Software Database H Clauses.pdf

PART I - THE SCHEDULE

SECTION H - SPECIAL CONTRACT REQUIREMENTS

SPECIAL CONTRACT REQUIREMENTS

NOTICE: The following contract clauses pertinent to this section are hereby incorporated in full text:

FEDERAL ACQUISITION REGULATION CONTRACT CLAUSES IN FULL TEXT

OTHER CONTRACT CLAUSES IN FULL TEXT

AFLCMC/WNS-H001 COMMERCIAL COMPUTER SOFTWARE LICENSE (NOV 2018)

AFLCMC/WNS SCARS H001 - COMMERCIAL COMPUTER SOFTWARE LICENSE (NOV 2018)

The Contractor shall provide license agreement information (in Section J Attachment 7 and additional evidence as required below) for all commercial computer software licenses to be obtained on behalf of or transferred to the Government under this contract. Under this contract, the Government may become the Licensee in certain commercial computer software licenses, where computer software is specifically defined at DFARS 252.227-7014(a)(1). In order to permit the Government to become a Licensee in the commercial computer software licenses, the Contractor shall first review the commercial computer software licenses intended for transfer to the Government and ensure compliance with either Alternative I, II, III, or IV as shown below.

License agreement information shall be provided to the Government Contracting Officer concurrent with proposal submission to the extent known at the time a proposal is submitted to the Government. The Contractor shall provide usage rights to the Government sufficient to permit the Government to operate any software or system containing the software which is associated with the license(s) to fulfill the Government's requirements. The Contractor shall ensure compliance with all terms and conditions shown below. For any commercial computer software license which is not reasonably identifiable concurrent with proposal submission, such license shall be approved by the Government Contracting Officer prior to its incorporation into a system deliverable to ensure compliance with the terms and conditions in this clause.

This obligation to obtain approval by the Government Contracting Officer prior to incorporation of the commercial computer software, as described above, continues throughout the contract.

In view of the above, it should be understood that the Government will not execute a DD Form 250 for the commercial computer software deliverables or any deliverable containing such commercial computer software under the present contract until the Contracting Officer determines that the Contractor has satisfied either Alternative I, II, III, or IV as described below.

In Section J, Attachment 7, the Contractor shall provide a listing and copies of all commercial computer software licenses (including open source software licenses) under which the Contractor will obtain under this contract. The Contractor shall include associated renewal fees/costs in the pricing matrix and the CLINs mapped to the commercial software in Section J, Attachment 7, if applicable.

In Section J, Attachment 7, the Contractor shall clearly correlate or map commercial software license(s) (including open source software licenses) to:

a. Contract Line Item Numbers (CLINs)

b. Contract Deliverables (CDRLs)

c. Paragraphs in the Performance Work Statement (PWS)

d. Paragraphs in the System Requirements Document (SRD)

e. Unique identifiers for any portions of functional block diagrams and/or system architecture diagrams within the MBSE System Model (CDRL A029 System Sub-system Design Description (SSDD)), SECTION H FA8621-18-R-0002 so that it can be readily determined where certain commercial computer software corresponding to certain software license agreement(s) are physically located on the system to be delivered under the contract.

f. The Alternative selected (Alternative I, II, III, or IV)

g. The Licensor of the commercial computer software license.

h. Blanket Purchase Agreement (BPA) or Federal Supply Schedule (FSS) contract number being ordered from (if applicable).

i. Ordering period the BPA or FSS will be available to order from (if applicable).

Commercial computer software used in the Contractor’s design shall be identified in all portions of functional block diagrams and/or system architecture diagrams within the MBSE System Model SV-1 Systems Interface Description (CDRL A029 System Sub-system Design Description (SSDD)) submitted to the government in XMI format, so that it can be readily determined where certain commercial computer software corresponding to certain software license agreement(s) are physically located on the system to be delivered under the contract.

Alternative I:

1. The Contractor shall obtain the license from an available Government Supply Source in accordance with FAR 52.251-1 Government Supply Sources (APR 2012) and DFARS 252.251-7000 Ordering from Government Supply Sources (AUG 2012). Software license agreements offered pursuant to Department of Defense (DoD) Enterprise Software Initiative (ESI) Blanket Purchase Agreement (BPA), Government Services Administration (GSA) Software Purchase Agreement (SPA) BPA, or GSA Federal Supply Schedule (FSS) contracts are consistent with Federal procurement law and meet all commercial computer software licensing provisions and Agency needs pursuant to this contract."

