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Fran D

Delivery of Non-specified Deliverables

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I apologize for the vague title, but I am in a bit of a quandary on how to address this succinctly.

The situation is that we are a sub to a prime contractor for the Navy on a job where we are to deliver custom meters (think of them generally as voltmeters) according to an agreed set of specifications to the prime (all contract negotiations have been done through the prime). Originally, we had proposed to the prime a full custom meter development program (which is generally what our business is), which includes delivering all design documentation to enable manufacturing of the meter at another vendor. This was deemed too expensive by the prime and we were asked for a meter-only proposal. Further, to help reduce the cost, we agreed to modify a device that had been developed for another customer (without any government money) to realize the meter required of this program. Therefore, we agreed and signed a contract for the delivery of meters only, without the design data or documentation either listed or excluded from the list, but with the usual list of FARS and DFARS clauses attached. Now, the contract is complete and the prime has stated that we must deliver all design documentation. They cite DFARS 252.227-7013, 7014, 7015, as evidence that we are contractually obligated to deliver this information (I guess referred to as "data" in the nomenclature).

Now, we do not deny that, acting as an agent of the government, that the prime has certain rights to the data as described in the clauses referenced above. However, what we object to is that we specifically designed a program absent the delivery of this data to reduce cost and, now, we are being told, "We own it anyway, so cough it up." We would actually be happy to provide the data, but we expect to be compensated for the costs in data transfer on a scale of that similar to our original proposal. Further, since 80% or more of the meter was developed on private funds, we will need to work on isolating those parts of the system and identifying the restricted or limited use statements as specified in DFARS. Once again, we don't object to providing this, we object to doing it for free.

I hope that wasn't too long winded or confusing. A search did turn up another discussion, http://www.wifcon.com/discussion/index.php?showtopic=89, that seemed similar. I'm just looking for some kind of direction as to where we actually stand relative to the above clauses.

Thanks in advance.

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Nevermind. Vern addressed the question quite well.

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Guest Vern Edwards

Your post was not long-winded or confusing. In fact, it was a model of clarity and beautifully written. If only everyone wrote as clearly as you. Now, to your question:

The clauses being cited to you by your customer do not require you to deliver any data. They only grant rights to the Government in data in its possession. If your customer wants you to deliver any data to them, they must specify the data that they want and either persuade you to give it to them for free or pay you to deliver it. Moreover, they don't "own" any data that has not been delivered to them. They have rights to use and disclose data in their possession. If they don't possess it, then they don't have anything until they talk you into giving it to them for free or pay you to sell it to them. Show them the clauses and tell them to point out the sentence that says you have to deliver any data to them.

Good luck. They're going to try to bully you.

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Your post was not long-winded or confusing. In fact, it was a model of clarity and beautifully written. If only everyone wrote as clearly as you. Now, to your question:

The clauses being cited to you by your customer do not require you to deliver any data. The only grant rights to the Government in data in its possession. If your customer wants you to deliver any data to them, they must specify the data that they want and either persuade you to give it to them for free or pay you to deliver it. Moreover, they don't "own" any data that has not been delivered to them. They have rights to use and disclose data in their possession. If they don't possess it, then they don't have anything until they talk you into giving it to them for free or pay you to sell it to them. Show them the clauses and tell them to point out the sentence that says you have to deliver any data to them.

Good luck. They're going to try to bully you.

The only thing that I could add is that the government itself can't bully you into anything. Your contract is with the prime. It seems that the prime is who you originally proposed to, who objected to the cost, who asked you to revise your proposal to exclude delivery of design data, and who agreed with your methodology and price. As Vern said above, your contract apparently doesn't require you to deliver the design data, either.

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Thanks to both of you for the quick and clear responses. Reading through those DFARS clauses can be a mind-numbing exercise, so it's incredibly helpful to have experienced opinions.

Joel, I actually thought your original post was quite helpful in delineating specific details that I may have just implied in my question. I was disappointed to see that you had deleted it when I logged in this morning. But, you are correct, my ONLY interaction (and my only beef) is with the prime. The government hasn't been involved, except as the ultimate beneficiary of this work.

Hopefully, we'll be able to find an equitable solution with the prime. We're not looking to derail the project. We just don't want to be railroaded!

Thanks, again.

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