Photo of John E. McCarthy Jr.

 

 

 

On March 21, 2019, the Department of Defense (DoD) Defense Innovation Board (“DIB”) released a report, Software is Never Done: Refactoring the Acquisition Code for Competitive Advantage (“the Report”), summarizing DIB’s Software Acquisition and Practices (SWAP) study, which was mandated by the National Defense Authorization Act of Fiscal Year (FY) 2018. The two-year study involved

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.”
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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.”


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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

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

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

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