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Using 52.227-17 Data Rights in Special Works


Misty

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We are purchasing agile services and agency position is that agile services are always commercial. We are including 52.227-17, Data Rights in Special Works and all source code first produced under this contract will be a deliverable which is subject to 52.227-17. Source code falls under technical data. Does FAR 12.211 which states that "Contracting Officers shall presume that data delivered under a contract for commercial items was delivered at private expense" have implications on our assertion of rights since we are buying under FAR part 12? The prescription for clause 52.227-17 does not exclude FAR part 12 buys but if we are required to presume it was produced at private expense, there seems to be a conflict.

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You're doing a contract for software development using Agile principles?  That's probably not a "special work," so use of the -17 clause is probably inapt.  Have you considered using the -14 clause?

Regarding FAR 12.211, you need to step back and read it from a reasonable person perspective.  If you are buying a commercial item, and you also require some supporting technical data, you shall presume the data was developed at private expense.  But when you are contracting specifically for software development, and you are paying the contractor for the software development, you know darn well that the development was not at private expense.  Right?  So the presumption in 12.211 reasonably cannot exist, and you should not feel trapped by it.  There is no conflict if you will allow common sense to have a place in the analysis.

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Could agile services fall under the definition of special works as described here:

FAR 27.405-1 Special Works:

(a)(9) The development of computer software programs, where the program-

                                (ii) Is agency mission sensitive, and release could prejudice agency mission, programs, or follow-on acquisitions.

Source code falls under the technical data definition and the intent is to establish unlimited rights. Just trying to make sure that the "shall presume" under FAR part 12 does not get in the way. DAU training associates the funding source with technical data rights as demonstrated in the slide below. We are not subject to the DFARs though.

image.png.681a02fafdbf53237588e7940c04be0c.png

 

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If you think it is special work, I will rely on you.  But regardless, FAR 12.211 doesn't reach to you.  You are not contracting for a commercial item with which some technical data will be delivered (the premise of 12.211).  Rather, you are actually contracting for software development, so you know full well that the development of the software is not at private expense.  No presumption either way is needed because you know the facts.  Right?

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1 hour ago, ji20874 said:

If you think it is special work, I will rely on you.  But regardless, FAR 12.211 doesn't reach to you.  You are not contracting for a commercial item with which some technical data will be delivered (the premise of 12.211).  Rather, you are actually contracting for software development, so you know full well that the development of the software is not at private expense.  No presumption either way is needed because you know the facts.  Right?

That is what I am going to go with. I like the idea of applying logic to the FAR, though it is a curious concept to me. There are a lot of things that seem rather illogical in the FAR. :) 

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No, but the Government needs unlimited rights. One of the objectives is preventing the Government from being "locked in" to a specific source in the future. We need to be able to share it, change it and expand upon it. If the Contractor uses it somewhere else as well, that would be fine. 

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9 hours ago, Misty said:

We are using the clause 52.227-17 to establish unlimited rights in the technical data first produced under the contract, including source code, which is a deliverable.

Are you sure source code is technical data? The definition of "Technical data" at FAR 2.101 excludes software.

Quote

Technical data means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation). This term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. The term includes recorded information of a scientific or technical nature that is included in computer databases (see 41 U.S.C. 116 ).

 

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@Don Mansfield - I suppose I meant "data" as defined within the clause (52.227-17) rather than "technical data". 

52.227-17  Data means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

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On 6/25/2021 at 1:44 PM, Misty said:

We are purchasing agile services and agency position is that agile services are always commercial. We are including 52.227-17, Data Rights in Special Works and all source code first produced und

There is no such thing as "agile services." Software development is a service. "Agile" is a method of doing software development. It is not, in and of itself, a service.

I would like to see the agency's argument in support of the notion that all software development services employing agile methods are commercial services.

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@Vern Edwards"I would like to see the agency's argument in support of the notion that all software development services employing agile methods are commercial services." 

Me too. It is definitely something I will attempt to explore deeper when it is a less volatile subject as it directly impacts acquisitions that I am assigned as CO and it is not a welcome discussion at the moment. When the time is right, I will try to separate it from the impact on my current acquisitions and try to explore the agency's position in general terms.

I would love to be able to have a very candid private conversation with someone that has a strong background in contracting, especially with experience contracting for large value information technology services, outside of the chain of command that would not result in unnecessary turmoil. Just professional sounding board type discussions really. I worked with DoD for 20 years and switched to a new agency a little over a year ago (during the Pandemic) in following my husband to Washington DC. Starting during the pandemic, new to DC, I have not had the same opportunity to develop relationships and networks of mentors that I might have in a physical environment. Any recommendations for 1102 networks and mentors in DC?

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