27.405-3 Commercial computer software.

(a) When contracting other than from GSA’s Multiple Award Schedule contracts for the acquisition

of commercial computer software, no specific contract clause prescribed in this subpart need be

used, but the contract shall specifically address the Government’s rights to use, disclose, modify,

distribute, and reproduce the software. Section 12.212 sets forth the guidance for the acquisition of

commercial computer software and states that commercial computer software or commercial

computer software documentation shall be acquired under licenses customarily provided to the

public to the extent the license is consistent with Federal law and otherwise satisfies the

Government’s needs. The clause at 52.227-19, Commercial Computer Software License, may be used

when there is any confusion as to whether the Government’s needs are satisfied or whether a

customary commercial license is consistent with Federal law. Additional or lesser rights may be

negotiated using the guidance concerning restricted rights as set forth in 27.404-2(d), or the clause

at 52.227-19. If greater rights than the minimum rights identified in the clause at 52.227-19 are

needed, or lesser rights are to be acquired, they shall be negotiated and set forth in the contract.

This includes any additions to, or limitations on, the rights set forth in paragraph (b) of the clause at

52.227-19 when used. Examples of greater rights may be those necessary for networking purposes

or use of the software from remote terminals communicating with a host computer where the

software is located. If the computer software is to be acquired with unlimited rights, the contract

shall also so state. In addition, the contract shall adequately describe the computer programs and/or

databases, the media on which it is recorded, and all the necessary documentation.

(b) If the contract incorporates, makes reference to, or uses a vendor’s standard commercial lease,

license, or purchase agreement, the contracting officer shall ensure that the agreement is consistent

with paragraph (a) of this subsection. The contracting officer should exercise caution in accepting a

vendor’s terms and conditions, since they may be directed to commercial sales and may not be

appropriate for Government contracts. Any inconsistencies in a vendor’s standard commercial

agreement shall be addressed in the contract and the contract terms shall take precedence over the

vendor’s standard commercial agreement. If the clause at 52.227-19 is used, inconsistencies in the

vendor’s standard commercial agreement regarding the Government’s right to use, reproduce or

disclose the computer software are reconciled by that clause.

(c) If a prime contractor under a contract containing the clause at 52.227-14, Rights in DataGeneral, with paragraph (g)(4) (Alternate III) in the clause, acquires restricted computer software

from a subcontractor (at any tier) as a separate acquisition for delivery to or for use on behalf of the

Government, the contracting officer may approve any additions to, or limitations on the restricted

rights in the Restricted Rights Notice of paragraph (g)(4) in a collateral agreement incorporated in

and made part of the contract.

Parent topic: 27.405 Other data rights provisions.