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  • Question

    What process/methods are available to transfer the data to the USG so we can provide it to different manufacturers for use in production?


    Answer

    DAU apologizes for the delay in responding to your question.

    The Department of Justice has issued an opinion stating that "[A] government employee with actual authority to contract on behalf of the United States violates the Anti-Deficiency Act by entering into an unrestricted, open-ended indemnification agreement on behalf of the government."  See https://www.justice.gov/sites/default/files/opinions/attachments/2021/02/23/2012-03-27-online-tos-agmts.pdf

    The Antideficiency Act prevents the "incurring of obligations or the making of expenditures (outlays) in excess of amounts available in appropriations or funds." Since the financial liability incurred by a federal agency may exceed appropriated funds if it agrees to an open-ended indemnification clause which doesn't specify damage amounts if the federal agency is found liable in a contract dispute. Therefore, these clauses are generally not agreed to and deleted from a contract. However, each agreement should be reviewed on a case-by-case basis to evaluate the potential obligations and liability imposed on the agency to determine if an Anti-deficiency issue exists.   

    Also, federal agencies may have equipment, IP and other resources transferrred to it via a technology transfer,   technology sharing or other agreement. However, the terms of use must allow the agency to transfer to  different manufactures for production. These types of transactions may also raise financial, property and ethical questions. Thus, you should contact your agency's General Counsel's Office to vet these issues. 

     

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