SBIR Phase III and Data Rights

[1102INSD]

We are in the process of awarding a SBIR III contract. The previous contractor's SBIR I,II contracts have restricted the Government's data rights per DFARS clause at 252.227-7018. The program office is now requesting unlimited data rights for Phase III or at the very least to decrease the time of Government restriction of five years.

I understand that according to FAR 27.409(h) data rights can be extended however, I haven't found any guidance to the contrary. I furthermore understand that DFARS under the clause at 252.227-7018 states, "the Government obtains a royalty-free license to use technical data marked with an SBIR data rights legend only for government purposes during the period commencing with contract award and ending five years after completion of the project under which the data were generated. Upon expiration of the five-year restrictive license, the Government has unlimited rights in the SBIR data. During the license period, the Government may not release or disclose SBIR data to any person other than its support services contractors except -

(1) For evaluational purposes;

(2) As expressly permitted by the contractor; or

(3) A use, release, or disclosure that is necessary for emergency repair or overhaul of items operated by the Government.

Does anyone have examples of how this request has been negotiated with the contractor successfully?

[Don Mansfield]

Did you read subparagraph ( b )(5) of the clause?

(5) Specifically negotiated license rights. The standard license rights granted to the Government under paragraphs ( b )(1) through ( b )(4) of this clause may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in technical data, including computer software documentation, than are enumerated in paragraph (a)(14) of this clause or lesser rights in computer software than are enumerated in paragraph (a)(17) of this clause. Any rights so negotiated shall be identified in a license agreement made part of this contract.