Arlington, Va. (Jan. 6, 2020) In a “friend of the court” (amicus) brief filed December 27, 2019 with the U.S. Court of Appeals for the Federal Circuit, the Professional Services Council (PSC) and the U.S. Chamber of Commerce joined in urging the Court to recognize that contractors must be allowed to use restrictive legends affecting only the private sector when the government applies long-standing rights in technical data clauses under the Defense Federal Acquisition Regulation Supplement (DFARS) and similar Federal Acquisition Regulation (FAR) clauses.

In a November 2018 decision by the Armed Services Board of Contract Appeals (ASCBA), the ASBCA held that Boeing could not include markings on technical data notifying non-government entities that the technical data it submitted to the government pursuant to the DFARS clause was proprietary to Boeing. Boeing appealed the ASBCA decision to the Federal Circuit. 

“The Board’s decision thus creates a legally suspect obstacle for private companies who want to protect the value of their proprietary technical data and software that is bad for both contractors and the Government (and thus the public at large),” according to the associations’ joint filing.

“The ASBCA ruling is simply incorrect as a matter of regulatory interpretation and fails to reconcile these rights in data clauses with clear statutory requirements to protect contractor interests,” said Alan Chvotkin, PSC’s Executive Vice President and Counsel. “Since this case will have broad implications for all companies doing business with the Defense Department, and every other federal agency that uses the FAR rights in data clauses, we felt it important to weigh in on the decision and its implications at the earliest stage possible.”

Matthew J. Dowd of Dowd Scheffel PLLC served as counsel to the associations on this matter.

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About PSC: PSC is the voice of the government technology and professional services industry. PSC’s more than 400 member companies represent small, medium and large businesses that provide federal agencies with services of all kinds, including information technology, engineering, logistics, facilities management, operations and maintenance, consulting, international development, scientific, social, environmental services, and more. Together, the trade association’s members employ hundreds of thousands of Americans in all 50 states. Follow PSC on Twitter @PSCSpeaks. To learn more, visit www.pscouncil.org.