The F-35 Joint Program Office and Lockheed Martin [LMT] are coming to terms on data rights language to be included in the Lot 15-17 contract for the fighter, the JPO said.

“We continue to work with Lockheed Martin Aeronautics to ensure the government has the technical data and computer software for F-35 that the U.S. government needs to maintain readiness and develop an affordable long-term sustainment strategy,” the program said in response to an email request for insights on the data rights language in the upcoming contract.

The Pentagon on July 19 said that the F-35 JPO and Lockheed Martin had entered into a “handshake agreement” on July 18 for up to 375 F-35s in Lots 15 to 17 (Defense Daily, July 21).

DoD acquisition chief William LaPlante said that DoD would provide further details of the contract upon award.

“Over the past three months, the F-35 Joint Strike Fighter Joint Program Office and Lockheed Martin made significant progress in negotiations,” DoD said. “The team deliberately addressed significant real-world challenges—including the COVID-19 pandemic, associated supply chain impacts and workforce disruptions, and inflation—to reach a handshake agreement. While the handshake agreement is on a basis of 375 aircraft, the final aircraft quantity may change based on any adjustments made by the U.S. Congress in the Fiscal Year 2023 budget and any orders requested by international partners.”

The F-35 program is pursuing contract award for Lots 15 and 16 “as a high priority,” while the program plans to exercise a contract option for Lot 17 after Congress passes the fiscal 2023 defense appropriations bill, DoD said.

The contract for Lots 15-17 would represent a significant step forward for Lockheed Martin, which could receive $30 billion for the new jets, and for the program, which has encountered maintenance, spare parts delivery, and mission capability rate problems for the fighter.

Data rights has been another significant issue for the F-35 program.

While U.S. Air Force Secretary Frank Kendall has said that he has instructed his staff to ensure that the government owns the data rights on future programs, industry has a significant data rights territory on the tri-service and international F-35–a contract that Lockheed Martin won in 2001.

A 2019 data rights dispute between Lockheed Martin and the F-35 program lingers in the Armed Services Board of Contract Appeals (ASBCA) (Defense Daily, June 10).

In 2019, the Defense Contract Audit Agency ruled that Lockheed Martin did not develop nine algorithms solely with its own funds and thus did not have data rights to the algorithms, and the company appealed the decision to ASBCA.

The development of the F-35 Joint Simulation Environment (JSE) is not dependent on those nine algorithms, however, DoD has said.

The case is before ASBCA Judge Elizabeth Witwer.

“We do not know when the appeal will be resolved as a hearing has not yet been scheduled before the [ASBCA],” DoD said last month. “The administrative judge assigned to the appeal recently granted a motion to stay (or pause) the proceedings until the board rules on pending dispositive motions.”

Delays in the final 64 runs for JSE mean that F-35 initial operational test and evaluation will not end until next summer. The JSE is to replicate threats that high-tech adversary systems may pose to the F-35. Medium-fidelity simulators and high-fidelity Fighter-In-A-Box (FIAB) simulators are critical elements of the JSE.

The FIAB simulators are for operations in dawn, day, dusk and nighttime Out-The-Window visual scene conditions provided by a SpectraView 2.5 meter radius spherical display screen dome with the pilot’s eye point at the dome’s visual center. JSE testing for F-35s and sixth-generation fighters is to occur at Edwards AFB, Calif., and Nellis AFB, Nev.

The nine algorithms in question are for FIAB.

In November, 2019, the F-35 program told Congress that Lockheed Martin declined to agree to allow the program government purpose rights to the nine algorithms, and, as a result, the program negotiated “special license rights” as a substitute.

“Government purpose rights” normally allow the government to use technical data and computer software within the government without restriction for five years and allow the government to release the tech data and software to third parties for government purposes, such as re-procurement, within that time period. Such “government purpose rights” typically revert to unlimited rights after that five-year period.

The Pentagon “is able to access Lockheed Martin-owned [F-35] data that it has ‘government purpose rights’ to,” DoD said last month. “However, technical data related to many of the components of the F-35 platform is owned by the OEM, not Lockheed Martin and as such, Lockheed Martin cannot provide access to that data. The department has contractual rights to the technical data for some components; for those that the department does not have contractual rights to, the department is working either through Lockheed Martin or directly with the OEM to get access to the technical data the department needs to support the F-35 sustainment enterprise.”