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On June 27, 2018, in Appeal of CiyaSoft Corporation, the Armed Services Board of Contract Appeals held that the Government can be bound by terms of a commercial software license agreement that the contracting officer (CO) has neither negotiated nor seen.  CiyaSoft Corporation (CiyaSoft) submitted a claim asserting that the Army had breached its contract to purchase computer software by using more copies of the software than were permitted by the contract.  The Army denied the claim, in part, because the contract contained no terms specifying how the government would secure and protect the software.  Instead, CiyaSoft had included license terms limiting the software’s use (i) inside the box containing the CDs with the software, (ii) on a piece of paper inside the software’s shrinkwrap, and (iii) in clickwrap that was displayed during the software’s installation process.  On appeal, the Board found that although the contract included no license terms and the CO never saw or discussed with CiyaSoft the license terms that accompanied the software delivery, the CO had a duty to inquire about what use rights applied to the software and the failure to do so imputed knowledge of the licensing terms on the Army.  Pointing to the longstanding policy embodied in the FAR that that the government should accept commercial computer license terms that are customarily provided to other purchasers, the Board held that “the government can be bound by the terms of a commercial software license it has neither negotiated nor seen prior to the receipt of the software, so long as the terms are consistent with those customarily provided by the vendor to other purchasers and do not otherwise violate federal law.”

Continue Reading Commercial License Terms May Govern Even Without Contracting Officer Knowledge

On March 22, 2018, the Department of Defense (DoD), Office of the Under Secretary of Defense issued a Class Deviation letter to the heads of all Department of Defense agencies requiring, effective immediately, that every DoD agency ensure that its contracting officers implement the recommendations for enhanced post-award debriefings set forth in Section 818 of the 2018 National Defense Authorization Act (NDAA).

The direction makes clear that DoD agencies are to provide unsuccessful offerors who are given a debriefing in accordance with FAR 15.506(d) the opportunity to “submit additional questions related to the debriefing within two business days after receiving the debriefing.”  The agency will then be required to “respond in writing to the additional questions submitted by an unsuccessful offeror within five business days after receipt of the questions” and must hold the debriefing open until it “delivers its written responses to the unsuccessful offeror.”

Continue Reading DoD Implements New Enhanced Debriefing Procedures from the 2018 NDAA

On Thursday, December 11 at 1 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Intellectual Property Rules in Government Contracts Legal Update: Know Your Technical Data and Patent Rights.” During this 90-minute webinar, we will provide an overview of the key principles governing the rules and regulations relating to rights in technical data, computer software, and patents. Participants will also pick up practical pointers to help contractors avoid traps for the unwary that could inadvertently compromise their intellectual property rights.

Please note that Thompson Information Services charges a fee for this webinar. Registration information can be found here.

On November 18, GAO released its annual report to Congress under the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), disclosing the following bid protest statistics for FYs 2010-2014: The number of total cases filed was up 5% from the previous year to 2,561. FY 2013 had seen a slight decrease in the number of cases filed for the first time since FY 2006. This year’s increase suggests that the dip in FY 2013 may have been anomalous, possibly a result of sequestration and the resulting furloughs of employees with acquisition responsibilities. The sustain rate for FY 2014 dropped to 13%, a 4% decrease from the previous year. However, the effectiveness rate – which captures all instances in which the protestor obtained some form of relief – remained constant at 43%. Thus, while GAO sustained fewer protests in FY 2014, agencies were more apt to take voluntary corrective action. Ultimately, nearly half of all protestors achieved some form of relief. By contrast, GAO employed alternative dispute resolution (“ADR”) techniques in only 96 cases in FY 2014, a 33% drop off from the prior year and the least in five years. However, this could be explained by agencies’ increased propensity to take corrective action early on in the protest process, and is consistent with the steady effectiveness rate described above. But it is difficult to draw conclusions about why ADR proceedings were comparatively rare this year. In addition, the number of cases in which GAO conducted a hearing ticked up by 35% to 42, or 4.7% of cases filed. This represents a reversal of the steady decrease in the number of GAO hearings held over the last decade. For just the second year, GAO was also required to report on the most prevalent grounds for sustaining protests, which this year included: 1) failure to follow the evaluation criteria, 2) flawed selection decision, 3) unreasonable technical evaluation, and 4) unequal treatment. Notably, this is a change from last year (FY 2013) in which the most prevalent reasons for sustaining protests were: (1) failure to follow solicitation criteria; (2) inadequate documentation; (3) unequal treatment; and (4) unreasonable price/cost evaluation. It is important to remember that this data includes only cases decided on the merits, not those in which agencies took corrective action. Agencies are not required to and do not report on the reasons why they decide to take voluntary corrective action. Finally, the FY 2014 report also addresses the effect of the October 2013 government shutdown on GAO’s proceedings. Remarkably, GAO survived the shutdown without a significant impact on its performance. There were 280 active bid protest cases pending at GAO when the agency – like the rest of the federal government – shut down for 16 days in October 2013. As a result, the standard 100-day deadline for resolving those 280 cases was extended by 16 calendar days. GAO was able, however, to resolve all but 39 cases within the typical 100-day timeframe, and only used the maximum 16-day extension in 5 cases. Thus, the numbers reflect that GAO recovered quickly and the shutdown did not result in major delays for pending protests.

On Wednesday, April 23rd at 1 PM Eastern, join our government contracts attorneys for a webinar entitled: “Intellectual Property Rules in Government Contracts Legal Update: Know Your Technical Data and Patent Rights.” During this 90-minute webinar, we will provide an overview of the key principles governing the rules and regulations relating to rights in technical data, computer software, and patents. We will include a discussion of recent and impending changes to these rules, particularly as they relate to commercial items and major weapons systems. You will also pick up practical pointers to help contractors avoid traps for the unwary that could inadvertently compromise your intellectual property rights.

Please note that L2 Federal Resources charges a fee for this webinar. Registration information can be found here.

At 1:00 p.m. (Eastern) on September 13, 2012, Crowell & Moring attorneys John McCarthy and Jon Baker will conduct a webinar on behalf of L2 Federal Resources entitled “Intellectual Property Rules in Government Contracts: Know Your Technical Data and Patent Rights.” This 90-minute webinar will provide an overview of the key principles governing the allocation of rights in technical data, computer software, and patents. We will discuss changes to the treatment of commercial items, statutory changes in the National Defense Authorization Act for FY 2012 affecting defense contractors as well as regulations relating to patent rights in FAR Part 27/DFARS Part 227. We will also provide some practical tips to help contractors avoid some traps for the unwary which could lead to the compromise of their intellectual property.

Further details and registration information are available at http://l2federalresources.com/2012/intellectual-property-rules-2/.

L2 Federal Resources requires a registration fee for its webinars.

On September 28, 2011, I will be participating in an American Bar Association webinar to discuss the impact of the Supreme Court’s June, 2011, decision in Stanford v. Roche. In Stanford v. Roche, the Supreme Court upheld a Federal Circuit decision finding that under the Bayh-Dole Act, a university does not automatically receive title to an invention, even where the invention was conceived or first reduced to practice in the performance of work under a federal funding agreement. Some believe that the Supreme Court’s decision has muddied the waters regarding how government contractors deal with their employee-inventors. The webinar panelists will discuss the Bayh-Dole Act, the Supreme Court’s decision, and how Stanford v. Roche impacts government contractors.

For registration information and more information on the program, please go to: http://apps.americanbar.org/cle/programs/t11tsv1.html.