Loren Data's SAM Daily™

FBO DAILY - FEDBIZOPPS ISSUE OF OCTOBER 26, 2017 FBO #5816
SOURCES SOUGHT

D -- Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) (132-32, 132-33, 132-34) - RFI

Notice Date

10/24/2017
 

Notice Type

Sources Sought
 

NAICS

511210 — Software Publishers
 

Contracting Office

General Services Administration, Federal Acquisition Service (FAS), Center for IT Schedule Operations (QTFA), 1800 F St NW, Washington, District of Columbia, 20405, United States
 

ZIP Code

20405
 

Solicitation Number

RFI102417
 

Archive Date

12/9/2017
 

Point of Contact

Sharon A. Aiken, Phone: 2023579664
 

E-Mail Address

sharon.aiken@gsa.gov
(sharon.aiken@gsa.gov)
 

Small Business Set-Aside

N/A
 

Description

U.S. General Services Administration Federal Acquisition Service Office of IT Schedule 70 Contract Operations Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) (132-32, 132-33, 132-34) Request for Information (RFI) October 24, 2017 RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 2 Table of Contents A. Introduction B. Summary of Proposed Changes C. Proposed Changes to the IT Schedule 70 Solicitation pertaining to Software SINS 132-32, 132-33, 132-34 D. Proposed Changes to the IT Schedule 70 “Critical Information Supplement” pertaining to Software SINS 132-32, 132-33, 132-34 E. Questions for Industry F. Questions for Government Agencies G. Deadline for Responses H. Use of Results and Confidentiality A. Introduction The Software Special Item Numbers (SINs) on the IT Schedule 70 contract vehicle that define software use rights and mutual obligations have not been updated in more than ten years. In recent years, industry’s software delivery models and the Federal Government’s software needs have evolved. This proposed update to the Software SINs seeks to capture these changes and refine the mutual rights and obligations between Federal Government software buyers and software providers. The proposed changes are: ● Redefinition of SIN 132-32 Term Software Licenses, ● Optional Rights under SIN 132-33 Perpetual Software Licenses, ● Replacement of SIN 132-34 Software Maintenance as a Service with Software Maintenance as a Product ● Utilization Limitations Under SINs 132-32, 132-33, 132-34 ● Commercial Supplier Agreements (CSA’s) are defined to include Enterprise User License Agreements (EULA’s), Terms of Service Agreements (TOS’s) and other licensing agreements. PLEASE NOTE THAT THIS RFI HIGHLIGHTS THE PROPOSED CHANGES TO BOTH THE SOLICITATION AND THE CRITICAL INFORMATION ADDENDUM TO THE SOLICITATION AS THEY RELATE TO SOFTWARE ONLY. RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 3 B. Summary of Changes 1) Term Software Licenses (SIN 132-32) As Software delivery models and Cloud software licensing has evolved, the distinction between “Term” and “Cloud” software products like Infrastructure as a Service (IaaS), Software as a Service (SaaS), and Platform as a Service (PaaS) has become less distinct. Oftentimes, Cloud software products are licensed under traditional term license agreements creating an opportunity for confusion. In order to properly delineate “Term” licenses under SIN 132-32 and to keep those licenses distinct from any form of Cloud products available under SIN 132-40 (Cloud Computing Services), “Term Software Licenses” have been redefined so that they are only applicable to software that is provisioned and executed from the “user’s servers, computing end-points, or other designated computing devices where the user has the right to load or deploy software.” Additionally, the requirement to convert term licenses into perpetual licenses has been modified so that it is only required when an Offeror offers the same conversions to their commercial customers. 2) Perpetual Software Licenses (SIN 132-33) Recent requirements of the Federal Information Technology Acquisition Reform Act (FITARA), The MEGABYTE Act, and the OMB Software Memo of June 2, 2016 (M-16-12) have required the Federal Government to begin to manage and treat software as a valued asset. The focus of these initiatives has been on the ability to inventory existing software assets and for Federal Government buyers to make informed decisions before conducting new software acquisitions. This proposal does not change the definition of Perpetual Licenses. However, in order to support recent software asset management initiatives, this proposal creates two options that software vendors may volunteer to include with their perpetual licenses. Option 1 contemplates software vendors that will embed software identification tags in their software products that are consistent with the ISO/IEC 19970-2 standard. Option 2 contemplates software vendors that will allow incumbent software licensees a right to transfer or move perpetual licenses to a new licensee for a previously negotiated fee. It is intended that these new asset management rights and features are voluntary, meaning that software vendors who wish to offer them may optionally include them on their Schedule contract. 3) Software Maintenance as a Service (SIN 132-34) The current Special Item Number - Software Maintenance as a Service (132-34) will be deleted and replaced by Software Maintenance as a Product using the same SIN (132-34). Software Maintenance as a Service shall no longer be an enumerated SIN and shall be RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 4 deleted and the services previously provided under Software Maintenance as a Service shall be provided under Information Technology Professional Services (132-51). Currently, Software Maintenance as a Product does not have its own SIN. It is a non-enumerated embedded component of both Term Software Licenses and Perpetual Software Licenses. Software Maintenance as a Product, henceforth, will be the maintenance that software vendors charge for on an annual basis. Because Software Maintenance as a Product has not been previously identified with its own SIN and because it is a component of a Term License or Perpetual License acquisition, it has been difficult to track the Federal Government’s actual spend on annual software maintenance. Under the current software maintenance SIN structures, it is impossible to differentiate a software purchase from an annual software maintenance purchase. Providing Software Maintenance as a Product with its own SIN identifier allows the Federal Government to better manage software as an asset and appropriately track categories of spend by differentiating between software licenses and software maintenance. 