PGI 227.7103-18: Acquisition of other than commercial technical data, computer software, and computer software documentation and associated rights.

(a) Applicable Guidance. See DoDI 5010.44, Intellectual Property (IP) Acquisition and Licensing, sections 4.1 and 4.2, when formulating business advice and contract implementation strategies regarding the program manager’s tailoring of technical data requirements to the needs of the Government.

(b) Compliance with applicable policies. Work closely with data managers and requirements personnel to ensure that technical data, computer software, and computer software documentation requirements included in solicitations are consistent with the policy expressed in 227.7103-1.

(c) Acquisition of technical data. (1)(i) Data managers or other requirements personnel are responsible for identifying the Government’s life-cycle needs for technical data.

(ii) When establishing technical-data needs, requirements personnel must give consideration to—

(A) The offeror’s economic interests in technical data pertaining to items, components, or processes that have been developed at private expense (including the economic interests of small businesses and nontraditional contractors);

(B) The Government’s costs to acquire, maintain, store, retrieve, and protect the technical data;

(C) Reprocurement needs;

(D) Repair, maintenance, and overhaul philosophies;

(E) Spare and repair part considerations; and

(F) Whether procurement of the items, components, or processes can be accomplished on a form, fit, or function basis.

(iii) When the Government will likely obtain unlimited or government purpose rights in technical data necessary for competitive spare or repair parts procurements, such data should be identified as deliverable technical data items; and

(iv) The fact that reprocurement needs might not justify acquiring detailed manufacturing or process data when—

(A) Items or components can be acquired using performance specifications, form, fit, and function data; or

(B) When a sufficient number of alternate sources exist that will likely provide such items on a performance specification or form, fit, or function basis.

(2) When reviewing offers received in response to a solicitation or other request for data, data managers should, as appropriate, balance the original assessment of the Government’s data needs with data prices contained in the offer.

(d) Acquisition of computer software and computer software documentation. (1) (i) Data managers or other requirements personnel are responsible for identifying the Government’s life-cycle needs for computer software and computer software documentation.

(ii) To the maximum extent practicable, assessment of life-cycle needs should include consideration of periodic delivery of computer software and computer software documentation including all executable code, source code, associated scripts, build procedures, automation scripts, tools, databases, libraries, test results, data sets, firmware, training materials, and any other elements necessary to integrate, test and evaluate, debug, deploy, and operate the software application in all relevant environments (e.g., development, staging, production).

(iii) See DoDI 5010.44, Intellectual Property (IP) Acquisition and Licensing, sections 4.1 and 4.2, when formulating business advice and contract implementation strategies regarding the program manager’s tailoring of software requirements to the needs of the Government.

(iv) In addition to desired software performance, compatibility, or other technical considerations, identification of life-cycle needs should include consideration of such factors as—

(A) The offeror’s economic interests in software that has been developed at private expense (including the economic interests of small businesses and nontraditional contractors);

(B) The Government’s costs to develop, acquire, maintain, store, retrieve, and protect the computer software and computer software documentation;

(C) Multiple site or shared use requirements;

(D) Whether the Government’s software maintenance philosophy will require the right to modify or have third parties modify the software; and

(E) Any special computer software documentation requirements.

(2) (i) Procurement planning. The assessment of life-cycle needs should consider delivery timelines to facilitate transition to a different contractor or to the Government. This approach facilitates management of program risk and supports options for flexibility in the transition of software sustainment to another organization. Ensure that, wherever practicable, solicitations and contracts include the requirements for periodic delivery and any delivery timelines for computer software and computer software documentation, based upon the assessment of life-cycle needs. To the maximum extent practicable, when assessing the life-cycle needs, data managers or other requirements personnel will address in the procurement planning and requirements documents (e.g., acquisition plans, purchase requests) the acquisition at appropriate times in the life cycle of all computer software, related recorded information, and associated license rights necessary to—

(A) Reproduce, build, or recompile the software from its source code and required software libraries (e.g., software libraries called, invoked, or linked by the computer software source code that are necessary for the operation of the software). (Based on the results of the assessment of life-cycle needs, and to the maximum extent practicable, all software capability descriptions should accompany source code (e.g., features, story points, use cases) and all as-built architecture and design products, traceability products, interface definitions including interfaces to proprietary software elements, and any other requisite documentation.);

(B) Conduct required computer software testing and evaluation;

(C) Integrate and deploy computer programs on relevant hardware including developmental, operational, diagnostic, training, or simulation environments; and

(D) Sustain and support the software over its life cycle.

