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FAR 27.101 states:

FAR 27.101 -- Applicability.

This Part 27 applies to all agencies. However, agencies are authorized to adopt alternative policies, procedures, solicitation provisions, and contract clauses to the extent necessary to meet the specific requirements of laws, executive orders, treaties, or international agreements. Any agency adopting alternative policies, procedures, solicitation provisions, and contract clauses should include them in the agency’s published regulations.

My question is, is FAR 27.101 saying that the requirements to go through the individual deviation or class deviation process are not required for agencies who want to "modify" the FAR 52.227 intellectual property (patents, copyrights, technical data) clauses?

DOD of course has put in its DFARS at 227.4 that FAR 27 does not apply to DOD in its entirety. Can anyone tell me the history of how DOD did this? Did DOD obtain a class deviation under FAR 1.4 from the FAR Council? Or did DOD simply just draft its own DFARS regulations for 227.4 and publish as proposed rules in the Federal Register, without going throug the deviation process?

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Guest Vern Edwards

My question is, is FAR 27.101 saying that the requirements to go through the individual deviation or class deviation process are not required for agencies who want to "modify" the FAR 52.227 intellectual property (patents, copyrights, technical data) clauses?

Such modifications would entail multiple deviations and, according to FAR, a class deviation would have to be approved by the agency head. If the agency is making a class deviation it must go through the Federal Register notice and comment procedure. See 41 U.S.C. 1707, FAR 1.303, and FAR 1.501-2. See also Tesoro Hawaii Corp. v. U.S., 58 Fed. Cl. 65 (2003), reversed on other grounds, Tesoro Hawaii Corp. v. U.S., 405 F.3d 1339 (Fed. Cir. 2005), discussed by Prof. Nash in "Nonconforming Economic Price Adjustment Clauses: Myriad Issues," 18 N&CR para. 4 (The Nash & Cibinic Report, January 2004).

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In regard to the question of how did DoD do what it did in regard to FAR Part 27, my recollection is that there is a statute specifically requiring DoD to have an IP policy that is different from that expressed n the FAR. In other words, the DFARS coverage in part 227 is mandated by law.

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Guest Vern Edwards

The story of the development of DOD data rights statutes, policies, and regulations is long and very complicated. The original FAR (1984) contained no substantive data rights regulations, so DOD issued its own. There was nothing to deviate from. A 1984 statute called for DOD data rights regulations to be inserted in the FAR, but it was never done. The FAR councils recognized the differences between DOD and everybody else when FAR Subpart 27.4 was added in 1987 and announced that DOD would continue with its own regulation. The DOD coverage was issued on April 16, 1987, 52 FR 12390. The FAR coverage was issued on May 13, 1987, 52 FR 18140. Several statutes followed, in 1986, 1987, and 2006.

The entire history, through many statutory and regulatory developments, is related in Intellectual Property in Government Contracts, 6th ed., by Nash and Rawicz, Chapter 4, "Rights in Technical Data."

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