Arguably, the proper acquisition of technical data and computer software rights by the governmenta hybrid of the ip concepts of trade secrets and sis one of the most complicated subjects in federal procurement law. Dpc is responsible for all pricing, contracting, and procurement policy matters, including ebusiness, in the department of defense dod. Part iii examines the current dfars provisions governing rights in software. The department of defense is actively pursuing other transactions ots instead of procurement contracts. In addition, the report found that dods sps acquisition strategy limited dods rights to modify and maintain the software, and there were no standard policies in place for using the system. Require suppliers to provide access to source code, software frameworks, and development toolchains, with appropriate intellectual property ip rights, for all dodspecific code, enabling the dod to perform full security testing and rebuilding of binaries from the source. Procurements under an existing multiple award contract are becoming much more common. This allows dod and its contractors to avoid many of the most burdensome aspects of. Defense procurement overview of the fy 2020 national defense.
Government software acquisition policies dfars and. Lord, dod s undersecretary for acquisition and sustainment said the program will be the most transformational acquisition policy change the department has seen in decades. The policy establishes an intellectual property group that will develop dod guidance, training and assistance as part of the governments effort to address protection of data rights. Dod finally issues proposed rule addressing 2012 ndaa. Two common categories for software under law, and therefore with licenses which grant the licensee specific rights, are proprietary software and free and opensource software foss. In practice, nearly all open source software is released under one of a very few licenses that are known to meet this definition. Pentagon issues new procurement guidelines and adds hurdles to sole source awards by nooree lee and covington team on september 5, 2014 posted in procurement policy on august 21, 2014, the undersecretary of defense for acquisition, technology and logistics issued a memorandum titled actions to improve department of defense competition. Offerors shall not be required, as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish to the government any. Dods policies, procedures, and practices for information. This paper examines the current dfars software ip rights scheme and provides a roadmap for further reform. This dilemma is not necessarily due to any ambiguities that may exist in such regulations. Title to cost reimbursable line items on fixed price contracts is the same as title under a cost contract. Foreword under secretary of defense for acquisition and. There are a variety of contract types each with its own pluses and minuses.
All software procurement programs should start small, be iterative, and build on success. The defense department procurement process can be confusing and complicated. Dfas esolutions gpc program helps to develop and maintain an interface for automated receipt, processing of gpc invoices, and automated posting of obligations in accordance with electronic data interchange edi ansi x12 standards. Only those companies with a multiple award contract can compete for the task orders and task. This article is a guide to everything there is to know about chess and the latest developments in the procurement tools housed within chess. The standard license in computer software documentation conveys unlimited rights. A collection of tools and services to help you and your organization manage, enable, and share procurement information across the department of defense. Intellectual property rules in government contracts.
Dcma has published dcma guidebook for government contract property administration. Congress and dod should refactor statutes, regulations, and processes for software, enabling rapid deployment and continuous improvement of software to the field and providing increased insight to reduce the risk of slow, costly, and overgrown programs. Acting principal director, defense pricing and contracting. Secondly, in the event that the defense department chooses to adopt a data rights procurement policy diierent from that found in the data rights provisions of the proposed far, this report recommends that the dod adopt a separate rights in software clause for software acquisitions. Much like the game, the us armys computer hardware, enterprise software and solutions chess fathoms many a seasoned contractor. Dec 23, 2019 cybersecurity, supply chain risks, data rights, software acquisitions, and cost or pricing data are among the procurement related issues targeted in the fiscal year fy 2020 national defense. Kim herrington currently serves as the acting principal director, defense pricing and contracting dpc, in the office of the secretary of defense osd, u. Defense finance accounting service contractorsvendors. Jul 31, 2019 how to handle intellectual property rights in ots. What every company should know about ip rights when. Dpap wants to encourage companies to do business with dod. Frequently asked questions regarding open source software oss and the department of defense dod this page is an educational resource for government employees and government contractors to understand the policies and legal issues relating to the use of open source software oss in the department of defense dod. But it also allows for even more confusion than usual about how to handle intellectual property rights, particularly rights in technical data and computer software, because there are no standard ip clauses for ots.
