41 U.S.C. § 2302 — Rights in technical data

Page 71 TITLE 41—PUBLIC CONTRACTS § 2302 Editorial Notes AMENDMENTS 2016—Subsec. (f). Pub. L. 114–328 added subsec. (f). Executive Documents STREAMLINING PROCUREMENT THROUGH ELECTRONIC COMMERCE Memorandum of President of the United States, Oct. 28, 1993, 58 F.R. 58095, provided: Memorandum for the Heads of Executive Depart- ments and Agencies [and] the President’s Management Council The Federal Government spends $200 billion annually buying goods and services. Unfortunately, the red tape and burdensome paperwork of the current procurement system increases costs, produces unnecessary delays, and reduces Federal work force productivity. Moving to an electronic commerce system to simplify and stream- line the purchasing process will promote customer service and cost-effectiveness. The electronic exchange of acquisition information between the private sector and the Federal Government also will increase com- petition by improving access to Federal contracting op- portunities for the more than 300,000 vendors currently doing business with the Government, particularly small businesses, as well as many other vendors who find access to bidding opportunities difficult under the current system. For these reasons, I am committed to fundamentally altering and improving the way the Fed- eral Government buys goods and services by ensuring that electronic commerce is implemented for appro- priate Federal purchases as quickly as possible. 1. OBJECTIVES. The objectives of this electronic commerce initiative are to: (a) exchange procurement information—such as so- licitations, offers, contracts, purchase orders, invoices, payments, and other contractual documents—elec- tronically between the private sector and the Federal Government to the maximum extent practical; (b) provide businesses, including small, small dis- advantaged, and women-owned businesses, with greater access to Federal procurement opportunities; (c) ensure that potential suppliers are provided sim- plified access to the Federal Government’s electronic commerce system; (d) employ nationally and internationally recognized data formats that serve to broaden and ease the elec- tronic interchange of data; and (e) use agency and industry systems and networks to enable the Government and potential suppliers to ex- change information and access Federal procurement data. 2. IMPLEMENTATION. The President’s Management Council, in coordina- tion with the Office of Federal Procurement Policy of the Office of Management and Budget, and in consulta- tion with appropriate Federal agencies with applicable technical and functional expertise, as necessary, shall provide overall leadership, management oversight, and policy direction to implement electronic commerce in the executive branch through the following actions: (a) by March 1994, define the architecture for the Gov- ernment-wide electronic commerce acquisition system and identify executive departments or agencies respon- sible for developing, implementing, operating, and maintaining the Federal electronic system; (b) by September 1994, establish an initial electronic commerce capability to enable the Federal Government and private vendors to electronically exchange stand- ardized requests for quotations, quotes, purchase or- ders, and notice of awards and begin Government-wide implementation; (c) by July 1995, implement a full scale Federal elec- tronic commerce system that expands initial capabili- ties to include electronic payments, document inter- change, and supporting databases; and (d) by January 1997, complete Government-wide im- plementation of electronic commerce for appropriate Federal purchases, to the maximum extent possible. This implementation schedule should be accelerated where practicable. The head of each executive department or agency shall: (a) ensure that budgetary resources are available, within approved budget levels, for electronic commerce implementation in each respective department or agen- cy; (b) assist the President’s Management Council in im- plementing the electronic commerce system as quickly as possible in accordance with the schedules estab- lished herein; and (c) designate one or more senior level employees to assist the President’s Management Council and serve as a point of contact for the development and implemen- tation of the Federal electronic commerce system within each respective department or agency. 3. NO PRIVATE RIGHTS CREATED. This directive is for the internal management of the executive branch and does not create any right or ben- efit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumen- talities, its officers or employees, or any other person. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register. WILLIAM J. CLINTON. § 2302. Rights in technical data (a) WHERE DEFINED.—The legitimate propri- etary interest of the Federal Government and of a contractor in technical or other data shall be defined in regulations prescribed as part of the Federal Acquisition Regulation. (b) GENERAL EXTENT OF REGULATIONS.— (1) OTHER RIGHTS NOT IMPAIRED.—Regula- tions prescribed under subsection (a) may not impair a right of the Federal Government or of a contractor with respect to a patent or copyright or another right in technical data otherwise established by law. (2) LIMITATION ON REQUIRING DATA BE PRO- VIDED TO THE GOVERNMENT.—With respect to executive agencies subject to division C, regu- lations prescribed under subsection (a) shall provide that the Federal Government may not require a person that has developed a product (or process offered or to be offered for sale to the public) to provide to the Federal Govern- ment technical data relating to the design (or development or manufacture of the product or process) as a condition of procurement by the Federal Government of the product or process. This paragraph does not apply to data that may be necessary for the Federal Government to operate and maintain the product or use the process if the Federal Government obtains it as an element of performance under the con- tract. (c) TECHNICAL DATA DEVELOPED WITH FEDERAL FUNDS.