52.227-20
Rights in Data-SBIR Program
Under FAR 52.227-20, SBIR contractors keep valuable data protections only if they properly identify, mark, and manage their data rights—because unmarked or improperly handled data can default to the Government’s unlimited rights.
Overview
- FAR 52.227-20 establishes the allocation of rights in data generated or delivered under Small Business Innovation Research (SBIR) contracts. Its core purpose is to protect qualifying SBIR data for a limited period while still giving the Government the rights it needs to use contract deliverables.
- The clause distinguishes among SBIR data, technical data, computer software, limited rights data, restricted computer software, and unlimited rights, and ties each category to specific Government and contractor rights.
Key Rules
- Allocation of Rights
- The Government receives unlimited rights in data specifically required without restriction, form, fit, and function data, manuals and routine maintenance materials (other than restricted software), and other delivered data unless SBIR, limited rights, or restricted software protections properly apply.
- Copyright and Noncontract Data
- Contractors may assert copyright in data first produced under the contract, but must include the proper copyright notice and Government sponsorship acknowledgment. If incorporating preexisting data, the contractor needs prior written Contracting Officer permission, must identify the data, and must grant the Government an appropriate license.
- SBIR Rights Notice and Protection Period
- Contractors may mark qualifying SBIR data with the SBIR Rights Notice. For 4 years after acceptance of all contract items (unless extended under FAR 27.409(h)), the Government may use the data only for Government purposes and generally may not disclose it outside the Government except to support contractors.
- Markings, Withholding, and Subcontracts
- Unmarked data is treated as delivered with unlimited rights. Contractors may request correction of omitted markings within 6 months after delivery (or longer if approved). Contractors may withhold qualifying limited rights data or restricted computer software if they identify what is withheld and provide form, fit, and function data instead. Prime contractors must obtain necessary data rights from subcontractors and notify the Contracting Officer before proceeding if a subcontractor refuses.
Responsibilities
- Contracting Officers: review requests to add or correct markings, approve use of noncontract data when appropriate, and address subcontractor refusals before subcontract award proceeds.
- Contractors: properly identify and mark SBIR data, secure permissions before incorporating noncontract data, provide required licenses, manage withholding of protected data correctly, and flow down needed rights through subcontracts.
- Agencies: protect properly marked SBIR data during the protection period and preserve copyright notices on reproductions.
Practical Implications
- This clause exists to balance innovation protection for small businesses with the Government’s operational need to use delivered data.
- In practice, the biggest compliance risks are failing to mark SBIR data, using the wrong notice, incorporating third-party or preexisting data without approval, and neglecting subcontract data-rights issues.
- For contractors, disciplined data classification, marking, and subcontract management are essential because a marking error can convert protected data into data the Government may treat as having unlimited rights.