Congress is considering so-called “right to repair” legislation that could produce one of the most consequential changes to Department of War (“DoW”) intellectual property rights in decades. Provisions advanced during consideration of the Fiscal Year (“FY”) 2027 National Defense Authorization Act (“NDAA”) would make Government Purpose Rights the default for certain technical data, computer software, and computer software documentation delivered under future DoW contracts, subcontracts, and other agreements. Contractors seeking to deviate from Government Purpose Rights to impose more restrictive rights would bear the burden of identifying the affected material and establishing the basis for those restrictions by “clear and convincing evidence.”
The provisions respond to concerns that DoW may lack access to the technical information needed to maintain and repair military equipment without relying on the original manufacturer. But the proposed solution appears to have impacts that go beyond DoW’s right to repair and broadly affect DoW rights to contractors’ internally funded technology. At a minimum, this approach would require contractors to place a renewed emphasis on proposal and marking practices and relationships with suppliers; at worst, it may undermine industry’s willingness to incorporate commercial or dual-use technology into defense systems.
The Current Data-Rights Framework
The current data-rights framework for DoW contracts, set forth in the Defense Federal Acquisition Regulation Supplement (“DFARS”), reflects a policy compromise that has existed for decades. On the one hand, DoW seeks sufficient rights to compete sustainment work, support readiness, and avoid vendor lock. On the other hand, DoW wants to maintain incentives for contractors to transact with DoW and conduct independent research and development that could benefit DoW. The existing allocation of rights generally attempts to strike that balance by tying the Government’s license rights to the source of development funding.
Under the current DFARS framework, the Government generally receives a license in technical data and computer software, not ownership of the contractor’s underlying intellectual property. The scope of that license depends on several factors, including the type of data or software being delivered, the funding source(s) used to develop the product or service to which it pertains, and any specially negotiated license terms.
For noncommercial technical data (which includes computer software documentation), the principal clause is DFARS 252.227-7013. For noncommercial computer software, the corresponding clause is DFARS 252.227-7014. DFARS 252.227-7015 addresses technical data pertaining to commercial products and commercial services, and DFARS 252.227-7018 addresses noncommercial technical data and computer software generated under the Small Business Innovation Research (“SBIR”) and Small Business Technology Transfer (“STTR”) programs. A related set of clauses—including DFARS 252.227-7017, 252.227-7019, and 252.227-7037—govern how a contractor asserts restrictions and how the Government validates or challenges those assertions.[1]
Although the regulations contain numerous exceptions and qualifications, the basic framework includes four principal categories of rights:
- Unlimited Rights. The Government generally may use, modify, reproduce, release, perform, display, or disclose the covered data or software without restriction. DoW typically receives Unlimited Rights in technical data or software pertaining to items developed exclusively with government funds, as well as certain categories of data regardless of funding source, including form, fit, and function data and data necessary for operation, maintenance, installation, or training, other than detailed manufacturing or process data.
- Government Purpose Rights. The Government may use, modify, reproduce, release, perform, display, or disclose the material within the Government without restriction and may release it outside the Government for a government purpose, subject to protections against unauthorized use or disclosure. This can permit DoW to provide the material to another contractor for activities such as competitive procurement, maintenance, or repair. Government Purpose Rights generally apply to items, components, processes, or software developed with mixed government and private funding. These rights are also time-limited: they ordinarily last for a negotiated period (five years by default) after which they convert to Unlimited Rights, unless the parties agree otherwise.
- Limited Rights. The Government generally may use the covered data within the Government but is significantly restricted in its right to release or disclose outside the Government. For technical data pertaining to items, components, or processes developed exclusively at private expense, the Government generally receives Limited Rights.
- Restricted Rights. Restricted Rights are the software counterpart to Limited Rights. They apply to certain noncommercial computer software that pertain to items developed exclusively at private expense, and limit the Government’s ability to use, copy, modify, or disclose that software.
The clauses also permit Specifically Negotiated License Rights, allowing the parties to negotiate a license tailored to a particular program, provided the Government does not receive less than Limited Rights in technical data or Restricted Rights in software (see DFARS 252.227-7013(c)(4) and 252.227-7014(c)(4)). Separate rules apply to commercial products, commercial services, and SBIR or STTR data.
The current regime therefore generally ties the Government’s rights to the source of development funding and the character of the material being delivered. That inquiry can be fact-intensive. Contractors must identify restrictions before award, place prescribed legends on delivered data and software, and retain records supporting assertions that technology was developed exclusively or partially at private expense. DoW, in turn, may challenge unsupported restrictions through the DFARS validation procedures.
