Landmark ASBCA Decision Means Government Can be Bound to Commercial Computer Software Licenses It Hasn’t Even Seen

The FAR generally favors the Government clients’ entitlement to data and software rights in federal procurements. This has commonly—and understandably—led to disgruntled contractors who didn’t realize what they were truly giving up when they opted to use their own software in performance of contracts without including regulation-compliant markings and protections.

But recently—thanks to a first-of-its-kind decision by the ASBCA—it seems the tide may have turned in favor of protecting these contractor-inventors from the standard Government windfall in its data rights acquisitions.  Let’s take a closer look.

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GAO: Protest of Unlicensed Awardee Not Allowed

What do you do if a federal agency awards a contract to one of your competitors, but the competitor in question does not possess certain licenses required by the solicitation?  At least in one recent GAO bid protest decision, the answer appears to be, “not much.”

In SIMMEC Training Solutions, B-406819 (Aug. 20, 2012), the protester complained–correctly–that the prime contractor lacked two required licenses.  The GAO ruled against the protester anyway, holding that it lacked jurisdiction to consider the licensing challenge.

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