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Software Maintenance - IT Brand Name


ItDepends3

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I was hoping someone could offer me some advice/direction on Software Maintenance.  If I am buying renewal maintenance on software already owned by the government, do I need to complete a J&A (or EFO/LSJ - pending on what contract vehicle I'm using) for the Brand Name requirement?  I'm competing the requirement on CHESS (mandatory source) among numerous vendors who can supply the Brand Name Maintenance.  I'm told that when software maintenance include bug-fixes, software updates, etc. then each push of that revised software is in essence an new contract and therefore requires a Brand Name J&A.  Due to the review requirements associated with the J&A process, if this does require a J&A then in some instances (well under the SAT) I believe the GOV may be expending more funds acquiring the maintenance than the cost of the actual maintenance costs.

If someone could weigh in I would greatly appreciate it.

Thank you.

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Guest Jason Lent

Is the software owned by the Government or is it licensed to the Government? It would seem strange to me that software the Government "owns" would have multiple vendors that can supply maintenance of it on a brand-name basis.

As I thumb around CHESS, I see the contracts are IDIQs; you are placing orders against them according to FAR 16 and you need to abide by the Fair Opportunity requirements of FAR 16.505(b). Similarly, FAR 16.505(a)(4) says...

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(4) The following requirements apply when procuring items peculiar to one manufacturer:

     (i) The contracting officer must justify restricting consideration to an item peculiar to one manufacturer (e.g., a particular brand-name, product, or a feature of a product that is peculiar to one manufacturer). A brand-name item, even if available on more than one contract, is an item peculiar to one manufacturer. Brand-name specifications shall not be used unless the particular brand-name, product, or feature is essential to the Government’s requirements and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs.

     (ii) Requirements for use of items peculiar to one manufacturer shall be justified and approved using the format(s) and requirements from paragraphs (b)(2)(ii)(A), (B), and (C) of this section, modified to show the brand-name justification. A justification is required unless a justification covering the requirements in the order was previously approved for the contract in accordance with 6.302-1(c) or unless the base contract is a single-award contract awarded under full and open competition. Justifications for the use of brand-name specifications must be completed and approved at the time the requirement for a brand-name is determined.

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Also, this...

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I'm told that when software maintenance include bug-fixes, software updates, etc. then each push of that revised software is in essence an new contract and therefore requires a Brand Name J&A. 

...is something I've never heard before and I'd be curious to see what your source for that statement provides to support that statement. If anything, a contract for software maintenance that involves regularly provided updates (monthly database updates, etc) could be managed as a service contract rather than a supply (discussions regarding whether or not software falls in either category or neither category notwithstanding). The idea that each revision of the software would be "in essence a new contract" doesn't make sense.

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15 hours ago, ItDepends3 said:

I'm told that when software maintenance include bug-fixes, software updates, etc. then each push of that revised software is in essence an new contract and therefore requires a Brand Name J&A. 

Step back and think about what you’re actually purchasing for a moment.  If this is a typical commercial software maintenance requirement, you’re not actually purchasing individual bug fixes, updates, etc directly.  What you’re actually purchasing is a subscription for a fixed period of time (typically one year) that provides access to the bug fixes, updates,  etc.  The contractor’s priced deliverable would be the subscription itself, usually priced per software license/user.  Again, this is assuming we’re talking about a typical commercial software maintenance requirement.

What you’ve been told makes no sense.  You can have multiple deliverables under a single contract, all of which could be covered by a single brand name J&A.  Even if you had multiple contracts, you could potentially write a class J&A. 

What would make sense to me is if what you were told relates specifically to the renewal of software maintenance subscriptions.  If you don’t include options on your software maintenance contract for future annual renewals, you’ll need to award a new contract each year to renew the subscription.  Each iteration of the contract would require its own brand name J&A.

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