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1 Breakout Session: D3 Gene Pickarz, Senior Policy Analyst, National Reconnaissance Office Date: November 6, 2012 Time: 11:15am - 12:30pm Four Questions You Must Answer to Solve any Data Rights Issue

2 Data Rights in government contracting is one of the most complex topics contracts professionals face –Program management professionals play a large role –Today’s focus – DFARS Part 27 and its related clauses –Commercial Item Policy (Technical Data-TD) Acquire only technical data customarily provided to the public Exceptions- Fit, Form, and Function (FFF) Data Operations, Maintenance, Installation, and Training (OMIT) Data Government funded modifications (to meet requirements of a solicitation) Can’t “force” contractors to give rights to: use, modify, reproduce, release, perform, display, or disclose TD developed at private expense –Commercial Software Policy? – Follow the applicable “license” Background, Focus, & Policy

3 Non-Commercial Items or Processes-Rights in Technical Data (TD), & Computer Software Documentation (CSD) –Acquire only technical data, and the rights to that data, necessary to satisfy agency needs –Solicitations and contracts shall: –Specify TD, CSD to be delivered and its schedule –Identify the procedures for determining acceptability –Establish separate contract line items to the extent practicable –Require offerors to identify restrictive rights prior to delivery –Can’t “force” contractors to give rights to: use, modify, reproduce, release, perform, display, or disclose TD developed at private expense Some exceptions (Example: SW delivered with Unlimited Rights under another contract) Background, Focus & Policy (Cont.)

4 Non-Commercial Rights in Computer Software (CS) –Acquire only the CS, the computer software documentation, and the rights to it, necessary to satisfy agency needs –Solicitations and contracts shall: –Specify CS to be delivered and its schedule –Identify the procedures for determining acceptability –Establish separate line items to the extent practicable –Require offerors to identify restrictive rights prior to delivery –Can’t “force” contractors to give rights to: use, modify, reproduce, release, perform, display, or disclose CS developed at private expense Some exceptions (Example: SW delivered with Unlimited Rights under another contract) Background, Focus & Policy (Cont.)

5 Limited Rights (TD & CSD) – Use only within the Government –Some restrictions apply (e.g. emergency repairs) Restricted Rights (CS) – Use only within the Government – many constraints Government Purpose Rights (use possible outside the Government for any Government purpose-but not commercial purposes) Unlimited Rights (use anywhere for any purpose) –Note: Some items should always be delivered with Unlimited Rights regardless of funding source (e.g. computer software documentation) Specifically Negotiated License Rights-Anything outside the standard entitlements Non-Commercial Data Rights (TD, CSD, & CS)

6 The Questions What Do I Have? What Do I Need? How Do I Get It? What Do I Need To Do With It?

7 Make sure you don’t pay twice Ensure delivered data supports the mission - Evaluate “assertions” thoroughly What Do I Have? 1 Engineering Drawings LIMITED Computer Software Documentation LIMITED RESTRICTED Source Code Rights to B&P Information TD & CS Previously Delivered Really Big Ship Proposal ACME Shipyards ID & Assertions Computer Software UNLIMITED CONTRACT Engineering Drawings GPR Computer Software Documentation GPR Computer Software UNLIMITED Limited Source Code Internal Delivered Data Items From Previous Contracts Existing “Data” Assets New “Data” Assets

8 Figure out what you have first! Begin with the end in mind Structure the contract to clearly establish expectations and responsibilities –Clarity and transparency are critical –Ensure all necessary clauses are incorporated and understood –Establish mutual agreement on deliverable content and form Don’t assume the SOW alone provides sufficient clarity Don’t “assume” anything What Do I Need? Non Comm. CS TD Commercial Items Non Comm. TD TD Validation 2 DD 1423 (CDRL) Engineering Drawings GPR Computer Software Documentation GPR Source Code Computer Software UNLIMITED DD 1423 (CDRL) Focus on Requirements Not “Desirements” CS Validation

9 How Do I Get It? 3 CDRL Items Deferred Ordering Clause Contract Line Items Delivery DD 1423 Data Accession List CO Ordering Letter / Integrated Data Environment Delivery Paradigm

10 What Do I Need To Do With It? 4 Sole Source? Full & Open Comp? Limited Comp? Where do deliverables go to stay? –Determine archive and retrieval strategy (the “repository” decision) (DFARS ) Determine depth and breadth of data needed –Ensure Long term sustainment & support –Thinking beyond the “instant” contract is critical

11 Technical Data Rights Strategy CDRLItems Deferred Ordering Clause Contract Line Items Delivery DD 1423 Data Accession List CO Ordering Letter / Integrated Data Environment Sole Source? Full & Open Comp? Limited Comp? HAVE? NEED? GET? DO?

12 Key Takeaways The 4 questions can help both government and industry keep the appropriate focus on managing intellectual property A “holistic approach” is critical to develop and maintain a technical data rights strategy “How” you ask for something can be more critical than even asking for it in the first place Delivering “data” that doesn’t support the end need is a waste of the taxpayers money Developing an executable “delivery paradigm” is essential Additional data isn’t “free” “Missing” data may become mission critical