1. Requirements

2.1.7.1 Contracting Officers, as defined in FAR 2.101, or Agreement Managers as defined in NAII 1050.3, NASA Partnership Guide, in conjunction with Program/Project Managers shall ensure that the appropriate FAR, NFS, and other provisions/clauses based on this requirements document and NASA-STD-8739.8 are included for all NASA contracts, Space Act Agreements, cooperative agreements, partnership agreements, grants, or other agreements pursuant to which software is being acquired, developed, modified, operated, or managed for NASA.

1.1 Notes

NPR 7150.2, NASA Software Engineering Requirements, does not include any notes for this requirement.

1.2 History

2. Rationale

Ensure that the appropriate FAR, NFS, and other provisions/clauses based on this requirements document and NASA-STD-8739.8 are included for all NASA contracts, Space Act Agreements, cooperative agreements, partnership agreements, grants, or other agreements pursuant to which software is being acquired, developed, modified, operated, or managed for NASA.

3. Guidance

Work with the contracting officer to determine which Federal Acquisition Regulations (FAR) clauses are needed.  See https://www.acquisition.gov/ for access to the federal acquisition regulations.  You can browse the FAR causes and search for causes related to software. 

3.1 Types of Rights in Software

Unlimited Rights

• FAR 52.227-14 General Data Rights Clause so long as Alt. clauses are not included
• FAR 52.227-17 Special Works Clause including NFS 1852.227-17 (Drawback:  potential for increased costs)
• H Clause requires the contractor to assert copyright and assign the title to NASA as soon as the software is fixed in a tangible medium for “software and all derivative works”
• Specify the data to be delivered; ensure the source code is listed as a deliverable in the Statement of Work (SOW) and the CDRLs

Limited Rights

• FAR 52.227-15 included in solicitations will identify what data and software will be delivered with limited or restricted rights
• FAR 52.227-14  with Alt. III allows contractors to incorporate proprietary software into the final product and NASA is stuck with less than unlimited rights in the complete software product

General Data Rights Clause should be included in the contract if contemplated that data will be produced, furnished, or acquired under the contract.

• Include NFS 1852.227-14:  prevents the contractor from asserting copyright without permission and requires the contractor to assert and assign its copyright interest to NASA when directed by the Contracting Officer

See also SWE-215 - Software License Rights. 

3.2 Types of Markings Allowed under FAR

Limited Rights Notice

• Protects the contractor’s Limited Rights Data (technical data associated with software) 
• Data marked or designated as Limited Rights Data may not be used for purposes of manufacture or disclosed outside the Government unless authorized by the contractor.  See FAR 52.227-14 Alt. II

Restricted Rights Notice

• Protects the contractor’s Restricted Computer Software
• Software marked or designated may not be used, reproduced, or disclosed by the Government except as provided in the notice or contract.  See FAR 52.227-14 Alt. III

Copyright Notice

• If the contractor is allowed to assert copyright in data produced in the performance of the contract, must affix with copyright notice and acknowledgment of government sponsorship to the data.  For computer software, the contractor grants the government and others acting on its behalf a nonexclusive license to reproduce, prepare derivative works, perform and display publicly (but not to distribute copies to the public) by or on behalf of the Government. See FAR 52.227-14 Alt. IV

3.3 FAR Examples

A few FAR examples associated with the software are listed below.

3.3.1 - 12.212 Computer software.

      (a) Commercial computer software or commercial computer software documentation shall be acquired under licenses customarily provided to the public to the extent such licenses are consistent with Federal law and otherwise satisfy the Government’s needs. Generally, offerors and contractors shall not be required to-

           (1) Furnish technical information related to commercial computer software or commercial computer software documentation that is not customarily provided to the public; or

           (2) Relinquish to, or otherwise provide, the Government rights to use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as mutually agreed to by the parties.

      (b) With regard to commercial computer software and commercial computer software documentation, the Government shall have only those rights specified in the license contained in an addendum to the contract. For additional guidance regarding the use and negotiation of license agreements for commercial computer software, see 27.405-3.

Parent topic: Subpart 12.2 - Special Requirements for the Acquisition of Commercial Products and Commercial Services

3.3.2 - 27.405-3 Commercial computer software.

      (a) When contracting other than from GSA’s Multiple Award Schedule contracts for the acquisition of commercial computer software, no specific contract clause prescribed in this subpart need be used, but the contract shall specifically address the Government’s rights to use, disclose, modify, distribute, and reproduce the software. Section 12.212 sets forth the guidelines for the acquisition of commercial computer software and states that commercial computer software or commercial computer software documentation shall be acquired under licenses customarily provided to the public to the extent the license is consistent with Federal law and otherwise satisfies the Government’s needs. Clause 52.227-19, Commercial Computer Software License, may be used when there is any confusion as to whether the Government’s needs are satisfied or whether a customary commercial license is consistent with Federal law. Additional or lesser rights may be negotiated using the guidance concerning restricted rights as set forth in 27.404-2(d), or clause 52.227-19. If greater rights than the minimum rights identified in the clause at 52.227-19 are needed, or lesser rights are to be acquired, they shall be negotiated and set forth in the contract. This includes any additions to, or limitations on, the rights set forth in paragraph (b) of the clause at 52.227-19 when used. Examples of greater rights may be those necessary for networking purposes or the use of the software from remote terminals communicating with a host computer where the software is located. If the computer software is to be acquired with unlimited rights, the contract shall also so state. In addition, the contract shall adequately describe the computer programs and/or databases, the media on which it is recorded, and all the necessary documentation.