Alternative II:

1. The Contractor shall obtain Licensor's consent to provide usage rights contained in any license(s) before delivery, whereby the Contractor shall maintain its usage rights under the license(s) and shall provide any usage rights to the Government that are necessary to permit the Government to operate any related software or system containing the software which is associated with the license(s) to fulfill the Government's requirements. All other rights and obligations contained in the license(s) shall remain with the Contractor. In this manner, the Contractor maintains Licensee status in said license(s) and only assigns or otherwise transfers usage rights portions thereof to the Government.

2. Any usage rights shall be perpetual in nature and may not be unilaterally terminated by the Licensor.

3. Addended to Section J Attachment 7, the Contractor shall provide a signed statement from the commercial computer software provider that evidences the usage rights under Alternative II will be provided.

Alternative III:

Addended to Section J Attachment 7, the Contractor shall provide a signed statement from the commercial computer software provider agreeing that Alternative III applies to the commercial computer software license:

(a) In accordance with DFARS 227.7202, the Government will acquire commercial computer software and commercial computer software documentation under the licenses customarily provided to the public unless such licenses are inconsistent with Federal procurement law or do not otherwise satisfy user needs. This clause incorporates language into commercial computer software license agreements provided to the Government under this contract to ensure consistency with Federal procurement law. In the event the Contractor delivers to the Government a commercial computer software license agreement (or any provision therein) that conflicts with any provision in this clause, the terms of this clause shall take precedence over the non-conforming commercial computer software license agreement provision(s) and the non-conforming provision(s) shall be deemed deleted and unenforceable. This clause shall take precedence over all conflicting provisions of any commercial computer software license agreement provision(s) delivered to the Government under this contract regardless of whether the license is delivered to the Government by the Contractor, by the Contractor on behalf of a subcontractor or vendor (at any tier), or directly by a subcontractor or vendor (at any tier).

(b) Commercial computer software license agreement means terms and conditions customarily offered to the public by vendors of computer software that meet the definition of “commercial item” set forth in FAR 2.101 and are intended to create a binding legal obligation on the end user. The term applies-

(1) Regardless of the format or style of the document. For example, a commercial computer software license agreement may be styled as standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order;

(2) Regardless of the media or delivery mechanism used. For example, a commercial computer software license agreement may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.

(c) Except as stated in paragraph (b) of this clause, when any supply or service acquired under this contract, including under any subcontract (at any tier) or other purchase agreement, is subject to any commercial computer software license agreement that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(1) Any such language, provision, or clause is unenforceable against the Government.

(2) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such language, provision, or clause by virtue of it appearing in the commercial computer software license agreement. If the commercial computer software license agreement is invoked through an ‘‘I agree’’ click box or other comparable mechanism (e.g., ‘‘click-wrap’’ or ‘‘browse-wrap’’ agreements), execution does not bind the Government or any Government authorized end user to such clause.

(3) Any such language, provision, or clause is deemed to be stricken from the commercial computer software license agreement.

(d) Paragraph (c) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(e) When any supply or service acquired under this contract, including under any subcontract (at any tier) or other purchase agreement, is subject to a commercial computer software license agreement, the following language shall be deemed incorporated into the commercial computer software license agreement. As used herein, “this agreement” means the commercial computer software license agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

(i) Applicability. This agreement is part of a contract either:

(A) between the U.S. Government and the commercial supplier, or

(B) between the U.S. Government and a prime contractor that has a subcontract (at any tier) or other purchase agreement with the commercial supplier, either directly or indirectly through a subcontractor at any tier, for the acquisition of commercial computer software for the U.S. Government that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Parts 13, 14 or 15).

(ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

(iii) Law and disputes. This agreement is governed by Federal law.

(A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

(C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

(iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the Government to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in FAR 52.233- 1, Disputes.

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

(vi) Updating terms.

(A) After award, the contractor may unilaterally revise terms if they are not material. A material change is defined as:

(1) Terms that significantly change Government rights or obligations;

(2) Terms that increase Government prices;

(3) Terms that decrease overall level of service; or

(4) Terms that limit any other Government right addressed elsewhere in this contract.

