97-81

Procurement Notice

February 3, 2003                                                                                           

SCIENTIFIC AND TECHNICAL REPORTS

 

BACKGROUND:  This PN revises the NASA FAR Supplement to clarify the review requirements for data produced under research and development (R&D) contracts, including data contained in final reports, and the review requirements for final reports prior to inclusion in NASA’s Center for AeroSpace Information (CASI) scientific and technical information (STI) database.  This PN also revises the address for CASI for receipt of copies of all R&D contracts. 

 

NFS clause 1852.235-70, Center for Aerospace Information – Final Scientific and Technical Reports, required in all R&D contracts, states in paragraph (e) that contractors cannot release the final report required under the contract, outside of NASA, until a document availability authorization (DAA) review has been completed by NASA and availability of the report has been determined. The DAA review completed by NASA is intended to ensure that NASA disseminates NASA scientific and technical information (STI) in a manner consistent with U.S. laws and regulations, Federal information policy, intellectual property rights, technology transfer protection requirements, and budgetary and technological limitations.  The DAA review process applies only to the publication and dissemination of NASA STI by NASA or under the direction of NASA. 

 

This final report review requirement has been incorrectly interpreted by some university contractors as restricting their right to publish any of the data produced under the contract that may be included in the Final Report until NASA has completed its DAA review.  The intent of paragraph (e) is to restrict only the release of the “The Final Report” as delivered under the contract until NASA completes its DAA review and availability of the report has been determined. This clause normally does not restrict the contractor’s ability to publish, or otherwise disseminate, data produced during the performance of the contract, including data contained in the Final Report, as provided under FAR clause 52.227-14, Rights in Data –General.  However, in certain limited situations, contract requirements may include research activity that will result in data subject to export control, national security restrictions, or other restrictions designated by NASA, or may require that the contractor receives or is given access to data that includes restrictive markings, e.g., proprietary information of others.  In these circumstances, NASA requires a review of data produced under the contract, before the contractor may publish, release, or otherwise disseminate the data.

 

This PN clarifies the above by making the clause changes noted below.

 

Additional guidance is provided in Procurement Information Circular (PIC) 03-03.

  

ACQUISITIONS AFFECTED BY CHANGES:  All R&D contracts and interagency agreements and cost-reimbursement supply contracts involving research and development work.

 

ACTION REQUIRED BY CONTRACTING OFFICERS:  All R&D solicitations issued after February 3, 2003, must include the revised clauses and alternates as appropriate noted below.   Solicitations issued before February 3, 2003, may be amended to include the revised clause if including it would not unduly delay the acquisition.  Before using either Alternate I or II to the new clause 1852.235-73, Final Scientific and Technical Reports, contracting officer must coordinate with the requiring organization and the Center Export Control Administrator and/or Chief or Patent Counsel, as appropriate.

 

CLAUSE CHANGES:  This PN makes the following clause changes:

   (a) 1852.235-70 is retitled “Center for Aerospace Information,” and references to the submission of the final report have been removed. The revised clause now only advises contractors of the services provided by CASI;

   (b) A new clause 1852.235-73, Final Scientific and Technical Reports, is added.  This clause requires submission of a final report; states that the contractor may publish, or otherwise disseminate, data produced during the performance of the contract, including data contained in the final report, without prior review by NASA; and retains restriction on release of the final report as delivered under the contract until NASA has completed its DAA review;

   (c) Alternate I to the new 1852.235-73 clause is established for use in contracts for fundamental research in which the contractor may publish, or otherwise disseminate, data produced during performance of the contract, including the final report, without prior review by NASA;

   (d) Alternate II to the new 1852.235-73 clause is established for use in contracts in which data resulting from the research activity may be subject to export control, national security restrictions or other restrictions designated by NASA, or, to the extent the contractor receives or is given access to data that includes restrictive markings, may include proprietary information of others, and thus will require NASA review before the contractor may publish, release, or otherwise disseminate data produced during the performance of the contract; and

   (e) A new clause 1852.235-74, Additional Reports of Work—Research and Development, is added for use in contracts in which monthly, quarterly and other reports in addition to the Final Report may be considered necessary for monitoring contract performance.

