In Department of Defense (“DoD”) government contracts, the government may assert certain rights in technical data of the contractor.

Technical Data

Department of Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.227-7013(a)(15) (2015) defines “technical data” in pertinent part as “recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation).” This, however, does not include computer software or data incidental to contract administration, such as financial and/or management information.” Id.; see also 10 U.S.C. § 2302(4) (2012) (defining technical data in virtually identical terms).

Raytheon's Vendor Lists

Raytheon was obligated to provide quarterly “Source/Vendor List[s]” to the Army under certain contracts involving the supply of engineering services in support of the Patriot weapons system. The lists identified the suppliers from which Raytheon had purchased parts for the missile system.

In its first two vendor lists, Raytheon included restrictive markings limiting distribution of list because of proprietary information. The Army had reviewed and approved those lists without objections, but was not obligated to approve the contents of the lists.

In 2015, Raytheon placed the same restrictive markings on vendor lists, but the Army disapproved the lists for using the wrong part numbers, and for having labeled the vendor lists as proprietary. Raytheon resubmitted a corrected vendor list but did not remove the restrictive markings; which the Army then approved.

The Army then disapproved the next vendor list from Raytheon because of the restrictive marks. Raytheon responded that the vendor list did not include “technical data” as defined in DFARS, but did contact “management” information which Raytheon claimed was proprietary data.

The Army disagreed, and instructed Raytheon to remove the restrictive markings from the vendor lists, and instead use a legend that recognized “government purpose rights” in the vendor lists.

Raytheon challenged the Army's position by filing a complaint with the U.S. Court of Federal Claims under the Contract Disputes Act (“CDA”).

Court of Claims Decision

The Court of Claims sided with Raytheon, noting that the lists did not include information about the technical aspects of the parts purchased by Raytheon, or any information about the design, manufacture, or assembly of any of the parts. Raytheon Co. v. U.S., No. 19-883C (Fed. Cl. Jun. 30, 2022).

Raytheon has an interest in protecting the confidentiality of information that it has gleaned through its processes for selecting qualified and reliable parts suppliers for complex weapons like the Patriot Missile system. . . . But the government's interests in robust competition are not threatened by restrictions on the disclosure of the vendor lists as they would be, for example, by restrictions on the use and disclosure of Raytheon's engineering drawings. Raytheon's competitors do not need the vendor lists to compete for an award, and the government does not need the lists to find qualified suppliers. Armed with the drawings, specifications, and other information that is truly technical in nature, the government could find and qualify its own suppliers.

The Court of Claims concluded that the information on Raytheon's vendor lists is not technical data under DFARS, and granted summary judgment in favor of Raytheon.

The attorneys at Thomas P. Howard, LLC litigate contract cases.