252.227-7997

VALIDATION OF ASSERTED RESTRICTIONS (DEVIATION 2026-O0036)
(FEB 2026)

(a) Definitions. The terms used in this clause are defined in the 252.227-7989,
Rights in Technical Data, Computer Software, and Computer Software
Documentation—Other Than Commercial Products and Commercial Services, clause of
this contract.

(b) Technical data related to commercial products or commercial services—
presumption regarding development exclusively at private expense. For technical data
related to commercial products or commercial services, the Contracting Officer will
presume that the Contractor's or a subcontractor's asserted use or release restrictions
with respect to a commercial product or commercial service are justified on the basis
that the item was developed exclusively at private expense. The Contracting Officer
will not issue a challenge unless there are reasonable grounds to question the validity of
the assertion that the commercial item was developed exclusively at private expense.

(c) Justification. The Contractor or subcontractor at any tier is responsible for
maintaining records sufficient to justify the validity of its asserted restrictions on the
rights of the Government and others to use, duplicate, release, or disclose technical data
or computer software delivered, required to be delivered, or otherwise provided to the
Government under the contract or subcontract. Except as provided in paragraph (b) of
this clause, the Contractor or subcontractor shall be prepared to furnish to the
Contracting Officer a written justification for such asserted restrictions in response to a
challenge under paragraph (e) of this clause.

(d) Prechallenge request for information related to asserted restrictions on technical
data. (1) The Contracting Officer may request the Contractor or subcontractor to
furnish a written explanation for any asserted restriction on the right of the United
States or others to use, disclose, or release technical data. If, upon review of the
explanation submitted, the Contracting Officer cannot determine the basis of the
asserted restriction, the Contracting Officer may further request the Contractor or
subcontractor to furnish additional information in the records of, or otherwise in the
possession of or reasonably available to, the Contractor or subcontractor to justify the
validity of any asserted restriction on technical data delivered, to be delivered, or
otherwise provided to the Government under the contract or subcontract (e.g., a
statement of facts accompanied with supporting documentation). The Contractor or
subcontractor shall submit such written data as requested by the Contracting Officer
within the time required or such longer period as may be mutually agreed.

(2) If the Contracting Officer, after reviewing the written data furnished
pursuant to paragraph (d)(1) of this clause, or any other available information related to
the validity of an asserted restriction, determines that reasonable grounds exist to
question the current validity of the asserted restriction and that continued adherence to
the asserted restriction would make impracticable the subsequent competitive
acquisition of the item or process to which the technical data relates, the Contracting
Officer will follow the procedures in paragraph (f) of this clause.

(3) If the Contractor or subcontractor fails to respond to the Contracting
Officer's request for information under paragraph (d)(1) of this clause, and the
Contracting Officer determines that continued adherence to the asserted restriction
would make impracticable the subsequent competitive acquisition of the item or process
to which the technical data relates, the Contracting Officer may challenge the validity of
the asserted restriction as described in paragraph (f) of this clause.

(e) Prechallenge request for information related to assertion restrictions on computer
software. (1) The Contracting Officer may request the Contractor to provide sufficient
information to enable the Contracting Officer to evaluate the Contractor's asserted
restrictions. Such information shall be based upon the records required by this clause
or other information reasonably available to the Contractor.

(2) Based upon the information provided, if the—

(i) Contractor agrees that an asserted restriction is not valid, the
Contracting Officer may—

(A) Strike or correct the unjustified marking at the Contractor's
expense; or

(B) Return the computer software to the Contractor for correction at the
Contractor's expense. If the Contractor fails to correct or strike the unjustified marking
and return the corrected software to the Contracting Officer within 60 days following
receipt of the software, the Contracting Officer may correct or strike the marking at the
Contractor's expense;

(ii) Contracting Officer concludes that the asserted restriction is appropriate
for this contract, the Contracting Officer shall so notify the Contractor in writing.

