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Hi all, 

Background: Prime has given us a set of instructions on how Data Rights should be asserted/marked, etc for a contract. DFARS 252.227-7013 (instructions on how to mark GPR, LR, etc) . They include a note that we (the sub) have to give permission to remove our proprietary markings for submission the USG. 

We are asserting limited /unlimited rights on the technical data. 

From my reading of the clause, I understand the regulations are clear on what can or can not be marked when submitting to the USG. 

Question: What are the best ways to protect our limited rights data from both the prime/ USG if we have to give permission to the prime to remove our proprietary markings? 

I've done some research with some mentioning that a specific NDA should be signed to address these things and specifying that the prime must assert the same limited rights statement on their submission as the original. 

I just wanted to pick everyones' brains and see if others have dealt with this in different manners or if they even see it as an issue? 

Senior management is pushing that we push back, not give our explicit permission and inform them that they can notify us if any data with limited rights asserted will be needed to submit to the USG and we would give our written permission once evaluating the request. Would you say that's a standard approach as well? 

Just trying to see if there is an industry standard on how this is addressed. 

Thanks in advance. 

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I'm unclear what your issue really is. You write that you have to give the prime permission to remove your markings. If they do so without your permission, that provides a cause of action, correct? So you would seem to be protected there.

Then your next question seems to be, "what if we remove the markings?" If that's your question, then I believe the answer is that you would have withdrawn your assertion re: limited use rights.

I'm feeling as if I (and perhaps others) missed the real question here. Perhaps you can rephrase?

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On 7/25/2019 at 11:11 AM, here_2_help said:

I'm unclear what your issue really is. You write that you have to give the prime permission to remove your markings. If they do so without your permission, that provides a cause of action, correct? So you would seem to be protected there.

Then your next question seems to be, "what if we remove the markings?" If that's your question, then I believe the answer is that you would have withdrawn your assertion re: limited use rights.

I'm feeling as if I (and perhaps others) missed the real question here. Perhaps you can rephrase?

Sorry about the confusion. So, in this situation, yes the prime is asking for our permission to remove our proprietary markings when the prime submits the data to the USG. 

From my reading and understanding of DFARS 252.227-7013(h), if we did not give the prime the permission and they submitted the data, our proprietary marking could be removed as being nonconforming. In order to avoid this situation, I believe it best to give permission but also negotiate/ dictate the terms of the prime removing the markings.

So I guess my question is: What are the best industry practices to ensure the data is protected by both the prime and USG when proprietary markings are removed? 

From my understand, DRA Table and proper markings should be enough for the USG. Not sure if there is an best practice for the prime though. 

I read in NCMA 2012 presentation (would've linked it but unfortunately, cannot find the link) that we should move for a revised NDA. I was wondering if other practices were out there to gauge which would be best. 

 

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On 7/24/2019 at 11:12 AM, StePa said:

Senior management is pushing that we push back,

1. For push back you should read 252.227-7014 (k)(4).

2. For negotiations with your customer, you could offer a license to use your marked IP to support the sale or use of its goods. That does not give up your ownership of the data.

3.  Federal employees should be aware that disclosing marked IP data may be a crime . See 18 United States Code 1905. Also such data seems to be unavailable under the Freedom of Information Act. See 5 United States Code 552 (b).  

Edited by Neil Roberts
sp

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On ‎7‎/‎26‎/‎2019 at 3:27 PM, StePa said:

What are the best industry practices to ensure the data is protected by both the prime and USG when proprietary markings are removed? 

Is the data subject to a patent or copyright?

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@Neil Roberts Thanks Neil I will read #1. 

@Retreadfed I am unaware of what the full CDRL will contain but it should be subject to a patent (existing) while some of the data would be subject to copyright. (mostly data that is readily available to the public) The copyrighted data would not really concern us as it's already out there. The data which is subject to a patent and is considered a trade secret/ proprietary is where our senior execs are concerned. 

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@Neil Roberts Reviewed the clause cited and believe it is only applicable to computer software. I did read the equivalent in 252-227-7013(k)(5).  

I understand that the Prime has an obligation but that does not mean that the sub cannot use any and all means to ensure their data is protected. I just wasn't sure if there is any other methods out there to protect the data in lieu of another NDA. 

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On 7/24/2019 at 11:12 AM, StePa said:

Senior management is pushing that we push back, not give our explicit permission and inform them that they can notify us if any data with limited rights asserted will be needed to submit to the USG and we would give our written permission once evaluating the request. Would you say that's a standard approach as well? 

Im my experience at a major prime contractor,  this is not standard. There is usually little time available to sift through all supplier proprietary information and notify the supplier which information is going to be submitted to the government. The supplier marked information is already protected from Government disclosure as I indicated above. Between the supplier and the prime there should be some NDA type language indicating that each would keep confidential and protect each others confidential, proprietary and/or trade secret information during the pre-award process except that any and all such information may be disclosed by the prime to the government for the purpose of obtaining an award.

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4 minutes ago, Neil Roberts said:

Im my experience at a major prime contractor,  this is not standard. There is usually little time available to sift through all supplier proprietary information and notify the supplier which information is going to be submitted to the government. The supplier marked information is already protected from Government disclosure as I indicated above. Between the supplier and the prime there should be some NDA type language indicating that each would keep confidential and protect each others confidential, proprietary and/or trade secret information during the pre-award process except that any and all such information may be disclosed by the prime to the government for the purpose of obtaining an award.

 

From what I can gather then.. NDAs are the preferred industry "best practice" for this particular scenario as no other suggestions have been made. I just wanted to make sure I wasn't missing other steps we could take to protect the data. 

 

Thanks all. 

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