27.201-2
Contract clauses
Contracting officers must carefully select and insert the correct patent and copyright infringement clauses and alternates based on contract type, performance location, and acquisition procedures to ensure compliance and manage liability.
Overview
FAR 27.201-2 details the required and optional use of specific contract clauses related to patent and copyright infringement in government contracts. It provides clear instructions for contracting officers on when to include clauses such as Authorization and Consent, Patent Indemnity, and Notice and Assistance Regarding Patent and Copyright Infringement, as well as their alternates, based on contract type, purpose, and location of performance. The section also addresses exceptions, such as contracts performed entirely outside the U.S., and prohibits the government from indemnifying contractors for patent infringement.
Key Rules
- Authorization and Consent (52.227-1)
- Required in most contracts, optional for simplified acquisitions, and prohibited for contracts performed and delivered entirely outside the U.S.
- Alternates for Authorization and Consent
- Alternate I for R&D contracts (except construction/architect-engineer unless exclusively R&D); Alternate II for unregulated communication services.
- Notice and Assistance (52.227-2)
- Required whenever Authorization and Consent is included.
- Patent Indemnity (52.227-3)
- Required for commercial products/services unless certain exceptions apply (e.g., Part 12/13 procedures, outside U.S., or commercial practice).
- Alternates for Patent Indemnity
- Alternate I/II for mixed contracts or limited applicability; Alternate III for certain communication services.
- Patent Indemnity for Construction (52.227-4)
- Required for construction/demolition contracts, with possible exclusions for nonstandard items.
- Waiver of Indemnity (52.227-5)
- May be used to exempt specific patents with agency head approval.
- No Government Indemnification
- The government cannot agree to indemnify contractors for patent infringement.
Responsibilities
- Contracting Officers: Must select and insert appropriate clauses and alternates based on contract type, value, and performance location; consult legal counsel as needed; obtain agency head approval for waivers.
- Contractors: Must comply with the included clauses, provide required notices, and understand indemnity limitations.
- Agencies: Agency heads may approve waivers for specific patents; oversee compliance with clause requirements.
Practical Implications
- Ensures contractors and the government are clear on liability and procedures for patent and copyright infringement.
- Reduces government risk by prohibiting indemnification of contractors.
- Common pitfalls include incorrect clause selection or omission, especially for contracts outside the U.S. or using simplified/commercial procedures.