Lawmakers and the defense industry want to tweak a new law intended to grant the Pentagon rights to technical data underlying weapons programs so multiple companies can build the systems.
This data-rights change, spelled out in the fiscal year 2011 defense authorization act, was touted by lawmakers as a way to increase competition for weapon systems and other items the Pentagon contracts with industry to build or provide. The idea is for the Pentagon to obtain the legal rights to the underlying designs of system developed by defense companies, so competing firms could build subsequent copies of those items. The Navy has adopted a similar approach with its Littoral Combat Ship program.
The Pentagon-policy-setting FY ’11 legislation, which became law in January, calls for the Pentagon to preserve “the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with federal funds.”
The Senate Armed Services Committee (SASC) this month called for tweaking that law, though the Aerospace Industries Association (AIA) wants additional changes made.
The SASC’s newly filed FY ‘12 defense authorization bill would clarify that the Pentagon has rights to the data underlying any item developed with independent research and development (IR&D) and bid and proposal (B&P) monies if the contractor paid less than 10 percent of the development, or if the item is integrated into a major system and either can’t be segregated or was developed mainly at the government’s expense, according to the committee’s report. The legislation also would make clear that the Pentagon could use the data it obtains only for building and providing items to the U.S. government, and not elsewhere such as the commercial marketplace.
“We like that,” AIA Vice President for Legislative Affairs Cord Sterling said in an interview about the SASC’s proposed change. “It clarifies that it’s not the intent of the original legislation, (about which) we were concerned that it basically was giving the government unlimited rights” to the data.
However, Sterling said his trade group, which represents the defense industry, still finds part of this new data-rights mandate “of concern.” That’s because it is not clear for how many years the Pentagon could claim the rights to technical data on defense contracts.
The fact that “the government can go back for an indefinite period of time is still a little troublesome,” Sterling said, questioning, “When is something truly closed out? When is a contract, when is a program truly closed out?”
The current law, with the SASC’s proposed changes, “leaves a great deal of incompleteness,” he argued.
He suggested the law could be further tweaked to say, for example, “After three years or four years, …at that point in time the government doesn’t go back and try to claim data rights.”
“We would want (language) identified on the technical data rights to make sure that we had a period of time (to which it applies) so that we’ve got some finality to issue,” Sterling said.
The full Senate is not expected to take up the SASC’s defense authorization bill until after the August congressional recess.