https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN14261_AD2018_26_Final.pdf
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Army Directive 2018-26 (Enabling Modernization Through the Management
of Intellectual Property)
1. More than ever before, the Army faces unprecedented challenges from emerging
threats, proliferation of technology, and rapid innovation by our adversaries. We
recognize that we cannot overcome these challenges with outdated weapons,
equipment, and policies. Consequently, we have embarked on a number of
modernization and acquisition reforms designed to enable the development and delivery
of new warfighting capabilities more rapidly and cost-effectively than in the past. We
started by identifying the six modernization priorities and establishing U.S. Army Futures
Command. To help enable these reforms, we are now changing our approach to how
we manage intellectual property.
2. Intellectual property plays a critical role in our ability to modernize weapons systems
and maintain technological overmatch. We must be careful to ensure that the policies
and practices governing intellectual property provide us with the necessary access to
effectively support our weapons systems, but do not constrain delivery of solutions to
the warfighter and do not dissuade commercial innovators from partnering with us. This
partnership with the industrial base is critical to developing the capabilities we need to
be successful during future conflicts. Appropriate safeguards and protections for
industry investment have been and will remain a foundation of our approach.
3. Additionally, our approach must balance the goals of fostering private innovation
with long-term sustainment considerations. Through early planning for sustainment and
appropriate investment in intellectual property, we afford ourselves options over the life
cycle of our systems. These options can improve readiness, reduce sustainment costs,
and increase availability.
4. To achieve these goals, we must challenge our established practices. Our new
approach will ensure flexibility by requiring that we identify early in the process the
intellectual property needed in all phases of a Defense business system’s or weapon
system’s life cycle. It will require transparency in articulating these requirements and
our objectives with industry. We will seek tailored access to intellectual property
appropriate to the circumstances. We must pursue creative, customized licenses and
seek only the necessary—not all—intellectual property to meet our needs. Finally, we
must aim to negotiate prices for deliverables and associated license rights early in the
process when competition exists. Through these practices, the Army will become a
more sophisticated customer and user of intellectual property.
S E C R E T A R Y O F T H E A R M Y
W A S H I N G T O N
SUBJECT: Army Directive 2018-26 (Enabling Modernization Through the Management
of Intellectual Property)
2
5. To this end, I direct Army organizations to implement the enclosed policy for
managing intellectual property. This policy will be incorporated into Army Regulation
(AR) 70-1 (Army Acquisition Policy), AR 70-57 (Army Technology Transfer), and AR
700-127 (Integrated Product Support) within 2 years from the date of this directive. I
further direct the Assistant Secretary of the Army (Acquisition, Logistics and
Technology) to issue detailed implementation guidance no later than January 2019. As
intellectual property law and regulation continue to evolve, we will quickly adapt the
policy accordingly.
Encls Mark T. Esper
DISTRIBUTION:
Principal Officials of Headquarters, Department of the Army
Commander
U.S. Army Forces Command
U.S. Army Training and Doctrine Command
U.S. Army Materiel Command
U.S. Army Futures Command
U.S. Army Pacific
U.S. Army Europe
U.S. Army Central
U.S. Army North
U.S. Army South
U.S. Army Africa/Southern European Task Force
U.S. Army Special Operations Command
Military Surface Deployment and Distribution Command
U.S. Army Space and Missile Defense Command/Army Strategic Command
U.S. Army Cyber Command
U.S. Army Medical Command
U.S. Army Intelligence and Security Command
U.S. Army Criminal Investigation Command
U.S. Army Corps of Engineers
U.S. Army Military District of Washington
U.S. Army Test and Evaluation Command
U.S. Army Installation Management Command
U.S. Army Human Resources Command
U.S. Army Financial Management Command
U.S. Army Marketing and Engagement Brigade
(CONT)
SUBJECT: Army Directive 2018-26 (Enabling Modernization Through the Management
of Intellectual Property)
3
DISTRIBUTION: (CONT)
Superintendent, United States Military Academy
Director, U.S. Army Acquisition Support Center
Superintendent, Arlington National Cemetery
Commandant, U.S. Army War College
Director, U.S. Army Civilian Human Resources Agency
CF:
Director, Army National Guard
Director of Business Transformation
Commander, Eighth Army
Army Directive 2018-26 Enclosure 1
POLICY FOR MANAGING INTELLECTUAL PROPERTY
1. Background. Intellectual property (IP) plays an important role in the Army’s ability to
modernize its weapons systems, maintain technological overmatch, support long-term
sustainment, and manage cybersecurity. A deliberate and balanced IP management
policy is critical to foster private innovation, allow greater access to new technologies,
and maintain readiness at an affordable cost. The policy balances the goals of fostering
private innovation with considerations for long-term sustainment of weapon systems.
