Attachment G - FCC Auction Bidding System and Support Services - QandA Received 8-29-2023.pdf

Question No. Solicitation Reference Offeror Question FCC Response

Attachment A (SOW, p. 18 and

pp. 35-36).

Attachment E (pricing spreadsheet): CLINS 1005, 2005, 3005, 4005.

Attachment F (SF1449): CLINS

1005, 2005, 3005, 4005.

Attachment A (SOW, p. 18) states “Activity 5 shall be for one (1) base year with no option years.” Attachment A (SOW, pp. 35-36) states “Activities 1, 2, 3, 4, and 5 are to be performed during the Base Period. Activities 1, 2, 3, and 4 are to be performed during Option

Periods 1-4.” However, Attachment E (pricing spreadsheet) and Attachment F (SF1449) contain CLINS 1005, 2005, 3005, and 4005.

Could the solicitation be made consistent either by amending Attachment A or by deleting

CLINS 1005, 2005, 3005, and 4005 from Attachments E and F?

The FCC updated Attachments E and F to remove CLINs 1005, 2005, 3005, and 4005.

Attachment F (SF1449): CLINS

4005 and 4006.

Attachment F (SF1449), CLIN 4005 states “System Implementation and Integration – Option

Year 3”. Attachment F (SF1449), CLIN 4006 states “Special Projects - Option Year 3”.

Are each of these references intended to refer to “Option Year 4”?

CLIN 4005 is removed from Attachment F. CLIN 4006 is updated on Attachment F to refer to Option Year 4.

Rights in Data Addendum

(Attachment A, Appendix 7, p.

67), especially paragraph d.

The requirement in the Rights in Data Addendum that the Contractor give the Government broad license rights to pre-existing commercial software is inconsistent with the intellectual property regime that is applicable to commercial item procurements governed by FAR Part

12. For example, FAR 12.212 provides that commercial computer software “shall be acquired under licenses customarily provided to the public,” yet paragraph d of the Rights in

Data Addendum requires that the Contractor transfer to the FCC a copy of pre-existing commercial software code, which is not otherwise a deliverable, along with an unlimited license in perpetuity without cost. These types of rights are not customarily provided to the public for commercial software, particularly for advanced commercial auction software. Part of the reason for this is that transferring a copy of commercial auction software code to one client poses an unacceptable security risk to the other clients for the Contractor’s commercial auction service.

In order to bring the IP terms into alignment with the commercial item nature of this procurement, would the FCC please do either of the following: (a) strike paragraph d of the

Rights in Data Addendum in its entirety; or (b) revise paragraph d of the Rights in Data

Addendum as follows: “Upon termination or expiration of the contract, the Contractor shall transfer make available to the FCC, without any additional at hosting, setup and other necessary labor cost, a copy of system software to use and the rights to use a software service (if and as modified) in perpetuity, and without financial obligation for a period of five years, for purposes including but not limited to archival and verification purposes of auctions previously conducted pursuant to the contract, such as to observe, investigate, retrieve, act upon, process, reprocess, or recreate FCC and auction bidder information, as submitted and processed. Any contract or license for data, including software, used in conjunction with the software shall provide for the same archival and verification use rights.”

The FCC acknowledges the Contractors’ rights in their pre-existing commercial software. In accordance with FAR 52.227-14 and FAR

52.227-17, the FCC has broad rights in all data first produced in performance of this contract and other data funded by the FCC without additional cost.

Paragraph d is revised as follows: Upon termination or expiration of the contract, and at the FCC’s request, the Contractor shall transfer make available to the FCC, without any additional cost to access or use the software, a copy of system software to use and the rights to use the a software service (if and as modified) in perpetuity for a period of five years, and without financial obligation, for purposes including but not limited to archival and verification purposes, such as to observe, investigate, retrieve, act upon, process, reprocess, or recreate FCC and auction bidder information, as submitted and processed. Any contract or license for data, including software, used in conjunction with the software shall provide for the same archival and verification use rights. Any reporting modules that are funded by the FCC, including reporting modules that are data first produced in the performance of this contract and reporting modules that are data first produced in the performance of previous contracts (if any) with the FCC, shall be transferred to the FCC or made available for FCC’s continued use at no additional cost.