— (1) USE BY GOVERNMENT AND AGENCIES.—Ex- cept as otherwise expressly provided by Fed- eral statute, with respect to executive agen- cies subject to division C, regulations pre- scribed under subsection (a) shall provide that— (A) the Federal Government has unlimited rights in technical data developed exclu- sively with Federal funds if delivery of the data— Page 72 TITLE 41—PUBLIC CONTRACTS § 2303 (i) was required as an element of per- formance under a contract; and (ii) is needed to ensure the competitive acquisition of supplies or services that will be required in substantial quantities in the future; and (B) the Federal Government and each agency of the Federal Government has an unrestricted, royalty-free right to use, or to have its contractors use, for governmental purposes (excluding publication outside the Federal Government) technical data devel- oped exclusively with Federal funds. (2) REQUIREMENTS IN ADDITION TO OTHER RIGHTS OF THE GOVERNMENT.—The require- ments of paragraph (1) are in addition to and not in lieu of any other rights the Federal Government may have pursuant to law. (d) FACTORS TO BE CONSIDERED IN PRESCRIBING REGULATIONS.—The following factors shall be considered in prescribing regulations under sub- section (a): (1) Whether the item or process to which the technical data pertains was developed— (A) exclusively with Federal funds; (B) exclusively at private expense; or (C) in part with Federal funds and in part at private expense. (2) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (Public Law 97–219, 15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631). (3) The interest of the Federal Government in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture. (e) PROVISIONS REQUIRED IN CONTRACTS.—Regu- lations prescribed under subsection (a) shall re- quire that a contract for property or services en- tered into by an executive agency contain ap- propriate provisions relating to technical data, including provisions— (1) defining the respective rights of the Fed- eral Government and the contractor or sub- contractor (at any tier) regarding technical data to be delivered under the contract; (2) specifying technical data to be delivered under the contract and schedules for delivery; (3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract; (4) establishing separate contract line items for technical data to be delivered under the contract; (5) to the maximum practicable extent, iden- tifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the Federal Government to use the data; (6) requiring the contractor to revise any technical data delivered under the contract to reflect engineering design changes made dur- ing the performance of the contract and af- fecting the form, fit, and function of the items specified in the contract and to deliver the re- vised technical data to an agency within a time specified in the contract; (7) requiring the contractor to furnish writ- ten assurance, when technical data is deliv- ered or is made available, that the technical data is complete and accurate and satisfies the requirements of the contract concerning tech- nical data; (8) establishing remedies to be available to the Federal Government when technical data required to be delivered or made available under the contract is found to be incomplete or inadequate or to not satisfy the require- ments of the contract concerning technical data; and (9) authorizing the head of the agency to withhold payments under the contract (or ex- ercise another remedy the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3733.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 2302(a) ........ 41:418a(a) (1st sen- tence). Pub. L. 93–400, § 21, as added Pub. L. 98–577, title III, § 301(a), Oct. 30, 1984, 98 Stat. 3074; Pub. L. 99–145, title IX, § 961(d)(2), Nov. 8, 1985, 99 Stat. 704. 2302(b) ........ 41:418a(a) (2d, last sentences). 2302(c) ........ 41:418a(b). 2302(d) ........ 41:418a(c). 2302(e) ........ 41:418a(d). In subsection (a), the words ‘‘Federal Acquisition Regulation’’ are substituted for ‘‘single system of Gov- ernment-wide procurement regulations as defined in section 403(4) of this title’’ because section 3(a)(1) of the Office of Federal Procurement Policy Act Amendments of 1988 (Public Law 100–679, 102 Stat. 4055) substituted ‘‘Federal Acquisition Regulation’’ for ‘‘single system of Government-wide procurement regulations’’ in section 6 of the Office of Federal Procurement Policy Act (Pub- lic Law 93–400, 88 Stat. 797, 41:406) and because section 3(c) of the Office of Federal Procurement Policy Act Amendments of 1988 (102 Stat. 4056) struck section 4(4) of the Office of Federal Procurement Policy Act (88 Stat. 797, 41:403(4)), as amended by section 4 of the Of- fice of Federal Procurement Policy Act Amendments of 1983 (Public Law 98–191, 97 Stat. 1326), which had defined ‘‘single system of Government-wide procurement regu- lations’’. § 2303. Ethics safeguards related to contractor conflicts of interest (a) DEFINITION.—In this section, the term ‘‘rel- evant acquisition function’’ means an acquisi- tion function closely associated with inherently governmental functions. (b) POLICY ON PERSONAL CONFLICTS OF INTER- EST BY CONTRACTOR EMPLOYEES.— (1) DEVELOPMENT AND ISSUANCE OF POLICY.— The Administrator shall develop and issue a standard policy to prevent personal conflicts of interest by contractor employees per- forming relevant acquisition functions (in- cluding the development, award, and adminis- tration of Federal Government contracts) for or on behalf of a Federal agency or depart- ment. (2) ELEMENTS OF POLICY.—The policy shall— (A) define ‘‘personal conflict of interest’’ as it relates to contractor employees per- forming relevant acquisition functions; and