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Technical Data Rights Strategies

The Government Accountability Office (GAO) issued an important new report on Friday entitled “GAO-11-469 Defense Acquisition: DOD Should Clarify Requirements for Assessing and Documenting Technical…

Technical Data Rights Strategies


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Bill Kobren

The Government Accountability Office (GAO) issued an important new report on Friday entitled “GAO-11-469 Defense Acquisition: DOD Should Clarify Requirements for Assessing and Documenting Technical-Data Needs.” Given the implications related to long-term product support planning and sustainment strategy execution, highly recommend all life cycle logisticians take the time to read this report.


According to the GAO, “some of the Department of Defense’s (DOD) weapon systems remain in the inventory for decades. Therefore, decisions that program officials make during the acquisition process to acquire or not acquire rights to technical data, which may cost $1 billion, can have far-reaching implications for DOD’s ability to sustain and competitively procure parts and services for those systems. DOD needs access to technical data to control costs, maintain flexibility in acquisition and sustainment, and maintain and operate systems. In response to a congressional request, GAO reviewed the extent to which: (1) DOD has updated its acquisition and procurement policies to reflect a 2007 law and 2006 GAO recommendations; (2) selected acquisition programs adhered to requirements to document technical-data needs; and (3) DOD took actions to improve technical-data decisions by program managers. GAO interviewed DOD officials, reviewed acquisition strategies and acquisition plans from 12 programs, and compared those documents to relevant DOD policies.”


“To establish effective internal controls over technical-data policies that improve DOD’s ability to efficiently and cost-effectively acquire and sustain weapon systems over their life cycles”, the GAO specifically recommended “that the Secretary of Defense direct the Under Secretary of Defense for Acquisition, Technology and Logistics to take the following two actions:


·         Issue updates to the acquisition and procurement policies that clarify requirements for documenting long-term technical-data requirements in program acquisition strategies and acquisition plans. Among other things, DOD should clarify the level and type of detail required for acquiring technical data and technical-data rights that should be included in acquisition strategies and acquisition plans.


·         Issue instructions for program managers to use when conducting business-case analyses that are part of the process for determining the levels and types of technical data and technical-data rights needed to sustain DOD’s systems. The instructions should identify the elements to be included in the analyses and the types.”


Technical data management strategies and technical data rights issues are something all of us need to be familiar with. Strongly recommend program managers, life cycle logisticians, systems engineers, and contracting officers review not only this GAO report, but also re-read DoD Instruction 5000.02, Enclosure 12, Paragraph 9 guidance on the subject entitled “Data Management and Technical Data Rights”, which requires that:


a. Program Managers for ACAT I and II programs, regardless of planned sustainment approach, shall assess the long-term technical data needs of their systems and reflect that assessment in a Data Management Strategy (DMS). The DMS shall:


(1) Be integrated with other life-cycle sustainment planning and included in the Acquisition Strategy;


(2) Assess the data required to design, manufacture, and sustain the system, as well as to support re-competition for production, sustainment, or upgrades; and


(3) Address the merits of including a priced contract option for the future delivery of technical data and intellectual property rights not acquired upon initial contract award and shall consider the contractor’s responsibility to verify any assertion of restricted use and release of data.


b. The DMS shall be approved in the context of the Acquisition Strategy prior to issuing a contract solicitation.


In addition, recommend reading up on what the Defense Acquisition Guidebook (DAG) has to say on the subject, in particular the following paragraphs:


·         Para 2.2.14. Data Management Strategy and Technical Data Rights

·         Para Data Management

·         Para Data and Software Concepts

·         Para Contracting for Technical Data