Solicitation provisions and contract clauses
FAR 27.409 mandates careful selection and use of data rights clauses to ensure the government and contractors have clear, enforceable rights and obligations regarding contract data.
Overview
FAR 27.409 provides detailed instructions for contracting officers on which data rights solicitation provisions and contract clauses to include in government contracts, depending on the type of data involved and the nature of the contract. The section ensures that the government secures appropriate rights in data produced, furnished, or acquired under contracts, while also protecting contractor interests and clarifying obligations for both parties. It covers the use of standard clauses (such as Rights in Data-General, Rights in Data-Special Works, and Commercial Computer Software License), their alternates, and special provisions for contracts involving universities, small businesses, commercial software, and major systems. The section also addresses contracts performed outside the U.S., architect-engineer services, and the acquisition of existing works or technical data in proposals.
Key Rules
- Single Data Rights Clause
- Generally, only one data rights clause should be included per contract, unless multiple are necessary and clearly distinguished.
- Clause Selection Based on Contract Type
- Specific clauses (e.g., 52.227-14, 52.227-16, 52.227-17, etc.) are required based on the type of data, contract purpose, and performance location.
- Use of Alternates
- Alternates to standard clauses must be used in certain situations, such as when limited rights data or restricted computer software are involved, or when research is performed by universities.
- Special Provisions for SBIR, Major Systems, and Proposals
- Unique clauses apply to Small Business Innovation Research contracts, major system acquisitions, and when acquiring rights to proposal data.
Responsibilities
- Contracting Officers: Must select and insert the correct data rights clauses and alternates, specify data requirements, and ensure compliance with agency and FAR policies.
- Contractors: Must comply with the data rights clauses included in their contracts, accurately represent data/software rights, and fulfill any reporting or notification requirements.
- Agencies: May prescribe additional clauses for specific contract types or performance locations and oversee compliance with data rights policies.
Practical Implications
- This section ensures that both the government and contractors understand their rights and obligations regarding data produced or acquired under federal contracts. Proper clause selection is critical to avoid disputes over data ownership and use. Common pitfalls include failing to use the correct clause or alternate, not specifying data requirements, or misunderstanding rights in commercial software or proposal data.