      (b) If the contract incorporates, makes reference to, or uses a vendor’s standard commercial lease, license, or purchase agreement, the contracting officer shall ensure that the agreement is consistent with paragraph (a) of this subsection. The contracting officer should exercise caution in accepting a vendor’s terms and conditions since they may be directed to commercial sales and may not be appropriate for Government contracts. Any inconsistencies in a vendor’s standard commercial agreement shall be addressed in the contract and the contract terms shall take precedence over the vendor’s standard commercial agreement. If clause 52.227-19 is used, inconsistencies in the vendor’s standard commercial agreement regarding the Government’s right to use, reproduce or disclose the computer software are reconciled by that clause.

      (c) If a prime contractor under a contract containing clause 52.227-14, Rights in Data-General, with paragraph (g)(4) (Alternate III) in the clause, acquires restricted computer software from a subcontractor (at any tier) as a separate acquisition for delivery to or for use on behalf of the Government, the contracting officer may approve any additions to or limitations on the restricted rights in the Restricted Rights Notice of paragraph (g)(4) in a collateral agreement incorporated in and made part of the contract.

Parent topic: 27.405 Other data rights provisions.

3.3.3 - 48 CFR 1852.227-19 Commercial computer software - Restricted rights (JUL 1997).

(a) As prescribed in 1827.409(k)(i), add the following paragraph (e) to the basic clause at FAR 52.227-19:

(e) For the purposes of receiving updates, correction notices, consultation information, or other similar information regarding any computer software delivered under this contract/purchase order, the NASA Contracting Officer or the NASA Contracting Officer's Technical Representative/User may sign any vendor-supplied agreements, registration forms, or cards and return them directly to the vendor; however, such signing shall not alter any of the rights or obligations of either NASA or the vendor set forth in this clause or elsewhere in this contract/purchase order.

(End of addition)

(b) As prescribed in 1827.409(k)(ii), add the following paragraph (f) to the basic clause at FAR 52.227-19:

(f) Subject to paragraphs (a) through (e) above, those applicable portions of the Contractor's standard commercial license or lease agreement pertaining to any computer software delivered under this purchase order/contract that is consistent with Federal laws, standard industry practices, and the Federal Acquisition Regulation (FAR) shall be incorporated into and made part of this purchase order/contract.

(End of addition)

Limited Rights Restrictions. If the contract contains FAR 52.227-14 Alternate II, the “Limited Rights Notice” may be applicable to technical data (other than computer software) delivered under this contract. The “Limited Rights Notice” is as follows:

Limited Rights Notice (Dec 2007)

1. a) These data are submitted with limited rights under Government Contract No. (and subcontract

            , if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to the prohibition against further use and disclosure: [Agencies may list additional purposes as set forth in 27.404-2(c)(1) o e marked on any reproduction of these data, in whole or in part.

Restricted Rights Computer Software. If the contract contains FAR 52.227-14 Alternate III, the “Restricted Rights Notice” may be applicable to computer software delivered under this contract. The “Restricted Rights Notice” is as follows:

Restricted Rights Notice (Dec 2007)

(a) This computer software is submitted with restricted rights under Government Contract No. (and subcontract, if appropriate). It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice or as otherwise expressly stated in the contract. (b) This computer software may be— (1) Used or copied for use with the computer(s) for which it was acquired, including use at any Government installation to which the computer(s) may be transferred;

(2) Used or copied for use with a backup computer if any computer for which it was acquired is inoperative; (3) Reproduced for safekeeping (archives) or backup purposes; (4) Modified, adapted, or combined with other computer software, provided that the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, restricted computer software shall be subject to the same restricted rights; (5) Disclosed to and reproduced for use by support service Contractors or their subcontractors in accordance with paragraphs (b)(1) through (4) of this notice; and (6) Used or copied for use with a replacement computer. (c) Notwithstanding the foregoing, if this computer software is copyrighted computer software, it is licensed to the Government with the minimum rights set forth in paragraph (b) of this notice. (d) Any other rights or limitations regarding the use, duplication, or disclosure of this computer software are to be expressly stated in, or incorporated in, the con is noticed shall be marked on any reproduction of this computer software, in whole or in part.

