Matthew Fleharty

C Culham, I don't know what FAR you're reading - paragraph ( c ) is clearly applicable to ONLY paragraph (b)(2) and paragraph (b)(5) doesn't even use the word "ratify" or "ratification" it uses the terms "claims" and "processed." I think Vern provided as good an explanation as possible and I attempted to show you through a different lens, though it seems you're stuck in your own beliefs (which if you take the time to think carefully, contradict themselves..."each sentence stands on its own"). So be it.

C Culham, The ratification limitations you cite throughout your previous posts and scenarios are only applicable to FAR 1.602-3(b)(2), not FAR 1.602-3(b)(5). See below: So why would you conduct those limitation tests when there is an unauthorized commitment that falls under FAR 1.602-3(b)(5) when the FAR makes it clear they are only applicable to FAR 1.602-3(b)(2)?

Not to be a nitpick, but for the benefit of those reading these forums I think you each forgot a "not" in the sections quoted above (I added the word in bold and underlined text where I thought it was accidently omitted).

C Culham, The OPs question used the term "proposals." Since there is a distinction with a difference between "bids" and "proposals" do you still find your hyperlinked decision pertinent to the discussion here? In regards to the distinction between "bids" and "proposals" see the definition of "offer" under FAR 2.101:

Shall7, Your assumption that contractors cannot (or should not, I'm not sure which) deliver educational value runs counter to the basic purpose of the federal procurement system as a whole...why is it not okay to use contractors for education/training purposes, but it is okay to use contractors for other services/requirements? Shouldn't the Government just do everything itself rather than "throw money at the problem(s)?" Where is the bright line? I'll just add the following: I've been through the DAU courses, the Naval Postgraduate School's MBA program, as well as years of agency designed/delivered monthly training and the best contracting course I've taken was designed and taught by a contractor...so I don't share your concern in the slightest. The Government does not have a monopoly on contracting/acquisition information - the best publications, in my opinion, aren't even written by Government/DAU officials. Should Government acquisition professionals not utilize those works and instead be tied to only DAU resources?

Ultimately, it sounds like you were trying to engage in an exchange of hypotheticals with the CO regarding the bright line for what is technically acceptable/unacceptable. If I were in that CO's shoes, I wouldn't do it either, primarily because with an LPTA acquisition the minimum technical requirements should be clear in the solicitation. I might also add that you should be careful what you wish for - if you did receive the debriefing answers you sought, to my knowledge, those answers are not binding for subsequent procurements. Therefore, adhering to information obtained during the debriefing instead of Sections L & M could impede your ability to secure future contracts. As for your current Q&As, I hesitate to comment because you've provided no information regarding the content/quality of the solicitation or the content/quality of your question; however, I will say this: don't expect the Government to tell you how to propose. Review the Evaluation Criteria in Section M and, if they aren't clear, ask specific, clarifying questions in response to the solicitation. If you're asking "what's the minimum technically acceptable..." I'm not surprised you're being referred back to the criteria in the solicitation which, in an LPTA procurement, should specify just that.

Though you may not have received the answer you anticipated or wanted, I think the second half of your question was answered ("what is the basis for it?")...you might want to consider that, of those individuals who frequent these forums, many do not post/participate so you may not ever get an anecdotal response from a similarly situated person/company here.

There are exceptions to posting the solicitation at FBO.gov, see FAR 5.102(a)(5): In such a case, FAR 5.207( c )(17) applies, which states:

What would be the substantive differences in regards to determining a fair market price that concern you? I don't see many differences between FAR 15.404-1(b)(2) and FAR 13.106-3(a)...

Vern's right about terminology, my mistake, though the fair market price is determined consistent with my previous reference. See FAR 19.202-6 "Determination of Fair Market Price":

GABE, Is this merely a hypothetical? I only ask because for small business set-asides (except those which allow for sole source awards) there is a "Rule of Two" requirement to help ensure there is competition which should drive fair and reasonable pricing (though understandably not always). That is also why there are multiple techniques one can use to evaluate whether or not a price is fair and reasonable. In your case if a determination cannot be based on prior purchases for similar products, have any of the other techniques listed at FAR 15.404-1(b)(2) been considered? If, however, the proper amount of price analysis has been performed and the price is not fair and reasonable, napolik's references are on the mark and I'd focus your attention/efforts there.

Sure, no disagreement if that was the intent behind your proposal as paragraph (2) is a more specific standard than just a "plan to offer it for sale."

Vern, Appreciate the correction, I shouldn't use the word "claim" since it means something quite specific in the context of contracting (it's a bad habit left over from my debate years where we discussed argument structure in terms of "claim, warrant, impact"). That's an interesting solution, let me give some more thought to it, though I currently don't think the "plan to offer it for sale" portion would meet any of the commercial item definition's criteria (the other two would). I went back and searched the Federal Register for the origins of the DFARS requirement for commercial item determinations on acquisitions over $1M and found the following (https://www.federalregister.gov/documents/2008/01/24/E8-1121/defense-federal-acquisition-regulation-supplement-commercial-item-determinations-dfars-case):

I would agree, in part, that invoices (or additional information) should not be requested for items that could simply be verified via a Google search of the company name and product description, but then again, there are cases where a "commercial item" claim is made and the company does not readily advertise the item (i.e. a Google search of the company name and product description will not return adequate results). In those cases, I believe a company should provide just enough information (no more, no less) to substantiate their claim that the item meets the criteria for "commercial item" in the FAR. I don't believe that is an unreasonable request.

