(a) Default government purpose rights for deliverables
Chapter 239 of title 10, United States Code, is amended by inserting after section 3775 the following new section:
(b) Improper markings of critical items
For any critical readiness items of supply (as that term is defined in section 4324(d)(4) of title 10, United States Code) that are noncommercial items, if the Secretary of Defense determines that a contractor—
applied an incorrect restrictive marking;
failed to exclude unlimited- or unrestricted-rights categories;
failed to portion-mark at the required segregable level; or
submitted an incomplete or invalid assertions table;
(c) Report on clawback authorities for improper restrictive markings
Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees a report assessing the feasibility and advisability of establishing a mechanism to recover excess payments made by the Department of Defense in cases where improper restrictive markings, invalid assertions tables, or other unjustified restrictions on technical data, computer software, or computer software documentation contributed to reduced competition or sole-source procurement conditions. The report shall include—
an assessment of the extent to which improper restrictions on technical data or software rights may have resulted in excess costs to the Department;
an evaluation of existing authorities available to recover such excess payments;
an assessment of the legal, contractual, and evidentiary challenges associated with establishing a clawback mechanism;
options for calculating excess payments attributable to improper restrictions on technical data or software rights; and
recommendations regarding whether Congress should authorize a clawback mechanism and, if so, the structure of such authority.
(d) Modifications to rights in technical data
Section 3771(b) of title 10, United States Code, is amended—
in paragraph (3)(C), by inserting , and for which the United States shall have government purpose rights, unless the Government and the contractor negotiate different license rights after component) ; and
in paragraph (4)(A)—
in clause (ii), by striking ; or and inserting a semicolon;
by redesignating clause (iii) as clause (iv); and
by inserting after clause (ii) the following new clause:
(e) Applicability
This section and the amendments made by this section shall apply—
in competitive procurements, to solicitations issued after the date of the enactment of this Act and awards made in connection with such solicitations; and
in non-competitive procurements, to awards made after the date of the enactment of this Act.