Commercial items and the data rights they carry

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1. Commercial data: only what the public gets

For commercial items, the Defense Federal Acquisition Regulation Supplement (DFARS) sets its own rules. The Defense Department acquires only the technical data customarily provided to the public with a commercial product, service or process, with three exceptions (DFARS 227.7102-1(a)). The first is form, fit or function data. The second is data required for repair or maintenance, or for proper installation, operation or handling, either alone or as part of a military system. That exception applies when such data are not customarily given to commercial users, or what they get is not sufficient for military purposes. The third is data describing modifications made at government expense to meet a solicitation’s requirements.

To encourage the use of commercial products for military requirements, offerors and contractors may not be required to furnish technical information not customarily provided to the public, outside those exceptions (DFARS 227.7102-1(b)). Nor may they be required to give up rights in data pertaining to commercial products, services or processes, except for a mutually agreed transfer. The government’s rights in a vessel design, and in any useful article embodying one, must be consistent with its rights in the technical data for that design (DFARS 227.7102-1(c)).

2. The commercial data license

The clause at DFARS 252.227-7015 gives the government specific license rights in technical data for commercial products, services or processes (DFARS 227.7102-2(a)). The clause covers data on any portion of a commercial product or service developed exclusively at private expense (DFARS 252.227-7015(b)). Portions developed in any part at government expense fall under the noncommercial data clause, or the small business research clause where that program applies.

The government has the unrestricted right to use and disclose, and to let others do so, five kinds of data (DFARS 252.227-7015(c)(1)). They are data provided without restrictions, other than in a sale or transfer of an interest or a business, and form, fit and function data. They also include corrections to government-furnished data, and data necessary for operation, maintenance, installation or training other than detailed manufacturing or process data. The fifth is data already held without restriction under a prior contract or license.

All other commercial data may be used only within the government (DFARS 252.227-7015(c)(2)). The government may not use the data to manufacture additional quantities of the commercial products. It may not release the data outside the government without the contractor’s written permission, except for emergency repair or overhaul of products furnished under the contract, or work by covered government support contractors. The contractor acknowledges releases to those support contractors, will be notified of them, and may require a direct nondisclosure agreement or waive it in writing (DFARS 252.227-7015(c)(3)).

3. More rights, and unmarked data

The contractor, its subcontractors and suppliers are not required to give additional rights in commercial technical data (DFARS 252.227-7015(d)). If the government wants more, the contractor agrees to negotiate promptly with the contracting officer. Any added rights are listed or described in a special license agreement made part of the contract. If additional rights are needed, contracting activities must negotiate to see whether acceptable terms exist (DFARS 227.7102-2(b)).

The clause also contains a release from liability (DFARS 252.227-7015(e)). The government, and anyone it released data to, have no liability for releasing technical data that are not marked to show they are licensed data subject to restrictions. Asserted restrictions on commercial technical data are validated under the same procedures used for other technical data (DFARS 227.7102-3).

4. Commercial software: the customary license

Commercial computer software is software developed or regularly used for nongovernmental purposes that meets one of four tests (DFARS 252.227-7014(a)). It has been sold, leased or licensed to the public, or offered to the public on those terms. Or it has not yet been offered but will be available for commercial sale, lease or license in time to meet the contract’s delivery requirements. Or it meets one of those tests and would need only minor modification to meet the contract’s requirements. A minor modification is one that does not significantly change the software’s nongovernmental function or purpose, or is of a type customarily provided in the commercial marketplace.

Commercial software and documentation are acquired under the licenses customarily provided to the public, unless those licenses are inconsistent with federal procurement law or do not meet user needs (DFARS 227.7202-1(a)). To the maximum extent practicable, they are obtained competitively, using firm-fixed-price contracts or orders under available pricing schedules (DFARS 227.7202-1(b)).

Offerors and contractors may not be required to furnish technical information on commercial software that is not customarily provided to the public (DFARS 227.7202-1(c)). The exception is information documenting modifications made at government expense to meet a solicitation’s requirements. Nor may they be required to give up rights in commercial software, except for a mutually agreed transfer. In setting requirements and negotiation objectives, the government should consider the same factors on needs and contract terms that apply to noncommercial software, consistent with those limits (DFARS 227.7202-1(d)).

5. Rights come from the license

The government has only the rights specified in the license under which commercial software or documentation was obtained (DFARS 227.7202-3(a)). If it needs rights the customary public license does not give, it must negotiate with the contractor to see whether acceptable terms exist (DFARS 227.7202-3(b)). The rights granted are then enumerated in the contract license agreement or an addendum.

No specific contract clause is prescribed for the government’s rights in commercial software or documentation (DFARS 227.7202-4). Instead, those rights are identified in a license agreement. Planning for noncommercial software is covered in planning for software and source code access.

Key terms

Customarily provided	The data or license the public normally receives with a commercial item.
Commercial data license	Use within the government only, with no use to manufacture more of the product.
Commercial computer software	Software for nongovernmental purposes sold, offered or soon available to the public.
Minor modification	A change that does not significantly alter the software’s nongovernmental purpose.
License agreement	The document identifying the government’s rights in commercial software.

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.

How Sentfore supports this

Commercial equipment abroad comes with the data its license allows. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.