Overview
This section addresses the legal risks associated with commercial license agreements (such as EULAs or Terms of Service) in micro-purchases and mandates the automatic application of FAR clause 52.232-39 to protect the Government from illegal indemnification obligations.
Key Rules
- Identification of Risk: Many commercial supplies and services, particularly in IT and web services, include EULAs, TOS, or similar agreements containing indemnification clauses.
- Legal Conflict: Indemnification clauses in commercial agreements are often inconsistent with Federal law and can lead to violations of the Anti-Deficiency Act (31 U.S.C. 1341) if the Government agrees to open-ended liabilities.
- Automatic Clause Incorporation: FAR clause 52.232-39, Unenforceability of Unauthorized Obligations, is automatically applied to all micro-purchases by operation of law.
- Purchase Card Inclusion: The rule specifically applies to micro-purchases made using the Governmentwide purchase card (GPC).
- Effect of the Clause: The clause renders any unauthorized obligation or indemnification requirement unenforceable against the Government, thereby preventing Anti-Deficiency Act violations.
Practical Implications
- Government purchase cardholders are legally protected when clicking "I accept" on commercial digital agreements, as any prohibited indemnification terms are automatically nullified.
- The regulation streamlines the micro-purchase process by eliminating the need for formal legal negotiations to remove non-compliant liability language from standard commercial licenses.