Who: A Lawyer with a government agency Issue: Open Source Procurement Does Not Require License Negotiation A open source software development project is easier to deal with contractually than a proprietary software development project.  There is no need to negotiate the software license and most of the significant issues that would be important for a proprietary software license are avoided. Issue: OSS Service Contracts Do Not Need a Long Term Guarantees Long term guarantees are not essential with OSS because, once the OSS application has been completed, tested and accepted,  the OSS can be maintained in house or by any qualified consultant.  In contrast, with proprietary products, government must plan up-front and negotiate for the long-term to cover the expected use of the application over many years, and then be sure to have provisions in the contract with the licensor that provides long-term warranties and protects the agency against such licensor actions as arbitrary price increases for maintenance and discontinuance of maintenance for the product with or without a replacement product.  While proprietary software vendors are frequently willing to negotiate these issues, such willingness and the outcome varies by vendor, and the negotiations can be time consuming and require a knowledgeable and experienced negotiating team. Issue: IP indemnification from an OSS developer When there is a software developer,  the government requires, and the developer usually provides broad intellectual property warranties and indemnification for intellectual property infringement claims.  The warranties include warranties that the developer has the right to do what it is doing and the agency has the right to use the application for its intended purpose.  On rare occasions the developer may indicate unwillingness to give full indemnification (for example, if there is a known Patent Non-Practicing Entity (NPE or “troll”) in the field) - and the negotiations have to deal with that problem in the context of how the agency views the risks involved and how it wishes to deal with them. Issue: Broad tort Indemnity Broad indemnity includes personal injury, bodily injury - tort claims generally.  This is usually not a major issue and is dealt with through indemnification and insurance provisions.. Issue: Cap on the developer’s liability.   The cap is typically a negotiated multiple of the fee paid to the developer for its services.  Exclusions from the cap can be negotiated for such matters as third-party tort and infringement claims and indemnification.   Issue: Choice of law / venue The government entity typically wants  venue for litigation purposes and applicable law to be the state where the agency is located.  Most shrink-wrap licenses have venue and applicable law provisions in a different jurisdiction.  While shrink wrap agreements are usually perceived as not-negotiable, licensors will sometimes  negotiate the venue and applicable law provisions.  Typically, for negotiating shrink wrap, the attorney advises the procurement staff on what needs to be changed, and then the procurement person calls the licensor and negotiates with the licensor  to change the license.  These negotiations are with the licensor, even if the purchase is being made from a reseller.