To properly defend and realize the benefits of trillions of dollars invested in weapon system development, I recommend correcting the Federal Acquisition Regulation System (FARS) deviations from public contract and military procurement data rights statutes. Those FARS deviations make defense and realization of the investment benefits nearly impossible. The FARS definitions of "computer software" and "computer software documentation" contradict the 41USC403(8) definition of "technical data". FARS implementation of Defense acquisition data rights provisions for "computer software", separate from "technical data" data rights provisions, contradicts the data rights provisions prescribed by 10USC2320. FARS use of commerciality as a Defense acquisition data rights criterion also contradicts the data rights provisions prescribed by 10USC2320. There is no rational basis for any of these statute contradictions. Their combined effect is irrational Defense acquisition data rights provisions that also conflict with and contradict each other. Those distorted provisions collectively provide misguidance that severely hinders determination and defense of Government rights to data from major weapon system development. Exposure to, and discussions about, related major programs have revealed ridiculously numerous post-award rights restriction assertions that, in accordance with statutes, are invalid; and most of those assertions remain unresolved. The unresolved assertions represent uncontrolled loss from trillions of dollars in weapon system development investments through unjustified application of sole-source privileges by both development contractors and system program offices. The unjustified application of sole-source privileges includes depriving the Government of data developed partially or entirely at Government expense. Which, in turn, (1) deprives the Government of organic or competitive weapon system sustainment or incremental development and (2) deprives the Government of data reuse for other weapon system programs, thus forcing redevelopment or data repurchase. Details about the cited FARS deviations from statutes follow. The Statutes: The 41USC403(8) "technical data" definition states it includes all recorded scientific or technical information related to procured items, and specifically states it includes software documentation. Most information related to software throughout its lifecycle is documented information (e.g., source code, load scripts, and interpreted code are software information documented in programming or script languages), which by nature is software documentation. Just as hardware items are produced according to (are derivatives of) their documented hardware information, undocumented software information is a derivative of its respective software documentation (e.g., executable code is derived from loading relocatable code, which is derived from compiling source code, which is software documentation). Therefore, the "technical data" inclusion of software documentation includes all recorded software information except that which can be reproduced on demand from source code or other included software documentation. Inversely, any software that "technical data" excludes can only be part of the specifically excluded information incidental to contract management. So "technical data" includes all recorded/documented scientific or technical information related to all procured software, hardware, or other items, and only excludes software and other information that is incidental to contract administration. 10USC2320, through reference to "technical data", prescribes the use of three development funder categories (Government, contractor, mixed) as the criteria for differentiating between all military procured items for data rights purposes. 10USC2320 also prescribes the use of three directly corresponding data rights conditions (unlimited, restrictable, negotiated (which, by the authority that 10USC2320 delegates to SecDef, has been established as government purpose rights)) for all information/data related to those items. The FARS Deviations: The FARS "computer software" definition contradicts the 41USC403(8) "technical data" definition through invalid supposition that "technical data" excludes "computer software". That definition also contradicts itself by first stating computer software includes source code (which is software documented in programming language), and then stating computer software does not include computer software documentation. The FARS "computer software documentation" definition contradicts the 41USC403(8) "technical data" definition's single computer software documentation qualification (i.e., recorded information related to computer software) by excluding all software documentation except that which explains software capabilities or usage instructions. FARS’ data rights provisions involving “computer software” and commerciality add to, and therefore contradict, the 10USC2320 prescribed differentiation of all military procured items into three development funder categories for data rights purposes. These deviations destroy the extremely fair, simple, and effective one-to-one category-to-rights relationship that 10USC2320 prescribes. Recommended Resolution Actions: Correction: Definitions: Either correct or delete the invalid FARS “computer software” and “computer software documentation” definitions. Provisions: Purge all Defense acquisition data rights provision content from FARS related to “computer software” and/or commerciality (indicated by the “commercial” and “noncommercial” terms). Verification: Conduct two or more independent audits to identify data rights provision deficiencies that are overlooked or generated during corrective actions. Reiterate correction and verification actions until there is (1) total FARS data rights provision agreement with statutes and (2) straight forward applicability of those provisions, under all proper Defense acquisition contract conditions, with no plausible confusion, misinterpretations, or other need for clarification or debate. Application: Once all “computer software” and commerciality content is purged from DFARS data rights provisions, start and continue applying the DFARS technical data rights provisions to all defense contract items (i.e., for each item, verify its development funder category, and apply the data rights conditions prescribed for that category to all recorded information related to the item other than information that is incidental to contract administration). Enforcement: For each weapon system development contract, conduct two or more independent pre-award, mid-phase, and pre-LRIP audits that (1) identify invalid data rights assumptions, agreements, assertions, and other conditions, and initiate and track their resolutions, including loss recovery, to successful completion, (2) identify causal data rights provision or other deficiencies, and initiate and track their corrections to successful completion, and (3) identify contractor or Government official statutory infractions (e.g., False Claims Act breaches like any application of data rights restrictions that have not been properly justified and approved), and initiate appropriate investigation, prosecution, and/or punitive actions.
Idea No. 11611