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Data Rights - Minimum set of data / public access


Dash_t11

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Is it possible to issue two separate RFPs – one for the minimum set of data rights and one for public access – making clear that we’d move forward with only one of the two contracts.  Could this lead to a protest?  I think it would be confusing to issue one RFP with two options, an option for minimum set of data rights and an option for public access.  What if a vendor provides a proposal on only one option and another vendor provides proposals on both options?  Perhaps a Statement of Objectives included in the solicitation would be best approach. Appreciate any feedback.  Thank you.

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Knowing only what you wrote in your posting, I like presenting two alternatives (options) in a single solicitation and letting each offeror propose one alternative, the other alternative, or both alternatives.

18 minutes ago, Dash_t11 said:

What if a vendor provides a proposal on only one option and another vendor provides proposals on both options?

I don't see that as a problem.

But if you want two solicitations, just put a note in each one that makes reference to the other, and say that offerors may propose this solicitation, that solicitation, or both solicitations.

Are you ready to issue solicitations?  Robust market research might give you better insights to prepare for the future solicitation(s).  If you are still early in the process, you might not need to decide one solicitation or two yet.

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I do not know if anyone will agree with me but my quick thought went to FAR 52.212-1 if you are intending to use commercial item processes.   Seems it gives you the ability to accept "any item or group of items of an offer" of the proposed solicitation.  I note this as ji raised the idea of options which to me is a little different than the reservation of 52.212-1 that allows the government to award on an item or items.  Relating to ji's comments as well is the fact that you may tailor 52.212-1 based on robust market research.

Now if you are using other than commercial item processes 52.215-1 could be read as not allowing the same leeway and the ability to tailor.  However I am of the belief that one could place, in the schedule of the RFP and proposed contract, language about what I will call award of "any or all items". 

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Carl, I’ve seen RFP’s within one of my former organizations (1990’s) which allowed the government to award one or the other (alternate) choice. These were primarily for construction work within Central and South America.

To me, if the requirements are the same, except for the data rights, I’d go with one RFP, allowing proposers to offer one or both alternates. It’s simpler for both government and industry. 

If either one or two solicitations are used, the government would have to describe its preference and the basis of award anyway.

I agree with ji that market research should provide insight about the extent of industry interest in offering public access and possible pricing differences between minimum and public access.

In guessing that the government would prefer public access, if it is affordable within the budget and reasonably priced.

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Hey, today’s WIFCON Homepage has a link to this article:

 http://wifcon.com/articles/Open Source Guide 2_1_Legal Update_01_2021_Final (1).docx

i don’t know whether this is relevant here or not...

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Bob, would you please consider moving this thread to the Contract Award discussion area?  This thread concerns acquisition planning to discuss a suitable RFP approach. It would be easier to find later in the Contract Award area. I have assumed that the Contract Admin area covers administration of awarded contracts, etc. Am I right or confused?  Thanks 

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@Dash_t11: Do not issue two RFPs, one for each alternative. That may lead to confusion, even if you include cross references in each RFP. Such confusion could lead to trouble for you.

It is not at all unusual to give offerors a chance to submit alternate proposals. See FAR 15.209(a)(2) and FAR 52.215-1, Alternate II. Do not use the standard version of Alternate II. Write a version of your own that describes the alternatives you are willing to entertain with respect to data rights. You can permit offerors to chose one alternative or submit proposals based on both, leaving it to you to choose which you like best. Be very clear. You should state whether you prefer one to the other.

If an offeror submits proposals for each of the alternatives, just evaluate each as a separate proposal. 

I don't know that there is a prohibition against the issuance of two RFPs for the same requirement at the same time, but it would be unorthodox, to say the least.

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I know the initial question was about issuing 2 RFPs vs 1, but I recommend consulting legal counsel regarding the plan to ask offerors to submit proposals granting different levels of data rights.

10 U.S.C. § 2320 - Rights in technical data, paragraph (a)(2)(H), prohibits the government from requiring a contactor to relinquish rights in technical data as a condition for award of a contract.

(And welcome back Vern!)

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