Assertion List Examples, Incorrect vs Correct Assertions
DAU GLOSSARY DEFINITION
Procedural Requirements:
Offeror must assert prior to contract award. Obligation to assert prior to delivery, post-award update can only be made for new or inadvertent omissions not affecting the source selection. The level of the offer’s assertion is important. The offeror/contractor has the burden of selecting the level at which an assertion (and the resulting markings of the data) will be made. Considering noncommercial computer software, does the listing of the whole or the individual modules in the software have an impact. Yes! All the data listed at a chosen level might be a critical issue if the offeror/contractor cannot justify the assertion. For example, if the offeror were to assert restricted rights in the whole computer software and the contracting officer were to determine that the some of the software modules were developed under a different contract with Government funds, the contracting officer would challenge this assertion, post-award. If the contracting officer were successful, the whole computer software would then have Government Purpose Rights or Unlimited Rights applied rather than different modules having different asserted levels of data rights.
Doctrine of Segregability: The lowest practical segregable level for software is: module, subroutine, and for technical data is: subsystem, component or sub-component. The level at which the offeror/contractor asserts based on the Funding Test or the Exception to the Funding Test is critical to both the Government and the offeror/contractor. It is also critical that Government slowly review and double check the offeror’s assertions.
Looking more closely at the Assertion List.
Contractor must identify:
- All noncommercial technical data or noncommercial computer software that the contract requires as a deliverable and that the contractor asserts should be delivered to the Government with less that unlimited rights
- The basis for the assertion. Funding of the development of item, component or process to which the technical data depends or software was “exclusively at private expense,” (Limited Rights or Restricted Rights) or “exclusively with mixed funds” (Government Purpose Rights) and “SBIR Rights” or “Specifically Negotiated Rights” can have a different basis
- Naming the party making the assertion, offeror/contractor, subcontractor or supplier
Funding Test: Was the item, component or process or the computer software development funded exclusive with private funds, exclusively with Government funds or a mix of the funding sources.
Exception to the Funding Test: The DFARS clauses, DFARS 252.227-7013, -7014 enumerates specific data in which the Government will have unlimited right no matter who funded the development.
Commercial technical data or commercial computer software are not to be listed in the DFARS 252.227-7017 Assertion List.
Examples of Bad Assertion Lists
| Technical Data/Computer Software to be Furnished With Restrictions | Basis of Assertion | Asserted Rights Category | Person Asserting Restrictions |
|---|---|---|---|
| CDRLS (monthly reports, test results, minutes for technical interchange meetings, designs, cost accounting, development status, etc.) risk mitigation concepts, synopsis of discussions, and other reports/documents | SOW, dated 1 May 2009, “The Government will retain limited use rights to ideas, concepts, designs, and other documentation delivered under this contract.” | Limited Rights | XYZ Corp. |
| Unlimited Rights in technical data developed with 100% Government funding | Not a basis for assertion | Unlimited Rights in technical data developed with 100% Government funding | |
| Company owned process for making widgets | Technical data that pertains to commercial items developed at private expense | Limited Rights | XYZ Corp. |
| Identify the technical data related to the process | Not a correct basis for assertion | ||
| Proprietary company owned software for making widgets | Commercial | Restricted Rights | XYZ Corp. |
| Which software? | Not a correct basis for assertion | ||
| Drawings | Private Funding | Limited Rights | XYZ Corp. |
| Which drawings? | Exclusively or partially | Exclusively = Limited Partially = Government Purpose Rights |
|
| System including product designs, database, software, algorithms | Proprietary | Limited/Restricted Rights | XYZ Corp. |
| Individual assertions must be made at the lowest segregable level | Not a correct basis | Assert Rights for each individual component | |
| Software for use with widgets | Commercial software | Restricted Rights | XYZ Corp. |
| If privately developed or if specially negotiated license, can include here but if commercially available software, do not include on this list | Not a correct basis | Restricted Rights if developed exclusively with private money but specifically negotiated rights if specially negotiated license | |
| US Patent NO. 1234567 May 2, 2010 | Partially private funding | Government Purpose Rights | XYZ Corp. |
| Do not include patents here – Government has unlimited rights in publicly available documents but exercise caution since claims can be infringed | Assertion must be made for each individual component | Assertion must be made for each individual component | |
| Concepts for improvement | Trade Secret | Limited/Restricted Rights | XYZ Corp. |
| Not computer software but documentation describing/detailing concept possibly technical data | Not a correct basis | Select one |
Examples of the Assertion List with errors.
