[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR27.406]

[Page 523-525]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 27--PATENTS, DATA, AND COPYRIGHTS--Table of Contents
 
               Subpart 27.4--Rights in Data and Copyrights
 
Sec. 27.406  Acquisition of data.

    (a) General. (1) It is the Government's practice to determine, to 
the extent feasible, its data requirements in time for inclusion in 
solicitations. The data requirements may be subject to revision during 
contract negotiations. Since the preparation, reformatting, maintenance 
and updating, cataloging, and storage of data represents an expense to 
both the Government and the contractor, efforts should be made to keep 
the contract data requirements to a minimum, consistent with the 
purposes of the contract.
    (2) To the extent feasible, all known data requirements, including 
the time and place for delivery and any limitations and restrictions to 
be imposed on the contractor in the handling of the data, shall be 
specified in the contract. Further, and to the extent feasible, in major 
system acquisitions, data requirements shall be set out as separate 
contract line items. In establishing the contract data requirements and 
in specifying data items to be delivered by a contractor, agencies may, 
consistent with subparagraph (a)(1) of this section, develop their own 
contract schedule provisions in agency procedures (including data 
requirements lists) for listing, specifying, identifying source, 
assuring delivery, and handling any data required to be delivered, first 
produced, or specifically used in the performance of the contract.
    (3) Data delivery requirements should normally not require that a 
contractor provide the Government, as a condition of the procurement, 
unlimited rights in data that qualify as limited rights data or 
restricted computer software. Rather, form, fit, and function data may 
be furnished with unlimited rights in lieu of the qualifying data, or 
the qualifying data may be furnished with limited rights or restricted 
rights if needed (see 27.404 (d) and (e)). If greater rights are needed 
such need should be clearly set forth in the solicitation and the 
contractor fairly compensated for such greater rights.
    (b) Additional data requirements. (1) Recognizing that in some 
contracting situations, such as experimental, developmental, research, 
or demonstration contracts, it may not be feasible to ascertain all the 
data requirements at the time of contracting, the clause at 52.227-16, 
Additional Data Requirements, may be used to enable the subsequent 
ordering by the contracting officer of additional data first produced or 
specifically used in the performance of such contracts as the actual 
requirements become known. The clause shall normally be used in 
solicitations and contracts involving experimental, developmental, 
research or demonstration work (other than basic or applied research to 
be performed under a contract solely by a university or college when the 
contract amount will be $500,000 or less) unless all the requirements 
for data are believed to be known at the time of contracting and 
specified in the contract. If the contract is for basic or applied 
research to be performed by a university or college, and the contracting 
officer believes the contract effort will in the future exceed $500,000, 
even though the initial award does not, the contracting officer may 
include the clause in the initial award.
    (2) Data may be ordered under the clause at 52.227-16, Additional 
Data Requirements, at any time during contract performance or within a 
period of 3 years after acceptance of all items to be delivered under 
the contract. The contractor is to be compensated for converting the 
data into the prescribed

[[Page 524]]

