What is considered to be “data”?

Under federal contracts, “data” is specifically defined as recorded information, regardless of form or the media on which it may be recorded. Data includes technical data and computer software. It does not include financial, administrative, cost pricing, or management information used in administering the contract. (FAR 52.227-14)

Data may be defined differently under nonfederal agreements or may not be defined at all.

Who owns the data produced under research agreements?

Under federal contracts, no one “owns” the data. Both the government and the contractor rights to the data are defined. The government uses the terms “limited rights” and “unlimited rights” to define use of the data. In most instances, both the government and the contractor will have unlimited rights to the data produced or developed under the contract.

Nonfederal sponsors may attempt to obtain ownership of the data. Consult with Research Division Special Assistant for Contract Affairs before agreeing to any ownership of data. This question will be handled in negotiating the intellectual property provisions of the contract.

Who owns the data included in Virginia Tech proposals?

Data in proposals is owned by Virginia Tech until a contract is awarded. Then, the terms of federal contracts provide the government will have unlimited rights to the proposal data, except for pages that we negotiate as containing confidential information. Normally, nonfederal agreements don’t deal with rights to proposal data, only with the data produced under the contract.

The following FAR clause is negotiated and will be included in the contract to establish rights to technical data in the proposal:

52.227-23 Rights to Proposal Data (Technical).

RIGHTS TO PROPOSAL DATA (TECHNICAL) (JUN 1987)

Except for data contained on pages _____, it is agreed that as a condition of award of this contract, and notwithstanding the conditions of any notice appearing thereon, the Government shall have unlimited rights (as defined in the Rights in Data -- General clause contained in this contract) in and to the technical data contained in the proposal dated _____, upon which this contract is based.

Can we protect data in the proposals from public disclosure?

Yes.  There is a formal procedure to protect proposal data submitted to the federal government. The government allows you to label any confidential information or sensitive data included in proposals so it can be protected from unauthorized disclosure. The label usually restricts use of the data in proposals for use in evaluation purposes only.

In nonfederal proposals, we include a notice in our cover letter that the proposal is to be used for evaluation purposes only and not to be further disclosed without our agreement. 

In federal contracts, each solicitation will have specific legend requirements. These differ between governmental agencies.  You need to review the solicitation and make sure the proposal is properly marked in accordance with the requirements.

Example: DOE

(e) Restriction on disclosure and use of data. Offerors that include in their proposals data that they do not want disclosed to the public for any purpose, or used by the Government except for evaluation purposes, shall --

(1) Mark the title page with the following legend: This proposal includes data that shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed -- in whole or in part -- for any purpose other than to evaluate this proposal. If, however, a contract is awarded to this offeror as a result of -- or in connection with -- the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit the Government's right to use information contained in this data if it is obtained from another source without restriction. The data subject to this restriction are contained in sheets [insert numbers or other identification of sheets]; and

(2) Mark each sheet of data it wishes to restrict with the following legend: Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.

. . .

PROTECTION OF PROPOSAL DATA – CONTRACT CLAUSE

Is there a difference between the rights Virginia Tech has to the data and the requirements to deliver data to the government?

Yes.  Rights to data and the data delivery requirements are required by different parts of the contract.  Requirements for delivery of data will be found in the contract specifications for “deliverables” and/or in the Statement of Work.  Rights to data are determined by different contract clauses:

Rights to Data

• 52.227-14        Rights in Data –General (Alternate I, II, III, IV, or V)
  
  
• 52.227-15        Representation of Limited Rights Data and Restricted Computer Software
  
  
• 52.227-16        Additional Data Requirements
  
  
• 52.227-17        Rights in Data – Special Works
  
  
• 52.227-18        Rights in Data – Existing Works
  
  
• 52.227-19        Commercial Computer Software – Restricted Rights
  
  
• 52.227-20        Rights in Data – SBIR Program
  
  
• 52.227-23        Rights to Proposal Data (Technical)

What are the different rights to data under government contracts?

Rights in Data clauses define both the rights of the Government and Contractor to data (including computer software) produced or delivered under the contract.

• Unlimited
• Limited
• Restricted

“Data”  -- Recorded information, regardless of the form or the media on which it may be recorded.  This term includes technical data and computer software.   It does not include contract administration type data (financial, administrative, cost or pricing or management information)

“Unlimited Rights” – right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

“Limited Rights Data” --  data (other than computer software) developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged

“Limited Rights” --  rights in limited rights data as defined in clause if alternative is included

“Restricted Computer Software” --  computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is published copyrighted computer software; including minor modifications of such computer software.

“Restricted Rights” --  rights in restricted computer software, including minor modifications of such computer software.

What rights to data do the government and contractor usually get?

The standard clause that is included in contracts to define the rights to data is Rights to Data –General   52.227-14 which provides the following:

• Government—unlimited rights
• Contractor—
  • Use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this, except to extent data are subject to the Federal export control or national security laws or regulations   Note:  less broad that  unlimited rights of Government; no right to prepare derivative works
  • Establish claim to copyright
    • Automatic copyright in scientific and technical articles published in academic, technical or professional journals, symposia proceedings or similar works
    • CO written approval needed for all other copyright except for colleges and universities
  • Withhold delivery of limited rights data and restricted computer software by providing form, fit, and function data in lieu thereof

Alternates:

• Alternate I – alternate meaning for limited rights data (Agency’s choice)
  
  
• Alternate II – Requires delivery of limited rights data  
  
  
• Alternate III -- requires delivery of restricted computer software 
  
  
• Alternate IV – Provides colleges/universities automatic copyright in all data; No CO written approval required to establish copyright. 
  
