Government should be asking for maximum IP rights to ensure stability and competition in their contracts

Gaining Leverage over Vendor Lock to Improve Acquisition Performance and Cost Efficiencies; The MITRE Corporation; https://www.mitre.org/sites/default/files/publications/gaining-leverage-over-vendor-lock-14-1262.pdf

Examine IP Rights - The Program Office should assess all proprietary aspects of the proposed technical and engineering solution and negotiate optimum data rights. IP ownership can drive costs up because the owner naturally wants to recoup investment costs through sales of its products. Thus, vendors have motivation to declare IP ownership. To overcome this issue, the U. S. Military must fully leverage all license rights for IP to which it is already entitled. The development and production contract negotiating position can consider cost efficiencies in technical data procurement and software reuse as well as the maximum use of open source software. Supporting activities for this approach include: • Conduct an audit of IP and proprietary IP claims. The Program Office should challenge restrictions placed on IP by the vendor in its contract and in any production change proposals. Vendors develop IP both under Federal contracts and at their own expense. The lines can become blurred, especially if individual customers (such as the various military buyers) impose unique requirements. This is especially true with the emergence of Open Systems Software (OSA) and data rights addressed early in the life cycle. The Program Office should communicate with the other Military Services doing business with their prime vendor on similar systems to verify and validate which IP the Government has already acquired under development and/or production contracts and determine the total extent of Federal government IP. The Program Office should consider using software tools, such as the Open Source Software Scanner (OSSS),8 to determine if the software includes open source code that may provide the government with additional IP rights at no additional cost. Software-intensive systems share the common problem that vendors use recycled code to streamline the software production process. Sometimes vendors incorporate open source code in their systems and then claim restricted/limited rights over the resulting IP. In these cases, the Government may employ various software code scanning tools, such as OSSS, to discover any open source code embedded in its systems, and use these results as leverage over a contractor who wrongly asserted limited/restricted rights over IP that it did not actually possess. Such an activity could be a precursor to a broader discussion regarding the source of all software code and associated claims of IP license rights, and could support a decision to audit the current state of a program’s IP license rights. The Program Office should include provisions in the contract that require the vendor to provide a detailed approach on use of open source software and associated cost efficiencies. The Program Office should use this information in analyzing the vendor proposal incorporated into the final contract award to determine inconsistencies or redundancy in IP between the proposed solutions. • Assess what the Government has and may need in the future. The Government typically has more IP rights than it realizes because an issue may not have been fully explored during the contract negotiation process. The Program Office should assess its current IP license rights versus rights it might need to ensure the prospect of future competition for the product or technology. If they obtain full Government Purpose Rights (GPR) for key pieces of IP in the system, it can initiate separate competition among other vendors for those subsystems or components. As noted earlier in this report, a recent change in the law now makes the contractor responsible for defending assertions of limited/restricted data rights for commercial items developed completely at private expense.9 The Program Office should seek advice from legal counsel about implementation and application of this new legislation. The Program Office needs to analyze GPR on past and current product contracts, utilizing Defense Contract Management Agency (DCMA) records for other U.S. military contracts with similar GPR provisions where available.