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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Posting of SAP sole source requirements

    SAP still provides agility and flexibility in the acquisition process (though you're probably right Boof that the procedures have become more complex since 1998 - that just seems to be the general trend concerning rules and regulations). When commercial and utilizing SAP, contracting officers can still quickly contract to meet their customers' needs by utilizing the following (to name a few efficiencies): FAR 12.603 allows contracting officers to combine the synopsis and solicitation (saves 15 days) FAR 5.203(b) allows contracting officers to utilize their business judgment to establish any response time (as long as it affords offerors a reasonable opportunity to respond) for all SAT & commercial buys (saves any number of days chosen < 30) FAR 13.106-2 allows a range of efficiencies when it comes to evaluations including the "broad discretion in fashioning suitable evaluation procedures" (FAR 13.106-2(b)(1)) and the ability to "conduct comparative evaluations of offers" (FAR 13.106-2(b)(3)). On a side note, I also think agencies don't do themselves any favors in regards to keeping acquisitions simple and straight forward. I've seen many a commercial requirement that could have utilized SAP pursuant to FAR 13.5 (commercial actions above $150k but less than $6.5M), yet the Government conducted a FAR Part 15 Source Selection instead. While at grad-school, a class-mate and I did some research on the utilization rate based on a data pull from FPDS that spanned approximately 15 months. Of the number of actions that were eligible for 13.5 Procedures only between 27% and 51% actually utilized them (I can only list a range because there were some anomalies and inconsistencies in the FPDS-NG data that could not be reconciled without pulling each individual file). I never understood (and still can't) why a contracting officer would needlessly subject him/herself, the customer, and industry needlessly to the more complex, burdensome process of FAR Part 15 rather than utilize FAR Part 13 (when eligible).
  2. Experience With These Incentive Arrangements

    Bob, I think it's important to also ask what incentive arrangements members have experience with as well to try and determine one reason why members may be more comfortable with some arrangements over others. If it is because they have experience awarding/administering contracts with those incentive arrangements we might have a case of the tail wagging the dog.
  3. Posting of SAP sole source requirements

    If what you've stated is true, how does that not exempt oral solicitations from paragraph (a)(1) which is contained under section 5.101? I understand the argument you're making that the FAR reads "For proposed contract actions expected to exceed $15,000, but not expected to exceed $25,000...the contracting officer need not comply with the display requirements of this section when...oral solicitations are used" and, as such, only applies to oral solicitations within that range; however, I also think it is rather sloppy that the FAR uses the word section because there are a number of display requirements under section 5.101 outside of those at paragraph 5.101(a)(2). Also another argument (on your side Todd) might be that display requirements are different from or a specific subset for disseminating information on proposed contract actions, and since 5.101(a)(1) does not use the term display requirements (it is unique to paragraph 5.101(a)(2)) oral solicitations over $25,000 must still be synopsized in the GPE unless otherwise excepted. Apologies for thinking out loud on both sides of the issue, but I certainly appreciate you engaging in the discussion.
  4. Posting of SAP sole source requirements

    There were two positions in my previous post, one regarding the requirements at 5.101 and the other regarding whether an exception to 5.101 results in an exception to 5.201. On the first point you state: I don't necessarily agree with this statement - it's dismissive and doesn't consider the content of the position I presented. The statement at 5.101(a)(2)(ii) states "section." According to the arrangement of the FAR, if the FAR wanted to exempt oral solicitations from only the requirements at 5.101(a)(2), would it not have said "paragraph" instead? I still think this results in a "chicken or the egg" situation. Personally, I agree with this position. The statement at 5.201 references the "threshold" not the "requirement" at 5.101 and, as a result, I'd argue we consider simply whether a requirement exceeds the dollar value regardless of further exemptions in that section - I was making the point for consideration to see if someone had a different take that they could explain (and maybe someone still does - we shall see).
  5. Posting of SAP sole source requirements

