Last month, the Government Accountability Office (GAO), the legislative agency tasked to conduct auditing, evaluation, and investigative services for the U.S. Congress, released a report regarding the sustainment of operational system software for Department of Defense (DoD) weapon systems. Software sustainment is essential to the operations of DoD weapon systems, including tactical and combat vehicles, and military aircraft.

In relevant part, the report examined the extent to which the DoD has addressed challenges to securing necessary data rights—or the Government’s nonexclusive license rights in two categories of intellectual property (IP), “technical data” and “computer software,” delivered by contractors under civilian agency and DoD contracts—to sustain weapon system software.

GAO found that DoD often “negotiates for license rights, and not ownership, of technical data or computer software, to be delivered under a contract” and that “DoD strives to balance the cost of purchasing rights against the extent of data rights it expects it will need to maintain and support the system for years into the future.” Of note, the GAO explained that DoD faces challenges regarding data rights, including having partial, incomplete, or unclear data rights to sustain weapon software. According to GAO, DoD has initiated remedial measures, including creating a cadre of IP experts intended to ensure a consistent, strategic, and knowledgeable approach to acquiring or licensing IP by providing expert advice, assistance, and resources to the acquisition workforce on IP matters. The GAO recommended that DoD develop an implementation plan with time frames for key milestones for establishing the cadre of experts.

GAO’s report and findings shed insight on the DoD’s approach to obtaining IP from contractors related to software sustainment, as well as to how the DoD intends to mitigate its continuing challenges in acquiring that IP. Contractors should be aware of the DoD’s challenges and its planned remedial measures to the extent that it may affect existing or future business opportunities.