(3) The Contractor's failure to provide a timely response to a Contracting
Officer's request for information or failure to provide sufficient information to enable the
Contracting Officer to evaluate an asserted restriction shall constitute reasonable
grounds for questioning the validity of an asserted restriction.

(f) Challenge. (1) Notwithstanding any provision of this contract concerning
inspection and acceptance, if the Contracting Officer determines that a challenge to the
asserted restriction is warranted, the Contracting Officer will send a written challenge
notice to the Contractor or subcontractor making the asserted restriction. The
challenge notice and all related correspondence shall be subject to handling procedures
for classified information and controlled unclassified information. Such challenge will—

(i) State the specific grounds for challenging the asserted restriction
including, for technical data related to commercial products or commercial services,
sufficient information to reasonably demonstrate that the commercial product or
commercial service was not developed exclusively at private expense;

(ii) Require a response within 60 days justifying the assertion based upon
records kept in accordance with paragraph (c) of this clause and providing sufficient
evidence as to the current validity of the asserted restriction;

(iii) State that a Contracting Officer's final decision, issued pursuant to
paragraph (h) of this clause, or action of a court of competent jurisdiction or Board of
Contract Appeals that sustained the validity of an identical assertion made by the
Contractor (or a licensee) sustaining the validity of a prior asserted restriction identical
to the current asserted restriction, within the 3-year period preceding the current
challenge, shall serve as justification for the current asserted restriction if the prior
validated restriction was asserted by the same Contractor or subcontractor (or any
licensee of such Contractor or subcontractor) to which such notice is being provided; and

(iv) State that failure to respond to the challenge notice may result in
issuance of a final decision pursuant to paragraph (g) of this clause.

(2) The Contracting Officer will extend the time for response as appropriate if
the Contractor or subcontractor submits a written request showing the need for
additional time to prepare a response.

(3) The Contractor's or subcontractor's written response shall be considered a
claim within the meaning of the 41 U.S.C. 7101, Contract Disputes, and shall be
certified in the form prescribed at 33.207 of the Federal Acquisition Regulation,
regardless of dollar amount.

(4) A Contractor or subcontractor receiving challenges to the same asserted
restrictions from more than one Contracting Officer shall notify each Contracting
Officer of the existence of more than one challenge. The notice shall also state which
Contracting Officer initiated the first in time unanswered challenge. The Contracting
Officer initiating the first in time unanswered challenge after consultation with the
Contractor or subcontractor and the other Contracting Officers, will formulate and
distribute a schedule for responding to each of the challenge notices to all interested
parties. The schedule will afford the Contractor or subcontractor a reasonable
opportunity to respond to each challenge notice. All parties will be bound by this
schedule.

(5) The Contracting Officer may request additional supporting documentation
if, in the Contracting Officer's opinion, the Contractor's explanation does not provide
sufficient evidence to justify the validity of the asserted restrictions. The Contractor
agrees to promptly respond to the Contracting Officer's request for additional
supporting documentation.

(6) Notwithstanding challenge by the Contracting Officer, the parties may
agree on the disposition of an asserted restriction at any time prior to a Contracting
Officer's final decision or, if the Contractor has appealed that decision, filed suit, or
provided notice of an intent to file suit, at any time prior to a decision by a court of
competent jurisdiction or Board of Contract Appeals.

(g) Final decision when Contractor or subcontractor fails to respond. Upon a failure
of a Contractor or subcontractor to submit any response to the challenge notice or a
request for additional information (under paragraphs (f)(1) and (f)(5) of this clause), the
Contracting Officer will issue a final decision to the Contractor or subcontractor in
accordance with the Disputes clause of this contract. In order to sustain the challenge
for commercial products or commercial services, the Contracting Officer will provide
information demonstrating that the commercial product or commercial service was not
developed exclusively at private expense. This final decision will be issued as soon as
possible after the expiration of the time period of paragraph (f)(1)(ii) or (f)(2) of this
clause. Following issuance of the final decision, the Contracting Officer will comply
with the procedures in paragraphs (h)(2)(ii) through (iv) of this clause.

