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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Voting member of a source selection board?

    You should practice what you preach Seeker.
  2. Flowdown Clauses for Commercial Items

    I fought a similar and equally frustrating battle at my first assignment over which provisions/clauses might be necessary for inclusion in contracts for commercial items. FAR 12.301(d) has similar language: Yet still, individuals would use the entire FAR and DFARS provision/clause matrices when writing the solicitations/contracts. I couldn't (and still can't) understand how the definition of "notwithstanding" and the language that follows was unclear, but it doesn't surprise me that some are facing a challenge in this case given the similarities. I suppose this might be one of the procurement lore versus procurement rule issues and some people just get stuck in the way of doing things without knowing why or whether that way is proper or improper. It's such a shame that some would rather be right instead of doing things right.
  3. Read this. Read it NOW!

    I saw that, but based on his work with David Eaves and the inclusion of "by Steven Kelman," they presumably share the same thoughts (I know I wouldn't let a colleague put my name on an article or document without my review and consent).
  4. Read this. Read it NOW!

    Thanks for sharing Vern - I have Dr. Kelman's book "Unleashing Change" in my reading queue. Based on the thoughts in this article, I just may move it up a few spots.
  5. Acquisition Reform ― It’s Soylent Green!

    As someone who has provided inputs, particularly on the topic of simplifying and streamlining acquisitions, I was eager to read the panel's interim report; however, I was disappointed with the result. Let's take, for example, the focus on clauses for Simplified Acquisition - I think the panel walked right into a distraction from more impactful issues and then focused on the lowest hanging fruits ($1 Coins and Texting While Driving clauses...). Here are some brief thoughts in response and some that I've already provided through other means: Most Simplified Acquisitions are commercial (run an FPDS-NG report to see) which means the analysis on page 23 is overstating the issue. The biggest impediment to quicker Simplified Acquisitions is not selecting provisions/clauses for those acquisitions - any semi-proficient contracting professional should be able to review those particular prescriptions in less than a day as most of them are fairly straightforward. I'm curious whether the panel has data other than the number of clauses and anecdotes that indicates selecting provisions/clauses for Simplified Acquisitions is a serious issue that extends the timeline to award - none was provided in the interim report. The panel should look into the acquisition workforce's under-use of FAR 13.5 procedures for eligible acquisitions - I imagine most acquisitions would be greatly simplified if they did not use FAR Part 15 Source Selection Procedures. I hear complaints of complexity, but for many it is self imposed so they can get their "valuable Source Selection experience." One final thought about the call to action - if we're serious about seeing change in the acquisition world, let's be bold - one recommendation for Simplified Acquisitions would be to (a) increase the SAT and/or (b) tie the synopsis and publicizing of contract actions requirements in FAR Part 5 to the SAT. I know those recommendations have been provided to the panel - maybe there is just so much input that they haven't had the opportunity to consider them yet, but I believe that time spent on substantive issues like those would be much more beneficial than discussions of $1 Coins and Texting While Driving.
  6. I'm currently on the hunt for new reading material and I figured while I try to help myself, why not help others. For those also looking for something to read related to contracting, a list that I have found helpful compiled by Vern can be found here (www.wifcon.com/anal/RecommendedReading.pdf). Similarly, I'm sure other members of this community have books that they share when asked for recommendations, but haven't taken the time to compile a list (I'm guilty myself) so I'd like to ask the Wifcon members for a simple, easy request: Provide just one recommendation for a book that would be beneficial for a contracting professional to read. I'll start: My recommendation is Thinking, Fast and Slow by Daniel Kahneman (https://www.amazon.com/Thinking-Fast-Slow-Daniel-Kahneman/dp/0374533555). In a career field where making sound decisions is a critical trait, one should understand how the mind works, how it can deceive us, how to recognize those situations, and how to adjust accordingly. What you'll learn from this book is as useful (if not more) in life as it is in contracting. What's yours?
  7. Unreasonable Price