4. Utilization Limitations GSA seeks to clarify the rights the Federal Government maintains when Derivative Works such as modifications, customizations or other enhancements are created to the licensed software. The ownership of such Derivative Works can be a cause of confusion sometimes requiring the government to pay additional fees to ensure uninterrupted usage despite the fact that the Federal Government paid for the creation of the Derivative Work. GSA clarifies its rights in Derivative Works by declaring that such works shall be owned by the owner of the underlying software, but the Federal Government shall have a right to use the Derivative Work without paying for a new usage right. RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 5 C) Proposed Changes to the IT Schedule 70 Solicitation pertaining to Software SINS 132-32, 132-33, 132-34 PLEASE NOTE: LANGUAGE THAT IS NOTED WITH STRIKETHROUGH ARE PROPOSED DELETIONS. LANGUAGE THAT IS IN [BOLD ITALICS AND BRACKETS] ARE THE PROPOSED ADDITIONS. 132 32 --- Term Software License - SUBJECT TO COOPERATIVE PURCHASING Includes operating system software, application software, EDI translation and mapping software, enabled E-Mail message based products, Internet software, database management programs, and other software. Software maintenance as a product includes the publishing of bug/defect fixes via patches and updates/upgrades in function and technology to maintain the operability and usability of the software product. It may also include other no charge support that is included in the purchase price of the product in the commercial marketplace. No charge support includes items such as user blogs, discussion forums, on-line help libraries and FAQs (Frequently Asked Questions), hosted chat rooms, and limited telephone, email and/or web-based general technical support for user s self diagnostics. Software maintenance as a product does NOT include the creation, design, implementation, integration, etc. of a software package. These examples are considered software maintenance as a service under SIN 132.34 Software Maintenance. Software Maintenance as a product is billed at the time of purchase. NOTE: The word "Term" is defined in this Solicitation as "a limited period of time". [Term Software Licenses are distinct from Cloud (SIN 132-40). Unlike the Cloud SIN, Term software is installed and executed from the user’s servers, computing end-points, or other designated computing devices where the user has the right to load and deploy software. This SIN is NOT Infrastructure as a Service (IaaS), Platform as a Service (PaaS), or Software as a Service (SaaS) as defined in the Cloud SIN 132-40. Term Software Licenses are distinct from Electronic Commerce and Subscription Services (SIN 132-52). Term Software Licenses have a limited duration and are not owned in perpetuity. Unless Offerors provide an option for converting Term licenses into perpetual licenses, users lose the right to use these licenses upon the end of the term period.] RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 6 NOTE: The Transactional Data Reporting (TDR) Rule requires vendors to electronically report the price the federal government paid for an item or service purchased through GSA acquisition vehicles. The TDR PILOT APPLIES TO THIS SIN. If a TDR covered SIN(s) is included on a contract or offer with non-TDR SIN(s), then the entire contract is subject to TDR and the Price Reduction Clause (PRC) and Commercial Sales Practice (CSP) requirements are removed for the entire contract. However, the TDR clause does not exempt the contractor from existing reporting requirements found elsewhere in the contract. NOTE: The word "Term" is defined in this Solicitation as "a limited period of time". Please see the additional terms and conditions applicable to this Special Item Number (SIN) found in a separate attachment to the Solicitation. These terms and conditions do not contain specific and negotiated contractual language for this SIN. The Schedule contractor may have submitted additional information to complete the "fill-in" to the terms and conditions. The ordering activities shall request the Schedule contractors to submit these additional contract terms and conditions for this applicable SIN when responding to an order. Ordering activities may request from Schedule contractors their awarded [Commercial Supplier Agreement (to include] End User License Agreements (EULAs) or Terms of Service (TOS) Agreements), which will assist the ordering activities with reviewing the terms and conditions and additional products and services and prices which, may be included. Exception: According to SBA standards NAICS code 541519 has the dollar value standard of $27.5 million except if you are a Value Added Reseller (150 employee standard). For more information, please visit http://www.naics.com/naicswp2014/wp-content/uploads/2014/10/2014-Size_Standards_Table.pdf [https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf] RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 7 NAICS Sales: $490,795,724 Sales Period: Oct 1, 2014 to Sep 30, 2015 Cooperative Purchasing: Yes Set Aside: No FSC/PSC Code : 7030 Maximum Order : $500,000 Number Description Business Size 511210 Software Publishers $38.5 million 541519 Other Computer Related Services $27.5 million SubSIN Categorie(s): FSC/PSC Class 7030 ADP SOFTWARE ● Ancillary Financial Systems Software ● Application Software ● Communications Software ● Core Financial Management Software ● Electronic Commerce (EC) Software ● Large Scale Computers ● Operating System Software ● Special Physical, Visual, Speech, and Hearing Aid Software. Provide specific information ● Utility Software Offerors are encouraged to identify within their software items any component interfaces that support open standard interoperability. An item’s interface may be identified as interoperable on the basis of participation in a Government agency-sponsored program or in an independent organization program. Interfaces may be identified by reference to an interface registered in the component registry located at http://www.core.gov. FSC/PSC Class J070 MAINT/REPAIR/REBUILD OF EQUIPMENT- ADP EQUIPMENT/SOFTWARE/SUPPLIES/SUPPORT EQUIPMENT ● Maintenance of Software RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 8 132 33 --- Perpetual Software License - SUBJECT