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Steveatus

Protection of Competition Sensitive Information

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I have a DOD contract that is in an early competitive phase. My company won a contract and two other companies were also selected for this phase. It is expected that there will eventually be a competitive downselect after submittal and adjudication of proposals for the next contract phase.

My contract has the typical DOD data rights clauses. I am wanting to know how I can protect intellectual property developed under the contract so as to not give up any competitive advantage we might gain during the performance of this contract. It looks to me like I am required to provide unlimited rights for deliverable technical data developed under the contract (assuming no mixed funding or contractor funding use).

I can't find anything that would preclude the customer from including my company's study results in some sort of bidders' library or otherwise providing my IP to the competition. Is there an obligation on the Government to not level the competition under these types of phased competitions with multiple contractors performing?

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Steveatus,

Let me see if I have this straight --

Your company accepted a DoD contract to develop something. Your company knew that other companies also received similar contracts to develop similar things. Your company knew that there would be an eventual downselect, with perhaps only one company receiving a follow-on contract award.

You would like to protect the IP developed with DoD funds from use by the DoD, in case one of the uses would be to provide your IP to the competition.

Hmm. I don't know. IP rights are hard, especially for this self-trained non-lawyer. But I'm guessing you lost control of your IP the second you agreed to accept a contract to develop that IP. But as I said, I'm not a lawyer.

I'm sure somebody with more knowledge than I have will tell you how to protect your IP that was developed on taxpayer funds from use by the taxpayers.

H2H

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Steveatus,

Is the IP actually a deliverable under the contract? By this I mean, is it specifically ordered to be delivered via such types of documentation such as the SOW, CDRL? If not, then you are not required to submit it to the DOD. The DOD only has license rights to the IP if the "typical" DOD rights clauses were invoked (curious, was DFARS 252.227-7013 invoked?), but if it's not specifically ordered to be delivered via contractual documentation such as SOW/CDRL, etc., then you don't have to deliver it. On the other hand, if it is specifically ordered then you do in fact have to deliver it. The DOD data rights clauses don't actually order the data, they just set forth what the DOD can and cannot do with the IP. I'm no lawyer either, but this has been my experience. But please do consult with an IP attorney - that's the best way to go with this. Good luck.

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Is there an obligation on the Government to not level the competition under these types of phased competitions with multiple contractors performing?

I don't understand the question. Do you mind dumbing it down for me?

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Steveatus,

Let me see if I have this straight --

Your company accepted a DoD contract to develop something. Your company knew that other companies also received similar contracts to develop similar things. Your company knew that there would be an eventual downselect, with perhaps only one company receiving a follow-on contract award.

You would like to protect the IP developed with DoD funds from use by the DoD, in case one of the uses would be to provide your IP to the competition.

Hmm. I don't know. IP rights are hard, especially for this self-trained non-lawyer. But I'm guessing you lost control of your IP the second you agreed to accept a contract to develop that IP. But as I said, I'm not a lawyer.

I'm sure somebody with more knowledge than I have will tell you how to protect your IP that was developed on taxpayer funds from use by the taxpayers.

H2H

Steveatus, It is important to understand whether or not you already have been awarded a contract and a general sense of what you are required to provide under that "phase" or "contract." The reason I ask is that there are some multiple phase acquisition methods that involve shortlisting in a "phase" prior to the actual award of any actual contract(s) in a subsequent "phase" of the competition.

And - is the government paying you under this "phase" to produce the intellectual property that you are concerned about? I know that you said there are standard D0D "data rights clauses" in the contract but do they apply to this "phase" or only to the "next contract phase".

Thanks.

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Speaking respectfully to all who have responded to Steveatus, this is a matter in which he should seek professional advice. We really should not attempt to advise him about intellectual property matters, even if he had clearly described his company's situation, which he did not. His company should hire an intellectual property attorney.

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I'm a little bit relieved that this is not a simple issue. I have been involved in similar situations many times in my career and had never really thought about the fundamental principles behind protecting competition sensitive information. I will take Vern's advice and engage IP Counsel. Just to ensure I didn't leave anyone hanging, the contract does contain DFARS 252.227-7013. I am referring only to deliverable data and there is no entitlement to assert either Government Purpose Rights or Limited Rights. This is a phased development program where 3 contracts have been awarded for pre-production development. Eventually, there will be a competitive downselect for the objective system.

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In addition to hiring an attorney, I think it would behoove you to contact your contracting officer and inquire as to 1) their interpretation and 2} what their intentions are concerning sharing of IP between or with the competitors. It would be nice to have a lawyer tell you that they arent supposed to share the information, but that doesnt do you much good if they do it anyway. Once its out there, its no longer your exclusive knowledge. Of course, you can always pay the lawyer more to sue for damages. Just saying...it sometimes helps to be proactive with government employees.

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An interpretation and statement of intentions from the CO? They won't be worth the paper they probably won't be written on.

