United States Court of Appeals for the Federal Circuit ______________________

FLIGHTSAFETY INTERNATIONAL INC., Appellant

v.

SECRETARY OF THE AIR FORCE, Appellee ______________________

2023-1700 ______________________

Appeal from the Armed Services Board of Contract Ap- peals in No. 62659. ______________________

Decided: February 28, 2025 ______________________

HOWARD WOLF-RODDA, Abrahams Wolf-Rodda, LLC, Potomac, MD, argued for appellant. Also represented by DANIEL BERNARD ABRAHAMS.

ANTHONY F. SCHIAVETTI, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; JOEL BERNARD LOFGREN, DAVID STARK, Commercial Litigation Field Center, United States Air Force, Joint Base Andrews, MD. ______________________ Case: 23-1700 Document: 38 Page: 2 Filed: 02/28/2025

2 FLIGHTSAFETY INTERNATIONAL INC. v. AIR FORCE

Before MOORE, Chief Judge, DYK and CUNNINGHAM, Circuit Judges. DYK, Circuit Judge. When the government acquires products or services from contractors, the government obtains rights to the technical data provided pursuant to the contract. The scope of the government’s rights depends both on how de- velopment of that data was funded and the nature of the data. This case presents questions about the government’s and a contractor’s rights with respect to commercial tech- nical data developed exclusively at private expense under federal acquisition statutes and the Defense Acquisition Regulation Supplement (“DFARS”), 48 C.F.R. § 200, et seq., and the rights of the contractor to place restrictive markings on its technical data. The U.S. Air Force contracted with CymSTAR, LLC (“CymSTAR”), which in turn awarded two subcontracts to appellant FlightSafety International Inc. (“FlightSafety”), to provide flight simulation products and training services. In performing the subcontracts, FlightSafety supplied the government with commercial technical data that included various restrictive markings. The Air Force challenged the restrictive markings. The Armed Services Board of Con- tract Appeals (“Board”) determined that, under the appli- cable statutes and regulations, the restrictive markings were improper. See FlightSafety Int’l Inc., ASBCA No. 62659, 23-1 BCA ¶ 38,245. FlightSafety appeals. We affirm. BACKGROUND In August 2015, the Air Force entered a contract with CymSTAR to support the Training Systems Acquisition III program, “including the development, acquisition, and sus- tainment efforts needed to meet Air Force simulation and training requirements.” 23-1 BCA ¶ 38,245 at 185,704. In October 2018, CymSTAR awarded subcontracts to Case: 23-1700 Document: 38 Page: 3 Filed: 02/28/2025

FLIGHTSAFETY INTERNATIONAL INC. v. AIR FORCE 3

FlightSafety “for the supply and installation of a visual sys- tem replacement for the C-5 Aircrew Training System . . . including image generators, display management systems, and projectors for the C-5 weapon systems trainers at sev- eral Air Force installations in the United States.” Id. FlightSafety’s subcontracts with CymSTAR required FlightSafety to supply specific technical data to the govern- ment. FlightSafety’s subcontracts also incorporated several DFARS clauses that were included in CymSTAR’s agree- ment with the Air Force, two of which are pertinent here: DFARS 252.227-7015 (“Commercial Data Clause”), and DFARS 252.227-7037 (“Validation Clause”). The Commercial Data Clause set forth the govern- ment’s and a contractor’s respective right