ATCH 13 - Rights in Data.pdf

FA8823-23-R-0001 Attachment 13 Rights in Data

RIGHTS IN DATA

(INCLUDING TECHNICAL DATA, COMPUTER

SOFTWARE, AND COMPUTER SOFTWARE

DOCUMENTATION)

FOR

COMMAND AND CONTROL SYSTEM- CONSOLIDATED

(CCS-C)

SUSTAINMENT AND RESILIENCY (C-SAR)

INDEFINITE DELIVERY INDEFINTE QUANTITY (IDIQ)

CONTRACT

VERSION 1.0 – 22 March 2023

This attachment, including cover page, consists of 10 pages.

Prepared by:

SSC/CGM

1050 E. Stewart Ave.

Peterson SFB, CO 80914

a. Introduction

The purpose of this attachment is to identify the rights the U.S. Government will acquire to all C- SAR development, production and sustainment data, computer software and computer software 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 U.S. Government will acquire to all data that is not technical data or computer software delivered or otherwise provided to the Government during performance of this contract. Subsection c.(4) identifies the rights the U.S. Government will acquire to all data used by the Contractor to create any CDRL listed in Tables 1-3 required to be delivered under this contract.

b. Definitions

"Data" includes technical data, computer software and computer software documentation (as those terms are defined in this subsection), schedule/milestone data, and financial data (including the Contractor's cost/schedule management system/records and accounting system), irrespective of whether that data is required to be delivered via Exhibit A or Exhibit B.

―Commercial item is defined in FAR 2.101.

―Computer software is defined in DFARS 252.227-7014(a)(4).

―Computer software documentation is defined in DFARS 252.227-7014(a)(5).

―Firmware is defined in SMC Standard SMC-S-012.

―Licensee is defined as the C-SAR contractor.

―Licensor is defined as the owner (e.g., subcontractor) of commercial item technical data, computer software, or computer software documentation.

―Technical data is defined in DFARS 252.227-7013(a)(15).

c. Types of Rights

(1) Rights in noncommercial technical data, computer software and computer software documentation.

The Government shall have unlimited rights in noncommercial technical data, computer software, and computer software documentation described in Table 1 below. All of the items in Table 1 were delivered, previously, to the Government with unlimited rights. If the Contractor believes any of the items in Table 1 should be delivered with rights other than unlimited, the Contractor shall provide justification and a cost for the Government to obtain unlimited rights. All other technical data, computer software and computer software documentation delivered or otherwise provided to the Government during performance of this contract under any CDRL or CLIN is classified as noncommercial technical data, computer software, or computer software documentation unless expressly identified as commercial technical data, computer software, or computer software documentation in Table 2 section c.(2) below.

CDRL Data Item Title Asserted Rights Category

Cost

A009 B018

Government Property Inventory Report

(GPIR)_GFP

Unlimited $

A011* Data Accession List (DAL) Unlimited $ A012 B019

Engineering Change Proposal (ECP):

Engineering Change Proposal (ECP / Contract Change Proposal (CCP)

Unlimited $

A013 B017

Technical Manual Contract Requirements

(TMCR)

Unlimited $

A014 B022

Government Property Inventory Report (GPIR)_System Config

Unlimited $

B001 Interface Design Description (IDD) Unlimited $ B002 Specification Change Notice (SCN):

Specification Change Notice (SCN) / Interface Revision Notice

Unlimited $

B003 System/Subsystem Specification (SSS) Unlimited $

B004 Software Product Specification (SPS) Unlimited $ B005 Technical Report-Study/Services:

Reliability Status Report Unlimited $

B006 Products Drawings/Models and Associated Lists

Unlimited $

B007 Software User’s Manual (SUM) Unlimited $ B008 Software Development Plan (SDP) Unlimited $ B009 Software Test Plan (STP) Unlimited $ B010 Software Test Description (STD) Unlimited $ B011 Software Test Report (STR) Unlimited $ B012 Software Installation Plan (SIP) Unlimited $ B013 Software Version Description (SVD) Unlimited $ B014 Cybersecurity Work Force (CSFW) Report Unlimited $ B015 DoD Risk Management Framework

(RMF) Package Deliverables: RMF Package Artifacts

Unlimited $

B016 System Safety Hazard Analysis Report

(SSHA)

Unlimited $

B020 Configuration Management Implementation Plan (CMIP)

Unlimited $

B021 SEMP_Integrated Master Processes (IMP) Unlimited $ B022 Government Property Inventory Report

(GPIR) – System Configuration Unlimited $

Table 1: Rights in Noncommercial Technical Data, Computer Software, and Software Documentation

* The Government will acquire the same level of rights to the contents of all items listed in CDRL A011 (Data Accession List) as it will to the list itself (i.e., Data Accession List).

