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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. 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:
  2. 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"
  3. 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!
  4. 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.
  5. 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).
  6. 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?
  7. 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...).
  8. 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?
  9. 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...
  10. This thread might interest you:
  11. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Jamaal, All other things being equal, do you think that offerors would propose different prices under the two LPTA frameworks? Framework 1: Rank all offers by price; evaluate all proposals for technical acceptability; award to the LPTA Framework 2: Rank all offers by price; starting with the lowest priced proposal, evaluate proposals from lowest to highest until one is technically acceptable; award to the LPTA
  12. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Brent, Could you finish that line of thought? Maybe the reason you're running into disagreement is because you're not adequately/fully explaining your position/argument... Food for thought: Is "competitive pricing" the only way to determine whether or not a price is fair and reasonable?
  13. Matthew Fleharty

    Determining Fair and Reasonable LPTA

    Brent, Let's think this through for a moment - imagine all your circumstances were identical except you only received on offer in response to you RFP...what would you do in that situation? Would it be possible for you to determine whether or not that single offer has a fair and reasonable price? Bob - this question should go in the Beginners Forum.
  14. Matthew Fleharty

    FAR 52.204-21

    Vern, I think dak9204 is referring to FAR 12.301(d)(3) which reads: dak9204 should have provided that reference when he/she made the statement.
  15. Matthew Fleharty

    Cancelling Solicitaiton - Sole Source

    What prohibits a PCO from rescinding RFPs in sole source environments?
  16. Negotiate or find a new contracting office to do business with.
  17. Maybe you should ask that agency why they use that business practice. Anything anyone tells you here is nothing more than a guess (unless someone from that office decides to respond here on WIFCON). No, not at all. See FAR 16.103 for starters: Also see FAR 15.405:
  18. Matthew Fleharty

    new category of software rights

    If you're guessing at what they may want, it's definitely too soon to laugh at their expense...
  19. Representative Thornberry has introduced a discussion draft of his proposed FY19 acquisition reform efforts. In it he proposes to separate the definition of "commercial item" into "commercial product" and "commercial service." The following is the proposed definition of "commercial product" (emphasis added below): I'm curious to hear others' interpretations of the meaning of paragraph 4 (in bold above). Thanks in advance to anyone willing to share her/his thoughts.
  20. Matthew Fleharty

    Commercial Product Definition

    For anyone who is still curious, they dropped paragraph 4 from the NDAA's revised definition of commercial items: http://www.wifcon.com/dodauth19/dod19_836.htm Maybe someone in Congress actually reads WIFCON! 😁
  21. Matthew Fleharty

    Consideration in exchange NCE?

    Since this is the beginner's forum I just wanted to point out how frequently the above highlighted text is misused (whether it is in this case or not, I cannot say for certain because I do not have enough facts about the situation, but based on my experiences I'd bet it is wrong). I'm sure the phrase is used either to make extensions more palatable or out of a lack of understanding, but it's incorrect nevertheless. Unless the contractor is no longer charging costs to the contract during the extension period, it is not a "no cost extension." Absent some additional term, that extended work period will still cost the Government money.
  22. Matthew Fleharty

    A solution to improve 1102 output and efficiency?

    Be a part of the solution and strive to be a Vern-like KO.
  23. Matthew Fleharty

    A solution to improve 1102 output and efficiency?

    Amen to that!
  24. Matthew Fleharty

    Vern's Words of Wisdom

    Where to even begin?! I don't know if this is the specific one you're looking for, but it's a personal favorite that I often share:
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