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Matthew Fleharty

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Everything posted by Matthew Fleharty

  1. 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.
  2. Touche Don - I drop that portion of the argument. Do you find the other half sound?
  3. Got it, glad to see we're primarily on the same page though I'd like to hear your thoughts more on the following issue: Scope considerations generally include (1) the nature of the work, (2) period of performance, (3) contract cost/price, & (4) the scope of the competition. For purposes of my position that conversion from FP to CR is a cardinal change, I'll only discuss "(4) the scope of the competition" for which the consideration is "whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause" (Neil R. Gross & Co., 69 Comp. Gen. 247 (B-237434), 90-1 CPD ¶ 212). One test for that question is whether or not the change would have impacted the pool of potential offerors. In the case of moving from an FP to a CR environment, I can think of no clearer way to do that as CR environments by their nature change/limit the pool of potential offerors due to limitations such as the requirement for an adequate accounting system (FAR 16.301-3(a)(3)). Additionally, "a literal reading of the Changes clause would not permit the government to change the terms and conditions of the contract" Administration of Government Contracts 4 ed. (pg. 391) and moving from a solely FP environment to add a CR one would require the addition of numerous clauses (terms and conditions) that were not present or contemplated by the original solicitation or at the time of award. As such, I consider changing from FP to CR a cardinal change based on that standard, but, as always, I'm all ears to hear yours and others' thoughts. Lastly, while you're probably right that such a change would be very unlikely to prompt the contractor to complain, a cardinal change due the exceeding the scope of the competition opens the door for competitors to protest. This particular situation seems too small to warrant such a complaint, but one never knows...as you said yourself, "we live in strange times in the contracting profession."
  4. Are those two sentences in response to your alternative solution and not the proposed solution by the OP to change the contract type from fixed price (FP) to cost reimbursement (CR)?
  5. I'm not especially clear on your situation other than the fact that you intend to take work that is currently a fixed price CLIN and convert it to a cost-reimbursable CLIN...not only is that is a cardinal change (which requires a J&A and a bilateral modification), but you also have to comply with the requirements/limitations provided by FAR 16.301 regarding the usage of cost-reimbursement contracts.
  6. Period of Performance under IDIQs

    ICE-CO, Recommend you take some time to think about Vern's point that without options, your office would be bound to order the supplies from only that one contractor for that, presumably, five year period of time. When used properly, options can be a powerful incentive when it comes to contractor performance and they can also protect the Government's interests if the contractor performs poorly.
  7. Awarding to More Awardees

    That language does not establish a requirement to draw a competitive range, it merely addresses both situations (when it does happen and when it doesn't happen). Consider the two scenarios: If you haven't drawn a competitive range, all offerors receive the amendment as no one has been eliminated from the competition. If you have drawn a competitive range, only those remaining offerors will receive the amendment because some offerors have been eliminated from the competition.
  8. Awarding to More Awardees

    According to what?
  9. Awarding to More Awardees

    You must comply with the procedures in the solicitation...barring any other information or language in your solicitation that we're unaware of, if the solicitation merely states "up to 5 awards," you may not award 6 or more. While I didn't find a GAO decision on the issue with your particular circumstances, reference 41 USC § 3701(a) which states "An executive agency shall evaluate sealed bids and competitive proposals, and award a contract, based solely on the factors specified in the solicitation." If it's truly in the Government's best interest to award more than 5 contracts, consider amending the solicitation (FAR 15.206).
  10. A Competition Revolution

    In case anyone missed it on the homepage: http://www.wifcon.com/analy/highest.pdf
  11. creating an award

    Are you referring to "prizes" when you use the term "award"? If so, you may want to check out the following: https://www.challenge.gov/list/ 15 U.S.C. Code § 3719: https://www.law.cornell.edu/uscode/text/15/3719 - with respect to your appropriated funds question see paragraph (m)
  12. Reading Recommendations for Contracting Professionals

    Funny you mention this book - I'm reading it currently and despite the corniness of the title and usage of the term "negotiation genius," what I've read so far (144 of 303 pages) is fairly practical and diverse when it comes to the issues they cover. Though with that diversity comes a lack of depth on most topics...still, there is enough (a brief example and some analysis) to provide an understanding of the points the authors make. My favorite negotiations book is still "Getting to Yes" by William Ury and Roger Fisher.
  13. Rejecting an Award

    Also recommend you read FAR Subpart 11.6 "Priorities and Allocations" and 15 CFR 700.13 "Acceptance and rejection of rated orders" (https://www.law.cornell.edu/cfr/text/15/700.13)
  14. SIg Sauer

