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Everything posted by govt2310

  1. Here the answers to the questions posed by ji20874. Is the original contractor still a legal entity? YES Is the original contractor still performing the work? Or is a putative successor-in-interest performing the work? Or has work stopped? THE ORIGINAL CONTRACTOR IS STILL PERFORMING THE WORK Supplies or services? Is the work being performed at a Government location? IT IS SERVICES AND WORK IS PERFORMED OFFSITE Are you still making payments to the original contractor? Or to the putative successor-in-interest? STILL MAKING PAYMENTS TO THE ORIGINAL CONTRACTOR The phrase "going bankrupt" has no meaning. Has the original contractor filed actually for bankruptcy? Have you received a bona fide notice of bankruptcy filing? Has any judgment been made? NO NOTICE FROM THE KTR ON THE BANKRUPTCY, SO IT IS UNCLEAR TO THE CO WHETHER THE ORIGINAL CONTRACTOR HAS FILED FOR BANKRUPTCY OR NOT Were any progress payments or other contract financing payments made to the original contractor? NO Have you spoken with a competent attorney? YES
  2. Question: if FAR Part 42 says that a novation is NOT "required" under the circumstances (a "stock purchase" instead of an "asset purchase"), how can the USGOV get the CONTRACTOR to do the novation? It is my general experience that once contractors see in the FAR that a novation is not "required," they will refuse to do one.
  3. To Neil Roberts: FAR 42.1204 talks about an "asset purchase" where there is a "transfer of assets" to another entity. What if it is not an asset purchase, but instead a "stock purchase"? Well, FAR 42.1204(b) states that a novation is not required if the change in ownership is the result of a "stock purchase." But still, I see conflicting information from other sources like articles citing cases from various courts.
  4. FAR 42.12 covers Novations. There is an exception for "stock purchases" which are reorganizations by "operation of law." What if a contractor is going bankrupt, engages in a merger/acquisition where by another company buys all their stock ("a stock purchase"), and then tells the government that a novation is not necessary? Is this true?
  5. To Neil Roberts: That's a good point. But it looks like that is "policy," that it is saying agencies "may choose" to develop custom software etc. It does not say there is an outright prohibition from purchasing commercial software that was developed at private expense. Note, DOD put into DFARS a clause that does indeed prohibit the purchasing of commercial software that was developed at private expense (it specifically forbids DOD contracts from requiring delivery of the source code). But civilian agencies don't have such a clause, so far as I know.
  6. Ah, you wrote, "except for things like giving it away to other customers . . . ." What if the agency wants to be able to "share" the source code with other contractors, in fact, make it OSS and available to the public?
  7. formerfed, Sorry for not being clear. I didn't know there was a way to buy a "license" that comes with the "source code." That's usually not "customary" in the marketplace for commercial software. So I think I mean the agency wants to "buy" the software with source code (take ownership from the contractor).
  8. Neil Roberts: Thanks! My experience since 2012 is that there are agencies out there that are still grappling with this issue. There are still agencies using legacy systems/software.
  9. My question is limited to "can or can't" the Govt do this.
  10. C Culham: Yes, I know of that cio.gov link to the OMB Memo where OMB says that agencies that purchase "custom software" developed at Government Expense must make the software "OSS" so that it is available to other agencies across the Government. But what about software that is already in existence, was developed at private expense, and the Government just wants to outright purchase that software (not get a license, but just buy the entire software with source code)?
  11. Can the Government (specifically, a Civilian Agency) buy Commercial Software (which was developed at private expense) along with the Source Code? I know that DOD has DFARS 227.7203-1 which says offerors shall not be required to "relinquish" software developed at private expense (and note, the DFARS puts this provision under a section for "noncommercial" software, so it is aimed at noncommercial software that was still developed at private expense, and then there is a different section, DFARS 227.7202-3, that addresses "commercial" software and that section only talks about licensing, not purchase outright, the software). I can find no such provision like FARS 27.7203-1 (cannot require the offeror to "relinquish" software developed at private expense) that applies to civilian agencies. It seems like it is discouraged by FAR 12.212, FAR 27.405-3, and FAR 52.227-19, but it is not forbidden/prohibited. So a Civilian Agency is allowed to issue a Solicitation that requires the contractor to deliver their Commercial Software with Source Code (all of which was developed at private expense and all of which is "commercial" in that they have been selling it to the public for years), right?
  12. Nevermind. I found it. It is in DFARS 227.72, concerning Non-Commercial Computer Software, it says DOD cannot require the offeror to "relinquish rights . . . in computer software developed exclusively at private expense . . . " I believe that means source code.
  13. I have a vague recollection that years ago DOD had a DFARS clause or provision that prohibited DOD from requiring a contractor to deliver "source code." Does anyone know what I'm talking about? Can you please remind me what the DFARS citation is?
  14. True, technical proposals are just "essay contests" full of promises. But some parts of a technical proposal, or stuff that should be in a technical proposal, are important to put into the final contract. For example, Software License Agreements. These are usually handled post-award during contract administration, except for certain exceptions like DOD (DOD solicitations often require the Software License Agreement to be included in the proposal, listed in the CDRL form, etc.).
  15. Ah, it looks like the Air Force Acquisition Regulations at 5315.209-90 in paragraphs (b) and (c) show a way to incorporate a proposal into the contract. They created a special clause at 5352.215-9005 to put the proposal into Section I, Clauses. Retreadfed: Thanks, I will look at SF 26, Block 17.
  16. I am thinking of a negotiated contract (FAR 15 or FAR 15.505 task order using Tradeoff). I am thinking of something like basic IT services, not a major weapons system. I know the Air Force Acquisition Regulations have a boilerplate clause for "Intent to Incorporate Proposal," but I am wondering if there is something like that in the FAR. Well, all of that just puts the offeror on notice that the Agency intends to incorporate the proposal into the contract. I am asking, but HOW is that done? Is it done by Contract Modification? Again, that just seems messed up to me.
  17. How does an Agency incorporate a technical/price proposal into the final contract at contract award? Is there a FAR clause that can be put into the solicitation for Intent to Incorporate Successful Offeror's Proposal into the Contract? Is this done by a Contract Modification after award? That seems weird.
  18. General.Zhukov: Thank you. Yes, it makes sense to me that the software license agreement needs to be part of the proposal so that the agency can evaluate it. That's the way it should be.
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