What in simple terms does the following mean from a contractor's perspective and from the government perspective. Why is the government pushing for this?

 

The proposed DFARS revisions generally seek to implement three provisions from the NDAA FY 2018:

• Section 835(c): Added subsection (f) to 10 U.S.C. § 2320, which creates a "preference" for "specially negotiated licenses." The subsection requires that DOD "negotiate and enter into a contract with a contractor for a specially negotiated license for technical data to support the product support strategy of a major weapon system or subsystem of a major weapon system" (emphasis added). The subsection also directs program managers, when assessing the long-term technical needs and establishing corresponding acquisition strategies "that provide for technical data rights needed to sustain such systems and systems," (required by subsection (e)) to "consider the use of specially negotiated licenses to acquire customized technical data appropriate for the particular elements of the product support strategy."

This provision represents a shift away from using the standard DFARS clauses and toward specially tailored contract provisions. The requirement that program managers consider the long-term technical needs and acquiring special licenses as part of the "product support strategy" suggests a refined focus on sustainment costs.

• Section 835(a)(1) (as amended by Section 867 of the NDAA FY 2019): Enacted 10 U.S.C. § 2439, which requires DOD, "before selecting a contractor for the engineering and manufacturing development of a major weapon system, production of a major weapon system, or sustainment of a major weapon system," to "negotiate[ ] a price for technical data to be delivered" under the contract (emphasis added).

This provision places further emphasis on assigning a monetary value to a contractor's technical data - something already contemplated by DFARS 227.7103-1(b)(3), which requires solicitations and contracts to "establish separate line items, to the extent practicable, for the technical data to be delivered under a contract and require offerors and contractors to price separately each deliverable data item" (emphasis added). The provision - and corresponding DFARS Case (discussed below) - indicate that DOD could be looking to use technical data pricing a discriminator among competing offerors.

• Section 871: Enacted 10 U.S.C. § 2322a, which requires DOD, "as part of any negotiation for an acquisition of noncommercial computer software," to consider acquisition of all software and related materials necessary to meet the needs of the agency. Said another way, DOD must consider acquiring the "complete package" when purchasing noncommercial computer software - something that would give DOD greater rights than it currently enjoys under DFARS 252.227-7014.

Under DFARS 252.227-7014, DOD already receives a "royalty free, world-wide, nonexclusive, irrevocable license" in the computer software (i.e., the source code and related material that would "enable the software to be reproduced, recreated, or recompiled") and the computer software documentation (i.e., the owner's manuals, installation instructions and other items "that explain the capabilities of the computer software or provide instructions for using the software"). Section 871, and DOD's proposed revisions to DFARS 227.7203-2, further chips away at contractors' rights.