(B) For revisions that will materially change the terms of the contract, the revised commercial computer software license agreement must be incorporated into the contract using a bilateral modification.

(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

(viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. § 516.

(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.

(B) This charge, if disputed by the ordering activity, will be resolved through the Disputes clause at FAR 52.233-1; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

(xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under the clause at FAR 52.232-23, Assignment of Claims.

(xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed

“confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

(2) If any language, provision or clause of this agreement conflicts or is inconsistent with the preceding paragraph (e)(1), the language, provisions, or clause of paragraph (e)(1) shall prevail to the extent of such inconsistency.

(f) The contractor shall include the requirements of this clause in its subcontracts or other contractual or other legal instruments with its subcontractors or suppliers at any tier.

Alternative IV:

For Open Source Software licenses, the Contractor shall submit the license agreement concurrent with proposal submission to the Government Contracting Officer.

Open Source Software licenses shall not conflict with the requirements of the SCARS PWS or SRD, to include security classification requirements where modification to the open source software would require disclosure of classified information back to the open source software community.

(End of clause)

a. Definitions. As used in this special contract requirement and associated CLINs.

1. "OMIT Data" is defined for the purposes of this contract as all technical data, detailed manufacturing or process data (DMPD), development tools (including compilers), computer software (including source code and scripts and libraries used by the source code), computer software documentation, computer databases and graphics pertaining to SCARS required or used when conducting all operation, maintenance, installation, and training activities, regardless of whether such activities are performed by Air Force military, civilian, or contract personnel.

2. "Operation" includes all procedures, guidance, and instructions for operating, testing, emergency, utilization, familiarization, and functional use of SCARS Simulator Common Architecture (SCA) components to perform the intended functions. Operation also includes all data to identify, catalog, stock, source, acquire, procure, replenish, package, handle, store, and transport any SCARS SCA components.

3. "Maintenance" includes all maintenance and repair capabilities to maintain, inspect, test, service, adjust, troubleshoot, analyze, remove, replace, repair, install, disassemble, reassemble, and overhaul to maintain in, or restore to, a serviceable condition any SCARS SCA components. Maintenance includes sustainment of the OMIT Data itself.

4. "Installation" includes infrastructure such as facility planning, site surveys, maintenance facilities, supply chain management, test cells, test stands and benches, tools, support equipment, communications, data links, security, data information technology, and all other data and planning used in the initial standup and continued operations, training, sustainment, and maintenance at all SCARS sites and the SCARS Security Operations Center (SOC) in support of all SCARS SCA components.

5. "Training" includes all formal and informal classroom, simulation, and supervised and unsupervised instruction in the operation of, use of, testing of, supply chain management of, and the maintenance of any SCARS SCA components.

6. "Depot-Level Maintenance" includes: (i) installation, inspection, localization, isolation, disassembly, interchange, repair, reassembly, alignment, checkout; (ii) maintenance performed, including modification, testing and reclamation, on material requiring repair, major overhaul, or complete rebuild of parts, assemblies, subassemblies, and end items; and (iii) software maintenance. Depot-Level Maintenance does not include the manufacture of new items but may include the overhaul or refurbishment of existing items.

AFLCMC/WNS-H002 DELIVERY AND LICENSE RIGHTS FOR TECHNICAL DATA AND COMPUTER

SOFTWARE NECESSARY FOR OPERATION, MAINTENANCE, INSTALLATION, AND TRAINING

(OMIT) (NOV 2018)

7. Other terms used in this special contract requirement that are defined in the following clauses have the same meaning as set forth in those clauses:

a. DFARS 252.227-7013

b. DFARS 252.227-7014

c. DFARS 252.227-7015

b. Delivery Requirements. Pursuant to CLINs XX04, and XX05, the Contractor shall deliver all OMIT Data.

1. General. The Contractor shall deliver OMIT Data having suitable characteristics (e.g., content, content, format, and delivery medium) to support OMIT activities to include but are not limited to:

a. No less information or detail than industry standards, nor less than the Contractor typically requires or uses to perform such Maintenance or Training activities; and

b. Additional information or detail necessary for military purposes related to Depot-Level Maintenance.

