Asserting data restrictions before award

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1. Identify restrictions before delivery

The Defense Federal Acquisition Regulation Supplement (DFARS) requires restrictions on technical data to be flagged early. Under the statute it implements, technical data to be delivered with restrictions on use must, to the maximum extent practicable, be identified before delivery (DFARS 227.7103-3(a)). The provision at DFARS 252.227-7017 goes in every solicitation that includes the noncommercial technical data clause (DFARS 227.7103-3(b)). It requires offerors to identify any technical data for which they assert restrictions other than copyright, and to attach the identification to the offer.

The provision applies only to technical data, including software documentation, and software to be delivered with other than unlimited rights (DFARS 252.227-7017(b)). For small business research awards, it also covers research data to be generated under the contract and delivered with those programs’ data rights. Notification and identification are not required for restrictions based solely on copyright.

2. What the offer must contain

Offers must identify, to the extent known when submitted, the technical data or software that the offeror, its subcontractors or suppliers, or potential ones, assert should be furnished with restrictions (DFARS 252.227-7017(c)). The assertions go in an attachment to the offer in a prescribed format, dated and signed by an official authorized to bind the offeror contractually (DFARS 252.227-7017(d)). The format has four columns. They are the data or software to be furnished with restrictions, the basis for the assertion, the asserted rights category, and the name of the person asserting the restrictions.

The provision’s instructions explain each column (DFARS 252.227-7017(d)). For data pertaining to privately developed items, components or processes, the offeror identifies both the data and each item, component or process. Generally, development at private expense, exclusively or partially, is the only basis for asserting restrictions, and the offeror states which applies. The government’s rights in software documentation generally may not be restricted. The rights category might be government purpose license rights from a prior contract, small business research data rights, limited, restricted or government purpose rights, or a specially negotiated license.

3. Missing or incomplete attachments

If an offeror fails to submit the attachment, or does not complete it as the provision requires, that is a minor informality (DFARS 227.7103-10(a)(1)). Offerors are given a chance to remedy it under the procedures at FAR 14.405 or 15.306. An offeror’s failure to correct the informality within the time the contracting officer sets renders the offer ineligible for award. The provision itself states that failure to submit, complete or sign the identification may make the offer ineligible (DFARS 252.227-7017(e)).

The procedures for correcting minor informalities may not be used to obtain information about asserted restrictions or an offeror’s suggested rights category (DFARS 227.7103-10(a)(2)). Questions about the justification for an assertion must instead follow the procedures for reviewing and challenging restrictions.

4. From offer to contract

The restrictions a successful offeror asserts are attached to its contract, unless the parties have agreed under the challenge procedures that an assertion is not justified (DFARS 227.7103-10(a)(3)). The contract attachment carries the same four items of information as the provision. If the offeror wins, the assertions are listed in an attachment to the contract, and on request it must give the contracting officer enough information to evaluate any listed assertion (DFARS 252.227-7017(f)).

Under the clause, apart from assertions made after award, data the contractor asserts should carry restrictions are identified in that attachment (DFARS 252.227-7013(f)(2)). The contractor may not deliver any data with restrictive markings unless the data are listed. Restrictions based solely on copyright are outside this paragraph (DFARS 252.227-7013(f)(1)).

5. Assertions after award

Other assertions may be identified after award when based on new information or inadvertent omissions (DFARS 252.227-7013(f)(3)). That is not allowed for an inadvertent omission that would have materially affected the source selection decision. Post-award assertions go to the contracting officer as soon as practicable before the scheduled delivery date, in the prescribed format, signed by an authorized official.

On request, the contractor must provide enough information for the contracting officer to evaluate its assertions (DFARS 252.227-7013(f)(4)). The contracting officer reserves the right to add the assertions to the attachment and to validate any listed assertion later under the validation clause.

6. Assertions do not decide rights

Neither the pre-award nor the post-award assertions, nor their listing in the contract attachment, determine the parties’ rights (DFARS 227.7103-10(a)(4)). The government keeps the right to review, verify, challenge and validate restrictive markings.

Information offerors give under the provision may be used in source selection to evaluate how restrictions on the government’s ability to use or disclose data affect evaluation factors (DFARS 227.7103-10(a)(5)). However, contracting officers may not prohibit offerors from offering products for which they are entitled to provide data with restrictions. Nor may they require offerors, as a condition of responsiveness or award, to sell or give up rights beyond the standard rights in the applicable clauses. How the government challenges an assertion is covered in when the government may challenge a restriction.

7. Software follows the same path

The same provision goes in every solicitation that includes the noncommercial software clause (DFARS 227.7203-3(a)). It requires offerors to identify any software or documentation for which they assert restrictions other than copyright, and to attach the identification to the offer. After award, the software clause lets a contractor make additional assertions under certain conditions (DFARS 227.7203-3(b)). A missing or incomplete software attachment is also a minor informality, and failure to correct it in time makes the offer ineligible (DFARS 227.7203-10(a)(1)). As with data, the asserted restrictions of a successful offeror are attached to its contract unless the parties agree an assertion is not justified (DFARS 227.7203-10(a)(3)).

Key terms

Assertion	An offeror’s or contractor’s claim that data or software should carry restrictions.
Assertion attachment	The signed list of restrictions submitted with the offer and attached to the contract.
Basis for assertion	Generally, development at private expense, exclusively or partially.
Minor informality	A missing or incomplete attachment, which the offeror may correct within the time allowed.
Post-award assertion	An assertion added after award on new information or inadvertent omission.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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