
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC2320]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
                   CHAPTER 137--PROCUREMENT GENERALLY
 
Sec. 2320. Rights in technical data

    (a)(1) The Secretary of Defense shall prescribe regulations to 
define the legitimate interest of the United States and of a contractor 
or subcontractor in technical data pertaining to an item or process. 
Such regulations shall be included in regulations of the Department of 
Defense prescribed as part of the Federal Acquisition Regulation. Such 
regulations may not impair any right of the United States or of any 
contractor or subcontractor with respect to patents or copyrights or any 
other right in technical data otherwise established by law. Such 
regulations also may not impair the right of a contractor or 
subcontractor to receive from a third party a fee or royalty for the use 
of technical data pertaining to an item or process developed exclusively 
at private expense by the contractor or subcontractor, except as 
otherwise specifically provided by law.
    (2) Such regulations shall include the following provisions:
        (A) In the case of an item or process that is developed by a 
    contractor or subcontractor exclusively with Federal funds (other 
    than an item or process developed under a contract or subcontract to 
    which regulations under section 9(j)(2) of the Small Business Act 
    (15 U.S.C. 638(j)(2)) apply), the United States shall have the 
    unlimited right to--
            (i) use technical data pertaining to the item or process; or
            (ii) release or disclose the technical data to persons 
        outside the government or permit the use of the technical data 
        by such persons.

        (B) Except as provided in subparagraphs (C) and (D), in the case 
    of an item or process that is developed by a contractor or 
    subcontractor exclusively at private expense, the contractor or 
    subcontractor may restrict the right of the United States to release 
    or disclose technical data pertaining to the item or process to 
    persons outside the government or permit the use of the technical 
    data by such persons.
        (C) Subparagraph (B) does not apply to technical data that--
            (i) constitutes a correction or change to data furnished by 
        the United States;
            (ii) relates to form, fit, or function;
            (iii) is necessary for operation, maintenance, installation, 
        or training (other than detailed manufacturing or process data); 
        or
            (iv) is otherwise publicly available or has been released or 
        disclosed by the contractor or subcontractor without restriction 
        on further release or disclosure.

        (D) Notwithstanding subparagraph (B), the United States may 
    release or disclose technical data to persons outside the 
    Government, or permit the use of technical data by such persons, 
    if--
            (i) such release, disclosure, or use--
                (I) is necessary for emergency repair and overhaul; or
                (II) is a release or disclosure of technical data (other 
            than detailed manufacturing or process data) to, or use of 
            such data by, a foreign government that is in the interest 
            of the United States and is required for evaluational or 
            informational purposes;

            (ii) such release, disclosure, or use is made subject to a 
        prohibition that the person to whom the data is released or 
        disclosed may not further release, disclose, or use such data; 
        and
            (iii) the contractor or subcontractor asserting the 
        restriction is notified of such release, disclosure, or use.

        (E) In the case of an item or process that is developed in part 
    with Federal funds and in part at private expense, the respective 
    rights of the United States and of the contractor or subcontractor 
    in technical data pertaining to such item or process shall be 
    established as early in the acquisition process as practicable 
    (preferably during contract negotiations) and shall be based upon 
    negotiations between the United States and the contractor, except in 
    any case in which the Secretary of Defense determines, on the basis 
    of criteria established in the regulations, that negotiations would 
    not be practicable. The establishment of such rights shall be based 
    upon consideration of all of the following factors:
            (i) The statement of congressional policy and objectives in 
        section 200 of title 35, the statement of purposes in section 
        2(b) of the Small Business Innovation Development Act of 1982 
        (15 U.S.C. 638 note), and the declaration of policy in section 2 
        of the Small Business Act (15 U.S.C. 631).
            (ii) The interest of the United States in increasing 
        competition and lowering costs by developing and locating 
        alternative sources of supply and manufacture.
            (iii) The interest of the United States in encouraging 
        contractors to develop at private expense items for use by the 
        Government.
            (iv) Such other factors as the Secretary of Defense may 
        prescribe.

        (F) A contractor or subcontractor (or a prospective contractor 
    or subcontractor) may not be required, as a condition of being 
    responsive to a solicitation or as a condition for the award of a 
    contract--
            (i) to sell or otherwise relinquish to the United States any 
        rights in technical data except--
                (I) rights in technical data described in subparagraph 
            (C); or
                (II) under the conditions described in subparagraph (D); 
            or

            (ii) to refrain from offering to use, or from using, an item 
        or process to which the contractor is entitled to restrict 
        rights in data under subparagraph (B).