2. Maintenance Technical Data and Computer Software. OMIT Data described under Exhibit A (Contract Data Requirements List (CDRL)) must comprise a complete package of all technical data and computer software for enabling Maintenance of the entire SCARS SCA without exception. This includes technical data and computer software used in the installation and deinstallation, and disassembly and reassembly, at the lowest practicable segregable level that does not require detailed manufacturing or process data. Examples of technical data and computer software that are needed to perform Maintenance include, but are not limited to, the following:

a. Detailed technical data and information regarding all systems;

b. Depot-Level Maintenance technical data and information regarding all systems, subsystems, and components;

c. Interface Control Documents (ICDs);

d. Computer software source code necessary to perform Depot-Level Maintenance of computer programs and scripts;

e. Computer software libraries used by source code necessary to perform Depot-Level Maintenance of computer programs and scripts;

f. Computer software compilers and computer software tools necessary to perform Depot-Level maintenance of computer programs and scripts; and

g. Computer software and computer software documentation necessary to perform Depot-Level Maintenance on computer programs and scripts.

c. License Rights. Pursuant to the contract clauses governing rights in technical data and computer software (e.g., DFARS 252.227-7013, 252.227-7014, and 252.227-7015), the Government is granted unlimited rights in all technical data required for OMIT and computer software documentation.

The Government is not requiring, as a condition of award, Unlimited Rights or Government Purpose Rights (GPR) for OMIT Data that is noncommercial computer software developed exclusively at private expense. The purpose of including noncommercial computer software in this clause is to facilitate the evaluation of a strength under Section M para 2.3.1.4 (Subfactor 3, Own The Technical Baseline (OTB)).

If the contractor does not pursue the strength under Section M para 2.3.1.4 (Subfactor 3, OTB), then the language in this clause requiring the contractor to provide all “computer software for enabling Maintenance of the entire SCARS SCA without exception” shall be of no effect. The offeror shall identify and assert its proposed category of license rights for such noncommercial computer software in accordance with H003 and DFARS 252.227-7014 that implements its technical approach.

The Government is also not requiring, as a condition of award, Unlimited Rights or Government Purpose Rights (GPR) for OMIT Data that is technical data meeting the definition of detailed manufacturing or process data (DMPD) at DFARS 252.227-7013(a)(6) developed exclusively at private expense. The offeror shall identify and assert its proposed category of license rights appropriate for such DMPD in accordance with H003 and DFARS 252.227-7013 or DFARS 252.227-7015.

Commercial computer software to be delivered as OMIT Data shall be subject to a commercial license that meets the requirements of H001.

d. Technical Data and Computer Software of Subcontractors and Suppliers. The Contractor's obligations in this attachment shall apply to all OMIT Data, including all OMIT Data developed, delivered, or otherwise provided by subcontractors or suppliers at any tier, and regardless of whether the OMIT Data is or relates to commercial items or noncommercial items. The Contractor shall include these requirements in its subcontracts or other contractual or legal instruments with its subcontractors or suppliers at any tier.

e. Validation of Asserted Restrictions and Restrictive Markings. Nothing in this attachment limits or otherwise affects the parties’ rights or obligations specified in DFARS 252.227-7019 or DFARS 252.227- 7037.

(End of Clause)

a. Definitions. Terms used in this Special Contract Requirement (SCR) that are defined in the following clauses and SCR have the same meaning as set forth in those clauses:

1. DFARS 252.227-7013;

2. DFARS 252.227-7014;

3. DFARS 252.227-7015;

4. DFARS 252.227-7017; or

5. AFLCMC/WNS-H003 Delivery and License Rights For Technical Data And Computer Software Necessary For Operations, Maintenance, Installation, and Training (OMIT) (OCT 2018).

b. Identification and Assertion of Restrictions. The Contractor shall not deliver or otherwise provide to the Government any technical data or computer software with restrictive markings (or otherwise subject to restrictions on access, use, modification, reproduction, release, performance, display, or disclosure) unless the technical data or computer software has been identified in accordance with the following requirements:

1. Pre-Award Identification and Assertion. In order to fulfill the requirements in DFARS 252.227- 7017(d), the Contractor has utilized the form in Section J, Attachment 6 to the contract. In Section J, Attachment 6 to the contract, the Contractor (including its subcontractors or suppliers, or potential subcontractors or suppliers, at any tier) identified all technical data and computer software that is proposed to be delivered or otherwise provided (including all Option CLINs as if the Option was exercised) with less than unlimited rights as follows:

A. Noncommercial Technologies. Noncommercial technical data and noncommercial computer software was identified pursuant to DFARS 252.227-7017.