    Do you have a source for this information?
  15. FAR Case 2016-005

    UVA (and others), Go to regulations.gov and in the search bar type in the appropriate FAR Case (in this case you would type "FAR Case 2016-005") and the first hit should be the right one. Click on it - at the top of the page you'll see a link that says "Open Docket Folder" - click that. On the next page you should be able to see a number of sections titled "Primary Documents," "Supporting Documents," and (the one you're looking for) "Comments." Next to the comments header is a link that says "View All" - click that and you should get what you're looking for. Happy researching!
  16. SIg Sauer

    Did your source(s) say no funding has been appropriated or that the minimum order wasn't executed? I'd find that hard to believe for a contract of this magnitude as fulfillment of those criteria is an IDIQ 101 lesson. The more likely case is that the order for the minimum amount (whatever it might be) got lost in the noise of the announcement of the overall contract.
  17. Direct Overhead Costs

    Here is the link to the decision: https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv1259-38-0
  18. Reading Recommendations for Contracting Professionals

    That book (Thinking Fast and Slow) has so much value that I take the time to re-read it each year - maybe one day I'll be able to retain all of its content.
  19. A Competition Revolution

    Why? In a point scoring system where the amounts are transparent (assuming that is the technique used), wouldn't the difference/significance be readily apparent? I'd like to hear your thoughts on the issue, but humans can't read frogs' minds so I'll need your assistance to understand your point.
  20. A Competition Revolution

    Appreciate the feedback and the references Vern. I don't intend to parse words here or inhibit the usage of the HTRFRP process, I'm quite excited by its prospects; however, I'm curious: should some consideration be given to the fact that those prior decisions were made in an environment where the Best Value Continuum was thought to consist of LPTA through Tradeoff? I think so, which is why I'm trying to understand the potential difference (if any) between something being a "significant factor" and something being "meaningfully considered." I'm not trying to hit the brakes here and not embrace HTRFRP or other acquisition improvements...but I know others will so I'd like to discuss the issues surrounding developments like these as much as possible so I'm prepared with credible arguments to move us forward. Apologies in advance if my relative youth or lack of experience is inhibiting the process. EDIT (adding context): I think I'm getting hung up by the following two paragraphs from the Sevatec decision (emphasis added):
  21. A Competition Revolution

    I can agree with that as a permissible argument, but I don't think my previous argument is wholly without merit. The definitions of significant (from The American Heritage Dictionary) are: For definition #2, could one fashion evaluation factors whose relative importance resulted in cost or price not "having or likely to have a major effect" on the selection decision? For definition #3, I think "amount of quantity" could speak directly to the relative importance of the various evaluation factors. I will grant, however, that I need to go do some more reading on the cases where the GAO used the "significant factor" rule to fully understand their position on the issue.
  22. A Competition Revolution

    Just for clarity's sake - CICA does not require price to be a significant factor, just a consideration (41 U.S. Code § 3306): Additionally, based on paragraph (c)(i), if other factors are significantly more important than cost or price, then wouldn't it follow that cost or price is not a significant factor in those circumstances?
  23. A Competition Revolution

    I like this interpretation/definition. EDIT: Would the process identified in the solicitation for assessing the fairness and reasonableness of price be what influences offerors' pricing decisions? Could/should one expect different results if the promulgated technique is comparison of proposed prices received in response to the solicitation versus a more detailed analysis as used by the GSA team?
  24. A Competition Revolution

    Vern, I'm just taking the information in front of me and analyzing it - I'm certainly not firm in my position, just trying to drive a discussion on the issue. I find merit in your argument that disqualification could certainly meet the test of substantial; however, I quoted the court who decided the case in reaching my conclusion which I still think conflicts with the definition you provided. Consider the juxtaposition between the two: Definition: "Considerable in importance" GAO: "Relatively low importance of price..." Can one have both "considerable" and "relatively low" at the same time? As an aside, I don't tend to try to find the most restrictive interpretation - I also find value in determining the least restrictive, but a better exercise, and what I hope we're doing through this conversation/debate, is arriving at what is the most likely interpretation.
  25. A Competition Revolution

    Vern: I don't think the HTROFRP approach satisfies FAR 15.403-1(c)(1)(I)(A), particularly the requirement that "price is a substantial factor in source selection." I think the consideration of price (which is what occurred in the HTROFRP approach to satisfy the CICA requirements) and price as a substantial factor in source selection are different. The only substantial factor in source selection at play in HTROFRP is technical...I think those views are supported by the GAO's analysis regarding consideration of price on pg. 8 which states "The relatively low importance of price in an evaluation scheme that does not contemplate tradeoffs, as is the case here, is unobjectionable." Maybe I'm wrong, I'm certainly always open to hearing other opinions on issues. What are your thoughts Vern (and others)?
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