Overview
FAR 27.409 prescribes the specific solicitation provisions and contract clauses that govern the Government's rights in data, providing a framework for selecting the appropriate language based on the type of work, the entity performing it, and the nature of the data involved. It ensures that the Government acquires necessary rights while protecting contractor interests through a series of "General" clause alternates and specialized clauses for research, software, and major systems.
Key Rules
- The "General" Clause: FAR 52.227-14 (Rights in Data—General) is the default clause for most contracts where data is produced or acquired, unless specific exceptions (like SBIR or Special Works) apply.
- Alternates and Modifications:
- Alternate I: Used for a specific definition of "Limited Rights Data."
- Alternate II & III: Used to obtain "Limited Rights Data" or "Restricted Computer Software" respectively.
- Alternate IV: Specifically for university-led basic/applied research, allowing contractors to assert copyright without prior permission.
- Alternate V: Provides the Government the right to inspect data at the contractor’s facility.
- Representation Requirements: Provision 52.227-15 requires offerors to state upfront if they intend to use limited rights data or restricted computer software to meet contract requirements.
- Specialized Clauses:
- 52.227-17 (Special Works): Used when the Government needs to limit distribution or when the work is primarily for the Government's internal use (e.g., training videos).
- 52.227-20 (SBIR): Mandatory for all phases of the Small Business Innovation Research program.
- 52.227-23 (Proposal Data): Required if the Government wants to acquire unlimited rights in technical data specifically contained within a winning proposal.
- Single Clause Rule: Generally, a contract should contain only one data rights clause; if more than one is used, the contract must clearly define which portion of the work each clause governs.
Practical Implications
- Pre-Award Due Diligence: Contractors must be vigilant in responding to provision 52.227-15, as failing to identify proprietary data or restricted software during the proposal stage can lead to disputes or the loss of intellectual property protections during performance.
- Major Systems Complexity: Acquisitions involving "Major Systems" require additional technical data declarations and withholding-of-payment clauses (52.227-21), significantly increasing the administrative burden on the contractor to validate and deliver technical data packages.