Fara Fasat Posted October 9, 2013 Report Share Posted October 9, 2013 Situation: Contractor makes commercial product. Contractor occasionally upgrades software and sends to some customers for evaluation on products, using its standard evaluation agreement - no cost, use as-is, return when evaluation is over, provide feedback. Contractor wants to have government customer evaluate latest upgrade also. 1. Since this is not an acquisition, would anything in the FAR apply? 2. Is there any reason the government could not sign the agreement, assuming nothing is inconsistent with federal law, such as indemnification? 3. Can government sign up to a standard choice of law clause with just state law? Thoughts/comments appreciated. Link to comment Share on other sites More sharing options...
C Culham Posted October 9, 2013 Report Share Posted October 9, 2013 These are just quick thoughts without any research or citations to provide. You agency’s authorities regarding grants/cooperative agreements may dictate whether an agreement can be vehicle to make the deal. Why would there be anything to sign? Remember common law, if it is in writing it might just be considered a “contract” or at least equal to a “contract” no matter what moniker everyone wants to hang on it. Out there thought wise but why couldn’t it be a FAR acquisition that has something other than dollars as consideration? Link to comment Share on other sites More sharing options...
Fara Fasat Posted October 11, 2013 Author Report Share Posted October 11, 2013 Thanks Carl. I hope I can clarify this some. I really don't think this is an acquisition. The software is being "loaned" to the agency for evaluation purposes, and it gets returned after the evaluation. Yes, we do want the tester/customer to sign the agreement. Of course it's a contract; contracts aren't just for acquisitions. We want to make sure the customer only uses it for evaluation purposes; returns after evaluation; destroys all copies; etc. We have an evaluation agreement that we use with commercial customers. Just wondering what the government can sign up to, since this would not be a standard FAR-based contract. Link to comment Share on other sites More sharing options...
ji20874 Posted October 11, 2013 Report Share Posted October 11, 2013 C Culham asks a good question -- who will sign the contract? Probably not a GS-1102 contracting officer -- he or she is limited to the FAR and agency supplements. The FAR won't apply -- there is no expenditure of appropriated funds. A bailment agreement might be a possibility -- a bailment for the mutual benefit of both parties -- the bailor benefits by getting the feedback and the bailee benefits by getting free use of the chattel. Would this be seen as augmentation of an agency's appropriation? I don't know. Should Government employees be using their official duty time to be evaluating private sector products? I don't know. Who would be providing the feedback -- the agency as an agency or the employee in a personal capacity? I don't know. Will the bailor use the Government agency comments in testimonials in advertising? I don't know. Who in a Government agency would willingly commit the agency to be bound under state law? I don't know. I'm just asking questions without providing answers, but I hope it is helpful... Link to comment Share on other sites More sharing options...
Fara Fasat Posted October 16, 2013 Author Report Share Posted October 16, 2013 ji - good questions. Those are issues that will have to be resolved in the agreement. The contractor just wants feedback, so would have no objection to restrictions on the use of the evaluation. I agree that a bailment might be the closest thing, and would probably serve as a good template. There is a benefit to the government. Without giving away too much, the government owns many units of the hardware, and upgraded software would benefit any user - government or commercial. Can state law apply if it's not an acquisition? Don't know, that's why I'm asking. Link to comment Share on other sites More sharing options...
C Culham Posted October 16, 2013 Report Share Posted October 16, 2013 Fara - With your most recent question I think you have entered the world of "ask legal counsel" if you are going continue to pursue as other that a procurement under the FAR or agreement under the standards of the Federal Grants and Cooperative Agreement Act. I say this for the reason that if under FAR or the GCAA there is probably adequate guidance, including case law, to form reasonable conclusions on how to proceed but even in these cases legal counsel seems advisable. I will close out with the following…. Authority - Regardless of how you might be pursuing the effort who has the authority in your agency to sign such an arrangement. Many might "think" that they do but do they really? Procurement - I know this is dead in your mind and ji2 has weighed in as well but I will just raise the question are you sure? Procurements can be for "loaning" of sorts can't they? After all you can rent or lease stuff of all sorts under the FAR. This document regarding “no cost contracts” is not spot on but might help wade through the waters further as you pursue the matter. In my read I was struck by the implied absolute that there is in fact “zero” cost liability to the Federal agency. http://www.gao.gov/special.pubs/appforum2008/nocostcontracts.pdf Conflict of Interest/Procurement Integrity – I left this alone in the beginning but your further information has brought it back to my mind. So the software is provided for free to evaluate, the use benefits the Government, and I next anticipate that if the software is “great” the Government may in turn then buy the tested software. If the last is true it raises a red flag for me! Link to comment Share on other sites More sharing options...
BikeJAG Posted November 13, 2013 Report Share Posted November 13, 2013 I wish the GAO would have chimed in with better guidance since 2008. In any event, no pun intended, since their decision concerned event planning services and the "no-cost" really was a recapture of fees for conferences so there was a cost but it was indirect in that the registration fees were paid by TDY travellers and other costs etc were still born by the government. Our issue at the research facility I work at, is a program manager wants to accept a bunch of COTS software (which otherwise is available on the DoD enterprise service license and for which we would have to pay license fees for) directly from the vendor under a special license agreement, let's call it their "Techonolgy Demonstration Network", where our researchers provide feedback but we operationally use it day to day in our research for customers. The PM is basically backward planning, he has the result of wanting free software and will justify whatever it takes to get there. We (legal and contracting have told him no but he doesn't listen well). Question is, in light of the Palantir debacle with free software for Afghanistan, would this be an augmentation problem? Link to comment Share on other sites More sharing options...
joel hoffman Posted November 13, 2013 Report Share Posted November 13, 2013 Shultz, If you are legal counsel or associated with counsel and don't know the answer, can't you elevate the question within the organization ? If no one knows the answer aren't there procedures to request a GAO opinion? Link to comment Share on other sites More sharing options...
BikeJAG Posted November 13, 2013 Report Share Posted November 13, 2013 We intend to make the call at our level Joel but I don't want to elevate it to major command level on our issue just yet until we exhaust a few more resources. Just throwing it out to see if anyone has opinions on the blog, like chumming the water to see if we get anything interesting. As for requesting a GAO opinion, I think I'd rather call fire danger close or play russian roulette than gamble that GAO will come out with some rational workable solution that can be used in the field. Bill Link to comment Share on other sites More sharing options...
joel hoffman Posted November 13, 2013 Report Share Posted November 13, 2013 Bill, I was only kidding about "Schultz ". Love the pic! Link to comment Share on other sites More sharing options...
C Culham Posted November 14, 2013 Report Share Posted November 14, 2013 Far Fasat & BikeJAG - Today in doing research on another topic I realized that I had forgotten about "Redbook" with regard to all the questions raised in this thread. Specifically, Volume II, Chapter 6 discusses donations and gifts, augmentation and no-cost contracts. If, like me, you forgot about this reference tool you may want to visit it. Reading through Chapter 6 quickly it appears it might have useful information to help both of you. Likewise I withdraw my opinions that I passed on to Far as it seems it might just be in that area of - it depends - and the details regarding your situation specifically might just help sort it out. Likewise Bike you may find enough info to assist in you making the call locally. For quick access....as borrowed from the Wifon pages here is the link to the volume....as welll as updates through 2011. http://www.wifcon.com/bonafidecontents.htm Link to comment Share on other sites More sharing options...
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