Sec. 805. Addressing insufficiencies in technical data
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Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall develop and implement a digital system to track, manage, and enable the assessment of covered data related to covered systems, and to verify the compliance of contractors and subcontractors with contract requirements related to technical data for covered systems. The Secretary of Defense shall identify relevant contracts or other agreements for each covered system and conduct a review of the requirements contained in such contracts or other agreements with respect to covered data, including requirements for both data delivered and data otherwise accessible by the Department of Defense on a non-deliverable basis.
The Secretary of Defense shall assess the covered data required under the requirements with respect to covered data reviewed under subsection
(b)and, for each such requirement— describe the physical or electronic storage location of the covered data that is in the possession of the Department of Defense, or the method by which the Department accesses the covered data, as applicable; evaluate whether the covered data delivered to the Department under such requirement complies with— the marking and rights requirements for such covered data under or pursuant to the contract containing such reviewed requirement; and the applicable provisions of chapter 275 of title 10, United States Code; and describe the category of rights in technical data applicable under section 3771 of title 10, United States Code, to the covered data delivered to the Department under such reviewed requirement, including an identification of whether the delivery or access to such covered data under such reviewed requirement is subject to a customized commercial license or a specially negotiated license. The Secretary of Defense shall record in the digital system implemented under subsection
(a)the findings of the review conducted under subsection
(b)and the assessment under paragraph (1). Based on the review of requirements for covered data required by subsection
(b)and the assessment of available covered data required by subsection (c), the Secretary of Defense shall identify any insufficiency in covered data that negatively affects the ability of the Secretary to effectively operate a covered system and maintain such covered system in a cost-effective manner considering factors, including the years remaining in the lifecycle of the covered system, projected inventory numbers of the covered system, or a cost analysis of continuing the current operations or maintenance approach for the covered system. For each covered system acquired by the Department of Defense, the Secretary of Defense shall— distinguish between— covered data, the delivery of or access to which was required by the contract or other agreement under the review in subsection (b); and covered data that was not required by the contract or other agreement but that the Department identified as an insufficiency in subsection (d); for covered data described in subparagraph (A)(i) that is identified as insufficient under subsection (d), seek to address such insufficiency with the relevant contractor, including by receiving access to such covered data on a non-deliverable basis; for covered data described in subparagraph (A)(i) that identified as improperly marked pursuant to subsection (c)(1)(B), seek to address such improper marking with the relevant contractor; for covered data described in subparagraph (A)(ii), initiate a streamlined process to— request the relevant contractor to provide the Government with options for the covered data required to address the insufficiency in such covered data identified under subsection (d), which may include access agreements, priced contract options, negotiated direct licenses with government authorized repair contractors, or direct licenses for systems or components produced by subcontractors that are covered defense equipment for access to the required covered data; allow the contractor to propose terms for using commercially accepted valuation practices, including income-based, cost-based, and market-based pricing; and consider the use of escrow agreements or similar arrangements under a specifically negotiated license for the required covered data with the original contractor or subcontractor of the covered system in the event such contractor or subcontractor decides to exit the business or no longer support maintenance of the covered system. With respect to an insufficiency identified under subsection
(d)in covered data for a commercial product— the Secretary of Defense shall ensure that pricing and terms and conditions offered by the contractor for are commensurate with commercial practices for granting similar access; and if the Secretary seeks access to technical data, software, or other information in a manner that differs from the manner in which such contractor customarily provides to a buyer of such commercial product, the Secretary shall seek to negotiate a customized commercial license for such access. In carrying out this section, the Secretary of Defense shall ensure that all technical data, computer software, contract files, and related records acquired or generated in connection with a covered system are retained and managed by the Department of Defense until, at a minimum, the Department has totally divested from such covered system. Not later than April 1, 2026, and every 90 days thereafter until the Secretary of Defense completes the assessment required under subsection (c), the Secretary of Defense shall provide to the congressional defense committees a briefing on— progress made toward completing the requirements of this section; a summary of findings from such assessment, including report of the position of the Government as to whether such data meet marking and rights requirements; the efforts of the Department of Defense to address any insufficiencies in covered data identified under subsection (d), including a summary of the actions by the Department to fund such efforts; a description of the methods used by the Department in negotiating with any relevant contractor to access covered data identified as an insufficiency in subsection (d); and any lessons learned to improve the actions of the Department in planning for and acquiring covered data related to covered systems acquired by the Department. Nothing in this section shall be construed— as modifying any rights, obligations, or limitations of the Government, contractor, or subcontractor with respect to rights in technical data under subchapter I of chapter 275 of this title; as altering the requirements in section 2464 and 2466 of title 10, United States Code; or as altering or expanding any license rights the Government has acquired in contracts or agreements. In this section: The term covered data means technical data and computer software required— to enable the Department of Defense or government authorized repair contractors performing under a support contract, the primary purpose of which is to furnish repair or maintenance services on site at a depot, installation or operating location of the Government in support of the share of depot-level maintenance and repair workload of the Government in accordance with section 2466 of this title; or to maintain a core logistics capability in accordance with section 2464 of this title provided for use by third parties without restriction for the maintenance of the covered system. The term covered system means— a major defense acquisition program, as defined in section 4201 of title 10, United States Code; or an acquisition program or project that is carried out using the rapid prototyping or rapid fielding acquisition pathway under section 3602 of such title that is estimated by the Secretary of Defense to require an eventual total expenditure described in section 4201(a)(2) of such title; The term maintain or repair excludes the manufacture of new items. The term digital system means a secure, electronic platform required by subsection
(a)that— is connected to authoritative systems for product lifecycle management and contracting data repositories and other systems where contractor data are stored or accessed; and identifies technical data owed under contract terms, verify compliance of received data with marking and rights requirements, detect omissions or errors, and track metadata for decision-making. The term service acquisition executive has the meaning given in section 101 of title 10, United States Code.