(h) Final decision when Contractor or subcontractor responds. (1) If the
Contracting Officer determines that the Contractor or subcontractor has justified the
validity of the asserted restriction, the Contracting Officer will issue a final decision to
the Contractor or subcontractor that sustains the validity of the asserted restriction and
that states that the Government will continue to be bound by the asserted restriction.
The Contracting Officer will issue this final decision within 60 days after receipt of the
Contractor's or subcontractor's response to the challenge notice, or within such longer
period that the Contracting Officer has notified the Contractor or subcontractor that the
Government will require. The Contracting Officer will provide notification of any longer
period for issuance of a final decision within 60 days after receipt of the response to the
challenge notice.

(2)(i) If the Contracting Officer determines that the validity of the asserted
restriction is not justified, the Contracting Officer will issue a final decision to the
Contractor or subcontractor in accordance with the Disputes clause of this contract. To
sustain the challenge for technical data related to commercial products or commercial
services, the Contracting Officer will provide information demonstrating that the
commercial product or commercial service was not developed exclusively at private
expense. Notwithstanding paragraph (e) of the Disputes clause, the final decision will
be issued within 60 days after receipt of the Contractor's or subcontractor's response to
the challenge notice, or within such longer period that the Contracting Officer has
notified the Contractor or subcontractor that the Government will require. The
notification of a longer period for issuance of a final decision will be made within 60
days after receipt of the response to the challenge notice.

(ii) The Government agrees that it will continue to be bound by the asserted
restriction for a period of 90 days from the issuance of the Contracting Officer's final
decision under paragraph (h)(2)(i) of this clause. The Contractor or subcontractor
agrees that, if it intends to file suit in the United States Court of Federal Claims, it will
provide a notice of intent to file suit to the Contracting Officer within 90 days from the
issuance of the Contracting Officer's final decision under paragraph (h)(2)(i) of this
clause. If the Contractor or subcontractor fails to appeal to an agency Board of Contract
Appeals, file suit in an appropriate court, or provide a notice of intent to file suit in an
appropriate court to the Contracting Officer within the 90-day period, the Government
may cancel or ignore the restrictive markings that are based on the asserted
restrictions, and the failure of the Contractor or subcontractor to take the required
action constitutes agreement with such Government action.

(iii) The Government agrees that it will continue to be bound by the
asserted restriction where a notice of intent to file suit in the United States Court of
Federal Claims is provided to the Contracting Officer within 90 days from the issuance
of the final decision under paragraph (h)(2)(i) of this clause. The Government will no
longer be bound, and the Contractor or subcontractor agrees that the Government may
strike or ignore the restrictive marking that is based on the asserted restriction, if the
Contractor or subcontractor fails to file its suit within 1 year after issuance of the final
decision. Notwithstanding the foregoing, where the head of an agency determines, on a
nondelegable basis, that urgent or compelling circumstances will not permit waiting for
the filing of a suit in the United States Court of Federal Claims, the Contractor or
subcontractor agrees that the agency may, following notice to the Contractor or
subcontractor, authorize release or disclosure of the technical data or computer
software. The Government agrees not to release or disclose such technical data or
computer software unless, prior to release or disclosure, the intended recipient is subject
to the use and nondisclosure agreement at Defense Federal Acquisition Regulation
Supplement (DFARS) 227.7103-7, or is a Government contractor receiving access to the
technical data or computer software for performance of a Government contract that
contains the clause at DFARS 252.227-7994, Limitations on the Use or Disclosure of
Government-Furnished Information Marked with Restrictive Legends. Such agency
determination may be made at any time after issuance of the final decision and will not
affect the Contractor's or subcontractor's right to damages against the United States
where its asserted restrictions are ultimately upheld or to pursue other relief, if any, as
may be provided by law.