Where is the criterion for "if it seems like something for sale in the commercial marketplace" in the FAR definition for commercial item? The criteria I read in the FAR are all factually based. I don't think that a CO should use the need to determine whether or not an item is commercial as a façade to request other than cost or pricing data (shame on those COs who do)...but a request for a non-redacted invoice to substantiate that the customer is either the general public or a non-governmental entity using the item in question for other than governmental purposes isn't unreasonable or an especially high hurdle to clear.

Well that doesn't answer Don's question and it certainly ignores the situation at hand, namely the prime does not make the commercial item determination, the Contracting Officer does. So if you're satisfied with the prohibitions in place for Government employees who handle confidential information (which applies to COs), it certainly begs Don's question: "What's the harm in giving the COs the pricing information they want?"

Are you familiar with 18 USC 1905 regarding disclosure of confidential information? https://www.law.cornell.edu/uscode/text/18/1905 The Government is asking for the customer information to make sure they are either the general public or a non-Governmental entity and the end use to make sure that the purpose is "for other than governmental" - those two criteria are straight from the FAR definition of commercial item...without that information how else would you expect someone to make an adequate determination that is grounded in facts? I'd love to hear an alternative, but unfortunately it seems you're asking the agency to hit the "trust me" button...

An item or service either should or should not meet the definition of commercial item (with the exception that the item in question has never been sold before and a company is making the initial decision as to whether or not to offer the item solely to the Government or to the public). I understand that there can be disagreement over whether or not an item is commercial and that there have been reversals of commercial item determinations, but I think that is a separate issue and conversation from what seems to be the position that companies have the luxury/ability to merely say a product is commercial or non-commercial when offering it for sale (a company can certainly make the claim, but I would expect it to be supported based on evidence relating to the definition of commercial item under FAR 2.101): Additionally, while PepeTheFrog is right that the contracting officer ultimately makes the commercial item determination, a company can still ultimately choose whether or not to do business with the Government. Basically, if the concern is that an agency is improperly making a determination that an item is non-commercial just to apply terms and conditions that would otherwise not be applicable, the easiest way one can avoid those burdens is to refuse to contract with that agency. There may be other avenues a company can explore to adjudicate the issue, but I only have thoughts on that issue so I'll leave that discussion to any of the industry professionals whom frequent these forums to discuss how they might address the situation. FAR Part 15 is not unique to non-commercial items...commercial items can also be procured under FAR Part 15 procedures (when combined with FAR Part 12). Finally, there are a myriad of reasons why the Government and the prime may disagree on whether or not an item is commercial (by the way, it can go both ways i.e. a prime may argue that an item is non-commercial while the Government determines the item is commercial) - my only advice is to provide the proper support and a clear justification/argument based on the FAR definition and hopefully both parties will arrive at the same conclusion.

Todd, CO's can delegate their authority - do a search for "Field Ordering Officers" for one common example (http://www.acq.osd.mil/dpap/ccap/cc/jcchb/HTML/Topical/foo.html).

The FAR Conventions, specifically FAR 1.108(b), may be helpful here: FAR 1.102-4(b) states:

C Culham, I didn't recommend using an RFQ to for market research either (see my previous post), I was merely attempting to answer your question.

My reading of those paragraphs indicate that the limitation is applicable when one is acquiring supplies and services or making purchases. In Vern's hypo, one is merely trying to obtain pricing information (a quote) so I do not think those paragraphs establish a restriction.

Agreed, I could have been more clear and specific rather than using the term "may" to hedge - I'll revise the statements as follows (exempting discussion of FAR 8.4 for the moment since those acquisitions are solicited via a separate business system than FedBizOpps): for RFQs, the Government is presently utilizing/contemplating FAR Part 13 procedures and an offer/order from the Government will most likely follow. for RFIs, the Government is presently utilizing/contemplating FAR Part 15 procedures and a solicitation for offers will most likely follow. I never said one couldn't, I just said he/she wouldn't be consistent with the usage of the terms in the FAR. It may be easy to dismiss the usage of one or the other as trivial, but an argument could be made that imprecise usage does matter in this case (I think it matters generally, but I won't go into an aside on habits here...). Consider searching for "RFQ" vs "RFI" in FedBizOpps...those two search terms should turn up different results: RFQs for acquisitions in the solicitation/acquiring phase RFIs for those in the pre-solicitation phase If one used the two interchangeably, those differences would not be evident and it would be more difficult to monitor and search for appropriate contracting opportunities; however, if an individual wants to simply buck convention because they prefer the term "RFQ" to "RFI," I do not know of a regulation that has the force and effect of law that would prohibit him or her from doing so. Personally, though, I think there is enough confusion in the acquisition system without trying to inject more by using a "Q" for "Quote" for FAR Part 15 acquisitions when the "I" for "Information" also allows one to request the exact same information about pricing.

If one is trying to be consistent with the usage of terms in the FAR an RFI should be used when FAR Part 15 procedures are contemplated/required. See FAR 15.201(e) which states: I consider the difference to be this: for RFQs, an offer/order from the Government may follow. for RFIs, a solicitation for offers may follow.

To piggy back on Vern's point, recommend you read FAR 13.004 "Legal Effect of Quotations" which states: