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  2. Well it also depends upon how important price is in the selection process. If you’re going to use the lowest price technically acceptable method, then I suspect that price is extremely important and probably the most important factor. So the customer might be looking for the lowest amount of money to spend for the effort. Or the project may be under funded. Who knows? We didn’t have any context to the acquisition.
  3. If that is what a fair and reasonable price is, what is all this arguing about? It seems as if folks here are looking for a "magic formula" to tell them what price is fair and reasonable., i.e., what they would be willing and able to pay for what they are buying. Also, nobody other than Vern has defined what it is that they are talking about. Is there a common understanding of what this term means in the FAR or are folks here making up their own definition as they go along without sharing that information?
  4. Today
  5. PepeTheFrog

    A MUST READ ABOUT DATA RIGHTS

    Morrison & Foerster LLP published this paper on its website, with permission of Thomson Reuters: https://media2.mofo.com/documents/180700-mystery-data-rights.pdf http://govcon.mofo.com/intellectual-property/taking-the-mystery-out-of-data-rights/
  6. Matthew Fleharty

    A MUST READ ABOUT DATA RIGHTS

    For those without a Briefing Papers subscription, Google is your friend on this one (it took me a few clicks through various sites, but I eventually found it). Thanks for sharing Vern!
  7. Vern Edwards

    A MUST READ ABOUT DATA RIGHTS

    For anyone mystified by, or curious about, data rights, the July 2018 issue of Briefing Papers, Second Series, is an absolutely must read primer. See: "Taking The Mystery Our Of Data Rights" by W. Jay DeVecchio, a partner in Morrison & Foerster LLP. Only ten pages long, with extensive notes. Concise! Clear! Beautiful!! A MUST READ! I am so happy!
  8. Unless they are protesting the conduct of the process and they would be in line for award if the protest were sustained. The No. 2 might protest that the No.1 was improperly determined to be technically acceptable. Arrrgggh! Why am I still reading this?
  9. We don’t really know the reason for or the specific meaning of the original question. From a protest standpoint , it probably is defendable, as cited herein. The higher priced offers weren’t in line for award, so they aren’t interested parties in an award protest. If the question is “Can we do it? “ , it’s now too late for the pool members to protest the terms of the award decision. The task order competition said that this is how award would be made. If the question concerned the business sense of simply saying that the price is fair and reasonable because it is the lowest priced offer, then it might depend upon the fuller context of the situation, as was discussed herein.
  10. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Jamaal, apologies if what I wrote was unclear, but I thought my answer to your question: With: Was as clear as possible; however, you're fixated on the concept of comparison of proposed prices while I was stating another way of analysis to determine the price fair and reasonable separate from relying on comparison of proposed prices (technically evaluated or not). If you'd like to discuss it, you know how to get in touch with me, but an answer to your questions here would only result in repeating myself.
  11. Actually, yes. I was just curious about the specific circumstances, which I suppose I should have inquired about at the beginning. I didn’t want to reopen the endless debate I will ask Brent privately.
  12. Joel, I think it's time for us to give it a rest. Don't you agree?
  13. Vern Edwards

    The Role of the Contracting Officer

    The best I can do is recommend that you search Google for books about purchasing. You will find many references, but you'll have to do some checking to see which are informative with respect to your situation. Also Google "role of purchasing management."
  14. Vern Edwards

    FAR 52.204-21

    Yes. See, for example, Johnson Management Group GFC, Inc. v. Martinez, 308 F.3d 1245 (Fed. Cir. 2002) (CO not authorized to include special clause); Charles Beseler Co., ASBCA 22669, 78-2 BCA ¶ 13,483 (CO improperly included clause prohibited by regulation); and Guard-All of America, ASBCA 22167, 80-2 BCA ¶ 14462 (CO arbitrarily, capriciously, and by abuse of discretion included short-form termination clause). There are several such decisions.
  15. Yes---a price the buyer is willing to pay and the seller is willing to accept.
  16. C Culham

    FAR 52.204-21

    Sorry I can not. Argument would be the prescription in the FAR for use of the clause and its applicability to the contract or not. Remedy would be a supplemental agreement to the contract removing or retaining the clause as applicable. The latter based on the ideal that both parties agreed to the contract and therefore the CO and contractor agreed to its inclusion. If there is disagreement as to its inclusion now then seek the remedy based on the argument.
  17. Yesterday
  18. Jamaal Valentine

    Determining Fair and Reasonable LPTA

    I included your caveat of generally. (a paraphrase of FAR's 'normally') Your post and references to adequate price competition = a fair and reasonable price are clear. What is unclear is what you mean by market based because you also seemed to rely on the other prices (with unknown merits of comparability) as evidence of an effective competition. 'By virtue of competing against the market'? That is overly simplistic and doesn't consider several basic considerations such as a mistakes and defective, vague, or ambiguous solicitations or otherwise ineffective competitions. If you are simply saying that the LPTA can be determined fair and reasonable without a comparison of other proposed prices - most of us are. You even said as much earlier. If not, what is your market-based analysis based on if not comparisons (comparisons to market prices, propsed prices, catalogs, IGEs, etc.)? Maybe you didn't mean it's not comparison based. Lastly, you answered Don's last question with a question. I would like to know what your actual answer is to his specific question. (It's a key question)
  19. Can someone tell me what "fair and reasonable price means"?
  20. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Jamaal, There is a difference between can and does...I caveated my statement for that very reason, don’t try to put my position in a box I didn’t build. I also didn’t say that you don’t need any analysis...it’s just a different kind of analysis (market based rather than comparison based).
  21. Jamaal Valentine

    Determining Fair and Reasonable LPTA

    It sounds like you are saying you believe competition [generally] = fair and reasonable price … without any analysis or comparisons. This has been discussed here previously: The number of proposals received is evidence of competition, but not necessarily effective competition. This is especially true when dealing with proposals that include technical offers that may vary.
  22. Jamaal Valentine

    Determining Fair and Reasonable LPTA

    Yes, of course. (I believe I said as much in my first post)
  23. For DoD, the first situation is not applicable per DFARs and PGI implementation of “Better Buying Power “policy.
  24. dak9204

    FAR 52.204-21

    Quick follow up to this thread. Could anyone point me in the direction of a court decision or FAR Council notice about contracting officers including clauses that should not have been included in a prime contract? Specifically, what remedy (or argument) could be made if a contracting officer included FAR 52.204-21 in a contract for the sale of COTS products/services? I found the following Wifcon thread on the concept of self-deleting FAR clauses:
  25. Does it matter if they are comparable? As long as the lowest price is technically acceptable and they can perform at that price, what do you gain by comparing to the other offers?
  26. I guess I'm just missing the complexity of the situation. You have an IGE and a host of other offers received. The lowest-priced offer is evaluated against the pass/fail technical acceptability criteria. If it is technically acceptable, what do you really gain by reviewing the other 10 (or more in some cases) offers that come in? This office used to do a fully tech eval on all the offers and when I took over I asked what value did they gain from this process. The answer I received was, "None, but legal says we have to do it", so we developed language to support only reviewing until we have a technically acceptable offer and base the F&R determination on things like the other offers, the IGE, previous acquisitions for similar services and we cut down on our turn-around time dramatically. Now, when we received several low offers that missed minor requirements and were therefore not technically acceptable, we established a competitive range based solely on price (with the number of offers received and the pricing, the cutoff point was evident). This is when one protested and we defended and won. I think sometimes we try to over-complicate something that can be simple.
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