Solicitation provisions are certification requirements, notices, and instructions directed at firms that might be interested in competing for a specific contract.
Thus, a mandatory clause that expresses a significant or deeply ingrained strand of public procurement policy will be incorporated into a Government contract by operation of law, even if the parties intentionally omitted it.
[10][11] Nearly every major cabinet-level department (and many agencies below them) has issued such regulations, which often place further restrictions or requirements on contractors and contracting officers.
[13] Compliance with the Regulation, along with the use of initiative in the interests of the Government in areas not specifically addressed in the FAR or prohibited by law, are required and expected of all members of the Acquisition Team.
[15] FAR 12.401 allows contracts for commercial items to be tailored to a great extent, therefore deviating in many particulars from the mandatory clause language.
; (4) The contracting officer determines that the price paid was fair and reasonable and recommends payment, and legal counsel concurs.
The ICAF's charter is to maintain the ability to nationalize an economy to achieve strategic objectives or a wartime mobilization, this is a good resource expertise in this particular area.
Use of FAR Parts 12 and 13 without rationing of demand through a single commodity control council or finding other solutions is likely to create more problems than it solves.
Performance Based Service Acquisition (PBSA) is a process and way of defining requirements that yields well written work statements that are outcome oriented and measurable thus enforceable.
Additional Resources for PBSA: The Office of Federal Procurement Policy (OFPP) has a Draft Best Practices Guide on Contractor Performance.
105-270 (FAIR Act of 1998) as a function so intimately related to the public interest as to require performance by Federal Government employees.
In other words, the contractor/commercial vendor wants to retain its ability to have a product to sell – inherent in this desire is a need to prevent the Government from disclosing important technical data, e.g., engineering designs, schematics, specifications, to its competitors when the Government conducts a follow-on acquisition and attempts to seek competition to meet legal and policy mandates in the Competition in Contracting Act (CICA) and Armed Services Procurement Act.
Careful examination of FAR Part 27 and applicable agency FAR supplements (for example, DFARS 227) must be performed and consultation with a wide variety of Federal statutes accomplished before attempting to deal with IP/data/technical data.
Generally, there are specific issues which must be addressed in any technical data rights or software acquisition, which include: - Required contract clauses and provisions (driven by the below categories) (commercial versus non-commercial; software vs non-software; SBIR versus non-SBIR; technical and scientific information versus non-technical and non-scientific information; and special cases discussed in DFARS 227) - Disclosure of technical data use restrictions as a part of the offer / proposal (for example, DFARS 252.227.7017 clause) - Markings provisions (includes basic markings clause plus challenge clause) - Required contract line item numbers (CLIN) structure (broken out for each category/type which are segregable – must be specifically expanded upon in the work statement / contract specifications; each CLIN must be separately priced; this is NOT THE CDRLS.
This clause mirrors the above intent which states that the Government will have rights provided to the normal consumer in that particular market, which in reality are defined by a separate software license.
DFARS 227.7103-1, Policy, para (c) says that "Offerors shall not be required ... to sell or otherwise relinquish to the Government any rights in technical data related to items, components or processes developed at private expense solely because the Government's rights to use, modify, release, reproduce, perform, display, or disclose technical data pertaining to those items may be restricted."
HOWEVER, the Government may include a source selection criteria which rates offers more favorably or higher which provide desired technical data rights.
However, note that neither of these books provide a nuts and bolts explanation on how to deal with commercial computer software licenses as discussed above.
Given the overwhelming reliance on support contractors, it is now necessary to address this question of authorized use under the Federal Trade Secret Act.
The regulation and treatment of IRAD play crucial roles in federal contracting, particularly concerning intellectual property and data rights.
According to the Defense Federal Acquisition Regulation Supplement (DFARS), contractors can allocate reasonable indirect costs from IRAD to government contracts.
[33] Yet, the technical data stemming solely from IRAD activities is typically subject to limited rights from the government's perspective.
Defense contractors have raised concerns that DFARS regulations might jeopardize their IRAD efforts by enabling the government to use the resulting intellectual property without adequate compensation.
In response, a provision in the 2022 National Defense Authorization Act (NDAA) directed revisions to ensure fuller reimbursement of IRAD costs, aiming to encourage further innovation.
Consequently, the treatment of IRAD continues to be a pivotal consideration in the ongoing evolution of intellectual property regulations and technology development.
[36][37] The 1970 defense appropriations act temporarily limited the funding for the first time, due to concerns about adequate contract administration and benefits for the government.
However, frequently contracting officers do not have sufficient knowledge that some optional or required clause is applicable in a particular case – especially for intellectual property or other specialized acquisitions.
Also, the automated systems frequently do not allow inclusion of various non standard work statement, instructions or clauses due to limitations on input options.
Some have suggested that the complexity of complying with the FAR discourages competition, especially by small companies,[39] and that there are "so many laws that we need to implement that our contracting officers in the trenches can’t even follow them all because they actually start to conflict with each other".
[43] More recently there have been calls for the FAR to be abandoned or rewritten, to exempt the Department of Defense from the need to comply, and the adoption of "other transaction authority" agreements (OTAs), along with criticisms of such proposals.