Lawyers say FAR revisions could fetter software purchasing

The government's proposed changes to the Federal Acquisition Regulations for buying software could make it difficult for agencies to adopt commercial software licenses, a Boston-based law firm warned.

In one of the suggested revisions, which would rewrite FAR Part 27 to shorten and clarify it for average readers, the definition of "commercial computer software" is restricted to that which is sold, leased or licensed commercially.

The leaner definition leaves no room for beta versions or customized software, according to a briefing released this week by Hale and Dorr LLP's Government and Regulatory Affairs attorneys Barry Hurewitz and Jay Urwitz. As a result, they contended, the changes "may make it more difficult for software vendors to use their own commercial software licenses with federal agencies."

"Instead, the standard government software license terms would require the software to carry a special restrictive notice and would provide minimum rights to the government," they wrote.

That limited set of rights?including such conventional abilities as archiving the software, adapting it to other systems and using it only on a prespecified number of computers?would deny the government the flexibility it needs in software procurement, Hurewitz and Urwitz said.

It "does not reflect that today's commercial software is often distributed via the Internet, may be licensed by networked 'seats' rather than by individual computers and may come with different pricing options for different service plans or configurations," they wrote.

The public can comment on the proposed changes to FAR Part 27 until July 28. They can mail the General Services Administration's FAR Secretariat or e-mail comments to farcase.1999-402@gsa.gov. All letters regarding this proposal must refer to FAR case 1999-402.

Vandana Sinha writes for Government Computer News magazine