Flightsafety Int’l Inc. v. Sec’y of the A.F

Authored by: Jeremy J. Gustrowsky

In a significant decision for government contractors, the Federal Circuit in FlightSafety Int’l Inc. v. Secretary of the Air Force affirmed that the U.S. government has broad, “unrestricted rights” to use, share, and disclose certain technical data—specifically, data needed for operation, maintenance, installation, or training (OMIT data)—even when that data was developed entirely at private expense. This case arose when FlightSafety, a subcontractor providing flight simulation systems to the Air Force, placed restrictive legends on technical drawings it delivered, seeking to limit how the government could use and share that information.

The Air Force challenged these restrictive markings, arguing they improperly limited the government’s rights under federal procurement rules. The Armed Services Board of Contract Appeals agreed with the Air Force, and the Federal Circuit has now affirmed that decision. The court clarified that, under the relevant statutes and Defense Federal Acquisition Regulation Supplement (DFARS) clauses, the government’s “unrestricted rights” to OMIT data are essentially the same as “unlimited rights” it receives for data developed with government funding. Importantly, the court rejected FlightSafety’s argument that the government could only challenge the funding source of the data, holding instead that the government can challenge any restrictive marking that limits its rights, regardless of who paid for the data’s development.

The court also reviewed the specific legends FlightSafety used, including references to “proprietary” and “confidential” information, and found these were improper because they contradicted the government’s rights to freely use and disclose the data. Even a copyright notice was found to be misleading if it did not clearly acknowledge the government’s license to use the data. The decision sends a clear message: contractors must ensure that any restrictive markings on technical data accurately reflect the government’s rights under the contract and applicable law.

This ruling is a reminder for companies doing business with the government—especially in defense contracting—that marking technical data with overbroad or confusing restrictions can backfire. Contractors should carefully review their data marking practices to avoid disputes and ensure compliance with federal regulations.