B. Commercial Technologies. The Contractor also identified and asserted any restrictions for all commercial computer software and commercial technical data (i.e., technical data pertaining to a commercial item) by providing the same types of information, using a similar format, and following the same procedures and requirements as specified at DFARS 252.227-7017.

C. The requirement to submit, complete, and sign the identification and assertions required by paragraphs b.1.A or b.1.B of this clause was considered a material element of source selection and failure to meet this requirement could have rendered the offer ineligible for award.

2. Post-Award Updates to the Pre-Award Identification and Assertions. Except as provided in this paragraph, the Contractor (including its subcontractors or suppliers at any tier) shall not supplement or revise the Pre-Award Identification and Assertions (Section J, Attachment 6) after contract award.

AFLCMC/WNS-H003 IDENTIFICATIONAND ASSERTION OF RESTRICTIONS OF TECHNICAL DATA

AND COMPUTER SOFTWARE (NOV 2018)

A. Noncommercial Technologies. Post-award identification and assertion of restrictions on non-commercial technical data and non-commercial computer software are governed by paragraph (e) of DFARS 252.227-7013 and DFARS 252.227-7014, respectively.

B. Commerical Technologies. The Contractor may supplement or revise its pre-award identification and assertion of restrictions on commercial computer software and commercial technical data only if such an expansion or revision would be permitted for noncommercial computer software or noncommercial technical data pursuant to paragraph b.2.A of this clause (i.e., based on new information, or inadvertent omissions that would not have materially affected source selection).

C. Upon request by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate any listed assertions.

c. Specific Identification of Technical Data and Computer Software. When identifying and asserting restrictions on technical data and computer software pursuant to paragraph (b) of this clause, the Contractor shall-

1. Ensure that the technical data and computer software are identified by specific reference to the requirement to deliver or provide that technical data or computer software in the contract, for example, by referencing the associated CLIN(s), CDRL(s), or paragraph(s) in the PWS and SRD.

2. Include the relevant information for all technical data and computer software that are or may be required to be delivered or otherwise provided under the contract - including all Option CLINs or other optional or contingent delivery requirements (i.e., presuming that the Government will exercise the option to require delivery), online or remote access to information, and firmware or other computer software to be embedded in hardware deliverables. Specifically address source code, object code, executable code, documentation, software support tools, S/SEE (software/systems engineering environment) documentation, Systems/Software Requirements Documents, Interface Control Documents, etc., regarding any computer software.

(End of Clause)

AFLCMC/WNS-H004 TASK ORDER CONTRACT TYPES (NOV 2018)

The following contract types may be used on task orders issued under this contract:

− Fixed Price (Firm-Fixed Price [FFP] and Fixed-Price Incentive [FPI]). Fixed price orders may be issued when the scope of effort is sufficiently defined to allow technical and cost risks to be predicted with reasonable certainty. Under this contract type, the contractor shall be required to submit a fixed price proposal to accomplish the total effort inclusive of all labor, material, and travel costs, as appropriate. The contractor shall be required to deliver the specified product within the specified time and fixed price amount.

- Cost Reimbursement (Cost Reimbursement No Fee [CRNF], Cost Plus Fixed Fee [CPFF] and Cost Plus Incentive Fee [CPIF]). Cost reimbursement orders may be issued when it is not possible to precisely define the magnitude of the effort required to accomplish the stated effort. The estimated cost for an order shall be based on the contractor's actual labor rates and material costs, with the applicable overhead, G&A, and fee. The order amount will be expressed as a total cost plus fee.

− Hybrid. Any combination of the contract types above.

Individual task orders will specify the type of order to be used and will incorporate/modify all applicable clauses not incorporated in the basic SCARS ID/IQ Contract into the task order. Such applicable clauses will pertain only to the individual task order.