  
• Alternate V – Inspection of limited rights data or restricted computer software at contractor’s facilities

Can the government obtain any additional rights?

Yes.  The FAR 52.227-16  Additional Data Requirements clause gives the CO the right to order, at anytime during contract performance or within a period of 3 years after acceptance of all items delivered under the contract, any data first produced or specifically used in the performance of the contract.

The government must pay extra for any data ordered under this clause (costs for conversion of data, reproduction, and delivery)

Can the government obtain any special rights to data?

Yes.  The FAR 52.227-17 Rights in Data – Special Works clause is used in contracts that are primarily for the production or compilation of data for the government’s own use.  Examples:  motion pictures; musical compositions; surveys; compilation of reports, books, studies that do not involve research, development or experimental work; computer software programs that may give commercial advantage or are agency sensitive.  This provides:

• No copyright without CO approval
• Government can direct Contractor to assign copyright to the government
• Restricts contractor’s rights to the data; Contractor can release, reproduce, distribute, or publish data without written permission of the CO

The FAR 52.227-18 Rights in Data – Existing Works clause is used when the government is acquiring existing audiovisual or similar works.  Examples:  existing motion pictures, television recordings, musical works.  This clause provides:

• Contractor grants license to government
• Contractor indemnifies government for liability resulting from violation of copyrights, trade secrets, privacy violations or libelous or other unlawful matter contained in the data.

Are there special terms for computer software?

Yes.  The FAR 52.227-19 Commercial Computer Software – Restricted Rights clause is used for the acquisition of existing computer software that is developed at private expense and is a trade secret, commercial or financial and confidential or privileged, or is published and copyrighted.

 This clause establishes the government’s rights to the commercial software such as;

• Use or copy for use in or with computers for which it was acquired
• Backup copies
• Modify, adapt, or combine as long as derivative software is subject to same restrictions as original software
  

Are there special data considerations under the SBIR program?
Yes.  The FAR 52.227-20  Rights in Data – SBIR Program gives special rights in data to small businesses

• May establish copyright to any data produced under contract
• Can protect data from disclosure for 4 years.  Government can only use for Government purposes during this time

 WHAT DO YOU NEED TO KNOW?

1. Is there any confidential information or unique/innovative ideas in the proposal that should be protected?

• Determine whether there is any confidential business information in the proposal
  
  
• Does the proposal contain unique or innovative ideas that should be protected
  
  
• Label with restrictive legend
  
  
• Upon award, check the RIGHTS TO PROPOSAL DATA clause of the contract and identify any proposal information that still needs to be protected with limited rights.  Otherwise, everything in the proposal will be subject to unlimited rights of the Government.

• Identify what data is required to be delivered under the contract
  
  
• Talk to PI about what, if any, copyrighted software or confidential information he/she will be using to perform the work and whether that will be required to be delivered under the contract to satisfy the delivery requirements.
  
  
• Complete the Representation of Limited Rights Data and Restricted Computer Software certification  (see below)

  SOLICITATION PROVISION

    52.227-15 Representation of Limited Rights Data and Restricted Computer Software.
  
      As prescribed in 27.409(g), insert the following provision:
  
  Statement of Limited Rights Data and Restricted Computer Software (May 1999)
  
  (a) This solicitation sets forth the work to be performed if a contract award results, and the Government's known delivery requirements for data (as defined in FAR 27.401). Any resulting contract may also provide the Government the option to order additional data under the Additional Data Requirements clause at 52.227-16 of the FAR, if included in the contract. Any data delivered under the resulting contract will be subject to the Rights in Data-General clause at 52.227-14 that is to be included in this contract. Under the latter clause, a Contractor may withhold from delivery data that qualify as limited rights data or restricted computer software, and deliver form, fit, and function data in lieu thereof. The latter clause also may be used with its Alternates II and/or III to obtain delivery of limited rights data or restricted computer software, marked with limited rights or restricted rights notices, as appropriate. In addition, use of Alternate V with this latter clause provides the Government the right to inspect such data at the Contractor's facility.
  
  (b) As an aid in determining the Government's need to include Alternate II or Alternate III in the clause at 52.227-14, Rights in Data -- General, the offeror shall complete paragraph (c) of this provision to either state that none of the data qualify as limited rights data or restricted computer software, or identify, to the extent feasible, which of the data qualifies as limited rights data or restricted computer software. Any identification of limited rights data or restricted computer software in the offeror's response is not determinative of the status of such data should a contract be awarded to the offeror.
  
  (c) The offeror has reviewed the requirements for the delivery of data or software and states [ offeror check appropriate block ] --
  
  -- None of the data proposed for fulfilling such requirements qualifies as limited rights data or restricted computer software.
  
  -- Data proposed for fulfilling such requirements qualify as limited rights data or restricted computer software and are identified as follows:
  
  --------------------------------------------------------------- ---------------
  
  --------------------------------------------------------------- ---------------
  
  --------------------------------------------------------------- ---------------
  Note: "Limited rights data" and "Restricted computer software" are defined in the contract clause entitled "Rights in Data -- General."
  
  

3.      Is the correct data provision included in the contract?

• Rights in Data General with Alternate IV
  • Alternate II for delivery of limited rights data
  • Alternate III for delivery of restricted computer software
  • Alternate V for inspection at the contractor’s facilities
    
• Additional Data Requirements  (We don’t care if it is not included)
  
• Rights in Data –SBIR for SBIR contracts

4. During course of contract, has limited rights data or restricted computer software been introduced and will be part of the deliverables?

• Provide notification to Contracting Officer
  
• Negotiate Alternatives to Data clause if necessary