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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS
Subtitle B--Amendments to General Contracting Authorities, Procedures, and Limitations
P. L. 112-81
House Conference Report 112-329
SEC. 815. RIGHTS IN TECHNICAL DATA AND VALIDATION OF PROPRIETARY DATA RESTRICTIONS.
(a) Rights in Technical Data- Section 2320 of title 10, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (2)(D)(i)--
(i) in subclause (I), by striking `or' at the end;
(ii) by redesignating subclause (II) as subclause (III); and
(iii) by inserting after subclause (I) the following new subclause (II):
`(II) is necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; or';
(B) in paragraph (2)(E), by striking `and shall be based' and all that follows through `such rights shall' and inserting `. The United States shall have government purpose rights in such technical data, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such regulations, that negotiation of different rights in such technical data would be in the best interest of the United States. The establishment of any such negotiated rights shall'; and
(C) in paragraph (3), by striking `for the purposes of paragraph (2)(B), but shall be considered to be Federal funds for the purposes of paragraph (2)(A)' and inserting `for the purposes of the definitions under this paragraph'; and
(2) in subsection (b)--
(A) in paragraph (7), by striking `and' at the end;
(B) in paragraph (8), by striking the period and inserting a semicolon; and
(C) by adding at the end the following new paragraphs:
`(9) providing that, in addition to technical data that is already subject to a contract delivery requirement, the United States may require at any time the delivery of technical data that has been generated or utilized in the performance of a contract, and compensate the contractor only for reasonable costs incurred for having converted and delivered the data in the required form, upon a determination that--
`(A) the technical data is needed for the purpose of reprocurement, sustainment, modification, or upgrade (including through competitive means) of a major system or subsystem thereof, a weapon system or subsystem thereof, or any noncommercial item or process; and
`(B) the technical data--
`(i) pertains to an item or process developed in whole or in part with Federal funds; or
`(ii) is necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; and
`(10) providing that the United States is not foreclosed from requiring the delivery of the technical data by a failure to challenge, in accordance with the requirements of section 2321(d) of this title, the contractor's assertion of a use or release restriction on the technical data.'.
(b) Validation of Proprietary Data Restrictions- Section 2321(d)(2) of such title is amended--
(1) in subparagraph (A)--
(A) in the matter preceding clause (i), by striking `Except as provided in subparagraph (C)' and all that follows through `three-year period' and inserting `A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under paragraph (1) after the end of the six-year period';
(B) in clause (ii), by striking `or' at the end;
(C) in clause (iii) by striking the period and inserting `; or'; and
(D) by adding at the end the following new clause:
`(iv) are the subject of a fraudulently asserted use or release restriction.';
(2) in subparagraph (B), by striking `three-year period' each place it appears and inserting `six-year period'; and
(3) by striking subparagraph (C).
(c) Effective Date-
(1) IN GENERAL- Except as provided in paragraph (2), the amendments made by this section shall take effect on the date of the enactment of this Act.
(2) EXCEPTION- The amendment made by subsection (a)(1)(C) shall take effect on January 7, 2011, immediately after the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383), to which such amendment relates.
Rights in technical data and validation
of proprietary data restrictions (sec. 815)
The Senate amendment contained a provision (sec. 841) that would clarify the treatment of independent research and development and bid and proposal costs for purposes of section 2320 of title 10, United States Code, governing rights in technical data.
The House bill contained no similar provision.
The House recedes with an amendment that would clarify the circumstances in which the United States has government-purpose rights in technical data and the extent to which the United States may require the delivery of technical data to which it already has rights, but the delivery of which was not required in the contract.
Treatment for technical data purposes of
independent research and development and bid and proposal costs
The committee recommends a provision that would clarify the treatment of independent research and development (IR&D) and bid and proposal (B&P) costs for the purposes of section 2320 of title 10, United States Code, governing rights in technical data. The provision recommended by the committee would ensure government-purpose rights (the right to use the data to ensure competition for future government purchases) in technical data for an item or process that is developed through the expenditure of IR&D and B&P costs in the case of: (1) an item or process for which the contractor contributed less than 10 percent of the cost of development; or (2) an item or process that is integrated into a major system and either: (a) cannot be segregated from the system as a whole; or (b) was developed predominantly at government expense.
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