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Armed Services Board of Contract Appeals
May 8, 2018
ASBCA No. 58519
[*180354] OPINION BY ADMINISTRATIVE JUDGE HARTMAN ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT
Appellant moves for summary judgment on the ground that the government "expressly and unambiguously released the claim that is the subject of this Appeal" when it entered into a "global settlement" with appellant amicably resolving ASBCA Nos. 56097 and 56288, both of which concerned Contract No. N00039-03-C-0024. The government opposes appellant's summary judgment motion on the grounds: its challenge to appellant's data rights assertions here is not barred by the language of the parties' earlier settlement agreement; the right to challenge data rights assertions by a contractor is a statutory "right" provided to the [**2] Secretary of Defense that cannot be waived by a contracting officer (CO); and there are genuine issues of material fact precluding grant of appellant's motion.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
During 2003, the Department of the Navy, Space and Naval Warfare Systems Command (SPAWAR) awarded Contract No. N00039-03-C-0024 (contract), in the amount of $ 31,818,433.00 for the design, development, testing, production, integration, deployment, documentation, engineering technical services and logistical support of a system meeting the requirements of the AN/USQ-167 Communications Data Link System (CDLS) to Cubic Defense Applications, Inc. (Cubic). CDLS "is a wideband data link for the transmission of signal and imagery intelligence data" between a ship and an airborne military aircraft such as the Global Hawk, U-2, F-18, or P-3. The contract incorporated by reference various clauses from the Department of Defense Federal Acquisition Regulation Supplement (DFARS), including: DFARS 252.227-7013, RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS (Nov 1995); DFARS 252.227-7014, RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTS (JUN 1995); [**3] DFARS 252.227-7015, TECHNICAL DATA--COMMERCIAL ITEMS (Nov 1995); DFARS 252.227-7019, VALIDATION OF ASSERTED RESTRICTIONS--COMPUTER SOFTWARE (JUN 1995); and DFARS 252.227-7037, VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (SEP 1999). (R4, tab 2 at 78, 112, 241, 242)
As part of its 30 September 2002 "proposal" to perform the contract, Cubic submitted to SPAWAR the following table pursuant to DFARS 252.227-7017, IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE RESTRICTIONS (JUN 1995):
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2018-1 B.C.A. (CCH) P37,049 *; 2018 ASBCA LEXIS 141 **
Appeal of -- Cubic Defense Applications, Inc.
Appeal dismissed by, As moot Appeal of Cubic Def. Applications, 2018 ASBCA LEXIS 279 (A.S.B.C.A., Sept. 26, 2018)
Appeal of -- Cubic Def. Applications, Inc., 2007 ASBCA LEXIS 65, 2007-2 B.C.A. (CCH) P33695 (A.S.B.C.A., Oct. 2, 2007)
contractor, technical data, rights, marking, validation, restrictions, assertions, funding, software, regulations, Procurement, settlement agreement, computer software, intellectual property, Mixed, legend, contracts, limited right, noncommercial, Proprietary, parties, government contract, final decision, tab, unlimited right, documentation, trade secret, subcontractor, delivery, interim