MODIFICATIONS TO TERMS AND CONDITIONS
C-17A FSED (DAR)
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For Purchase Order/Contracts being awarded in connection with the Full Scale Engineering Development (FSED)
C-17A, the following modifications are hereby made to Form DAC 26-685:
1. Add the following listed Clauses to Paragraph a. of Article 33:
(50) 7-104.9(d) Deferred Delivery of Technical Data or Computer Software (Nov 1974).
(51) 7-104.9(1) Identification of Technical Data (Mar 1975).
(52) 7-104.9(m) Deferred Ordering of Technical Data or Computer Software (Nov 1974). This Clause is not applicable to this Contract if:
a. No experimental, developmental or research work is required or will be performed in adapting the Seller's commercial product line to the C-17A requirements;
b. the application engineering required to adapt Seller's commercial product line to the C-17A peculiar requirements has been or will be accomplished entirely at private expense; and,
c. no experimental, developmental or research work, funded under this or any other Government contract or subcontract, was used in previous versions of the Seller's commercial products or in the adaption of these commercial products to the C-17A requirements.
All of Seller's technical data or computer software that satisfies the above criteria is outside the scope of DAR 7-104.9(m). This is based upon the enabling language of DAR 9-502(c), which states that DAR 7-104.9(m) is only applicable to data generated in performance of a contract where the Government has in fact paid for the development of that data
(53) 7-104.9(n) Data Requirements (Apr 1972).
(54) 7-104.9(o)(1) Warranty of Technical Data (Nov 1974).
(55) 7-104.24(e) Government Property Furnished "As Is".
(56) 7-104.31(b) Notice of Imports - Possible Duty-Free Entry.
2. Add the following new Articles:
39. DISCLOSURE OF DATA TO PERSONS OUTSIDE THE C-17A PROGRAMS AND ACKNOWLEDGEMENT OF SPONSORSHIP
a. Data Release - No data or information collected through this Contract shall be released to parties outside the C-17A Program by the Seller or the Seller's subcontractors, through publication, or any other manner, except on specified authorization of the Principal Contracting Officer.
b. Seller agrees that in the release of information relating to this Contract which was authorized by the Principal Contracting Officer, such release shall include a statement to the effect that the project or effort depicted was or is sponsored by the agency set forth below:
Aeronautical Systems Division (AFSC)
Wright-Patterson Air Force Base, OH 45433
c. For the purpose of this Article, "information" includes but is not limited to, news releases, articles, manuscripts, brochures, advertisements, still and motion pictures, speeches, trade association meetings, symposia, etc.
d. Nothing in the foregoing shall affect compliance with the requirements of the Clause of this Contract entitled "Military Security Requirements".
e. Seller further agrees to include this provision in any subcontract awarded as a result of this Contract.
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40. DISCLOSURE OF SELLER'S DATA TO C-17A PARTICIPATING CONTRACTORS
a. Seller agrees that Seller's existing data generated and/or provided under the C-17A FSED Contract may be furnished by MDC to third parties such as the Aircrew Training System (ATS) subcontractors, C-17A FSED subcontractors and other third parties who are participating in the C-17A Weapon System program and have a need for interface, performance or other information required for the full scale development of the C-17A. The recipient of such data will be subject to contractual restrictions set forth in Article 41 below not to further disclose the data outside the C-17A program or to use the data for manufacturing or any other purpose not specifically authorized by MDC/Seller.
b. The Seller's proprietary technical data or computer software will only be provided by MDC to third parties who have agreed in writing to the terms of the MDC Data Exchange Agreement, C-17A (Form DAC 26-877A), and then only when MDC deems it is necessary for design, development, operation or maintenance, and related C-17 program needs such as:
(1) C-17A Aircrew Training System (ATS) including, but not limited to, the flight simulator and the cargo loading training devices or procedures (Prime Contractor is MDC);
(2) Maintenance Training Devices (MTD) or procedures (Prime Contractor is ECC International Corporation);
(3) Automatic Test Equipment (ATE) for testing and fault isolation of avionics line replaceable units (MDC is Prime Contractor and General Dynamics Corporation is the Subcontractor);
(4) Design and development of other C-17A systems and subsystems that interface with the Seller's item/LRU;
(5) C-17A FSED Preliminary Design Review/Critical Design Review; and,
(6) C-17A FSED Functional Configuration Audit/Physical Configuration Audit.
c. Seller further agrees that should Seller's existing data or the data generated and/or provided under the C-17A FSED Contract be inadequate for the above purposes, that the necessary additional data shall be provided directly by Seller to the third parties (as described in Paragraphs a. and b. above) under reasonable terms/conditions at prices to be mutually negotiated between Seller and said third parties.
d. Seller's restrictive markings on technical data and computer software will be reproduced on all copies furnished to third parties by MDC or MDC's subcontractors. This Article shall have precedence over any other provisions herein relating to the transfer of Seller technical data and will be included in any subcontract placed by Seller or the Seller's subcontractors.
41. CONDITIONS FOR DISCLOSURE OF MDC'S OR THE SELLER'S PROPRIETARY DATA TO THIRD PARTIES
a. During the term of the C-17A Data Exchange Agreement, the parties hereto, to the extent of their right to do so, may exchange information or data, which each party considers proprietary or confidential, in order to satisfy the requirements of this Contract.
b. For all such information submitted by one party to the other, the receiving party covenants and agrees that it will, not withstanding the expiration or termination of the Agreement, keep in confidence and not disclose to any third parties such information, except to the following parties and then only if that party is not, relative to the information being disclosed, a competitor to the disclosing party: (1) its own employees, or (2) employees of its affiliate companies, or (3) subsidiaries, or (4) subcontractors that are participating in C-17 programs, or (5) prime contractors and agents of the Government responsible for C-17 related programs (such as Air Crew Training). Refer to Article 40 above for a more detailed listing of the C-17 purposes and third parties that MDC and the Seller are authorized to provide such information.
c. To be afforded protection under Paragraph b. above, any such information or data must be submitted in writing and be identified with the appropriate commercial proprietary legend and/or Government Limited or Restricted Rights legend (in accordance with DAR 7-104.9). If such information is orally submitted, it must be identified as proprietary or confidential prior to disclosure; and, the disclosing party must specifically identify in writing any such proprietary or confidential information so orally submitted to the receiving party within thirty (30) days after such oral submission. However, the receiving party shall not be liable for disclosure or use of such proprietary or confidential information if the same were:
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(1) in the public domain prior to disclosure or is subsequently made available to the public through no fault of the receiving party; or
(2) known to the receiving party prior to disclosure, or
(3) disclosed inadvertently despite the exercise of the same measure of care taken by the receiving party regarding its own proprietary or confidential information, or
(4) disclosed with the prior written approval of the disclosing party; or
(5) becomes known to the receiving party from a source other than the disclosing party without breach of this Article by the receiving party.
d. Any third parties who have need to access MDC's or the Seller's proprietary technical data or computer software will be required to agree in writing to the conditions as set forth in this Article and the C-17A Data Exchange Agreement prior to being given copies of such proprietary information in any form (i.e., magnetic tapes, orally, hard copies, etc.).
42. SELLER SUPPORT TO C-17A RELATED PROGRAMS OR EFFORTS
Seller agrees to provide assistance, data, documentation, information and equipment to Government agencies, organizations and departments and/or their contractors/subcontractors, as identified in writing by MDC, who have executed C-17A Data Exchange Agreements with MDC. The assistance, data, documentation, information and equipment contemplated will be in support of separate programs (reference Article 40 b. herein) or study efforts by those agencies or contractors/subcontractors.
The intent of this Article is to require the participation of Seller in other related C-17A programs or efforts, which require Seller's assistance, data, documentation, information and equipment. This participation shall be without any increased cost under this Contract, however, Seller shall negotiate separate contractual agreements to cover the costs associated with such participation. All costs of providing the assistance, data, documentation, information and equipment required by this Article shall be borne by the requesting agency, organization, department or contractor/subcontractor. Interfaces may be between Seller and MDC or directly with the requestor, and shall be without any detriment to performance or change in this Contract price.
3. Add the following subparagraphs to Paragraph a. of Article 33 under Clause (14) entitled "Rights in Technical Data and Computer Software":
a. Special Provision H-28(f) of the C-17A FSED Prime Contract requires MDC to notify the Government of any data that will be furnished with Limited Rights or Restricted Rights, 45 days prior to procurement by MDC, Seller or its subcontractors.
NOTE: Refer to Paragraph e. entitled "Notification of Data Seller Intends to Deliver with Limited or Restricted Rights" for the detailed Government Notification procedure.
(1) Seller shall have identified in its solicitation response or follow-on notifications (refer to Paragraph g.), each item of proprietary technical data and computer software that will be required to be delivered under any resultant contract or contract modification.
(2) Each item of "limited rights" data or "restricted rights" computer software shall be identified and the basis for the Seller's claim that the Government should receive only "limited rights" or "restricted rights," as applicable, shall be stated by individual case.
(3) Seller should list on DAC 26-874 the detail drawings, in addition to the assembly drawings, if these detail drawings are or may be required by Integrated Logistic Support for C-17A provisioning purposes.
(4) Unless the data listed on Forms DAC 26-872, DAC 26-873, or DAC 26-874, as applicable, is deliverable under a SDRL, DID, or DAR 7-104.9(m) requirement, the mere listing of these items therein does not make the data deliverable to the Government.
(5) MDC agrees to transmit to the C-17A Principal Contracting Officer (PCO) for inclusion in the data rights schedule, Seller's listing of data (as defined in Paragraph g. herein if required to be provided to the Government, and will be furnished with Limited and Restricted Rights in accordance with Subparagraph (b)(2)(i)and (b)(3)(A)/(B) of DAR 7-104.9(a).
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b. BASIS FOR ACCEPTANCE OF SELLER'S PROPOSAL FOR A PRIVATELY DEVELOPED/ COMMERCIAL PRODUCT
MDC used an Envelope Drawing(s) to specify the requirements of an LRU(s) which contains no new development or developmental modifications. The Envelope Drawing(s) provides the form, interface fit, and the performance characteristics needed to satisfy the peculiar requirements of the C-17A. Upon successful completion of the qualification testing for each LRU, the "Envelope Drawing(s)" will be retitled "Specification Control Drawing(s)". In evaluating the Seller's solicitation response, MDC was guided by the requirements established in the Prime Contract Special Provision H-9(b)(6) and in Public Law 99-591 (both of which require the procurement of commercial/nondevelopmental items to the maximum extent possible). Therefore, in accordance with Special Provision H-9(b)(6), (quoted below), when an off-the-shelf item can be adapted to satisfy or exceed the basic C-17A requirements, MDC is required to:
"Whenever feasible, encourage subcontractors to submit alternate proposals; for example, use of off-the-shelf hardware to meet a contractual requirement instead of new development."