        (G) The Secretary of Defense may--
            (i) negotiate and enter into a contract with a contractor or 
        subcontractor for the acquisition of rights in technical data 
        not otherwise provided under subparagraph (C) or (D), if 
        necessary to develop alternative sources of supply and 
        manufacture;
            (ii) agree to restrict rights in technical data otherwise 
        accorded to the United States under this section if the United 
        States receives a royalty-free license to use, release, or 
        disclose the data for purposes of the United States (including 
        purposes of competitive procurement); or
            (iii) permit a contractor or subcontractor to license 
        directly to a third party the use of technical data which the 
        contractor is otherwise allowed to restrict, if necessary to 
        develop alternative sources of supply and manufacture.

    (3) The Secretary of Defense shall define the terms ``developed'', 
``exclusively with Federal funds'', and ``exclusively at private 
expense'' in regulations prescribed under paragraph (1). In defining 
such terms, the Secretary shall specify the manner in which indirect 
costs shall be treated and shall specify that amounts spent for 
independent research and development and bid and proposal costs shall 
not be considered to be Federal funds for the purposes of definitions 
under this paragraph.
    (b) Regulations prescribed under subsection (a) shall require that, 
whenever practicable, a contract for supplies or services entered into 
by an agency named in section 2303 of this title contain appropriate 
provisions relating to technical data, including provisions--
        (1) defining the respective rights of the United States and the 
    contractor or subcontractor (at any tier) regarding any technical 
    data to be delivered under the contract and providing that, in the 
    case of a contract for a commercial item, the item shall be presumed 
    to be developed at private expense unless shown otherwise in 
    accordance with section 2321(f);
        (2) specifying the technical data, if any, to be delivered under 
    the contract and delivery schedules for such delivery;
        (3) establishing or referencing procedures for determining the 
    acceptability of technical data to be delivered under the contract;
        (4) establishing separate contract line items for the technical 
    data, if any, to be delivered under the contract;
        (5) to the maximum practicable extent, identifying, in advance 
    of delivery, technical data which is to be delivered with 
    restrictions on the right of the United States to use such data;
        (6) requiring the contractor to revise any technical data 
    delivered under the contract to reflect engineering design changes 
    made during the performance of the contract and affecting the form, 
    fit, and function of the items specified in the contract and to 
    deliver such revised technical data to an agency within a time 
    specified in the contract;
        (7) requiring the contractor to furnish written assurance at the 
    time the technical data is delivered or is made available that the 
    technical data is complete and accurate and satisfies the 
    requirements of the contract concerning technical data;
        (8) establishing remedies to be available to the United States 
    when technical data required to be delivered or made available under 
    the contract is found to be incomplete or inadequate or to not 
    satisfy the requirements of the contract concerning technical data; 
    and
        (9) authorizing the head of the agency to withhold payments 
    under the contract (or exercise such other remedies as the head of 
    the agency considers appropriate) during any period if the 
    contractor does not meet the requirements of the contract pertaining 
    to the delivery of technical data.

    (c) Nothing in this section or in section 2305(d) of this title 
prohibits the Secretary of Defense from--
        (1) prescribing standards for determining whether a contract 
    entered into by the Department of Defense shall provide for a time 
    to be specified in the contract after which the United States shall 
    have the right to use (or have used) for any purpose of the United 
    States all technical data required to be delivered to the United 
    States under the contract or providing for such a period of time 
    (not to exceed 7 years) as a negotiation objective; or
        (2) prescribing reasonable and flexible guidelines, including 
    negotiation objectives, for the conduct of negotiations regarding 
    the respective rights in technical data of the United States and the 
    contractor.

    (d) The Secretary of Defense shall by regulation establish programs 
which provide domestic business concerns an opportunity to purchase or 
borrow replenishment parts from the United States for the purpose of 
design replication or modification, to be used by such concerns in the 
submission of subsequent offers to sell the same or like parts to the 
United States. Nothing in this subsection limits the authority of the 
head of an agency to impose restrictions on such a program related to 
national security considerations, inventory needs of the United States, 
the improbability of future purchases of the same or like parts, or any 
additional restriction otherwise required by law.

(Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98 Stat. 
2595; amended Pub. L. 98-577, title III, Sec. 301(b), Oct. 30, 1984, 98 
Stat. 3076; Pub. L. 99-145, title IX, Sec. 961(d)(1), Nov. 8, 1985, 99 
Stat. 703; Pub. L. 99-500, Sec. 101(c) [title X, Sec. 953(a)], Oct. 18, 
1986, 100 Stat. 1783-82, 1783-169, and Pub. L. 99-591, Sec. 101(c) 
[title X, Sec. 953(a)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-169; Pub. 
L. 99-661, div. A, title IX, formerly title IV, Sec. 953(a), Nov. 14, 
1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100-26, Sec. 3(5), 
Apr. 21, 1987, 101 Stat. 273; Pub. L. 100-26, Sec. 7(a)(4), Apr. 21, 
1987, 101 Stat. 275; Pub. L. 100-180, div. A, title VIII, Sec. 808(a), 
(b), Dec. 4, 1987, 101 Stat. 1128, 1130; Pub. L. 101-189, div. A, title 
VIII, Sec. 853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 103-355, 
title VIII, Sec. 8106(a), Oct. 13, 1994, 108 Stat. 3393.)

                          Codification

    Pub. L. 99-591 is a corrected version of Pub. L. 99-500.


                               Amendments

    1994--Subsec. (b)(1). Pub. L. 103-355 inserted before semicolon at 
end ``and providing that, in the case of a contract for a commercial 
item, the item shall be presumed to be developed at private expense 
unless shown otherwise in accordance with section 2321(f)''.
    1989--Subsec. (a)(4). Pub. L. 101-189 struck out par. (4) which 
provided that for purposes of this subsection, the term ``Federal 
Acquisition Regulation'' means the single system of Government-wide 
procurement regulations as defined in section 4(4) of the Office of 
Federal Procurement Policy Act (41 U.S.C. 403(4)).
    1987--Subsec. (a)(1). Pub. L. 100-180, Sec. 808(a)(1), inserted at 
end ``Such regulations also may not impair the right of a contractor or 
subcontractor to receive from a third party a fee or royalty for the use 
of technical data pertaining to an item or process developed exclusively 
at private expense by the contractor or subcontractor, except as 
otherwise specifically provided by law.''
    Subsec. (a)(2)(A). Pub. L. 100-26, Sec. 7(a)(4)(A), inserted 
``(other than an item or process developed under a contract or 
subcontract to which regulations under section 9(j)(2) of the Small 
Business Act (15 U.S.C. 638(j)(2)) apply)'' after ``Federal funds''.
    Subsec. (a)(2)(E). Pub. L. 100-180, Sec. 808(a)(2), in introductory 
provisions, substituted ``established'' for ``agreed upon'', struck out 
comma after ``negotiations)'' and inserted in lieu ``and shall be based 
upon negotiations between the United States and the contractor, except 
in any case in which the Secretary of Defense determines, on the basis 
of criteria established in the regulations, that negotiations would not 
be practicable. The establishment of such rights shall be'', and added 
cl. (iv).
    Subsec. (a)(2)(F). Pub. L. 100-180, Sec. 808(a)(3), amended subpar. 
(F) generally. Prior to amendment, subpar. (F) read as follows: ``A 
contractor or subcontractor (or a prospective contractor or 
subcontractor) may not be required, as a condition of being responsive 
to a solicitation or as a condition for the award of a contract, to sell 
or otherwise relinquish to the United States any rights in technical 
data except--
        ``(i) rights in technical data described in subparagraph (C); or
        ``(ii) under the conditions described in subparagraph (D).''
    Subsec. (a)(2)(G)(i). Pub. L. 100-180, Sec. 808(a)(4)(A), 
substituted ``not otherwise provided under subparagraph (C) or (D),'' 
for ``pertaining to an item or process developed by such contractor or 
subcontractor exclusively at private expense'' and struck out ``or'' at 
end.
    Subsec. (a)(2)(G)(ii). Pub. L. 100-180, Sec. 808(a)(4)(B), 
substituted ``this section'' for ``such regulations'' and ``; or'' for 
period at end.
    Pub. L. 100-26, Sec. 7(a)(4)(B), substituted ``in technical data 
otherwise accorded to the United States under such regulations'' for 
``of the United States in technical data pertaining to an item or 
process developed entirely or in part with Federal funds''.
    Subsec. (a)(2)(G)(iii). Pub. L. 100-180, Sec. 808(a)(4)(C), added 
cl. (iii).
    Subsec. (a)(3). Pub. L. 100-180, Sec. 808(a)(5), substituted ``, 
`exclusively with Federal funds', and `exclusively at private expense' 
'' for ``and `private expense' '' and inserted at end ``In defining such 
terms, the Secretary shall specify the manner in which indirect costs 
shall be treated and shall specify that amounts spent for independent 
research and development and bid and proposal costs shall not be 
considered to be Federal funds for the purposes of definitions under 
this paragraph.''
    Subsec. (c). Pub. L. 100-180, Sec. 808(b), substituted ``from--'' 
for ``from'', designated existing provisions beginning with 
``prescribing standards'' as par. (1), and added par. (2).
    1986--Subsec. (a). Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-
661 amended generally subsec. (a) identically, substituting provision 
that regulations to define the legitimate interest of the United States 
and of a contractor or subcontractor in technical data be included in 
regulations of the Department of Defense prescribed as part of the 
Federal Acquisition Regulation for provision that such regulations 
define the legitimate proprietary interest of the United States and a 
contractor and be part of the single system of Government-wide 
procurement regulations, detailed what such regulations must contain if 
the item or process is developed exclusively with Federal funds, 
exclusively with private funds, or partly with Federal funds and partly 
with private funds, inserted provision relating to relinquishment of 
rights in data to the United States, directed the Secretary of Defense 
to define ``developed'' and ``private expense'', and defined ``Federal 
Acquisition Regulation''.
    1985--Subsec. (a)(1). Pub. L. 99-145 substituted ``the item or 
process to which the technical data pertains'' for ``the technical 
data''.
    1984--Subsec. (a). Pub. L. 98-577 substituted ``in regulations of 
the Department of Defense prescribed as part'' for ``in regulations 
prescribed as part'' in text preceding par. (1).