The policy requires early planning for long-term IP requirements to ensure flexibility over
the life cycle. It directs tailored IP strategies and encourages the Army to seek only the
necessary IP to meet its needs. It encourages negotiation of prices for license rights
early in the process when competition exists. Lastly, it urges communication with
industry throughout the process. As IP law and regulation continue to evolve, the Army
will quickly adapt the IP management policy accordingly.
2. Purpose. This directive establishes Army policy for the creation, acquisition, use,
maintenance, and protection of data (technical data, computer software documentation,
computer software, copyrights, patents, trademarks, and trade secrets subject to IP
legal protections), and the associated license rights to use, modify, reproduce, release,
perform, display, or disclose such data in support of acquisition and sustainment of
Army materiel and non-materiel (solutions or systems).
3. References. Applicable references are at enclosure 2.
4. Glossary. A glossary of related terms is at enclosure 3.
5. Applicability. This policy applies to all research and development, requiring,
acquisition, sustainment, and contracting activities across the Army. It applies to
traditional Federal Acquisition Regulation (FAR)/Defense Federal Acquisition Regulation
Supplement (DFARS)-based contracts. Where feasible, the principles of the policy
should be applied to non-FAR/DFARS instruments (for example, grants, cooperative
agreements, other transaction agreements, cooperative research and development
agreements, agreements under Title 10, U.S. Code section 2539b (10 U.S.C. § 2539b),
and patent licensing agreements), when follow-on production and sustainment
requirements are likely.
6. Research and Development, Requiring, Acquisition, Sustainment, and Contracting
Activities. These activities will:
a. foster an environment of open communication with industry, academia, and
military laboratories early in the acquisition process. This communication will be
characterized by:
Army Directive 2018-26 2
(1) exchange of information early in the process consistent with FAR Part
15.201(c), which may include, but is not limited to, industry days, one-on-one meetings,
and requests for information. Measures will be taken to protect any IP with industry-
asserted restrictions discussed during this phase.
(a) Consistent with the intent of FAR Subpart 15.201(f), all contractor-owned IP
discussed will be considered proprietary information and nonpublic contractor-owned IP
will not be disclosed publicly. This includes IP the Government is privy to as a result of
discussions, documentation, or demonstrations.
(b) Nondisclosure agreements may be used in the planning/pre-solicitation
phase to protect both Government and industry IP.
(2) disclosure of as much detail as practicable about the Army’s intended
product support strategy. This should include information about the Army’s intended
sustainment needs and the broad categories of data required for reset, repair, and other
maintenance of the system.
(3) disclosure of appropriate information about the Army’s IP Strategy to
encourage industry or academia to propose innovative approaches to licenses that will
enable the Army to achieve desired outcomes. As applicable, discuss data and/or
rights the Army might need for a specific purpose, for a limited time, or under a specific
set of conditions.
(4) discussion regarding use of a modular open system approach in the system
design and development, and associated effects on data and license rights.
