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Matthew Fleharty

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Posts posted by Matthew Fleharty

  1. 33 minutes ago, Tony Bones said:

    That said, I really wish I had the chance to negotiate with a Vern Edwards back in the day... it is so easy to rile him up.

    I'm sure you do

    Why do you assume Vern is riled up?  I didn't see any ALL CAPS, insults, emojis, or exclamatory punctuation in any of his posts.

    Though maybe he used too many periods by properly punctuating his sentences:


  2. 6 hours ago, here_2_help said:

    The prime contractor is responsible for execution risk on the contract. If the subcontractor doesn't perform the warranty work, who does the government hold accountable? Not the subcontractor ...

    When costs are incurred, they are recorded into allowable and unallowable categories. The contractor uses profit on allowable work to pay for its unallowable costs. When you deny the contractor profit on its costs then you are not allowing the contractor to cover its unallowable costs. I'm not in favor of such a situation.

    I thought that if subcontractors do not perform the warranty work (or work generally), prime contractors have some sort of recourse to hold the subcontractor(s) accountable...

    Why wouldn’t it just be a case of “accountability” rolling downhill?

    I’m not persuaded either.

  3. Here's a hypothesis: the Government may assume that travel costs for contractors should be no different than travel costs for the Government.  Since Government employees don't typically see the G&A behind their personal travel costs (they merely see the direct travel costs: airfare, rental car, hotel, per diem, etc.) the use of that as a baseline would result in the disconnect discussed here when trying to determine what travel costs the Government should or should not reimburse.

  4. Here's a defense related example from today's news (emphasis added below):


    Because Boeing is locked into a fixed-price contract that makes it responsible for paying any costs above the $4.9 billion award value, it has had to use its own funding to pay for improvements to the RVS. Gibbons declined to comment on how much the company is investing on the system.

    However, Gibbons and Martin stressed that the Air Force’s original requirement for the system, written almost a decade ago, left much up to interpretation. For instance, the RVS requirement calls for a system with “sufficient visual acuity to be able to perform aerial refueling in all conditions,” a qualitative description that doesn’t lay out exact parameters.

    The requirements also included no information on the acceptable number of undetected contacts, Gibbons said.

    That may be why Leanne Caret, the head of Boeing’s defense business, said the company’s most significant lesson learned during the course of the program is that all parties need to make sure they’re on the same page in regard to requirements.

    “How do you define the spec appropriately? How do you make certain from a verification and a validation perspective that the intent as well as the exactness of it is there?” she told reporters May 3.


  5. 20 minutes ago, lotus said:

    Can an agency let a contract run to near its expiration, then use that it is near its expiration as justification of "unusual and compelling urgency" to award a bridge contract to the incumbent?

    See FAR 6.301(c)(1): 

    “Contracting without providing for full and open competition shall not be justified on the basis of (1) A lack of advance planning by the requiring activity...”


  6. 2 hours ago, PepeTheFrog said:

    True, but that doesn't falsify that deception is a fundamental part of negotiation.

    Yes it does.  See definition of "fundamental"


    forming or serving as an essential component of a system or structure; central

    If one does not need to use or rely on deception to be an effective negotiator (which you just agreed was "true"), it follows that deception is not essential and therefore, not a "fundamental part of negotiation."

  7. 43 minutes ago, PepeTheFrog said:

    That's like saying competition and violence shouldn't happen. Or that hierarchy should be abolished. 

    No it’s literally not - stop drawing false equivalences, it’s bad form.

    47 minutes ago, PepeTheFrog said:

    You're implying that all tactics that involve deception will destroy your credibility and integrity (and that you will get caught every time). Putting aside getting caught, not all forms of deception rise to the level of the synonyms you listed like fraud or treachery. Fraud or treachery will likely destroy your credibility and integrity. Successful bluffing will not have any effect. Unsuccessful bluffing might reduce it. Guile will not likely destroy it; your opponent might respect you more for it. Lying may or may not reduce or destroy it. It depends on the lie and whether you get caught. 

    PepeTheFrog thinks many of you have an emotional reaction to the word and concept of deception. Deal with it. Face reality. 

    PepeTheFrog would say that some of you are living in a world that doesn't exist, or that you are playing by rules that nobody else follows. But PepeTheFrog doesn't believe some of you are being honest and fully transparent....instead, you're being deceptive about your potential for and comfort in using deception. Or maybe you're just deceiving yourself. 

    “Putting aside getting caught...”?!?!?! Who is living in their own world now Pepe?! You cannot just wish away a strong argument against your position because it’s convenient for your point. You’ve ignored the fact that (a) inevitably deceptive practices will be caught if repeated over time and, further (b) trained and prepared negotators know how to identify deception.

    There are other, effective ways to negotiate beyond relying on or using deception - period.

  8. 34 minutes ago, bob7947 said:


    My original thought was that.  I can call the forum starting from scratch.  After that, we could add one thing at a time and we could eventually complete the process.  If we take Vern's suggestion, we could hash out CICA and when that dies out, we could move on to the next area of discussion.  When we are done with our components or building blocks, we might have a thorough look at the acqusition process.  I can move things around to fit our structure and needs.

    For example:

    The forum might be called:  Federal Contracting, Starting from Scratch.  Our first area would be CICA, as Vern suggested.  Once that is discussed to our heart's content, we could move on to the next block and build on our structure.  That way we could stay focused on one thing at a time.

    Under CICA, we could discuss Vern's bullets one at a time.

    Sounds good to me, though maybe we shouldn’t call it CICA if we’re starting from scratch - let’s call it “Contractor Selection” or something to that effect.  Two additional topic areas could be: (1) Ethics & (2) Public Policy (after all this is the federal contracting process).

