Commercial computer software
Government contracts for commercial computer software must clearly define rights and ensure vendor licenses comply with Federal law and Government needs.
Overview
FAR 27.405-3 addresses the acquisition of commercial computer software by the Government outside of GSA’s Multiple Award Schedule contracts. It emphasizes that while no specific FAR clause is required, contracts must clearly define the Government’s rights to use, disclose, modify, distribute, and reproduce the software. The regulation directs contracting professionals to acquire commercial software under licenses customarily provided to the public, as long as these licenses comply with Federal law and meet Government needs. If there is uncertainty about the adequacy of commercial licenses, the clause at 52.227-19 may be used. The section also provides guidance for negotiating additional or lesser rights and requires that any such negotiated rights be explicitly stated in the contract. When vendor standard agreements are used, contracting officers must ensure these are consistent with Federal requirements and that Government contract terms take precedence. Special provisions apply when restricted software is acquired through subcontractors under certain clauses.
Key Rules
- Government Rights Must Be Defined
- Contracts must specify the Government’s rights regarding commercial computer software, including use, disclosure, modification, distribution, and reproduction.
- Use of Customary Commercial Licenses
- Software should be acquired under standard commercial licenses unless inconsistent with Federal law or Government needs.
- Use of Clause 52.227-19
- This clause may be used if there is confusion about the adequacy of rights or license terms.
- Negotiation of Rights
- Additional or lesser rights than those in 52.227-19 must be negotiated and documented in the contract.
- Vendor Agreements
- Contracting officers must ensure vendor agreements are consistent with Federal requirements, and contract terms override vendor terms.
- Subcontractor Acquisitions
- Special approval is needed for changes to restricted rights when software is acquired from subcontractors under certain clauses.
Responsibilities
- Contracting Officers: Ensure contract terms clearly define Government rights, review and reconcile vendor agreements, use appropriate clauses, and approve changes to restricted rights from subcontractors when required.
- Contractors: Provide licenses consistent with Federal law, negotiate rights as needed, and ensure documentation and descriptions are complete.
- Agencies: Oversee compliance and ensure contracts meet legal and operational requirements.
Practical Implications
- This section ensures the Government secures necessary rights for commercial software use and avoids conflicts with vendor terms. It impacts daily contracting by requiring careful review of license agreements and explicit contract language. Common pitfalls include failing to reconcile vendor terms with Federal requirements or inadequately documenting negotiated rights.