Atch_3_-_Data_Rights.pdf

SPACE AND MISSILE SYSTEMS CENTER (SMC)

Global Positioning Systems (GPS) Directorate Engineering, Analysis & Remote Site Sustainment

(GEARSS)

ATTACHMENT 3 – Rights in Data (Including Technical Data, Computer Software, and Computer Software Documentation)

Request for Proposal

FA8823-15-R-0001

1 September 2015

[This page intentionally blank]

FA8823-15-R-0001 Attachment 3: Rights in Data

a. Introduction. The purpose of this Attachment 3 is to identify the rights the U.S. Government will acquire to all GEARSS technical 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 U.S. 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 required to be delivered or otherwise provided to the U.S. Government during performance of this contract.

b. Definitions.

“Data” includes technical data, computer software, computer software documentation (as those terms are defined in this subsection), and cost/financial/schedule required to be delivered via Exhibit A.

“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).

“Covered government support contractor” is defined in DFARS 252.227-7015(a)(2).

“Firmware” is defined in SMC Standard SMC-S-012.

“Licensee” is defined as the SE&I 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 the rights in noncommercial technical data, computer software and computer software documentation described in Table 1 below. All technical data, computer software and computer software documentation delivered or otherwise provided to the Government during performance of this contract under any CDRL 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 below.

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

Column 1 Column 2 Column 3 Column 4

CDRL NO. DATA ITEM TITLE(SUBTITLE)

ASSERTED

RIGHTS

CATEGORY

PRICE

A003 NAO Position Training Standard (PTS)/Position Training Guide (PTG)

Unlimited $

(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 that are contained in Appendix A:

(i) The Government shall have the right to use, perform, display or disclose that 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, computer software, and computer software documentation 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 not to exceed the quantity specified in Column 4 of Table 2 for commercial item computer software.

(ii) 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 for the total quantity 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.

(iii) License rights related to commercial item 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.

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

Government technical data and computer software to be used by the GPS Directorate to develop, produce and sustain a weapons system whose continued sustainment is mandated by Federal law (10 U.S.C. § 2281, 51 U.S.C. § 50112). 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 commercial licenses listed in Table 2 contained in Appendix A to this attachment, the U.S. Government shall not be required to remove, uninstall or 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 2 from any CDRL 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 license(s) from Appendix A.

Table 2

Rights in Commercial Technical Data, Computer Software, and Computer Software Documentation

Column 1 Column 2 Column 3 Column 4 Column 5

CDRL

NO.

DATA ITEM

TITLE

(SUBTITLE)

VENDOR NAME;

TECHNICAL

DATA/SOFTWARE

APPLICATION NAME;

LICENSE NO.

QUANTITY ESTIMATED

COST/PRICE

(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 FA8802-14-C-0001)

MITRE Corporation (Contract FA87002-14-C-0001, Project No. 6S00 (Warfighter Support), Work Package 6SC0 (Global Positioning System) Leidos, Inc. (Contract FA8807-14-C-0006 (GPS Systems Engineering & Integration (SE&I) Bridge 4.0) TASC (Contract FA8807-15-C-0005 (GPS SE&I))

The Contractor agrees that the Government shall have the right to unilaterally add or delete covered government support 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.

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

Column 1 Column 2 Column 3

CDRL NO.

DATA ITEM TITLE

(SUBTITLE)

PRICE

A001 Data Accession List (DAL) $ A002 Monthly Contractor Performance Status Report (MCPSR) $ A004 GPS RST Offsite Work Log (GROWL) $ A005 GPS RST Offsite Weekly Log Enhanced Report (GROWLER) $

(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 (except data classified as attorney-client privileged or attorney work-product privileged) to create any data listed in CDRL A001 (including, if necessary, at the Contractor’s and subcontractors’ facilities) to verify the currency, accuracy and completeness of the data contained in that data:

The Aerospace Corporation MITRE Corporation Leidos,Inc.

TASC

The price for this license is $____**____. The Contractor agrees that the Government shall have the right to unilaterally add or delete covered government support 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.

The Contractor agrees that the Government shall have the right to unilaterally add or delete covered government support 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. Additional marking requirements.

(1) 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/____**___ PROPRIETARY”. 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) delete the word “technical” from that legend, and insert the following text immediately after the phrase “License No.”:

“SLRC-B/___**___ PROPRIETARY”. Under such circumstances, the Contractor shall also physically attach a copy of this Attachment to that CDRL.

(2) Reserved.

(3) The Contractor acknowledges that, given the types of licenses described in subsections c.(3-4) 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 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 price of the rights described above in subsections c.(1-4) associated with its corresponding CDRL is built into the price of CLINs 0001 and, if exercised, option CLINs 1002, 2002, and 3002.

f. Updates. Reserved.

g. 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.

h. Prohibition against nondisclosure agreements. Reserved.

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 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, computer software, or computer software documentation, in whole or in part, within the Government not to exceed the quantity specified in Column 4 of Table 2 of Attachment 3 of Contract FA8807-13-C-0001.

(2) The duration of this license shall be, at minimum, for the period of performance of Contract FA8807-11-R-0001 (including options, if exercised) unless the license specifies a longer period.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(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 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).

(9) 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 technical data and computer software to be used by the GPS Directorate to develop, produce and sustain a weapons system whose continued sustainment is mandated by Federal law (10 U.S.C. § 2281, 51 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 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.

(10) In the event of inconsistencies between the License and Federal law (e.g., FAR 52.232-25 (“Prompt Payment”), 52.246-3 (“Inspection of Supplies—Cost Reimbursement”)), Federal law shall apply.

(11) 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”).

(12) 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”).

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

j. Deferred Ordering. In accordance with DFARS 252.227-7027 (Deferred Ordering of Technical Data or Computer Software) the Government may order any technical data or computer software generated in the performance of this contract or any subcontract hereunder anytime during the performance of this contract or within a period of three years after acceptance of all items (other than technical data or computer software) to be delivered under this contract or the termination of this contract. Accordingly, the Contractor shall list all such items generated in the performance of this contract or any subcontract hereinunder in CDRL A001. Prior to ordering any such item, the Government will submit to the Contractor proposed modifications to this attachment that will identify the rights the Government will acquire to any such items ordered pursuant to DFARS 252.227-7027.