Attachment_10d_-_Task_Order_02-CAF_Development_and_Integration_Rights_in_Data.docx

TECHNOLOGY APPLICATION DEVELOPMENT AND SUSTAINMENT (TADS)

TASK ORDER 02

CAF DEVELOPMENT AND INTEGRATION

RIGHTS IN DATA

INCLUDING TECHNICAL DATA, COMPUTER SOFTWARE,

AND COMPUTER SOFTWARE DOCUMENTATION

FA4600-19-R-A001

Attachment 10d 24 June 2019

Table of Contents

1.0 Introduction

1.1 The Government’s rights in data and the policies related to technical data, computer software and computer software documentation are defined in Department of Defense (DoD) Federal Acquisition Regulation Supplement (DFARS) 227.71, Rights in Technical Data, and 227.72, Rights In Computer Software and Computer Software Documentation. For any data produced under the Technology Application Development and Sustainment (TADS) contract, the Government will assume its rights in data and license rights are unlimited or unrestricted unless the contractor specifically identifies more limited rights in data or more restricted license rights in this Attachment.

1.2 The purpose of this Attachment is to clearly identify and track the Government’s rights in data to all technical data, computer software, and computer software documentation, delivered or otherwise provided during performance of the TADS Indefinite Delivery Indefinite Quantity (IDIQ) contract. Each individual order against the TADS IDIQ will have its own separate attachment.

1.3 The Program Offices supported by the TADS Contract use Covered Government support contractors in support of the Government’s management and oversight of the contract. These Covered Government support contractors have subscribed to non-disclosure agreements per their contracts with the Government. These Covered Government support contractors will require access to technical data, computer software, computer software documentation and other proprietary and non-proprietary information delivered under the TADS Contract.

2.0 Definitions

2.1 “Commercial Item” is defined at FAR 2.101

2.2 “Computer Software” is defined at DFARS 252.227-7014(a)(4).

2.3 “Computer Software Documentation” is defined at DFARS 252.227-7014(a)(5)

2.4 “Covered Government Support Contractor” is defined at DFARS 252.227-7014(a)(6)

2.5 “Firmware” is defined as the combination of a hardware device and computer instructions or computer data that reside as read-only software on the hardware device; the software cannot readily be modified under program control.

2.6 Licensee” is defined as the TADS contractor.

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

2.8 “Order” is defined as either a task order or delivery order awarded against the TADS IDIQ.

2.9 “Technical Data” is defined at DFARS 252.227-7013(a)(15) or DFARS 252.227-7015(a)(5), as applicable.

3.0 Identification and Assertion of Restrictions

3.1 Noncommercial Data Items

3.1.1 Table 1 identifies any noncommercial technical data, computer software (including firmware) and computer software documentation, to include development tools, the contractor will deliver with restrictions on use, reproduction or disclosure. This listing satisfies the identification and assertion requirements addressed in DFARS 252.227-7017, 252.227-7013 or 252.227-7014. For all noncommercial technical data, computer software (including firmware) and computer software documentation items the contractor will deliver that are not included in Table 1, the contractor asserts the Government’s rights in data and license rights are unlimited or unrestricted.

Table 1 Identification and Assertion of Restrictions on the Government’s Use, Release or Disclosure of Noncommercial Technical Data and or Computer Software

Assertion2

Notes:

1 For technical data, if the assertion is applicable to items, components or processes developed at private expense, identify both the data and each such item, component or process. For computer software, generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government’s rights to use, release or disclose computer software. Specifically identify items by Data Item Number (e.g. CDRL A001) or other identification designator to clearly establish what data is restricted.

2 For technical data, generally, the development of an item, component or process at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government’s rights to use, release or disclose technical data pertaining to such items, components or processes. Indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government’s rights should be restricted. For software, indicate whether development was exclusively or partially at private expense. If development was not at private expense, enter the specific reason for asserting that the Government’s rights should be restricted.

3 For technical data, computer software and computer software documentation, if the Asserted Rights Category is Government Purpose Rights, the entry shall identify “GPR”. For technical data, if the Asserted Rights Category is Limited Rights, the entry shall identify “Limited.” For computer software and computer software documentation, if the Asserted Rights Category is Restricted Rights, the entry shall identify “Restricted.”

