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do not data rights pertain [only] to deliverables


bwwolf

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Do not data rights pertain 'only' to deliverables? I'm referring to "data rights" as defined by DFARS 252.227-7013; and to data rights in "non-commercial items." And of course to DoD prime contracts.

1. If I have tech data for which I could validly assert "limited rights" under 252.227-7013 b(3)---is it not true that I do not need to 'assert' those rights if the solicitation/contract does not call for delivery of that tech data??.

In this scenario I am not waiving my rights to tech data which is not to be delivered, correct?

2. A further example, a solicitation for widgets developed entirely at private expense. This solicitation would require me to integrate the widgets into a larger system. Assume there is a distinction between technical data related strictly to the widget--versus--technical data related to integration of the widget into the larger system. This integration-related tech data to be devloped under the contract would be exclusively with government funding so the government will have "unlimited" rights under 252.227-7013 b(1). All of the CDRL's pertain to this integration-related data; none of the CDRL's pertain to widget-only related tech data developed at private expense; and the solicitation does not call for delivery of widget-only technical data.

........Same question: I do not need to assert rights to widget-only technical data since the solicitation/contract does not call for delivery of that technical data? And I am not waiving my rights to widget-only technical data since it's not going to be delivered.

If you understand the limits of my hypotheticals, I would appreciate comments and a sanity-check, thanks, BWW

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Guest Vern Edwards
Do not data rights pertain 'only' to deliverables? I'm referring to "data rights" as defined by DFARS 252.227-7013; and to data rights in "non-commercial items." And of course to DoD prime contracts.

1. If I have tech data for which I could validly assert "limited rights" under 252.227-7013 b(3)---is it not true that I do not need to 'assert' those rights if the solicitation/contract does not call for delivery of that tech data??.

In this scenario I am not waiving my rights to tech data which is not to be delivered, correct?

2. A further example, a solicitation for widgets developed entirely at private expense. This solicitation would require me to integrate the widgets into a larger system. Assume there is a distinction between technical data related strictly to the widget--versus--technical data related to integration of the widget into the larger system. This integration-related tech data to be devloped under the contract would be exclusively with government funding so the government will have "unlimited" rights under 252.227-7013 b(1). All of the CDRL's pertain to this integration-related data; none of the CDRL's pertain to widget-only related tech data developed at private expense; and the solicitation does not call for delivery of widget-only technical data.

........Same question: I do not need to assert rights to widget-only technical data since the solicitation/contract does not call for delivery of that technical data? And I am not waiving my rights to widget-only technical data since it's not going to be delivered.

If you understand the limits of my hypotheticals, I would appreciate comments and a sanity-check, thanks, BWW

The 252.227-7013 clause gives the government "Government purpose," "limited," or "unlimited" rights to "use, modify, reproduce, perform, display, release, or disclose technical data in whole or in part, in any manner, for any purpose whatsoever, and to extend those rights to others" depending on the source of the data. The clause does not limit the government's rights to data that have been delivered. However, it seems obvious that the government can exercise the enumerated rights only with respect to data that it possesses, and the clause does not require the contractor to deliver any data. So if the government doesn't have the data, the government cannot do anything with it, whether or it not it has the right to do something with it. Absent some clause that requires you to deliver data that were not identified in the contract upon government demand, e.g., the deferred ordering clause, you should have no worries.

Should you stipulate restrictions on use for data that were not specified for delivery? Oh, boy. I'm not going there, and you shouldn't rely on what I said if I did. Ask your intellectual property attorney.

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Should you stipulate restrictions on use for data that were not specified for delivery? Oh, boy. I'm not going there, and you shouldn't rely on what I said if I did. Ask your intellectual property attorney.

I was just thinking of the same thing. To be safe, I would include a notification in my proposal or in some other document that I own the data. Who knows what might accidently happen down the road. For example, the government could innocently ask for a user manual. That manual might contain information harmful to the contractor if disclosed for used for some unauthorized purpose.

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Thanks to both.

Vern, please let me ask if there is a missing "not" in your second sentence: "The clause does not limit the government's rights to data that have [not???] been delivered."

And good point about 'deferred delivery' lurking in the background. Another good point on the user's manual, I don't think we'd provide information in theuser's manual that would be that sensitive....but what about meetings, reviews, technical interchange meetings, etc, etc<--Thanks for the reminder, thanks, BWW

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Guest Vern Edwards

bw:

I wrote: "The clause does not limit the government's rights to data that have been delivered." I meant that. The clause gives the government rights in data of particular descriptions. It does not say that the government gets those rights only if the data have been delivered. I think the government gets rights in any of the described data, whether those data have been delivered or not. For example, the government gets unlimited rights in technical data "Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data)." If the contractor has data of that description, then the government has rights in those data.

But if the government has not purchased the delivery of those data, then its unlimited rights are worthless unless it can get possession of the data. The clause does not say that the contractor has to deliver any data. The requirement for delivery should be specified elsewhere in the contract, in the Contract Data Requirements List. So I think that the government might have the right to use, disclose, etc., data that have not been delivered and that it does not possess. The question is, how if at all can the government compel or persuade the contractor to deliver the data?

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  • 1 month later...
bw:

I wrote: "The clause does not limit the government's rights to data that have been delivered." I meant that. The clause gives the government rights in data of particular descriptions. It does not say that the government gets those rights only if the data have been delivered. I think the government gets rights in any of the described data, whether those data have been delivered or not. For example, the government gets unlimited rights in technical data "Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data)." If the contractor has data of that description, then the government has rights in those data.

But if the government has not purchased the delivery of those data, then its unlimited rights are worthless unless it can get possession of the data. The clause does not say that the contractor has to deliver any data. The requirement for delivery should be specified elsewhere in the contract, in the Contract Data Requirements List. So I think that the government might have the right to use, disclose, etc., data that have not been delivered and that it does not possess. The question is, how if at all can the government compel or persuade the contractor to deliver the data?

All, as a caveat, I am on the other side, I am a contract specialist for the government. I have the current contractor working on a government task order for engineering services under a ID/IQ. The task order is up for recompete. The twist comes when the contractor has gathered data, (not a specified deliverable), that was requested after the fact by the government, (but never identified in writing). Now the contractor says they have all the rights to the data, which gives them a definite advantage for future efforts. However, since the data was collected through the use of this task order, on government time, money, and resources, does not the government own this data regardless of whether it was a spelled-out deliverable?

Thank you for any help?Steve

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