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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. Small Business Set-Aside

    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":
  2. Small Business Set-Aside

    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.
  3. Commercial vs non-commercial

    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."
  4. Commercial vs non-commercial

    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):
  5. Commercial vs non-commercial

    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.
  6. Commercial vs non-commercial

    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.
  7. Commercial vs non-commercial

    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?"
  8. Commercial vs non-commercial

    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...
  9. Commercial vs non-commercial

    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.
  10. Signing actions above warrant authority?

    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).
  11. Signing actions above warrant authority?

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

    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.
  13. Terminology

    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.
  14. Terminology

    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.
  15. Terminology

    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.
  16. Terminology

    To piggy back on Vern's point, recommend you read FAR 13.004 "Legal Effect of Quotations" which states:
  17. MATOC Small Business Set-Asides

    I can confirm for you that agencies do receive goals down to the socioeconomic category level.
  18. MATOC Small Business Set-Asides

    Ultimately j_dude77 is going to run into one of two situations: His agency is going to interpret the FAR as allowing him to set the MATOC aside for multiple small business socioeconomic categories; or His agency is going to interpret the FAR as not allowing the multiple small business socioeconomic categories and tell him "no." If the latter situation occurs, please don't let that be the end of your pursuit j_dude77. If it makes good business sense for your agency to have a MATOC with those multiple small business socioeconomic categories, make the best argument you can as to why that's the best course of action, support it, and pursue the deviation. I think everyone here could, at least, agree on that.
  19. MATOC Small Business Set-Asides

    If clause language is the only thing holding one back, why not just get a deviation approved to modify the clause(s) to be consistent? FAR 1.402 states (emphasis added):
  20. MATOC Small Business Set-Asides

    I agree with Vern as to the general exception one would cite for setting the acquisition aside for one or multiple socioeconomic categories; however, when setting up the 8(a) and EDWOSB set-asides be sure to comply with their more unique set-aside requirements. I'd talk to your SBA representative regarding getting multiple 8(a)s onto the IDIQ contracts. As for EDWOSB, see 19.1505...the more unique requirement is that the NAICS code(s) for your IDIQ must be underrepresented (for more information go to: https://www.sba.gov/contracting/government-contracting-programs/women-owned-small-businesses/what-you-need-know-if-you-are-federal-contracting-officer).
  21. After what I've read this weekend, I agree. The article Vern referenced, Scope of the Competition Test: Is it valid?, The Nash & Cibinic Report (March 2013), was quite helpful in gaining a better understanding of the history of the scope of the competition standard and its merits (or lack thereof).
  22. Reading Recommendations for Contracting Professionals

    I have about 50 pages left, but I don't need to finish to second Don's recommendation of this book. There are some math focused/intensive sections, but the perspectives offered throughout the rest of the book were fantastic. Thanks for sharing Don!
  23. Don, Thanks for pointing that out - I missed that nuance/distinction, but that makes sense because the "scope of the competition" test looks outside the four corners of the contract whereas a "cardinal change" (aka a breach) is concerned with what is inside the four corners of the contract.
  24. Contract modification to stay under $150,000

    There could be more work for the contracting officer (namely, re-soliciting the requirement subject to different acquisition procedures) depending on whether to not the acquisition in question was for commercial items (FAR 13.5 allows SAP up to $7M); however, it could very well be the case the the agency's budget was only $150k so they purchased as many units as they could with that amount. Remember, a quote is not an offer...the offer is the purchase order issued by the Government to the prospective awardee. See FAR 13.004 which states: Now if the agency placed an order for 68 units and then subsequently placed another order for 4 more units, they'd be in violation of FAR 13.003(c)(2)...but no facts indicating as much have been presented here. One last piece of advice - be careful using the terms "bid" and "quote" interchangeably (add the term "proposal" to that list) as you have throughout your posts. As you can see from the reference provided above, a quote is different from a bid (as it is not an offer) so improper usage of terms may negatively impact the ability to receive sound advice from the nice individuals who frequent this forum.
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