Sec. 861 — Reform of technical data and software rights to support competition, sustainment, and readiness

Statutory text

(a) Default government purpose rights for deliverables. Chapter 239 of title 10, United States Code, is amended by inserting after section 3775 the following new section:3776.Default government purpose rights for deliverables under Department of Defense contracts

(a) Default rights. Except as provided in subsection (b), any technical data, computer software, or computer software documentation delivered under a contract, subcontract, or other agreement entered into by the Department of Defense shall be provided with government purpose rights unless the contractor establishes, through clear and convincing evidence, entitlement to more restrictive rights.

(b) Contractor burden. A contractor asserting less-than-government purpose rights shall provide—(1)a compliant assertions table identifying each specific item of data or software claimed;(2)factual documentation of private development funding;(3)clause-specific unlimited-rights exclusions applied at the lowest practicable segregable level; and(4)corresponding portion markings on the deliverables.

(c) Failure to substantiate. Any failure by a contractor to comply with subsection (b) shall result in the deliverable being treated as provided with government purpose rights..

(b) Improper markings of critical items. For any critical readiness items of supply (as that term is defined in section 4324

(d) (4) of title 10, United States Code) that are noncommercial items, if the Secretary of Defense determines that a contractor—(1)applied an incorrect restrictive marking;(2)failed to exclude unlimited- or unrestricted-rights categories;(3)failed to portion-mark at the required segregable level; or(4)submitted an incomplete or invalid assertions table;then all affected technical data, computer software, and documentation shall be deemed as government purpose rights.

(c) Report on clawback authorities for improper restrictive markingsNot later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees a report assessing the feasibility and advisability of establishing a mechanism to recover excess payments made by the Department of Defense in cases where improper restrictive markings, invalid assertions tables, or other unjustified restrictions on technical data, computer software, or computer software documentation contributed to reduced competition or sole-source procurement conditions. The report shall include—(1)an assessment of the extent to which improper restrictions on technical data or software rights may have resulted in excess costs to the Department;(2)an evaluation of existing authorities available to recover such excess payments;(3)an assessment of the legal, contractual, and evidentiary challenges associated with establishing a clawback mechanism;(4)options for calculating excess payments attributable to improper restrictions on technical data or software rights; and(5)recommendations regarding whether Congress should authorize a clawback mechanism and, if so, the structure of such authority.

(d) Modifications to rights in technical data. Section 3771(b) of title 10, United States Code, is amended—(1)in paragraph

(3) (C), by inserting , and for which the United States shall have government purpose rights, unless the Government and the contractor negotiate different license rights after component); and(2)in paragraph

(4) (A)—(A)in clause (ii), by striking ; or and inserting a semicolon;(B)by redesignating clause (iii) as clause (iv); and(C)by inserting after clause (ii) the following new clause:(iii)is a release, disclosure, or use of detailed manufacturing or process data—(I)that is necessary for operation, maintenance, installation, or training and shall be used only for operation, maintenance, installation, or training purposes supporting wartime operations or contingency operations; and(II)for which the head of an agency determines that the original supplier of such data will be unable to satisfy military readiness or operational requirements for such operations; or.

(e) Applicability. This section and the amendments made by this section shall apply—(1)in competitive procurements, to solicitations issued after the date of the enactment of this Act and awards made in connection with such solicitations; and(2)in non-competitive procurements, to awards made after the date of the enactment of this Act.