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pays for use of the hardware, but reserves the right to exercise an option to
purchase the hardware), and a lease to ownership (the government pays for
use of the hardware and at the end of term owns the hardware).
Consideration might be given to whether it is best to obtain all the hardware
through the AFIS vendor. Centralized governmental contracts may provide
some of the hardware and operating software at a competitive price, perhaps
better than the AFIS vendor’s pricing. The downside of separate hardware pro-
curement is the warranty and maintenance issues. If the AFIS software does not
operate properly, the two vendors may engage in finger pointing rather than
problem solving. A separate hardware acquisition could also complicate provi-
sion of maintenance, as the government may assume responsibility for coordi-
nating maintenance rather than the AFIS vendor. It would also impact the
installation, acceptance testing, and deployment processes. If it is determined
that the non-proprietary hardware will be obtained through a separate acqui-
sition, such information should be clearly conveyed in the RFP and details pro-
vided. A clause should also be included obligating the AFIS vendor to work
cooperatively with any third party vendors identified by the government. If
hardware is separately acquired, it may be beneficial to incorporate cross-
references or acknowledgements in the two contracts.
• Acceptance Testing: It is somewhat artificial to discuss hardware acceptance
testing separate from software acceptance testing. An AFIS is composed of both
hardware and software components, and testing must incorporate the entire
AFIS to be meaningful. However, if the governmental entity decides to obtain
the non-proprietary hardware and operating software from a third party vendor,
it must conceptualize how best to minimize or address potential conflict result-
ing from the separate acquisition. For example, suppose that in an AFIS deploy-
ment requiring extensive storage capacity, it is decided that the storage
hardware and its operating software will be obtained directly from the manu-
facturer through an existing centralized contract. The government must mini-
mize potential conflicts in the acceptance testing process that the AFIS vendor
could attribute to the storage hardware. The government may wish to consider
including a mechanism that would allow the AFIS vendor to “certify” that the
storage hardware meets its requirements. The government would have (prob-
ably) already accepted the storage hardware in accordance with the centralized
contract, but this mechanism may help to mitigate some of the risk associated
with a separate hardware acquisition.
• Warranty Issues: A warranty is basically a guarantee of what the hardware is
supposed to do and how long the vendor guarantees performance without a
problem. Warranties can be applied by operation of law, such as the implied
warranty of merchantability provided under Uniform Commercial Code
Section 2-314, or by the agreement of the parties. Legal counsel should be con-