What the Proposed Legislation Would Change
The proposed right to repair provisions would change the starting point of the analysis. For covered acquisitions, Government Purpose Rights would become the default for technical data, computer software, and computer software documentation delivered under the agreement. A contractor seeking to provide less than Government Purpose Rights would have to identify the specific material at issue and substantiate its entitlement to the more restrictive license by clear and convincing evidence. Required support would include evidence of private development funding and identification of applicable exclusions from the Government’s Unlimited Rights.
The proposed legislation approaches the issue from multiple directions. Sections 861 of the House-passed bill and 804 of the Senate Armed Services Committee (“SASC”)-reported bill would establish default Government Purpose Rights, albeit with important differences in scope and enforcement. Section 824 of the House-passed bill would address the issue from a different angle by revising DoW’s modular open systems architecture acquisition planning requirements and placing greater emphasis on interface rights, software licenses, and commercial technology integration. Section 5811 of the SASC-reported bill would strengthen the Government’s remedies in data-rights disputes. Together, these provisions reflect a broader effort to increase DoW’s ability to access, integrate, compete, maintain, and sustain defense systems over their life cycle.
Section 861 (House Bill)
Section 861 would add a new Section 3776 to Title 10 of the U.S. Code requiring contractors to submit a compliant assertions table identifying each item of deliverable data or software claimed, factual documentation of private development funding, clause-specific unlimited rights exclusions applied at the lowest practicable segregable level, and to make corresponding portion markings on the deliverables. Any failure to comply results in the deliverable being treated as delivered with Government Purpose Rights. Notably, the House default is written broadly and is not, on its face, limited to noncommercial acquisitions.
Section 861 also reaches marking and pricing. For noncommercial critical readiness items of supply, an incorrect restrictive marking, a failure to exclude unlimited or unrestricted rights categories, a failure to portion-mark at the required segregable level, or an incomplete or invalid assertions table would cause all affected data and software to be deemed delivered with Government Purpose Rights. The provision also directs the Secretary of Defense, within 180 days, to study the feasibility of a “clawback” mechanism to recover excess payments attributable to improper restrictive markings that contributed to reduced competition or sole-source conditions.
Section 804 (SASC-Reported Bill)
While the SASC version, found in Section 804 of the proposed NDAA, is similar to the House Section 861, it has a narrower trigger: the default applies to agreements entered into for the acquisition of noncommercial products or services. The contractor’s burden—assertions table, private funding documentation, clause-specific exclusions at the lowest segregable level, and portion markings—mirrors the House text, as does the rule that noncompliance results in Government Purpose Rights.
Where the SASC-reported bill goes further is enforcement. Rather than merely studying the feasibility of a clawback mechanism, Section 804 would establish one: For items procured in an unjustified sole-source environment created by improper restrictive markings, the Secretary must obtain an independent engineering and cost analysis, and any resulting overpayment would become a contract debt under the Contract Disputes Act, accruing interest from the date of overpayment. Section 804 would also render a contractor that repeatedly mismarks data or submits invalid assertions tables ineligible for award of contracts requiring the delivery of technical data or software for a period determined by the Secretary.
Section 824 (House Bill)
Another noteworthy provision appears in Section 824, which would revise DoW’s modular open systems architecture (“MOSA”) acquisition planning requirements and, in the process, place greater emphasis on software licenses, interface rights, and commercial technology integration. Under the bill, an “open systems architecture” is intended to permit modules to be added, removed, or replaced throughout a system’s life cycle by qualified third parties.
Where the MOSA system includes commercial products, proposed Section 824 generally contemplates preserving customary commercial licensing practices while supplementing those licenses rights, where appropriate, to support the Government’s modularity, interoperability, and sustainment objectives. In other circumstances, DoW may seek rights not only in interface specifications, but also in software development kits, technical information, and license rights that may be necessary to connect technologies to the broader system architecture. If passed, the Section 824 provisions could become increasingly important as DoW expands its use of MOSA across acquisition and research and development programs.
Section 5811 (SASC-Reported Bill)
Finally, Section 5811 in the SASC-Reported bill would add a new section 3865 to Title 10 that would allow the Government to sue in federal district court for an order compelling delivery of technical data, software, software documentation, and other covered information required under a DoW contract. The court could also determine the scope of the Government’s rights and order the correction or removal of improper restrictive markings, creating a powerful new enforcement tool in data rights disputes. The proposed language provides no comparable remedy for the contractor.