MDC's selection of Seller's commercial/nondevelopmental product line is based upon Seller's assertion that only privately funded application engineering (e.g., no new development) was required to meet or exceed the C-17A requirements. MDC agrees to review the Envelope Drawing, Statement of Work (SOW), Supplier Data Requirements List (SDRL), and Data Item Descriptions (DIDs) to insure that there are no requirements for new development in these documents pertaining to Seller's privately developed/commercial LRUs as follows:
(1) MDC agrees that in accordance with Prime Contract CDRL A001 the Seller is not required to provide level 3 detail manufacturing drawings and the related process/material standards for items which can be properly defined by Specification Control Drawings.
(2) MDC further agrees that for privately developed Line Replaceable Units (LRUs) the Prime Contract level 3 drawing requirements are satisfied by MDC's preparation of level 3 Specification Control Drawings.
(3) MDC agrees that the Seller's engineering drawing requirements for repairable privately developed LRUs are satisfied by DIDs E01.1.38C dated 14 February 1989 (which covers the drawings required by the USAF for repairable items) and E01.1.11 dated 20 January 1989 (which covers drawings required by MDC).
MDC further agrees that for nonrepairable items the Seller's engineering drawing requirement is satisfied by DID E01.1.11 dated 20 January 1989 which only requires a top assembly level drawing in the Seller's format for MDC's use.
NOTE: For an LRU that is not repairable, the top assembly drawing is normally not required by or furnished to the USAF.
(4) MDC agrees that in accordance with Paragraph (b)(1)(iv) of DAR 7-104.9(a), Paragraph 3.7.2(b) of DOD-D-1000B, (which required the Seller to provide all material and process standards with unlimited rights), is not applicable to items which were developed at private expense and defined by MDC Specification Control Drawings.
(5) The Seller agrees that for any LRUs developed or modified at Government expense the DOD-STD-100C level 3 drawing requirements will be satisfied by the Seller's preparation of level 3 drawings in accordance with DID E01.1.1B dated 9 December 1988 (which specifies the drawings required by the USAF), E01.1.12 dated 1 October 1984 (which specifies the drawings required by MDC Quality Assurance), E01.1.15 dated 1 October 1984 (which specifies the drawings required by MDC Engineering), and E01.1.3A dated 26 October 1988 (which specifies the data required for Critical Design Review).
(6) MDC and the Seller agree that the use of level 3 Specification Control Drawings by MDC to define the LRUs that meet the conditions set forth in c.(1) was based on the Seller's good faith assertion (see DAC 26-875) that the items contained in Seller's solicitation response were privately developed/commercial items which are part of the Seller's product line. MDC acknowledges that the Seller is part of a specialized segment of an industry which normally provides customer application engineering services to adapt their privately developed/commercial product line to the customer's needs.
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(7) Conversely, MDC and the Seller agree that if an Envelope Drawing was used to define an LRU that MDC had expected to procure as an off-the-shelf or privately developed/commercial product, when in fact new development or modifications involving new development will be required or accomplished at Government expense, MDC reserves the right to replace the less complex requirements contained in the Envelope Drawing with a detailed MDC Developmental Procurement Specification.
In the event an Envelope Drawing was used to define the Seller's item or LRU that will be developed with Government funds, the Subcontract Data Requirements (SDRL) and Data Item Description (DID) will be revised to add the requirements for the Seller to prepare Level 3 detail and assembly drawings and the Envelope Drawing specification requirements will be reviewed by MDC and the requirements modified to include the additional requirements needed for newly developed items by the terms of the Prime Contract. This is based on the conditions set forth in the Prime Contract CDRL A001, which prohibits the use of Specification Control Drawings to define items developed with Government funds. As a result, DID E01.1.38C and E01.1.11 will be replaced by DID E01.1.1B dated 9 December 1988, E01.1.12 dated 1 October 1984, E01.1.15 dated 9 December 1988, and E01.1.3A dated 26 October 1988 for those LRUs that will be developed or modified with Government funds.
(8) MDC and the Seller agree that the above basis for acceptance of Seller's alternate proposal for the use of nondevelopmental products (Reference MDC's Prime Contract Special Provision H-9[b][6] quoted above) applies to both commercial and noncommercial computer software programs (including computer data bases) which were developed at the Seller's private expense. When no Government funds were involved in the development or adaption, both the computer software/data bases and the associated software documentation remain proprietary to the Seller. MDC and the Seller agree that the source code and the associated software development documentation are not required to be furnished to the Government for privately developed/commercial software under pending ECP 33 Category 4 entitled "Unmodified Commercial Software."
c. DRAWING REQUIREMENTS
DOD-STD-100C, Subparagraph 201.4.2, require that:
"A specification control drawing [be used to] depict an existing commercial item or vendor-developed item advertised or cataloged as available on an unrestricted basis on order as an 'off-the-shelf' item or an item while not commercially available, is procurable on order from a specialized segment of an industry. The drawing, under the heading 'SUGGESTED SOURCE(S) OF SUPPLY', shall list the name (address if known), manufacturers FSCM number and item identification number of two or more known sources unless, after search of vendor data for similar products, it is determined that there is only one source."
