Fun with the GSAR: Software licensing

February 26, 2018 Jason Bakke 0 Comments

Commercial software licensing, and so-called click-through licenses, have long been an issue in government contracting, because they contain terms the government will not assent to, such as data rights and indemnifications. While the government cannot enter into an illegal contract, how should the government communicate this to its vendors?

Enter GSA, which to address this issue proposed to amend the GSAR to change the order of precedence by which terms and conditions on a software contract are applied. They published a proposed rule; then comments come back.

It turns out the blunt instrument of a blanket change to contract interpretation has all sorts of unintended consequences, such as nonstandard warranties taking precedence over commercial warranties.

One respondent stated the change was so major it should go to OMB.

GSA’s solution: backtrack on the change and instead add “language to 552.212-4(s)(4)to clarify that the Commercial Supplier Agreement—Unenforceable Clauses provisions take precedence over any commercial supplier agreement.”

You might even think that was the obvious solution all along.

Fun with the GSAR: Software licensing was last modified: February 26th, 2018 by Jason Bakke

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