Perhaps most significantly, the proposal expressly allows the Government to pursue a district court action for specific performance even while the contractor is challenging the contracting officer’s final decision under the Contract Disputes Act’s review procedures. As a result, a contractor could be litigating the underlying data rights dispute in the Armed Services Board of Contract Appeals or Court of Federal Claims while simultaneously defending a district court action seeking immediate delivery of the information.
Read together, the above provisions point in the same direction: shifting the default toward broader Government rights while leaving important questions of scope, enforcement, and implementation to be resolved in conference and in any eventual DFARS rulemaking.
The potentially broad ramifications of these proposed changes go beyond a “right to repair.” Depending on the final text and implementing regulations, the legislation could alter the default allocation of rights across the procurement lifecycle, including for material that may have applications extending considerably beyond the repair of fielded equipment.
Five Questions Defense Contractors Should Be Asking
1. What contracts and deliverables would be covered?
The final scope will matter enormously. Contractors should examine whether the legislation applies only to future contracts or also to new orders, modifications, options, and follow-on agreements associated with existing programs. They should also determine whether the default applies only to data and software expressly required for repair and sustainment or more broadly to all covered deliverables under an acquisition.
The difference is substantial. A targeted right covering maintenance manuals, diagnostic information, and interface data would present different risks from a default license covering computer software, design details, algorithms, and detailed manufacturing or process data.
2. What will contractors need to prove to retain more restrictive rights?
Under the current system, contractors already must identify and support restrictions, including through the assertion process under DFARS 252.227-7017 and the validation procedures in DFARS 252.227-7019 and DFARS 252.227-7037. The proposed legislation could make that process still more consequential by establishing Government Purpose Rights as the baseline whenever the contractor’s supporting submission is incomplete or insufficient.
Contractors may need more detailed records tracing development funding at the item, component, process, software module, or version level. That could be particularly difficult for mature products developed over many years using a combination of internal research and development funds, government contracts, acquisitions, and predecessor technologies.
3. How will the proposal affect subcontractors and commercial technology?
Prime contractors may not own, or possess the authority to license, all the data and software incorporated into a defense system. Some of that technology may belong to subcontractors, suppliers, licensors, or commercial technology companies. Accordingly, a prime contractor may be unable to provide the Government with Government Purpose Rights unless its supplier agreements secure corresponding license rights. Contractors may need to revisit subcontract flowdowns, intellectual property indemnities, licenses, and data delivery provisions. The proposal could also discourage commercial technology providers from entering the defense market if participation carries a risk of broader Government or third-party access to privately funded technology.
4. Will the rule affect investment, pricing, and competition?
Industry investment decisions frequently depend on the ability to protect privately funded technology and obtain returns through follow-on production, upgrades, maintenance, and commercial licensing. If the Government can share covered technology with other contractors for government purposes, companies may reconsider which development costs they are willing to fund internally.
Contractors could respond by pricing the loss of exclusivity into initial proposals, limiting the technology they offer, seeking specially negotiated licenses, or walking away from the defense industrial base altogether given the risk of exposing strategically important intellectual property.
5. How Will DoW Enforce Its New Rights?
The SASC proposal not only changes the default allocation of rights in technical data and software, it also creates a powerful new enforcement mechanism. If a contractor fails to deliver covered information within 30 days after a contracting officer’s final decision directing delivery, DoW could file suit in federal district court seeking an order compelling production. Moreover, the legislation expressly provides that the Government’s action may proceed even while the contractor challenges the contracting officer’s decision through the Contract Disputes Act process. The result could be faster and more aggressive enforcement of DoW’s asserted data-rights entitlements than is common under the current framework.
Practical Steps for Contractors
The proposal is not yet final, and its ultimate language may change through the legislative and conference processes. Contractors nevertheless should begin assessing its potential effect, particularly if they sell products, software, or integrated systems to DoW.
Near-term steps may include:
- Identifying programs that depend heavily on privately funded technical data or software;
- Reviewing the adequacy of development funding records;
- Mapping rights at the component and software module level;
- Reviewing supplier and subcontractor licenses;
- Evaluating whether current assertion and marking processes could satisfy a more demanding default rights regime; and
- Monitoring the House and SASC-reported language, any conference agreement, and subsequent DFARS implementation.
[1] In February 2026, DoW issued Class Deviation 2026-O0036, which revised DFARS Part 227 and replaced several of the traditional data rights clauses with new deviation clauses for use in covered procurements. As of the date of this publication, the deviations have not been codified in the Code of Federal Regulations through a final DFARS rule. Because the proposed NDAA provisions are best understood against the traditional framework from which many of the relevant concepts originated, this article references the traditional clause numbers throughout.