Does the National Cybersecurity Strategy spell the end of the government market for commercial software?
Summary
The government may negotiate modifications to the UCC-based license terms and conditions, for example when the software is being used for a classified or sensitive application; however the basic policy behind FAR Part 12 is to use commercial buying habits as much as possible. FASA section 8002 explicitly states that contracting officers must use terms and conditions that “are determined to be consistent with standard commercial practice.” On March 2, the Biden administration released their National Cybersecurity Strategy. Over the years, the UCC has created a vast body of law regarding issues governing waivers of liability, the scope of acceptable disclaimers and the structure of software warranties. However, an easily foreseeable “second order effect” of this new liability regime is that the use of FAR Part 12 (and its goal to drive broader adoption of commercial transactional practices), will have to be discarded as a new, insular and bespoke government-only software marketplace is created. Richard Beutel is a senior researcher at the George Mason Baroni Center for Government Contracting and the founder of Cyrrus Analytics LLC.