Modifications to technical data rights

(a) Modifications to rights in technical data Section 3771(b) of title 10, United States Code, is amended— (1) in paragraph (3)(C), by inserting, and for which the United States shall have government purpose rights, unless the Government and the contractor negotiate different license rights after component); and (2) in paragraph (4)(A)— (A) in clause (ii), by striking; or and inserting a semicolon; (B) by redesignating clause (iii) as clause (iv); and (C) by inserting after clause (ii) the following new clause: (iii) is a release, disclosure, or use of detailed manufacturing or process data— (I) that is necessary for operation, maintenance, installation, or training and shall be used only for operation, maintenance, installation, or training purposes supporting wartime operations or contingency operations; and (II) for which the head of an agency determines that the original supplier of such data will be unable to satisfy military readiness or operational requirements for such operations; or. (b) Reform of technical data and software rights to support competition, sustainment, and readiness (1) Default government purpose rights for deliverables Chapter 239 of title 10, United States Code, is amended by inserting after section 3775 the following new section: 3776. Default government purpose rights for deliverables under Department of Defense contracts (a) Default rights Except as provided in subsection (b), any technical data, computer software, or computer software documentation delivered under a contract, subcontract, or other agreement entered into by the Department of Defense for the acquisition of noncommercial products or services shall be provided with government purpose rights unless the contractor establishes, through clear and convincing evidence, entitlement to more restrictive rights. (b) Contractor burden A contractor asserting less-than-government purpose rights shall provide— (1) a compliant assertions table identifying each specific item of data or software claimed; (2) factual documentation of private development funding; (3) clause-specific unlimited-rights exclusions applied at the lowest practicable segregable level; and (4) corresponding portion markings on the deliverables. (c) Failure To substantiate Any failure by a contractor to comply with subsection (b) shall result in the deliverable being treated as provided with government purpose rights.. (2) Improper markings of critical items For any critical readiness items of supply (as that term is defined in section 4324(d)(4) of title 10, United States Code) that are noncommercial items, if the Secretary of Defense determines that a contractor— (A) applied an incorrect restrictive marking; (B) failed to exclude unlimited- or unrestricted-rights categories; (C) failed to portion-mark at the required segregable level; or (D) submitted an incomplete or invalid assertions table; then all affected technical data, computer software, and documentation shall be deemed as government purpose rights. (3) Clawback of excessive payments arising from improper restrictions (A) Independent analysis The Secretary shall obtain an independent engineering and cost analysis to determine the fair and reasonable price for any item procured under circumstances where improper restrictive markings contributed to an unjustified sole-source environment. (B) Government claim If the amount paid by the Government exceeds the amount determined under paragraph (1), the difference shall constitute a contract debt owed to the United States under chapter 71 of title 41, United States Code (commonly known the Contract Disputes Act). (C) Interest Any amount owed under this paragraph shall accrue interest from the date of overpayment in accordance with section 7109 of title 41, United States Code. (4) Enforcement and remedies A contractor found to have repeatedly mismarked data or submitted invalid assertions tables shall be ineligible for award of contracts requiring the delivery of technical data or software for a period determined by the Secretary.