FAR 27.409—Solicitation provisions and contract clauses.
Plain-English Summary
FAR 27.409 tells contracting officers which data rights provisions and clauses to include in solicitations and contracts, and when special alternates or additional clauses are required. It covers the general rule that a contract should normally contain only one data rights clause, the standard use of 52.227-14, Rights in Data-General, and the exceptions for special works, existing data, commercial computer software, small business innovation research contracts, overseas performance, architect-engineer and construction work, Government-owned facilities used for research or production, and cosponsored research and development. It also addresses when to use Alternate I through Alternate V of 52.227-14, when to add 52.227-15, Representation of Limited Rights Data and Restricted Computer Software, and when to insert 52.227-16, Additional Data Requirements, or 52.227-17, Rights in Data-Special Works. In practice, this section is about matching the clause package to the type of work and the Government’s actual data needs so the contract clearly states what data will be delivered, what rights the Government receives, and what limits apply to disclosure, use, reproduction, copyright, or inspection. It is important because using the wrong clause, or failing to tailor the clause, can create disputes over data ownership, disclosure rights, software restrictions, and the contractor’s ability to assert copyright or protect proprietary information.
Key Rules
Use one data rights clause
A contract should generally contain only one data rights clause. If more than one clause is needed, the contract must clearly identify which portion of performance each clause applies to so the rights regime is not ambiguous.
Default clause is 52.227-14
If data will be produced, furnished, or acquired under the contract, the default rule is to include 52.227-14, Rights in Data-General, unless a listed exception applies. This is the baseline clause for most data-related procurements.
Know the exceptions to 52.227-14
Do not use the general clause when the contract falls into one of the listed categories, such as special works, existing data, commercial computer software, SBIR, overseas performance, A-E or construction, Government-owned facilities, or certain cosponsored R&D arrangements. Each exception points to a different clause or tailored treatment.
Use the correct alternate
Alternates I through V are used only when the specific regulatory conditions are met. The alternate selected changes the treatment of limited rights data, restricted computer software, copyright permission, or Government inspection rights, so the contracting officer must make the required determination before use.
Add the representation provision when needed
If the contracting officer wants the offeror to identify whether limited rights data or restricted computer software will likely be used to meet delivery requirements, the solicitation should include 52.227-15. The response helps the Government decide whether Alternate II or III is needed.
Use Additional Data Requirements when data needs are not fully known
52.227-16 is required in solicitations and contracts for experimental, developmental, research, or demonstration work unless all data requirements are already known and stated in the contract. It may also be used in other contracts when appropriate.
Use Special Works clause for internal-use or restricted-distribution data
52.227-17 applies to contracts mainly for producing or compiling data for the Government’s internal use, or where the Government needs to limit distribution/use or obtain indemnity. The contract may also set conditions, time limits, and other restrictions on contractor use of the data.
Responsibilities
Contracting Officer
Select the correct data rights clause or alternate based on the type of work, the data expected, and any regulatory determinations. The contracting officer must tailor the contract when limited rights data, restricted computer software, copyright permission, inspection rights, or special distribution limits are involved, and must complete required clause text such as the purposes for outside disclosure of limited rights data.
Agency
Make the required policy determinations where the regulation assigns them to the agency, such as adopting the alternate definition of limited rights data or authorizing copyright permission for data first produced under certain research contracts. The agency must also ensure its procurement policy supports consistent clause selection.
Offeror
When the solicitation includes 52.227-15, state whether limited rights data or restricted computer software are likely to be used to satisfy the delivery requirements. This response helps the Government decide whether special alternates are necessary.
Contractor
Comply with the data rights clause(s) included in the contract, identify and handle limited rights data or restricted computer software as required, and follow any contract-specific limits on use, reproduction, disclosure, copyright assertion, or delivery of data.
Government Program/Technical Personnel
Help identify the actual data needs, the nature of the work, and whether special categories of data or software are likely to be involved. Their input supports accurate clause selection and avoids under- or over-scoping the Government’s rights.
Practical Implications
Clause selection is not routine boilerplate; it must match the contract type and the data expected. A mismatch can leave the Government with too few rights or impose unnecessary restrictions on the contractor.