TO COOPERATIVE PURCHASING Includes operating system software, application software, EDI translation and mapping software, enabled E-mail message based products, Internet software, database management programs, and other software. Software maintenance as a product includes the publishing of bug/defect fixes via patches and updates/upgrades in function and technology to maintain the operability and usability of the software product. It may also include other no charge support that is included in the purchase price of the product in the commercial marketplace. No charge support includes items such as user blogs, discussion forums, on-line help libraries and FAQs (Frequently Asked Questions), hosted chat rooms, and limited telephone, email and/or web-based general technical support for user s self diagnostics. Software maintenance as a product does NOT include the creation, design, implementation, integration, etc. of a software package. These examples are considered software maintenance as a service under SIN 132.34 Software Maintenance as a Service. Software Maintenance as a product is billed at the time of purchase. NOTE: The Transactional Data Reporting (TDR) Rule requires vendors to electronically report the price the government paid for an item or service purchased through GSA acquisition vehicles. The TDR PILOT APPLIES TO THIS SIN. If a TDR covered SIN(s) is included on a contract or offer with non-TDR SIN(s), then the entire contract is subject to TDR and the Price Reduction Clause (PRC) and Commercial Sales Practice (CSP) requirements are removed for the entire contract. However, the TDR clause does not exempt the contractor from existing reporting requirements found elsewhere in the contract. NOTE: The word "Perpetual" is defined in this Solicitation as "continuing forever, everlasting, valid for all time". [Section 837 of The Federal Information Technology Acquisition Reform Act (FITARA) of 2015, requires GSA to seek agreements with software vendors that enhance government-wide acquisition, shared use, and dissemination of software, as well as compliance with end user license agreements. The Megabyte Act of 2016 requires agencies to inventory software assets and to make informed decisions prior to new software acquisitions. In June of 2016, the Office of Management and Budget issued guidance on software asset management requiring each CFO Act (Public Law 101-575 – 11/15/1990) agency to begin software inventory management (M-16-12). To support these requirements, Offerors may elect to include the terms of Option 1 and/or Option 2 below, which support software asset management and government-wide reallocation or transferability of perpetually licensed software. RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 9 OPTION 1 Software Asset Identification Tags (SWID) Option 1 is applicable when the Offeror agrees to include the International Organization for Standardization/International Electrotechnical Commission 19770-2 (ISO/IEC 19770-2:2015) standard identification tag (SWID Tag) as an embedded element in the software. An ISO/IEC 19970-2 tag is a discoverable identification element in software that provides licensees enhanced asset visibility. Enhance visibility supports both the goals of better software asset management and license compliance. Offerors may use the National Institute of Standards and Technology (NIST) document “NISTIR 8060: Guidelines for Creation of Interoperable Software Identification (SWID) Tags,” December 2015 to determine if they are in compliance with the ISO/IEC 19770-2 standard. OPTION 2 Reallocation of Perpetual Software Option 2 is applicable when the Offeror agrees to allow transferability or reuse of software, for authorized government users, who were not the original grantee of the license rights. Offerors may charge a pre-determined administrative fee for this right, at the time of transfer, as well as designate a process that ensures the transferable software assets may be moved without violating pre-existing licensing limitations or infringing intellectual property rights. Option 2 does not grant the Government a right to make or use unauthorized or illegal copies of software. It provides the Government a right, working with assistance of the licensor, to move perpetual software assets to Government entities that have a need, without the requirement to repurchase already owned Government assets.] Please see the additional terms and conditions applicable to this Special Item Number (SIN) found in a separate attachment to the Solicitation. These terms and conditions do not contain specific and negotiated contractual language for this SIN. The Schedule contractor may have submitted additional information to complete the "fill-in" to the terms and conditions. The ordering activities shall request the Schedule contractors to submit these additional contract terms and conditions for this applicable SIN when responding to an order. Ordering activities may request from Schedule contractors their awarded [Commercial Supplier Agreement (to include] End User License Agreements (EULAs) or Terms of Service (TOS) Agreements), which will assist the ordering activities with reviewing the terms and conditions and additional products and services and prices which, may be included. Exception: According to SBA standards NAICS code 541519 has the dollar value standard of $27.5 million except if you are a Value Added Reseller (150 employee standard). For more information, please visit RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 10 http://www.naics.com/naicswp2014/wp-content/uploads/2014/10/2014-Size_Standards_Table.pdf [https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf] Sales: $2,729,325,910 Sales Period: Oct 1, 2014 to Sep 30, 2015 Cooperative Purchasing: Yes Set Aside: No FSC/PSC Code : 7030 Maximum Order : $500,000 Number Description Business Size 511210 Software Publishers $38.5 million 541519 Other Computer Related Services $27.5 million SubSIN Categorie(s): FSC/PSC Class 7030 ADP SOFTWARE ● Ancillary Financial Systems Software ● Application Software ● Communications Software ● Core Financial Management Software ● Electronic Commerce (EC) Software ● Large Scale Computers ● Microcomputers ● Operating System Software ● Special Physical, Visual, Speech, and Hearing Aid Software. Provide specific information. ● Utility Software Offerors are encouraged to identify within their software items any component interfaces