The Professional Services Council and the U.S. Chamber of Commerce are seeking to bolster a case filed by Boeing over markings intended to protect the company's technical data.
Boeing's long-running case concerns marking legends it used to indicate that technical data was proprietary. The issue initially arose over work done under the F-15 Eagle Passive/Active Warning Survivability System program, according to an Armed Services Board of Contract Appeals document.
Boeing marked its data deliverables to the government with a legend that indicated the information was proprietary to Boeing and required written approval for use by third parties, such as subcontractors. The government, however, had unlimited rights under the contracts, according to the ASBCA document.
However, the Air Force contracting officer found those legends were not authorized in the Defense Federal Acquisition Regulation Supplement. The document indicates the contracting officer required Boeing to remove them and resubmit the data.
Boeing appealed the finding to the ASBCA, which agreed with the Air Force that the marking legends "are nonconforming." The board issued its final decision in March.
Boeing has now appealed to the U.S. Court of Appeals for the Federal Circuit. In a December 2019 opening claim, the company writes that the ASBCA’s decision has "far-reaching consequences."
"If left to stand, this holding will effectively impair contractors' rights in their data and threaten the willingness of technology innovators to do business with the Government for fear of compromising their ownership rights in technical data," the 298-page claim reads.
Boeing notes that its markings addressed third-party rights to the data, rather than government rights. The contractor contends the relevant DFARS section on marking requirements relates to restrictions on the government’s rights, not to third-party restrictions that don't affect the government's rights.
Alan Chvotkin of PSC told Inside Defense his organization also sees "broad implications across the defense contracting community." PSC and the Chamber filed a joint "friend of the court" brief in support of Boeing's side.
"If there's no ability of a contractor to put third parties on notice about the rights that the company has in that information, then it's up to the company to find a way to police its own data against thousands of companies who might otherwise have access to that information," Chvotkin said.
He added that the decision could be a "jolt for many companies, particularly the nontraditional companies who have always been concerned about data rights."
"You're really on your own to protect the data," he said. "You lose even this ability to put people on notice."
In a statement provided to Inside Defense, Boeing said that "[g]iven the Federal Circuit's time line, we are expecting a decision in the ASBCA case in the second half of this year."