Can a federal agency buy - not license- commercial computer software?

[govt2310]

Can a federal agency buy, not just obtain a license, but buy outright, a contractor's commercial computer software? Say that software was developed 100% at private expense by the contractor. Say that agency wants to obtain the SOURCE CODE to that commercial computer software, and hopes to provide it to offerors on the recompete.

[ji20874]

If the federal agency wants to buy (and has the money and authority to buy), and the contractor wants to sell (and has the authority to sell), who am I to judge between them?

If you're in the Defense Department, you will want to be award of DoD policy as spelled out in DFARS 227.7103-1( c ) -- "Offerors shall not be required, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish to the Government any rights in technical data related to items, components or processes developed at private expense. . . ." But there are exceptions even to this policy, and it is just a policy.

[govt2310]

Say this is a Civilian Agency, not DOD . . .

[ji20874]

Well, like I said, if the federal agency wants to buy (and has the money and authority to buy), and the contractor wants to sell (and has the authority to sell), who am I to judge between them?

The key questions are there --

• Does the federal agency want to buy? YES or NO.
• Does the federal agency have the money and the authority for the buy? YES or NO.
• Does the contractor want to sell? YES or NO.
• Does the contractor have the unfettered authority to sell? YES or NO.

If all four answers are YES, more power to you. That's my opinion, which is worth very little because I don't know your agency's policies, the nature of the commercial computer software you're interested in, or the degree that the contractor actually has unfettered rights to sell its the rights in data. I'm not aware of anything in the FAR that would prohibit the transaction. But you will want to talk to an intellectual property attorney -- indeed, you will have to talk to an intellectual property attorney, it seems to me, in order to draw up the proper language for your contract -- to define what the govenrment agency really is obtaining and what the contractor really is selling.

If any answer is NO, you have a problem.

These matters can get messy. When people have questions such as yours, I refer them to CENDI (www.cendi.gov) -- they have been helpful to me. But you'll probably still want to consult witih an intellectual property attorney.

Oh, and you need to read FAR 27.405-3. It makes reference to the standard FAR clause at FAR 52.227-19, Commercial Computer Software License, and allows the parties to negotiate greater (including unlimited) or lesser rights.