Overview
FAR 27.408 provides Contracting Officers with the flexibility to negotiate less than "unlimited rights" in data for research and development projects where both the Government and the contractor contribute substantial resources. It establishes guidelines for balancing the contractor's proprietary interests with the Government’s need for data when costs and contributions are shared.
Key Rules
- Substantial Contribution Guideline: While no specific clause is prescribed, a tailored clause providing less than unlimited rights is generally appropriate when the contractor contributes approximately 50% of the total costs (including money, resources, or repayment of nonrecurring costs).
- Segregability of Contributions:
- Non-segregable: If the Government’s and contractor’s contributions cannot be separated, the Contracting Officer may tailor a clause to limit the acquisition of rights, provided it covers "Governmental purposes" and reprocurement rights.
- Segregable: If contributions are clearly separable by performance and funding, the data may be treated as "limited rights data" or "restricted computer software."
- Minimum Government Rights: Any negotiated license must, at a minimum, ensure the data can be used for agreed-upon Governmental purposes and address necessary disclosure restrictions.
- Public Interest Exception: Tailored clauses limiting Government rights are not appropriate if the primary purpose of the contract is public dissemination of data or the development of technology intended for general public use.
- Licensing Authority: The Government may require the contractor to license the data to third parties if necessary to achieve the contract's objectives.
Practical Implications
- Negotiation Flexibility: This section allows for significant "tailoring" of data rights clauses, providing a mechanism for public-private partnerships and cost-sharing arrangements that do not fit the standard "unlimited rights" model.
- Strategic Accounting: Contractors should meticulously document and segregate their contributions to specific work elements to maintain higher levels of protection (Limited Rights) for their proprietary data.