“While there are times where giving the government unlimited data rights is expected and unavoidable, contractors obviously don’t want to give the government the ability to sell, distribute, and disclose important company information such as trade secrets, business plans, software code, and the like. Fortunately, there is a means to limit the government’s rights to a contractor’s preexisting data, and those are ‘limited data rights’ and ‘restricted computer software.’ For this post, we’ll look at just limited data rights…”
“’Limited rights data means data, other than computer software, that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications. (Agencies may, however, adopt the following alternate definition: Limited rights data means data (other than computer software) developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.’)
Basically, if the contractor produced the data on its own, completely outside of some government funded contract, and the data is something like trade secrets or is something a company would keep confidential, that data can be limited rights data. If it is made in the context of a government contract or the data isn’t trade secrets, customer lists, or something along those lines, limited rights can’t apply…”
“A little digging, however, takes us to FAR 27.404-2, ‘Limited Rights Data and Restricted Computer Software.’ Here, the regulation explains that, generally, limited rights means that the contractor may withhold the data from the government and provide form, fit, and function data instead. This rule applies when FAR 52.227-14 is included in the contract in its basic form. However, if the government nonetheless needs the data, an alternate version of FAR 52.227-14, ‘Rights in Data – General’ named Alternate II will be used instead. With Alternate II, the government can require delivery of the limited rights data. However, government can’t reproduce or otherwise disclose or distribute the data in question without the contractor’s permission or if for purposes expressly permitted in the limited rights data notice (more on that in a bit)
So, it is vital to check which version of FAR 52.227-14 is in your contract before you decide to withhold or deliver limited rights data to the government. If your contract involves the production or sharing of data, FAR 52.227-14 will be (or at least should be) in it…” Read the full article here.
Source: Data Rights and the Government Contractor: Limited Data Rights – By John Holtz, November 16, 2021. SmallGovCon.