4 Corporation, individual, or other person, as appropriate.

3.1.2 Table 2 identifies the specific rights in data for each noncommercial technical data, computer software (including firmware) and computer software documentation items where the Government’s rights in data and license rights are less than unlimited or unrestricted. Unless a noncommercial technical data, computer software (including firmware) or computer software documentation item is listed in Table 2, the contractor asserts the Government’s rights in data and license rights are unlimited or unrestricted.

3.1.2.1 The contractor shall deliver Table 2 with each order proposal to document the specific rights in data for each data item.

3.1.2.2 Any licenses for items in Table 2 are listed in Appendix B.

Table 2 Limited or Restricted Rights in Data for Noncommercial Technical Data, Computer Software and Computer Software Documentation

Data Item Number1 Data Item Title (Subtitle), Name or Description1 Asserted Rights Category2 Expiration of Restriction3

Notes:

1 Specifically identify items by Data Item Number (e.g. CDRL A001) or other identification designator which clearly identifies each data item.

2 Use the entries identified in Table 1, Note 3.

3 If applicable, the Contracting Officer will enter the expiration date of any restriction on data items, based on the negotiated period and the execution of the triggering event [see DFARS 252.227-7013(b)(2)(ii)].

3.1.3 During the execution of the TADS Contract, the Government will use covered Government support contractors. The Government may release or disclose data associated with the TADS contract and all orders to these contractors and this data may include limited rights data and or restricted rights computer software. In submitting this document or updates to this document to address the rights in data associated with orders on the TADS contract, the contractor acknowledges that it has been notified that the Government may release or disclose limited rights data and or restricted rights computer software to covered Government support contractors.

3.1.3.1 Table 3 identifies the limited rights data or restricted rights computer software for which the TADS contractor (or the party asserting restrictions as identified in the limited or restricted rights legend) will require covered Government support contractors to enter into a non-disclosure agreement directly with the TADS contractor (or the party asserting restrictions).

3.1.3.2 For all limited rights data and restricted rights software the contractor will deliver that are not included in Table 3, the TADS contractor is waiving in writing the requirement for a non-disclosure agreement.

Table 3 Noncommercial Technical Data, Computer Software and Computer Software Documentation and NDA Requirements

Data Item Number1 Data Item Title (Subtitle), Name or Description1 NDA Required for Covered Gov’t Contractors2

Notes:

1 Specifically identify items by Data Item Number (e.g. CDRL A001) or other identification designator that clearly identifies each data item.

2 If the TADS contractor (or the party asserting restrictions as identified in a restrictive legend) requires each covered Government support contractor to enter into a non-disclosure agreement directly with the TADS contractor (or the party asserting restrictions) regarding the covered Government support contractor’s use of data identified in each row, the TADS contractor shall enter “Yes” in Column D. If the TADS contractor (or the party asserting restrictions) chooses to waive the requirements for a non-disclosure agreement, the TADS contractor shall enter “Waived” in Column D, which shall satisfy the requirement for the waiver to be in writing. If the TADS contractor (or the party asserting restrictions) does not waive the requirement for a non-disclosure agreement, the agreement shall comply with DFARS 252.227-7013(b)(3)(iv)(D) or DFARS 252.227-7014(b)(3)(iii)(D).

3.2 Commercial Data Items

3.2.1 Commercial Technical Data

Table 4 identifies commercial technical data items (including computer software documentation) the TADS contractor will deliver [see DFARS 252.227-7015(b)] and the TADS contractor (or the party asserting restrictions) requires covered Government support contractors to enter into a non-disclosure agreement directly with the TADS contractor (or the party asserting restrictions). The TADS contractor agrees that unless specifically required by explicit entries in Table 4, covered Government support contractors are not required to enter into a non-disclosure agreement directly with the TADS contractor (or the party asserting restrictions). The contractor shall deliver Table 4 with each order proposal to document NDA requirements for each commercial technical data item. Appendix D lists the licenses for items in Table 4.

Table 4 Commercial Technical Data and NDA Requirements

Data Item Number1 Data Item Title (Subtitle), NDA Required for Covered Gov’t Contractors2

Notes:

1 Specifically identify items by Data Item Number (e.g. A001) or other identification designator that clearly identifies each data item.

