DOD’s Extraction of Data Rights in Competitive Procurements
The Department of Defense frequently obtains greater data rights for defense items it procures than it is entitled to based on actual funding of the development – i.e., limited rights (development privately funded), government purpose rights (mixed funding), and unlimited rights (development funded by the government). The author of this article explains how this happens.
When the Department of Defense (“DOD”) procures defense items that require substantial investment to design, test, and manufacture, it often seeks to acquire, along with these products, the contractor’s technical data package (“TDP”) used to build the product. Complete TDPs can facilitate effective competition – perhaps by neutralizing an otherwise daunting incumbent’s advantage – when the products are up for rebid a few years later. But in seeking TDPs – and rights in technical data and computer software (collectively “data”) generally – the DOD is prohibited from requiring a contractor, as a condition of obtaining a contract, to relinquish greater rights in data deliverables than the DOD is otherwise entitled to obtain based on who funded the development of the data.
Notwithstanding this prohibition, the DOD frequently obtains greater data rights than it is entitled to based on actual funding of the development – i.e., limited rights (development privately funded), government purpose rights (mixed funding), and unlimited rights (development funded by the government). How does this happen?
To read the full article, please click here.
“DOD’s Extraction of Data Rights in Competitive Procurements,” by Scott Arnold was published in the September 2020 edition of Pratt’s Government Contracting Law Report (Vol. 6, No. 9), an A.S. Pratt Publication, LexisNexis. Reprinted with permission.
This article was first published in Blank Rome’s Government Contracts Navigator blog on June 10, 2020.