that support open standard interoperability. An item's interface may be identified as interoperable on the basis of participation in a Government agency-sponsored program or in an independent organization program. Interfaces may be identified by reference to an interface registered in the component registry located at http://www.core.gov. Contractors are encouraged to offer SIN 132-34: Maintenance of Software as a [Product] Service in conjunction with SIN 132-32 Term Software Licenses and/or SIN 132-33 Perpetual Software Licenses. FSC/PSC Class J070 MAINT/REPAIR/REBUILD OF EQUIPMENT- ADP RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 11 EQUIPMENT/SOFTWARE/SUPPLIES/SUPPORT EQUIPMENT ● Maintenance of Software 132 34 --- Maintenance of Software as a Service [Product]- SUBJECT TO COOPERATIVE PURCHASING Software maintenance as a service creates, designs, implements, and/or integrates customized changes to software that solve one or more problems and is not included with the price of the software. Software maintenance as a service includes person-to-person communications regardless of the medium used to communicate: telephone support, on-line technical support, customized support, and/or technical expertise which are charged commercially. Software maintenance as a service is billed in arrears in accordance with 31 U.S.C. 3324. [Software Maintenance as a Product is the payment of standardized maintenance services provided by a software publisher or designated agent of the software publisher to maintain the operability and functionality of the software. These services are defined in a standardized commercial program and include items like bug/defect fixes via patches and updates/upgrades in functionality. It may also include access to items such as user blogs, discussion forums, on-line help libraries and FAQs (Frequently Asked Questions), hosted chat rooms, telephone support, email and/or web-based general technical support for user self diagnostics. Software vendors may offer multiple versions of standardized maintenance programs that enhance the benefits provided to include extended hours of service and/or other commitments to meet minimum service levels. Any form of support service that includes open-ended services that are billed in arrears is Information Technology Professional Services (SIN 132-51) not Software Maintenance as a Product. Software Maintenance as a Product is billed at the time of software licensing and then again on a periodic or annual basis. Software Maintenance as a Product provides coverage of the relevant software licenses for a twelve-month period although longer or shorter periods may be acceptable. Software maintenance as a Product may be mandatory in the first year of licensing, but may be optional for renewal thereafter. When Software Maintenance as a Product is not renewed, the corresponding Software Maintenance as a Product lapses. Renewal fees in order to reinstate lapsed Software Maintenance as a Product are also considered payments for Software Maintenance as a Product. Offerors who allow for lapsed Software Maintenance as a Product to be renewed shall indicate the fee structure for such renewals. Under no circumstances shall the cost of reinstating lapsed Software Maintenance as a Product exceed what the total cost of keeping the software under Maintenance would have cost, if the Software Maintenance as a Product had not lapsed. When the cost of reinstating lapsed Software Maintenance as a Product matches or exceeds the cost of issuing new software, the Offer shall provide the option to replace the lapsed software with new software.] RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 12 NOTE: The Transactional Data Reporting (TDR) Rule requires vendors to electronically report the price the federal government paid for an item or service purchased through GSA acquisition vehicles. The TDR PILOT APPLIES TO THIS SIN. If a TDR covered SIN(s) is included on a contract or offer with non-TDR SIN(s), then the entire contract is subject to TDR and the Price Reduction Clause (PRC) and Commercial Sales Practice (CSP) requirements are removed for the entire contract. However, the TDR clause does not exempt the contractor from existing reporting requirements found elsewhere in the contract. NOTE: Please see the additional terms and conditions applicable to this Special Item Number (SIN) found in a separate attachment to the Solicitation. These terms and conditions do not contain specific and negotiated contractual language for this SIN. The Schedule contractor may have submitted additional information to complete the "fill-in" to the terms and conditions. The ordering activities shall request the Schedule contractors to submit these additional contract terms and conditions for this applicable SIN when responding to an order. Ordering activities may request from Schedule contractors their awarded [Commercial Supplier Agreement (to include] End User License Agreements (EULAs) or Terms of Service (TOS) Agreements), which will assist the ordering activities with reviewing the terms and conditions and additional products and services and prices which, may be included. Exception: According to SBA standards NAICS code 541519 has the dollar value standard of $27.5 million except if you are a Value Added Reseller (150 employee standard). For more information, please visit http://www.naics.com/naicswp2014/wp-content/uploads/2014/10/2014-Size_Standards_Table.pdf [https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf] RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 13 Sales: $908,072,191 Sales Period: Oct 1, 2014 to Sep 30, 2015 Cooperative Purchasing: Yes Set Aside: No FSC/PSC Code : J070 Maximum Order : $500,000 Number Description Business Size 511210 Software Publishers $38.5 million 541511 Custom Computer Programming Services $27.5 million 541519 Other Computer Related Services $27.5 million SubSIN Categorie(s): FSC/PSC Class J070 MAINT/REPAIR/REBUILD OF EQUIPMENT- ADP EQUIPMENT/SOFTWARE/SUPPLIES/SUPPORT EQUIPMENT •Maintenance of Software RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 14 D. Proposed Changes to the IT Schedule 70 “Critical Information Supplement” pertaining to Software SINS 132-32, 132-33, 132-34 PLEASE NOTE: LANGUAGE THAT IS NOTED WITH STRIKETHROUGH ARE PROPOSED DELETIONS. LANGUAGE THAT IS IN [BOLD ITALICS AND BRACKETS] ARE THE PROPOSED ADDITIONS. TERMS AND CONDITIONS APPLICABLE TO TERM SOFTWARE LICENSES (SPECIAL ITEM NUMBER 132-32), PERPETUAL SOFTWARE LICENSES (SPECIAL ITEM NUMBER 132-33) AND MAINTENANCE AS A SERVICE [PRODUCT] (SPECIAL ITEM NUMBER 132-34) OF GENERAL PURPOSE COMMERCIAL INFORMATION TECHNOLOGY SOFTWARE 1. INSPECTION/ACCEPTANCE The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The ordering activity reserves the right to inspect or test any software that has been tendered for acceptance. The ordering activity may require repair or replacement of nonconforming software at no increase in contract price. The ordering activity must exercise its post acceptance rights (1) within a reasonable time after the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the software, unless the change is due to the defect in the software. 