This week an update on the IT Schedule 70 software licensing issue and the way forward. As you know, last week I suggested including a new contract clause in the IT Schedule 70 contracts addressing conflicts between commercial license terms and federal law and regulation. Here again is the suggested language:
The parties acknowledge and agree that this Contract and any orders hereunder are subject to certain federal laws and regulations. Notwithstanding any clause to the contrary in any license agreement attached or appended to any order under this Contract, to the extent any clauses in the attached license agreement conflict with federal law or regulation or the terms of this Contract, such clauses shall not be given effect. The parties agree to review and negotiate the license clauses in good faith to the extent necessary to ensure compliance with applicable law and regulation.
The above language or some variation of it should adequately address GSA’s concerns while maintaining operational, competitive opportunities for the affected IT Schedule 70 contractors. The language reflects the long standing government contracts legal principle that to the extent a contract term conflicts with federal law, the federal law controls. It also reaffirms conflicts language already contained in FAR Clause 52.212-4 and FAR Clause 52.216-18 of the IT Schedule 70 contract. Hopefully the suggested language will assist all the parties in reaching an efficient and effective solution that protects the Government interests while enhancing competition and business opportunities through the GSA’s schedules program.
As noted in last week’s Friday Flash, GSA, in demonstrating its commitment to Myth-Busters, is seeking input from the Coalition and its membership on how to efficiently and effectively address this issue. It would be a wonderful to way to start out the New Year if GSA and the contractors worked together to quickly resolve this issue.