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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Adequate Price Competition = Fair and Reasonable Price

    Jamaal, The FAR does not require a comparison of the prices. Refer to FAR 15.404, what the FAR requires is proposal analysis (which can consist of various methodologies) to determine the final agreed-to price is fair and reasonable. In this case, you're using price analysis so I'd refer you to 15.404-1( b )( 2 ) where the FAR lists multiple price analysis techniques and procedures you can utilized in making a determination of price fair and reasonableness. Vern has already quoted 15.404-1( b ) ( 2 ) ( i ) which discusses the technique of "comparison or proposed prices received in response to the solicitation" followed by "Normally, adequate price competition establishes a fair and reasonable price" which is precisely the rule you need to consider. The use of the word "normally" indicates that there are situations where adequate price competition does not establish a fair and reasonable price. Therefore, in my opinion, the answer to your question as to whether or not it does so "ipso facto" would be no. If you're concerned about making the determination solely based on adequate price competition (the definition of which is worth looking up at FAR 15.403-1( c ) ( 1 )), then resort to additional price analysis techniques. I'd argue that the use of several different techniques will make your determination more sound anyways.
  2. DFARS 252.247-7023

    I agree with your interpretation (in most instances). The clause presents two criteria for consideration of the applicability of DFARS 252.247-7023 to contractor-owned equipment (COE). Is the COE "clearly identifiable for: (1) "eventual use by[...the DoD]" or (2) "owned by the DoD" Equipment cannot be owned by the DoD and the Contractor simultaneously so COE would not meet criterion (2). The only situation I could see COE meeting criterion (1) is if the DoD leases a piece of equipment. In those cases, the contractor could own the equipment, but it would be for use by the DoD IAW the lease hence fulfilling criterion (1). Is there a specific situation you're analyzing for applicability of DFARS 252.247-7023 to COE or is this merely a hypo?
  3. Selection of Provisions and Clauses

    Metteec, I've seen the proliferation and sharing of clause matrices that included descriptions or highlights of what clauses to include and when. In most instances, those tools got users other than the creator into trouble. I imagine we could both agree that your clause book is imperfect, but since you created it, you're intimately familiar with any/all shortcomings so you know how to use it as effectively and as accurately as possible. Others that may use it will presumably have a more difficult time because they'll need to spend time familiarizing themselves with your format, choices, etc. which could lead to inaccuracies (at least that is what my observations have led me to believe thus far). When I led the services/commodities flight at my previous base, I encouraged everyone to go through the process of creating their own personal tool for the clauses in FAR Subpart 12.3 and DFARS Subpart 212.3. For those that took the task seriously, they learned the method (and difficulties) of evaluating clauses and, after multiple iterations of feedback to increase the tool's accuracy, they arrived at a tool that they were familiar with and could use more easily than something passed on to them from another buyer or found on the web. Vern is right - going through the process to develop a tool/matrix is no easy task. A suitable one takes considerable time and effort, but in our case, we were limited to a microcosm of the FAR because we only dealt with commercial item acquisitions so that simplified everything considerably. I think the goal of a "one tool to rule them all" is admirable, but frankly since tools are based on interpretation and descriptions, they'll likely be prone to the same difficulties as the ones that float around today. Such tools will likely be no better than reviewing the clause prescription itself (i.e. one person's plain English is not necessarily another person's plain English). For this reason, I primarily use the current matrix for the ability to quickly access prescriptions without having to comb through the FAR completely and create my own tools so I know what strengths/weaknesses are present (which minimizes the potential for errors) - I'd encourage others to do the same.
  4. Selection of Provisions and Clauses

    Jamaal, This depends on your requirement. If commercial, I'd go to FAR Subpart 12.3 (and the respective supplements for the agency I work for) and use those clauses there (these clauses, 52.212-5 in particular, are essentially your commercial "matrix"). Then, based on the particular requirement, it may warrant the consideration of additional clauses IAW FAR 12.301(e). At this point, you'd want to comb through other FAR Parts to identify what additional clauses may or may not be needed for the acquisition at hand. I'm not sure what type of contracting office you work in, but when I was in an operational contracting squadron, 100% of the requirements I saw for services and commodities were commercial (I usually say that 99% of the requirements you'll see in an operational squadron are commercial because there are exceptions to most rules). For that reason, I tried my best to get all my buyers and COs to become intimately familiar with and follow the language of FAR Subpart 12.3 and DFARS Subpart 212.3 - I encourage others to do the same at every opportunity. As for other procurements, I think the only meaningful way is to use the Matrix provided for the FAR and comb through all the DFARS clauses to assess applicability (so a mix of #1 & #2, though reliance on the coding in the cells should be minimal). I say that as a relatively younger professional - I've tried to assess which FAR Parts are applicable and evaluate only those clauses. What I found was that after double checking by combing the FAR there we numerous other provisions/clauses that were required (hence why I mentioned in the other thread the creation of the DFARS Matrix so I can quickly locate prescriptions to evaluate). #3 unfortunately has never worked well for me - I've tried it numerous times only to have to spend more time analyzing each of the clauses anyways (so I feel like the time spent using the system/tool is just wasted effort). I'm also not reassured by the fact that the bottom of the website states "Last updated: OCT 2011 by ESC/HIBB-KSL." I'd go a step further and state that I don't think any system or "logic tool" will ever be able to accurately and reliably replace the judgment of a good contracting professional - when/if that day comes, we might all be out of a job.
  5. I believe Jamaal is referring to the DFARS and AFFARS (and other agency supplements) by his use of the term "FAR Supplements." On that issue, I've created a draft of a matrix for the DFARS with references, but haven't hyperlinked it or filled out the various section filters (FP SUP, CR SUP, etc.) yet. I tried pushing the idea up the chain to see if there was a need for it at the DoD level (with the hope that one would be incorporated into the DFARS), but my comments fell on deaf ears (likely due to consistency with the DoD's position to eliminate the FAR matrix altogether as mentioned by GeoJeff in post #8). Jamaal, as for the blanks in the table, if the matrix was accurate (which we've already identified that in cases it is not) the blanks would indicate that a particular provision or clause should not be used or considered for use. Not sure if replacing the blank space with a "N/A" would be helpful if the purpose of the blank space is understood.
  6. It appears there is a general consensus that a comprehensive and accurate FAR clause matrix is a useful tool for contracting professionals. That being said, I don't know that I agree with the sentiment that because the FAR Clause Matrix is broken is should be scrapped - I think a better solution is for it to be fixed. Even in its current state, I find the matrix under FAR Subpart 52.3 useful. While the coding cannot be used to replace judgment when analyzing provisions and clauses (examples have already been provided where doing so will result in errors), the listing and hyperlinking (in the online version) of the prescriptions for each provision/clause does make finding the information one needs to analyze a clause more expedient than combing through each FAR Part manually. Maybe this is the idealist in me, but I don't think it is to much to ask that as the FAR Council adds new provisions and clauses to the FAR, they also accurately list them in the matrix (after all, they are/should be the policy experts in that regard).
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