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What has been everyone's experience in dealing with companies demanding we sign their normal commercial maintenance or service agreements or not providing service.

I am referring to agreements for cell phone, blackberry and internet service mainly but some maintenance contracts on things like copier service and hotels as well. I was always told we were not to sign such agreements but the companies are becoming more demanding as time goes on. If they expect John Q Public to sign it before they get service, why should we not sign it? I am thinking it should be signed and attached to the SF 1449 that has our terms and thier signature.

What has everyone else been doing on this issue?

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At my former office our attorneys advised us not to sign the standard terms of an internet provide as it gave their state and local courts authority over the Federal Government rights. We refused to sign their document and offered our own terms, which they agreed to in 2008. In 2009, they forgot that they agreed to those terms, and resent the original boilerplate terms for us to sign again, and we again refused. They, without warning, disconnected the service, and the Deputy Assistant Director unleashed hades on them, after which they restored the service and last I heard, accepted the standard commercial terms and conditions of the PO they signed.

If you look closely, you will see that their T&C's conflict with the T&C's in your SF 1449. In order of presidence, the contract rules, but how will the contractor see it when their T&C's say one thing and the contract says another? Is it not best to resolve those conflicts up front rather than potentially pitting one court against another?

And when John Q. Public becomes a sovern authority, he might consider what he signs a bit more carefully.

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If the vendor insists on having their agreement signed and you want to do business with them, then you need to sign it and make it part of your order/contract. The tough part is going through and reconciling the conflicts in langauge. But I agree with dwgerald's advice that it's best to do this upfront and avoid potnetial probelsm down the road.

Most of the commodities mentioned (cell phones, blackberries, copiers, and internet service) are good candidates for consolidated needs so you might be able to do one contract and get the clauses straight for a singel instance.

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This is also a common practice with software licenses and other agreements for online services and/or subscriptions. Most do, as others have said, conflict with a number of federal government requirements. Besides the conflict of law provisions mentioned earlier, I've found that many also include automatic renewal clauses--that is, unless you affirmatively tell them you aren't renewing, they do it automatically. Others try to limit the government's right to terminate or impose damages on us for various breaches or misuse. Of course, 99.9% of the time, it doesn't matter. It's that .01% that worries attorneys. If a company wants the government's business badly enough, it should agree to a clause stating, essentially, that the user/subscriber/software agreement governs only to the extent that it doesn't conflict with the FAR or any other provisions of federal law. Remember, FAR 12.3 does tell us that, "to the maximum extent practicable," we should include only those clauses required to implement federal law or determined to be consistent with customary commercial practice. So you have to strike a balance between the two.

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  • 5 weeks later...

One of my first steps when dealing with companies that insist the Government sign their licensing agreement is to direct them to the commercial data rights clauses and ask them what is it that object to or what do the FAR clauses not cover. Sometimes that is enough for them to leave things as they are. OR, they may request a line or two be added to "enhance" an interpretation that really does not impact the Government's rights.

More of a concern is finding out that the end users are signing these agreements and sending them back to the company. It's always fun to inform the company that the person who signed the agreement is not authorized to commit the Government. Good times. Good times.

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