(5) disclosure of as much detail as practicable about the Army’s cybersecurity
strategy and discussion of software compliance with cybersecurity standards. This may
include reviewing any third party software license agreements and terms, allowing third
party certification, or putting the source code in escrow.
b. conduct early planning for the data and license rights needed to acquire, sustain,
and dispose of Army materiel and non-materiel (solutions or systems). At a minimum,
planning will address considerations at paragraph 7b of this policy.
c. identify the Government’s minimum needs for the technical data, computer
software documentation, computer software, and license rights. Consider including
availability and delivery of identified data and rights as a source selection evaluation
factor.
d. negotiate appropriate license rights (through the applicable contracting or
agreements officer) early in the process to obtain the technical data, computer software
documentation, or computer software required to support the program and secure
competitive prices. When negotiation is not appropriate, include in the IP Strategy a
Army Directive 2018-26 3
written justification supporting that position. The Milestone Decision Authority will
determine if the justification is sufficient. Consider the use of priced contract options.
Use of priced options should occur while competitive leverage exists to obtain an
economical price. Do not seek rights to more extensive data than is necessary.
e. ensure that contractors or subcontractors are fairly compensated for technical
data, computer software documentation, computer software, and license rights for
Government use of contractor-owned IP.
f. ensure the Army is fairly compensated for contractor use of Army-owned IP.
(1) In accordance with Army Regulation (AR) 70-57 (Army Technology Transfer),
Army labs and centers can enter into exclusive, nonexclusive, and partially exclusive
license agreements with industry partners to generate revenue for Army-owned IP.
(2) Army organizations, including labs, depots, arsenals, ammunition plants, and
life-cycle software engineering centers, will develop an IP management approach for
use of Army-owned IP generated by their organizations (for example, inventions,
technical data packages, and software) so that the Army may receive royalties or
discounts may be applied to systems bought by Government. The value of Government
IP should be factored into contract negotiations as a form of consideration exchanged
between parties, as appropriate.
7. Program Managers of Acquisition Category I through IV Programs. These
managers will:
a. assess the short- and long-term needs for data and license rights consistent with
the spirit of 10 U.S.C. § 2320(e) and Department of Defense Instructions 5000.02
(Operation of the Defense Acquisition System) and 5000.75 (Business Systems
Requirements and Acquisitions). Document the assessment in the program’s IP
Strategy, which should be developed and updated before the issuance of a contract
solicitation.
(1) The IP Strategy is part of the program’s Acquisition Strategy. When using a
Simplified Acquisition Management Plan in place of an Acquisition Strategy, the
Simplified Acquisition Management Plan should include the IP Strategy.
(2) When an IP Strategy is not applicable or appropriate, include in the
Acquisition Strategy or Simplified Acquisition Management Plan a written justification
supporting that position. The Milestone Decision Authority will determine if the
justification is sufficient or if an IP Strategy will be required.
b. customize the IP Strategy to meet the specific needs of the program. Articulate
the custom set of data and rights needed to support the program, instead of assuming
the need for broad data and rights. Consider how the Army’s rights or IP Strategy
Army Directive 2018-26 4
should change over time and over the program’s life cycle. The IP Strategy must
consider the following:
(1) Program-Specific and Product Sustainment Considerations
(a) The unique characteristics of the system and components.
(b) The product support strategy for the weapon system. Explain how the IP
Strategy will support a change in the product support strategy, if needed. Consider the
effect of future manufacturing capabilities on the program or product support strategy.
(c) The organic industrial base strategy of the Army.
(d) The commercial market.
(e) How a modular open system approach is to be used for the program, if
applicable. Define and differentiate the major systems platforms, major systems
components, major systems interfaces, and general interfaces.
(2) Data Deliverable Considerations. The IP Strategy must consider the
particular data that is required, who paid for the development of which data, the purpose
it will be used for, the level of detail necessary, whom the Government needs to share
the data with, and the duration of the need for the data. When appropriate, the IP
Strategy should capture how the Army can leverage data with new design methods and
rapid manufacturing to enhance systems over time or tailor them to specific
environments.
c. negotiate appropriate license rights (through the applicable contracting officer or
agreements officer) to obtain the technical data, computer software documentation, or
computer software required to support the program. When negotiation is not
appropriate, include in the IP Strategy a written justification supporting that position.
