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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle G — Provisions Relating to Software and Technical Data Matters

P. L. 115-

House Conference Report. 115-874

(a) Exercise Of Rights In Technical Data Before Final Disposition Of A Challenge.—Section 2321(i) of title 10, United States Code, is amended—

(1) in the subsection heading, by inserting “Prior To And” after “Rights And Liability”;

(2) by redesignating paragraphs (1) and (2) as paragraphs (2) and (3), respectively; and

(3) by inserting before paragraph (2), as so redesignated, the following new paragraph:


“(1) Upon filing of a suit or appeal under the contract dispute statute by a contractor or subcontractor in an agency Board of Contract Appeals or United States Claims Court related to a decision made by a contracting officer under subsection (g), the Secretary of Defense, or a Secretary of a military department for programs for which milestone decision authority has been delegated, on a nondelegable basis, may, following notice to the contractor or subcontractor, authorize use of the technical data in dispute if the Secretary determines in writing that compelling mission readiness requirements will not permit awaiting the final decision by the agency Board of Contract Appeals or the United States Claims Court.”.

(b) Revision Of The Defense Federal Acquisition Regulation Supplement.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement, by interim or final rule, to implement the amendments made by subsection (a).

(c) Effective Date.—The amendments made by subsection (a) and the revision required by subsection (b) shall become effective on the date of publication of the interim or final rule (whichever is earlier) required by subsection (b) and shall apply to solicitations issued by Department of Defense contracting activities after that date unless the senior procurement executive of the agency concerned grants a waiver on a case-by-case basis.

(d) Guidance On Technical Data Right Negotiation.—The Secretary of Defense shall develop policies on the negotiation of technical data rights for noncommercial software that reflects the Department of Defense’s needs for technical data rights in the event of a protest or replacement of incumbent contractor to meet defense requirements in the most cost effective manner.

The Senate amendment contained a provision (sec. 812) that would amend section 2321(i) of title 10, United States Code, to clarify that the government may continue to exercise rights in technical data and noncommercial computer software during the course of a challenge with an incumbent contractor under section 2321(d) of title 10, United States Code, or under procedures established by the Department of Defense, to meet Department of Defense mission requirements and readiness needs during the course of the challenge.

The House bill contained no similar provision.

The House recedes with an amendment that would clarify the circumstances in which the Secretary of Defense or a service secretary, for programs for which milestone decision authority has been delegated, may authorize use of technical data in dispute by issuing notice and a written determination that compelling mission readiness requirements will not permit awaiting the final decision.