(ii) Alternatives to delivery of source code and related software design details. The assessment of life-cycle needs should consider alternatives to the delivery of source code and related software design details for privately developed computer software as necessary to meet the Government’s needs, such as—

(A) Technical data and computer software sufficient to implement a modular open system approach or a similar approach.

(1) In determining whether the Government should require delivery of computer software source code and related software design details developed exclusively or partially at private expense, data managers and other requirements personnel are responsible for considering whether these alternatives permit the Government to—

(i) Acquire the amount of data needed to procure and support systems, material, and services in an economical manner based on a cost or price analysis;

(ii) Meet its management, engineering, and logistics needs; and

(iii) Maintain the currency of acquired technical data or software consistent with the assessment of life-cycle needs.

(2) To the extent practicable, the Government should also require open interface documentation for any privately developed computer software used in or interoperable with software developed for the Government, to allow for technology insertion on all sides of the interface, as applicable, and to support the use of modular open system approaches;

(B) Access to technical data or computer software, including access agreements for cloud-based or subscription-based software products or services.

(1) Access agreements permit the Government to view, print, download, annotate, modify, or make derivatives of technical data or computer software stored within a contractor-controlled repository or facility (e.g., in an online environment or in person). Examples of access arrangements include remote online authorization to access an integrated data environment, product data management system operated by the contractor, or mechanisms authorizing physical entry to a contractor-controlled data repository, or cloud-based or subscription-based software products or services. The negotiated access agreement must stipulate permissions based on the assessment of life-cycle needs; make the access agreement part of the contract.

(2) For each technical data or computer software requirement, the requiring activity should determine whether the Government’s needs can be better satisfied through access or formal delivery of the technical data or software (e.g., physical or electronic transfer of the data into Government custody). The Government should consider access to technical data or software when—

(i) The delivery of technical data or software is not cost-effective or feasible for technical, legal, or contractual reasons; and

(ii) Access meets the Government’s needs for such technical data or software throughout the life-cycle of the program;

(C) Software support and maintenance provided directly from the contractor; or

(D) Other contracting or licensing mechanisms including priced options, specially negotiated licenses, direct licensing between contractors for qualifying second sources, data escrow agreements, deferred delivery solutions, and subscription agreements.

(1)(i) Under a data escrow agreement, the Government and the contractor identify a third-party escrow agent that will keep designated technical data or computer software for safekeeping until a contractually specified condition occurs.

(ii) If a contractually specified condition occurs, then the Government may obtain delivery of the escrowed technical data or computer software.

(iii) Include the data escrow agreement in the contract. Include in the contract the Government’s license rights in the escrowed technical data or computer software.

(2) Use of data escrow agreements is not preferable in all cases but may be useful when formal delivery or access is not feasible or cost-effective during the contract’s period of performance or delivery schedule.

(3) When reviewing offers received in response to a solicitation or other request for computer software or computer software documentation, data managers should, if appropriate, balance the original assessment of the Government’s needs with prices offered.

(e) Contract implementation of technical data and software requirements. Ensure that, wherever practicable, solicitations and contracts—

(1) Identify the type and quantity of the technical data to be delivered under the contract and the format and media in which the data will be delivered;

(2) Identify the types of computer software and the quantity of computer programs and computer software documentation to be delivered, any requirements for multiple users at one site or multiple site licenses, and the format and media in which the software or documentation will be delivered;

(3) Establish each type of data item, computer software, or computer software documentation to be delivered as a separate contract line item (this requirement may be satisfied by an exhibit to the contract);

(4) Identify the prices established for each separately priced deliverable item of technical data, computer software, or computer software documentation under a fixed-price type contract;

(5) Include delivery schedules and acceptance criteria for each deliverable item of technical data or computer software;

(6) Specifically identify the place of delivery for each deliverable item of technical data or computer software; and

(7) Specify in the negotiated terms that any required other than commercial computer software, related recorded information, and associated license rights identified in the assessment of life-cycle needs in paragraph (b) of this section must, to the extent appropriate—

(i) Include computer software delivered in a digital format compatible with applicable computer programs on relevant system hardware;

(ii) Not rely on additional internal or external other than commercial or commercial technical data and software, unless such technical data or software is—

(A) Included in the items to be delivered with license rights sufficient to meet the Government’s needs; or

(B) Commercially available with license rights sufficient to meet the Government’s needs; and

(iii) Include sufficient information, with license rights sufficient to meet the Government’s needs, to support maintenance and understanding of interfaces and software version history when the negotiated terms do not allow for the inclusion of the external or additional other than commercial or commercial technical data and software.