The Milestone Decision Authority will determine if the justification is sufficient. Do not
seek rights to more extensive data than is necessary.
(1) Consistent with the spirit of 10 U.S.C. § 2320, the following framework will
apply when negotiating technical data rights for an item or process:
(a) Developed by a contractor exclusively with Federal funds (other than in the
case of Small Business Innovation Research): The Government will have unlimited
rights to use the technical data, release or disclose the technical data to persons
outside the Government, or permit such persons to use the technical data.
(b) Developed by a contractor exclusively at private expense: The contractor
may restrict the right of the Government to release or disclose technical data to persons
outside the Government or permit such persons to use the technical data.
Army Directive 2018-26 5
(i) This does not apply to technical data that constitutes a correction or change
to data the Government provided; relates to form, fit or function; is necessary for
operation, maintenance, installation, or training (other than detailed manufacturing or
process data); is otherwise publicly available; or has been released by the contractor
without restriction on further release or disclosure.
(ii) As an exception, the Government may release or disclose technical data to,
or permit use by, persons outside the Government, if it is necessary for emergency
repair and overhaul; pertains to an interface necessary for the segregation or the
reintegration of an item or process with other items or processes; or is released or
disclosed to, or used by, a foreign government that is in the best interest of the
U.S. Government and is required for evaluation or information purposes. Such release,
disclosure, or use must be made subject to a prohibition that the data may not be further
released, disclosed, or used. The contractor asserting the restriction should be notified
of such release, disclosure, or use.
(c) Developed in part with Federal funds and in part at private expense: The
rights will be negotiated as early as possible (preferably during contract negotiations),
except in any case where negotiations would not be practicable. The establishment of
negotiated rights will be based on small business innovation, interest in increasing
competition and lowering costs by developing alternative sources of supply, interest in
encouraging contractors to develop at private expense for use by the Government, and
other factors the Secretary of the Army identified.
(2) Consistent with the spirit of 10 U.S.C. § 2320, the following framework will
apply when negotiating technical data rights for a general interface:
(a) Developed by a contractor exclusively with Federal funds (other than in the
case of Small Business Innovation Research): The Government will have unlimited
rights to use the technical data, release or disclose the technical data to persons
outside the Government, or permit such persons to use the technical data.
(b) Developed by a contractor exclusively at private expense: The contractor
may restrict the right of the Government to release or disclose technical data to persons
outside the Government or permit such persons to use the technical data.
(c) Developed in part with Federal funds and in part at private expense: The
Government will have Government purpose rights (GPR), unless it is determined that
negotiation of different rights would be in the best interest of the Government.
(3) Consistent with the spirit of 10 U.S.C. § 2320, the following framework will
apply when negotiating technical data rights for a major system interface:
(a) Developed by a contractor exclusively with Federal funds (other than in the
case of Small Business Innovation Research): The Government will have unlimited
Army Directive 2018-26 6
rights to use technical data, release or disclose the technical data to persons outside
the Government, or permit such persons to use the technical data.
(b) Developed by a contractor either exclusively at private expense or in part
with Federal funds, and is used in a modular open system approach: The Government
will have GPR to use technical data unless it is determined that negotiation of different
rights would be in the best interest of the Government. For a major system interface
developed exclusively at private expense for which the Government asserts GPR, the
Government will negotiate reasonable compensation with the contractor.
(4) Consistent with the spirit of DFARS 227.7203-5 and DFARS 252.227-7014,
when negotiating data rights for noncommercial computer software and associated
computer software documentation, the Government will have unlimited rights in
software developed exclusively with Federal funds, restricted rights in software
developed exclusively at private expense, and GPR in software developed in part with
Federal funds and in part at private expense.
(a) Consistent with the spirit of 10 U.S.C. § 2222 and 10 U.S.C. § 2322a, any
negotiations should consider acquisition of all software and materials necessary to
reproduce, build, or recompile software from original source code and required libraries;
conduct required software testing; and deploy working software system binary files on
relevant system hardware.
