Just as with my Quick Hitters on the FAR and GSAR, my Quick Hitter series on the DFARS is meant to simplify business with the government. This time with DoD.
DFARS 227.7102-3 Government Right To Review, Verify, Challenge & Validate Asserted Restrictions
First, what is technical data? Simply, it is the insert(s) within your purchase of commercial goods and some services. Such might include photos, videos, instruction manuals, diagrams and specific warnings. Technical data also includes scientific and mathematical computational outputs to gauge processes such as production and performance, but the military may inquire about more than what is included in standard packaging as well as obtain access to empirical evidence not required to be supplied to the general public (DFARS 227.7102-1).
DFARS 227.7102-2 grants DoD leeway to assume ownership, but such is not a routine occurrence. The government is not functional to steal your invention just to accumulate more money that they have to print for themselves. That being said, some companies are willing to share their proprietary information to indicate its support to both our national and military endeavors.
Nevertheless, technical data is indeed negotiable. My training at the VA Acquisition Academy tells me that these negotiations can be intense. Especially, when data is used or shared.
DFARS 227.7103-13 displays eight (8) steps to the review process. Challenging data restrictions is not essential, and only negotiated if doing so brings about a successful procurement. COs must possess reasonable grounds to challenge restrictions, prove the exclusivity or non-exclusivity of private production for purposes of DoD usage, ensure challenges shall be made before technical data is approved (negotiable 3 yrs. after final payment/final data delivery which ever is the later date, but can be challenged any time that technical data is considered to be public ), assign validity to a challenge, allow subcontractors to challenge technical data, issue challenge notices if appropriate, give reasonable time to respond to a challenge, make a final decision on the validity of the challenge/assertion, understand that the first CO to challenge restrictions coordinates the government’s challenge efforts and the assigned CO or legal court in jurisdiction decides the validity of any challenge.
When the contractor is the subject-matter expert then they are ordinarily trusted. Both the challenge of technical data as well as the sharing of technical data are firmly understood by all involved parties before moving forward with CO acceptance. In layman’s terms, the initiative is both inquired about and responded to multiple times by all involved in the final decision. In short, a “yes” or non-responsiveness is not an automatic final answer.
I’m going to be clear. I’ve never negotiated technical data. I’ve been trained by people who have, and can do it in their sleep. However, I would love the opportunity to learn.
If you think I can help you then email nicholas.s.robertson@outlook.com for your introductory email and free consultation.
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