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  • Question

    If the Government exclusively funds the project in a CPFF contract for a piece of software on a standalone contract but both sides neglect to include any data rights clause and no one asserted any rights on the rfp/contract. What and any default rights are there for the Government? Do we default to GPR or unlimited rights?


    Answer

    First the contract should be read to determine exactly what terms, conditions, clauses, etc., with respect to data rights are included in the contract.   This will likely be determinative of the outcome of the case and which way to best proceed.

    It could be that even though the data rights clauses were omitted from the contract, the court or Armed Services Board of Contract Appeals (ASBCA) will “read in” or include the clauses based on the Christian Doctrine.  See G.L. Christian & Assoc. v. United States, 312 F.2d 418 (Ct. Cl. 1963).


    Under this doctrine, the Government would be entitled to the rights in the data it would have been entitled to had the clauses been included.   Assuming the development was funded exclusively by the Government, the Government would be entitled to unlimited rights. 
    DFARS 252.227-7013

    In making its decision, the Court (or ASBCA) will, among other things, look to see whether the omission was intentional or unintentional and if the clause is a “mandatory contract clause that expresses a significant or deeply ingrained strand of public procurement policy.” 


    The Contracting Officer may attempt to settle this with the Contractor outside the claim process, but may need to initiate a claim and issue a final decision that the clauses are incorporated into the contract pursuant to the Christian Doctrine along with the specific Government’s rights as specified in the contract clause.  See Alenia North America, Inc., ASBCA No. 57935, 13-1 BCA ¶ 35296, 2013 WL 1871512.


    We strongly recommend you seek assistance from your legal office before proceeding in this matter.


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