govt2310

Is ok for a supervisor and his/her subordinate employee to serve on the same Source Selection Evaluation Board (SSEB) and/or Source Selection Advisory Council (SSAC)? So far I have not found any such prohibition, but others in my agency's contracting office are concerned that it does. They contend that an employee might feel pressure to agree with the findings of his/her supervisor. Does anyone have experience with this issue? How was it handled?

Vern, Thanks! I forgot for a moment that Title 41 USC was recodified/renumbered, so 41USC414 is now 41USC1702. Govt2310

What is the difference between the Chief Acquisition Officer v. the Senior Procurement Executive? When I look at the definitions in FAR 2.101, it sounds like the CAO's role is to oversee the actual performance of the acquisition activities, while the SPE's role is to "manage the direction of the acquisition system/policies." However, I am aware that some agencies do follow this interpretation, others do not. Some agencies/Departments swap the roles, so there are SPEs who are not doing policy but overseeing the award and administration of contracts. The FAR 2.101 definitions refer to separate congressional laws, but I looked at those and did not find any further elucidation from them. Can anyone shed light on this? I would like to hear others' experiences with this.

Vern and RetreadFed, Thank you. This helps.

FAR 27.101 states: FAR 27.101 -- Applicability. This Part 27 applies to all agencies. However, agencies are authorized to adopt alternative policies, procedures, solicitation provisions, and contract clauses to the extent necessary to meet the specific requirements of laws, executive orders, treaties, or international agreements. Any agency adopting alternative policies, procedures, solicitation provisions, and contract clauses should include them in the agency’s published regulations. My question is, is FAR 27.101 saying that the requirements to go through the individual deviation or class deviation process are not required for agencies who want to "modify" the FAR 52.227 intellectual property (patents, copyrights, technical data) clauses? DOD of course has put in its DFARS at 227.4 that FAR 27 does not apply to DOD in its entirety. Can anyone tell me the history of how DOD did this? Did DOD obtain a class deviation under FAR 1.4 from the FAR Council? Or did DOD simply just draft its own DFARS regulations for 227.4 and publish as proposed rules in the Federal Register, without going throug the deviation process?

Hmm. What about writing a solicitation to require the contractor to develop software as Open Source Software (OSS), so that the source code is public anyways? I have come across a few articles online that say that DOD and GSA have been trying this in the past several years, but I searched FedBizOpps and cannot find a good example solicitation that explains how such a solicitation/statement of work/tailored clauses would be written. If anyone knows, please enlighten me. And here is the DOD CIO FAQ on OSS: http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx

I don't understand why GSA has made this policy, which appears to restrict the powers set forth in FAR 52.216-22. FAR 52.216-22 clearly states that a task order's option can be exercised before the expiration of the Master IDIQ Contract, and that the completion of the period of performance of the task order with its option shall be completed "within the time specified in the [task] order" (FAR 52.216-22(d). So it is possible for a task order's options to continue on and be completed AFTER the expiration of the Master IDIQ Contract. But the GSA MAS Desk Reference at http://www.gsa.gov/portal/category/100755 restricts this or goes against this by stating that task/delivery order's options can only be exercised provided, among other things, that: "The [task/delivery order's] Options do not extend beyond the period of the Schedule contract, including option year periods." What is the rationale behind this GSA policy? It appears to have no foundation or correlation the FAR. Can anyone shed light on this?

My question was whether it was possible for the government to "own" source code produced during the life of a government contract, developed by the contractor. The article I quote above cites FAR 52.227-17 (specifically, FAR 52.227-17©(1)(ii)) as a way for the government to require the contractor to transfer the ownership, the copyright, of a "special work," to the government.

