               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Alenia North America, Inc.                    )      ASBCA No. 57935
                                              )
Under Contract No. FA8504-08-C-0007           )

APPEARANCE FOR THE APPELLANT:                        Louis D. Victorino, Esq.
                                                      Sheppard Mullin Richter &
                                                       HamptonLLP
                                                      Washington, DC

APPEARANCES FOR THE GOVERNMENT:                      Col Robert J. Preston II, USAF
                                                      Acting Air Force Chief Trial Attorney
                                                     Christine C. Piper, Esq.
                                                     Skye Mathieson, Esq.
                                                      Trial Attorneys

               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 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-PZ0001on23 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.

     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 6at171, § 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-8 l 670A." (R4, tab 2 at 46,
tab 4 at 132) Distribution 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).

       5. According to Alenia, the first aircraft and accompanying technical manuals
were delivered in September 2009, and as of April 2012, 17 additional aircraft, each
with a set of technical manuals had been delivered (compl. ii 16). Each technical
manual contained the following restrictive marking:

                The content of this publication is intellectual property of
                Alenia Aeronautica S.p.A., a Finmeccanica Company. It
                must not be used for any purpose other than for which it is
                supplied. It must not be disclosed to unauthorized persons
                or reproduced without written authorization from the owner
                of the copyright. C 2009 Alenia Aeronautica S.p.A-A
                Finmeccanica Company. All rights reserved.

(Compl. ii 14)

        6. On 20 April 2011, the Air Force contracting officer sent Alenia a letter
objecting to the restrictive marking. The letter stated that it "serves to advise ANA
[Alenia] that the USAF asserts Government Purpose Rights to technical data. T.O.s
[technical manuals] were purchased for the express purpose of maintaining the G-222
aircraft and supporting equipment and were developed for the USAF in support of [the]
subject contract in accordance with DoD specifications." The letter also stated that:
"The Government will not request authorization from ANA for actions taken to
accomplish maintenance within the parameters of Government Purpose Rights. Should
ownership of the G-222 fleet transfer, Government Purpose Rights and/or Unlimited
Rights in Technical Data will transfer with the fleet." (R4, tab 27) 1

       7. On 23 May 2011, Alenia replied to the Air Force, stating that it did not agree
with the government's assertion of Government Purpose Rights, and provided

1
    The Board previously determined that the contracting officer's 20 April 2011 letter was
         a government claim under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109.
         See Alenia North America, Inc., ASBCA No. 57935, 13 BCA ii 35,296 at 173,268.

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background and supporting facts and argument for its view that "there is no basis by
which the USAF can claim Government Purpose Rights." Alenia concluded that it
considered the restrictive marking to be fully consistent with the contract. (R4, tab 28
at 623, 628)

         8. In July and August 2011, the Air Force sent letters to Alenia, notifying Alenia
that it required an additional 30 and 60 calendar days, respectively, to respond to what it
characterized as Alenia's "challenge letter dated 23 May 2011" (R4, tabs 29, 30). On
29 August 2011, Alenia replied to the Air Force, stating that, "It seems apparent from
the parties' correspondence to date that the propriety of the Alenia data markings are in
dispute" (R4, tab 31).

        9. On 21 October 2011, the Air Force contracting officer sent a final decision to
Alenia, stating that "the Government has the right to review, verify, challenge and
validate restrictive markings" and that "[t]he applicable FAR clauses, whether or not
specified in the contract, are nonetheless included in the contract by virtue of the
Christian Doctrine." The contracting officer stated that the government considered
unlimited government rights to be the precise purpose for which the intellectual
property was supplied. (R4, tab 32 at 632) The contracting officer further stated that
the technical manuals are for maintenance and training purposes and did not exist prior
to contract award. Further, pursuant to FAR 27.404-1 (c), the government has unlimited
rights to the technical manuals because they were provided to the government for
maintenance and training purposes. (Id. at 633) The contracting officer also stated that
Alenia failed to identify the technical manuals as restricted data in its contract proposal,
and that Alenia's restrictive marking on the technical manuals is in direct conflict with
Distribution Statement C included in the contract CDRLs (id.). The contracting officer
decided, in accordance with DFAR 252.227-703 7, that data supplied under the contract
shall contain only Distribution Statement C and directed Alenia to "remove their current
restrictive statement from technical manual deliverables which have been or will be
delivered on the subject contract" (id. at 634 ).

       10. On 13 January 2012, Alenia filed this appeal.

                                        DECISION

                                 The Parties' Arguments

      This motion for summary judgment seeks to deny Alenia's appeal because the
government contends that, as a matter of law, it is entitled to unlimited rights or
government purpose rights in the technical manuals (gov't mot. at 3).

        The Air Force argues that the holding in G.L. Christian & Associates v. United
States, 312 F .2d 418 (Ct. Cl. 1963), reh 'g denied, 320 F .2d 345, cert. denied, 375 U.S.


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954 (1963), often referred to as the Christian doctrine, and subsequent cases following
the Christian doctrine require us to read the clause at DFARS 252.227-7013, RIGHTS IN
TECHNICAL DATA - NONCOMMERCIAL ITEMS (Nov 1995) (noncommercial data rights
clause) into the contract (gov't mot. at 3). The Air Force argues that under the
noncommercial data rights clause, the government is entitled to unlimited rights in
technical data that constitutes form, fit and function data or that constitutes operations,
maintenance, installation and testing (OMIT) data (id.). The Air Force believes that the
technical manuals are form, fit and function data or OMIT data, and therefore that the
government has unlimited rights in the technical manuals (id.).

       In the alternative, the Air Force argues that 10 U.S.C. § 2320, and DFARS
regulations implementing this statute, provide a basis for the government having
unlimited rights in the technical manuals, again because the manuals are form, fit and
function data or OMIT data (gov't mot. at 3, 32).