 

PARTS AFFECTED:  Changes are made in Parts 1804, 1827, 1835, and 1852.

 

REPLACEMENT PAGES:  You may use the enclosed pages to replace 4:3, 4:4, Part 1827, Part 1835, 52:3, 52:4, 52:4.1, 52:57, 52:58, 52:66.1, 52:66.2, 52:66.3, 52-95, 52-96, 52-97, 52-98, and 52-99 (added).

 

TYPE OF RULE AND PUBLICATION DATE:  The PN was published as a final rule in the Federal Register (68 FR 5230 - 5233) on February 3, 2003.

 

HEADQUARTERS CONTACT:  Celeste Dalton, Code HK, (202) 358-1645, email: cdalton@hq.nasa.gov.

 

R. Scott Thompson

Director, Contract Management Division

 

Enclosures

 

PART 1804

ADMINISTRATIVE MATTERS

 

Subpart 1804.1--Contract Execution

 

1804.103  Contract clause.

   The contracting officer shall include the clause at FAR 52.204-1, Approval of Contract, in solicitations, contracts, and supplemental agreements that require higher level approval.  For actions requiring Headquarters approval, insert "NASA Assistant Administrator for Procurement" in the clause's blank space.

 

1804.170  Contract effective date.

   (a)  "Contract effective date" means the date agreed upon by the parties for beginning the period of performance under the contract.  In no case shall the effective date precede the date on which the contracting officer or designated higher approval authority signs the document.

   (b)  Costs incurred before the contract effective date are unallowable unless they qualify as precontract costs (see FAR 31.205-32) and the clause prescribed at 1831.205-70 is used.

 

Subpart 1804.2--Contract Distribution

 

1804.202  Agency distribution requirements.

In addition to the requirements in FAR 4.201, the contracting officer shall distribute one copy of each R&D contract, including the Statement of Work, to the NASA Center for AeroSpace Information (CASI), Attention: Acquisitions Collections Development Specialist, 7121 Standard Drive, Hanover, MD  21076-1320.

 

1804.203  Taxpayer identification information.

   Instead of using the last page of the contract to provide the information listed in FAR 4.203, NASA installations may allow contracting officers to use a different distribution method, such as annotating the cover page of the payment office copy of the contract.

 

Subpart 1804.4--Safeguarding Classified Information Within Industry

 

1804.402 General.

   (b)  NASA security policies and procedures are prescribed in NPD 1600.2A, NASA Security Policy; NPG 1600.6A, Communications Security Procedures and Guidelines; NPG 1620.1, Security Procedures and Guidelines; NPG 2810.1 and NPD 2810.1 Security of Information Technology.

 

1804.404-70  Contract clause.

   The contracting officer shall insert the clause at 1852.204-75, Security Classification Requirements, in solicitations and contracts if work to be performed will require security clearances.  This clause may be modified to add instructions for obtaining security clearances and access to security areas that are applicable to the particular acquisition and installation.

 

1804.470  Security requirements for unclassified information technology resources.

 

1804.470-1  Scope.

   This section implements NASA's acquisition‑related aspects of Federal policies for assuring the security of unclassified automated information resources.  Federal policies include, but are not limited to, the Computer Security Act of 1987 (40 U.S.C. 1441 et seq.), the Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.), Public Law 106-398, section 1061, Government Information Security Reform, OMB Circular A-130, Management of Federal Information Resources, and the National Institute of Standards and Technology security guidance and standards.

 

1804.470-2  Policy.

   (a) NASA policies and procedures on security for automated information technology are prescribed in NPD 2810.1, Security of Information Technology, and in NPG 2810.1, Security of Information Technology.  The provision of information technology (IT) security in accordance with these policies and procedures, is required in all contracts that include IT resources or services in which a contractor must have physical or electronic access to NASA's sensitive information contained in unclassified systems that directly support the mission of the Agency. This includes information technology, hardware, software, and the management, operation, maintenance, programming, and system administration of computer systems, networks, and telecommunications systems. Examples of tasks that require security provisions include:

          (1)  Computer control of spacecraft, satellites, or aircraft or their payloads;

          (2)  Acquisition, transmission or analysis of data owned by NASA with significant replacement costs should the contractor’s copy be corrupted; and

          (3)  Access to NASA networks or computers at a level beyond that granted the general public, e.g. bypassing a firewall.

   (b) The contractor must not use or redistribute any NASA information processed, stored, or transmitted by the contractor except as specified in the contract. 

 

1804.470-3  Security plan for unclassified Federal Information Technology systems.

   (a) The requiring activity with the concurrence of the Center Chief Information Officer (CIO), and the Center Information Technology (IT) Security Manager, must determine whether an IT Security Plan for unclassified information is required.

   (b)  IT security plans  must demonstrate a thorough understanding of NPG 2810.1 and NPD 2810.1 and must include, as a minimum, the security measures and program safeguards planned to ensure that the information technology resources acquired and used by contractor and subcontractor personnel --

          (1)  Are protected from unauthorized access, alteration, disclosure, or misuse of information processed, stored, or transmitted;

          (2)  Can maintain the continuity of automated information support for NASA missions, programs, and functions;

           (3)  Incorporate management, general, and application controls sufficient to provide cost-effective assurance of the systems' integrity and accuracy;

          (4)  Have appropriate technical, personnel, administrative, environmental, and access safeguards;

          (5)  Document and follow a virus protection program for all IT resources under its control; and

 

PART 1827

PATENTS, DATA, AND COPYRIGHTS

TABLE OF CONTENTS

 

1827.000                                 Scope of part.

 

SUBPART     1827.3           PATENT RIGHTS UNDER GOVERNMENT CONTRACTS

1827.301                               Definitions.

1827.302                   Policy.

1827.303                   Contract clauses.

1827.303-70                            NASA solicitation provisions and contract clauses.

1827.304                   Procedures.

1827.304-1                              General.

1827.304-2                              Contracts placed by or for other Government agencies.

1827.304-3                              Contracts for construction work or architect-engineer services.

1827.304-4                           Subcontracts.

1827.304-5                              Appeals.

1827.305                   Administration of the patent rights clauses.

1827.305-3                              Follow-up by Government.

1827.305-370                          NASA patent rights and new technology follow-up procedures. 

1827.305-371                          New technology reporting plan.

1827.305-4                              Conveyance of invention rights acquired by the Government.

 

SUBPART     1827.4            RIGHTS IN DATA AND COPYRIGHTS

1827.404                  Basic rights in data clause.

1827.405                  Other data rights provisions.

1827.406                  Acquisition of data.

1827.406-70                    Reports of work.

1827.408                  Cosponsored research and development activities.

1827.409                  Solicitation provisions and contract clauses.

1827.409-70                            NASA contract clause.

 

SUBPART     1827.6            FOREIGN LICENSE AND TECHNICAL ASSISTANCE AGREEMENTS

1827.670                   Space Station technical data and goods.

1827.670-1                              Policy.

1827.670-2                              Contract clause.

 

 

PART 1827

PATENTS, DATA, AND COPYRIGHTS

 

1827.000  Scope of part.

   This part prescribes NASA policies, procedures, and contract clauses pertaining to patents, data, and copyrights.  The provisions of FAR Part 27 apply to NASA acquisitions unless specifically excepted in this part.

 

Subpart 1827.3--Patent Rights Under Government Contracts

 

1827.301  Definitions.

   "Administrator," as used in this subpart, means the Administrator of NASA or a duly authorized repre­sentative.

   "Contract," as used in this subpart, means any actual or proposed contract, agreement, understand­ing, or other arrangement, and includes any assign­ment, substitution of parties, or subcontract executed or entered into thereunder.

   "Made," in lieu of the definition in FAR 27.301, as used in this subpart, means conceived or first actually reduced to practice; provided, that in the case of a variety of plant, the date of determina­tion (as defined in Section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of con­tract performance.

  "Reportable item," as used in this subpart, means any invention, discovery, improvement, or innovation of the contractor, whether or not patentable or otherwise protectible under Title 35 of the United States Code, made in the performance of any work under any NASA contract or in the performance of any work that is reimbursable under any clause in any NASA contract providing for reimbursement of costs incurred before the effective date of the contract. Reportable items include, but are not limited to, new processes, machines, manufactures, and compositions of matter, and improvements to, or new applications of, existing processes, machines, manufactures, and compositions of matter. Reportable items also include new computer programs, and improvements to, or new applications of, existing computer programs, whether or not copyrightable or otherwise protectible under Title 17 of the United States Code.

   "Subject invention," in lieu of the definition in FAR 27.301, as used in this subp­art, means any reportable item that is or may be patent­able or otherwise protectible under Title 35 of the United States Code, or any novel variety of plant that is or may be protectible under the Plant Variety Protec­tion Act (7 U.S.C. 2321 et seq.).

 

1827.302  Policy.  

   (a)  Introduction.     

      (i)    NASA policy with respect to any invention, discovery, improvement, or innovation made in the performance of work under any NASA contract or subcon­tract with other than a small business firm or a nonprofit organization and the alloca­tion of related property rights is based upon Section 305 of the National Aeronau­tics and Space Act of 1958, as amended (42 U.S.C. 2457) (the Act); and, to the extent consistent with this statute, the Presidential Memorandum on Government Patent Policy to the Heads of Executive Departments and Agencies, dated February 18, 1983, and Section 1(b)(4) of Executive Order 12591.  NASA policy with respect to any invention made in the performance of experimental, developmental, or research work with a small busi­ness firm or a nonprofit organiza­tion is based on 35 U.S.C. Chapter 18, as amended.

      (ii)   NASA contracts subject to Section 305 of the Act shall ensure the prompt reporting of reportable items in order to protect the Government's interest and to provide widest practi­ca­ble and appro­priate dissemination, early utilization, expeditious development, and continued availability for the benefit of the scientific, industrial, and commercial com­munities and the general public. 

   (b)  Contractor right to elect title.     

      (i)    For NASA contracts, the contractor right to elect title only applies to contracts with small businesses and non-profit organizations.  For other business entities, see subdivision (ii) of this paragraph.

      (ii)   Contractor right to request a waiver of title.  For NASA contracts with other than a small business firm or a nonprofit organization (contracts subject to Section 305 of the Act),it is the policy of NASA to waive the rights (to acquire title) of the United States (with the reservation of a Govern­ment license set forth in FAR 27.302(c) and the march-in rights of FAR 27.302(f) and 1827.302(f)) in and to any subject in­vention if the Administra­tor determines that the interests of the United States will be served.  This policy, as well as the proce­dures and instructions for such waiver of rights, is stated in the NASA Patent Waiver Regula­tions, 14 CFR Section 1245, Subpart 1.  Waiver may be requested in advance of contract award for any or all of the subject inven­tions, or for individual­ly identified subject inventions reported under the contract.  When waiver of rights is grant­ed, the contractor's right to title, the rights reserved by the Govern­ment, and other conditions and obliga­tions of the waiver shall be included in an Instru­ment of Waiv­er executed by NASA and the party receiv­ing the waiver.

      (iii)  It is also a policy of NASA to consid­er for a monetary award, when referred to the NASA Inven­tions and Contributions Board, any subject invention reported to NASA in accordance with this subpart, and for which an application for patent has been filed. 

   (c)  Government license.  For each subject invention made in the performance of work under a NASA contract with other than a small business firm or nonprofit organization and for which waiver of rights has been granted in accordance with 14 CFR Section 1245, Subpart 1, the Administrator shall reserve an irrevocable, nonexclusive, nontransferable, royalty-free license for the practice of such invention throughout the world by or on behalf of the United States or any foreign Government in accordance with any treaty or agreement of the United States.

   (d)  Government right to receive title.  Under any NASA contract with other than a small business or nonprofit organization (i.e., those contracts subject to Section 305(a) of the Act), title to subject inventions vests in NASA when the determinations of Section 305(a)(1) or 305(a)(2) have been made.  The Administrator may grant a waiver of title in accordance with 14 CFR Section 1245.

   (e)  Utilization reports.  For any NASA contract with other than a small business firm or a nonprofit organiza­tion, the re­quirements for utilization reports shall be as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of Waiver executed under those Regulations.

   (f)   March-in rights.  For any NASA contract with other than a small business firm or a nonprofit organiza­tion, the march-in rights shall be as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, and any Instrument of Waiver executed under those Regulations.

   (g)  Preference for United States industry.  Waiver of the requirement for the agreement for any NASA contract with other than a small busi­ness firm or a nonprofit organization shall be in accor­dance with the NASA Patent Waiver Regu­la­tions, 14 CFR Section 1245, Subpart 1.

   (i)   Minimum rights to contractor.                                 

      (1)   For NASA contracts with other than a small business firm or a nonprofit organiza­tion (i.e., those contracts subject to Section 305(a) of the Act), where title to any subject inventions vests in NASA, the contractor is normally granted, in accordance with 14 CFR 1245, a revocable, nonexclusive, royalty-free license in each patent application filed in any country and in any resulting patent.  The license extends to any of the contractor’s domestic subsidiaries and affiliates within the corporate structure, and includes the right to grant sublicenses of the same scope to the extent the contractor was legally obligated to do so at the time the contract was awarded.  The license and right are transferable only with the approv­al of the Administrator, except when transferred to the succes­sor of that part of the contractor's business to which the invention pertains.

      (2)   The Administrator is the approval authority for revoking or modifying a license.  The procedures for revocation or modification are described in 37 CFR 404.10 and 14 CFR 1245.108.

 

1827.303  Contract clauses. 

   (a)(1)(A) See 1827.303-70(a).          

             (B) To qualify for the clause at FAR 52.227-11, a prospective contractor may be required to represent itself as either a small business firm or a nonprofit organization.  If there is reason to question the status of the prospective contractor, the contracting officer may file a protest in accordance with FAR 19.302 if small business firm status is questioned, or require the prospec­tive contractor to furnish evidence of its status as a nonprofit organization.      

      (5)   Alternate IV to 52.227-11 is not used in NASA contracts.  See instead 1827.303-70(a). 

   (b)(1)(ii)  FAR 52.227-12 is not used in NASA contracts.  See instead 1827.303-70(b).

   (c)(1)(ii)  When work is to be performed outside the Untied States, its possessions, and Puerto Rico by contractors that are not domestic firms, see 1827.303-70(f).    

      (2)   See 1827.303-70(b) and (f).

   (d)(1) When one of the conditions in FAR 27.303(d)(1)(i) through (iv) is met, the contracting officer shall consult with the installation intellectual property counsel to determine the appropriate clause.

 

1827.303-70  NASA solicitation provisions and contract clauses. 

   (a)  When the clause at FAR 52.227-11 is includ­ed in a solicitation or contract, it shall be modified as set forth at 1852.227-11.

   (b)  The contracting officer shall insert the clause at 1852.227-70, New Technology, in all NASA solicitations and contracts with other than a small business firm or a nonprofit organization (i.e., those subject to section 305(a) of the Act), if the contract is to be performed in the United States, its possessions, or Puerto Rico and has as a purpose the performance of experi­mental, developmental, re­search, design, or engineering work.  Contracts for any of the fol­lowing purposes may be considered to in­volve the performance of work of the type described above (these examples are illus­trative and not limiting):     

      (1)   Conduct of basic or applied research.

      (2)   Development, design, or manufacture for the first time of any machine, article of manufacture, or composition of matter to satisfy NASA's specifica­tions or special requirements.

      (3)   Development of any process or tech­nique for attaining a NASA objective not readily attainable through the practice of a previously developed process or technique.

      (4)   Testing of, evaluation of, or experi­mentation with a machine, process, concept, or technique to determine whether it is suitable or could be made suitable for a NASA objective.

      (5)   Construction work or architect-engineer services having as a purpose the performance of experimental, developmental, or research work or test and evalua­tion studies involving such work.

      (6)   The operation of facilities or the coordination and direction of the work of others, if these activities involve perform­ing work of any of the types de­scribed in paragraphs (1) through (5) of this section. 

   (c)  The contracting officer shall insert the provision at 1852.227-71, Requests for Waiver of Rights to Inventions, in all solici­tations that include the clause at 1852.227-70, New Technology (see paragraph (b) of this section).

