To modify the definition of custom-developed computer software.

SA 1063. Mr. TILLIS submitted an amendment intended to be proposed to
amendment SA 1003 proposed by Mr. McCain (for himself and Mr. Reed) to
the bill H.R. 2810, to authorize appropriations for fiscal year 2018
for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

In section 886, beginning in the new section 2320a of title
10, United States Code, as added by subsection (a)(1) of such
section 886, strike subsection (c) of such section 2320a and
all that follows through the end of subsection (d)(1) of such
section 886 and insert the following:
``(c) Applicability to Existing Software.--The Secretary of
Defense shall, where appropriate--
``(1) seek to negotiate open source licenses to existing
custom-developed computer software with contractors that
developed it; and
``(2) release related source code and technical data in a
public repository location approved by the Department of
Defense.
``(d) Definitions.--In this section:
``(1) Custom-developed computer software.--The term
`custom-developed computer software'--
``(A) means human-readable source code, including
segregable portions thereof, that is--
``(i) first produced in the performance of a Department of
Defense contract, grant, cooperative agreement, or other
transaction; or
``(ii) developed by a contractor or subcontractor
exclusively with Federal funds (other than an item or process
developed under a contract or subcontract to which
regulations under section 9(j)(2) of the Small Business Act
(15 U.S.C. 638(j)(2)) apply); and
``(B) does not include Commercial Off-The-Shelf software,
or packaged software developed exclusively at private
expense, whether delivered as a Cloud Service, in binary
form, or by any other means of software delivery.
``(2) Technical data.--The term `technical data' has the
meaning given the term in section 2302 of this title.''.
(2) Clerical amendment.--The table of sections at the
beginning of such chapter is amended by adding after the item
relating to section 2320 the following new item:

``2320a. Use of open source software.''.

(b) Prize Competition.--The Secretary of Defense shall
create a prize for a research and develop program or other
activity for identifying, capturing, and storing existing
Department of Defense custom-developed computer software and
related technical data. The Secretary of Defense shall create

[[Page S5760]]

an additional prize for improving, repurposing, or reusing
software to better support the Department of Defense mission.
The prize programs shall be conducted in accordance with
section 2374a of title 10, United States Code.
(c) Reverse Engineering.--The Secretary of Defense shall
task the Defense Advanced Research Program Agency with a
project to identify methods to locate and reverse engineer
Department of Defense custom-developed computer software and
related technical data for which source code is unavailable.
(d) Definitions.--In this section:
(1) Custom-developed computer software.--The term ``custom-
developed computer software''--
(A) means human-readable source code, including segregable
portions thereof, that is--
(i) first produced in the performance of a Department of
Defense contract, grant, cooperative agreement, or other
transaction; or
(ii) developed by a contractor or subcontractor exclusively
with Federal funds (other than an item or process developed
under a contract or subcontract to which regulations under
section 9(j)(2) of the Small Business Act (15 U.S.C.
638(j)(2)) apply); and
(B) does not include Commercial Off-The-Shelf software, or
packaged software developed exclusively at private expense,
whether delivered as a Cloud Service, in binary form, or by
any other means of software delivery.
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