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Vern Edwards

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  1. Vern Edwards

    POP Extension

    This question was answered by ji20874. But I think you should stop listening to your COR and look into the matter yourself. Six months of government delay and weather issues in a one year contract? Give me a break. Where is the job, Puerto Rico? Houston? I think your COR is bs-ing you. Describe those "nonseverable" services.
  2. If I were preparing an LPTA RFP, in order to comply with FAR 15.304(d) and (e) I would say: All technical acceptability factors are equally important, because all must be satisfied in order for an offeror to be eligible for award. Price will be the determining factor when selecting the awardee.
  3. @ Jamaal and Joel: The relative importance rule is designed to guide offerors when they may have to make tradeoffs among factors when preparing their proposals. It's relative importance. The concept is meaningful when offerors have reached a point in their proposal development at which they cannot give the government more of all that it wants, e.g., higher quality and lower price. They have reached a point at which they can give more of X or more of Y but not more of both. The classic quality/price conundrum. If the government has conflicting objectives---high quality and low price---then telling offerors that quality is more important than price is the same as saying, If you have to make a choice between giving us higher quality or lower price, then we prefer higher quality. (Telling them that quality and price are equally important is saying that the government will not or cannot provide guidance, perhaps because it's indifferent about the choice.) See: "The Relative Importance of Source Selection Evaluation Factors: Analysis of a Misunderstood Rule," The Nash & Cibinic Report (July 1996). Does the concept of relative importance apply in LPTA? Off the bat, it seems to me that the answer is no. The government will not make technical/price tradeoffs. Technical acceptability is a qualifying criterion. Price is the ultimate source selection decision criterion. There are no nonprice/price tradeoffs, so no need for guidance in that regard. Procedurally, LPTA is really a just a variation of two-step sealed bidding, the main distinction being that it's done in a single step. Take a look at FAR 14.503-1(a), which describes the contents of requests for "technical proposals." There is a requirement to disclose the evaluation factors, but no requirement to disclose their relative importance. It seems to me that technical acceptability is really a compilation of individual requirements that does not entail tradeoffs. I don't understand Jamaal's idea that the "contractor must satisfy some combination of (but not all) subfactors in order to be determined acceptable." I don't see how having to satisfy some but not all subfactors would necessitate tradeoffs. Tradeoffs are required, and relative importance becomes important, when it's necessary to put together a winning combination of conflicting factors. Is it possible that multiple criteria for technical acceptability could be intertwined in such a way that an offeror might have to make tradeoffs when determining how to be technically acceptable? I won't say no. But it seems to me that if technical acceptability is adequately defined, then the definition should be all the guidance that the offeror needs. Any combination of factors that will yield defined technical acceptability will work and the government will evaluate at the bottom line, so to speak. If it does not specify how to add things up, then any sum that reaches the specified bottom line is technically acceptable. If technical acceptability is not adequately defined, then you have a faulty solicitation. Think of a column of ten numbers, the sum of which must equal 100 in order to be acceptable, as long as each number has a value of at least five. No single number is more important than the others. A lot of combinations are possible. Which combination should an offeror choose? Who cares, as long as their sum is 100 and each is worth at least five? If the government considers one number or some numbers among the ten to be more important than the others, then the government should specify some specific, minimum, or maximum values to them as conditions of acceptability, and the offerors are free to do whatever they like with the rest. A statement of relative importance is embedded in the definition of technical acceptability.
  4. Okay, one more. The first mention of "fair and reasonable price" by the Comptroller General was in a 1923 decision, 2 Comp. Gen. 503, Feb. 14, 1923. Capitalization as in original. Emphasis added. If being the lowest was good enough for the U.S. Comptroller General, despite the lack of any "technical evaluation"...
  5. I found this reference to fair and reasonable price in an opinion of the U.S. Attorney General dated April 9, 1937, entitled, "Right of Douglas Aircraft Co. To Contract Price For Airplanes Furnished Army", 39 Op. U.S. Atty Gen. 23: Emphasis added. By the way, what we might see in that is the origin, or one of them, of the modern FAR Part 15 source selection process.
