Back to JWNDAA 2007 Contents

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

Subtitle A—Provisions Relating to Major Defense Acquisition Programs

JWNDAA Section

House Conference Report 109-702

SEC. 802.  ADDITIONAL REQUIREMENTS RELATING TO TECHNICAL DATA RIGHTS.

(a) ADDITIONAL REQUIREMENTS RELATING TO TECHNICAL DATA RIGHTS.—Section 2320 of title 10, United States Code, is amended by adding at the end the following new subsection:

‘‘(e) The Secretary of Defense shall require program managers for major weapon systems and subsystems of major weapon systems to assess the long-term technical data needs of such systems and subsystems and establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle. Such strategies may include the development of maintenance capabilities within the Department of Defense or competition for contracts for sustainment of such systems or subsystems. Assessments and corresponding acquisition strategies developed under this section with respect to a weapon system or subsystem shall—

‘‘(1) be developed before issuance of a contract solicitation for the weapon system or subsystem;

‘‘(2) address the merits of including a priced contract option for the future delivery of technical data that were not acquired upon initial contract award;

 ‘‘(3) address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and

‘‘(4) apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapons systems and subsystems that are to be supported by other sustainment approaches.’’.

(b) MODIFICATION OF PRESUMPTION OF DEVELOPMENT EXCLUSIVELY AT PRIVATE EXPENSE.— Section 2321(f) of title 10, United States Code, is amended—

(1) by striking ‘‘EXPENSE FOR COMMERCIAL ITEMS CONTRACTS.—In’’ and inserting ‘‘EXPENSE.—( 1) Except as provided in paragraph (2), in’’; and (2) by adding at the end the following new paragraph:

‘‘(2) In the case of a challenge to a use or release restriction that is asserted with respect to technical data of a contractor or subcontractor (whether or not under a contract for commercial items) for a major system or a subsystem or component thereof on the basis that the major system, subsystem or component was developed exclusively at private expense, the challenge to the use or release restriction shall be sustained unless information provided by the contractor or subcontractor demonstrates that the item was developed exclusively at private expense.’’.

(c) REGULATIONS.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall revise regulations under section 2320 of title 10, United States Code, to implement subsection (e) of such section (as added by this section), including incorporating policy changes developed under such subsection into Department of Defense Directive 5000.1 and Department of Defense Instruction 5000.2.

The House bill contained a provision (sec. 802) that would require the acquisition of full data rights necessary to support competition for contracts for sustainment of each major weapon system that is developed with federal or private funds. The provision would also require that any contract for a major system include options for acquiring, at any point during the life cycle of the system, major elements of technical data not acquired at the time of the initial contract award.

The Senate amendment contained no similar provision.

The Senate recedes with an amendment that would direct the Under Secretary of Defense for Acquisition, Technology, and Logistics to require program managers to assess long-term technical data needs and establish corresponding acquisition strategies to ensure availability of technical data rights for major weapon system life cycle sustainment. The amendment would also modify title 10 of the United States Code to distinguish between commercial items and major weapon systems, subsystems, and components of major weapon systems (regardless of whether they may be characterized as commercial or non-commercial). In the case of a challenge made to a claim that the latter group of systems or components was developed exclusively at private expense, the burden of proof would be on the contractor or subcontractor.

House Armed Services Committee Report 109-452

SECTION 802--ADDITIONAL REQUIREMENTS RELATING TO TECHNICAL DATA RIGHTS

This section would require the Secretary of Defense to establish regulations to ensure that a major system developed with federal or private funds acquires sufficient technical data to allow competition for contracts required for sustainment of the system. This section would also require any contract for a major system to include price and delivery options for acquiring, at any point during the lifecycle of the system, major elements of technical data not acquired at the time of initial contract award. The regulations would establish a standard for acquiring rights in technical data to enable the lowest possible lifecycle cost for the item or process acquired.

The committee notes, in recent years, acquisition program managers have minimized their purchases of technical data rights for new weapons systems. The committee understands that guidance issued in the 1990s intentionally sought to reverse the previous policy on technical data rights, which may have inappropriately assumed that all rights to technical data should be purchased, even in unnecessary situations. This section would require program managers to negotiate price options for acquiring additional data rights, at the time of award, when the government has maximum leverage in negotiations. The committee believes that this balanced approach will require program managers to buy those data rights necessary to minimize lifecycle cost without requiring the purchase of unneeded technical data rights.