govt2310

Can the Government (specifically, a Civilian Agency) buy Commercial Software (which was developed at private expense) along with the Source Code? I know that DOD has DFARS 227.7203-1 which says offerors shall not be required to "relinquish" software developed at private expense (and note, the DFARS puts this provision under a section for "noncommercial" software, so it is aimed at noncommercial software that was still developed at private expense, and then there is a different section, DFARS 227.7202-3, that addresses "commercial" software and that section only talks about licensing, not purchase outright, the software). I can find no such provision like FARS 27.7203-1 (cannot require the offeror to "relinquish" software developed at private expense) that applies to civilian agencies. It seems like it is discouraged by FAR 12.212, FAR 27.405-3, and FAR 52.227-19, but it is not forbidden/prohibited. So a Civilian Agency is allowed to issue a Solicitation that requires the contractor to deliver their Commercial Software with Source Code (all of which was developed at private expense and all of which is "commercial" in that they have been selling it to the public for years), right?

Thanks, Neil Roberts!

Nevermind. I found it. It is in DFARS 227.72, concerning Non-Commercial Computer Software, it says DOD cannot require the offeror to "relinquish rights . . . in computer software developed exclusively at private expense . . . " I believe that means source code.

I have a vague recollection that years ago DOD had a DFARS clause or provision that prohibited DOD from requiring a contractor to deliver "source code." Does anyone know what I'm talking about? Can you please remind me what the DFARS citation is?

sjanke: Thanks!

True, technical proposals are just "essay contests" full of promises. But some parts of a technical proposal, or stuff that should be in a technical proposal, are important to put into the final contract. For example, Software License Agreements. These are usually handled post-award during contract administration, except for certain exceptions like DOD (DOD solicitations often require the Software License Agreement to be included in the proposal, listed in the CDRL form, etc.).

Ah, it looks like the Air Force Acquisition Regulations at 5315.209-90 in paragraphs (b) and (c) show a way to incorporate a proposal into the contract. They created a special clause at 5352.215-9005 to put the proposal into Section I, Clauses. Retreadfed: Thanks, I will look at SF 26, Block 17.

I am thinking of a negotiated contract (FAR 15 or FAR 15.505 task order using Tradeoff). I am thinking of something like basic IT services, not a major weapons system. I know the Air Force Acquisition Regulations have a boilerplate clause for "Intent to Incorporate Proposal," but I am wondering if there is something like that in the FAR. Well, all of that just puts the offeror on notice that the Agency intends to incorporate the proposal into the contract. I am asking, but HOW is that done? Is it done by Contract Modification? Again, that just seems messed up to me.

How does an Agency incorporate a technical/price proposal into the final contract at contract award? Is there a FAR clause that can be put into the solicitation for Intent to Incorporate Successful Offeror's Proposal into the Contract? Is this done by a Contract Modification after award? That seems weird.

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.

Retreadfed and ji20874: Ok thank you.

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?

Thanks everyone! This was very helpful. 😀

To FAR-flung 1102: Thanks. The DoD FMR does not address "subscription-as-a-service" or "SaaS" for like access to software online. It only addresses subscriptions to periodicals/publications.

To Don Mansfield: Yes, you are right, the word the statute uses is "publications," not "periodicals." And your point about interpreting "publication" to mean the technological advancement of computer software is interesting. But I would feel better if this interpretation was supported by a GAO decision or a statute or federal regulation. Here's another idea: what about considering a "subscription" to a software (a SaaS deal) to be a "product" instead of a "service"? I realize, the phrase SaaS includes the word "service" (Subscription-as-a-Service). But if the vendor provides the customer with an account/passcode to access the website for the subscription, then once the vendor has done that, then the vendor has "delivered" the "product," so the customer (the agency) must pay the vendor. This would be "paying in arrears" instead of "advance payment," so it is not that this "subscription" is an exception to the general rule of paying in "arrears," but rather, it is paying "in arrears." What do you think? To ji20874: There is no license. I realize what you are talking about. I am aware of the GSA rules allowing for annual software maintenance services with software licenses to be considered either a "product" (pay upon delivery at the beginning of the license period) or a "service" (pay at the end of the year). But with a subscription for SaaS, there is no computer software license.

Example: Say an agency has a contract for a subscription to use a software (Software as a Service or SaaS). The contractor submits the invoice for 100% advance payment up front. Can the government pay this invoice up front? If yes, where does it say that the agency can do that? I'm aware of 31 USC 3324(d) which provides an exception for "periodicals," but that is not the type of "subscription" I am talking about.

Thanks, Bob and Vern!

FAR 15.804-3 was deleted from the FAR a long time ago. It no longer exists. I need to find it to see what it said as of 1989. I think it was added in Federal Acquisition Circular (FAC) 84-35. I looked at the list of FACs on Wifcon, and the list only goes back as far as 1997, when the 1997 "FAR Rewrite" happened. Is there any other archive I can check?

To joel hoffman: Thanks! FAR 15.204-1(b) is exactly what I was looking for.

I am under the belief that Sections L and M in the solicitation "drop out" at contract award. So they are not in the final contract document after award takes place. I can't find an authority that requires this, though. Where does it say this must be done? Is it in the FAR?

Thanks everyone! This was all very helpful.

I remember seeing somewhere, maybe in a GAO decision now lost, that the FAR requires an offeror to notify the agency of the unavailability of a proposed key personnel, even after submission of proposals. But I can't find this in the FAR (I was mainly looking through FAR Part 15 and FAR 52.215-___). Can anyone tell me where it says this in the FAR?

Ah yes, thank you all. The United Marine Int'l LLC GAO decision was what I was thinking of. The Meir Dubinsky COFC decision is also interesting. Thanks again!

I remember a GAO decision that came out years ago where the agency (I think it was the Army or the Air Force) issued a solicitation under FAR Part 12, but did not specify whether it was in conjunction with FAR 13, 14, or 15. A vendor protested (I believe it was a post-award protest, but I may be wrong) that it was reasonable to assume that it was in conjunction with FAR Part 15. The agency treated it as in conjunction with FAR Part 13. The agency made missteps in the solicitation that made it unclear whether the solicitation went with FAR Par t3/14/15. GAO sustained the protest, finding that, if the solicitation fails to specify whether the FAR Part 12 acquisition is in conjunction with FAR Part 13, 14, or 15, then it is reasonable for the potential offerors to assume that it is in conjunction with FAR Part 15. Does anyone remember this GAO decision and what the B number was?

GAO stated in footnote 6 of its decision on Kellogg Brown & Root Services, Inc., B-400614.3, Feb. 10, 2009, that since the agency (the Army) in that case indicated in the FAR 16.505 task order solicitation that it would follow FAR Part 15 for a particular part of the contract formation process, and the agency relied upon decisions interpreting FAR Part 15 in defending its protest, that GAO then looked to FAR Part 15 and the cases interpreting FAR Part 15 in analyzing the issues in KBR’s protest. The KBR protest concerned the protocol for clarifications. It didn’t concern pre-award notice of exclusion from the competitive range. Hmm.