Posted on by SPRUCE Seriesin
By SPRUCE Project
This is the second installment in a series of three blog posts highlighting seven recommended practices for acquiring intellectual property. This content was originally published on the Cyber Security & Information Analysis Center's website online environment known as SPRUCE (Systems and Software Producibility Collaboration Environment. The first post in the series explored the challenges to acquiring intellectual property. This post, which can be read in its entirety on the SPRUCE website, will present the first four of seven best practices for acquiring intellectual property.
Managing Intellectual Property in the Acquisition of Software-Intensive Systems
Recommended Practices for Managing Intellectual Property in Acquisitions
DoD policy states that "contractors shall not be prohibited or discouraged from furnishing or offering to furnish items, components, or processes developed at private expense solely because the Government's rights to use, modify, release, reproduce, perform, display, or disclose technical data pertaining to those items may be restricted" (DFARS 227.7103-1). There are situations in which obtaining a license to such software makes a lot of sense, but be mindful of how you will use the software now and in the future (Practice 1).
What kind of license will best meet your needs? Contracting for more rights than you need will waste money. But contracting for fewer rights than you need will waste resources too. You need a decision framework to determine what kind of license to pursue. One decision framework suggests an approach for identifying your organization's needs for license rights and the appropriate license type for systems with noncommercial computer software or as standalone software in the DoD environment.
4. Address intellectual property in the source-selection process. Source selection includes pre-solicitation activities such as developing an RFP (sometimes called a solicitation package) that includes a description of the criteria and evaluation process that the program manager will use to evaluate proposals (among other items such as the statement of work for the supplier). The statement of work should address any requirements that the government has, including deliverables, data rights, and post-project support (the results of Practices 1 and 2). Areas to address in the evaluation criteria include a potential supplier's IP and proprietary rights so that the program manager can consider possible impacts of these when evaluating proposals while remembering that a supplier may furnish or offer items, components, or processes developed at private expense.
The government makes the award on the basis of an evaluation process that uses these criteria to rate or score the proposals. The evaluation of a potential supplier's proposal will include an assessment of the origins for all software that will be incorporated into the final delivered system, such as whether it will use other subcontractors or OSS and associated IP ownership and data-rights implications. In this way, the award will be based in part on an evaluation of a potential supplier's ability to meet government data-rights requirements. A proposer might also provide a different overall approach to how it will manage intellectual property throughout the life cycle of the contract. Again, the program manager must carefully evaluate such a proposal against the needs of the government as reflected in the statement of work and evaluation criteria. After selecting a proposer, it may be necessary to negotiate for licenses and data rights.
Technology transition is a key part of the SEI's mission and a guiding principle in our role as a federally funded research and development center. We welcome your comments and suggestions on this work.
The next post in this series will present the final four recommended practices for acquiring intellectual property.
Below is a listing of selected resources to help you learn more. We have also added links to various sources to help amplify a point. Please be mindful that such sources may occasionally include material that might differ from some of the recommendations in the article above and the references below.
FARs Sections 27.4 and 52.227 and DFARS Sections 227. 71 and 227.72 cover rights in technical data and computer software. And the Defense Acquisition University offers a course on Intellectual Property and Data Rights.
For more information about acquiring intellectual property, please see:
ACQuipedia. Intellectual Property and Data Rights. DAU, 2013. https://dap.dau.mil/acquipedia/Pages/ArticleDetails.aspx?aid=7bfcfeee-b24b-4fdd-ad7b-046437729519
Air Force Space Command Space and Missile Systems Center. Acquiring and Enforcing the Government's Rights in Technical Data and Computer Software Under Department of Defense Contracts: A Practical Handbook for Acquisition Professionals. U.S. Air Force, October 2012. https://acc.dau.mil/CommunityBrowser.aspx?id=431675&lang=en-US
CENDI Copyright Working Group. Frequently Asked Questions About Copyright and Computer Software. October 2010. http://www.cendi.gov/publications/09-1FAQ_OpenSourceSoftware_FINAL_110109.pdf
Department of Defense. Better Buying Power. Focus Area: Promote Competition. Initiative: Enforce open architectures and effectively manage technical data rights. June 2013. http://bbp.dau.mil/bbp5focus.html http://bbp.dau.mil/docs/Open_Systems_Architecture_%20Data_Rights_10_June_2013.pdf
DOD Open Systems Architecture Data Rights Team. DoD Open Systems Architecture Contract Guidebook for Program Managers (Version 1.1). DoD, June 2013. https://acc.dau.mil/OSAGuidebook
For more information about data rights, please see:
Barrow, Jane. Government Data Rights Under the DFARS. CENDI Principals Meeting, July 2009. http://www.cendi.gov/presentations/07-08-09_Barrow.pdf
Defense Information Systems Agency. Better Buying Power: Understanding and Leveraging Data Rights in DoD Acquisitions. January 2013. http://www.disa.mil/About/Legal-and-Regulatory/DataRights-IP/~/media/Files/DISA/About/GC/BuyingPowertrifold.pdf
Defense Information Systems Agency. Data Rights. http://www.disa.mil/About/Legal-and-Regulatory/DataRights-IP/DataRights
For more information about acquisition regulations and policies, please see:
Department of Defense. Defense Federal Acquisition Regulation Supplement (DFARS). Sections 227 and 252. June 2013, September 2013. http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html
General Services Administration, Department of Defense, & National Aeronautics and Space Administration. Federal Acquisition Regulation. Sections 27.4 and 52.227. March 2005. http://www.acquisition.gov/far
Office of Acquisition Policy. General Services Administration Acquisition Manual (GSAM). U.S. General Services Administration. November 2012. http://www.acquisition.gov/gsam/gsam.html
For more information about commercial software acquisition, please see:
Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics. Intellectual Property: Navigating Through Commercial Waters (Version 1.1). OSD, October 2001. http://www.acq.osd.mil/dpap/docs/intelprop.pdf
For more information about using decision frameworks to determine a licensing strategy, please see:
Gross, Charlene. A Decision Framework for Selecting Licensing Rights for Noncommercial Computer Software in the DoD Environment (CMU/SEI-2011-TR-014). Software Engineering Institute, Carnegie Mellon University, 2011. http://resources.sei.cmu.edu/library/asset-view.cfm?AssetID=9995
Gross, Charlene. Do You Own It or Not? A Primer on Noncommercial Software Licensing. IEEE Software Technology Conference, 2010. http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA557433