An F-35 software data rights dispute between the federal government and Lockheed Martin [LMT] continues before the Armed Services Board of Contract Appeals (ABSCA) nearly 4 years after the corporate filed an October, 2019 appeal of a Defense Contract Audit Agency decision that the U.S. Navy was entitled to “government purpose rights” to the software.
If software development occurs with federal government and contractor funds, the federal government receives “government purpose rights” that allow the federal government to make use of technical data and computer software inside the federal government without restriction for five years and permit the federal government to release the tech data and software to 3rd parties for presidency purposes, equivalent to re-procurement, inside that point period. Such “government purpose rights” typically revert to unlimited rights after the five-year period or a negotiated time span.
In lieu of such “government purpose rights,” the F-35 Joint Program Office and Lockheed Martin have negotiated “specialized license rights,” which deviate from DFARS 252.227-7014, and restrict the federal government’s ability to make use of, modify, reproduce, release, perform, display, or disclose nine Verification Simulation (VSim) software products that Lockheed Martin asserts it developed exclusively at private expense (, June 10, 2022).
The VSim software is for the high-fidelity Fighter-In-A-Box (FIAB) F-35 simulators which might be a part of the F-35 Joint Simulation Environment (JSE) to check the fighter’s performance against high-tech adversaries. Delays in the ultimate 64 runs for JSE pushed back the goal for completion of F-35 initial operational test and evaluation until this summer, however the F-35 program has said that the nine VSim algorithms aren’t needed for the JSE testing.
The crux of the legal dispute had been whether the federal government or Lockheed Martin funded the event of the VSim algorithms, but last December ASBCA Judge Elizabeth Witwer said that the Navy is now arguing that VSim doesn’t meet the definition of “developed,” as VSim has not functioned because it should.
The nine items of VSim software are CORE, FusionTech, AlgTech, LM Aero Containers, SimAudio, LabSys Base, Fifth Generation Simulation Interface (FSI), FSI Test Models, and FSI API documentation.
No requirement existed within the Joint Strike Fighter contract, awarded in October 2001, for Lockheed Martin to deliver VSim software to the federal government, and the Navy then sought to amend the contract to require the corporate to deliver certain software that the corporate was developing. Lockheed Martin then contended that such rights must be restricted, as Lockheed Martin said it had developed the software at its own expense.
Witwer’s denial last December of the Navy’s motion for summary judgment within the VSim case said that Lockheed Martin had submitted a declaration from James Gibbs, a software engineer with Lockheed Martin Aeronautics’ (LM Aero’s) Integrated Avionics Performance Prediction and Evaluation (IAPPA) internal development team who was “the first writer” of IAPPA’s LM Aero Containers software library.
Within the declaration to ASBCA, Gibbs asserted that “he personally tested the software ‘after writing the source code with a view to confirm that the software would perform as intended,’” Witwer wrote in her opinion. “More specifically, Mr. Gibbs asserts that he ‘conducted unit testing, which included writing code to run the standalone LM Aero software library pieces’ in order that he ‘could confirm functionality of key capabilities.’ Mr. Gibbs contends that he conducted this testing ‘prior to IAPPA’s first release of the LM Aero software library.’”
Gibbs’ declared to ASBCA that he validated that the LM Aero software library would work as intended and that the F-35 program has used the LM Aero software library for a decade.
Lockheed Martin Aeronautics also held that it “has no obligation to keep up records of development unless and until the pc software is identified as a deliverable,” Witwer wrote. “Because of this, LM Aero contends that it was not required to keep up records until May 2018, when the software became a deliverable under the contract…This date, in keeping with LM Aero, was long after the software items were developed.”
The Navy contends that the court should allow it to rent one other contractor for the VSim software and that the “specialized license rights” have locked in Lockheed Martin because the VSim provider.
“To the extent the Navy is anxious that it has licensed software that can’t reasonably be expected to perform its intended purpose, it’s unclear why the treatment for the failure to produce a deliverable under the contract could be a broadening of the license rights granted to the federal government, relatively than one among the well-established contractual remedies available to the federal government when a contractor provides non-conforming goods or services,” Witwer wrote in her opinion last Dec. 9. “In any event, because the moving party, the Navy bears the burden to point out that it’s entitled to judgment as a matter of law. We conclude that the Navy has didn’t satisfy its burden.”
The subsequent issue for the court to make a decision within the case appears to be the meaning of “developed.”
Witwer wrote last December that “applying the well-established standard of review for a motion for summary judgment, we conclude that there’s a real dispute as as to whether the nine software items are developed.”
“We further conclude that, even were we to search out that the software in query shouldn’t be developed, the Navy has failed to determine that it’s entitled to judgment as a matter of law,” she wrote. ” Thus, we deny the Navy’s motion for summary judgment.”