I found this DOD FAQ about Open Source Software (OSS) that touches upon how it is possible for the Government to make a contractor assign copyright to the Government. The general presumption, though, is that the even software developed at government expense, with federal funds, that the right to try to copyright it belongs to the contractor. http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Can_government_employees_contribute_code_to_open_source_software_projects.3F Q: Can government employees contribute code to open source software projects? Yes, but the following considerations apply: As stated above, software developed by government employees as part of their official duties is not subject to copyright protection in the United States. If a government employee enhances or modifies a (copyrighted) open source software program, the resulting work is a “joint work” (see 17 USC § 101) which is partially copyrighted and partially public domain. The resulting joint work as a whole is protected by the copyrights of the non-government authors and may be released according to the terms of the original open-source license. However, the public domain portions may be extracted from such a joint work and used by anyone for any purpose. For computer software, modern version control and source code comparison tools typically make it easy to isolate the contributions of individual authors (via "blame" or "annote" functions). (See also Free Software Foundation License List, Public Domain) (See also GPL FAQ, Question "Can the US Government release improvements to a GPL-covered program?") Q: Can contractors develop software for the government and then release it under an open source license? In many cases, yes, but this depends on the specific contract and circumstances. Under the "default" DFARS and FAR rules and processes, the contractor often keeps and exercise the rights of a copyright holder, which enables them to release that software as open source software (as long as other laws and regulations are met). For DoD contractors, if the standard DFARS contract clauses are used (in particular DFARS 252.227-7014) then the contractor who developed the software retains the copyright to the software and has the right to release it to others, even if the software was developed exclusively with government funds. In some cases a DoD contractor may be required to transfer copyright to the government for works produced under contract (see DFARS 252.227-7020). If this is the case, then the contractor cannot release the software as OSS without permission, because the contractor doesn't own the copyright. Contractors for other federal agencies may have a different process to use, but after going through a process they can often release such software as open source software. If the contract includes the typical FAR 52.227-14 (Rights in data - general) clause, without any special alternatives or additions, then the contractor must make a written request for permission to assert copyright in works containing data first produced under the contract. As described in FAR 27.404-3, a contracting officer would generally grant such a request. Certain FAR clause alternatives (such as FAR 52.227-17) require the contractor to assign the copyright to the government. Again, if this is the case, then the contractor cannot release the software as OSS without permission, because the contractor doesn't own the copyright. There are many alternative clauses in the FAR and DFARS, and specific contracts can (and often do) have different agreements on who has which rights to software developed under a government contract. The FAR and DFARS specifically permit different agreements to be struck (within certain boundaries). Thus, if there is an existing contract, you must check the contract to determine the specific situation; the text above merely describes common cases. Contractors must still abide with all other laws before being allowed to release anything to the public. Obviously, contractors cannot release anything (including software) to the public if it is classified. The release of the software may be restricted by the International Traffic in Arms Regulation or Export Administration Regulation. The release may also be limited by patent and trademark law. <a name="Q:_Can_the_government_release_software_under_an_open_source_license_if_it_was_developed_by_contractors_under_government_contract.3F"> Q: Can the government release software under an open source license if it was developed by contractors under government contract? In many cases, yes, but this depends on the specific contract and circumstances. Under the usual "default" rules, the answer is "yes" if it was developed for the DoD under the DFARS. Under the "default" rules, the answer is typically "no" if it was developed for under the default FAR rules (used by many other federal agencies) unless the contract transferred the copyright to the government or was modified in some way to permit it. If the contractor was required to transfer copyright to the government for works produced under contract (e.g., because the FAR 52.227-17 or DFARS 252.227-7020 clauses apply to it), then the government can release the software as open source software, because the government owns the copyright. Under the DFARS, which is typically used for DoD contracts, the government can release software as open source software once it receives "unlimited rights" to that software. DFARS 252.227-7014(a)(15) defines "unlimited rights" as "rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so". As noted in "Technical Data and Computer Software: A Guide to Rights and Responsibilities Under Federal Contracts, Grants and Cooperative Agreements" by the Council on Governmental Relations (CAGR), "This unlimited license enables the government to act on its own behalf and to authorize others to do the same things that it can do, thus giving the government essentially the same rights as the copyright owner." In short, once the government has unlimited rights, it has essentially the same rights as a copyright holder, and can then use those rights to release that software under a variety of conditions (including an open source software license), because it has the use and modify the software at will, and has the right to authorize others to do so. If the standard DFARS contract clauses are used (see DFARS 252.227-7014), then unless other arrangements are made, the government has unlimited rights to a software component when (1) it pays entirely for the development of it (see DFARS 252.227-7014((1)(i)), or (2) it is five years after contract signature if it partly paid for its development (see DFARS 252.227-7014((2)). Before award, a contractor may identify the components that will have more restrictive rights (e.g., so the government can prefer proposals that give the government more rights), and under limited conditions the list can be modified later (e.g., for error correction). Where possible, software developed partly by government funds should broken into a set of smaller components at the "lowest practicable level" so the rules can be applied separately to each one. Note, however, that this may be negotiated; if the government agrees to only receive lesser rights (such as government-purpose rights or restricted rights) then the government does not have the rights necessary to release that software as open source software. The rules for many other U.S. departments may be very different. Contracts under the federal government FAR, but not the DFARS, often use clause FAR 52.227-14 (Rights in Data - General). If all defaults are accepted, and no additional alternatives/amendments are added, by default the government does not receive the right to distribute to the public software it paid to develop; see FAR 52.227-14©(1)(iii). (This is actually a special case; the government normally does have the right to public release of copyrighted works it paid to develop.) There are many alternative clauses in the FAR and DFARS, and specific contracts can (and often do) have different agreements on who has which rights to software developed under a government contract. The FAR and DFARS specifically permit different agreements to be struck (within certain boundaries). Thus, if there is an existing contract, you must check the contract to determine the specific situation; the text above merely describes common cases. If the intent of a contract is to develop software to be released as open source software, it is best to expressly include release as OSS as part of the contract. This makes the expectations clear to all parties, which may be especially important as personnel change. Other laws must still be obeyed. Classified information may not be released to the public without special authorization to do so. The release of the software may be restricted by the International Traffic in Arms Regulation, or Export Administration Regulation. The release may also be limited by patent and trademark law.