2. ENTERPRISE USER LICENSE AGREEMENTS REQUIREMENTS (EULA) [COMMERCIAL SUPPLIER AGREEMENTS] The Contractor shall provide all [Commercial Supplier Agreements to include] Enterprise User License Agreements or Terms of Service (TOS) agreements in an editable Microsoft Office (Word) format for review prior to award. 3. GUARANTEE/WARRANTY a. Unless specified otherwise in this contract, the Contractor’s standard commercial guarantee/warranty as stated in the contract’s commercial pricelist will apply to this contract. **Contractor is to insert commercial guarantee/warranty clauses.** a. [The Contractor’s commercial guarantee/warranty shall be included in the Commercial Supplier Agreement.] b. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract. If no implied warranties are given, an express warranty of at least 60 days must be given in accordance with FAR 12.404(b)(2) c. Limitation of Liability. Except as otherwise provided by an express or implied warranty, the Contractor will not be liable to the ordering activity for consequential damages resulting from any defect or deficiencies in accepted items. 4. TECHNICAL SERVICES The Contractor, without additional charge to the ordering activity, shall provide a hot line technical support number___________ for the purpose of providing user assistance and guidance in the implementation of the software. The technical support number is available from ___________ to RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 15 _____________. **Provide telephone number and hours of operation for technical support hot line; indicate applicable time zone for the hours of operation—i.e., Eastern time, Central time, Mountain time or Pacific time.** 5. SOFTWARE MAINTENANCE a. Software maintenance as it is defined: (select software maintenance type) : _ 1. Software Maintenance as a Product (SIN 132-32 or SIN 132-33) Software maintenance as a product includes the publishing of bug/defect fixes via patches and updates/upgrades in function and technology to maintain the operability and usability of the software product. It may also include other no charge support that are included in the purchase price of the product in the commercial marketplace. No charge support includes items such as user blogs, discussion forums, on-line help libraries and FAQs (Frequently Asked Questions), hosted chat rooms, and limited telephone, email and/or web-based general technical support for user’s self diagnostics. Software maintenance as a product does NOT include the creation, design, implementation, integration, etc. of a software package. These examples are considered software maintenance as a service. Software Maintenance as a product is billed at the time of purchase. _ 2. Software Maintenance as a Service (SIN 132-34) Software maintenance as a service creates, designs, implements, and/or integrates customized changes to software that solve one or more problems and is not included with the price of the software. Software maintenance as a service includes person-to-person communications regardless of the medium used to communicate: telephone support, on- line technical support, customized support, and/or technical expertise which are charged commercially. Software maintenance as a service is billed arrears in accordance with 31 U.S.C. 3324. Software maintenance as a service is billed in arrears in accordance with 31 U.S.C. 3324. b. Invoices for maintenance service shall be submitted by the Contractor on a quarterly or monthly basis, after the completion of such period. Maintenance charges must be paid in arrears (31 U.S.C. 3324). PROMPT PAYMENT DISCOUNT, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE. 6. [5]. PERIODS OF TERM LICENSES (SIN 132-32) AND MAINTENANCE [AS A PRODUCT] (SIN 132-34) a. The Contractor shall honor orders for periods for the duration of the contract period or a lessor [lesser] period of time. b. Term licenses and/or maintenance may be discontinued by the ordering activity on thirty (30) calendar days written notice to the Contractor. RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 16 c. Annual Funding. When [using] annually appropriated funds are cited on an order for term licenses and/or maintenance [as a product], the period of the term licenses and/or maintenance shall automatically expire on September 30 of the contract period, or at the end of the contract period, whichever occurs first. Renewal of the term licenses and/or maintenance orders citing the new appropriation shall be required, if the term licenses and/or maintenance is to be continued during any remainder of the contract period. d. Cross-Year Funding Within Contract Period. Where an ordering activity’s specific appropriation authority provides for funds in excess of a 12 month (fiscal year) period, the ordering activity may place an order under this schedule contract for a period up to the expiration of the contract period, notwithstanding the intervening fiscal years. e. Ordering activities should notify the Contractor in writing thirty (30) calendar days prior to the expiration of an order, if the term licenses and/or maintenance is to be terminated at that time. Orders for the continuation of term licenses and/or maintenance will be required if the term licenses and/or maintenance is to be continued during the subsequent period. **The phrase, “Term Licenses and/or Maintenance” in the preceding paragraphs may need to be revised in order to be consistent with the Offeror’s proposal; e.g., if only software maintenance is offered, all references to “term licenses” should be deleted from the preceding paragraphs.