Government Contracts DoD Considers Mandatory Price Negotiations for Technical Data
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Wednesday, December 11, 2019

DoD Considers Mandatory Price Negotiations for Technical Data

By Government Contracts Editorial Staff

The Department of Defense has issued an advance notice of proposed rulemaking seeking comments on the implementation of section 835 of the National Defense Authorization Act for Fiscal Year 2018 (PL 115-91) and section 867 of the NDAA for FY 2019 (PL 115-232). As a result of these acts, 10 USC 2439 requires DoD, before selecting a contractor for the engineering and manufacturing development of a major weapon system, production of a major weapon system, or sustainment of a major weapon system, to negotiate a price for technical data to be delivered under a development, production, or sustainment contract. Currently, prices for data and associated license rights are often negotiated after contract award. However, under proposed DFARS 215.470(a), the contracting officer would be required to negotiate a price for data (including technical data and computer software) and associated license rights to be delivered or otherwise provided under a contract for services or for the development, production, or sustainment of a system, subsystem, or component. The CO would be required to negotiate this price to the maximum extent practicable and before making a source selection decision or awarding a sole-source contract.

Specially Negotiated Licenses. Section 835 also revised 10 USC 2320 to provide a preference for specially negotiated license rights for customized technical data to support the product support strategy of a major weapon system or subsystem of a major weapon system. DoD is proposing to implement this preference for SNLR by incorporating an appropriate statement of preference into existing Defense Federal Acquisition Regulation Supplement sections and clauses that already authorize and address, but do not currently express a preference for, SNLR. Interested parties should submit written comments referencing DFARS Case 2018-D071 by January 13, 2020. For the text of the ANPR, see 84 FR 60988.

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