I am searching for good learning resources for Contract Types, specifically Cost Plus Award Fee (CPAF). I have seen non-DOD solicitations on FedBizOpps that state in Section B that the Offerors are to propose a base fee percentage and an award fee percentage for each and every CLIN, and there appear to be like 20 CLINs listed (Note, I know that DOD now prohibits base fee). I thought that in CPAF contracts the award fee meant a single award fee, but now I am wondering does it mean there are like 20 award fees that need to be calculated? I would really like to find something that is a mathematical example of how the CPAF formula actually works in practice, and the Army JAG School resource online does not give a very detailed example that answers this question or the other questions I have. Can anyone recommend a resource to me, like a training video, a powerpoint slide available to the public, a document with CPAF math formula examples?

The FAR and DFARS clauses for copyright and patent do not expressly address the scenario where the government agency desires to retain ownership of the software developed during the performance of a contract for software development. The FAR and DFARS clauses seem to say, if a contractor is paid to develop software during the life a government contract, at the expiration of the contract, the contractor has ownership or title to the software developed at government expense/funding, but the government gets the right to use the software/data produced ("unlimited data rights"). So my question is, is there any way to lawfully structure a government contract to ensure that the government gets ownership, not just a license, to the data produced, software developed, and the source code, at the end of a contract? How would all this be harmonized with the FAR and DFARS clauses? Would this involve seeking an individual deviation from the FAR and DFARS? There was a similar discussion on Government Data Rights in Wifcon at this link, but I want to expand on it further: http://www.wifcon.com/discussion/index.php?/topic/1337-government-data-rights/page__hl__copyright

Since we don't have a FY13 budget yet, and we are under a CR for the FY12 budget, it appears that, since an agency cannot spend more than what it was budgeted in FY12, and can only spend funds for the purposes expressly allowed for in the FY12 budget, then, since the FY12 budget prohibited spending on A-76 public-private competition studies, that prohibition is still in force under the CR. But what about interservice support agreements (ISSAs), where one federal agency outsources to another federal agency? Is there still a requirement to do a cost comparison study?

I read that the A-76 Competitive Sourcing moratorium for private-public competitions/studies for civilian agencies expired on Sep. 30, 2012. There is a provision in Obama's proposed budget to extend the moratorium, but so far, no action taken on this budget by congress. Can someone tell me, is the moratorium technically lifted or not? Is the requirement to do A-76 studies in effect or not? Also, does anyone have knowledge of whether A-76 studies are required to be done if a federal agency is seeking to "outsource" commercial positions to another federal agency?

Say there is a contract with a KTR for research paper services. The gov't program office wishes to make the KTR publish its research paper to the general public under the KTR's name, not the gov't agency's name. The gov't program office folks want the KTR to put the KTR's name, logo, copyright notice on the research paper and not the gov't agency's name. I believe this is a violation of FAR 27.404-3(a) (see also FAR 27.404-4). First, the gov't program office has not yet provided its rationale for why it wants to do this. I am awaiting their response. No matter the reason why they want to do this, I believe this is a violation of FAR 27.404-3(a) (see also FAR 27.404-4). Also, the contract's SOW does not address this/require this of the KTR. I suspect that what is really going on is that the KTR is the one pushing for permission to publish the paper with its own copyright/logo, but I am not sure yet. Even in the case where a KTR is allowed to assert copyright on a research paper that was produced with fed gov't funds under a fed gov't contract, FAR 52.227-14©(1) sets forth specific rules of how a KTR asserting copyright must acknowledge Gov't Sponsorship, including the Gov't Contract Number, on all copies of the paper published to the public. Has anyone come across this issue before? Your helpful insights are appreciated.

