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. 

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 requiring contractor to assert copyright and assign 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 contractor to incorporate proprietary software into final product and NASA is stuck with less than unlimited rights in the complete software product

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

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

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

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

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 any 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

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 guidance 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. The clause at 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 the clause at 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 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 the clause at 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 the clause at 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.

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 are 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 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 notice shall be marked on any reproduction of this computer software, in whole or in part.

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.