Software Product Line Acquisition: A Companion to A Framework for Software Product Line Practice Version 3.0

Additional Frequently Asked Questions

Associated with each practice area is a set of frequently asked questions (FAQs) that addresses the specific concerns of that practice area. While the appendix in this version of the companion only contains one FAQ, additional FAQs that transcend a particular practice area may be added to future versions.

FAQ 1
I'm a government contractor, and the government wants me to supply reusable core components for other organizations to use in building products in a product line. Why should I open myself up to the legal liability? I'll be liable if they use my components incorrectly.

Response

Liability issues can be tricky. They are negotiated between the acquisition organization and the development contractor(s) and often involve legal counsel. However, in the case that is cited, the government contractor would not be directly liable for how another (third-party) government contractor uses its product, especially if the other contractor uses the product incorrectly. A contractor who develops components for a government agency is liable to the government–not to another government contractor–to the extent that it is stipulated in the expressed warranties that are part of the contract. There may also be implied warranties of fitness for use for the particular purpose for which the government will use the items. Contracting officers have to consult with counsel prior to asserting any claim for breach of an implied warranty.

Liability issues are not unique to product lines. The government often contracts for a piece of equipment from one manufacturer and then provides it as government-furnished equipment (GFE) to another contractor to integrate into its final product. In such cases, the liability for the GFE items rest with the government, although the government may have recourse to go back to the original development contractor to have a defect corrected, depending on the particular contractual warranties that were negotiated and agreed to by both parties.

For commercial items (that is, non-developmental items), liability considerations (expressed and implied) are described in Part 12 (Acquisition of Commercial Items) of the Federal Acquisition Regulations [FAR 97]. General and specific liability considerations that apply to both commercial items and developmental items are described in Part 46 (Quality Assurance) of the FAR. Specific solicitation provisions and contract clauses on warranties and liabilities that may apply are described in Part 52 of the FAR and Part 252 of the Defense Federal Acquisition Regulation Supplement¹ [DFARS 98]. They include the following sections:

FAR: 52.246-18; Warranty of Supplies of a Complex Nature
FAR: 52.266-19; Warranty of Systems and Equipment under Performance Specifications or Design Criteria
FAR: 52.246-23; Limitation of Liability
FAR: 52.246-24; Limitation of Liability-High Value Items
DFARS: 252.246.7001; Data Warranty

The bottom line is that during the contract solicitation period,² any contractor considering bidding on a government contract can formally request that the contracting officer define (in writing) the extent and limitation of contractor liabilities.

1. The Defense Federal Acquisition Regulation Supplement (DFARS) is the DoD implementation and supplementation of the FAR.
2. The solicitation period is the time between the official opening and closing of the request for proposal (RFP).