A technology subcontractor may enter a DoD program with years of preexisting designs, processes, libraries, drawings, algorithms, manufacturing know-how, or software. If those materials are not identified before award, later delivery requirements can create disputes over what the prime or Government is entitled to receive and use.
The goal is not to label everything proprietary. The goal is to separate preexisting or privately developed material from new contract work and connect each deliverable to the correct contractual rights framework.
Translate 'background IP' into contract categories
DFARS 252.227-7013 distinguishes development at private expense, mixed funding, Government funding, prior Government rights, and several categories of technical data that receive specific treatment. Computer software is governed by a related but separate DFARS clause framework.
A subcontractor should therefore inventory the actual item, component, process, technical data, and software involved instead of relying only on a broad background-IP definition in a commercial terms section.
Official source: DFARS 252.227-7013 — Rights in Technical Data.
Assertions should be prepared before the offer when required
DFARS 252.227-7017 provides a mechanism for offerors to identify technical data or computer software they intend to furnish with restrictions, the basis for the assertion, the asserted rights category, and the person asserting the restriction. The provision notes that private-expense development is generally a basis for restrictions in the covered context.
A subcontractor supporting a prime proposal should make sure its intended assertions reach the prime early enough to be incorporated into the proposal and contract process.
Official source: DFARS 252.227-7017 — Identification and Assertion of Restrictions.
Create an IP and data schedule
- Identify preexisting products, components, processes, drawings, technical data, software, and documentation expected to be used.
- Record the development-funding history at an appropriate level.
- Identify which materials are deliverables and which are only tools used to perform the work.
- State the intended Government rights category or license position for restricted deliverables.
- Document prior Government rights that already exist.
- Confirm how the prime will carry subcontractor assertions into its own contract attachment and deliveries.
Watch for prime-drafted ownership clauses
A subcontract can contain a commercial IP clause that says the prime owns all work product, inventions, data, or materials created or used in performance. That language may be broader than the federal license rights actually required by the prime contract.
Compare the prime's ownership language to the DFARS flowdowns, deliverables, and negotiated data-rights position. Resolve any conflict before performance begins rather than after proprietary material has already been delivered.