Overview
This section outlines the procedures and clauses that allow the Government to acquire "unlimited rights" to technical data submitted in successful contract proposals, while providing a mechanism for contractors to protect proprietary information.
Key Rules
- Default Rights: By using clause 52.227-23, the Government can obtain unlimited rights to technical data contained within a winning proposal.
- Contractor Exclusion Right: Prospective contractors have the right to specifically identify and list pages of technical data that are to be excluded from this grant of unlimited rights.
- Protective Status: Technical data excluded by the contractor, as well as all commercial and financial information, remains protected under FAR subparts 15.2 or 15.6 (meaning they are used generally for evaluation purposes only).
- Performance Requirements: If the Government requires access to excluded technical data to execute the contract, it must consider acquiring that data with "limited rights" as defined in FAR 27.404-2(c).
Practical Implications
- Contractors must be extremely diligent in identifying and marking proprietary pages in their proposals; failure to list them in the designated section of the clause may result in the loss of trade secret protection.
- The Government must balance its need for proposal data during contract performance against the contractor’s intellectual property rights, often necessitating secondary negotiations for limited rights.