Just consult a competent Government IP attorney and let him or her do your asking and writing.

The only real way to protect your data is to not give it to the government.

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An interpretation and statement of intentions from the CO? They won't be worth the paper they probably won't be written on.

Just consult a competent Government IP attorney and let him or her do your asking and writing.

The only real way to protect your data is to not give it to the government.

I agree 100%. I did advise Steveatus on my July 28th post to consult with consulting an IP attorney by stating, "...please do consult with an IP attorney - that's the best way to go with this." Just sayin'...

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I agreed with hiring counsel. So, say they determine that the government can't disclose or share IP during the competition. That doesn't necessarily mean that the government won't share it. By asking the question of the KO, if they say yep we can or we will share, one then has some options. Use the lawyer to fight the intended action, withdraw from the competition if possible, do nothing, etc. if they say no, we can't share it, one can reinforce and put them on notice that this is important to you.

I am assuming here that the OP is developing something under a pre-production contract with the government, thus has a channel of communications available.

Of course, there seems to be a great reluctance among many acquisition personnel to TALK with their contractors...

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Here is the original question:

I have a DOD contract that is in an early competitive phase. My company won a contract and two other companies were also selected for this phase. It is expected that there will eventually be a competitive downselect after submittal and adjudication of proposals for the next contract phase.

My contract has the typical DOD data rights clauses. I am wanting to know how I can protect intellectual property developed under the contract so as to not give up any competitive advantage we might gain during the performance of this contract. It looks to me like I am required to provide unlimited rights for deliverable technical data developed under the contract (assuming no mixed funding or contractor funding use).

I can't find anything that would preclude the customer from including my company's study results in some sort of bidders' library or otherwise providing my IP to the competition. Is there an obligation on the Government to not level the competition under these types of phased competitions with multiple contractors performing?

Essentially, what Steveatus asked for was for us to interpret a clause that he did not identify ("typical DOD data rights clauses") based on facts he did not describe. He clearly doesn't know what he's doing, because he said that it looked to him as though the government has unlimited rights to his data, yet he wanted to know how to prevent disclosure of it. The question is unanswerable as asked, yet now you have settled on giving the sage advice to ask the CO.

In his situation, in the midst of a competition, Steveatus should not ask the CO for the time of day until he has talked to his lawyer and gotten educated and then advised about what, if anything, to ask. He certainly shouldn't ask questions prompted by nothing more than his ignorant, speculative fears. A CO with a brain in his or her head would not answer any speculative question about what the government can or might do that does not entail clarifying the express terms of the solicitation for the upcoming competition. And, in this case, you should stop giving advice about things about which you know nothing. The only advice to give Steveatus is: In this case, talk to your lawyer before you do anything and before you say anything to the CO.

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Essentially, what Steveatus asked for was for us to interpret a clause that he did not identify ("typical DOD data rights clauses") based on facts he did not describe. He clearly doesn't know what he's doing, because he said that it looked to him as though the government has unlimited rights to his data, yet he wanted to know how to prevent disclosure of it. The question is unanswerable as asked, yet now you have settled on giving the sage advice to ask the CO.

In his situation, in the midst of a competition, Steveatus should not ask the CO for the time of day until he has talked to his lawyer and gotten educated and then advised about what, if anything, to ask. He certainly shouldn't ask questions prompted by nothing more than his ignorant, speculative fears. A CO with a brain in his or her head would not answer any speculative question about what the government can or might do that does not entail clarifying the express terms of the solicitation for the upcoming competition. And, in this case, you should stop giving advice about things about which you know nothing. The only advice to give Steveatus is: In this case, talk to your lawyer before you do anything and before you say anything to the CO.

Agreed. Yes, that makes good sense.

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Thanks for another condescending comment by Vern! Very helpful. I don't think it is necessary to quote the full citation for standard DFARS data rights clauses, but will try harder in the future!

For all others with constructive advice, thank you!

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Steveatus,

Vern doesn't need me to defend him, but . . . man?

You asked, "Is there an obligation on the Government to not level the competition under these types of phased competitions with multiple contractors performing?"

Short answer: NO.

If you had received that answer, would you have been satisfied? More importantly, would other readers have learned anything?

I bet the short answer to my question is NO.

Longer answer: MAYBE. MAYBE NOT. WHAT DOES YOUR ATTORNEY SAY?

Is that any better?

H2H

----------

Edited by owner.

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Steveatus - May I make a quiet, friendly suggestion - - learn from the constructive criticism and advice provided on this forum. These are some of the most knowledgeable, experienced and well-connected contracting professionals who take the time out of their schedule to share their extensive knowledge with the forum members. Government and industry. Worldwide. Some literally "wrote the book" on contracting. May I make another suggestion - read Vern's Blog Parts I, II and III of the continuing saga about the trainees and their quest for knowledge. It is a great tutorial on how to look at issues, formulate sound questions based on your own research and knowledge, and, most importantly in my view, how to listen and learn.

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