(2) Rights in commercial technical data, computer software and computer software documentation. In addition to the rights the Government will obtain in commercial item technical data, computer software and computer software documentation listed in Table 2 and contained in Appendix A to this attachment, the Government will acquire the following rights to that technical data and computer software notwithstanding any statements to the contrary in any of the licenses listed in Table 2:

(i) The Government shall have the right to use, perform, display or disclose that commercial item technical data, in whole or in part, within the Government.

(ii) The Government may not, without the written permission of the Contractor, release or disclose the commercial item technical data and commercial computer software outside the Government; modify, disassemble, decompile, or reverse engineer the commercial item technical data and commercial computer software or authorize other persons to do so; use the commercial item technical data and commercial computer software for manufacture; or authorize the commercial item technical data and commercial computer software to be used by another party. The Government may reproduce, release or disclose such data and software or authorize the use or reproduction of such data and software for the following companies to perform their respective contracts:

The Aerospace Corporation (Contract Number FA8802-19-C-0001) MCR Federal (Contract Number: FA8808-18-F-0002) The Boeing Company (Contract Number: FA8823-20-C-0001) Lockheed Martin Space Systems Company (Contract Number: FA8823-19-D-001)

(iii) The Contractor agrees that the Government shall have the right to unilaterally add or delete contractors from these subsections at any time subject to the quantity listed for the applicable item in Column 4 of Table 2, 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.

(iv) The duration of all such licenses shall be, at minimum, for the period of performance of this contract (including options, if exercised) unless the license specifies a longer period for a total quantity of seats listed in Column 4 of Table 2 associated with the CDRLs listed in Column 1 of that table. 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 those licenses under existing or follow-on contracts.

(v) License rights related to technical data described in, and granted to the U.S. Government under, DFARS 252.227-7015(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.

(vi) All such commercial item technical data, computer software and computer software documentation may be installed and used at any U.S. Government installation worldwide at which C-SAR equipment is located.

(vii) The ultimate purpose of this contract is for the Contractor to deliver to the U.S.

Government a critical component of a weapons system whose continued sustainment is mandated by Federal law (10 U.S.C. § 2281, 42 U.S.C. § 14712). Accordingly, should the U.S. Government use, release or disclose the commercial item technical data, computer software, or computer software documentation in a manner inconsistent with the terms of any of the licenses listed in Table 2 contained in Appendix A to this attachment, the U.S.

Government shall not be required to de-install and stop using those Items or return such Items to the Contractor and the Contractor's remedy shall be limited to monetary damages. The Contractor shall not add, delete or replace any commercial item technical data, computer software, or computer software documentation listed in Table 3 from any CLIN or CDRL under which that technical data, computer software or computer software documentation will be delivered to the Government unless the Government has approved that addition, deletion or replacement and the contract has been modified to add, delete or replace that item from that table and delete or replace the applicable licensees) from Appendix A.

CDRL No. Data Item Title (Subtitle) Vendor Name Technical

Data/Software Application Name, License No.

Quantity Cost

Table 2: Rights in Commercial Technical Data, Computer Software, and Computer Software Documentation

(3) Special License Rights Category A ("SLRC-A"): Rights in data other than technical data, computer software or computer software documentation.

The Government shall have the right to use, modify, perform, display or disclose all such data listed in Table 3 below, 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) to perform their respective contract(s) listed below:

The Aerospace Corporation (Contract Number FA8802-19-C-0001)

The Contractor agrees that the Government shall have the right to unilaterally add or delete contractors (and contracts) 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. If the Contractor believes there is a cost associated with the right to release, disclose, etc (as described above) any of the items in Table 3, the Contractor shall provide justification and a cost for the Government to obtain those rights.

