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Matthew Fleharty

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About Matthew Fleharty

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  1. Matthew Fleharty

    RFPs for Commercial Items

    Here we go again with one of @PepeTheFrog's favorite talking points...Next up, negotiation = deception...
  2. Almost, you just have to be careful to enunciate. What about HRFRP (Highest Rated w/ Fair and Reasonable Price)? For some reason four to five letters seems like the limit unless it spells a word...
  3. I've used HTRRP (Highest Technically Rated, Reasonable Price)...it flows a bit better than HTRFRP and still gets the "reasonable price" component in there (whereas HTR, by itself, does not).
  4. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Short of engaging in discussions/negotiations (which is a completely different topic) how would assessing higher priced proposals for their technical acceptability result in awarding a contract for a lower price than the Lowest Priced Technically Acceptable offer?
  5. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    That analogy is not even close to the situation at hand...
  6. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    You can find a more pertinent example in the oral arguments for Kingdomware Technologies, Inc. v. United States, No. 14-916 (2016) where Chief Justice Roberts says:
  7. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    I think very little (if any) of the disagreement on this forum dealt with "what is a fair and reasonable price?" - the objections came from "can you properly prove it IAW the FAR"
  8. 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!
  9. 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.
  10. 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).
  11. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Does one have to perform complete technical evaluations in order to know whether or not other offers (or pieces of information) are comparable?
  12. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Not one bit - it relies on an understanding of the competitive markets and the concept of fair and reasonable prices. For one, the approach doesn't use technically unacceptable offers; that's important because you're presuming those offers are unacceptable...I believe, for these purposes, they're presumed "innocent until proven guilty." After all, that's how the contractors approach the situation. If they don't offer a solution that is technically acceptable and the lowest price they're going to lose business to someone who does. If a determination of fair and reasonable pricing is concerned with too high of a price, I think, generally (because there are exceptions to every rule) it is perfectly reasonable and sound business judgment to consider the LPTA offeror of a competition as not too high (and, therefore, fair and reasonable) by virtue of having competed against the market for the contract. The fact that you have X number of unevaluated proposals simply serves as evidence of the competitiveness of that market for the requirement. As for all this talk about "adequate price competition normally establishing a fair and reasonable price," whether it is misplaced or not, compare the second standard to the situation at hand: Adequate price competition (15.403-(c)(1)(ii): an expectation that two or more responsible offerors, competing independently, would submit priced offers even though only one offer is received... This situation: numerous offers are received, though only one offer is evaluated IAW the solicitation's procedures because it is the LPTA If some are willing to hang their hat on "adequate price competition = a fair and reasonable price" why wouldn't they be equally okay doing so in a situation where one receives more than one offer, but only evaluates one? I think the second situation is far more defensible than the first, regardless of how the FAR defines "adequate price competition" (frankly, it's too narrow...).
  13. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Moreover the list isn't exhaustive nor does the FAR contain a restriction to only use the listed techniques. What does FAR 1.102-4(e) say again about sound business judgment?
  14. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Let's not forget that the FAR is not a "how to" guide and it isn't definitive or exhaustive on how one determines prices fair and reasonable (emphasis added): Is it possible to make a reasonable argument that a LPTA proposal's price is fair and reasonable without knowing whether the other proposals are technically acceptable? I think so, despite what the FAR may or may not say. Next up in "how can we make more non-value added work for ourselves", someone is going to explain to all of us that to meet the standard of adequate price competition the Government must perform contractor responsibility determinations on the unsuccessful offerors in addition to the technical evaluations...
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