govt2310

I found this fascinating thread on whether FAR 52.222-46 applies to FAR 16.505 task order solicitations: So now I am asking, does FAR 52.222-46 apply to FAR Part 12 Commercial Items/Services Solicitations? FAR 12.301(d) and (e), FAR 12.302, and FAR 12.503 lead me to think that FAR 52.222-46 is not required to be included in a commercial type solicitation, but if the CO chooses to include it, the CO can do that. Note, however, the FAR Matrix at FAR 52.301 indicates that FAR 52.222-46 was not intended to be used with Commercial Item ("CI") type of solicitations. So the proviso at FAR 22.1103 saying that the CO must include this clause where the value is > $700,000 and a "meaningful" number of professional employees are involved and it is for a "negotiated contract" doesn't apply to a FAR Part 12 commercial type of solicitation? Note, I have seen GAO decisions involving solicitations that were FAR Part 12 and FAR Part 15, and a dispute over FAR 52.222-46 was at issue, and no one in these GAO decisions tried to say that since the solicitation was FAR Part 12 commercial, then FAR 52.222-46 didn't apply. Hmm.

FAR-flung 1102: Thanks!

Thanks everyone!

FAR 15.206(d) says, if an offeror submits a novel approach that is a departure from the Solicitation Requirements, then the Agency must amend the solicitation and allow all offerors to offer that novel approach as well. I have it stuck in my head that the offeror is supposed to submit "separate proposals," one the complies the Solicitation Requirements, and one that has the "Novel Approach." So if the Agency finds the offeror's novel approach proposal technically unacceptable, then the offeror's other proposal is still in the running. But I cannot find anything in the FAR that says this. Where does it say that the offeror must submit "separate proposals" in this kind of situation?

Jacques: Thanks!

As the OP, I want to say thank you to Jacques, C Culham, and formerfed for their informative posts. All of this is helpful to me. I personally agree with C Culham that it is helpful to look at legislative history.

Retreadfed: I am talking about an IG audit, not a program review.

C Culham: We are talking about a contract for servoces, not a contract for "personal services." Jacques: This DoDI 1100.22 is helpful. Thanks!

Yes, I am thinking of FAR 7.503(c)(20).

FAR 7.503 prohibits an agency from having a contractor "draft" the response to IG audits. So the contractor cannot even "draft" the response where a federal employee reviews the contractor's deliverable and makes the final decisions on the finalization of the response to the IG audit. Does anyone have a different interpretation of FAR 7.503?

Thanks again everyone.

Yes, it is a small business.

Thanks everyone.

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

Thanks everyone!

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.

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.

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?

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.

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?

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).

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.

My question is limited to "can or can't" the Govt do this.

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)?