    Agree 100%. I think the FAR's pricing policy is crystal clear that awards shall be made at fair and reasonable prices...if no one can do that and, therefore, compliance with the FAR is not possible, I'd imagine one would have to pursue a Deviation IAW FAR Subpart 1.4 (emphasis added below). The only question that remains is whether or not such a deviation is precluded by law, executive order, or regulation...
  8. Unreasonable Price

    Jamaal, It was likely directed at me - Seeker sent me a few PMs laced with ad hominems labeling me an "awful bureaucrat" amongst other things. I'll no longer be engaging with Seeker on these forums as a result. Maybe you'll have better luck getting a response that is supported by facts or references to the law/policy/regulation, but I doubt it.
  9. Trump Lease of Old Post Office - A pending breach?

    Seems team Schooner has some more supporters: 'Pay Trump Bribes Here' Projected on Trump Hotel in Washington
  10. Unreasonable Price

    My apologies Lionel - I read in haste - I'll edit my post accordingly.
  11. Unreasonable Price

    Refer to FAR 15.402 "Pricing Policy" (emphasis added below): That policy couldn't be clearer and I do not see any exception to it there or in FAR 15.405. Short of an approved deviation, I'm not aware of any authority for a Contracting Officer (or even individuals one level above) to make or authorize purchases at unreasonable prices.
  12. Unreasonable Price

    Jamaal, I'm not seeing the inconsistency. I don't read FAR 15.405(d) as authorizing or instructing anyone to award a contract at an unreasonable price. It merely states that the unsuccessful contracting officer "shall refer the contract action to a level above the contracting officer. Disposition of the action should be documented." Nowhere does that reference (or any other that I am aware of) give anyone, including the individual one level above the contracting officer, authority to award at an unreasonable price. While not my precise thoughts on the matter, I presume this may be why the FAR says what it says: That individual one level above the contracting officer may also have more experience, skills, knowledge, etc. to resolve the situation - I believe the FAR is just instructing lower level CO's on what to do when they reach an impasse.
  13. Increasing Rights in Software--> In-scope Change?

    Joel that wasn't my question. Regardless of the OPs situation, Seeker appeared to take the position the any/all contract(s) for software rights are exempt from CICA because software rights are not supplies, services, or construction and CICA only applies to "acquisitions" which, according to the FAR 2.101 definition only covers "supplies, services, or construction" and does not expressly state "software/data rights" (at least I think that is Seeker's position and presumably Seeker believe thats software/data rights do not fall into any of those categories, hence my question). I'm trying to pull on that thread - hopefully that is more clear now.
  14. Increasing Rights in Software--> In-scope Change?

    Why do you assume I'm not "relaxed" Joel? Seeker's answer appeared to use a position that applies more broadly than this one situation so I feel my question is fair game.
  15. Increasing Rights in Software--> In-scope Change?

    Do I understand you correctly that the Government can contract for any software rights it desires without regard to CICA?
  16. FAR Part 8 Priorities

    ContractSpecialist TJohn, You should edit your post to correctly separate the portion that is quoted from your words.
  17. FAR Part 8 Priorities

    Re-read FAR 8.004 - "agencies are encouraged to consider satisfying requirements from or through the non-mandatory sources listed in paragraph (a) of this section (not listed in any order of priority) before considering the non-mandatory source listed in paragraph (b)" - encouragement is not the same as a requirement. Moreover, if a better value can be obtained through commercial sources in the open market, I'd argue you have an obligation as a steward of taxpayers' dollars to pursue that better value given the non-restrictive language in the FAR.
  18. Trump Lease of Old Post Office - A pending breach?