Transformational change comes to dod acquisition policy u. Below is a summary of the 2018 ndaa provisions affecting ip rights and the. Us government software acquisition policies dfars and. While the defense federal acquisition regulation supplement has long. The department of defense dod procurement process is the backbone for developing dod military capability. To make it easier for companies to understand how to engage in the business process with dod, dpap is pleased to offer an introductory overview for companies based in the united states as well as a guide for foreign companies.
This report 1986 recommends regulatory strategies for addressing difficulties the dod has experienced with respect to legal issues related to software acquisitions. Doing business with the department of defense dod u. The department of defense is actively pursuing other transactions ots instead of procurement. Defense innovation board ten commandments of software. Proposal for a new rights in software clause for software acquisitions by the department of defense september 1986 technical report pam samuelson, kevin m. Part ii analyzes the history of software development and the historical regulations governing dods procurement of software. Dod enterprise software initiative esi best value toolkit dod experimentation guidebook dod government charge card guidebook for establishing and managing purchase, travel, and fuel card programs. The procurement division ensures that products and services that are procured meet or exceed the customers requirements, are obtained at a fair and reasonable price using the best acquisition strategy, and the procurement instruments and procedures utilized are fully compliant with all federal and department of defense procurement laws, regulations, and policies. Lord, dods undersecretary for acquisition and sustainment said the program will be the most transformational acquisition policy change the department has seen in. This article focusses on procurement of services and software through chess. Unlimited rights means the government has the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, publicly perform and display the material in any manner and for any purpose it. Government software acquisition policies dfars and data rights vicki e.
Oct 23, 2017 congress should not effectively close dod to any software option that might better serve taxpayers. The department of defense dod and open source software. On june 16, 2016, the department of defense dod issued a proposed rule to implement section 815 of the national defense authorization act for fiscal year 2012, which was originally enacted in december 2011. Data is either noncommercial military or commercial technical data recorded information, regardless of the form or method of recording, of a scientific or technical nature, e.
Most of the issues in the field are about software, defense procurement expert and industry consultant jonathan etherton told national defense. Allums, office of the general counsel defense information systems agency disa department of defense 703 6810378 vicki. Pentagon issues new procurement guidelines and adds. Dods policies, procedures, and practices for information security management of covered systems visit us at. Defense acquisition university, cle 068 data rights and intellectual property. A new approach to dod software development and acquisition. Dod and open source software 1 introduction with tight budgets, aggressive schedules, and a pressing need to adapt quickly to meet changing business conditions, organizations throughout the u. These licenses include the mit license, revised bsd license and its 2clause variant, the apache 2.
Transformational change comes to dod acquisition policy. This data can include proposal, source selection, software, management. Defense procurement overview of the fy 2020 national. Establish one or more new acquisition pathways for software that prioritize continuous integration and delivery of working. Under the proposed rule, dod would be given additional flexibility to release technical data or computer software to third parties including. Combat material without demil or other dod authorization flight safety critical aircraft parts and critical safety items unless meeting the provisions of 10233. For contracts that do not require the development, use, or delivery of items. Most distributed software can be categorized according to its license type see table. Department of defense dod see the appeal of the open source model. Among other things, the report urges the dod to immediately. Dod policy is to acquire only the td and cs, and the data rights in tdcs, necessary to satisfy dod needs dfars 227. Gpr is essentially a middle path unique to defense contracts that offers a. Government software acquisition policies dfars and data. The gpc provides on the spot purchasing, receiving, and payment authority for individuals other than contracting or purchasing officers.
Department of defense dod sustainable product purchasing summary the departments vision of sustainability is to maintain the ability to operate into the future without decline either in the mission or in the natural and manufactured systems that support it. When contracting with a dod entity, the government receives unlimited rights in technical data and computer software developed exclusively with government funds or that is preexisting intellectual property delivered to the government without the appropriate restrictions. Where applicable, the definitions are taken from federal acquisition regulation far or defense. Data rights for proprietary software used in dod programs. Dod finally issues proposed rule addressing 2012 ndaa changes. On may 22, 20, the department of defense revised the defense federal acquisition regulation supplement dfars to allow the dod to disclose a contractors proprietary limited rights technical data and restricted rights software to certain other contractors providing support to the dod. General of the department of defense, the defense agencies, the dod field activities, and all other organizational entities within the dod referred to collectively in this issuance as the dod components. Provides a practical cradletograve approach to acquiring technical.