(b) Any noncommercial computer software or related materials required to be
delivered will include software delivered in a usable, digital format; will not rely on
external or additional software code or data (unless such software code or data is
included in the items to be delivered); and will include sufficient documentation to
support maintenance and understanding of interfaces and software revision history.
(5) When acquiring commercial computer software and commercial computer
software documentation, the Government will acquire rights customarily provided to the
public; review the commercial license to ensure it meets the Army’s desired acquisition
and sustainment outcomes; and seek software source code only when the source code
delivery is consistent with the license, the Army-funded development of the source
code, or it is required for cybersecurity analysis.
(6) Emphasize use of specially negotiated licenses. This includes negotiating
and contracting for a specially negotiated license for data to support the product support
strategy.
(7) Consistent with the spirit of 10 U.S.C. § 2320, the Army may use deferred
ordering to acquire data and data rights that were not known or identified for delivery
under the current contract. Deferred ordering may be used only under specific
circumstances and only up to 6 years after acceptance of the last item under a contract
or the date of contract termination, whichever is later. The Army must compensate the
Army Directive 2018-26 7
contractor only for reasonable costs incurred in having the data converted and
delivered.
(8) Consistent with the spirit of DFARS 252.227-7026, the Army may use
deferred delivery. Deferred delivery may be used to order data on the current contract
for delivery of the data for up to 2 years after acceptance of all items to be delivered
under the contract or termination of the contract, whichever is later.
d. negotiate (through the applicable contracting or agreements officer), wherever
appropriate, early in the acquisition or procurement process for competitive prices.
(1) Consistent with the spirit of 10 U.S.C. § 2439, when appropriate, negotiate
the price for IP and data before selecting a contractor for engineering and
manufacturing development, production, or sustainment for Acquisition Category I and II
programs.
(2) For industry IP the Government seeks to use, fairly compensate the
contractor or subcontractor for technical data, computer software documentation,
computer software, and the appropriate license rights. Consider the use of priced
options for data and license rights early in the process while competitive leverage exists
to obtain an economical price.
(3) When the Army seeks greater data or license rights than what is outlined in
paragraph 7c of this policy, appropriately compensate the contractor or subcontractor.
(4) For Army-owned IP industry seeks to use, pursue fair compensation in
accordance with paragraph 6f.
8. Contractor Rights. Consistent with 10 U.S.C. § 2320, a contractor or subcontractor
may not be required to sell or relinquish to the Government any additional rights in
technical data the Government is not already entitled to as a condition of being
responsive to a solicitation or as a condition for award of a contract.
9. Legal Counsel. All interested Government parties should consult local legal offices
for detailed advice on IP, data, and rights.
Army Directive 2018-26 Enclosure 2
REFERENCES
a. Title 10 United States Code, section 2222 (10 U.S.C. § 2222) (Defense business
systems: business process reengineering; enterprise architecture; management).
b. Title 10 U.S.C. § 2320 (Rights in technical data).
c. Title 10 U.S.C. § 2322a (Requirement for consideration of certain matters during
acquisition of non-commercial computer software).
d. Title 10 U.S.C. § 2337 (Life cycle management and product support).
e. Title 10 U.S.C. § 2439 (Negotiation of price for technical data before development or
production of major weapon systems).
f. Title 10 U.S.C. § 2446a (Requirement for modular open system approach in major
defense acquisition programs; definitions).
g. Title 10 U.S.C. § 2446b (Requirement to address modular open system approach in
program capabilities development and acquisition weapon system design).
h. Title 10 U.S.C. § 2539b (Availability of samples, drawings, information, equipment,
materials, and certain services).
i. Department of Defense Instruction (DoDI) 5000.02 (Operation of the Defense
Acquisition System); January 7, 2015; Incorporating Change 3, August 10, 2017.
j. DoDI 5000.75 (Business Systems Requirements and Acquisitions), February 2,
2017, Change 1 Effective August 31, 2018.
k. DoDI 5535.08 (DoD Technology Transfer (T2) Program); May 14, 1999;
Incorporating Change 1, September 1, 2018.
l. Federal Acquisition Regulation (FAR) Part 15.201 (Exchanges With Industry Before
Receipt of Proposals).
m. FAR Part 15.201(f) (Exchanges with Industry before Receipt of Proposals).
n. Defense Federal Acquisition Regulation Supplement (DFARS) Contract Clause
252.227-7026 (Deferred Delivery of Technical Data or Computer Software).
o. DFARS Contract Clause 252.227-7027 (Deferred Ordering of Technical Data or
Computer Software).