The SOW is revised as follows: Section V.B.4.b. Deliverables for

Activity 2: Software , Maintenance, and Other Support has been augmented with the addition of deliverables 2-5 and 2-6.

FCC Auction Bidding System - Questions and Answers

Solicitation No.: 273FCC23R0018

Rights in Data Addendum

(Attachment A, Appendix 7, p.

67), especially paragraph c.

Paragraph c of the Rights in Data Addendum purports to modify the terms of the various data rights provisions included in the solicitation.

Would the FCC please strike paragraph c or revise it to: (a) remove provisions that modify standard data rights clauses; and (b) strike the last sentence of paragraph c?

It is undisputed that data will be first produced under this contract, thus FAR 52.227-14 shall apply. See FAR 27.409(b)(1).

Given that the FCC funds the data first produced in the performance of this contract, the FCC has broad rights in such data. The intent of paragraph c is to ensure the agency can safeguard such data by allowing the agency to review and approve requests to use such data, and applies only to data first produced.

Last sentence in paragraph c is revised as follows: For purposes of

FAR 52.227-14(g)(4)(i), Restricted Right Notice (DEC 2007) … (b)(5) and (d), the commercial item software is acquired used for any purpose expressly contemplated by the contract or reasonably related thereto, or any purpose necessary or desirable in fulfilling

§§ 309, 923, 928, 1006, 1401, 1404, 1413, and 1451-1452 of Title

47 of the United States Code or its implementing regulations.

Throughout the Solicitation, particularly Attachment A

(SOW) and Attachment F

(SF1449).

The Solicitation, particularly the Statement of Work, states at various places throughout that in this commercial item procurement the FCC is acquiring software, when in fact the FCC will be acquiring a license to Software as a Service, not the software itself.

Would the FCC please revise the Solicitation to make clear that, in accordance with FAR

12.212, the FCC is not acquiring the software itself but rather a license to Software as a

Service similar to those licenses customarily provided to the public?

The Statement of Work remains as released. The Statement of

Work addresses the use of software without the presumption of how that software will be made available for use to the FCC, which may be through a licensing agreement, such as Software as a

Service (SaaS), perpetual, or other licensing arrangement.

For the software under this contract to be provided as a SaaS, it must include all of the underlying infrastructure, middleware, and application software in one cost structure (i.e., the infrastructure and platform are included within the SaaS). If proposing a SaaS, all costs for software use, hosting, and maintenance shall be included under CLINs 0002, 1002, 2002, 3002, and 4002 on the Pricing

Sheet, and no costs shall be proposed under CLINs 0003, 1003, 2003, 3003, and 4003.

Additionally, the Statement of Work is consistent with FAR 52.227-

17 and 52.227-14 regarding allocation of rights for data and industry standard for government contracts. Last sentence in

Paragraph c of the Rights in Data Addendum is hereby revised.

See FCC response to Question No. 4.

6 Attachments H and I Attachments H and I are the same document and neither one is the FCC Contractor -

Telework Policy. Could you provide it to us?

Attachment H is updated to provide the FCC Contractor - Telework

Policy. Attachment I remains the FCC Information Security and

Privacy Policy.

7 Attachment B, p. 8.

In describing the projects that the Offeror are allowed to identify as Relevant Experience, the

Instructions to Offerors states “ ’Recent’ is defined as active (ongoing for at least 1 year) or completed efforts performed (with at least 1 year of performance) within the past five (5) years from the issuance date of this solicitation (this can include work that began prior to this five-year period but was completed within the five-year period).”

Suppose that an Offeror has a hypothetical past project that ran from April 2014 to April

2019. Note that this project was completed within the five-year period ending on the issuance date of the solicitation, but that less than one year of performance occurred within this five-year period.

Given any ambiguity that may arise from the placement of the second set of parentheses in the instructions, could the Government clarify whether the hypothetical project would be treated as ’recent’ and allowable?

The hypothetical project would be treated as ’recent’ and allowable given that the project was an effort with at least 1 year of performance and the project was completed within the past five

(5) years from the issuance date of this solicitation.