Who: OSS Vendor on the GSA Schedule

Issue: Cost Threshold

There are cost thresholds within US Federal agencies, and the thresholds vary by agency. The vendor notes that one agency would be able to make a 25K purchase for vendor services using a credit card, and this payment did not trigger any procurement requirements. For other agencies, 3K would not trigger any requirements.

These exist with US federal agencies - they vary by agency. The army geospatial center were able to make a 25K purchase with OP via credit card that didn’t trigger anything. USGS - 3K did not trigger - training related to OSS that they were using. Army - They had use of the OSS already - they downloaded themselves and were using it. USGS was using SaaS. Best Practice: Become a Trusted Partner This vendor is on the GSA schedule, which is a blanket purchasing agreement. When a vendor is on the GSA schedule, Government IT staff may accept the vendors technology implementations much more easily, even open source solutions. In fact, the licensing structure used, such as an open source license like GPL will not be an issue, because a vendor on the GSA schedule is a trusted service provider.

Issue: Indemnity Clauses

This vendor has indemnification clauses in their standard contract, and they haven’t met any contracting party which disagreed with the clause’s wording. Most of the hurdles they faced with contracting with a city were organizational in nature, whether the vendor had filed proper certification for an online system, and acknowledged the requirements. But the City did not raise any issues. The city had already been using the software and were only contracting for support of the software. Issue: Potential Requirement for Availability of Support Vendor before Deployment of Software The vendor has heard before that at the Federal government, there may be a requirement that software that is deployed in the Federal government have a support contract. It’s possible that this is a best practice by the Federal government and not actually a regulation requirement.

Best Practice: Work For a Prime Contractor before getting on City Schedule

This vendor has done some work as a subcontractor, for cities where they aren’t on the schedule instead of doing work as a prime. Eventually the vendor would like be on these city procurement schedules. Often, being a subcontractor where the general contractor is a well established government contractor, can make the procurement process of a OSS project easier.

Issue: Cities General Philosophy of Open Source Influencing Ease of Procurement

Three types of cities that this vendor is aware of: 1) A city (like Portland, Oregon) that has fully adopted the use of OSS, and therefore, procurement is not an issue. 2) Large innovative cities that want to use OSS, and are willing and knowledgeable in navigating procurement using a subcontract vehicle through a third party provider. 3) Small cities that do not actively procure OSS, and do not have much guidance on how to do so, or what solutions are available.

**Best Practice: Language for Open Source of Project **

One of the frequent modifications that this vendor has to make to contracts is the boilerplate from a government client stating ownership of the vendor work product - typically clients have a standard clause that says they own that IP that is created by the vendor. But because the work that the vendor does almost always involves producing OSS that will be committed back to the relevant OSS projects. It is necessary to change any boilerplate from the city to provide that the resulting code from the vendor will be contributed back into the OSS project. These changes sometimes cause problems because the clients do not entirely understand the OSS business model, and have a conception that what they are paying for from the vendor is a “product” or “code” that they should own. The vendor uses the following clause in its contracts, from which the vendor has never received pushback from a city:

Vendor Name will provide unlimited advice on engagement with open source communities. This includes submission of patches and improvements to the code base, donation of code to relevant open source projects, and strategy for starting new open source projects. Vendor Name will suggest a best course of action for Client depending on their priorities and resources, if open source engagement is desired. Client is also always free to not attempt any community engagement; however this shall in no way limit Vendor Name’s right to engage with open source communities.

Best Practice: Outside Counsel Available

This vendor has outside counsel retained in case a city attorney has issues with the contract or procurement, and needs to discuss legal concerns. The vendor does not edit the terms of the contract himself. Rather, he will defer to the retained outside counsel for editing of the contract.

Issue: Choice of Law/ Venue Issues

The vendor has only seen pushback on choice of law / venue issues when subcontracting with private companies. In particular, one company they contracted with they had provisions pertaining to trademark, and patent issues. The provisions did not bring the contracting to a halt, but they stood out as being excessive compared to what most other contracts provide for. Whenever possible, the vendor uses their own choice of law/venue clause - but if this clause is holding up the contracting for some reason, they are willing to use the other party’s terms. Issue: Security Concerns Preventing Procurement The vendor noted that security concerns of software are often larger than legal issues, and can arise even before procurement begins. One example is with Department of Defense or intelligence agencies, which may have their own lists enumerating software which is approved for use on a system. Each agency has a unique process given a name such as certificate to operate or approved for use. As a vendor, if your software is not certified or approved, then sometimes you can work with the government staff to get the proper certification or approval.