form, for reproduction, and for delivery. In order to minimize storage 
costs for the retention of data, the contractor may be relieved of 
retention requirements for specified data items by the contracting 
officer at any time during the retention period required by the clause. 
The contracting officer may permit the contractor to identify and 
specify in the contract data not to be ordered for delivery under the 
Additional Data Requirements clause if such data is not necessary to 
meet the Government's requirements for data. Also, the contracting 
officer may alter the Additional Data Requirements clause by deleting 
the term or specifically used in paragraph (a) thereof if delivery of 
such data is not necessary to meet the Government's requirements for 
data. Any data ordered under this clause will be subject to the Rights 
in Data--General clause (or other equivalent clause setting forth the 
respective rights of the Government and the contractor) in the contract, 
and data authorized to be withheld under such clause will not be 
required to be delivered under the Additional Data Requirements clause, 
except as provided in Alternate II or Alternate III, if included in the 
clause (see 27.404 (d) and (e)).
    (3) Agencies not having an established program for dissemination of 
computer software shall give consideration to not ordering additional 
computer software under the clause at 52.227-16, Additional Data 
Requirements, for the sole purpose of disseminating or marketing of the 
software to the public especially if this will provide the contractor 
additional incentive to make improvements to the software at its own 
expense and disseminate or market it. This should not preclude an agency 
from including a summary description of computer software available from 
a contractor in any data dissemination programs which it operates, with 
a statement as to how the potential user can obtain it through the 
contractor, licensee, or assignee. In cases where the contracting 
officer orders software for internal purposes, consideration shall be 
given, consistent with the Government's needs, to not ordering 
particular source codes, algorithms, processes, formulae or flow charts 
of the software if the contractor shows that this aids its efforts to 
disseminate or market the software.
    (c) Acceptance of data. As required by 41 U.S.C. 418a(d)(7), 
acceptability of technical data delivered under a contract shall be in 
accordance with the appropriate contract clause as required by subpart 
46.3, and the clause at 52.227-21, Technical Data Declaration, Revision, 
and Withholding of Payment--Major Systems, when it is included in the 
contract. (See paragraph (d) of this section.)
    (d) Major system acquisition. (1) In order to assure that technical 
data needed to support a major system acquisition are timely delivered 
and are complete, accurate, and satisfy the requirements of the contract 
concerning the data, the clause at 52.227-21, Technical Data 
Declaration, Revision, and Withholding of Payment--Major Systems, is to 
be included in contracts for or in support of a major system (as the 
term major system is defined in section 4 of the Office of Federal 
Procurement Policy Act, as amended by Pub. L. 98-577), including every 
detailed design, development, or production contract for a major system 
acquisition and contracts for any individual part, component, 
subassembly, assembly, or subsystem integral to the major system, and 
other property which may be replaced during the service life of the 
system, and including spare parts and replenishment spare parts.
    (2) The clause at 52.227-21, Technical Data, Declaration, Revision, 
and Withholding of Payment--Major Systems, requires the contractor, upon 
delivery of any technical data made subject to the clause in the 
contract, to declare that to the best of its knowledge and belief, such 
data are complete, accurate, and comply with contract requirements. It 
also provides for corrections of any deficiencies in the data, as well 
as for the ability of the contracting officer to request revisions of 
the data to reflect engineering design changes made during performance 
of the contract and affecting form, fit, and function of the items the 
data depict. Further included is the authority for the contracting 
officer to withhold payment under the contract to assure timely delivery 
of the technical data

[[Page 525]]

and/or assure correction if the technical data are not complete, 
accurate, and in compliance with contract requirements.
    (3) When the clause at 52.227-21, Technical Data, Declaration, 
Revision and Withholding of Payment--Major Systems, is used, the section 
of the contract specifying data delivery requirements (see subparagraph 
(a)(2) of this section) shall expressly identify those line items of 
technical data to which the clause applies. Upon delivery of such 
technical data, the contracting officer or designee shall review the 
technical data and the contractor's declaration relating thereto to 
assure that the data are complete, accurate, and comply with contract 
requirements. If not, the contractor is to be requested to correct the 
deficiencies, and payment may be withheld until such is done. Final 
payment should not be made under the contract until it has been 
determined that the delivery requirements of those line items of data to 
which the clause applies have been satisfactorily met.
    (4) In a contract for or in support of a major system awarded by a 
civilian agency other than NASA or the U.S. Coast Guard the contracting 
officer shall include contractual provisions requiring, as an element of 
performance under the contract, the delivery of any technical data, 
other than computer software, relating to the major system or supplies 
for the major system procured or to be procured by the Government, which 
are to be developed exclusively with Federal funds in the performance of 
the contract if the delivery of such technical data is needed to ensure 
the competitive acquisition of supplies or services that will be 
required in substantial quantities in the future. The clause at 52.227-
22, Major System--Minimum Rights, is to be included in such contracts in 
addition to the clause at 52.227-14, Rights in Data--General, and other 
required clauses, to ensure that the Government acquires at least those 
rights required by Pub. L. 98-577 in technical data developed 
exclusively with Federal funds. In any contract to which this 
subparagraph (d)(4) applies, technical data, other than computer 
software, relating to a major system or supplies for a major system, 
procured or to be procured by the Government and also relating to the 
design, development, or manufacture of products or processes offered or 
to be offered for sale to the public (except for such data as may be 
necessary for the Government to operate or maintain the product, or use 
the process if obtained by the United States as an element of 
performance under the contract), shall not be required to be provided to 
the Government from persons who have developed such products or 
processes as a condition for the procurement of such products or 
processes by the Government.

[52 FR 18140, May 13, 1987, as amended at 62 FR 236, Jan. 2, 1997]