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dak9204

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  1. dak9204

    COTS Services?

    Thanks. I guess you could buy a training, but buying a trainer would violate FAR 52.222-50 (Combating Trafficking in Persons). 😉
  2. dak9204

    COTS Services?

    I respect your interpretation, but I don't believe that the Federal Register notice explanation answers the question. The language you quote makes a distinction between the performance of an identifiable task rather than furnishing an end item of supply. I think this makes my point that not all "services" (as that term is used commercially) are the same. In 2015 the DoD published an interesting whitepaper entitled "Is Commercial Off-the-Shelf Software Maintenance a Supply or Service? http://www.esi.mil/download.aspx?id=6144 (see pp 7-8, also citing FAR 37.101). If a service is accompanied by the delivery/use of intellectual property (e.g., bug fixes, patches, code), it would seem to be considered an item of supply. The question may also be answered by how the Government purchases the "service" - if it's paid upfront, it's often deemed a product, but if paid in arrears it's a service.
  3. dak9204

    COTS Services?

    Thanks Neil. Are all "services" treated equally under the FAR? For example, support & maintenance services for software/hardware are not the same as consulting services billed by labor hour. The former seem to be more in the category of an item of supply, since they deliver intellectual property rights in the form of bug fixes, patches, updates, upgrades, etc... Consulting services do not.
  4. dak9204

    COTS Services?

    Yes and no. The term "commercial item" also includes services (hence, services can qualify as an "item" under that definition). Likewise, under FAR 2.101 "supplies" "means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing." Yet installation services fall under paragraph (5) of the definition of "commercial item" (not paragraph (1) as cited in the definition of COTS).
  5. dak9204

    COTS Services?

    This could be a dumb question, but I would be curious to know if services can be considered COTS (not just a commercial item). FAR 2.101 defines "a commercially available off-the-shelf" item as: (1) Means any item of supply (including construction material) that is— (i) A commercial item (as defined in paragraph (1) of the definition in this section); (ii) Sold in substantial quantities in the commercial marketplace; and (iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products. Noting the definition appears to limit COTS to paragraph (1) of the definition of a "commercial item," it would appear that commercial services can never qualify as COTS. Am I reading this correctly? What if you sell a technology item that qualifies as COTS, but also installation services, maintenance services, repair services, training services and other services ancillary to the sale of that technology item? Would the fact that you sell such services as a package with the COTS item take it out of the definition of COTS?
  6. dak9204

    FAR 52.204-21

    Thank you. A quick Google search for the Beseler decision turned up some relevant DoD materials, an excerpt of which is below: http://www.dtic.mil/dtic/tr/fulltext/u2/a469274.pdf Clauses included in a contract in violation of statutory or regulatory criteria will be read out of a contract. Carrier Corp., GSBCA No. 8516, 90-1 BCA ¶ 22,409; Charles Beseler Co., ASBCA No. 22669, 78-2 BCA ¶ 13,483 (where contracting officer acts beyond scope of actual authority, Government not bound by his acts)
  7. dak9204

    FAR 52.204-21

    Quick follow up to this thread. Could anyone point me in the direction of a court decision or FAR Council notice about contracting officers including clauses that should not have been included in a prime contract? Specifically, what remedy (or argument) could be made if a contracting officer included FAR 52.204-21 in a contract for the sale of COTS products/services? I found the following Wifcon thread on the concept of self-deleting FAR clauses:
  8. dak9204

    FAR 52.204-21

    Thank you Matthew and Vern.
  9. dak9204

    FAR 52.204-21

    Vern, Thanks for your reply. I've found your answers to numerous questions to be very helpful over the years. I see your point about implying the word "necessary" in the first part of the definition of FCI. Unfortunately, I've seen several COs insist on including FAR 52.204-21 in prime contracts because they are unaware (or ignore) the COTS exemption, and commercial sales organizations will simply agree in order to close a deal. My question was in this context and if the clause could be deemed self-deleting if improperly included by a CO.
  10. dak9204

    FAR 52.204-21

    As a follow on question, even where FAR 52.204-21 is included in a prime contract or subcontract for a "commercial item," could an argument be made that it still would not apply? The clause states that Federal contract information means information, not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government, but not including information provided by the Government to the public (such as on public Web sites) or simple transactional information, such as necessary to process payments. FAR 52.204-21 could be read that the FCI must be necessary to develop or deliver a product or service to the Government. If a company already sells access to an information system to its commercial customers, this means that any information provided by the government might never qualify as FCI because it's not necessary to deliver that service to the government. I'm aware that FAR 52.204-21 represents a baseline set of security controls, and government customers are free to impose additional controls (e.g., NIST SP 800-171 for CUI; NIST SP 800-53 r4 for FISMA High, etc....) However, it would seem that a government customer could be in for a rude awakening if it relies only on FAR 52.204-21 in the acquisition of a commercial item.
  11. dak9204

    FAR 52.204-21

    Thank you.
  12. dak9204

    FAR 52.204-21

    Maybe I missed it, but how does FAR 12.302(d) apply? There doesn't appear to be a FAR 12.302(d)(3). In regards to FAR Subpart 4.19, I'm still not clear why it doesn't contain a COTS exemption in the same way as FAR 52.204-21(c). Why would there be a COTS exemption for subcontracts, but not a COTS exemption for prime contracts?
  13. dak9204

    FAR 52.204-21

    I did a search of the forums on discussions of FAR 52.204-21, but did not find an answer to my specific question, so here goes. FAR 52.204-21(c) states that "The Contractor shall include the substance of this clause, including this paragraph (c), in subcontracts under this contract (including subcontracts for the acquisition of commercial items, other than commercially available off-the-shelf items), in which the subcontractor may have Federal contract information residing in or transiting through its information system." Accordingly, a prime contractor does not need to flow down FAR 52.204-21 to a subcontractor of COTS items. However, in regards to the prime contract, FAR 4.1903 states that "The contracting officer shall insert the clause at 52.204-21, Basic Safeguarding of Covered Contractor Information Systems, in solicitations and contracts when the contractor or a subcontractor at any tier may have Federal contract information residing in or transiting through its information system." There is no exemption for a prime contractor that sells a COTS item. Hopefully the answer isn't obvious, but can anyone reconcile this discrepancy?
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