   (d)  The contracting officer shall insert the clause at 1852.227-72, Desig­nation of New Technology Representative and Patent Represen­tative, in all solicitations and contracts containing either of the clauses at FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form) or 1852.227-70, New Technology (see paragraph (c) of this section).  It may also be inserted, upon consultation with the installation intellectual property counsel, in solicitations and contracts using another patent rights clause.  The New Technology Representa­tive shall be the Technology Utilization Officer or the staff member (by titled position) having cognizance of tech­nology utilization matters for the installa­tion concerned. The Patent Repre­sentative shall be the intellectual property counsel (by titled posi­tion) having cogni­zance of patent matters for the installa­tion concerned.

   (e)  The contract­ing officer shall insert the provision at 1852.227-84, Patent Rights Clauses, in solici­tations for experimental, developmental, or research work to be performed in the Unit­ed States, its possessions, or Puerto Rico when the eventual awardee may be a small business or a nonprofit organization.

   (f)   As authorized in FAR 27.303(c)(2), when work is to be performed out­side the United States, its possessions, and Puerto Rico by contractors that are not domestic firms, the clause at 1852.227-85, Invention Reporting and Rights--For­eign, shall be used unless the contracting officer determines, with concurrence of the install­ation intellectual property counsel, that the objectives of the contract would be better served by use of the clause at FAR 52.227-13, Patent Rights---Acquisition by the Gov­ernment.  For this purpose, the contracting officer may presume that a contractor is not a domestic firm unless it is known that the firm is not foreign owned, controlled, or influenced. (See FAR 27.304-4(a) regarding subcontracts with U.S. firms.)

 

1827.304  Procedures.

 

1827.304-1  General.   

   (a)  Contractor appeals of exceptions.  In any contract with other than a small busi­ness firm or nonprofit organization, the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, shall apply.

   (b)  Greater rights determinations.  In any con­tract with other than a small business firm or a nonprofit organization and with respect to which advance waiver of rights has not been granted (see 1827.302(b)), the contractor (or an employee-inventor of the contractor after consultation with the con­trac­tor) may request waiver of title to an individ­ual identified subject invention pursuant to the NASA Patent Waiver Regu­lations, 14 CFR Section 1245, Subpart 1.

   (c)  Retention of rights by inventor.  The NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1, apply for any invention made in the performance of work under any contract with other than a small business firm or a nonprofit organiza­tion.

   (f)   Revocation or modification of contract­or's minimum rights.  Revocation or modifi­ca­tion of the contractor's license rights (see 1827.302(i)(2)) shall be in accordance with 37 CFR 404.10, for subject inventions made and reported under any contract with other than a small business firm or a nonprofit organization.

   (g)  Exercise of march-in rights.  For con­tracts with other than a small business firm or a nonprofit organiza­tion, the procedures for the exercise of march-in rights shall be as set forth in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.

   (h)  Licenses and assignments under con­tracts with nonprofit organizations. The Headquarters Associate General Counsel (Intellectual Property) (Code GP) is the approval authority for assignments.  Contracto­r requests should be made to the Patent Representative designated in the clause at 1852.227-72 and forwarded, with rec­ommendation, to Code GP for approval.

 

1827.304-2  Contracts placed by or for other Government agencies.   

   (a)(3) When a contract is placed for another agency and the agency does not request the use of a specific patent rights clause, the contracting officer, upon consultation with the installation intellectual property counsel, may use the clause at FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form) as modified by 1852.227-11 (see 1827.303-70(a)) or 1852.227-70, New Technology (see 1827.303-70(b)).

 

1827.304-3  Contracts for construction work or architect-engineer services. 

   (a)  For construction or architect-engineer services contracts with other than a small business or nonprofit organization, see 1827.303-70(b).

 

1827.304-4  Subcontracts. 

   (a)(i)   Unless the con­tracting officer other­wise authorizes or directs, contractors awar­ding subcontracts and subcontractors awar­ding lower-tier subcontracts shall select and include one of the following clauses, suit­ably modi­fied to identify the parties, in the indicated subcon­tracts:         

         (A) The clause at 1852.227-70, New Technolo­gy, in any subcontract with other than a small busi­ness firm or a nonprofit organization if a purpose of the subcontract is the performance of experimental, devel­opmental, research, design, or engineering work of any of the types described in 1827.303-70(b)(1)-(6).

