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Requirement for modular open system approach and modifications to rights in technical data

Division A · Title VIII: Acquisition Policy, Acquisition Management, and Related Matters · Subtitle B: Amendments to General Contracting Authorities, Procedures, and Limitations

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The Department of Defense must design and develop certain systems using a modular open system approach tailored to the system's purpose, lifespan, and other relevant factors. Before starting or modifying these systems, an assessment must be done to identify goals for openness, interoperability, and efficiency, including how to integrate new technologies and manage risks. The architecture must clearly define modules and interfaces, use existing or new standards to support openness, and promote the integration of commercial products, with new or modified standards submitted to a central repository and possibly shared with standards organizations.

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Section Text · Sec. 824.
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(a) Requirement for modular open system approach

Section 4401 of title 10, United States Code, is amended to read as follows:

4401. Requirement for modular open system approach

(a) Requirement

The Secretary of Defense shall ensure that a covered system to be procured is designed and developed with a modular open system approach that is appropriately tailored to—

(1)

the characteristics, intended purpose, and use of the covered system;

(2)

the planned service life of the covered system; and

(3)

any other factors relevant to the design and development of the covered system.

(b) Assessment to inform strategy

Before designing, developing, or making a modification to a covered system, the Secretary of Defense shall conduct an assessment to identify one or more open systems objectives to be achieved by the design and development of the covered system. Such assessment shall describe how a modular open system approach would—

(1)

support the objectives of the defense acquisition system established pursuant to section 3102 of this title;

(2)

align with the preference for the acquisition of commercial products and commercial services in section 3453 of this title and preserve the commercial characteristics of modules that comprise the covered system;

(3)

reduce the complexity of, and increase the speed by which, new technologies can be integrated into a covered system to enhance military effectiveness and responsiveness to emerging threats;

(4)

enable the use of iterative development cycles and discontinue or terminate the development of capabilities—

(A)

that no longer align with a capability requirement established by the Secretary of Defense; or

(B)

that are experiencing significant cost growth, technical or performance deficiencies, or delays in schedule;

(5)

seek to maintain a robust, resilient, and innovative defense industrial base to support requirements throughout the life cycle of the covered system;

(6)

reduce schedule delays and development timelines;

(7)

increase and enable interoperability of a covered system with the joint force as changes to force design evolve;

(8)

enhance supply chain risk management and mitigate industrial base production capacity risks by enabling the integration of alternative sources of supply or enabling augmented production of modules throughout the life cycle of the covered system; or

(9)

enable effective life-cycle management and product support of a covered system—

(A)

in accordance with the requirements of section 4324 of this title; and

(B)

to achieve applicable operational readiness requirements and materiel readiness objectives (established under section 118(c) of this title) in the most cost-effective manner practicable.

(c) Architecture requirements

(1)

In developing an open systems architecture for the procurement of a covered system, the Secretary shall ensure that such architecture—

(A)

adequately designates and defines for the covered system—

(i)

modules;

(ii)

open external interfaces and open module interfaces to ensure loose coupling of modules within the covered system;

(iii)

open external interfaces, including external interfaces with a host platform or other external system, in a manner that supports interoperability; and

(iv)

the openness characteristics identified in subsection (d);

(B)

requires the exposure and full definition of open interfaces in a manner than is most suited to achieve the open systems objectives of the covered system through—

(i)

if available and suitable to achieve the open system objectives, the use, reuse, modification, or adaption of existing open systems architectures, interface standards, or widely supported or consensus-based standards that are available at no cost or under fair and reasonable license terms;

(ii)

the use of commercial standards if such commercial standards are available under fair, reasonable, and non-discriminatory terms;

(iii)

the use of new standards that define relationships between module interfaces and external interfaces if such standards include—

(iv)

any combination of clauses (i) through (iii); and

(C)

is designed and developed to accelerate the procurement and integration of commercial products as modules when suitable and appropriate.

(2)

If a contractor develops a new interface standard or modifies an existing standard, and such new or modified standard is incorporated into an open systems architecture for a covered system, the Secretary shall ensure the new or modified standard is submitted to the repository required by subsection (g) and, if the Secretary determines such submission would support the open system objectives of the covered system, is made available to recognized standards bodies.

