The contracting officer is the lead on clarifying data rights and intellectual property issues. The market analyst and pricing analyst aid in determining best value, which dictates certain decisions with data rights and intellectual property. The Law Department’s Procurement and Intellectual Property Law organization, which is responsible for intellectual property matters, must concur (or at least be notified) in most situations when the contracting officer chooses alternatives to the Postal Service’s standard policies. In addition, the contracting officer needs concurrence from the Intellectual Property Counsel when:
The Postal Service will protect proprietary business information to the extent required by law and good business practice. The purchase/SCM team must understand what data rights and intellectual property are, as well as the Postal Service’s authority, responsibility, and policies regarding them. Issues in question must be identified and communicated to the supplier, who will then know which policies, provisions, or clauses will affect them. One issue that must be identified for the suppliers is their responsibility to protect the Postal Service against claims resulting from suppliers’ use of data not supplied by the Postal Service.
Before the Postal Service and individual supplier can openly discuss proprietary information, a NDA, which protects both parties from the loss of intellectual properties and rights, may be necessary. Purchase/SCM teams must work with the assigned counsel to draft the NDA. The NDA will require that certain information not be disclosed, except under the terms as described in the NDA, and spells out exactly the information that is deemed proprietary.
Pursuant to Provision 8-2: Representation of Rights in Data, technical data that are limited rights data and restricted computer software that has been identified must be brought to the attention of the Postal Service in the supplier’s proposal. Any subsequent supplier claim that further data or software have been identified or developed at private expense must be supported by clear and convincing evidence. Limited rights data and restricted computer software that are properly identified are recognized by the Postal Service, and related language is incorporated into the contract, using Clause 8-17: Delivery of Limited Rights and Restricted Computer Software. Once the contract is signed, limited rights data and restricted computer software can be delivered to the Postal Service and will be designated and recognized by a specific legend placed on them.
