MILLER ON PROCUREMENT.

***THE TEN PRACTICAL RULES***

The Ten Practical Rules For Protecting Rights In Technical Data And Computer Software By Matt Simchak (wiley, Rein & Fielding)

1. Exploit the opportunity to claim commercial item treatment for technical data and software Burden One: Undertake the steps necessary to ensure that the company's products and services qualify as "commercial items" in Federal procurements.

2. Develop at private expense: heeding the cost-based definitons Burden Two: Elect to structure and apply one's cost-accounting systems so that promising technologies can be shown to have been developed at private, rather than Government, expense.

3. Avoid developing items directly in the performance of a government contract: Heeding the non-cost-based definitions Burden Three: Be careful not to enter thoughtlessly into a government contract or subcontract that requires that the company develop an item or software.

4. Keep Evidence Burden Four: Make- and keep- clear and convincing evidence that would prove that an item or software product was developed at private expense.

5. Refine the Scope of "Government Purposes" Burden Five: Whenever one contemplates a sale of a Government Purpose Rights license, negotiate with the Government to redefine the term "Government Purposes", being sure to reserve the exclusive commercial rights in secondary markets such as foreign programs, state and local programs, other Federal markets and even commercial markets.

6. Provide written notice prior to contract award Burden Six: Before the company enters into a contract, give written notice of any data and software to be delivered to the Government with less-than-unlimited rights, and be prepared to explain why the company is entitled to do so.

7. Give notice during contract performance Burden Seven: Give an additional notice during performance, before committing to the use of any item whose data or software code the contractor intends to deliver with less-than-unlimited rights.

8. Reach Agreements with the Government Burden Eight: Reach an agreement with a DOD contracting officer, sometime during performance, to list the data or software that will go to the Government with something less than unlimited rights.

9. Mark Data and software Burden Nine: Mark every piece of proprietary data and software with the appropriate protective legend before delivering that material to the Government.

10. Protect proprietary information Burden Ten: In all aspects of one's business, Government and commercial, protect all data and software believed to be other than unlimited-rights material as though that material contains trade secrets.

***BRAND NAME OR EQUAL***

About 40% of IT based on my experience is bought via brand name. However, we are seeing much lawlessness under the schedule program where the Govt only checks the price of one brand or only checks one schedule for the item. Remember the GAO report on DSS W and their idiot excuse that GSA never told them they must check three? This has only been in the FAR for about 50 years.

But it is my contention that if you don't have a sole source rationale and RFP or schedule buy based on a brand is illegal. The very least which is acceptable is brand name and salient characteristics of other acceptable brands. Even better is an RFP which says Brand A Brand B and Brand C are all acceptable and here are the salient characteristics.

I even say one smart agency where a sales guy thought he owned the account issue the RFP naming Brand B when the techies and sales guy were touting Brand A. Talk about making a sales guy pucker up.

But any RFP which says Oracle, in the absence of an F&D under FAR Part 6 is simply illegal. Now your move.