"NOTE 3 of Subparagraph 201.4.2: Vendor-developed items are those products of industries which normally provide customer application engineering services for a commercial product line and their products are commercially available from a specialized segment of an industry. Typical examples of such items are: special motors, synchros, transformers, potentiometers, hydraulic valves, carburetors, potted servo-amplifiers, key boards, tape readers."
"NOTE 5 of Subparagraph 201.4.2: Specification control drawings shall not be used to depict commercial or vendor-developed items upon which a design activity has placed requirements in addition to those normally provided by vendors. These kinds of items shall be depicted on either Selected Item Drawings or Altered Item Drawings as appropriate."
(1) C-17A Level 3 Data Requirements to be Satisfied by Control Drawings MDC and Seller agree that C-17A level 3 data requirements are satisfied by MDC's preparation of "specification control drawings" for the LRUs which were found to be available off-the-shelf or from a specialized segment of the industry when the application engineering required to adapt the item to the unique C-17A requirements was or will be accomplished at Seller's expense.
(a) MDC's Envelope Drawings (Specification Control Drawings) are prepared per the requirements in DOD-STD-100C Subparagraph 201.4.2 when the satisfaction of the C-17A requirements can be accomplished by Seller's proposed adaption of its commercial product line to these unique C-17A requirements at the Seller's private expense.
(b) MDC and Seller further agree that the level 3 data requirements are satisfied by MDC's revising the title of the specification from "Envelope Drawing(s)" to "Specification Control Drawing(s)" when the Seller's item(s) has satisfied the qualification test requirements.
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(c) Seller and its subcontractors hereby agree to furnish MDC with the technical data required to be incorporated on the Specification Control Drawings by DOD-D-1000B and DOD-STD-100C, (such as form/envelope dimensions, interface fit dimensions and tolerances, and tolerances, and function/performance requirements), and to provide such data with unlimited rights in accordance with DAR7-104.9(a) Subparagraph (b)(1)(vi).
(d) USAF Requirement for Ongoing Availability of Proprietary Items Throughout the Life of the C-17
(i) The USAF has a requirement for the ongoing availability of proprietary equipment items, spare parts, and associated manufacturing processes/computer software throughout the life of the production C-17 aircraft. The Seller acknowledges that this support and maintenance capability must continue during the life cycle of the C-17 aircraft notwithstanding the possible future termination of its product line/replacement parts, that are being used on or in support of the C-17, as a result of the Seller having merged, gone out of business or for any other reason. To insure the long term availability of those equipment items or replacement parts that are not available from two or more sources, the Seller agrees, upon receipt of a Supplier Change Proposal (SCP), to deposit with MDC Intellectual Property a complete set of detailed manufacturing drawings, the associated standards (manufacturing processes) and computer software including source code, object code and documentation.
(ii) The Seller further agrees upon receipt of a solicitation to negotiate a reasonable fee for collecting, reproducing, and delivering the data packages in the microfilm format specified by the USAF. Upon receipt of a Supplier Change Proposal (SCP), the Seller further agrees: to verify that the data package is a functional equivalent DOD-STD-100C level 3 data package (i.e., the package contains all the technical data and/or computer software, in the Seller's own format, necessary to enable manufacture of end items and components including the performance of the related processes); to allow the Government to remove the proprietary legends; and to allow the Government to competitively procure the item if one or more of the events in (iv) below have occurred.
(iii) MDC Intellectual Property agrees to receive and control the Seller's data packages in a secure manner. MDC further agrees that the technical data in these packages may be in the Seller's own drawing format and marked with the Seller's commercial proprietary legends. The Limited Rights or Restricted Rights Legends are not required to be marked on these drawings as they will be retained in a secured form by MDC Intellectual Property and not made available to the Government or any other persons except under the conditions stated below.
(iv) These secured data packages will not be used by MDC nor furnished to the Government or its agents unless: directly related to an official Government requirement for C-17 maintenance or support; and one or more of the following three (3) conditions has been verified to exist by MDC's Chief Counsel, Intellectual Property or his appointed designee within MDC's Corporate Law Department:
( Seller is no longer in existence and has not established an authorized source or licensee for the items used on or in support of the C-17.
( Seller has discontinued the product line/spare parts used on or in support of the C-17 and has not established an authorized source or licensee.
( Seller has merged with another company and the new entity chooses not to continue the product line/spare parts used on or in support of the C-17 or to establish an authorized source or licensee.
(v) The Seller agrees that MDC may, at any time during the performance of this Contract or within a period of three (3) years after acceptance of all items under this Contract, or follow-on production options, order the data packages defined above. The Seller further agrees that when the above data packages are ordered, the Seller shall be compensated for converting the data into the prescribed form, for reproduction and delivery, but shall not be reimbursed for design, developing or otherwise generating the data.
(vi) The Chief Counsel, MDC Intellectual Property of the MDC Law Department, or his successors, assumes responsibility for the security of the documents which have been entrusted to him and will return or destroy all drawing packages when it has been determined that there is no longer a need to support or maintain the C-17.