                    Effective Date of 1994 Amendment

    For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under 
section 251 of Title 41, Public Contracts.


                    Effective Date of 1987 Amendment

    Section 808(c) of Pub. L. 100-180 provided that: ``The amendments 
made by this section [amending this section] shall take effect on the 
earlier of--
        ``(1) the last day of the 120-day period beginning on the date 
    of the enactment of this Act [Dec. 4, 1987]; or
        ``(2) the date on which regulations are prescribed and made 
    effective to implement such amendments.''


                    Effective Date of 1986 Amendment

    Section 101(c) [title X, Sec. 953(e)] of Pub. L. 99-500 and Pub. L. 
99-591, and section 953(e) of title IX, formerly title IV, of Pub. L. 
99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 
101 Stat. 273, provided that: ``The amendments made by subsections (a) 
and (b) [amending this section and section 2321 of this title] shall 
apply to contracts for which solicitations are issued after the end of 
the 210-day period beginning on the date of the enactment of this Act 
[Oct. 18, 1986].''


                             Effective Date

    Section applicable with respect to solicitations issued after the 
end of the one-year period beginning Oct. 19, 1984, see section 
1216(c)(2) of Pub. L. 98-525, set out as a note under section 2319 of 
this title.


        Government-Industry Committee on Rights in Technical Data

    Pub. L. 102-190, div. A, title VIII, Sec. 807, Dec. 5, 1991, 105 
Stat. 1421, as amended by Pub. L. 102-484, div. A, title VIII, Sec. 814, 
Oct. 23, 1992, 106 Stat. 2454; Pub. L. 105-85, div. A, title X, 
Sec. 1073(d)(3), Nov. 18, 1997, 111 Stat. 1905, provided that not later 
than Sept. 15, 1992, the Secretary of Defense was to prescribe final 
regulations required by subsec. (a) of this section that supersede the 
interim regulations prescribed before Dec. 5, 1991, for the purposes of 
this section and contained various provisions relating to a government-
industry advisory committee, reports to Congress, publication of the 
regulations, and application of the regulations.


              Control of Government Personnel Work Product

    Pub. L. 102-190, div. A, title VIII, Sec. 808, Dec. 5, 1991, 105 
Stat. 1423, required Secretary of Defense to prescribe regulations 
ensuring that any Department of Defense employee or member of the armed 
forces with an appropriate security clearance who is engaged in 
oversight of an acquisition program maintains control of the employee's 
or member's work product, provided that procedures for protecting 
unauthorized disclosure of classified information by contractors do not 
require such an employee or member to relinquish control of his or her 
work product to any such contractor, required implementing regulations 
not later than 120 days after Dec. 5, 1991, and provided that this 
section would cease to be effective on Sept. 30, 1992.


                  Deadline for Revision of Regulations

    Section 101(c) [title X, Sec. 953(d)] of Pub. L. 99-500 and Pub. L. 
99-591, and section 953(d) of title IX, formerly title IV, of Pub. L. 
99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 
101 Stat. 273, required that proposed regulations under subsec. (a)(1) 
of this section be published in Federal Register for comment not later 
than 90 days after Oct. 18, 1986, and that proposed final regulations be 
published in Federal Register not later than 180 days after Oct. 18, 
1986.
