Legends and marking for technical data

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1. Restrictions exist only by marking

The noncommercial technical data clause in the Defense Federal Acquisition Regulation Supplement (DFARS) controls how restrictions are asserted. A contractor and its subcontractors or suppliers may assert restrictions on the government’s rights only by marking the deliverable data (DFARS 252.227-7013(g)). Only four legends are authorized, apart from the rule for preexisting data. They are the government purpose rights legend, the limited rights legend, the special license rights legend, and a copyright notice under 17 U.S.C. 401 or 402.

The data clauses require a contractor that wants to restrict the government’s rights to place restrictive markings on the data, give instructions for placing them, and authorize the use of certain markings (DFARS 227.7103-10(b)(1)). They also require data in which the government already holds rights to be delivered with those preexisting rights, unless the parties agreed otherwise or the restrictions have expired (DFARS 227.7103-10(b)(2)). Where restrictions still apply, the contractor may mark the data with the legend for which they qualified.

2. Where the legend goes

The contractor, or its subcontractors or suppliers, must mark the appropriate legend conspicuously and legibly on all technical data that qualify (DFARS 252.227-7013(g)(1)). The legend goes on the transmittal document or storage container and, for printed material, on each page containing restricted data. Where only part of a page is restricted, that part is identified by circling, underscoring, a note or another suitable identifier. Data transmitted directly from one computer or terminal to another must carry a notice of the asserted restrictions. Reproductions of restricted data must reproduce the restrictions too.

3. The three restrictive legends

Data delivered with government purpose rights carry a legend headed Government Purpose Rights (DFARS 252.227-7013(g)(3)). It shows the contract number, the contractor’s name and address, and an expiration date. Its text says the government’s rights are restricted by the government purpose rights paragraph of the clause, and that no restrictions apply after the expiration date. Any reproduction must reproduce the markings.

Data delivered with limited rights carry a legend headed Limited Rights, with the contract number and the contractor’s name and address (DFARS 252.227-7013(g)(4)). Its text says the government’s rights are restricted by the limited rights paragraph of the clause, and that reproductions must reproduce the markings. It adds that anyone other than the government who has been given access to the data must promptly notify the named contractor.

Data whose rights come from a specifically negotiated license carry a Special License Rights legend that cites the contract number and the license identifier (DFARS 252.227-7013(g)(5)). For this purpose, special licenses do not include government purpose license rights acquired under a prior contract. If a prior contract or license let the contractor restrict the government’s rights and those restrictions still apply, the contractor may use the legend for which the data qualified under that earlier instrument (DFARS 252.227-7013(g)(6)). The same placement rules apply.

4. Unmarked data are unlimited

Technical data delivered without restrictive markings are presumed to have been delivered with unlimited rights (DFARS 252.227-7013(g)(2)(i)). The DFARS adds that such data may be released or disclosed without restriction (DFARS 227.7103-10(c)(1)). To the extent practicable, if the contractor has asked to correct an inadvertent omission, the contracting officer will not release the data while the request is being evaluated.

5. Six months to fix an omission

The contractor may ask permission to have conforming and justified markings placed on unmarked data at its own expense (DFARS 252.227-7013(g)(2)(ii)). The contracting officer must receive the request within six months after the data were furnished or delivered, or within any extension the contracting officer approves. The contractor must identify the data that should have been marked. It must show that the omission was inadvertent and that the proposed marking is justified and conforms to the clause. It must also acknowledge in writing that the government has no liability for any disclosure, reproduction or use before the marking was added or resulting from the omission.

Contracting officers should grant permission to mark only if the data were not distributed outside the government, or were distributed outside it with restrictions on further use or disclosure (DFARS 227.7103-10(c)(3)).

6. Procedures, records and limits on charges

Contractors and their subcontractors or suppliers that will deliver data with other than unlimited rights have a continuing duty (DFARS 252.227-7013(h)). Throughout performance, they must have, maintain and follow written procedures so that restrictive markings are used only when the clause authorizes them. They must also keep records sufficient to justify the validity of any restrictive markings on data delivered under the contract.

The contractor may not charge the contract any cost for rights in technical data to be delivered, such as license fees or royalties, in two cases (DFARS 252.227-7013(k)). One is where the government has already acquired the same or greater rights in the data by any means. The other is where the data are available to the public without restrictions. The clause also states that nothing in it implies a patent license to the government or affects the scope of any license or other right the government otherwise has under any patent (DFARS 252.227-7013(j)). What happens when a marking is wrong is covered in fixing nonconforming and unjustified markings.

7. Marking software

The software clauses carry parallel marking rules, and the DFARS adds a direction to contracting officers (DFARS 227.7203-10(b)(1)). The direction applies when software is expected to be used, or possibly used, in combat or simulated combat. Contracting officers must then not permit contractors to insert instructions that interfere with or delay its operation to display a legend or license notice. Software or documentation delivered without restrictive markings is presumed to carry unlimited rights and may be released without restriction (DFARS 227.7203-10(c)(1)). The same six-month window applies to a request to mark software that was delivered unmarked (DFARS 227.7203-10(c)(2)).

Key terms

Restrictive legend	One of the authorized markings by which a contractor asserts restrictions.
Government purpose rights legend	The legend showing the contract, contractor and expiration date of the rights period.
Special license rights legend	The legend citing the contract and license number of a negotiated license.
Unlimited rights presumption	The rule that unmarked data are treated as delivered with unlimited rights.
Six-month window	The time to ask permission to mark data delivered without markings.

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

Documentation delivered abroad has to carry the right markings. 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.