Sikorsky: What the GAO Said and Did Not Say About Soliciting Data Rights

The GAO’s decision last week, denying in part and dismissing in part Sikorsky Aircraft Corporation’s much-watched protest of the Air Force’s solicitation to replace the UH-1N helicopter, deals an early (if light) blow to contractors in their fight against the Air Force’s recent data rights grab.[1]  Followers of this blog and readers of the Government Contractor will recall we raised concerns in January about overbroad data rights provisions in recent Air Force solicitations.[2]  The GAO, in Sikorsky Aircraft Corp., B-416027; B-416027.2, May 22, 2018, ultimately endorsed one such provision requiring broad delivery of both technical data and software necessary for operations, maintenance, installation, and training activities (defined in the solicitation as “OMIT Data”), but Sikorsky’s protest did not go down without first getting an important concession from the Air Force.  This concession, and the GAO’s discussion of whether OMIT Data includes source code, are the key takeaways from Sikorsky, and we will discuss them in some length here.  Before we do, some stage-setting is appropriate, in particular because the clauses at issue are confusing.