         (B) The clause at FAR 52.227-11, Patent Rights--Retention by the Contractor (Short Form), modified by 1852.227-11 (see 1827.303-70(a)), in any subcontract with a small busi­ness firm or a nonprofit organization if a purpose of the subcontract is the perfor­mance of experimental, developmental, or research work.    

      (ii)   Whenever a prime contractor or a subcon­tractor considers it inappropriate to include one of the clauses discussed in paragraph (a) of this section in a particular subcontract, or a subcontractor refuses to accept the clause, the matter shall be re­solved by the contracting officer in consul­tation with the intellectual property coun­sel.

 

1827.304-5  Appeals.

   FAR 27.304-5 shall apply unless other­wise provided in the NASA Patent Waiver Regulations, 14 CFR Section 1245, Subpart 1.

 

1827.305  Administration of the patent rights clauses.

 

1827.305-3  Follow-up by Government.

 

1827.305-370  NASA patent rights and new technology follow-up procedures. 

   (a)  For each contract containing a patent rights clause or the clause at 1852.227-70, New Technology, the contracting officer shall take the following actions:     

      (1)   Furnish, or require the contractor to furnish directly, the New Technology Repre­sentative and the Patent Representative a copy of each contract (and modifications thereto), and copies of the final technical report, interim technical progress reports, and other pertinent material provided under the contract, unless the representatives indicate other­wise; and

      (2)   Notify the New Technology Repre­sentative as to which installation organiza­tional element has technical cognizance of the contract. 

   (b)  The New Technology Representative shall take the following actions:

      (1)   Review the technical progress of work performed under the contract to ascertain whether the contractor and its subcontrac­tors are complying with the clause's report­ing and recordkeeping requirements;

      (2)   Forward to the Patent Representative copies of all contractor and subcontracto­r written reports of reportable items and disclosures of subject inventions, and a copy of the written statement, if any, sub­mitted with the reports.

      (3)   Consult with the Patent Representative whenever a question arises as to whether a given reportable item is to be considered a subject invention and whether it was made in the performance of work under the contract.

      (4)   Forward to the Patent Representative all corre­spondence relating to inventions and waivers under the New Technology clause or election of title under the Patent Rights---Retention by the Contractor (Short Form) clause.

      (5)   Upon receipt of any final report required by the clause, and upon determina­tion that the contract work is complete, deter­mine whether the contractor has complied with the clause's reporting requirements. If so, the New Technology Representative shall certify compliance, obtain the Patent Representative's concurrence, and forward the certification to the contracting officer. 

   (c)  The Patent Representative shall review each reportable item to ascertain whether it is to be consid­ered a subject invention, obtain any determinations re­quired by paragraph (b) of the clause at 1852.227-70, New Tech­nology, and notify the contractor.  As to any subject invention, the Patent Repre­sentative shall:       

      (1)   Ensure that the contractor has provided sufficient information to protect the Government's rights and inter­ests in it and to permit the preparation, filing, and prosecution of patent applica­tions;

      (2)   Determine inventors­hip;

      (3)   Ensure the preparation of in­struments establishing the Government's rights; and

      (4)   Con­duct selected reviews to ensure that subject inven­tions are identified, adequately document­ed, and timely reported or disclosed. 

   (d)  Either the New Technology Repre­sentative or the Patent Representative, in consultation with the other, may prepare opinions, make determinations, and other­wise advise the contracting officer with respect to any withholding of payment under para­graph (g) of the clause at 1852.227-70, New Technology.  Either the New Technol­ogy Repre­sentative or the Patent Repre­sentative may represent the contracting officer for the purpose of examining the contractor's books, records, and other documents in accordance with paragraph (f) of the clause and take corrective action as appropriate.  However, no action may be taken by either the New Technology Representative or the Patent Representative that would consti­tute a final decision under the Disputes clause, involve any change or increase in the work required to be performed under the contract that is inconsistent with any right of appeal pro­vided in FAR 27.304-5 or 14 CFR 1245, Subpart 1, or otherwise be outside the scope of the contract.

   (e)  The contracting officer shall not approve release of final payment under the contract and, if applicable, any reserve set aside under the withhold­ing provi­sions of the clause for deficiencies and delinquent reporting not corrected as of the time of the submis­sion of the final report by the con­tractor until receipt of the New Technology Representative's certification of compli­ance, and the Patent Representative's con­currence.