** 7. [6]. CONVERSION FROM TERM LICENSE TO PERPETUAL LICENSE a. The ordering activity may convert term licenses to perpetual licenses for any or all software at any time following acceptance of software. At the request of the ordering activity the Contractor shall furnish, within ten (l0) calendar days, for each software product that is contemplated for conversion, the total amount of conversion credits which have accrued while the software was on a term license and the date of the last update or enhancement. [When a contractor commercially offers conversions of term licenses to perpetual licenses, and an ordering activity requests such a conversion, the contractor shall provide the total amount of conversion credits available for the subject software within ten (10) calendar days.] b. Conversion credits which are provided shall, within the limits specified, continue to accrue from one contract period to the next, provided the software remains on a term license within the ordering activity. [When conversion credits are provided, they shall continue to accrue from one contract period to the next, provided the software has been continually licensed without interruption.] c. The term license for each software product shall be discontinued on the day immediately preceding the effective date of conversion from a term license to a perpetual license. d. [When conversion from term licenses to perpetual licenses is offered t]he price the ordering activity shall pay will be the perpetual license price that prevailed at the time such software was initially ordered under a term license, or the perpetual license price prevailing at the time of conversion from a term license to a perpetual license, whichever is the less, minus an amount equal to % of all term license payments during the period that the software was under a term license within the ordering activity. 8. [7]. TERM LICENSE CESSATION a. After a software product has been on a continuous term license for a period of__________* months, a fully paid-up, non-exclusive, perpetual license for the software product shall automatically accrue to the ordering activity. The period of continuous term license for automatic accrual of a fully paid-up perpetual license does not have to be achieved during a particular fiscal year; it is a written Contractor commitment which continues to be available for software that is initially ordered under this contract, until a fully paid-up perpetual license accrues to the ordering activity. However, should the term license of the software be discontinued before the specified period of the continuous term license has been satisfied, the perpetual license accrual shall be forfeited. [Contractors who do not commercially offer conversions of term licenses to perpetual licenses shall indicate that their term RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 17 licenses are not eligible for conversion at any time]. **Each separately priced software product shall be individually enumerated, if different accrual periods apply for the purpose of perpetual license attainment.** b. The Contractor agrees to provide updates and maintenance[as a product] service for the software after a perpetual license has accrued, at the prices and terms of Special Item Number l32-34, if the licensee elects to order such services. Title to the software shall remain with the Contractor. 9. [8]. UTILIZATION LIMITATIONS - (SIN 132-32, SIN 132-33, AND SIN 132-34) a. Software acquisition is limited to commercial computer software defined in FAR Part 2.101. b. When acquired by the ordering activity, commercial computer software and related documentation so legend shall be subject to the following: (1) Title to and ownership of the software and documentation shall remain with the Contractor, unless otherwise specified. (2) Software licenses are by site and by ordering activity. An ordering activity is defined as a cabinet level or independent ordering activity. The software may be used by any subdivision of the ordering activity (service, bureau, division, command, etc.) that has access to the site the software is placed at, even if the subdivision did not participate in the acquisition of the software. Further, the software may be used on a sharing basis where multiple agencies have joint projects that can be satisfied by the use of the software placed at one ordering activity's site. This would allow other agencies access to one ordering activity's database. For ordering activity public domain databases, user agencies and third parties may use the computer program to enter, retrieve, analyze and present data. The user ordering activity will take appropriate action by instruction, agreement, or otherwise, to protect the Contractor's proprietary property with any third parties that are permitted access to the computer programs and documentation in connection with the user ordering activity's permitted use of the computer programs and documentation. For purposes of this section, all such permitted third parties shall be deemed agents of the user ordering activity. (3) Except as is provided in paragraph 9.b(2) [8.b(2)] above, the ordering activity shall not provide or otherwise make available the software or documentation, or any portion thereof, in any form, to any third party without the prior written approval of the Contractor. Third parties do not include prime Contractors, subcontractors and agents of the ordering activity who have the ordering activity's permission to use the licensed software and documentation at the facility, and who have agreed to use the licensed software and documentation only in accordance with these restrictions. This provision does not limit the right of the ordering activity to use software, documentation, or information therein, which the ordering activity may already have or obtains without restrictions. (4) The ordering activity shall have the right to use the computer software and documentation with the computer for which it is acquired at any other facility to which that computer may be transferred, or in cases of Disaster Recovery, the ordering activity has the right to transfer the software to another site if the ordering activity site for which it is acquired is deemed to be unsafe for ordering activity personnel; to use the computer software and documentation with a backup computer when the primary computer is inoperative; to copy computer programs for safekeeping (archives) or backup purposes; to transfer a copy of the software to another site for purposes of benchmarking new