(3)

The Secretary shall ensure acquisition executives and program managers consider input from private entities as early as possible to inform decisions regarding the level in the open systems architecture at which a modular open system approach will be implemented for a covered system.

(4)

The open systems architecture described in this subsection shall be included in any draft and final solicitations for procurement of a covered system.

(d) Openness characteristics

Consistent with the requirements of subchapter I of chapter 275 of this title, the Secretary shall include in any draft or final solicitation for the covered system a description of the desired openness characteristics of the covered system necessary to achieve the open systems objectives identified in accordance with subsection (b) for such covered system including the following:

(1)

A description of the open systems objectives identified in accordance with subsection (b).

(2)

A description of the application of specifications, architectures, and standards for modularization and module interfaces and external interfaces, including open external interfaces with a host platform or other external system, to achieve such objectives.

(3)

A description of the minimum technical data package elements necessary to achieve such objectives.

(4)

The intended modularity and location of open interfaces.

(5)

The desired license rights in module interfaces or external interfaces based on such objectives, including desired license rights to enable the replacement of a module, module interface, or external interface with an alternative or new module or interface.

(e) Disclosure required

The Secretary of Defense shall make publicly available (to the maximum extent practicable consistent with national security requirements) any standards for implementation of modular open system approaches associated with contracts for covered systems as soon as feasible before the Secretary awards a contract to procure such a covered system, unless the applicable service acquisition executive submits to the Secretary a request to delay or restrict release of such standards, including a justification for such request.

(f) Applicability to commercial products

In applying the requirements of this section to a procurement of a covered system that includes a commercial product, the Secretary of Defense shall—

(1)

procure such commercial product under license terms similar to such terms that are customarily provided to the public, provided such commercial terms include or can be supplemented by the license rights necessary for designated open module interfaces or open external interfaces;

(2)

when applicable, obtain the delivery of commercial software development kits with license rights necessary to support the desired openness characteristics for the covered system; and

(3)

to the maximum extent practical, conduct negotiations for desired license rights in accordance with the preference for specially negotiated licenses in section 3774(c) of this title.

(g) Digital repositories for open systems architectures

(1) In general

To support the creation, use, and reuse of modular open systems approaches, the Secretary shall establish a federated set of digital repositories within the Department of Defense to store open systems architectures and related artifacts for a covered system developed in accordance with this section. The Secretary shall ensure that—

(A)

the repositories incorporate cybersecurity measures consistent with Department standards;

(B)

program managers, portfolio acquisition executives, and other appropriate officials of the Department of Defense have the necessary administrative control to manage assigned repositories and to establish procedures and requirements for content; and

(C)

the repositories are searchable and accessible to authorized persons according to level of security clearance.

(2) Administration

The Secretary of Defense shall designate a lead organization responsible for governance, life-cycle management, standards adjudication, and configuration control of repositories established under this subsection. Such organization shall have demonstrated expertise in digital engineering environments, model-based systems engineering, and use of modular open system approaches.

(h) Definitions

In this section:

(1)

The term covered system means a system that is acquired or developed under—

(A)

an acquisition program of the Department of Defense; or

(B)

a research and development program of the Department to address a capability requirement or joint capability requirement (as defined in section 181 of this title).

(2)

The term external interface means an interface between a covered system and other elements, such as another covered system or a host platform.

(3)

The term host platform means the system or environment that provides the core infrastructure, interfaces, and shared services necessary to support, integrate, and operate modular components or subsystems, while enabling their independent development, upgrade, and replacement through standardized and open interfaces.

(4)

The term modular open system approach means an integrated strategy that—

(A)

incorporates acquisition, business, technology, and logistics considerations; and

(B)

uses an open systems architecture to achieve one or more open systems objectives.

(5)

The term module means a self-contained discrete functional unit, such as hardware, software, or a combination thereof, in a discrete bundle—

(A)

that can be developed, tested, and deployed independently of a module interface or external interface; and

(B)

that can simultaneously interact with another self-contained discrete functional unit described in subparagraph (A) through a module interface or external interface.

(6)

The term module interface means a shared boundary between modules in a covered system defined by physical, logical, or functional characteristics such as electrical, mechanical, fluidic, optical, radio frequency, data, networking, or software.

