The Assertion List is an early identification of the noncommercial technical data and noncommercial computer software to be delivered to the Government under the contract with restrictions on use, release or disclosure. The Assertion List is prescribed by DFARS 252.277-7017 and the complete clause should be written in full in Section K of all RFPs. An Assertion List requires offerors/contractors to identify any noncommercial data (data is technical data and computer software) to be delivered or otherwise provided under the contract to the Government with data rights requirements more restrictive that unlimited data rights.
Generally, data rights in technical data, computer software or computer software documentation (technical data) are apportioned between the contractor and the Government according to who paid for the development of the item or process to which the technical data pertains or who paid for the development of the computer software. Data Rights are the Government’s legal license right to use, modify, reproduce, perform, display, release or disclose the noncommercial technical data or noncommercial computer Software. Data Rights are the Government’s license rights in contractor’s noncommercial technical data and noncommercial computer software. These Government license rights can vary from very broad (unlimited rights) to very narrow (Restricted Rights/Limited Rights). However note, the Government takes rights in certain categories of noncommercial technical data and computer software regardless of the source of funding, i.e., Government secures unlimited rights in certain data that has been ordered and is to be delivered under the contract.
The DFARS states that the definition of Unlimited Data Rights means the rights to use, modify, reproduce, perform, display, release, or disclose technical data, computer software or computer software documentation in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so. Ordered data that is to be delivered to the Government and in which the Government has unlimited rights should not be found listed on an Assertion List.
Government Purpose Rights, Limited Rights, Restricted Rights, SBIR Rights or Specially Negotiated License Rights are the Government License Rights in Data that are narrower than unlimited rights. Contractor data that will be delivered to the Government with data rights narrower than unlimited data rights are required to be listed on the Assertion List.
The DFARS Clauses listed in the RFP and contract will have a marking requirement for the contractor/owner of the data with regard to delivered data. The marking format is provided in the DFARS clauses. These markings on the data give notice to data users as to exactly what data rights the Government has in the data, the owner of the data and when the original data rights will expire to broader data rights. The Assertion List then is a critical attachment to an offer.
The full text of the DFARS Clause for the Assertion List can be found at: DFARS 252.227-7017 http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/dfars/dfars252_227.htm
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.
The DFARS 252.227-7028 Clause is to be used for disclosure of existing Government data rights in noncommercial technical data and noncommercial computer software that have been delivered to, produced for, or are obligated to be delivered to the Government under any other contract or subcontract. Note: prior data rights are NOT extinguished when the underlying item or process or computer software later becomes “commercial.”
The DFARS provides a list of data in which the Government will secure unlimited rights:
Unlimited rights. The Government shall have unlimited rights in technical data that are—
(i) Data pertaining to an item, component, or process which has been or will be developed exclusively with Government funds;
(ii) Studies, analyses, test data, or similar data produced for this contract, when the study, analysis, test, or similar work was specified as an element of performance;
(iii) Created exclusively with Government funds in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes;
(iv) Form, fit, and function data;
(v) Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);
(vi) Corrections or changes to technical data furnished to the Contractor by the Government;
(vii) Otherwise publicly available or have been released or disclosed by the Contractor or subcontractor without restrictions on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party;
(viii) Data in which the Government has obtained unlimited rights under another Government contract or as a result of negotiations; or
(ix) Data furnished to the Government, under this or any other Government contract or subcontract thereunder, with—
(A) Government purpose license rights or limited rights and the restrictive condition(s) has/have expired; or
(B) Government purpose rights and the Contractor's exclusive right to use such data for commercial purposes has expired.
Unlimited rights. The Government shall have unlimited rights in—
(i) Computer software developed exclusively with Government funds;
(ii) Computer software documentation required to be delivered under this contract;
(iii) Corrections or changes to computer software or computer software documentation furnished to the Contractor by the Government;
(iv) Computer software or computer software documentation that is otherwise publicly available or has been released or disclosed by the Contractor or subcontractor without restriction on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the software to another party or the sale or transfer of some or all of a business entity or its assets to another party;
(v) Computer software or computer software documentation obtained with unlimited rights under another Government contract or as a result of negotiations; or
(vi) Computer software or computer software documentation furnished to the Government, under this or any other Government contract or subcontract thereunder with—
(A) Restricted rights in computer software, limited rights in technical data, or government purpose license rights and the restrictive conditions have expired; or
(B) Government purpose rights and the Contractor's exclusive right to use such software or documentation for commercial
Contracting officer, attorneys and program management should review the Assertion List:
- Review substantiation documentation for validity
- Evaluate restraints that could critically impact the program and any follow-on procurements
- Request additional information to evaluate assertions
- Challenge an assert after the award, the contractor has a contractual obligation to have proof on file and available of its assertion