2 If the TADS contractor (or the party asserting restrictions as identified in a restrictive legend) requires each covered Government support contractor to enter into a non-disclosure agreement directly with the TADS contractor (or the party asserting restrictions) regarding the covered Government support contractor’s use of data identified in each row, the TADS contractor shall enter “Yes” in Column D. If the TADS contractor (or the party asserting restrictions) chooses to waive the requirements for a non-disclosure agreement, the TADS contractor shall enter “Waived” in Column 4, which shall satisfy the requirement for the waiver to be in writing. If the TADS contractor (or the party asserting restrictions) does not waive the requirement for a non-disclosure agreement, the agreement shall comply with DFARS 252.227-7015(b)(3)(iv).

3.2.2 Commercial Software

In accordance with TADS IDIQ clause H-5 “Commercial Computer Software License(s),” the TADS contractor shall provide license agreement information for all COMMERCIAL computer software licenses to be obtained on behalf of or transferred to the US Government under this contract.

Table C is required to document all commercial computer software provided to the Governement as part of the TADS contract.

4.0 Additional Requirements

4.1 Marking Requirements

4.1.1 General

In general, for any data item delivered with restrictions, the item must be marked to highlight the restrictions in accordance with applicable laws, policies and regulations. These restrictions may be related to data rights/license rights, copyrights, prior rights, etc. Restrictions may also be related to Export Control, exemptions from the Freedom of Information Act, scientific and technical information, classification, distribution and destruction. The contractor shall mark all data items to appropriately highlight any restrictions.

4.2 Updates

4.2.1 The rights described in this Attachment includes the rights 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, etc.] made to that data by the contractor anytime during performance of this contract.

4.2.2 All updates or changes after contract award require a bilateral contract modification before the changes become effective to incorporate revisions to this Attachment.

4.3 License Transfer

Any license associated with any technical data, computer software or computer software documentation delivered under any order shall transfer to the Government upon acceptance of that data item.

4.4 Nondisclosure Agreements

Pursuant to 18 USC 1832 and 18 USC 1905, Government employees are already prohibited from releasing an owner’s trade secrets without authorization from the owner. Therefore, neither the contractor nor any of its subcontractors, teaming partners or joint venture partners shall require any Government employee to sign any nondisclosure agreement relative to the use, release or disclosure of any data item to be delivered under this contract or any data otherwise furnished to those employees by the contractor or any of its subcontractors, teaming partners and or joint venture partners.

4.5 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:

4.5.1 The Government shall have the right to use, perform, display or disclose that commercial item technical data, computer software, or computer software documentation, in whole or in part, within the Government, including Covered Government support contractors, not to exceed the quantities specified in this Attachment.

4.5.2 Upon contract award, the Government obtains a waiver from the contractor from the requirement in DFARS 252.227-7013(b)(3)(iv)(C), 252.227-7014(b)(3)(iii)(C) and 252.227-7015(b)(3)(iii) that a covered Government support contractor must enter into a non-disclosure agreement directly with the contractor or any licensor regarding the covered Government support contractor’s use of such data. The Government may not, without the written permission of the contractor, release or disclose the commercial item technical data and computer software outside the Government or use the commercial item technical data and computer software for manufacture, except that the Government shall have the right to use, modify, reproduce, release, perform, display or disclose that commercial item technical data, computer software and computer software documentation to any covered Government support contractor.

4.5.3 Disputes arising between the licensee and the 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 Government shall be the Armed Services Board of Contract Appeals or the US Court of Federal Claims, as appropriate.

4.5.4 By law, the 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.

4.5.6 Under no circumstances shall terms of the license or any modifications thereto renew automatically, which would obligate funds in advance of funds being appropriated in contravention of the Anti-Deficiency Act.

4.5.7 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 Government technical data, computer software and computer software documentation to be used by the Government to sustain, modify, operate and support key sensor systems support Department of Defense Missile Warning, Missile Defense and Space Surveillance missions. Accordingly, should the Government use, release or disclose the items described in the applicable license(s) in a manner inconsistent with the terms of the license(s), the 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.

4.5.8 In the event of inconsistencies between the license and Federal law, Federal law shall apply.

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

4.5.10 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 252.225-7048 Export Controlled Items.

4.5.11 Any claim the Licensee files with the Government on behalf of the Licensor, and any claim the Government files with the Licensor, shall be submitted within the period specified in FAR 52.233-1 “Disputes.”