    Let's consider the following FAR excerpts: The FAR defines section under 1.105-2(c)(ii) as "Section would be “FAR 9.106” outside the FAR and “9.106” within the FAR" so the above reference in 5.101(a)(2)(ii) seemingly exempts oral solicitations from the display requirements of section 5.101 (does that also exempt it from the threshold referenced in FAR 5.201(b)(1)?). Then, FAR 13.106-1( c ) only permits oral solicitations when notice is not required under 5.101. The result seems to be a wonderful "chicken or the egg" argument (or maybe there is clarity somewhere that I'm just missing)...thoughts?
  6. DoD Source Selection Procedures (March 31, 2016)

    Jamaal, My mistake for assuming you were taking a position on the issue based on your line of questioning. I'm certainly not taking anything personally or avoiding pointed questions (the question was quite open/broad) or twisting words (I quoted fairly heavily from the FAR and your posts); still I think this discussion would have been better served had you taken or stated a position one way or the other from the beginning because, as someone that does not think the DoD SSPs take away contracting officers' "wide latitude to exercise business judgment," I (or others) who felt similarly were in a position to try and prove a negative (which is a fallacy in reasoning). Until someone makes a credible argument that they do, I don't believe there is much discussion to be had regarding that line of questioning. Of the six criteria for "deviation," I think two are pertinent to your question: 1.401(a) (is it inconsistent with the FAR) and 1.401(e) (does it impose lesser or greater limitations on the use of any policy or procedure prescribed by the FAR). For 1.401(a), inconsistency is the operative word and one definition is "not compatible with." Your scenario lacks specificity, so it would depend on the hypothetical FAR language that permits evaluation of a technical factor without evaluating risk as to whether or not the DoD SSPs are inconsistent. The likely case is that the FAR is silent and broad on what constitutes an appropriate evaluation factor (as it is today) and therefore, the additional specificity in the DoD SSPs wouldn't necessarily represent an inconsistency, but rather more specificity. In which case, 1.401(e) becomes an interesting discussion. Requiring the evaluation of risk when evaluating technical factors would likely be a requirement above merely evaluating the technical factor; however, it's impossible to answer this hypo without specific language because the FAR currently states under 15.304( c ) "The evaluation factors and significant subfactors that apply to an acquisition and their relative importance are within the broad discretion of agency acquisition officials, subject to the following requirements..." In that case, I don't believe it imposes greater limitations because the FAR has already ceded that discretion to the agency officials. Therefore, because the DoD does not meet either of the relevant two criteria for a "deviation" and because of 15.304( c ) I'd argue that it would not be a deviation needing to follow the process. As for the process that should be followed, I know from reading your posts on Wifcon that you're smart enough to have already drilled down to the DFARS, AFFARS or whatever agency supplement applies to your organization and that you're likely asking as a matter of practice. Unfortunately, I cannot help you there as I have not had to process a deviation before. Happy hunting for someone who has!
  7. DoD Source Selection Procedures (March 31, 2016)

    Asking another question does not make an argument. I agree that the standards in FAR 1.401(a), (e), and (f) are referring to the FAR (after all they explicitly state as much), but that does not mean that FAR 1.602-2 is some sort of trump card that results in regulations or procedures (in this case the DoD SSPs) requiring deviation authorization or publication. In regards to whether or not the DoD SSPs require(d) as much...: For (a) you need to provide an argument showing that the DoD SSPs are "inconsistent with the FAR." For (e) you need to provide an argument showing that the DoD SSPs authorize "lesser or greater limitations on the use of any solicitation provision, contract clause, policy, or procedure prescribed by the FAR." For (f) you need to provide an argument showing that issuance of the DoD SSPs are not "in accordance with 1.301(a)." Here, Don Mansfield has provided the criteria in the above post for consideration. Such arguments would warrant a meaningful discussion regarding the merits of how the DoD SSPs came to be (after all, whether or not the DoD SSPs even impede on the amount of latitude contracting officers have in exercising business judgment has yet to be shown, it has only been inferred by referencing 1.602-2). Also, it may be worth nothing that 1.602-2 merely states "contracting officers should (emphasis added) be allowed wide latitude to exercise business judgment" versus shall.
  8. DoD Source Selection Procedures (March 31, 2016)

