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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle C--Amendments to General Contracting Authorities, Procedures, and Limitations

P. L. 111-

Joint Explanatory Statement of the Committees on Armed Services of the U. S. Senate and House of Representatives on H. R. 6523

From H. R. 6523

SEC. 824. GUIDANCE RELATING TO RIGHTS IN TECHNICAL DATA.

(a) Review of Guidance- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall review guidance issued by the military departments on the implementation of section 2320(e) of title 10, United States Code, to ensure that such guidance is consistent with the guidance issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the requirements of this section. Such guidance shall be designed to ensure that the United States--

(1) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds as defined in accordance with the amendments made by this section; and

(2) is not required to pay more than once for the same technical data.

(b) Rights in Technical Data- Section 2320(a) of title 10, United States Code, is amended--

(1) in paragraph (2)(F)(i)--

(A) by redesignating subclauses (I) and (II) as subclauses (II) and (III), respectively; and

(B) by inserting before subclause (II), as so redesignated, the following new subclause (I):

`(I) rights in technical data described in subparagraph (A) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;'; and

(2) in paragraph (3), by striking `for the purposes of definitions under this paragraph' and inserting `for the purposes of paragraph (2)(B), but shall be considered to be Federal funds for the purposes of paragraph (2)(A)'.

(c) Validation of Proprietary Data Restrictions- Section 2321(d)(2) of title 10, United States Code, is amended--

(1) in subparagraph (A), by striking `A challenge' and inserting `Except as provided in subparagraph (C), a challenge'; and

(2) by adding at the end the following new subparagraph (C):

`(C) The limitation in this paragraph shall not apply to a case in which the Secretary finds that reasonable grounds exist to believe that a contractor or subcontractor has erroneously asserted a use or release restriction with regard to technical data described in section 2320(a)(2)(A) of this title.'.

From S. 3454, National Defense Authorization Act for Fiscal Year 2011

SEC. 832. COMPETITION FOR PRODUCTION AND SUSTAINMENT AND RIGHTS IN TECHNICAL DATA.

(a) Guidance- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue guidance on the implementation of section 2320(e) of title 10, United States Code. Such guidance shall be designed to ensure that the United States--

(1) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds or without significant contribution by a contractor or subcontractor; and

(2) is not required to pay more than once for the same technical data.

(b) Rights in Technical Data- Section 2320(a) of title 10, United States Code, is amended--

(1) in paragraph (2)(A), by striking `exclusively with Federal funds' and inserting `exclusively with Federal funds or without significant contribution by a contractor or subcontractor';

(2) in paragraph (2)(F)(i)--

(A) by redesignating clauses (I) and (II) as clauses (II) and (III), respectively; and

(B) by inserting before clause (II), as so redesignated, the following new clause (I):

`(I) rights in technical data described in subparagraph (A) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;'; and

(3) in paragraph (3)--

(A) by striking `and `exclusively at private expense' and inserting `exclusively at private expense', and `significant contribution by a contractor or subcontractor'; and

(B) by striking `for the purposes of definitions under this paragraph' and inserting `for the purposes of paragraph (2)(B)'.

(c) Validation of Proprietary Data Restrictions-

(1) REPEAL OF DELIMITING PERIOD ON CHALLENGES OF RESTRICTIONS- Section 2321(d) of title 10, United States Code, is amended--

(A) by striking paragraph (2); and

(B) by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively.

(2) GUIDANCE ON CHALLENGES TO RESTRICTIONS- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue guidance on the circumstances under which a challenge to an asserted use or release restriction may be made after the end of the three-year period described in section 2321(c)(2) of title 10, United States Code. Such guidance shall be designed to ensure that such challenges are made only in cases where there is strong evidence that the asserted restriction is inconsistent with the requirements of section 2320, United States Code.

Guidance relating to rights in technical data (sec. 824)

The Senate committee-reported bill contained a provision (sec. 832) that would require the Secretary of Defense to revise guidance on rights in technical data to promote competition and ensure that the United States is not required to pay more than once for the same technical data.

The House bill contained no similar provision.

The agreement includes the provision with a clarifying amendment.

From S. Rpt. 111-201, to accompany S. 3454, NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011

Competition for production and sustainment and rights in technical data (sec. 832)

The committee recommends a provision that would require the Secretary of Defense to issue guidance on rights in technical data to ensure that the Department of Defense (DOD) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds or without significant contribution by a contractor or subcontractor and that the United States is not required to pay more than once for the same technical data. The provision would also provide DOD with improved tools to address situations in which a contractor has erroneously asserted a restriction on the use or release of technical data that was developed exclusively with Federal funds or without significant contribution by the contractor or subcontractor.