Getting to Yes: Working with Vendors to Secure Terms of Service and Federal-Friendly Pricing

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The federal government is one of the largest consumers of products and services in the United States. Yet, many agencies face tight budgets and firm guidelines that restrict the parameters under which agencies can use a product or service to complete projects. This presents an interesting opportunity and dilemma for agencies who want to procure new digital tools to complete their projects.

Dilemmas

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• There are strict guidelines that govern the contracts and legal agreements into which the federal government can enter in order to use a tool or service. For digital products that legal agreement is often in the form of a Terms of Service (TOS) agreement that is crafted by the vendor. Often those terms are not compatible with federal laws and regulations because they dictate how and where legal disputes will be handled. Two of the most problematic clauses are the Indemnification clauses that obligate funds if there is a legal dispute and any clause identifying a specific governing state or court system in which disputes will be settled. These are problematic because a federal government agency cannot promise to pay funds that have not been appropriated by congress nor can it agree to settle any dispute in a state court. All disputes with the federal government must be settled in federal courts.
• Affordability is a big consideration when procuring a tool. There are many free tools to choose from, but sometimes the right tool for the task comes with a cost. Not only are there increased requirements for procurement for those with higher costs, but there are often longer timelines for acquiring those tools. Additionally, because of shrinking budgets, tools can be unattainable for federal agencies who cannot afford prices that cater to the demands of private industry.

The Opportunity

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The collective power of federal agencies can be very attractive to vendors, both in terms of buying power and heightened visibility in the market. Therefore with a little work on the part of the agency, vendors may be willing to create acceptable TOS agreements and federal-friendly tiers of pricing to meet the unique needs of federal agencies seeking to use their digital tools. Seize the opportunity and work with your legal team and/or contracting officer to reach out to a vendor who has a tool of interest to your agency. Start the conversation by pointing out that, developing a federal TOS and pricing is::

• Good for Business: Adapting the terms of service and federal-friendly pricing for their product opens up a whole new market segment.
  Assure the vendor that this does not need to be a heavy lift for them. Use the resources from the webinar: Getting to Yes video recording and Getting to Yes slides (PDF, 814 KB, 16 slides, February 2015). Also use GSA’s model TOS (Word document, 55 KB, 5 pages, October 2011), DigitalGov’s information on Federal-Compatible Terms of Service Agreements, HHS’ Guide to Negotiating a TOS and the help of your agency TOS contact to give the vendor as much information as needed to make the changes you want at a low cost to them. Additionally, give the vendor ideas about the types of pricing tiers that they can use based on other vendors who have them in place for federal government (For example, Goanimate recently worked with HHS to create a federal-friendly TOS and pricing scale).
• Good for Public Service: Adapting the terms of service and federal-friendly pricing for your product delivers impact for public good.
  By making the product accessible for use by federal government agencies, the vendor is by default supporting the agency’s mission to provide vital information to the American public. This allows the agency to engage and inspire people to take specific action that contributes to the greater good of society.
• Good for Taxpayers and Government Agencies: Adapting the terms of service and federal-friendly pricing for your product allows government agencies to do more with less.
  By default agencies can be more fiscally responsible with the funds that they have. Being able to procure digital tools at a lower pricing tier enables agencies to keep up with new technology and modes of communicating with the public, as well as, be responsible with the money of taxpayers.

What to Do After the Vendor Says “Yes”

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Once you have successfully negotiated a federal-friendly TOS and pricing scale, tell everyone. First call your TOS contact at your agency and tell them the good news. Then ensure that they or you contact GSA (Betsy Steele) to let them know about the new TOS and fed-pricing so that they can share your win with the entire federal government community.

Getting to yes does not have to be difficult. The process may take months, however, the rewards of yes, make the effort worth the endeavor. So if you have a digital tool that you want to use and there is no TOS or fed-pricing in place by the vendor, send an email, then pick up the phone to call the vendor and start working to Get to Yes.