27.406-2 Additional data requirements
Source: FAR 27.406-2 on acquisition.gov
FAR 27.406-2 ensures that contracts for experimental, developmental, or research work can flexibly address unforeseen data needs by allowing additional data to be ordered post-award under specific conditions.
Overview
FAR 27.406-2 addresses situations where not all data requirements can be determined at contract award, particularly in experimental, developmental, research, or demonstration contracts. It prescribes the use of the clause at 52.227-16, Additional Data Requirements, to allow contracting officers to order additional data as needs arise during or after contract performance. The clause is generally required unless all data needs are known upfront, with exceptions for certain university or college research contracts under $500,000. The regulation also outlines the timeframe for ordering data (during performance or up to three years after acceptance), compensation for data preparation and delivery, and the possibility for contractors to be relieved of data retention requirements. It further clarifies that data ordered under this clause is subject to the Government’s rights in data clauses and provides guidance on ordering computer software, emphasizing that software should not be ordered solely for public dissemination unless justified by agency programs.
Key Rules
- Use of Additional Data Requirements Clause
- The clause at 52.227-16 should be included in contracts where all data requirements cannot be determined at award, especially for experimental, developmental, research, or demonstration work.
- Exceptions for University/College Research
- The clause is not required for basic or applied research contracts solely with universities or colleges under $500,000, unless future work may exceed this threshold.
- Ordering and Compensation
- Additional data can be ordered during contract performance or within three years after acceptance, with contractors compensated for preparation and delivery.
- Retention and Delivery Flexibility
- Contracting officers may relieve contractors of data retention requirements and may allow contractors to specify data not to be ordered if unnecessary.
- Rights in Data
- Data ordered is subject to the contract’s rights in data clause (e.g., 52.227-14), and data authorized to be withheld is generally not required unless specified.
- Computer Software Restrictions
- Agencies should not order software solely for public dissemination unless part of an established program, and should consider contractor interests in marketing software when ordering source code or related materials.
Responsibilities
- Contracting Officers: Must determine when to include the clause, manage data ordering and retention, ensure proper compensation, and respect contractor rights regarding software.
- Contractors: Must deliver additional data as ordered, maintain data as required, and may request relief from retention or delivery of unnecessary data.
- Agencies: Should avoid ordering software for public dissemination without justification and oversee compliance with data rights clauses.
Practical Implications
- This section ensures flexibility in acquiring data that may not be foreseeable at contract award, protecting both government and contractor interests. It impacts contract drafting, data management, and post-award administration, with common pitfalls including failure to include the clause when required or misunderstanding compensation and retention obligations.
(a) In some contracting situations, such as experimental, developmental, research, or demonstration contracts, it may not be feasible to ascertain all the data requirements at contract award. The clause at 52.227-16, Additional Data Requirements, may be used to enable the subsequent ordering by the contracting officer of additional data first produced or specifically used in the performance of these contracts as the actual requirements become known. The clause shall normally be used in solicitations and contracts involving experimental, developmental, research or demonstration work (other than basic or applied research to be performed under a contract solely by a university or college when the contract amount will be $500,000 or less) unless all the requirements for data are believed to be known at the time of contracting and specified in the contract. If the contract is for basic or applied research to be performed by a university or college, and the contracting officer believes the contract effort will in the future exceed $500,000, even though the initial award does not, the contracting officer may include the clause in the initial award.
(b) Data may be ordered under the clause at 52.227-16 at any time during contract performance or within a period of 3 years after acceptance of all items to be delivered under the contract. The contractor is to be compensated for converting the data into the prescribed form, for reproduction, and for delivery. In order to minimize storage costs for the retention of data, the contracting officer may relieve the contractor of the retention requirements for specified data items at any time during the retention period required by the clause. The contracting officer may permit the contractor to identify and specify in the contract data not to be ordered for delivery under the clause if the data is not necessary to meet the Government’s requirements for data. Also, the contracting officer may alter the clause by deleting the term "or specifically used" in paragraph (a) of the clause if delivery of the data is not necessary to meet the Government’s requirements for data. Any data ordered under this clause will be subject to the clause at 52.227-14, Rights in Data-General, (or other equivalent clause setting forth the respective rights of the Government and the contractor) in the contract. Data authorized to be withheld under such clause will not be required to be delivered under the clause at 52.227-16, except as provided in Alternate II or Alternate III, if included (see 27.404-2(c) and (d)).
(c) Absent an established program for dissemination of computer software, agencies should not order additional computer software under the clause at 52.227-16, for the sole purpose of disseminating or marketing the software to the public. In ordering software for internal purposes, the contracting officer shall consider, consistent with the Government’s needs, not ordering particular source codes, algorithms, processes, formulas, or flow charts of the software if the contractor shows that this aids its efforts to disseminate or market the software.