hardware and/or software; and to modify the software and documentation or combine it with other software, provided that the unmodified portions shall remain subject to these restrictions. (5) "Commercial Computer Software" may be marked with the Contractor's standard commercial restricted rights legend, but the schedule contract and schedule pricelist, including this clause, "Utilization Limitations" are the only governing terms and conditions, and shall take precedence and supersede any different or additional terms and conditions included in the RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 18 standard commercial legend. [(6) Licensee Data belongs exclusively to Licensee, regardless of where the Data may reside at any moment in time including, but not limited to, Licensor hardware, networks or other infrastructure and facilities where Data may reside, transit through or be stored from time to time. Licensor makes no claim to a right of ownership in Licensee Data. Licensor agrees to keep the Licensee Data Confidential as that term is defined in the relevant FAR and DFARS provisions pertaining to Confidential Information and Confidentiality. Licensor is not permitted to use Licensee’s data for a purpose that is not explicitly granted in writing by Licensee. Upon Licensee request, for any reason whatsoever, Licensor must promptly return all Licensee Data in Licensor’s possession in a format as may be designated at the time of request by Licensee. (7) Licensee might create or hire others (including Licensor) to create modifications, customizations or other enhancements to the Software which might be classified as “Derivative Works” of the software. The intellectual property (IP) rights to the Derivative Works shall be owned by the owner of the underlying intellectual property. The Derivative Work shall be made available to the Licensee through a royalty free, perpetual worldwide, no charge license to the Licensee. (8) Reallocation of Perpetual Software (Option 2 SIN 132-33) a. The purpose of SIN 132-33 OPTION 2 is to allow ordering activities to transfer software assets for a pre-negotiated charge to other ordering activities. b. When an ordering activity becomes aware that a reusable software asset may be available for transfer, it shall contact the Contractor, identify the software license or licenses in question, and request that these licenses be reallocated or otherwise made available to the new ordering activity. c. Contractors shall release the original ordering activity from all future obligations under the original license agreement and shall present the new ordering activity with an equivalent license agreement. When the new ordering activity agrees to the license terms, henceforth any subsequent infringement or breach of licensing obligations by the new ordering activity shall be a matter exclusively between the new ordering activity and the Contractor. d. The original ordering activity shall de-install, and/or make unusable all of the software assets that are to be transferred. It shall have no continuing right to use the software and any usage shall be considered a breach of the Contractor’s intellectual property and a matter of dispute between the original ordering activity/original license grantee and the licensor. e. As a matter of convenience, once the original licenses are deactivated, di-installed, or made otherwise unusable by the original ordering activity or license grantee, the Contractor may elect to issue new licenses to the new ordering activity to replace the old licenses. When new licenses are not issued, the Contractor shall provide technical advice on how best to achieve the functional transfer of the software assets. f. Software assets that are eligible for transfer that have lapsed Software Maintenance as a Product (SIN 132-34) may require a maintenance reinstatement fee, chargeable to the new ordering activity or license grantee. When such a fee is paid, the new ordering activity shall receive all the rights and benefits of Software Maintenance. g. When software assets are eligible for transfer, and are fully covered under pre-paid Software Maintenance as a Product (SIN 132-34), the new ordering activity shall not be required to pay maintenance for those license assets prior to RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 19 the natural termination of the paid for maintenance period. The rights associated with paid for current Software Maintenance as a Product shall automatically transfer with the software licenses without fee. When the maintenance period expires, the new ordering activity or license grantee shall have the option to renew maintenance. h. The administrative fee to support the transfer of licenses, exclusive of any new incremental licensing or maintenance costs shall be ______ % of the original license fee. The fee shall be paid only at the time of transfer. In applying the transfer fee, the Software Contractor shall provide transactional data that supports the original costs of the licenses.] 9. SOFTWARE CONVERSIONS - (SIN 132-32 AND SIN 132-33) Full monetary credit will be allowed to the ordering activity when conversion from one version of the software to another is made as the result of a change in operating system, or from one computer system to another. Under a perpetual license (132-33), the purchase price of the new software shall be reduced by the amount that was paid to purchase the earlier version. Under a term license (132-32), [if] conversion credits [had] which accrued, while the earlier version was under a term license, [those credits] shall carry forward and remain available as conversion credits which may be applied towards the perpetual license price of the new version. 10. DESCRIPTIONS AND EQUIPMENT COMPATIBILITY The Contractor shall include, in the schedule pricelist, a complete description of each software product and a list of [compatible operating systems] equipment on which the software can be used. Also included shall be a brief, introductory explanation of the modules and documentation which are offered. 11. RIGHT-TO-COPY PRICING The Contractor shall insert the discounted pricing for right-to-copy licenses. RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 20 G) Questions for Industry GSA would like to obtain feedback from industry regarding the proposed draft changes to the Software SINs and supporting language. Our primary objective is to update the language to support the needs of the Federal Government while taking into account the commercial business practices and models of software vendors. 