13.202
Unenforceability of unauthorized obligations in micro-purchases
FAR 13.202 ensures that unauthorized obligations, such as indemnification clauses in supplier agreements, are unenforceable in micro-purchases to protect the Government from Anti-Deficiency Act violations.
Overview
FAR 13.202 addresses the unenforceability of unauthorized obligations in micro-purchases, particularly those arising from supplier license agreements such as End User License Agreements (EULAs) and Terms of Service (TOS). These agreements often contain indemnification clauses that are inconsistent with Federal law and could potentially violate the Anti-Deficiency Act if accepted by the Government. To prevent such violations, the clause at FAR 52.232-39 is automatically applied to all micro-purchases, including those made with the Governmentwide purchase card. This ensures that any unauthorized obligations, especially indemnification clauses, are unenforceable against the Government.
Key Rules
- Supplier License Agreements in Micro-Purchases
- License agreements (e.g., EULAs, TOS) are common in micro-purchases, especially for IT products and services.
- Indemnification Clauses
- Indemnification clauses in these agreements are often unenforceable and may violate the Anti-Deficiency Act if agreed to by the Government.
- Automatic Application of FAR 52.232-39
- The clause at 52.232-39 is automatically included in all micro-purchases to prevent unauthorized obligations.
Responsibilities
- Contracting Officers: Ensure that FAR 52.232-39 is applied to all micro-purchases and that no unauthorized obligations are accepted.
- Contractors: Must recognize that indemnification and similar clauses in license agreements are unenforceable against the Government in micro-purchases.
- Agencies: Oversee compliance with the Anti-Deficiency Act and proper application of required clauses.
Practical Implications
- This section exists to protect the Government from inadvertently accepting financial obligations that violate Federal law during micro-purchases.
- It impacts daily contracting by automatically nullifying unauthorized clauses in supplier agreements.
- Common pitfalls include failing to recognize unenforceable clauses or not applying the required FAR clause.