2 Enclosure 2
p. Army Regulation (AR) 70-1 (Army Acquisition Policy), 10 August 2018.
q. AR 70-57 (Army Technology Transfer), 12 June 2018.
r. AR 700-127 (Integrated Product Support), 22 October 2018.
Army Directive 2018-26 Enclosure 3
GLOSSARY
Computer Software. Computer programs, source code, source code listings, object
code listings, design details, algorithms, processes, flow charts, formulae, and related
material that enable software to be reproduced, recreated, or recompiled. Computer
software does not include computer databases or computer software documentation.
(DFARS) Clause 252.227-7014)
Contracting Activity. For the purposes of this policy, this term covers contract
specialists, contracting officers, and agreements officers.
Cooperative Research and Development Agreement. These agreements include
agreements between one or more Federal laboratories and one or more non-Federal
parties under which the laboratory provides personnel, services, facilities, equipment, or
other resources (but not funds), with or without reimbursement, and the non-Federal
parties provide funds, personnel, services, facilities, equipment, or other resources
toward the conduct of specified research or development efforts that are consistent with
the missions of the Army research and development activity. The term does not include
procurement contracts, grants, or cooperative agreements. (15 U.S.C. § 3710a(d)(1))
Data. Recorded information, regardless of form or the media on which it may be
recorded. The term includes technical data and computer software. It does not include
information incidental to contract administration, such as financial, administrative, cost or
pricing, or management information. (FAR Clause 52.227-14)
Detailed Manufacturing or Process Data. Technical data that describes the steps,
sequences, and conditions of manufacturing, processing, or assembly the manufacturer
used to produce an item or component or to perform a process. (DFARS Clause
252.227-7013)
Form, Fit, and Function Data. Technical data that describes the required overall
physical, functional, and performance characteristics (along with the qualification
requirements, if applicable) of an item, component, or process to the extent necessary to
permit identification of physically and functionally interchangeable items. (DFARS
Clause 252.227-7013)
Government Purpose Rights. The rights to:
use, modify, reproduce, release, perform, display, or disclose technical data within
the Government for a 5-year period, or such other period as may be negotiated, in
technical data, without restriction;
upon expiration of the 5-year or other negotiated period, the Government will have
unlimited rights in the technical data;
Army Directive 2018-26 2
release or disclose technical data outside the Government, subject to the
nondisclosure agreement at DFARS 227-7103-7 and/or the inclusion of DFARS
252.227-7025 (Limitations on the Use or Disclosure of Government-Furnished
Information Marked With Restrictive Legends), and authorize persons to whom release
or disclosure has been made to use, modify, reproduce, release, perform, display, or
disclose that data for U.S. Government purposes.
The contractor has the exclusive right to use or license others to use this technical data
for commercial purposes. (DFARS 252.227-7013(a)(13) and 252.227-7013(b)(2))
Grant. A legal instrument which, consistent with 31 U.S.C. § 6304, is used to enter into
a relationship:
(a) The principal purpose of which is to transfer a thing of value to the recipient to
carry out a public purpose of support or stimulation authorized by a law of the United
States, rather than to acquire property or services for the Department of Defense’s direct
benefit or use.
(b) In which substantial involvement is not expected between the Department of
Defense and the recipient when carrying out the activity contemplated by the grant.
(32 CFR 37.1295)
Intellectual Property. A product of the human mind which is protected by law. It
includes, but is not limited to, patents, inventions, designs, copyrights, works of
authorship, trademarks, service marks, technical data, trade secrets, computer software,
unsolicited inventive proposals, and technical know-how. The intangible rights in such
property are described as intellectual property rights. (AR 27-60 (Intellectual Property))
License Rights. The licensee is authorized to use the intellectual property.
