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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: February 3, 2003

SUBJECT: National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Scientific and Technical Reports

SOURCE: Federal Register, February 3, 2003, Vol. 68, No. 22, page 5230

AGENCIES: National Aeronautics and Space Administration (NASA)

ACTION: Final Rule

SYNOPSIS: This rule finalizes, with changes, the November 14, 2001, proposed rule to amend the NFS to clarify the review requirements for data produced under Research and Development (R&D) contracts, including data contained in final reports, and the review requirements for final reports prior to inclusion in NASA's Center for AeroSpace Information (CASI) scientific and technical information (STI) database.

EDITOR'S NOTE: For more on the proposed rule, see the November 14, 2001, FEDERAL CONTRACTS DISPATCH "National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Scientific and Technical Reports."

For more on the final rule that the proposed rule was intended to clarify, see the July 21, 2000, FEDERAL CONTRACTS DISPATCH "National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Submission of Final Reports under Research and Development (R&D) Contracts."

EFFECTIVE DATE: February 3, 2003.

FOR FURTHER INFORMATION CONTACT: Celeste Dalton, NASA Headquarters, Office of Procurement, Contract Management Division (Code HK), 202-358-1645, e-mail: cdalton@hq.nasa.gov.

SUPPLEMENTAL INFORMATION: NFS 1852.235-70, Center for Aerospace Information -- Final Scientific and Technical Reports, was required in all R&D contracts. NFS 1852.235-70(e) stated that "the contractor shall not release the final report, outside of NASA, until the DAA [Document Availability Authorization] review has been completed by NASA and availability of the report has been determined." The DAA review completed by NASA was intended to insure that NASA disseminates STI consistent with U.S. laws and regulations, federal information policy, intellectual property rights, technology transfer protection requirements, and budgetary and technological limitations. The DAA review process applied only to the publication and dissemination of NASA STI by NASA or under the direction of NASA.

However, this final report review requirement had been incorrectly interpreted by some university contractors as restricting their right to publish any of the data produced under the contract which may be included in the final report until NASA had completed its DAA review. The intent of paragraph (e) was only to restrict the release of the final report as delivered under the contract until NASA completed its DAA review and the availability of the report has been determined. NFS 1852.235-70 was not intended to restrict the contractor's ability to publish, or otherwise disseminate, data produced during the performance of the contract, including data contained in the final report, as provided under FAR 52.227-14, Rights in Data -- General. However, in certain limited situations, contract requirements might include research activity that would result in data subject to export control, national security restrictions, or other restrictions designated by NASA, or might have required that the contractor receive or be given access to data that includes restrictive marking (for example, proprietary information of others). In these circumstances, NASA required a review of data produced under the contract before the contractor could publish, release, or otherwise disseminate the data.

To clarify NASA's intent, NASA published a proposed rule on November 14, 2001, to make the following changes to the NFS:

Comments on the proposed rule were received from one association, and it objected to the inclusion of "information disclosing an invention in which the government may have rights" as an example of when it would be appropriate to use the proposed NFS 1852.235-75. As a result of the comments, NASA is adopting the proposed rule as final with the following significant changes:

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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