3.3.4 - 48 CFR 1852.227-88  Government-furnished computer software and related technical data

GOVERNMENT-FURNISHED COMPUTER SOFTWARE AND RELATED TECHNICAL DATA (APR 2015)

      (a)  Definitions.  As used in this clause—

      “Government-furnished computer software” or “GFCS” means computer software: (1) in the possession of, or directly acquired by, the Government whereby the Government has title or license rights thereto; and (2) subsequently furnished to the Contractor for performance of a Government contract.

      “Computer software,” “data” and “technical data” have the meaning provided in the Federal Acquisition Regulations (FAR) Subpart 2.1—Definitions or the Rights in Data – General clause (FAR 52.227-14).

      (b)  The Government shall furnish to the Contractor the GFCS described in this contract or in writing by the Contracting Officer.  The Government shall furnish any related technical data needed for the intended use of the GFCS. 

      (c)  Use of GFCS and related technical data.  The Contractor shall use the GFCS and related technical data, and any modified or enhanced versions thereof, only for performing work under this contract unless otherwise provided for in this contract or approved in writing by the Contracting Officer.

            (1)  The Contractor shall not, without the express written permission of the Contracting Officer, reproduce, distribute copies, prepare derivative works, perform publicly, display publicly, release, or disclose the GFCS or related technical data to any person except for the performance of work under this contract.

            (2)  The Contractor shall not modify or enhance the GFCS unless this contract specifically identifies the modifications and enhancements as work to be performed.  If the GFCS is modified or enhanced pursuant to this contract, the Contractor shall provide to the Government the complete source code, if any, and all related documentation of the modified or enhanced GFCS.  

            (3)  Allocation of rights associated with any GFCS or related technical data modified or enhanced under this contract shall be defined by the FAR Rights in Data clause(s) included in this contract (as modified by any applicable NASA FAR Supplement clauses).  If no Rights in Data clause is included in this contract, then the FAR Rights in Data – General (52.227-14) as modified by the NASA FAR Supplement (1852.227-14) shall apply to all data first produced in the performance of this contract and all data delivered under this contract.

            (4)  The Contractor may provide the GFCS, and any modified or enhanced versions thereof, to subcontractors as necessary for the performance of work under this contract. Before the release of the GFCS, and any modified or enhanced versions thereof, to such subcontractors (at any tier), the Contractor shall insert, or require the insertion of, this clause, including this paragraph (c)(4), suitably modified to identify the parties as follows: references to the Government are not changed, and in all references, to the Contractor, the subcontractor is substituted for the Contractor so that the subcontractor has all rights and obligations of the Contractor in the clause.

  (d)  The Government provides the GFCS in an “AS-IS” condition.  The Government makes no warranty with respect to the serviceability and/or suitability of the GFCS for contract performance.

      (e)  The Contracting Officer may by written notice, at any time—

            (1)  Increase or decrease the amount of GFCS under this contract;

            (2)  Substitute other GFCS for the GFCS previously furnished, to be furnished, or to be acquired by the Contractor for the Government under this contract;

            (3)  Withdraw authority to use the GFCS or related technical data; or

            (4)  Instruct the Contractor to return or dispose of the GFCS and related technical data.

      (f)  Title to or license rights in GFCS.  The Government shall retain title to or license rights in all GFCS. Title to or license rights in GFCS shall not be affected by its incorporation into or attachment to any data not owned by or licensed to the Government.

      (g)  Waiver of Claims and Indemnification.  The Contractor agrees to waive any and all claims against the Government and shall indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses, arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of the GFCS and related technical data by the Contractor, a subcontractor, or by any person to whom the Contractor has released or disclosed such GFCS or related technical data.

      (h)  Flow down of Waiver of Claims and Indemnification.  In the event a contract includes this NASA FAR Supplement clause 1852.227-88, the Contractor shall include the foregoing clause 1852.227-88(g), suitably modified to identify the parties, in all subcontracts, regardless of tier, which involve the use of the GFCS and/or related technical data in any way.  At all tiers, the clause shall be modified to define GFCS as it is defined herein and to identify the parties as follows: references to the Government are not changed, and in all references, to the Contractor, the subcontractor is substituted for the Contractor so that the subcontractor has all rights and obligations of the Contractor in the clause.  In subcontracts, at any tier, the Government, the subcontractor, and the Contractor agree that the mutual obligations of the parties created by clause 1852.227-88 constitute a contract between the subcontractor and the Government with respect to the matters covered by the clause.

(End of clause)

3.6 Additional Guidance

Additional guidance related to this requirement may be found in the following materials in this Handbook:

3.7 Center Process Asset Libraries

See the following link(s) in SPAN for process assets from contributing Centers (NASA Only). 

4. Small Projects

This requirement applies to all NASA centers and all software classifications.

5. Resources

5.1 References

5.2 Tools

6. Lessons Learned

6.1 NASA Lessons Learned

No Lessons Learned have currently been identified for this requirement.

6.2 Other Lessons Learned

No other Lessons Learned have currently been identified for this requirement.