  9. I like the “from scratch” idea, if only because those who choose to discuss the topic can focus on principles, policies, and procedures of a new contracting process and the merits of such ideas rather than the “well X idea still conflicts with Y regulation/statute” conversations.  

    As for where to start, the beginning of course:  “Begin at the beginning," the King said, very gravely, "and go on till you come to the end: then stop.” - Lewis Carroll -


  10. Representative Thornberry has introduced a discussion draft of his proposed FY19 acquisition reform efforts.  In it he proposes to separate the definition of "commercial item" into "commercial product" and "commercial service."  The following is the proposed definition of "commercial product" (emphasis added below):


    § 103. Commercial product

    In this subtitle, the term ‘commercial product’ means any of the following:

    ‘‘(1) A product, other than real property, that— ‘‘(A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and ‘‘(B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public.  

    ‘‘(2) A product that— ‘‘(A) evolved from a product described in paragraph (1) through advances in technology or performance; and ‘‘(B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation.

    ‘‘(3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for— ‘‘(A) modifications of a type customarily available in the commercial marketplace; or ‘‘(B) minor modifications made to meet Federal Government requirements.

    ‘‘(4) A product that— ‘‘(A) is produced in response to a Federal Government drawing or specification; and ‘‘(B) is ordinarily produced using customer drawings or specifications for the general public using the same workforce, plant, or equipment.

    ‘‘(5) Any combination of products meeting the requirements of paragraph (1), (2), (3), or (4) that are of a type customarily combined and sold in combination to the general public.

    ‘‘(6) A product, or combination of products, referred to in paragraphs (1) through (5), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.

    ‘‘(7) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that— ‘‘(A) the product was developed exclusively at private expense; and ‘‘(B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.

    I'm curious to hear others' interpretations of the meaning of paragraph 4 (in bold above).  Thanks in advance to anyone willing to share her/his thoughts.

  11. On 4/24/2018 at 6:15 PM, Vern Edwards said:

    Don't think in terms of regulations! Think in terms of concepts and principles. FAR 12.208 has nothing to do with what I've been trying to tell you, and there is no logical connection between what it says and the conclusion that you reached. Close your damned FAR and THINK!

    I'm reading Steven Kelman's (former OFPP Administrator) book "Unleashing Change" about his procurement reforms in the mid 1990s and this comment reminded me of some of his remarks in the second chapter (emphasis added):


    ...the most important problem with rules was not what they contained but what they left out.  Nothing in the rules prohibited people from looking for better ways to do business in areas the rules did not address.  Most rules involved processes people needed to follow...No rule admonished "Get a good deal for the government," if for no other reason than that such a "rule" would provide insufficient guidance and hence would not fill the role rules are supposed to fill.  Furthermore, when rules regulate most parts of a person's job, it is natural to conclude that the job consists only in following the rules.  So a rule-based system sent a signal to focus on process rather than results.  Put another way, a rule-based system, by delineating minimally acceptable behavior, easily slides into delineation of maximum performance...An organization cannot put blinders on its personnel and then expect peripheral vision.


  12. 47 minutes ago, REA'n Maker said:

    There is a certain perverse logic in play here - Government delays the negotiation, and in so doing achieves a lower fee !  I'm assuming at this point you are asking for actual costs plus fee/profit?  As suggested, if I were you, I would focus the negotiation on the portion of fee that is supposed to compensate for that risk component.

    Emphasis added - that's an assumption, not a fact of the OP's scenario.

  13. 3 hours ago, ContractingCowboi said:

    I think you've finally gotten through to me... I was going to say "what about quality assurance plans?" But then I saw FAR 12.208 -- Contracts for commercial items shall rely on contractors’ existing quality assurance systems as a substitute for Government inspection and testing before tender for acceptance unless customary market practices for the commercial item being acquired include in-process inspection.

    The more I think of it, you're right -- price/past performance will tell you a lot more than some plan or approach.

    Success!  Now spread the goodness to your colleagues :D

  14. 10 minutes ago, Vern Edwards said:


    You're in a firm-fixed-price contract negotiation. You've been going back and forth with the other side: offer-counteroffer. Then the other side submits a counteroffer that you believe to be based on a false assumption that works in your favor. They don't say that they made the assumption, and they don't ask you a single question about the matter, but you can tell based on the content of the counteroffer.

    Do you tell them that you think they made a false assumption?

    On the Government side, I certainly would for a few reasons:

    Philosophically, I think Contracting Officers should be objective arbiters of the process.  Sure they must safeguard the interests of the United States and be good stewards of the taxpayers' dollars, but I often say that I've never read anywhere in the FAR a directive to "save as much money as possible" (particularly at another party's expense).  Instead, the FAR says a CO's responsibility is to award contracts at fair and reasonable prices (which with lingering false assumptions can one accurately determine that amount?) and to conduct business with integrity, fairness, and openness.  I think addressing the false assumption is behavior consistent with both of those charges.

    Negotiation wise, by raising that issue (assuming it isn't the only lingering one since the scenario does say "you've been going back and forth") I think you'll likely gain a considerable amount of credibility with the other party that could help propel what might be an intractable negotiation towards closure.

    Lastly, if not acted on, unexpressed assumptions inevitably rear their ugly heads during contract performance and that could have two implications: (1) the differing expectations during contract performance could jeopardize successful and smooth performance & (2) if it's apparent or becomes apparent that you knew about it and said nothing, that's going to damage the relationship (the implications of which have already been discussed enough on this thread).

    On the Contractor side, I'd like to say I would as well - hopefully, I'd be able to sell the positive long term benefits to my boss so that I could keep my job ^_^