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(2) Drawing Requirements in Addition to the Level 3 Control Drawings:
(a) Nonrepairable LRUs do not require the Seller to submit any engineering drawings except those required by Integrated Logistic Support (ILS) Data Item Description (DIDs) for provisioning purposes.
NOTE: Seller and its subcontractors agree to furnishing assembly drawings in Seller's or its subcontractors' format, down to the lowest tier of assembly, if Seller's item contains replaceable parts that were previously classified "nonrepairable" by Seller, are later reclassified as "repairable parts" by the USAF during ILS provisioning. Such reclassification shall be considered as a change under the Changes Clause of this Contract.
(b) For Repairable LRUs, the Seller and its subcontractors that are supplying repairable components within the LRU, are required to provide assembly drawings to the lowest repairable assembly tier, in Seller's or its subcontractors' own commercial drawing format in accordance with DID E01.1. 38C.
NOTE: Seller's drawings, when microfilmed, must meet the legibility requirements of MIL-M-9868 Class 1, Type 1, and Kind N.
(3) C-17A Level 3 Data Requirements to be Satisfied by Level 3 Detail and Assembly Drawings
(a) Seller agrees that C-17A Level 3 data requirements will be satisfied by Level 3 detail and assembly drawings for the LRUs which will be developed or modified with Government funds.
(b) The Seller further agrees to provide its own, and to negotiate with its subcontractors for, assembly level drawings down to the lowest tier in the subcontractor's own drawing format marked with Limited Rights Legends where applicable for proprietary items, whenever an LRU, which was initially determined by Seller to be nonrepairable, is later reclassified by the USAF as a repairable item. This Limited Rights Data may be submitted by Seller or Seller's subcontractors directly to the U.S. Government in accordance with DAR 7-104.9(a) Subparagraph (g)(2).
d. STATEMENT OF GOVERNMENT'S RIGHTS IN SELLER'S DATA
(1) Unlimited Rights:
Definition - (DAR 7-104.9[a] Subparagraph [a][7]) Unlimited Rights means [the Government's] rights to use, duplicate, or disclose technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have to permit others to do so.
The Government has Unlimited Rights in the following types of Technical Data [Refer to DAR 7-104.9(a) Subparagraph (b)(1) for source of (a) through (g) below; and reference DOD-D-1000B Paragraph 3.7.2(b) for the source of the requirement in Subparagraph 2(h) herein]:
(a) Technical data and computer software resulting directly from performance of experimental, developmental or research work which was specified as an element of performance in this or any other Government contract or subcontract;
(b) Computer software required to be originated or developed under a Government contract, or generated as a necessary part of performing a contract;
(c) Computer data bases, prepared under a Government contract, consisting of information supplied by the Government, information in which the Government has unlimited rights, or information which is in the public domain;
(d) Technical data necessary to enable manufacture of end-items, components and modifications, or to enable the performance of processes, when the end-items, components, modifications or processes have been, or are being, developed under this or any other Government contractor subcontract in which experimental, developmental or research work is, or was specified as an element of contract performance, except technical data pertaining to items, components, processes, or computer software developed at private expense;
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NOTE: The following statement was added to (d) by MDC for clarification. MDC and the Seller understand that the technical requirements may be subject to modification during the course of the C-17A full-scale development program. As a result it is further understood that the final design may differ from the original proposal, and that, if the application engineering required to accomplish these changes is accomplished with Prime Contract (Government) funds, the delta differences between the privately funded design and the resulting final design will be provided to the Government with Unlimited Rights in accordance with (d) above.
(e) Technical data or computer software prepared or required to be delivered under this or any other Government contract or subcontract and constituting corrections or changes to Government-furnished data or computer software;
(f) Technical data pertaining to end-items; components or processes, prepared and required to be delivered under this or any other Government contract or subcontract, for the purpose of identifying sources, size, configuration, mating and attachment characteristics, functional characteristics and performance requirements ("form, fit and function" data, e.g., specification control drawings, catalog sheets, envelope drawings, etc);
(g) Manuals or instructional materials prepared or required to be delivered under this Contract or any subcontract hereunder for installation, operation, maintenance or training purposes;
(h) In addition to the above, Seller agrees that its own (and its subcontractors') proprietary standards, (such as material standards, process standards, manufacturing standards, and quality assurance standards, developed by Seller or its subcontractors with either private funds or Government funds) that are used in the production of LRUs or components or parts, that are developed with Government Funds [refer to DAR 7-104.9(a) Subparagraph (b)(2)(i) and (d) above] as an element of performance under this Contract or any other Government contract or subcontract with Seller, will be delivered with unlimited rights in accordance with Paragraph 3.7.2(b) of DOD-D-1000B.
(2) LIMITED RIGHTS Technical Data:
Definition - [DAR 7-104.9(a) Subparagraph (a)(8)]
(a) Limited Rights - means rights to use, duplicate, or disclose technical data, in whole or in part, by or for the Government, with the express limitation that such technical data shall not, without the written permission of the party furnishing such technical data be (a) released or disclosed in whole or in part outside the Government, (b) used in whole or in part by the Government for manufacture, or in the case of computer software documentation, for preparing the same or similar computer software, or (c) used by a party other than the Government, except for:
(i) emergency repair or overhaul work only, by or for the Government, where the item or process concerned is not otherwise reasonably available to enable timely performance of the work, provided that the release or disclosure thereof outside the Government shall be made subject to a prohibition against further use, release or disclosure; or
(ii) release to a foreign government, as the interest of the United States may require, only for information or evaluation within such government or for emergency repair or overhaul work by or for such government under the conditions of (a) above.