Limited Rights. The rights to use, modify, reproduce, release, perform, display, or
disclose technical data, in whole or in part, within the Government. The Government
may not, without the written permission of the party asserting limited rights, release or
disclose the technical data outside the Government, use the technical data for
manufacture, or authorize the technical data to be used by another party, except that the
Government may reproduce, release, or disclose such data or authorize the use or
reproduction of the data by persons outside the Government if—
a. The reproduction, release, disclosure, or use is—
(1) necessary for emergency repair and overhaul; or
(2) a release or disclosure to—
Army Directive 2018-26 3
(a) a covered Government support contractor in the performance of its covered
Government support contract for use, modification, reproduction, performance, display,
or release or disclosure to a person authorized to receive limited rights technical data; or
(b) a foreign government, of technical data other than detailed manufacturing or
process data, when use of such data by the foreign government is in the interest of the
Government and is required for evaluational or information purposes;
b. the recipient of the technical data is subject to a prohibition on the further
reproduction, release, disclosure, or use of the technical data; and
c. the contractor or subcontractor asserting the restriction is notified of such
reproduction, release, disclosure, or use. (DFARS 252.227-7013)
Major System Component. A high-level subsystem or assembly, including hardware,
software, or an integrated assembly of both, that can be mounted or installed on a major
system platform through well-defined major system interfaces. It includes a subsystem
or assembly that is likely to have additional capability requirements, is likely to change
because of evolving technology or threat, is needed for interoperability, facilitates
incremental deployment of capabilities, or is expected to be replaced by another major
system component. (10 U.S.C. § 2446a)
Major System Interface. A shared boundary between a major system platform and a
major system component, between major system components, or between major system
platforms, defined by various physical, logical, and functional characteristics, such as
electrical, mechanical, fluidic, optical, radio frequency, data, networking, or software
elements. It is characterized clearly in terms of form, function, and the content that flows
across the interface to enable technological innovation, incremental improvements,
integration, and interoperability. (10 U.S.C. § 2446a)
Major System Platform. The highest level structure of a major weapon system that is
not physically mounted or installed onto a higher level structure and on which a major
system component can be physically mounted or installed. (10 U.S.C. § 2446a)
Modular Open System Approach. With respect to a major defense acquisition
program, the modular open system approach is an integrated business and technical
strategy that employs a modular design that:
a. uses major system interfaces between a major system platform and a major
system component, between major system components, or between major system
platforms;
b. is subjected to verification to ensure major system interfaces comply with, if
available and suitable, widely supported and consensus-based standards;
Army Directive 2018-26 4
c. uses a system architecture that allows severable major system components at the
appropriate level to be incrementally added, removed, or replaced throughout the life
cycle of a major system platform to afford opportunities for enhanced competition and
innovation while yielding:
(1) significant cost savings or avoidance;
(2) schedule reduction; opportunities for technical upgrades;
(3) increased interoperability, including system or systems interoperability and
mission integration; or
(4) other benefits during the sustainment phase of a major weapon system; and
d. complies with the technical data rights set forth in 10 U.S.C. § 2320. (10 U.S.C.
§ 2446a)
Requiring Activity. For the purposes of this policy, the term “requiring activity” covers
Army individuals or organizations (for example, Science and Technology Reinvention
Laboratories, program manager and program management offices, and sustainment
commands) that generate and submit a requirement to the contracting activity for a
FAR/DFARS or non-FAR/DFARS contract with another party.