    Infringement "on the wide latitude contracting officers are afforded by FAR 1.602-2" is not the standard for whether or not the requirements of FAR 1.401, 1.301, and 1.404 need to be considered and/or complied with. For deviations we have a definition (which you reference at 1.401) and nowhere within the six standards for "deviation" is 1.602-2 mentioned. 1.602-2 is also absent from FAR 1.301, where the consideration is instead whether or not the SSPs are an agency acquisition regulation (1.301(a)(1)) that meets the standard for publication for public comment. If you want to make an argument that DFARS PGI 215.300 meets one of those standards, let's discuss that instead of a standard that isn't present in any of the FAR references you state should have been considered and/or complied with.
  9. DoD Source Selection Procedures (March 31, 2016)

    Vern, I know you said you wouldn't discuss this matter further with anyone, but I'm interested whether or not the use of numerical scoring (back in the 1970s/1980s or even today) prompts protests during the solicitation phase with potential offerors arguing that the numerical scoring system chosen "stacks the deck" against them (or in favor of another offeror)? I'm not asking the question to imply that a potential increase in protests during the solicitation phase would be a reason to forego the use of numerical scoring due to the fear of protests, I'm merely curious. Also, thanks for the reference to scholarly material regarding numerical scoring/decision making - I hope you'll make an exception to your declaration not to discuss this topic anymore. If you're not willing to discuss numerical scoring (or even if you are), would you be willing to discuss your vision for Source Selection Procedures that provide helpful guidance for the DoD contracting workforce?
  10. DoD Source Selection Procedures (March 31, 2016)

    I've read through the updated DoD SSPs (admittedly only once, so I may have missed it), but I don't see any language prohibiting the use of performance and price tradeoff with a pass/fail technical factor. Could you reference the section/paragraph that does? In fact, I think the language under section 1.3 (pg. 2-3) still allows the use of the technique (emphasis added below): In other words, just because the DoD SSPs are silent on that particular technique, barring any language within the SSPs prohibiting the use of the technique it appears to be permissible.
  11. DoD Source Selection Procedures (March 31, 2016)

    Use of VATEP is optional so I don't buy the concern regarding distrust at the higher levels. Furthermore, according to the guidance, the purpose is not merely to "[take] some of the subjectivity out of the best value evaluation" but also (according to the preceding sentence) to "[provide] the offeror information to determine if the additional cost of offering better past performance will put the offeror in a better position in the source selection" (1.3.1.4). This method is just another tool in the toolbox - if the acquisition team decides that giving away subjective tradeoff flexibility is in the best interest of the Government so that offerors are more informed regarding the value of higher technical performance, I don't see how that is inherently bad.
  12. Hung Up on Best Value Evaluation

    thecontractingguy - you need to be more specific on what procedure you're using or anticipating - your $100k commercial service could be acquired in a number of ways: via a Federal Supply Schedule IAW FAR Subpart 8.4, via the open market IAW FAR Part 13, via an IDIQ IAW FAR 16.505 (and the IDIQ's specific ordering procedures), etc. Maybe the reason why you're not getting a clear answer is that you're not asking a clear question.
  13. Army General: Screw this procurement nightmare.

    I don't recall this standard (Chief of Staff's signature) as one of the circumstances permitting other than full and open competition...
  14. Army General: Screw this procurement nightmare.