(b) Technical Data - means recorded information [in human readable form excluding computer magnetic code], regardless of form or characteristic, of a scientific or technical nature. It may, for example, document research, experimental, developmental or engineering work; or be usable or used to define a design or process or to procure, produce, support, maintain, or operate materiel. The data may be graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design type documents; or computer printouts. Examples of technical data include research and engineering data, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications and related information and computer software documentation. Technical data does not include computer software [in nonhuman readable magnetic code] or financial, administrative, cost and pricing, and management data or other information incidental to contract administration.
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(c) Computer Software Documentation - Technical data, including computer listings and printouts, in human-readable form which (i) documents the design or details of computer software, (ii) explains the capabilities of the software, or (iii) provides operating instructions for using the software to obtain desired results from a computer. The drawings and other technical data defining the system or portions of the system that were developed at private expense may be marked with Limited Rights in accordance with DAR 7-104.9(a), Subparagraph (b)(2).
NOTE: Commercial Computer Software Documentation is protected by "(B)-Type" Restricted rights rather than by Limited Rights [refer to Paragraph d(6)].
(3) In addition to the Limited Rights in technical data defined in (2)(a), (b), and (c) above, MDC and the Seller agree that the following types of technical data and computer software may be furnished to the Government with Limited Rights.
(a) Proprietary Portions of Newly Designed and Developed LRUs - In accordance with subparagraphs (b)(1)(iv) of DAR 7-104.9(a), "Limited Rights" may be marked on proprietary commercial detail drawings developed with private funds even though that drawing and related proprietary part is used in LRUs, which were or are being developed with Government funds as an element of performance under this Contract and the newly developed portion of the system is being defined on level 3 detail/assembly drawings; and,
(b) Repairable LRUs Developed with Private Funds - In accordance with DAR 7-104.9(a) Subparagraph (b)(2) "Limited Rights" may be marked on proprietary assembly drawings, down to the lowest tier of assembly that contains repairable parts, that will be furnished in the Seller's or its subcontractors own production drawing format, for LRUs classified as repairable.
(4) Subparagraph (b)(2)(ii) of DAR 7-104.9(a) requires..."that only the portion or portions of each piece of data to which limited rights are to be asserted pursuant to (b)(2)(i) and (ii) above are identified (for example, by circling, underscoring, or a note),..." This means that form, fit and function information that is included on the Seller's assembly drawings cannot be identified as subject to limited rights based on the provisions in Subparagraph (b)(1)(vi) of DAR 7-104.9(a) which give the Government unlimited rights in technical data pertaining to "form, fit and function."
(5) '(A)-Type' RESTRICTED RIGHTS - Noncommercial Computer Software:
(a) Definitions -
(i) Noncommercial computer software as implied by the wording in Subparagraph (b)(3)(A) of DAR 7-104.9(a), is software developed with private funds, but not sold to the general public at an established catalog price.
(ii) Computer software - computer programs and computer data bases [in nonhuman-readable form such as magnetic code, etc.].
(iii) Computer Program - a series of instructions or statements in a [nonhuman-readable] form acceptable to a computer, designed to cause the computer to execute an operation or operations. Computer programs include operating systems, assemblers, compilers, interpreters, data management systems, utility programs, sort-merge programs, and ADPE maintenance/diagnostic programs, as well as applications programs such as payroll, inventory control, and engineering analysis programs. Computer programs may be either machine-dependent or machine-independent, and may be general-purpose in nature or designed to satisfy the requirements of a particular user.
(iv) Computer Data Base - a collection of data in a [nonhuman-readable] form capable of being processed and operated on by a computer.
(v) Firmware - For the purposes of this Contract, computer code or instructions contained in micro chips will be considered to be 'Computer Software.'
(b) Seller agrees that if its software is required to be delivered under the Contract, Seller shall provide the noncommercial computer software in accordance with 'the rights provided to' and the 'restrictions placed on' the Government's use of '(A)-Type' noncommercial computer software in the Paragraph (e) entitled '(A)-Type' Computer Software Restricted Rights Agreement.
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(c) A portion of the Government's rights in '(A)-Type' noncommercial computer software has been flowed down in this Contract under Article 33 Paragraph a., Clause (14): For a complete listing of Government's rights in 'noncommercial computer software' refer to Paragraph (e) below entitled '(A)-Type' Computer Software Restricted Rights Agreement.
(d) The '(A)-Type' Restrictive Rights Legend is not required to be marked on 'firmware' or incorporated into any airborne computer software. The Restrictive Rights Legend will be incorporated into the noncommercial Computer Software Documentation and may also be shown on the Installation Drawings that install devices that contain C-17A airborne computer software or firmware.
(e) '(A)-TYPE' COMPUTER SOFTWARE RESTRICTED RIGHTS AGREEMENT: Restrictions on Use, Duplication or Disclosure of Computer Software and Computer Software Documentation.
