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Rights in Data - Design Responsibily Issue - Help


Tenderloin

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Working for the DoD, I am responsible to manage technical data/intellectual property (drawings mainly) from a major defense contractor on a ACAT I program. Here's what is happening...I am receiving IP with unlimited rights and our own DoD IP attorneys are stating that we can "modify" the technical data we receive from that contractor because the DFARS states we can do so under the provisions of the DFARS 252.227.7013 clause because it states can "modify" it. I state no, we cannot take the contractor's IP and just make our own changes to the design on the drawing/design without their approval to do such. No design authority has been transferred to the DoD from that company yet our own DoD IP attorneys insist we can change a design because of the word, "modify" in the DFARS clause I just cited. We have a license right, but not ownership of stated data!!! We can "modify" the design by making our own design by taking what's depicted on their drawing and making changes to it, only we have a different CAGE code and, a different part number.

So, if this is in fact the case from the our own DoD IP attorneys, then how is configuration control maintained of the aircraft part item depicted on the drawing/IP maintained? Which is right? I've searched the Wifcon site and it came come close to my issue/question, but close is not enough in my view.

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Tenderloin, I may not be understanding your question, but I suspect you have embedded the answer within it. Rights in technical data and configuration control are two different things. Unlimited rights in technical data doesn't give the government any greater authority to change a design (where the same contractor who owns the data is performing the work) than limited rights. The government's authority to direct the contractor to make a change in its design comes from other sources (like, mutual agreement or the Changes clause). For instance, the government can solicit an engineering change proposal. See, e.g., MIL-HDBK-61A (7 Feb 01), para 6.2.1.1.

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Guest Vern Edwards

Tenderloin:

The clause at DFARS 252.227-7013, in paragraph (a)(16), defines "unlimited rights" as follows:

“Unlimited rights” means rights to use, modify, reproduce, perform, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

Emphasis added. So, the contractor has given the government the right to "modify" in the data described in paragraph ( b )(1) of the clause.

What don't you understand about that? Why are you disputing the lawyers about it? Do you really think that the government cannot change a design that was created for it?

Jacques, I don't understand your position at all. If the design is described by the drawing, which is technical data, and if the clause says that the government can modify the data or have others do so, why do you say that the clause does not give the government the right to change the design?

By the way, limited rights under the DOD clause includes the right to "modify" the data.

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Tenderloin, I belive that your last question concerning configuration control relates to your Service's/Organization's Configuration Management regulations, policies and procedures, not the contract rights in technical data. When the government modifies a design, especially one that is under configuration management, it is fundamentally assuming some form of responsibility and liability for integrity of the design.

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Vern wrote: "Jacques, ... If the design is described by the drawing, which is technical data, and if the clause says that the government can modify the data or have others do so, why do you say the clause does not give the government the right to change the design."

Perhaps I misunderstood Tenderloin's question, which I took to relate to whether the government could change contract requirements. Tenderloin asked (paraphrased), 'So, if this is in fact the case from our own DoD IP attorneys, then how is configuration control maintained of the aircraft part item depicted on the drawing?' My point was simply that the authority to modify recorded information is not the same thing as the authority to change contract requirements.

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Guest Vern Edwards

I understood the question to be about changing the delivered design, not changing the requirements of the contract under which the design is/was being produced.

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Thanks for the discussion on this issue.

Yes, Vern, I do fully understand the "modify" section of the DFARS whether it is unlimited, GPR, or limited rights data. From this thread, I'm thinking there's a conflict [maybe?] between what the DFARS states we can do with the data that is delivered to the DoD and what is stated in the contract we have delivered to us from a contractor. Sure, we can modify it, but within the contract the DoD has with that contractor, there are contractual provisions in place to preclude us from modifying their design as delivered to us without their knowledge and then having two different configurations with the same CAGE code and part number in the supply system. Normally, these provisions are found in the ASME Y14.100 provisions we have invoked in our contracts as to the real ownership of the data.

We, the DoD, do not own the delivered technical data in question - we just have a license right to it. Yes, Vern, I will listen to the IP attorneys and follow their advice, but I just wonder what a contractor delivering their technical data to the DoD and then us changing it without their knowledge. I think Jacques - his post, has what I'm thinking about on this. However, if there are any DoD contractor [private companies] IP attorney's out there, I wonder what their view is on this subject? This is interesting to me. Anyone?

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Guest Vern Edwards

Well, if your contract contains terms that conflict with the DFARS clause, then the CO may have deviated from the regulation. If so, and if the CO did not have authorization to deviate, then the deviating terms may not be enforceable in court. I don't want to try to analyze the contract terms in this forum, so that's all I can say about your situation.

BTW, if I remember rightly, CAGE codes as assigned to contractors, not to contract deliverables. So I'm confused by your comment about two different product configurations having the same CAGE code.

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The unlimited rights license grants DOD all the same rights to the data as the contractor has. The difference is that the contractor may continue to use the data/commercialize independent of what DOD does with it. I agree with Vern, I don't follow the CAGE code argument. Listen to your lawyers, but it's good to ask for clarification if you still have questions.

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This is wonderful info, and I appreciate the input from all.

As to the CAGE code argument, for clarification purposes, all I'm trying to convey is that there will be two (maybe more) configurations of the supposedly same item in our supply system if a design responsibility transfer does not officially take place. The contractor may make a change to a part rolling the part number from a -1 to a -2 increasing the size of a drilled hole in the part from .25 inches to .50. Then, the DoD decides to roll the part number to a -2 with something completely different, like adding a nutplate on the backside of the original .25 sized hole. So, we'd have two parts out there with differing configurations all with the same CAGE code and part number.

Yes, I will listen to our IP attorneys as I should and will, but am wondering what private industry IP attorneys think about the DoD changing their company's IP / designs without them knowing about it and also how the DoD reconciles the configuration differences between the two parts. I'm still curious about this subject when the answer to it is more simple than I'm making it out to be. Sorry to all if I'm over-thinking this. Again, I'm just really curious / conflicted by it all and probably should stand down and let the chips fall where they may.

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Methinks that you're asking Logisitics type questions, not contracting questions. I may be wrong. If you want to PURCHASE a part that has been modified by other than the OEM, the company will have to agree to make it and sell it and the question of design liability would have to be settled, right?.

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Well yes, Joel, they are logistics questions but they're commingled with rights in data issues primarily in the aspect of data ownership overall. In the issues I've presented here, the rights in data issue is settled (the DoD has the right to modify a company's IP) but it is conflicted with configuration management/logistics policies and procedures we have in place in nearly all of our contracts with private industry when a company's IP is delivered to the DoD.

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