Appendix A Instructions for Completing This Attachment

The following instructions describe the steps for preparing, maintaining and updating the sections of this Attachment, which provides comprehensive documentation of the Government’s rights in data for each TADS order.

1. For noncommercial technical data, computer software (including firmware) and computer software documentation, to include development tools, the contractor shall complete the following actions:

a. If not asserting any restrictions (rights that are unlimited or unrestricted, as applicable) on noncommercial data items, the offeror shall enter “None” in the first row of Table 1, Column 1, leaving all other columns blank. In this case, the offeror shall also enter “None” in the first row of Table 2, Column 1, leaving all other columns blank and in the first row of Table 3, Column 1, leaving all other columns blank.

b. If asserting restrictions on noncommercial data items, the offeror/contractor shall complete entries in Table 1, Table 2 and Table 3 for each item the offeror will provide with restrictions. The offeror/contractor shall list all applicable license agreements in Appendix B and submit copies of each license to the contracting officer.

i. The contractor shall specifically identify each data item with restricted rights in Table 2. The Asserted Rights Category in Table 2 shall match the Asserted Rights Category in Table 1.

ii. For each item identified in Table 2, the contractor shall use Table 3 to identify if covered Government support contractors will be required to enter into non-disclosure agreements or if the contractor is waiving the requirement.

2. For commercial technical data (including computer software documentation), the contractor shall complete the following actions:

a. For the initial proposal, the offeror shall enter in Table 4 all commercial technical data items (including computer software documentation) where the contractor (or the party asserting restrictions) requires covered Government support contractors to enter into a non-disclosure agreement directly with the contractor (or the party asserting restrictions). If the offeror (or the party asserting restrictions as identified in a restrictive legend) does not waive the requirement for covered Government support contractors to enter into a non-disclosure agreement directly with the Contractor (or the party asserting restrictions), the offeror shall enter “Yes” in Column D. For each subsequent proposal, the contractor shall enter all commercial technical data items (including computer software documentation) proposed to be delivered where covered Government support contractors will be required to enter into a non-disclosure agreement directly with the contractor (or the party asserting restrictions).

b. The offeror/contractor shall list each license agreement in Appendix D, Table D and submit a copy of the license to the contracting officer. For any commercial technical data where the license is tied to commercial computer software and is included in Appendix C, do not include a second copy of the license in Appendix D.

3. For the initial proposal, the offeror shall complete the actions for each new commercial computer software item. Following contract award, all commercial computer software applicable to the TADS contract will be included:

a. Complete all entries in Appendix C, Table C.

b. List all applicable license agreements in Appendix C, Table C and attach a copy of each license.

Appendix B Noncommercial Technical Data, Computer Software, and Computer Software Documentation License List

Table B Noncommercial Technical Data, Computer Software and Computer Software Documentation License List

Data Item No.1 CDRL Title (Subtitle), License No.2

Notes:

1 Specifically identify items by Data Item Number (e.g. CDRL A001) or other identification designator that clearly identifies each data item. The entries in this table shall be the same as those in Table 2.

2 The License Number shall identify the license number or other unique identifier, if any.

FA4600-19-R-A001

Attachment 10d – Task Order 02- CAF Development and Integration Rights in Data

Appendix C Commercial Computer Software License List

Table C Commercial Computer Software List

or Issue Date License Number Quantity/ No. of Copies1

Reference4 License Renewal Date License Renewal Cost

Notes:

1 For a given computer application, when all identifying information (Application Trade Name, Version Number and or Issue Date and License Number are all the same for multiple copies, Column D will list the number of licenses rather than listing each license separately.

2 Identify the software’s location in the system as defined by function diagrams, architecture diagrams, drawings, etc.

3 Specifically identify items by Data Item Number or other identification designator that clearly identifies each data item.

4 Specify the requirement in the applicable work statement driving the need for the commercial software/software documentation.

Appendix D Commercial Technical Data and Computer Software Documentation License List

Table D Commercial Technical Data and Computer Software Documentation License Listing

Data Item Number1 Data Item Title (Subtitle), Name or Description License Number2

Notes:

1 The data entered for the Data Item Number shall be the same as listed in Table 2.

2 The License Number shall identify the license number or other unique identifier, if any.