CDRL No. Data Item Title (Subtitle) Cost

A001 Contract Work Break Down Structure (CWBS) $

A002 Contract Funds Status Report (CFSR) $

A003 Cost and Hour Report (Flexfile) $

A004 Software Resources Data Reporting (SRDR) / Software Maintenance Report (3026-2)

A005 Distribution of DoD Depot Maintenance Workload (50/50) $

A006 Technical Data Reporting - CSDR $

A007 Contractor Business Data Report (DD Form 1921-3) / Contractor Cost Data Reporting (CCDR)

A008 Integrated Program Management Report (IPMR) $ A010 Small Business Subcontractor Report $

Table 3: Rights in Data Other Than Technical Data, Computer Software or Computer Software Documentation

(4) Special License Rights Category B ("SLRC-B"): The Government and the persons listed below (including their subcontractors) shall have the right to review all data used by the Contractor to create any CDRL listed in Tables 1-3 required to be delivered under this contract (including, if necessary, at the Contractor's and subcontractors' facilities) to verify the currency, accuracy and completeness of the data contained in those CDRLs:

The Aerospace Corporation (Contract Number FAA802-19-C-0001)

The estimated cost for this license is $ (Offeror to Complete). The Contractor agrees that the Government shall have the right to unilaterally add or delete contractors (and contracts) 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.

d. Marking requirements

(1) If the contents of any CDRL delivered to the Government contain commercial item technical data, computer software or computer software documentation, prior to delivery, the Contractor shall physically attach a copy of this Attachment and a copy of the applicable commercial license(s) listed in Table 2 contained in Appendix A for that CDRL to that CDRL, and expressly highlight in red which specific items of commercial technical data located on which specific portions of that CDRL the release of which outside the Government is restricted by that/those licensees). If a CDRL listed in Table 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 legend prescribed by DFARS 252.227-7013(f)(4) and 252.227-7014(f)(4), delete the word "technical" from that legend, and insert the following text immediately after the phrase "License No." in that legend: "SLRC-A". If a document described in subsection c.(4) is provided to the Government, the Contractor shall affix to the cover page of that document the legend contained in DFARS 252.227-7013(f)(4) and insert the following text immediately after the phrase "License No.": "SLRC-B". Under such circumstances, the Contractor shall also physically attach a copy of this Attachment to that CDRL.

(2) The Contractor acknowledges that, given the types of licenses described herein 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 properly affix the proper restricting marking to the appropriate data prior to delivering or otherwise providing that data to the Government exponentially increases the risk that that data will be released to unauthorized persons for unauthorized purposes. Accordingly, in addition to the release from liability contained in DFARS 252.227-7013(b)(6) and 252.227-7014(b)(6), 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 if any CDRL delivered to the Government does not comply in all respects with the marking requirements specified herein.

e. Allocability of Costs to CLINs

The cost of the rights described above in subsection c.(1-3) associated with its corresponding CDRL is built into the estimated cost of CLIN X002 (FFP CDRLs) and X009 (Cost CDRLs), which in turn is built into the estimated cost of the CLIN under which the development/creation of that CDRL will occur or has occurred. Since the cost for the rights described above in subsection c.(4) benefits all CLINs and all CDRLs to varying degrees, that cost shall be allocated in reasonable proportion to the benefits received by each CLIN.

f. Updates The cost of any rights in data described above includes the cost of the rights in data to any changes (e.g., updates, software maintenance patches, minor version changes, substitutions, sustainment modifications) made to that data by the Contractor any time during performance of this contract.

g. Content of licenses for computer software delivered under any CLIN other than CLIN X009.

All licenses to be furnished by the Contractor associated with any items containing commercial or noncommercial computer software (inclusive of firmware) delivered to the Government shall be identical to those licenses furnished by the Contractor associated with any computer software (inclusive of firmware) delivered by it to the Government in CDRL B017 Software Product Specification (CLIN X009).

h. License transference

Any license associated with any technical data, computer software, or computer software documentation delivered under any CLIN shall transfer upon delivery of that CDRL or CLIN to the Government.

i. 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 CLIN or 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 Government shall have the right to use, perform, display or disclose that commercial item technical data, in whole or in part, within the Government.

(2) The Government may not, without the written permission of the Licensor, release or disclose the commercial item technical data and commercial computer software outside the Government, use the commercial item technical data and computer software for manufacture, or authorize the commercial item technical data and computer software to be used by another party, except that the Government may reproduce, release or disclose such data and software or authorize the use or reproduction of such data and software by persons outside the Government (including their subcontractors) to perform their respective contract(s) listed below:

The Aerospace Corporation (Contract Number: FA8802-19-C-0001)

The Licensor agrees that the Government shall have the right to unilaterally add or delete contractors from those clauses at any time subject to the quantity listed for the applicable item in Column 4 of Table 2 of this attachment to Contract FA8823-22-D-0003 and its exercise of that right shall not entitle the Licensor to an equitable adjustment or a modification of any other terms and conditions of this contract.