Restricted Rights. These rights apply only to noncommercial computer software and
mean the Government’s rights to:
a. use a computer program with one computer at one time. The program may not
be accessed by more than one terminal or central processing unit or time shared unless
the contract permits otherwise;
b. transfer a computer program to another Government agency without the further
permission of the contractor if the transferor destroys all copies of the program and
related computer software documentation in its possession and notifies the licensor of
the transfer. Transferred programs remain subject to the provisions of this clause;
c. make the minimum number of copies of the computer software required for
safekeeping (archive), backup, or modification purposes;
d. modify computer software provided that the Government may:
(1) use the modified software only as provided in paragraphs a and c of this
definition; and
(2) not release or disclose the modified software except as provided in
paragraphs b, e, and f of this definition;
Army Directive 2018-26 5
e. permit contractors or subcontractors performing service contracts in support of
this or a related contract to use computer software to diagnose and correct deficiencies
in a computer program; to modify computer software to enable a computer program to
be combined with, adapted to, or merged with other computer programs; or when
necessary to respond to urgent tactical situations, provided that:
(1) the Government notifies the party which has granted restricted rights that a
release or disclosure to particular contractors or subcontractors was made;
(2) such contractors or subcontractors are subject to the use and nondisclosure
agreement at DFARS 227.7103-7 or are Government contractors receiving access to
the software for performance of a Government contract that contains DFARS 252.227-
7025.
(3) The Government will not permit the recipient to decompile, disassemble, or
reverse engineer the software, or to use software decompiled, disassembled, or reverse
engineered by the Government pursuant to paragraph d of this definition for any other
purpose; and
(4) such use is subject to the limitations of paragraphs a–c of this definition;
f. permit contractors or subcontractors performing emergency repairs or overhaul of
items or components of items procured under this or a related contract to use the
computer software when necessary to perform the repairs or overhaul, or to modify the
computer software to reflect the repairs or overhaul made, provided that:
(1) the intended recipient is subject to the use and nondisclosure agreement at
DFARS 227.7013-7 or is a Government contractor receiving access to the software for
performance of a Government contract that contains DFARS 252.227-7025;
(2) the Government will not permit the recipient to decompile, disassemble, or
reverse engineer the software, or to use software decompiled, disassembled, or reverse
engineered by the Government pursuant to paragraph d of this definition for any other
purpose; and
(3) such use is subject to the limitations of paragraphs a–c of this definition; and
g. permit covered Government support contractors in the performance of covered
Government support contracts that contain DFARS 252.227-7025 to use, modify,
reproduce, perform, display, release, or disclose the computer software to a person
authorized to receive restricted rights computer software provided that:
(1) the Government will not permit the covered Government support contractor to
decompile, disassemble, or reverse engineer the software, or to use software
Army Directive 2018-26 6
decompiled, disassembled, or reverse engineered by the Government pursuant to
paragraph d of this definition for any other purposes; and
(2) such use is subject to the limitations in paragraphs a–d of this definition.
(DFARS 252.227-7014)
Small Business Innovation Research (SBIR) Data Rights. The Government’s rights
during the SBIR data protection period to use, modify, reproduce, release, perform,
display, or disclose technical data or computer software generated under an SBIR award
as follows:
a. Limited rights in such SBIR technical data; and
b. Restricted rights in such SBIR computer software. (DFARS 252.227-7018)
Technical Data. Recorded information, regardless of the form or method of the
recording, of a scientific or technical nature (including computer software
documentation). The term does not include computer software or data incidental to
contract administration, such as financial and management information. (DFARS
252.227-7013)
Technology Transfer. The intentional communication or sharing of knowledge,
expertise, facilities, equipment, and other resources for application to military and
nonmilitary systems. Technology transfer includes spin-off, spin-on, and dual-use
activities. (DoDI 5535.08)
Unlimited Rights
a. For noncommercial technical data, “unlimited rights” are the rights to use, modify,
reproduce, perform, display, release, or disclose technical data, in whole or in part, in
any manner, and for any purpose whatsoever, and to have or authorize others to do so.
(DFARS 252.227-7013)
b. For noncommercial computer software and computer software documentation,
“unlimited rights” are the rights to use, modify, reproduce, release, perform, display, or
disclose computer software or computer software documentation, in whole or in part, in
any manner and for any purpose whatsoever, and to have or authorize others to do so.
(DFARS 252.227-7014)