1. For Term Licenses, the new definition attempts to differentiate Cloud-based software delivery models from on-premise software that has a limited term of use. Is there anything in the proposed language that would confuse the difference between term licenses and cloud-based software delivery? Is there anything in the proposed language that creates a market barrier for a software provider? Are there Term License models that are not captured by either the Cloud SINs or the proposed definition of Term Licenses? 2. The goal for the Optional Realloction Rights (ability to transfer) under Perpetual Licenses is to facilitate the Federal Government’s ability to manage software as an asset. a) Under Option 1, Software Asset Identification Tags, is there anything in the proposed language that would impede the Federal Government’s desire to collect software asset data? Is there any issue with associating the embedded standard to the ISO/IEC 19770 standard? Is there an alternative approach to embedding tags under this standard that are more efficient or effective? b) Under Option 2, is there anything in the proposed language that would impede the Federal Government’s desire to move previously acquired software assets to new users? Is the process as described in the Critical Information Addendum the appropriate and necessary steps required to support a software transfer? Is there an alternative approach to better assist the government in the movement of previously acquired software assets to future users? 3. For the proposed deletion of Software Maintenance as a Service and the proposed separate enumeration of Software Maintenance as a Product, is there anything in the proposed language that would impede the Federal Government’s desire to better track the funds spent on standard software maintenance products? Is there any issue with rolling the “payment in arrears” services that had been provided under Software Maintenance as a Service into the general category of IT Professional Services under SIN 132-51? RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 21 4. For the proposed additional language addressing Derivative Works and intellectual property rights, GSA has proposed language that allows software licensees under IT Schedule 70 to have a right to use Derivative Works without a requirement for additional payment. Is there anything in the proposed language that would impede the Federal Government’s desire to have uninterrupted access to Derivative Work? Is there anything in the proposed language that would create new barriers for the creation of Derivative Works by industry? Is there an alternative approach that is more efficient and effective than the proposed language? H) Questions for Government Agencies While the primary purpose of this RFI is to gather information from industry, GSA also welcomes feedback from Federal Government agencies about any aspect of the RFI. Industry partners do not need to respond to these questions. 1. Do Term Licenses under the proposed definition account for any significant software purchases for your agency? Under what circumstances do you purchase Term Licenses as defined in the proposed language instead of Cloud services or Perpetual Licenses? 2. Does your agency believe that adding software identification tags in Perpetual software licenses will aid the ability to correctly inventory your software assets? If there were an effective and efficient way to reallocate software from one agency to another would you be willing to accept the transfer of that software asset rather than to make a new purchase? 3. Can you effectively differentiate between the budget you spend on software maintenance from the budget you spend on new software? If so, how? Do you believe that the specific identification of a new SIN for Software Maintenance as a Product will bring better visibility to your IT spend? 4. Have you had issues with Derivative Works and the rights to continue to use customizations or other works where ownership and rights have been confusing? Have you developed an efficient way to manage these rights? Do you believe the language of the proposed Derivative Works provides enough protection for your software needs? I) Deadline for Responses Your response must be provided no later than Tuesday, November 14, 2017, 4pm EST. Response packages should be sent by email to Sharon.aiken@gsa.gov. Please include a subject line of: IT Schedule 70 RFI Response re: Software SINs RFI: Proposed changes to IT Schedule 70’s Software Special Item Numbers (SINs) October 2017 22 J) Use of Results and Confidentiality The results of the RFI will be used to inform a GSA decision on potential changes to the solicitation. The release of this RFI does not guarantee that the government will, in the end, complete an acquisition or change the solicitation. The RFI is for information and planning purposes only and does not constitute a solicitation for bids, proposals or quotes and is not to be construed as a commitment by the government to issue a request for proposals/quote or award of a contract as a result of this request. This announcement is not a Request for Proposals (RFP) or a Request for Quote (RFQ). The government will not reimburse respondents for any cost associated with information submitted in response to this request. Any document submitted in response to this RFI that contains confidential and proprietary information must be marked as containing confidential information. Each page upon which confidential information appears must be marked as containing confidential information. The confidential information must be clearly identifiable to the reader wherever it appears. All other information will not be treated as confidential. All information marked confidential in RFI responses is only for the government’s planning use. Confidential information may be reviewed by contractors providing advisory services within scope of contract, subject to a non-disclosure agreement (NDA) including but not limited to commercial or financial data obtained from or contained in contractor/vendor submitted documents. Otherwise, no information marked confidential included in this document or in discussions connected to it may be disclosed to any other party outside the government.
 

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