    It seems that we aren't even doing the best we can with the acquisition system that we've been given. After reading about this requirement a couple of weeks ago I could not reconcile the approach the Government is taking with what I've read in the FAR, particularly the following: FAR 1.102 (b) "The Federal Acquisition System will -- (1) Satisfy the customer in terms of cost, quality, and timeliness of the delivered product or service by, for example -- (i) Maximizing the use of commercial products and services..." FAR 7.102 (a) "Agencies shall perform acquisition planning and conduct market research for all acquisitions in order to promote and provide for -- (1) Acquisition of commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items, to the maximum extent practicable (10 U.S.C. 2377 and 41 U.S.C. 3307)" FAR 12.101 "Agencies shall -- (a) Conduct market research to determine whether commercial items or nondevelopment items are available that could meet the agency's requirements; (b) Acquire commercial items or nondevelopmental items when they are available to meet the needs of the agency..." I've read case studies of past procurements where the Government found itself in a poor position by stretching the definition of "commercial item" to use FAR Part 12 procedures (http://www.dodig.mil/audit/reports/FY06/06-115.pdf). Here the Government appears to be doing the opposite.
  15. FAR 12.102(b) applies to "the policies and procedures for solicitation, evaluation, and award" while FAR 12.207 applies to "making a change" which occurs post-award. As such, I don't see how FAR 12.102(b) precludes FAR Part 12 from cross-referencing readers to FAR Subparts 8.4 and 16.5. If the point you're trying to make is that FAR 12.102(b) should restrict any references to Parts other than 13, 14, or 15, I think FAR 12.102(c) would address that concern (as another poster already pointed out).
  16. Electronic Submission of data

    What alternative are you proposing for the contractor to submit the requested/required documents? Having just dealt with issues regarding the transmission of sensitive and proprietary information from Contractors it makes sense that they have concerns over the medium in which they are delivered (especially if you're just requesting they email them to you). As a potential solution to your problem, I've had great experiences with AMRDEC SAFE, which is a secure file transfer system for US Government related business. Everything you need to know about it can be found at https://safe.amrdec.army.mil.
  17. BPA Duration Limitation

    USU1914, You asked: If the vendor cancels the agreement IAW the terms and conditions of the BPA, you would not be able to require continued performance. Although you won't find it explicitly stated in FAR Part 13 (though you will at FAR 16.702(a)(2) which discusses "basic agreements"), BPAs are not contracts (they are agreements) because the Government is not obligated to issue any orders. Refer to Production Packaging, ASBCA No. 53662, 03-2 BCA para 32,338 stating at 159,972: It is also important to note that BPA vendors do not have to accept orders issued to them either. Until an order is offered by the Government and accepted by the Contractor, no contract exists to require performance (and such performance is limited merely to each order). If you or your organization has concerns regarding vendor's cancelling performance, you may want to consider the use of IDIQs instead.
  18. Adequate Price Competition = Fair and Reasonable Price

    Jamaal, If you're looking for a "shall" statement to support the use of price analysis beyond merely relying on the basis of adequate price competition for determining price fair and reasonable, perhaps a combination of the following will suffice: FAR 15.404-1( a ) ( 2 ) states "Price analysis shall be used when certified cost or pricing data are not required." Moreover, FAR 15.404-1( b ) ( 3 ) states in part "...if the contracting officer determines that information on competitive proposed prices...is not available or is insufficient to determine that the price is fair and reasonable, the contracting officer may use any of the remaining techniques as appropriate to the circumstances applicable to the acquisition." As for your previous question, it wasn't clear that your intent was a preference on making the determination solely based on adequate price competition. My point was that a better way to determine a price fair and reasonable is to use multiple methods of price analysis that arrive at the same/similar conclusion (with the amount of effort tailored to the nature of the acquisition at hand). In relation to your comments on what is right vs allowable and what a prudent business-person would do, don't forget what the FAR states at 1.102( d ) which encourages sound business judgment as the driving force when exercising authority in situations that involve the exercise of initiative (though I don't think this is one of those, it may be a point to bring up if someone just wants to hit the easy button rather than perform additional analysis as a "sanity" check). Lastly, if this is an issue that you have found yourself disagreeing with your Contracting Officer, sometimes the best you can do is present your argument and let him/her make the decision. There are inevitably going to be situations you encounter where you disagree with a CO (or when you become a CO where you disagree with policy or maybe even a SSA), but you have to ultimately respect the person with the authority to make the decision (unless the decision is immoral, unethical, or illegal).
  19. 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.
  20. 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?
  21. 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.
  22. 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.
  23. 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.
  24. 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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