(3) Duration. The duration of this license shall be, at minimum, for the period of performance of Contract FA8823-22-D-0003 (including options, if exercised) unless the license specifies a longer period.

(4) License rights related to technical data described in, and granted to the U.S. Government under, DFARS 252.227-7015(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.

(5) Law and disputes. 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 Armed Services Board of Contract Appeals (ASBCA) or the U.S. Court of Federal Claims (COFC), as appropriate. Disputes arising between the Licensee and the U.S. Government shall be subject to the Contract Disputes Act such that the jurisdiction and forum for disputes hereunder shall be the Armed Services Board of Contract Appeals (ASBCA) or the U.S. Court of Federal Claims (COFC), as appropriate. Any claim the Licensee files with the U.S. Government on behalf of the Licensor, and any claim the U.S. Government files with the Licensor, shall be submitted within the period specified in FAR 52.233-1 (“Disputes”).

(6) Indemnification. By law, the U.S. Government cannot enter into any indemnification agreement where the Government's liability is indefinite, indeterminate, unlimited and in violation of the Anti- Deficiency Act; therefore, any such indemnification provision in this License shall be void. Any provision in any license that purports to require the U.S. Government to indemnify the Licensee or Licensor is void pursuant to FAR 52.232-99. Any provision in any license that requires the Licensor to defend or indemnify the U.S. Government is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action in accordance with 28 U.S.C. § 516.

(7) Arbitration, equitable or injunctive relief. 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. 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 injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act, Equal Access to Justice Act).

(8) Audits. Upon receiving written consent by the U.S. Government, the Licensor may be permitted to enter Government installations for purposes such as software usage audits or other forms of inspection. Upon receiving written consent by the U.S. Government, the Licensor may enter Government installations to audit the Government’s compliance with the license. Discrepancies found during an audit may result in a charge by the Licensor to the Government. Any resulting invoice must comply with the proper invoicing requirements specified in this contract. If disputed by the Government, that charge will be resolved in accordance with FAR 52.233-1 (“Disputes”); no payment obligation shall arise on the part of the Government until the conclusion of the dispute process. Any audit requested by the Licensor will be performed at the Licensee’s expense, without reimbursement by the Government.

(9) The Items provided hereunder may be installed and used at any U.S. Government installation worldwide at which C-SAR equipment is located consistent with the provisions of the contract between the U.S. Government and the Licensee.

(10) No automatic renewals. 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. If any license tied to periodic payment is provided under this contract, such license shall not renew automatically upon expiration of its current term.

(11) The Licensor shall comply with, and all delivered Items shall conform to, all applicable Government Security/Classification rules and regulations applicable to this Agreement, in particular those set forth in the applicable DD254 (Department of Defense, Contract Security Classification Specification).

(12) The Licensor understands that the ultimate purpose of the Licensee entering into this License with the Licensor is for the Licensor to supply to the U.S. Government a critical component of a weapons system whose continued sustainment is mandated by Federal law (10 U.S.C. § 2281, 42 U.S.C. § 14712). Accordingly, should the U.S. Government use, release or 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 de-install and stop using those Items or return such Items to the Licensee and the Licensor's remedy will be limited to monetary damages. The Licensor understands that the ultimate purpose of the Licensee entering into this License with the Licensor is for the Licensor to supply to the U.S. Government a critical component of a system whose continued sustainment is mandated by Federal (10 U.S.C. § 2281, 50 U.S.C. § 50112). Accordingly, should the U.S. Government use, release, or 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 deinstall and stop using those items or return those items to the Licensee and the Licensee’s remedy will be limited to monetary damages.

(13) In the event of inconsistencies between the License and Federal law (e.g., FAR 52.232-25 – Prompt Payment, 52.246-2 – Inspection of Supplies-Fixed Price, 52.246-3 – Inspection of Supplies- Cost Reimbursement, 52.249-8 – Default-Fixed-Price Supply and Service, and any remedies (e.g., warranties) otherwise granted by any terms and conditions of this contract), Federal law shall apply.

(14) Copies of this license may be disclosed to third parties consistent with the Freedom of Information Act of Contract FA8823-22-D-0003.

(15) The Government shall not be required to comply with the terms and conditions of any License that is inconsistent with any applicable laws, regulations or policies listed in DFARS 252.204-7008

– Requirements for Contracts Involving Export-Controlled Items.

(16) Any claim the Licensee files with the U.S. Government on behalf of the Licensor, and any claim the U.S. Government files with the Licensor, shall be submitted within the period specified in FAR 52.233-01 – Disputes.

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