Under the proposed rule, dod would be given additional flexibility to release technical data or computer software to third parties. The basic rights granted to the government in computer software come in two categories. Dod adopts final rules that may allow project management. This allows dod and its contractors to avoid many of the most burdensome aspects of the procurement regulations. Data rights do not concern contractors rights to use the data.
Microsoft could score billions under recent dod deals fedscoop. The standard license rights in computer software that a licensor grants to the government are unlimited rights, government purpose rights, or restricted rights. The fiveyear contract will provide microsoft product engineering services for software developers and product teams to leverage a range of proprietary. For acquisitions involving major weapon systems and subsystems of major weapon systems, see the additional requirements at dfars 207. Rights in computer software under federal goverment contracts. Multiple award contracts mac such as gsa schedules, navy seaporte, and air force netcents ii involve companies obtaining a contract and then compete for task orders. The regulations can be daunting since they seem to be the size of the tax code. What every company should know about ip rights when selling. Offerors shall not be required, as a condition of being responsive to a. Cap can not be used on a different contract unless it is.
Acquisition excellence through leadership with integrity. Procurement reports and data files for download summary webpage containing historial data on u. Computer software cs includes executable code, source code, code listings, design details, processes, flow charts, and related material. Jul 12, 2016 on june 16, 2016, the department of defense dod issued a proposed rule to implement section 815 of the national defense authorization act for fiscal year 2012, which was originally enacted in december 2011. Intermediate government furnished property for contracting. A guide to software and services procurement ezgovopps. Provides a practical cradletograve approach to acquiring technical data and computer software rights. The distinct conceptual difference between the two is the. A commercial offthe shelf cots item is one that is sold, leased, or licensed to the general public. When technical data rights laws were written in 1995, he said, software was not a big issue. However, many tabs on this page were not captured in the archiving proces. Oppose ndaa it procurement provisions council for citizens. Apr 16, 2020 a long time ago in a galaxy far, far away, the department of defense dod and industry came together after more than seven years of discussions and created a rational, logical, and fair constellation of regulations and laws governing the dods and contractors rights in technical data and computer software. A government purpose rights license means the rights to use, modify, reproduce, release or disclose the technical data or computer software within the government without restriction and outside the government for a government purpose any activity in which the united states government is a party.
He is responsible for contract pricing and procurement policy matters within dod, read more. What are some of the relevant dfars provisions governing data rights. Part ii analyzes the history of software development and the historical regulations governing dod s procurement of software. Contractor is always able to use the same data for its own commercial purposes unless there are restrictions, e. Dpc executes policy through the timely update of the dfars and pgi. Jul 01, 2016 most of the issues in the field are about software, defense procurement expert and industry consultant jonathan etherton told national defense. Microsoft could score billions under recent dod deals. A practical handbook for acquisition professionals. Important things to remember title is not changed by incorporation of government property into property owned by the contractor.
Jul 08, 2009 government obtains data rights to use technical data and computer software from the data rights clauses in government procurement contract. Congress should not effectively close dod to any software option that might better serve taxpayers. A long time ago in a galaxy far, far away, the department of defense dod and industry came together after more than seven years of discussions and created a rational, logical, and fair constellation of regulations and laws governing the dods and contractors rights in technical data and computer software. Cybersecurity, supply chain risks, data rights, software acquisitions, and cost or pricing data are among the procurementrelated issues targeted in the fiscal year fy 2020 national defense. Jun 05, 20 on may 22, 20, the department of defense revised the defense federal acquisition regulation supplement dfars to allow the dod to disclose a contractors proprietary limited rights technical data and restricted rights software to certain other contractors providing support to the dod. Data rights focus sheet final defense acquisition university. Jun 06, 2018 commercial offtheshelf cots a commercial offthe shelf cots item is one that is sold, leased, or licensed to the general public. Change the practice of how software is procured and developed. Its govern by the policy and principals of dod directive 5000.
Acquiring and enforcing the governments rights in technical data and computer software under dod contracts. Department of defense dod sustainable product purchasing. Budgets should be constructed to support the full, iterative lifecycle of the. Proposal for a new rights in software clause for software. Make computing, storage, and bandwidth abundant to dod developers and users.