Technical Data - What Is It?

The Court of Federal Claims recently issued a decision that clarifies what qualifies as “technical data” covered by procurement statutes and regulations and invites questions regarding how practice may change going forward.

 The Case

Raytheon Co. v. United States, No. 19-883C, June 30, 2022, concerned whether Raytheon vendor supply lists were “technical data” that the Government could demand be marked with “government purpose rights” (“GPR”). Contract modifications required Raytheon to provide the lists of its suppliers to the Army. Raytheon marked the lists with a legend that purported to limit distribution to “DoD Components only due to Proprietary Information.”

A dispute arose regarding whether the vendor lists included “technical data” covered by the DFARS. DFARS 252.227-7013(a)(15) defines “technical data” as “recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation).” It states that the term “does not include computer software or data incidental to contract administration, such as financial and/or management information.” Id. 

The Army instructed Raytheon to remove proprietary markings on the lists and replace them with the markings for technical data subject to GPR per the DFARS. Raytheon argued that the lists were not “technical data” because they contained “management” rather than “technical” data.

The Army asserted that the vendor lists were “technical data” because they contained “a list of technical parts, part numbers, and sources.” Op. at 8. The Army stated that the vendor lists not only “independently provide necessary technical information,” but that they “are also used in conjunction with other technical data (such as technical drawings) to maintain essential Army systems and databases” and are necessary “to perform essential technical functions related to the repair and replacement of parts.” Id.

Raytheon sought a declaration from the Court that its vendor lists were not technical data as defined by the DFARS and thus were not subject to the technical data rights provisions and marking requirements in the DFARS.

The Court noted that the lists, although they varied immaterially over time, included generic descriptors of parts, coupled with numerical identifiers, along with the identity, address, and DUNS number of the supplier or manufacturer that sold the parts to Raytheon. Op. at 11-12. According to the Court, this information was not “technical” in nature and the lists thus did not qualify as “technical data.”

Points Clarified

Raytheon establishes that not every bit of information a contractor might be required to provide to an agency qualifies as “technical data.” To qualify as “technical data” the information must be technical in nature rather than management, administrative, or other information.

Observations

Raytheon illustrates the critical difference between delivery and rights. The Army was able to require (by contract modification) that Raytheon provide the lists, but which rights applied was a distinct issue. It appears the Army did not expressly address rights and instead relied on the default rights scheme for technical data. That approach fell apart because the lists did not qualify as technical data.

Raytheon indicates that contractors may have greater flexibility for the treatment of information that does not qualify as “technical data” because it is not governed by the DFARS provisions that apply to such data. At the same time, statutory and regulatory provisions that address the treatment of technical data and benefit a contractor (such as limitations on the rights can be required) also would not apply to information that is not “technical data,” such as the vendor lists in Raytheon. Thus, while a contractor could negotiate case-specific treatment, the statutory prohibition on requiring a contractor to relinquish rights to certain technical data as a condition of award (10 U.S.C. § 3771(b)(8)) would not apply. Software, which also is not “technical data,” has been the subject of considerable recent debate between DoD and industry.

In short, while giving parties more flexibility regarding information that does not qualify as “technical data,” Raytheon does not address the extent to which the Government may require a contractor to confer rights to such information. Even if a requirement might not violate 10 U.S.C. § 3771, it might be unduly restrictive relative to the Government’s actual needs.