(7)

The term open systems architecture means an architecture composed of a set of modules loosely coupled with other modules via open, well-defined, and verifiable interfaces, thereby enabling modules to be incrementally added, removed, or replaced throughout the life cycle of the covered system by any qualified offeror (as determined by the Secretary), including independent third parties.

(8)

The term software development kit means a collection of software tools and programs such as libraries, application programming interfaces, integrated development environments, testing tools, or documentation used to create applications that are appropriate for a specific software platform.

(b) Applicability

(1) In general

The requirements of section 4401 of title 10, United States Code, as amended by this section, shall apply with respect to a contract entered into on or after the date that is 180 days after the date of the enactment of this Act.

(2) Guidance

The Secretary of Defense shall issue guidance to carry out the requirements of section 4401 of title 10, United States Code, as amended by this section in order to implement this section.

(c) Modification to rights in technical data

(1) Rights in technical data

Section 3771 of title 10, United States Code, is amended—

(A)

in subsection (a)—

(i)

in paragraph (2)(A), by striking or copyrights and inserting , copyrights, trade secrets, ; and

(ii)

by adding at the end the following new paragraph:

(3) Enforcement of certain rights

Regulations prescribed under paragraph (1) may not affect or limit any right described in paragraph (2)(A) or the ability of a contractor or subcontractor to enforce such a right against a third party that has not otherwise obtained a license for such a right from the United States or from the contractor or subcontractor.

(B)

in subsection (b)—

(i)

by amending paragraph (3) to read as follows:

(3) Inapplicability of paragraph (2)

Unless otherwise negotiated, paragraph (2) does not apply to technical data that—

(A)

constitutes a correction or change to data furnished by the United States;

(B)

relates to form, fit, or function (other than detailed manufacturing or process data);

(C)

is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data, including such data pertaining to a major system component); or

(D)

is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure.

(iii)

by amending paragraph (4) to read as follows:

(4) Exceptions to paragraph (2)

Notwithstanding paragraph (2), unless otherwise negotiated, the United States may release or disclose technical data to persons outside the Government, or permit the use of technical data by such persons, if—

(A)

such release, disclosure, or use—

(i)

is necessary for emergency repair and overhaul; or

(ii)

is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government, where such release or disclosure is in the interest of the United States and is required for evaluation or informational purposes;

(B)

such release, disclosure or use is made subject to a prohibition that the person to whom the data are released or disclosed may not further release, disclose, or use such data; and

(C)

the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use.

(iv)

in paragraph (6)—

(v)

in paragraph (7)—

(2) Definitions

Section 3775(b) of title 10, United States Code, is amended to read as follows:

(b) Additional definitions

In this subchapter, the terms external interface , modular open system approach , and module interface have the meanings given, respectively, in section 4401 of this title.

(d) Conforming amendments

(1)

Section 3791(c)(1) of title 10, United States Code, is amended—

(A)

in subparagraph (A), by striking section 4401(b) of this title and inserting section 4401 of this title ; and

(B)

in subparagraph (D)(iv), by striking modular system interfaces (as defined in section 4401(b) of this title) and inserting module interfaces (as defined in section 4401 of this title) .

(2)

Section 4402 of title 10, United States Code, is repealed.

(3)

Section 4403 of title 10, United States Code, is repealed.

(4)

Section 4425 of title 10, United States Code, is amended to read as follows:

4425. Definitions

In this subchapter:

(1)

The term major system platform means the highest level structure of a major weapon system that is not physically mounted or installed onto a higher level structure and on which a major system component can be physically mounted or installed.

(2)

The term weapon system component —

(A)

means a high level subsystem or assembly, including hardware, software, or an integrated assembly of both, that can be mounted or installed on a major system platform through a external system interface (as defined in section 4401 of this title); and

(B)

includes a subsystem, assembly or, module that is likely to have additional capability requirements, is likely to change because of evolving technology or threat, is needed for interoperability, facilitates incremental deployment of capabilities, or is expected to be replaced by another subsystem or assembly described in subparagraph (A).

(5)

Section 804 of the National Defense Authorization Act for Fiscal Year 2021 ( 10 U.S.C. 4401 note) is repealed.