(i) The Government shall have the rights in computer software and commercial software delivered with Restricted Rights in accordance with the General Provision of this Contract entitled, "Rights in Technical Data and Computer Software."
(ii) In addition to the rights set forth in Paragraph (a)(9)(i) through (iv) of the General Provision [DAR 7-104.9(a)] "Rights in Technical Data and Computer Software" the Government may release or disclose, in whole or in part outside the Government without the written permission of the party who furnished it, ['(A)-Type'] computer software as defined in DAR Clause 7-104.9(a) Subparagraph (b)(3)(A) and the computer software documentation pertaining thereto delivered under this Contract with limited or restricted rights, as the case may be, in the following cases:
( When release is to a foreign government, as the interest of the United States may require, only for information or evaluation within such government, or for the emergency repair or overhaul work by or for such government, where the item or process concerned is not otherwise reasonably available to enable timely performance of the work, provided that the release or disclosure thereof outside the Government shall be made subject to a prohibition against further use, release, or disclosure.
( When release or disclosure thereof is to prime contractors, subcontractors and agents of the Government who have the Government's permission to use the computer software (and the computer software documentation pertaining thereto) in which the Government has limited or restricted rights, as the case may be, for the support, operation, and maintenance of the C-17A Weapon System; provided however, that said contractors, subcontractors, and agents of the Government have agreed in writing to use it only for the support, operation and maintenance of the C-17A Weapon System, and not to further use, release or disclose it.
(f) The '(A)-Type' Noncommercial Computer Software Documentation will include a prominent statement of the above (Subparagraph d[3][e]) that are applicable to computer software being furnished with Restricted Rights.
(6)'(B)-Type' RESTRICTED RIGHTS - Commercial Computer Software:
(a) Definitions -
(i) Commercial Computer Software, [as defined in DAR 7-104.9(a) Subparagraph (a)(10)ª is computer software which is used regularly for other than Government purposes and is sold licensed or leased in significant quantities to the general public (such as commercial aircraft manufacturers) at established market or catalog prices.
(ii) For other related definitions refer to the 'Definitions' in Paragraph d.(5)(a) Subparagraph (ii) Computer Software, (iii) Computer Program, and (iv) Computer Data Base.
(iii) Firmware - For the purposes of this Contract, the computer code or instructions contained in micro chips will be considered to be 'computer software.'
(b) Seller agrees to provide the Commercial Computer Software in accordance with the provisions stated in DAR 7-104.9(a) Subparagraph (b)(3)(B)(i) through (v).
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(c) The '(B)-Type' Restrictive Rights Legend is not required to be marked on 'firmware' or incorporate into any airborne computer software. The Restricted Rights Legend will be incorporated into the commercial Computer Software Documentation and may be included on the Installation Drawings that install devices that contain proprietary "(B)-Type" airborne computer software or firmware.
(d) Commercial Computer Software Documentation will be marked with the '(B)-Type' Restrictive Rights Legend and contain a listing of the 'restrictions placed on' and the 'rights of' the Government as stated in DAR 7-104.9(a) Subparagraph (b)(3)(B)(i) through (v). (7) The Seller shall not be obligated to maintain the Government's copy of the computer software used during the development, interim contractor support, or manufacture of the C-17A Weapon System, and furnished to the Government with either "(A)-Type" or "(B)-Type" Restricted Rights, unless such software or computer data base are required to use, operate, support, or maintain said aircraft.
e. NOTIFICATION OF DATA SELLER INTENDS TO DELIVER WITH LIMITED OR RESTRICTED RIGHTS
(1) Government's Requirement that a Listing of Limited and Restricted Rights Data Be Incorporated into the Schedule of the Prime Contract Prior to Procurement and Delivery:
(a) DAR 7-104.9(a), Subparagraph (b)(2)(i) [and (b)(3) for restricted rights computer software] states "The Government shall have limited rights [or restricted rights] in: (i) technical data [or computer software], listed or described in an agreement incorporated into the Schedule of the Contract, which the parties have agreed will be furnished with limited rights (or restricted rights)..."
(b) In accordance with the above DAR regulation MDC is not permitted to submit the Seller's or its Subcontractors' proprietary data to the Government, marked with Limited Rights or Restricted Rights, unless the data has been listed in the data rights Schedule of the C-17A Prime Contract.
(c) In accordance with DAR 7-104.9(h) Subparagraph (a) entitled "Technical Data - Withholding of Payment", it is MDC's understanding that if Seller's Limited or Restricted Rights Data is submitted to the Government, before it has been listed in the data rights Schedule to the Prime Contract, the technical data is deficient as a result of the data having restrictive markings not specifically authorized by the Prime Contract. Pending correction of the deficiency, the Government has the right to challenge the restrictive markings, and if Seller fails to respond, to ignore such unauthorized legends, and withhold 1% of the total Prime Contract price. MDC may in turn withhold 10% of Seller's contract price.
(d) Therefore, in order to protect Seller's rights in data, MDC and Seller agree to comply with these DAR requirements by means of the notification procedure outlined in (2) below.
(2) Notification Procedure:
(a) MDC's Prime Contract Special Provision H-28(f) requires the Seller to list on Forms DAC 26-872, DAC 26-873 or DAC 26-874, as applicable, any technical data or computer software required to be furnished to the Government in the performance of this Contract that the Seller or its subcontractors propose to grant the Government only "limited rights", or "restricted rights", as defined in DAR 7-104.9(a) (Reference Paragraphs f. and g. below for additional C-17A requirements).