  6. Above all, the question of the "fairness and reasonableness" of prices is about whether the price is too high for the taxpayers to pay. The earliest official use of the phrase "fair and reasonable price" that I have been able to find through quick research is in a decision of the U.S. Court of Claims, Parish v. U.S., 1 Ct. Cl. 57, Oct. 1, 1865, concerning the price paid for cavalry horses. I quote the entire decision here for your amusement: Emphases added.
  7. "Ceteris paribus"? I'm impressed.
  8. I'm getting old as well as cranky and after reading The Gentle Art of Swedish Death Cleaning by Margaretta Magnussun, I decided to go through my files and get rid of stuff. I found some old reading that might be of interest to some of you. Once upon a time, before they gave up hope, acquisition experts used to be interested in contracting officers and their proper role in the acquisition process. When I opened one box I found the following publications. When the publication is available on line I provide a link. If I don't provide a link, try your own search. You may have better luck. Otherwise you'll have to call the publisher or another source. Please don't contact me to ask for a copy. Handbook for Entry-Level System Buyers: The Role-Relationship of the Contracting Officer and Program Manager and the System Project Office's Interfaces, by Major R. P. Foley, Air Command and Staff College, April 1985, DTIC ADA156313, available at http://www.dtic.mil/dtic/tr/fulltext/u2/a156313.pdf Government Contracts in Public Administration: The Role and Environment of the Contracting Officer, by R. J. Cooper, Public Administration Review, September/October 1980, available through JSTOR and ResearchGate. The DOD Contracting Officer: A Study of the Past; An Assessment of the Present; Recommendations for the Future, by R. J. Bednar and J. T. Jones, American Bar Association, Section of Public Contract Law, 1987. (Try contacting the ABA Public Contracts Law section. If you're in the DC area, try the GWU Law Library). Role and Mission of the Contracting Officer, Logistics Management Institute, Task 72-2, May 1974, DTIC AD780796. (Despite the DTIC number, I could not find it online.) The Contracting Officer and the System Manager: An Analysis of the Authorities and Responsibilities within the Defense Department, by Colonel R. T. Mankin, Defense Systems Management School, February 1974, DTIC AD780693. (Despite the DTIC number, I could not find it online.) The Navy Program Manager and the Contracting Officer, by LCDR F. X. Munger, Defense Systems Management School, November 1974, DTIC ADA028656. (Despite the DTIC number, I could not find it online.) Program Manager - Procuring Contracting Officer Relationship: How It Affects Program Management, Major C. G. Thompson, Defense Systems Management College, November 1973, ADTIC AD-A040515, available at http://www.dtic.mil/dtic/tr/fulltext/u2/a040515.pdf I'll probably find more such titles as I open boxes. If so, I'll post them here.
  9. 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!
  10. 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?
  11. Joel, I think it's time for us to give it a rest. Don't you agree?
  12. 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."
  13. 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.
  14. Yes---a price the buyer is willing to pay and the seller is willing to accept.
  15. I hope you know what you may have just done to yourself. 😁
  16. So, Jamaal, do you agree that a CO, when determining the fairness and reasonableness of the technically acceptable lowest price, can use comparisons with the prices in proposals that were not evaluated for technical acceptability, as long as the CO is open minded and judicious when making that determination and can explain the basis for his or her judgment, perhaps supplementing those comparisons with other price info when appropriate? Yes or no.
  17. @Jamaal Valentine Jamaal, you have misread the Lifecycle Construction Services decision. In that case the government determined that the protester's pricing coefficient was unrealistically low based on a comparison to the median proposed coefficient, which was determined on the basis of proposed coefficients that were too high. Lifecycle was a case of faulty price realism analysis, not faulty reasonableness analysis. Footnotes omitted. Price realism and price reasonableness are very different determinations. I do not interpret Lifecycle to stand for the simple proposition that you cannot determine price reasonableness by comparing a propose price to the prices of unacceptable proposals, and as far as I can see no commentator has interpreted the decision in that way. I know that in a couple of sentences the GAO seems to say that, but you have reading that decision too broadly. It is true that the CPRG, Vol. 1, says that a CO should not use the prices of unacceptable proposals as a basis for comparison, but that guidance is not regulatory and is much too simplistic to be applied as you demand. It is true that you have to use sound business judgment, but as I have explained, sound judgment requires that you think more deeply.
