ASBCA 59913

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) CiyaSoft Corporation ) ASBCA No. 59913-QUAN ) Under Contract No. W91B4L-10-P-1475 ) APPEARANCES FOR THE APPELLANT: W. Jay DeVecchio, Esq. R. Locke Bell, Esq. Morrison & Foerster, LLC Washington, DC APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney MAJ Weston E. Borkenhagen, JA CPT Timothy M. McLister, JA LTC Gregory T. O’Malley, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MCNULTY ON APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Before us is CiyaSoft Corporation’s (CiyaSoft) motion for partial summary judgment. CiyaSoft seeks summary judgment regarding two legal issues, which it describes as follows (quoted verbatim): 1. Did the parties’ contract for 20 single-user licenses limit use to 20 unique single users? 2. Is the Army absolved from liability for its failure to maintain a list of registered users because, by requiring the Army to keep such a list rather than imposing some other means of protecting its software, appellant failed to mitigate its damages? (App. mot. at 2) We partially grant the motion.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION Familiarity with our previous decision in this appeal, CiyaSoft Corporation, ASBCA Nos. 59519, 59913, 18-1 BCA ¶ 37,084, is presumed. The following findings of facts from that decision are restated 1 for convenience. 1. On August 18, 2010, appellant was notified via email that Contract No. W91B4L-10-P-1475 had been awarded to it. CiyaSoft, 18-1 BCA ¶ 37,084 at 180,510 (finding 9). 2. The contract had a single line item number (CLIN) which described the supplies being purchased as: ENGLISH DARI SOFTWARE FFP SINGLE USER BI-DIRECTIONAL ENGLISH/DARI SOFTWARE LICENSES w/1 Year Support and Maintenance FOB: Destination PURCHASE REQUEST NUMBER: KAF0L3ECE03819 The CLIN indicated the quantity to be purchased was 20 at a Unit Price of $4,840 for a total price of $96,800. Id. (finding 10). 3. [Appellant’s witness] testified that appellant generally protects itself from unauthorized use of its software by requiring online registration of the software and activation during the installation, which permits appellant to ensure that the software is used only in accordance with the terms of the license granted. This was discussed with the contracting officer during a telephone call made by the contracting officer prior to contract award. Id. at 180,511 (finding 15). 4. The contracting officer confirmed that he had called appellant shortly before awarding the contract to confirm the price appellant had quoted and to determine whether appellant would be able to meet the government’s needs with respect to delivery. He testified that he had no recollection of discussing software registration and activation. 1 Statements of Fact 1-8 herein are verbatim quotes from our previous decision, with internal footnotes and record citations omitted. 2 The contracting officer testified that he believed he was purchasing a commercially available, off-the-shelf product and that the government did not have the right to copy or reproduce the software. His testimony also indicated that he had no clear understanding of what a single user software license might entail. Id. (finding 16). 5. Online registration requires that the user’s computer connect with appellant’s servers. When connected, the user, as part of the installation process, must enter a product identification number provided by appellant. Appellant’s server, if it recognizes the number entered, will transmit an activation code to the user’s computer that activates, i.e., permits the user to use the software. During this registration process the identification number of the computer the software is being installed on will be transmitted to appellant’s server.