Don’t Set Your Hair on Fire Yet over Data Rights Challenges Under the FY 2019 NDAA

Congress recently authorized the Department of Defense’s spending for Fiscal Year 2019 and, unsurprisingly, attached some strings in the guise of acquisition reform.  One of these is a modest change to the burden of proof in a rarely used exception to a data rights challenge.  This exception now allows the DOD to override the challenge process and to release a contractor’s data when there are “compelling mission readiness requirements” rather than “urgent and compelling circumstances,” which was the existing standard.  Although this has caused consternation in some quarters, we think that, as a practical matter, the effects of this change are not likely to be significant.  Contractors should not be alarmed.  Here is how this change came about and why not to worry too much.