Overview
FAR 12.212 establishes that the Government must acquire commercial computer software and documentation using the same licenses typically offered to the public, provided those licenses align with Federal law and meet agency requirements.
Key Rules
- Standard Licensing: Commercial software must be acquired under customary public licenses unless they conflict with Federal law or fail to meet the Government's needs.
- Protection of Proprietary Information: Contractors cannot be forced to provide technical information regarding commercial software that is not normally shared with the general public.
- Restricted Rights: The Government does not automatically receive broad rights to modify, reproduce, or disclose commercial software; it only receives the specific rights granted in the negotiated license agreement or contract addendum.
- Negotiation Guidance: Agencies are directed to FAR 27.405-3 for further instructions on negotiating license terms and conditions for commercial software.
Practical Implications
- Contractors can largely rely on their standard End User License Agreements (EULAs), though they must be prepared to remove or amend clauses that violate Federal law (e.g., prohibited indemnification or "hold harmless" clauses).
- The Government acts more like a private-sector consumer in these transactions, shifting the burden to the contracting officer to ensure the commercial license satisfies the agency's operational requirements.