(iv) The Government agrees that it will be bound by the asserted
restrictions where an appeal or suit is filed pursuant to the Contract Disputes statute
until final disposition by an agency Board of Contract Appeals or the United States
Court of Federal Claims. Notwithstanding the foregoing, where the head of an agency
determines, on a nondelegable basis, following notice to the Contractor that urgent or
compelling circumstances will not permit awaiting the decision by such Board of
Contract Appeals or the United States Court of Federal Claims, the Contractor or
subcontractor agrees that the agency may authorize release or disclosure of the
technical data or computer software. The Government agrees not to release or disclose
such technical data or computer software unless, prior to release or disclosure, the
intended recipient is subject to the use and nondisclosure agreement at Defense Federal
Acquisition Regulation Supplement (DFARS) 227.7103-7, or is a Government contractor
receiving access to the technical data or computer software for performance of a
Government contract that contains the clause at DFARS 252.227-7994, Limitations on
the Use or Disclosure of Government-Furnished Information Marked with Restrictive
Legends. Such agency determination may be made at any time after issuance of the
final decision and will not affect the Contractor's or subcontractor's right to damages
against the United States where its asserted restrictions are ultimately upheld or to
pursue other relief, if any, as may be provided by law.

(i) Final disposition of appeal or suit. (1) If the Contractor or subcontractor appeals
or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's
decision is sustained—

(i) The restrictive marking that is based on the asserted restriction on the
technical data or computer software shall be cancelled, corrected or ignored; and

(ii) If the asserted restriction is found not to be substantially justified, the
Contractor or subcontractor, as appropriate, shall be liable to the Government for
payment of the cost to the Government of reviewing the asserted restriction and the fees
and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government
in challenging the asserted restriction, unless special circumstances would make such
payment unjust.

(2) If the Contractor or subcontractor appeals or files suit and if, upon final
disposition of the appeal or suit, the Contracting Officer's decision is not sustained—

(i) The Government will continue to be bound by the restrictive marking;
and

(ii) The Government will be liable to the Contractor or subcontractor for
payment of fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by
the Contractor or subcontractor in defending the marking, if the challenge by the
Government is found not to have been made in good faith.

(j) Duration of right to challenge. (1) The Government may review the validity of
any restriction on technical data or computer software, delivered or that the Contractor
must deliver under a contract, asserted by the Contractor or subcontractor. During the
period within 6 years of final payment on a contract or within 6 years of delivery of the
technical data or computer software to the Government, whichever is later, the
Contracting Officer may review and make a written determination to challenge the
restriction. The Government may, however, challenge a restriction on the release,
disclosure, or use of technical data or computer software at any time if such technical
data or computer software—

(i) Are publicly available;

(ii) Have been furnished to the United States without restriction;

(iii) Have been otherwise made available without restriction; or

(iv) Are the subject of a fraudulently asserted use or release restriction.

(2) Only the Contracting Officer's final decision resolving a formal challenge by
sustaining the validity of a restrictive marking or actions of an agency Board of
Contract Appeals or a court of competent jurisdiction that sustain the validity of an
asserted restriction constitute "validation" as addressed in 10 U.S.C. 3785(c).

(k) Decision not to challenge. A decision by the Government, or a determination by
the Contracting Officer, to not challenge the restrictive marking or asserted restriction
shall not constitute "validation."

(l) Privity of contract. The Contractor or subcontractor agrees that the Contracting
Officer may transact matters under this clause directly with subcontractors at any tier
that assert restrictions. However, this clause neither creates nor implies privity of
contract between the Government and subcontractor.

(m) Flowdown. The Contractor or subcontractor agrees to insert this clause in
contractual instruments, including subcontracts and other contractual instruments for
commercial products or commercial services, with its subcontractors or suppliers at any
tier requiring the delivery of technical data or computer software. The clause may not
be altered other than to identify the appropriate parties.

(End of clause)