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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 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.

Last month, the Federal Circuit decided a case over 70 years in the making.  Following the bombing of Pearl Harbor in 1941 and full-scale U.S. entrance into World War II, the government entered into a series of contracts with oil companies to ramp up production of aviation gasoline (“avgas”) desperately needed for the war effort.  But along with increased production came increased waste and toxic byproducts, notably spent alkylation acid and “acid sludge.”  Safe waste disposal could not keep up with production, and much of the waste was eventually dumped at a site in Fullerton, California. 

Until last week, the oil companies were on the hook for the cleanup costs.  Thanks to the Federal Circuit’s recent ruling, though, the government must now reimburse the contractors for their remediation costs.  The discussion below traces the course of the litigation, outlines the Federal Circuit’s legal analysis, and discusses how the decision represents but one potential avenue for U.S. government contractors to recover environmental remediation costs. Continue Reading Federal Circuit Requires Government to Indemnify Contractors for CERCLA Remediation Costs Based on “Taxes” Provision in WWII Contracts

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.

On September 19, 2013, bid protest attorneys Amy O’Sullivan, Jonathan Baker, and Olivia Lynch will once again be teaching the “Bid Protests: Practice, Procedure and Strategy” course for Federal Publications Seminars. This full-day, CLE-eligible, seminar focuses on practice, procedure, and strategy for protests litigated at the agency-level and before the U.S. Government Accountability Office and the U.S. Court of Federal Claims.

More details about the course and on-line registration are available at: http://www.fedpubseminars.com/Government-Contracting/Bid-Protests-Practice-Procedure-and-Strategy/.

 

Over recent months, NASA’s plan to replace the space shuttle with commercial space lift has encountered some turbulence. Optimists insist that NASA’s transition to commercially-operated manned spaceflight is inevitable given the ingenuity of public private partnerships, the remarkable opportunities for profit, and the lessons of history. While this may be true, the development of a robust, commercially-viable spaceflight industry involves substantial risk and numerous unknowns. This blog explores in broad strokes the current status and the potential future trajectory of the commercial space flight industry.

We invite a dialog from experts, entrepreneurs, “space flight participants,” and the public. Continue Reading Commercial Space Flight: Recent Turbulence and Promising Future?

The Civilian Board of Contract Appeals reminded us last week how unforgiving the Board’s timeliness rules can be for unsuspecting contractors.  In Schunck v. General Services Administration, January 31, 2013, CBCA No. 3079, the Board dismissed the appellant’s case because it was not timely filed under the Contract Disputes Act (CDA), 41 U.S.C. § 7101, et seq.  The CDA states that an appeal of a final contracting officer’s decision must be filed “[w]ithin ninety days from the date of receipt of [the] decision.”  41 U.S.C. § 7104(a).  The Board’s Rules then define when a notice of appeal is considered “filed.”  Specifically, Board Rule 1(b)(5)(i) states that the notice of appeal is “filed upon the earlier of its receipt by the Office of the Clerk of the Board or if mailed, the date on which it is mailed to the Board.  A United States Postal Service postmark shall be prima facie evidence that the document with which it is associated was mailed on the date of the postmark.”

In Schunck, the appellant sent his notice of appeal to the Board on the last possible day – the 90th day after receipt of the contracting officer’s decision – and the Board received the package the following day.  The problem for the appellant, however, was that he shipped the package via Federal Express overnight delivery instead of using the United States Postal Service.  Thus, because the notice of appeal was not “mailed” or received by the Board within 90 days, it was not timely filed and the Board lacked jurisdiction to hear the appeal.  Even though the Board likely received the notice of appeal via Federal Express sooner than it would have received it had it been sent using regular U.S. mail, the rules are the rules, and the appellant in Schunck did not comply with them.

The obvious lesson from Schunck is that it is never wise to wait until the last day to file.  But what about those instances where a 90th-day filing simply cannot be avoided?  Are you then stuck with U.S. mail?  This is where knowing the Board’s rules is critical.  The Board not only permits U.S. mail, but it also accepts filings by hand delivery, facsimile, and email, subject to certain limitations.  Rule 1(b)(5).

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.

At 1:00 p.m. EDT on March 29, 2012, Crowell & Moring partner John McCarthy and Jon Baker will conduct a webinar on behalf of L2 Federal Resources entitled “Intellectual Property Rights in Government Contracts: Overview and Recent Changes.” This 90-minute webinar will provide an overview of the key principles governing the allocation of rights in technical data, computer software, and patents. Additionally, we will discuss the National Defense Authorization Act for FY 2012’s changes to the intellectual property rights scheme effecting defense contractors. 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/.

L2 Federal Resources requires a registration fee for its webinars.

For one reason or another, the date on which an agency anticipates granting a contract award often comes and goes with no award decision being made. In these situations, contractors are often asked beforehand to extend the acceptance period of their proposals to accommodate the expected delay in award. But what happens when the contractor does not agree to the extension by the agency’s deadline for doing so? Does that mean the contractor foregoes any chance it may have had at receiving the award? According to GAO, the answer is sometimes “no.”

In an April 6, 2011 decision, Ocean Services, LLC, B-404690, GAO dealt with this exact situation. In this total small business set-aside, the agency thrice asked offerors to extend the acceptance period of their proposals, and each time, the offerors agreed to the extension. When the agency sought a fourth extension so that it could perform additional market research, Ocean Services initially responded that it was concerned that the agency was pursuing a re-competition without the small business component. Ocean Systems, at that time, did not extend the acceptance period of its proposal.

The agency then sent, Ocean Services an e-mail on Friday, December 17, 2010, reminding Ocean Services that its proposal was set to expire the next day, a Saturday. The agency requested an extension of the offer, and on the next business day, Monday, December 20, Ocean Services extended its proposal. All other offerors extended their proposals before December 18, 2010.

The agency subsequently excluded Ocean Services from the competition because Ocean Services’ did not extend its proposal until December 20, two days after the proposal had expired. Ocean Services filed a bid protest at GAO challenging the exclusion.

In its decision, GAO applied the rule that when a proposal has expired, an offeror may “revive its proposal . . . if doing so would not compromise the integrity of the competitive bidding system.” GAO found that revival of the bid was appropriate because, in this case, Ocean Systems never declined to extend its offer and sought to extend it on the first business day after the offer expired. Because only two days had elapsed between the proposal’s expiration and revival, GAO concluded that Ocean Systems could not have “compromised the procurement process by avoiding market fluctuations to which other offerors were exposed.” Absent prejudice to other offerors, GAO recommended that the agency accept the revival of Ocean Systems’ proposal.

Although there certainly would be cases where revival of an expired proposal might not be appropriate, Ocean Services demonstrates that GAO does not condone strict enforcement of proposal expiration dates where the competitive process is not harmed by the proposal’s revival.