On August 22, the U.S. Department of Defense ("DOD") published new competition guidelines outlining strategies for contracting officers to increase competition with various types of acquisition programs. The guidelines were developed as a result of the DOD's Better Buying Power 2.0—Achieving Greater Efficiency and Productivity in Defense Spending initiative, Memorandum from The Under Secretary of Defense to the Defense Acquisition Workforce (Nov. 13, 2012), and place a heavy emphasis on avoiding "vendor lock" by employing Open Systems Architecture ("OSA") and intellectual property strategies, as well as taking specific additional steps to ensure competition in developmental programs, weapons systems production, services, and commodities procurements. The DOD's intellectual property guidance has sparked a particular interest within the defense community and includes policies that defense contractors have been seeing come into play in recent years, including added attention to intellectual property license rights and restrictive markings. To remedy the DOD's concerns that it has failed to secure necessary technical data deliverables and associated license rights, the guidelines state that program management must better manage intellectual property issues by: (1) addressing both data deliverables and data rights in the solicitation and resulting contract; (2) pricing contract options for data deliverables and data rights; (3) segregating DOD-funded development from privately-funded technology; (4) requiring form, fit, and function data for proprietary technology or software; (5) evaluating intellectual property deliverables and rights in source selections; and (6) monitoring data deliverables and restrictive markings. As DOD and contractors continue to work through these issues on a caseby- case basis, contractors should anticipate the DOD's concerns while keeping in mind that the guidelines specifically state that "[c]are must be taken to avoid requiring an offeror ... to grant [DOD] additional data rights beyond the standard or default rights that are specified in the DFARS clauses."
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