(b) MDC agrees to transmit the Seller's Assertions/Justifications and listing of Limited and Restricted Rights data to the C-17A Principal Contracting Officer (PCO) for inclusion in the data rights Schedule, in accordance with the Special Provision in the Prime Contract and Subparagraph (b)(2)(i) and (b)(3)(A) of DAR 7-104.9(a).
(c) MDC is contractually required by Special Provision H-28(f) in the Prime Contract to defer placement of any purchase until 45 days after notifying the C-17A PCO that the item will contain proprietary components. This deferred placement is required for any subcontract that will result in the Seller furnishing data that is deliverable to the Government and will be marked with Limited Rights or Restricted Rights Legends.
(d) The USAF is contractually allowed 45 days, after receipt of the Seller's listing of data that will be furnished to the Government with Limited or Restricted Rights, to disapprove the use of any proprietary item defined by the listed data (such as overpriced items or "golden rivets").
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NOTE: 15 days handling time is added to the Government's 45 days to allow MDC 8 days to transmit the Seller's List of proprietary data to the Government and 7 days to forward the Government's disapproval to the Seller. Contracting Officer approval is not necessary for the Seller or its subcontractor to use an item that has not been specifically disapproved.
(e) In the event the Government disapproves of a listed item after the expiration of the 60 days, the Seller may submit a request for an equitable adjustment to compensate it for the cost, of incorporating an alternate component. If, however, Seller proceeds to incorporate any Limited Rights or Restricted Rights components before the expiration of 60 days following submittal of the Seller's listing of proprietary data as required in Paragraph g., any costs incurred relative to the disapproved item shall be at Seller's risk.
(f) The same procedure and risk is incurred by the Seller and Seller's subcontractors for any proprietary item that was not known at the time the proposal predetermination data rights listing was submitted. The Seller agrees to provide MDC with this ongoing notification of the use of proprietary items, if the related data will be delivered to the Government with Limited or Restricted Rights whenever the Seller officially decides to use an item, that is not available off-the-shelf from two or more competitive sources, but not later than 60 days before procuring or authorizing the fabrication of the proprietary item.
(3) The Government reserves the right to challenge the validity of such Limited Rights and Restricted Rights markings in accordance with C-17A Prime Contract Special Provision H-28(f), DAR 7-104.9(a) Subparagraph (b) and DAR 7-104.9(p) Subparagraph (f) notwithstanding:
(a) Seller's ongoing notification of the proposed use of proprietary items (whenever the related technical data will be submitted with Limited Rights or computer software will be submitted with Restricted Rights); or,
(b) Principal Contracting Officer's incorporation of the Seller's Predetermination Listing Limited or Restricted Rights data or ongoing notification of proprietary items into the Schedule of the Prime Contract.
f. SELLER'S ASSERTIONS/JUSTIFICATIONS RELATIVE TO GOVERNMENT'S RIGHTS IN DATA
(1) Special Provision H-30 requires MDC and its subcontractors to provide justification for submitting data with Limited Rights or Restricted Rights. Seller or its subcontractor's justification for claiming that the Government should receive only "limited rights" or "restricted rights" to the data items listed on Forms DAC 26-872, DAC 26-873, or DAC 26-874 shall be inserted on Form DAC 26-875.
(2) Notwithstanding 'Seller's assertions and justifications' on Form DAC 26-875, and Seller's listing of technical data or computer software that will be furnished with Limited or Restricted Rights (Reference f. (2) above), Seller agrees that the Government shall have such rights in technical data and computer software as are set forth in DAR 7-104.9(a), (d), (h), (l), (m), (n), (o) and (p), DOD-D-1000B Subparagraph 3.7.2(b), and the other data rights provisions of this Contract. Moreover in the event the Government challenges Seller's position as to rights in technical data or computer software, Seller agrees that MDC can provide such technical data or computer software in accordance with any final resolution between Seller and the Government relating to such challenges as required by the referenced DAR Clauses, and that there shall be no charge to MDC or the Government as a result of such final resolution, (i.e., the contract price shall remain the same except for fair and reasonable costs incurred for gathering, reproducing and furnishing data in the microfilm format required by the Government). In no event shall the foregoing effect the Seller's or its subcontractor's obligations under the applicable DAR 7-104.9 Clauses if the item was previously or is currently being developed or modified with Government funds.
g. ADDITIONAL C-17A INFORMATION TO BE PROVIDED WITH THE LISTING OF LIMITED RIGHTS AND RESTRICTED RIGHTS DATA
(1) Special Provision H-30 further requires MDC and its subcontractors to provide the following information for each such item listed (including software), component, or process relative to data that will be submitted with limited or restricted rights:
(a) The generic and brand name;
(b) A brief description of the item, component, or process;
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(c) The nature of the affected technical data or software;
(d) A description of the end item (LRU or higher-tier equivalent) into which the item, component, or process is incorporated. (2) For items defined by Envelope Drawings or Specification Control Drawings, the information requested above is provided on MDC's Specification Control Drawing in combination with Seller's assembly level drawings, and furnished to the USAF on a special H-30 report which is extracted from the ILS CLASS data base.
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