       The Air Force further argues that it is entitled to unlimited rights in the technical
manuals because the manuals were not properly marked in accordance with the marking
instructions and the prescribed marking legends of the noncommercial data rights clause
(gov't mot. at 3, 28).

       The Air Force also argues that Distribution Statement C contained in the contract
CDRLs grants the government, at a minimum, government purpose rights in the
technical manuals (gov't mot. at 3, 36).

         Alenia argues that the noncommercial data rights clause is not read into the
contract by the Christian doctrine, and even if it is, the noncommercial data rights clause
is not self-executing and does not grant the government unlimited rights in all data
included in the technical manuals (app. resp. at 9, 10, 15, 19, 21). Alenia also argues
that if the noncommercial data rights clause had been included in the contract, Alenia
would have specifically negotiated license rights for the technical manuals; or
negotiated the delivery of more limited technical manual content; or would not have
entered into the contract (app. resp. at 7, 21, attach. 1, Schreiber decl. ~ 18, attach. 2,
Hood decl. at 1, ~ 4). Alenia contends that ifthe contract had permitted the government
to disclose the technical manuals to third parties not approved by Alenia, Alenia would
have negotiated the content of the technical manual to remove sensitive data (app. resp.
at 7).

        Alenia additionally argues that through the conduct of the parties during contract
negotiations and performance, the Air Force and Alenia impliedly agreed to a special
rights license that limits the government's use of the technical manuals in accordance
with Alenia's restrictive marking on the technical manuals (app. resp. at 24).




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                              Summary Judgment Standard

       Summary judgment is appropriate only where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. The moving
party bears the burden to show the absence of any issue of material fact. We resolve
any significant doubt over factual issues, and draw all reasonable inferences, in favor of
the party opposing summary judgment. Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1390-91 (Fed. Cir. 1987). There is a genuine issue of material fact if a
reasonable fact-finder could find in favor of the nonmovant based upon the evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); AshBritt, Inc., ASBCA
Nos. 56145, 56250, 09-2 BCA if 34,300 at 169,434.

      As discussed below, the record is replete with genuine issues of material fact,
which we need only address summarily in denying the motion.

       We consider whether the moving party - the Air Force - has met its burden to
show the absence of any issue of material fact. We determine that the Air Force has not
met its burden.

        The Air Force and Alenia disagree over whether each or all of the technical
manuals, or segregable parts thereof, are form, fit and function data or OMIT data. The
Air Force asserts that the aircraft manuals are, on their face, form, fit and function data
and OMIT data (gov't reply br. at 3). We understand the Air Force's argument to be
that the entireties of the technical manuals are form, fit and function data or OMIT data.
Alenia asserts that the noncommercial data rights clause, even if read into the contract
under the Christian doctrine, does not necessarily grant the government unlimited rights
in all data included in the technical manuals (app. resp. at 9). Alenia argues that the
technical manuals are not inherently form, fit and function data or OMIT data, and that
the parties must address the data content (of the technical manuals) to define the scope
of these terms in view of the technical manuals contents (app. resp. at 22-23).

       Therefore, the record shows that the Air Force and Alenia disagree over whether
the technical manuals are form, fit and function data or OMIT data. Resolving any
significant doubt over this factual issue, and drawing all reasonable inferences, in favor
of Alenia, the Board determines that there is a genuine issue of material fact concerning
whether each or all of the technical manuals, and segregable parts thereof, are form, fit
and function data or OMIT data.




                                             5
       The Air Force and Alenia also disagree over whether each or all of technical
manuals, or segregable parts thereof, were developed exclusively with government
funds, exclusively at private expense or with mixed funding. The Air Force contracting
officer stated that:

              [T]he USAF asserts Government Purpose Rights to
              technical data. T.O.s [technical manuals] were purchased
              for the express purpose of maintaining the G-222 aircraft
              and supporting equipment and were developed for the
              USAF in support of subject contract in accordance with
              DoD specifications ....



              . . . Should ownership of the G-222 fleet transfer,
              Government Purpose Rights and/or Unlimited Rights in
              Technical Data will transfer with the fleet ....

(SOF ii 6) Alenia contends that the technical manuals were developed without any
government funds, are confidential and proprietary to Alenia, and that the government is
entitled only to the rights specified in the restrictive legend on the technical manuals
(comp I. ii 32). According to Alenia, the technical manuals were in existence and in use
at the time of award of the contract (app. resp. at 3, ii 2). Alenia disagrees that the Air
Force has government purpose rights iri the technical manuals and considers its
restrictive legend on the technical manuals to be fully consistent with the provisions of
the contract (R4, tab 28 at 623, 628).

        Therefore, the Air Force and Alenia disagree over whether each or all of the
technical manuals, or segregable parts thereof, were developed exclusively with
government funds, exclusively at private expense or with mixed funding. Resolving
any significant doubt over this factual issue, and drawing all reasonable inferences, in
favor of Alenia, there is a genuine issue of material fact concerning whether each or all
of the technical manuals, or segregable parts thereof, were developed exclusively with
government funds, exclusively at private expense or with mixed funding.




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                                    CONCLUSION

     As there are disputed issues of material facts, the Air Force's motion for
summary judgment is denied.

      Dated: 7 August 2014



                                                CRANE L. LOPES
                                                Administrative Judge
                                                Armed Services Board
                                                of Contract Appeals

I concur                                        I concur



                                                RICHARD SHACKLEFORD
Administrative Judge                            Administrative Judge
Acting Chairman                                 Vice Chairman
Armed Services Board                            Armed Services Board
of Contract Appeals                             of Contract Appeals


      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 57935, Appeal of Alenia
North America, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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