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 four years after the company 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 government receives “government purpose rights” that 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 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 government’s ability to use, modify, reproduce, release, perform, display, or disclose nine Verification Simulation (VSim) software products that Lockheed Martin asserts it developed exclusively at private expense (Defense Daily, June 10, 2022).

The VSim software is for the high-fidelity Fighter-In-A-Box (FIAB) F-35 simulators that are part of the F-35 Joint Simulation Environment (JSE) to test the fighter’s performance against high-tech adversaries. Delays in the final 64 runs for JSE pushed back the target for completion of F-35 initial operational test and evaluation until this summer, but the F-35 program has said that the nine VSim algorithms are not needed for the JSE testing.

The crux of the legal dispute had been whether the government or Lockheed Martin funded the development of the VSim algorithms, but last December ASBCA Judge Elizabeth Witwer said that the Navy is now arguing that VSim does not meet the definition of “developed,” as VSim has not functioned as 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 in the Joint Strike Fighter contract, awarded in October 2001, for Lockheed Martin to deliver VSim software to the government, and the Navy then sought to amend the contract to require the company to deliver certain software that the company was developing. Lockheed Martin then contended that such rights should 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 in 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 Analysis (IAPPA) internal development team who was “the primary author” of IAPPA’s LM Aero Containers software library.

In the declaration to ASBCA, Gibbs asserted that “he personally tested the software ‘after writing the source code in order 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’ so 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 maintain records of development unless and until the computer software is identified as a deliverable,” Witwer wrote. “As a result, LM Aero contends that it was not required to maintain records until May 2018, when the software became a deliverable under the contract…This date, according to LM Aero, was long after the software items were developed.”

The Navy contends that the court should allow it to hire another contractor for the VSim software and that the “specialized license rights” have locked in Lockheed Martin as the VSim provider.

“To the extent the Navy is concerned that it has licensed software that cannot reasonably be expected to perform its intended purpose, it is unclear why the remedy for the failure to supply a deliverable under the contract would be a broadening of the license rights granted to the government, rather than one of the well-established contractual remedies available to the government when a contractor provides non-conforming goods or services,” Witwer wrote in her opinion last Dec. 9. “In any event, as the moving party, the Navy bears the burden to show that it is entitled to judgment as a matter of law. We conclude that the Navy has failed to satisfy its burden.”

The next issue for the court to decide in 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 is a genuine dispute as to whether the nine software items are developed.”

“We further conclude that, even were we to find that the software in question is not developed, the Navy has failed to establish that it is entitled to judgment as a matter of law,” she wrote. ” Thus, we deny the Navy’s motion for summary judgment.”