all respects with the marking requirements specified herein.

e. 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 CDRL to the Government.

f. 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 CDRL, 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 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 vessel.

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.