First Column Errors: lacking a version number, insufficient information, unlimited rights Technical Data, Technical Data relating to the item not identified, not listing the specific name of the software or the technical data, assertion not at the lowest segregable level, publically available technical data or computer software, concepts listed
Second Column Basis for Assertion Errors: Developed at private expense, mentioning the Statement of Work, commercial, private funding, proprietary, commercial license, partial private funding, trade secret.
Third Column Asserted Rights Category: Rights is SBIR, Limited, Proprietary, Limited/Restricted
Correct Assertion Lists Example
| Technical Data/Computer Software to be Furnished With Restrictions | Basis of Assertion | Asserted Rights Category | Person Asserting Restrictions |
|---|---|---|---|
| Rad-X design drawing, Nos. 2221-2225, dated 5/03 | Developed exclusively at private expense | Limited Rights | XYZ Corp. |
| ABC Software for controlling curing of widgets, Ver. 3.5, 7/31/2002 | Developed exclusively at private expense | Restricted Rights | XYZ Corp. |
| Method of producing widgets, XYZ Document 102, 4/20/2002 | Developed exclusively at private expense | Limited Rights | XYZ Corp. |
| ABC process for sorting widgets by size, XYZ Document 22, dated 6/10/2006 | Developed partially at private expense | Government Purpose Rights | XYZ Corp. |
For a system, list data items at the lowest segregable component level:
| Technical Data/Computer Software to be Furnished With Restrictions | Basis of Assertion | Asserted Rights Category | Person Asserting Restrictions |
|---|---|---|---|
| Alli-Ooop software (module controlling removal of widgets from mold), Ver. 10.2, completed 3/3/2009 | Developed exclusively at private expense | Restricted Rights | XYZ Corp. |
| Alli-Ooop software (module for sorting widgets by size) Vers. 10.2, completed 3-3-2009 | Developed partially at private expense | Government Purpose Rights | XYZ Corp. |
| XYZ Better Mousetrap document, describing trapping device, document number and/or title, dated 3/14/2005 | Developed exclusively at private expense | Limited Rights | XYZ Corp. |
Common Errors found in Assertion Lists:
- Description is not precise or specific (too broadly stated)
- Assertions that are not based on Government Purpose Rights, Limited Rights, Restricted Rights, SBIR Rights, Special License Rights
- Description does not relate to what is being delivered
- Description does not relate to the Statement of Work
- Information does not conform to past contractual rights
- Assertion List not filled out with the required terminology, e.g., not using “exclusively”
- Subcontractor’s data is listed as being owned by the Prime contractor
- Not data that is an exception to the Funding Test, e.g., Form, Fit and Function Data, or Data necessary for Operations, Maintenance, Installation or Training purposes, excluding Detailed Manufacturing Data to name a few. (Government’s data rights in Detailed Manufacture Data will follow the Funding Test)
- Only items-technical data or computer software and not categories in which data rights do not apply
- Not ideas, concepts, scientific principles
- Not Government Furnished Information (GFI) that has been received from the Government or corrections to GFI
- Not items or computer software that are to be developed under the contract (would have unlimited rights)
- Not Commercial/COTS, proprietary, confidential
- Not the proposal
- Missing Signature of the offeror/contractor
Throughout the contract performance, the contractor can update the Assertion List as product designs evolve or is modified. These updated Assertion List must be monitored and approved by the contracting officer.
Throughout the contract performance, all markings on data must be assessed/monitored against the Assertion List, not just on the cover page but throughout the data.
Training on Assertion Lists and Markings should be provided to reviewers.
Similar programs should confirm that the same deliverable is not being delivered twice at an additional cost to the Government.
Search within the Data:
- Look for “Proprietary” or the Company name.
- A copyright notice is acceptable but not “All Rights Reserved.”