Appeal of Alenia N. Am., Inc. , 2014-1 B.C.A. (CCH) P35,724; 2014 ASBCA LEXIS 279

Appeal of Alenia N. Am., Inc. , 2014-1 B.C.A. (CCH) P35,724; 2014 ASBCA LEXIS 279

Opinion

 [*174882] 

 OPINION BY ADMINISTRATIVE JUDGE LOPES ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

The Department of the Air Force (Air Force or government) moves for summary judgment on the appeal of appellant Alenia North America, Inc., (Alenia or appellant), alleging that the government has unlimited rights or government purpose rights to aircraft technical publications (technical manuals) delivered by appellant to the Air Force. For the reasons stated below, we deny the motion for summary judgment.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On 29 September 2008, the [**2]  Air Force and Alenia entered into letter Contract No. FA8504-08-C-0007 for Alenia to provide eighteen refurbished G222 aircraft and sustainment support for the Afghanistan National Army Air Corps (ANAAC). The letter contract was definitized as Contract No. FA8504-08-C-0007-PZ0001 on 23 April 2009. (R4, tabs 1, 3, 6)

2. Neither the letter contract nor the definitized contract contained any FAR or DFARS data rights clauses (R4, tabs 1, 3). Specifically, neither the letter contract nor the definitized contract contained the DFARS 252.227-7013, RIGHTS IN TECHNICAL DATA -NONCOMMERCIAL ITEMS (Nov 1995) clause.

 [*174883]  3. Contract Line Item No. 0006 of the contracts, entitled "TECHNICAL SUPPORT (PUBLICATIONS AND MANUALS)," required delivery of a set of technical manuals with each aircraft, as specified in the Statement of Work (SOW) (R4, tab 1 at 5, tab 3 at 78, tab 6 at 171, § 1.1.2.15.1). Section 1.1.2.15.1 of the SOW established these publications as item A004 of the Contract Data Requirements List (CDRL). Block 9 of CDRL A004, "DIST STATEMENT REQUIRED", was marked "C", with the additional note that distribution was to be "described in the DI-TMSS-81670A." (R4, tab 2 at 46, tab 4 at 132) Distribution [**3]  under Distribution Statement C is "Distribution authorized to US Government agencies and their contractors" (R4, tabs 2, 4).

4. The SOW required Alenia to "provide rights and data for hardware...as necessary to operate[,] maintain and support the G222...aircraft" (R4, tab 6 at 176).

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