 

1827.305-371  New technology reporting plan.

   In contracts with an estimated cost in excess of $2,500,000 (or less when appropriate) that contain the clause at 1852.227-70, New Technology, the contracting officer may require the contractor to submit for post-award Government approval a detailed plan for new technology reporting that demonstrates an adequate understanding of and commitment to the reporting requirements of the clause.  

 

1827.305-4  Conveyance of invention rights acquired by the Government.

   (a)  When the Government acquires the entire right to, title to, and interest in an invention under the clause at 1852.227-70, New Technology, a determi­nation of title is to be made in accordance with Section 305(a) of the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2457(a)), and reflected in appropriate in­struments executed by NASA and forward­ed to the contractor.

 

Subpart 1827.4--Rights in Data and Copyrights

 

1827.404  Basic rights in data clause.   

   (d)  Protection of limited rights data speci­fied for delivery.  The contracting officer shall consult with the installation patent or intellectual property counsel regarding any questions concerning the delivery of limited rights data and/or the use of Alter­nate II that may arise from an offeror's response to the provision at FAR 52.227-15, Repre­sentation of Limited Rights Data and Restricted Computer Software, or during negotiations.

   (e)  Protection of restricted computer soft­ware specified for delivery.  The contracting officer shall consult with the installation patent or intellectual property counsel regarding any questions concerning the delivery of restricted computer software and/or the use of Alternate III that may arise from an offeror's response to the provision at FAR 52.227-15, Representation of Limited Rights Data and Restricted Computer Software, or during negotia­tions.

   (f)   Copyrighted data.

      (1)(ii)    The contracting officer shall consult with the installation patent or intellectual property counsel before granting permission for a contractor to claim copy­right subsisting in data, other than comput­er software, first produced under the con­tract.

         (iv)    The contracting officer, with the concurrence of the installation intellectual property counsel, is the approval authority for obtaining a copyright license of a different scope than set forth in subpara­graph (c)(1) of the clause at FAR 52.227-14, Rights in Data--General, for any con­tract or class of contracts.

      (2) (i)   The procurement officer is the approval authority for obtaining a copyright license of a different scope than that set forth in subparagraph (c)(2) of the clause at FAR 52.227-14 for any contract or class of contracts.

   (g)  Release, publication, and use of data.

      (3)(A)  NASA’s intent is to ensure the most expeditious dissemination of computer software developed by it or its contractor.  Accordingly, when the clause at FAR 52.227-14, Rights in Data-General, is modified by 1852.227-14 (see 1827.409(a)), the contractor may not assert claim to copy­right, publish, or release to others computer software first produced in the performance of a contract without the contracting offic­er's prior written permission.

         (B) The contracting officer may, in consultation with the installation patent or intellectual property counsel, grant the contractor permission to copy­right, publish, or release to others computer software first produced in the performance of a contract if:         

             (a) The contractor has identified an existing commercial computer software product line or proposes a new one and states a positive intention of incorporating any computer software first produced under the contract into that line, either directly itself or through a licensee;

             (b) The contractor has made, or will be re­quired to make, significant contributions to the development of the computer soft­ware by co-funding or by cost-sharing, or by contributing resources (including but not limited to agreement to provide continuing maintenance and update of the software at no cost for Governmental use); or

             (c) The concurrence of the Headquarters Office of Aeronautics Commercial Technology Division (Code RW) is obtained.

         (C)(a) The contractor's request for permis­sion in accordance with 1827.404(g)(3)(A) may be made either before contract award or during contract perfor­mance.

             (b) Any permission granted in accor­dance with 1827.404(g)(3)(B)(a) or (b) shall be by express contract provision (or amendment) overriding sub­paragraph (d)(3) of FAR 52.227-14, Rights in Data--General, (as modified by 1852.227-14), rather than by deleting it.  The contract provision may contain appropriate assurances that the computer software will be incorporated into an existing or proposed new commercial computer software product line within a reasonable time and/or that the agreed contributions to the Government are ful­filled, with contingencies enabling the Government to obtain the right to distribute the software for commercial use, including the right to obtain assignment of copyright where applicable, in order to prevent the computer software from being suppressed or abandoned by the contrac­tor. </