    For anyone still interested in this topic, in March, the GSA Contracting Officer concluded that the hotel lease is valid. As one would expect, there is still disagreement amongst contracting professionals regarding that determination. The article linked below contains embedded links to the GSA Contracting Officer's letter, NPR's previous coverage, and an interview with Prof. Schooner regarding his thoughts on the lease. http://www.npr.org/sections/thetwo-way/2017/03/23/521283505/gsa-says-trump-d-c-hotel-lease-is-valid-despite-ban-on-elected-officials
  19. Performance-based payments law vs. reg

    Vern and ShawnT, I don't think this issue is that clear - conceivably, valid arguments could be made on either side based on which definitions are chosen. For instance, let's consider that the language in 10 USC 2307(b) says nothing about performance based payment amounts - it uses the term "performance based payments," which based on the following definition of payment, could mean the issuance of the PBP: That definition along with the alternative definitions of "conditioned upon" or "condition" would be consistent with an interpretation that the PBP criteria governing when a payment shall be issued cannot be tied to costs incurred, but the amount expended can still be limited by costs incurred to avoid unintended advance payments. Vern makes an interesting assumption that industry lobbied for the change which may very well be true; however, could it also be possible that there was a push within the Government to be more restrictive and/or explicit that PBP criteria cannot be tied to costs incurred based on misuse by agencies? Despite the differing interpretations, I'm inclined to believe my original position for now (despite a much more experienced/educated individual disagreeing with me) because payment amounts receives its own paragraph at 10 USC 2307( c ). That would be the natural place for any language consistent with ShawnT's interpretation of the law and the language currently there does not prohibit the DoD from being more restrictive by limiting the PBP amounts to no more than the costs incurred.
  20. Performance-based payments law vs. reg

    ShawnT, I think you cut your definition search a word short - look up the definition of the term "conditioned upon" and think about how that term is distinct from a limitation. Then I'm confident you'll understand the difference/nuance and Vern's logic. Edit: Even alternative definitions of "conditioned" might be worth considering, such as American Heritage Dictionary's (https://ahdictionary.com/word/search.html?q=condition) Conditioned: To make dependent on a condition or conditions: Use of the cabin is conditioned on your keeping it clean. The PBPs are dependent on performance outcomes, but limited by actual costs incurred.
  21. Wage Determinations under the SCA

    You'd be surprised to hear that there are plenty of cases regarding underpayment and back wages...https://www.dol.gov/opa/media/press/whd/ For worker specific info, see the following link: https://www.dol.gov/whd/workers.htm There is even a handy link on "How to File a Complaint."
  22. PTA above ceiling price — how big a deal, really?

    In regards to the following: Now I think we have different conceptions of the PTA - since when does the PTA define the point where the seller is in a "loss position?" The PTA is merely the point where the share ratio converts from X/Y to 0/100 - a seller could still be in a profitable position at a PTA. For example, let's refer back to the authoritative source you cited. In that example (Figure 3), at the PTA the contractor would still receive 5 profit...how is that a "loss position?" Overall, I'm not sure how to answer your central question any better than Vern did. A PTA is not a term of the contract and it's importance is only as significant as the parties choose to make it when negotiating the geometry of the FPI contract.
  23. PTA above ceiling price — how big a deal, really?

    Maybe Bill has is axes or ratios mixed up...as the source he cited mentions, convention is to list the Government share in the numerator and the contractor share in the denominator while graphing profit along the y-axis and cost along the x-axis. If convention holds, a 50/50 share line is not "flatter" than an 80/20 share line.
  24. Quotes vs. Proposals

    Be careful receiving advise without a source or citation. Read FAR 13.106 titled "Soliciting Competition, Evaluation of Quotations or Offers, Award and Documentation." Notice the use of "quotations or offers" in the title and throughout that section. Also see FAR 13.106-2(b)(1) which states: Now refer to FAR 2.101 for the definition of "offer" which states: So to answer your question directly, yes you can request a "proposal" under FAR Part 13 procedures...but ask yourself, considering the definitions and distinctions between quotations and proposals, are you asking for a proposal for the right reasons? As for your evaluation approach, it sounds like you may be preparing to conduct an "essay writing contest" so I'll refer you to the following threads and posts by Vern Edwards which hopefully help you reconsider and/or inform your approach. Remember, in fashioning criteria for evaluation of offerors, focus on those factors that are discriminators rather than merely following a template and doing whatever was done the last time the services were contracted for.
  25. Ratification Authority

    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.