Thanks, Vern! And yes, you are right, I was coming from the perspective of a particular agency with specific rules on "elements". The Army Source Selection Manual uses the terminology "Factors - Subfactors - Elements" in its Chapter 5. http://www.acq.osd.mil/dpap/ccap/cc/jcchb/files/topical/source_selection/guides/assm_feb_09.pdf

I have a technical evaluation question about the difference between subfactors and elements. FAR 15.304(d) states that all "factors and significant subfactors that will affect contract award" shall be stated clearly in the solicitation. In Marine Animal Prods. Int'l, INc., B-247150.2, Ju. 13, 1992, 92-2 CPD P 16, GAO held that a solicitation need not identify each "element" to be considered by the agency during hte course of hte evaluation where such element is intrinsic to hte stated factors or subfactors. So "elements" of technical evaluation factors do NOT have to be stated in the solicitation but the Technical Evaluation Panel is allowed to use these "elements" in conducting its evaluation of the proposals. The difference between subfactors and elements is, for subfactors, the government is required to do adjectival ratings for each subfactors when evaluating proposals. For elements, the government may consider them, but does not have to provide any adjectival ratings to these elements. Subfactors are required to be clearly stated in the solicitation. Elements can be stated in a solicitation, but are not required to be in the solicitation at all. Now here is my question: what happens if a proposal is missing or does not address a particular "element"? Let's assume for this scenario that the solicitation involved actually did clearly state the "elements" of the Technical Evaluation Factor, so the offerors were on notice of what the "elements" were and what they should address in their proposals. Can the technical evaluation team mark this as a "deficiency"? If it was a factor or subfactor, of course the answer is it would be rated as deficient. But what if it is an element?

The few GAO protest decisions that address protests of an agency's decision to make a competitive range cut by reducing the number of proposals for efficiency all REDACT the exact number of proposals before and after the competitive range cut. I am trying to find out what GAO considers "reasonable" when reducing the range for "efficiency." Is 30 proposals cut down to just 10 reasonable? Is 20 proposals cut down to just 3 reasonable? What's reasonable?

Thanks, Vern!

To Retreatfed: I meant travel is a separate CLIN, an ODC, with a NTE ceiling proposed by the offeror in its proposal.

To Joel Hoffman: Thank you!

To Joel Hoffman: This is actually not my question - it is a question from a colleague. So I apologize if I got the fact pattern wrong. I just found out from my colleague, that this is a FAR 15 procurement. It is not categorized as FAR 12 commercial services. You say we should amend the solicitation. If the solicitation has closed, proposals have been received, and the agency is now evaluating, how can the solicitation be amended? Does the agency amend the solicitation and reopen it, extending the date for receipt of proposals? Or is there a way to simply amend the solicitation and not reopen it, but limit the opportunity to submit revised proposals only to the original offerors who submitted timely proposals? I have never heard of doing it the latter way, and it does not seem to be in keeping with the principles of full and open competition.

To Joel Hoffman: Thanks!

Thank you. That sounds like a best practice for future solicitations. But what about the scenario I described about, what if the solicitation has already gone out, proposals have been received, and they are being evaluated. Should the contracting agency just ignore the NTE ceiling price proposed by the offerors in their proposals?

Let's say the solicitation is for auditing services. The solicitation did not specify the travel from where to where exactly, but just said, travel may be required "throughout the United States." For example, it is impossible to determine in advance when and where an audit situation will occur, when the contractor's services will be needed, and for what part of the country. Would it be best to just not evaluate it at all, or to just create an IGCE for est. travel costs, and just assume the costs will be the IGCE for all offerors?

What are the best practices for structuring travel costs in a contract, and what are best practices for evaluating travel in price proposals? I know this is a very broad question. Well, to try to narrow it, assume this is the scenario: The contract type is FFP. The contracting agency is purchasing commercial services. The contracting agency does not know and cannot predict with any certainty the amount and frequency of possible travel. All that is known is that there might be "some" travel required during the life the contract, like a few days a year over a period of performance of 5 years. Travel is currently listed as an ODC, and Section B of the solicitation lists the pricing for travel as "NTE." The contracting agency does not want to define the NTE with a number. The contracting agency wishes to let the offerors/vendors define the NTE ceiling price in their price proposals. The solicitation got posted and closed. The contracting agency received several proposals. Two of the proposals fail to provide an NTE ceiling price for travel at all. The rest of the proposals provide varying amounts for the NTE ceiling price. What should the contracting agency do to be fair to all offerors? Also, in the future, would it be better for the contracting agency to simply take the initiative to set the NTE ceiling price for travel instead of leaving it to the offerors/vendors? Or how about this: can the contracting agency just develop an IGCE for travel, and then in its evaluations, just stick the travel IGCE in as an assumption for each of the proposals?