Jamaal Valentine

Came across this while reading about the KC-X Tanker deal: "Rather than weighing the performance features of Boeing and Airbus offerings, the Air Force developed a list of 372 mandatory performance requirements that each team must meet before they could submit a final bid. What this meant in practical terms was that unless one of the teams was disqualified, the key discriminator in the competition would be price."

FAR Secretariat and Federal Register Notice?

I looking to the Navy as the leaders in acronyms 😉 Commander, U.S. Pacific Fleet (COMPACFLT) Navy Flight Demonstration Squadron (NAVFLIGHTDEMRON) Space and Naval Warfare Systems Center (SPAWARSYSCEN) Fleet Intelligence Center Europe & Atlantic (FICEURLANT) **HITECHRATEFARP** (Highest Technically Rated Fair & Reasonable Price) or **HIRATEFARP** (Highest Rated Fair & Reasonable Price)

It's an initialism rather than an acronym…gotta spell it out when saying it: H.T.R.F.R.P

Delayn: Describe the services; and the government and weather delays. (You may have a bona fide needs rule issue. For example, certain government or weather delays that should have been anticipated may not be authorized delays, which may preclude a PoP extension under a contract clause.) Once these questions are answered then we might start applying rules. First, lets diagnosis the situation.

This is what I wanted to convey. (I'm working on my writing) Satisfies the requirement and doesn't change how we do business. This is LPTA in a nutshell.

Such a statement may limit someone else's creativity or discretion. I'd rather just go with the plain reading of the statute and regulation and let individuals make up their own mind (the primary step regarding canons of interpretation). Priced and nonprice factors being approximately equal when combined shouldn't cause any issues with doing business as usual. I forgot what my original line of thinking was when this started, but now I am thinking of an LPTA RFP that has a technical factor and subfactors. For example, picture a situation where a contractor must satisfy some combination of (but not all) subfactors in order to be determined acceptable (No tradeoffs required or allowed). Technical is not limited to product or service function, performance, or design. Technical is a threshold of values (min or max). Technical applies to any attributes one can think up that relate to an offeror or their offer. (Why anyone would craft an RFP this way, I don't know, but who am I to limit people's thinking?) I understand that this place can be hostile towards so-called 'dumb ideas', but I think it's a great place to test thoughts: one's we believe and some we don't ...

Joel: Do you read your citations as exceptions to 10 U.S.C. 2305(a)(2), FAR 15.203, 15.304, etc.? Logically, we weigh the relative importance when using the tradeoff process … in LPTA there aren't any significant differentiators in technical so price is the final discriminator ceteris paribus. However, LPTA factors are of equal weight when combined - this does not mean that individual factors or subfactors are equal. (See Chenega Federal Systems, LLC., B-414478, June 26, 2017)

Competitive RFPs have requirements for stating the relative importance of factors … this is based on 10 U.S.C. 2305(a)(2) and implemented in places like FAR 15.203, 15.304, etc. If the relative importance is unstated the factors are presumed approximately equal. That's not to say that price cannot or will not be the discriminator as technical offers approach or are deemed equal (in this case - acceptable). Here are a couple definitions of Fair and Reasonable Price (CPRG offers another): https://thelawdictionary.org/fair-and-reasonable-price/ https://www.dau.mil/acquipedia/Pages/ArticleDetails.aspx?aid=1ae4716b-d8f3-4839-9785-adbd19d5a26f

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)

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.

Yes, of course. (I believe I said as much in my first post)

Vern: I understood the Lifecycle Construction Services decision was a protest about price realism, but I felt the concepts and references to reasonableness were illuminating. I agree with your previous post and don't accept the narrow CPRG guidance as a general proposition. However, when read as a whole, CPRG provides a more complete principle of adjusting prices to restore comparability. CPRG states that one should normally place less reliance on comparisons with other proposed prices when Government requirements permit offerors to propose different technical approaches to contract performance and gives this example: CPRG is simply guiding readers to a reasoned analysis. Matthew: CPRG Vol. 1 goes as far as to say "[y]ou cannot make a determination of price reasonableness based on a price comparison with an offer that is technically unacceptable or an offer submitted by a firm that is not responsible." (Hopefully you aren't clairvoyant)

FAR instructs us to use sound business judgment. The Contract Pricing Reference Guide, referenced in FAR Subpart 15.4, states not to use unacceptable offers in comparisons and GAO doesn't appear to support comparing pricing to unacceptable offers (Lifecycle Construction Services, LLC, B-406907, September 27, 2012). So, if one chooses to rely on a comparison of proposed prices of unknown acceptability, esp. those including non-priced factors, sound business judgment still applies and should be documented pursuant to FAR 4.801( b ) The documentation in the files shall be sufficient to constitute a complete history of the transaction for the purpose of -- (1) Providing a complete background as a basis for informed decisions at each step in the acquisition process; (2) Supporting actions taken; (3) Providing information for reviews and investigations; and (4) Furnishing essential facts in the event of litigation or congressional inquiries.

Sure it's possible. I don't think anyone here disagrees. Disagreeing would be silly: FAR even provides several techniques. What is your reasonable argument? Does it involve or rely on comparison of proposed prices?