The biggest drafting risk is failing to distinguish which data rights regime applies to which part of performance when more than one clause is used. Clear scope language prevents disputes later over ownership, disclosure, and reuse.
For research and development work, the contracting officer should think ahead about whether all data requirements are known at award. If not, 52.227-16 may be needed to avoid gaps in delivery obligations.
Contractors should pay close attention to alternates and special clauses because they can materially change rights in software, limited rights data, and copyright. These provisions often affect pricing, proposal strategy, and how deliverables are prepared.
When the Government wants to limit distribution or inspect data at the contractor’s facility, those needs must be stated expressly in the contract. If they are not, the Government may not be able to enforce the intended restriction or inspection right as written.
Official Regulatory Text
(a) Generally, a contract should contain only one data rights clause. However, where more than one is needed, the contract should distinguish the portion of contract performance to which each pertains. (b) (1) Insert the clause at 52.227-14 , Rights in Data-General, in solicitations and contracts if it is contemplated that data will be produced, furnished, or acquired under the contract, unless the contract is- (i) For the production of special works of the type set forth in 27.405-1 , although in these cases insert the clause at 52.227-14 , Rights in Data-General, and make it applicable to data other than special works, as appropriate (see paragraph (e) of this section); (ii) For the acquisition of existing data, commercial computer software, or other existing data, as described in 27.405-2 through 27.405-4 (see paragraphs (f) and (g) of this section); (iii) A small business innovation research contract (see paragraph (h) of this section); (iv) To be performed outside the United States (see paragraph (i)(1) of this section); (v) For architect-engineer services or construction work (see paragraph (i)(2) of this section); (vi) For the management, operation, design, or construction of a Government-owned facility to perform research, development, or production work (see paragraph (i)(3) of this section); or (vii) A contract involving cosponsored research and development in which a clause providing for less than unlimited right has been authorized (see 27.408 ). (2) If an agency determines, in accordance with 27.404-2 (b), to adopt the alternate definition of "Limited Rights Data" in paragraph (a) of the clause, use the clause with its Alternate I. (3) If a contracting officer determines, in accordance with 27.404-2 (c) that it is necessary to obtain limited rights data, use the clause with its Alternate II. The contracting officer shall complete paragraph (g)(3) to include the purposes, if any, for which limited rights data are to be disclosed outside the Government. (4) In accordance with 27.404-2 (d), if a contracting officer determines it is necessary to obtain restricted computer software, use the clause with its Alternate III. Any greater or lesser rights regarding the use, reproduction, or disclosure of restricted computer software than those set forth in the Restricted Rights Notice of paragraph (g)(4) of the clause shall be specified in the contract and the notice modified accordingly. (5) Use the clause with its Alternate IV in contracts for basic or applied research (other than those for the management or operation of Government facilities, and contracts and subcontracts in support of programs being conducted at those facilities or where international agreements require otherwise) to be performed solely by universities and colleges. The clause may be used with its Alternate IV in other contracts if in accordance with 27.404-3 (a), an agency determines to grant permission for the contractor to assert claim to copyright subsisting in all data first produced without further request being made by the contractor. When Alternate IV is used, the contract may exclude items or categories of data from the permission granted, either by express provisions in the contract or by the addition of a paragraph (d)(4) to the clause (see 27.404-4 ). (6) In accordance with 27.404-6 , if the Government needs the right to inspect certain data at a contractor’s facility, use the clause with its Alternate V. (c) In accordance with 27.404-2 (c)(2) and 27.404-2 (d)(5), if the contracting officer desires to have an offeror state in response to a solicitation whether limited rights data or restricted computer software are likely to be used in meeting the data delivery requirements set forth in the solicitation, insert the provision at 52.227-15 , Representation of Limited Rights Data and Restricted Computer Software, in any solicitation containing the clause at 52.227-14 , Rights in Data-General. The contractor’s response may provide an aid in determining whether the clause should be used with Alternate II and/or Alternate III. (d) Insert the clause at 52.227-16 , Additional Data Requirements, in solicitations and contracts involving experimental, developmental, research, or demonstration work (other than basic or applied research to be performed solely by a university or college where the contract amount will be $500,000 or less) unless all the requirements for data are believed to be known at the time of