  18. This thread has gotten so long that I don't remember when and where I quoted FAR 15.404-1(b)(2)(i), but I do remember quoting it. There are two sentences in the subparagraph, I was thinking of the first, even though I quoted both. Apples are a commercial item. I would not look to see if I had adequate price competition because that concept and that rule do not apply to commercial items, so I would not know or care whether I'd had it. I do not see the second sentence as being inextricably linked to the first. I see the second sentence as saying nothing more than that if you have adequate price competition you can ordinarily rely on its existence to establish fairness and reasonableness of price. I don't read it to indicate in any way that the absence of adequate price competition means that competition was not effective in producing fair and reasonable prices. The mere fact that something is mentioned in a regulation does mean it is pertinent to the issue at hand.
  19. And I'm telling you, again, that adequate price competition is irrelevant. See FAR 15.404-1(b)(2)(I): Two sentences in (i). The first provides an example of a pricing techniques. The second makes an assertion: "NORMALLY, adequate price competition establishes a fair and reasonable price." The two together do not say that you can establish fairness and reasonableness through comparison of proposed prices ONLY IF you got adequate price competition.
  20. No. The issue is whether they can be used. And I think the answer is sometimes yes and sometimes no, depending on circumstances.
  21. See FAR 15.404-1(b): Adequate price competition is irrelevant. I'm buying apples, a commercial item. The market for fruits is pretty large. And I live in Washington state. Everybody here knows the prices of apples. And cherries. And pears. And grapes. And watermelon. I can detrermine fairness and reasonableness through pleasure analysis. Besides, we don't have to evaluate the other offers to know whether they're for apples. We can do a quick look to see that. We just don't have to evaluate them for whether they're acceptable apples.
  22. So what is the possibility? That if I knew that the others, or some of them, weren't for apples I might think that there might be a better price out there for apples than the low one I got? Well, no one offered that price. What am I supposed to do, embark on an endless quest for the offer that might exist but that I didn't get? How long am I going to look for that offer while the guys are out in the boonies are waiting for fresh fruit? Spoken like a true desk ranger. I conducted a competition for apples. I got an offer for apples that was lower than all the others. All the other offers I got were higher. I don't give a damn if they were for apples or coconuts. I announced a contest, I specified the rules, I conducted the contest in accordance with the rules, Game over. Now, apples are an easy one to solve, because there's a public market for apples and I can call around. If the low price is too high I can cancel the solicitation and start over after I figure out what I did wrong the first time. Quantum superposition my tookus.
  23. @Jamaal Valentine Why "concerned"? Agencies have done that for decades when using sealed bidding, in which there is no nonprice technical evaluation at all. There is no reason to be "concerned" unless someone describes the use of a specific method for determining fairness and reasonableness that is patently irrational or otherwise unsound under specific circumstances. You are being very persistent at making a mountain out of a molehill with your "concern." I'm beginning to think that you don't understand the concept of fair and reasonable price. Each determination must be judged in its own circumstances and on own its merits. Your kind of foggy "concern" is what leads to general prohibitions against the use of methods that are perfectly reasonable when properly used. If someone wants to charge me less for something that I consider acceptable than for something that I haven't considered at all, and if acceptable is all I want, then why shouldn't I consider that to be a fair and reasonable price?
  24. A proposal might be technically unacceptable on grounds that have no bearing on price. The product of service offered might be perfectly acceptable, but the proposal is technically unacceptable on other grounds.
  25. P.S. Don't confuse "technically acceptable" as used in FAR 15.101-2 with acceptable as defined by the GAO or with the criterion for adequate price competition in FAR 15.403-1(c)(1)(i). The GAO says: See Distributed Solutions, Inc., B-416394, 2018 CPD ¶ 279. That's an explanation of the concept of legal acceptability, but that's not necessarily what "technically acceptable" might mean in any given instance. FAR does not define "technically acceptable," and agencies have defined it in various ways. It's possible for a proposal to be legally acceptable, but not "technically acceptable." It's also possible for a proposal to be "technically acceptable," but not legally acceptable. Agencies don't always do things in ways that make complete sense to us pedants.
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