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Why is a Software License Agreement always done Post-Contract Award?

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It appears that, for commercial IT supplies/services contracts, if software is "purchased," the contractor always submits to the Government after contract award a Software License Agreement.  Why is this?  Why not just require the offerors/vendors to include the Software License Agreement terms in their proposals?  And the Software License Agreements are usually boilerplates that include many prohibited clauses from the POV of the Government, such as indemnification, automatic renewal, choice of law/forum for disputes, etc.  And further, the Software License Agreement must be incorporated into the Contract (by modification).  Yet this seems to be the way it is always done throughout the Government: the Software License Agreements are all handled "after" contract award.  Why is this?

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4 minutes ago, govt2310 said:

Yet this seems to be the way it is always done throughout the Government: the Software License Agreements are all handled "after" contract award.

That is not necessarily a true statement.  I know of some contracts where the license is submitted with the proposal, appropriate modifications made to it pre-award and then the modified license is incorporated as part of the contract at award.  I'm afraid the reason agencies do what you have described is because they have always done it that way.

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And in many procurements, the software license agreement is never incorporated into the contract at all.

I think Retreadfed is right -- in many cases, when the question is why does an office do something in a particular way, the answer is simply that that they have always done it that way.

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  • If at all possible, we use contract vehicles where someone else has done the work and there is a federally-compliant software agreements.  GSA in particular.
  • My office (specializes in IT) usually asks for EULA/ToS as part of proposal.  
  • If I anticipate this will be a problem,  I'll make the software agreement stuff part of presolicitation communications with vendors so they know what to do.
  • We do not accept EULA/ToS with prohibited terms and conditions, or that have other deficiencies such as being blank, inaccurate, or undefined (the agreement consists of links to web pages that don't exist - very common).   
  • We do incorporate EULA/ToS into contract if
    • It was received as part of proposal and 'evaluated' to be compliant & legally & technically acceptable. 
    • The contractor has informed us, pre-award, that they insist on incorporating it.
  • I've incorporated a software licensing agreement into a contract via post-award modification a few times, but only to fix mistakes, never on purpose.
  • Our lawyers have opined that the user's 'click-through' EULA common with most software is probably a bunch of unenforceable nonsense.
  • For most commercial software that isn't big money, we don't go to legal with this stuff.  The Contract Specialist and CO do what they can and we move on.  Nobody wants to get lawyer$ involved in negotiating a $10,000 piece of software that will only be used by a dozen PhDs in their labs.

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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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