contracting and specified in the contract (see 27.406-2 ). This clause may also be used in other contracts when considered appropriate. For example, if the contract is for basic or applied research to be performed by a university or college, and the contracting officer believes the contract effort will in the future exceed $500,000, even though the initial award does not, the contracting officer may include the clause in the initial award. (e) In accordance with 27.405-1 , insert the clause at 52.227-17 , Rights in Data-Special Works, in solicitations and contracts primarily for the production or compilation of data (other than limited rights data or restricted computer software) for the Government’s internal use, or when there is a specific need to limit distribution and use of the data or to obtain indemnity for liabilities that may arise out of the content, performance, or disclosure of the data. Examples of such contracts are set forth in 27.405-1 . (1) Insert the clause if existing works are to be modified, as by editing, translation, addition of subject matter, etc. (2) The contract may specify the purposes and conditions (including time limitations) under which the data may be used, released, or reproduced by the contractor for other than contract performance. (3) Contracts for the production of audiovisual works, sound recordings, etc. may include limitations in connection with talent releases, music licenses, and the like that are consistent with the purposes for which the data is acquired. (4) The clause may be modified in accordance with paragraphs (c) through (e) of 27.405-1 . (f) Insert the clause at 52.227-18 , Rights in Data-Existing Works, in solicitations and contracts exclusively for the acquisition, without modification, of existing audiovisual and similar works of the type set forth in 27.405-2 . The contract may set forth limitations consistent with the purposes for which the work is being acquired. While no specific clause of this subpart is required to be included in contracts solely for the acquisition, without disclosure prohibitions, of books, publications, and similar items in the exact form in which the items exist prior to the request for purchase ( i.e. , the off-the-shelf purchase of such items), or in other contracts where only existing data available without disclosure prohibitions is to be furnished, if reproduction rights are to be acquired, the contract shall include terms addressing such rights. (See 27.405-4 .) (g) In accordance with 27.405-3 , when contracting (other than from GSA’s Multiple Award Schedule contracts) for the acquisition of commercial computer software, the contracting officer may insert the clause at 52.227-19 , Commercial Computer Software License, in the solicitation and contract. In any event, the contracting officer shall assure that the contract contains terms to obtain sufficient rights for the Government to fulfill the need for which the software is being acquired and is otherwise consistent with 27.405-3 . (h) If the contract is a Small Business Innovation Research (SBIR) contract, insert the clause at 52.227-20 , Rights in Data-SBIR Program in all Phase I, Phase II, and Phase III contracts awarded under the Small Business Innovation Research Program established pursuant to 15 U.S.C. 638 . The SBIR protection period may be extended in accordance with the Small Business Administration’s "Small Business Innovation Research Program Policy Directive" (September24,2002). (i) Agencies may prescribe in their procedures, as appropriate, a clause consistent with the policy of 27.402 in contracts- (1) To be performed outside the United States; (2) For architect-engineer services and construction work ( e.g. , the clause at 52.227-17 , Rights in Data-Special Works); or (3) For management, operation, design, or construction of Government-owned research, development, or production facilities, and in contracts and subcontracts in support of programs being conducted at such facilities. (j) In accordance with 27.406-3 (a), insert the clause at 52.227-21 , Technical Data Declaration, Revision, and Withholding of Payment-Major Systems, in contracts for major systems acquisitions or for support of major systems acquisitions. This requirement includes contracts for detailed design, development, or production of a major system and contracts for any individual part, component, subassembly, assembly, or subsystem integral to the major system, and other property that may be replaced during the service life of the system, including spare parts. When used, this clause requires that the technical data to which it applies be specified in the contract (see 27.406-3 (a)). (k) In accordance with 27.406-3 (b), in the case of civilian agencies other than NASA and the U.S. Coast Guard, insert the clause at 52.227-22 , Major System-Minimum Rights, in contracts for major systems or contracts in support of major systems. (l) In accordance with 27.407 , if a contracting officer desires to acquire unlimited rights in technical data contained in a successful proposal upon which a contract award is based, insert the clause at 52.227-23 , Rights to Proposal Data (Technical). Rights to technical data in a proposal are not acquired by mere incorporation by reference of the proposal in the contract, and if a proposal is incorporated by reference, the contracting officer shall follow 27.404 to assure that the rights are appropriately addressed.