The Government Accountability Office (GAO) issued a decision on May 22, denying in part and dismissing in part Sikorsky Aircraft Corporation’s much-watched protest of the Air Force’s solicitation to replace the UH-1N helicopter.  The decison deals an early (if light) blow to contractors in their fight against the Air Force’s recent data rights grab.

The GAO, in Sikorsky Aircraft Corp., B-416027; B-416027.2, May 22, 2018, ultimately endorsed one provision requiring broad delivery of both technical data and software necessary for operations, maintenance, installation, and training activities (defined in the solicitation as “OMIT Data”), but Sikorsky’s protest did not go down without first getting an important concession from the Air Force. This concession, and the GAO’s discussion of whether OMIT Data includes source code, are the key takeaways from Sikorsky, and we will discuss them in some length here. Before we do, some stage-setting is appropriate, in particular because the clauses at issue are confusing.

For more than 20 years, contractors and government personnel have used “OMIT data” as a familiar shorthand for the data called out in DFARS 252.227-7013(b)(1)(v) as “Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data),” and, importantly, in which the Government is entitled to unlimited rights. In this parlance, OMIT data by definition include neither “detailed manufacturing or process data” (DMPD) nor computer software. Unsurprisingly, the Air Force caused some consternation recently when it bucked this convention and began including in its solicitations for major weapons systems a provision defining “OMIT Data” to include all types of computer software and, in some cases, DMPD. (We distinguish this OMIT Data, specially defined by the Air Force, and the colloquial OMIT data.) Sikorsky was the first to file a formal challenge.

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