Data and Intellectual Property Strategies, do you have one?
The Acquisition Reform initiatives in the 1980s and 90s promoted performance specifications rather than acquisition of detailed design data. The policy pendulum has swung back to acquiring the data to support competitive acquisition, manufacture, and sustainment of the products we procure. However, it may not always be possible, practical or feasible to “acquire all the data”.
A more reasonable approach is the development of an approved program strategy. When it comes to data, the Government’s bargaining position is the strongest in the early phases of a development effort. The responsibility for formulating these strategies reside with the Program Manager. The Contracting Officer and legal counsel, along with other acquisition team members, are participants in this process and play a role in enabling an informed decision over what rights the Government seeks to retain.
Department of Defense data rights and entitlements are defined by specific clauses in the DFARS. Understanding the applicability of these DFARS clauses is essential in protecting our Government’s rights to this data. Data and data rights requirements must be defined, estimated, and accounted for the entire system life cycle. A RFP and Source Selection Plan must also include evaluation criteria from a data and data rights perspective. All data and data rights license agreements must be attached to the contract and stored for future reference. Data deliverables should be inspected and verified before Government acceptance. Data deliverables and data rights form the foundation of a complete product solution.
The Government should seek only the appropriate level of data. This should be done as a holistic assessment looking at short- and long-term needs of a system upfront and then seek only the data required to support those needs. And it is up to each of us to manage and use the data. Proper markings of delivered data help all stakeholders with identifying data ownership and its distribution restrictions.
Assets like intellectual property can and should be protected using patents, copyrights, trademarks, or trade secrets. A program IP strategy should be prepared early in the development life cycle, updated prior to each life cycle phase, and approved before each RFP is issued. Synchronization of program strategies is important for successful data acquisition and management and should take place before gathering data and data rights requirements.
Data will be collected as part of any development program, so the “how, where, and by whom” are questions that need to be answered when it comes to establishing a data repository system. DFARS 227.7108 prescribes a range of conditions that the Government must contractually require from the repository management contractor. CDRLs are still required when utilizing a contractor repository. All of these decisions come with a price tag, so it is important to include data and data rights related costs in the program life cycle cost estimate, to include data storage infrastructure costs for establishment or expansion of a data management system, related operating and support costs, and related disposal costs. Risk is also a factor in this decision making process. It is critical to the success of a program to assess potential risks associated with data and data rights and know how to mitigate them should an issue materializes.
The information contained in this blog comes from the Army Data & Data Rights (D&DR) Guide, 1st Edition, dated August 2015. In addition, please refer to Army Directive 2018-26, dated December 2018, as applicable.