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Matthew Fleharty

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Posts posted by Matthew Fleharty

  1. On ‎8‎/‎3‎/‎2016 at 2:05 PM, David Bodner said:

    So, fewer evaluation criteria.  I'm on-board with that.  Unfortunately, I've had very little success in convincing my customers of that.  That may not be one person's stupidity as much as cultural inertia.

    I don't think Vern is arguing for "fewer evaluation criteria," but rather evaluation criteria that are actually discriminators (whether that means agency's utilize more or less - depending on the situation).

  2. Apsofacto,

    It's not just the mandatory use or not (that's a different discussion which I'm happy to have - I'd sum my general position up as if you build a good strategic sourcing vehicle, the users should come) - the concern I was trying to get across in my previous post is that when the Government looks at category management we only ask ourselves "can we strategically source this?" (mandatory or non-mandatory) and, if not, the conversation ends there.  There are other ways to manage categories of spend in addition to strategic sourcing, but the Government does not seem to be doing anything else.

  3. I find it interesting that every time the topic of "category management" comes up, inevitably the discussion pivots to "strategic sourcing."  Even in the Air Force, as far as I am aware, our conversation regarding category management merely tracks/assesses categories with high spend and then asks the question "can/should we strategically source products/services for this category?"  If yes, we do and create some sort of mandatory use contracting vehicle, if not, we move on to the next category and repeat the assessment process.

    The problem I have with the previous approach is that "category management" is not simply a question or strategic sourcing or not, but rather what are the best practices for acquiring the products/services within a category (which may very well be aggregation through strategic sourcing) and then disseminating those approaches to the contracting professionals and their customers.

    Maybe I'm mischaracterizing what the Air Force/rest of the Government is doing today (I've been in systems for almost two years now so that may very well be the case), but from the conversation I saw in the panel discussion here, I think the trend is still merely looking at categories for strategic sourcing opportunities and not much else.

  4. 46 minutes ago, Vern Edwards said:

    Matthew, when in doubt, read the contract. Navy's approach is not wrong because it would eliminate risk. It is wrong because it is inconsistent with the language of the price adjustment clause. Here are the key paragraphs from FAR 52.222-43, the price adjustment clause. Note the bold/italicized words.

    Apologies for drawing you back into this conversation - you and I agree on what the clause states and the process/formula for calculating adjustments.  I suppose my "elimination of risk" argument was related to why the price adjustment requirement was established/exists (i.e. price adjustments are based solely on actual wage increases stipulated by the DoL so that contractors don't have to price in estimates of potential increases or decreases that may or may not occur at magnitudes that may or may not be accurate).  Is that a fair assessment of the policy?

  5. 22 minutes ago, Navy_Contracting_4 said:

    You fail to understand that that's precisely what this method does.  It dopes merely "remove the Government mandated wage minimums (to the extent that they actually impact the contract) from the risk equation."  It definitely does NOT "remove all effort (hour) risk from the contractor."  It does NOT price in year to year adjustments to hours.  In my example, pricing in a year to year adjustment to hours would result in adjusting the price to $23,100, but the method I describe results in an adjustment to only $21,100.

    I see that - I was incorrect in stating "all effort (hour) risk;" however, I'm still of the position that no effort (hour) impacts should be taken into consideration even if it is just a portion of those impacts multiplied by the actual wage differences.  Seems we'll just have to agree to disagree.

  6. 34 minutes ago, boricua said:

    Hello Matthew Fleharty,

    Services tend to be complicated enough that negotiations are necessary.  I will grant you that "Programming" might ask for something else other than IT services.

    Thanks for the comment.

    The OP does not say the services are programming services, he just states they are "commercial services" and later calls the requirement a "project."

    "Programming" is the entity with the money (i.e. the customer/program office...) - re-read the sentence and see if we agree or not:

    On ‎7‎/‎29‎/‎2016 at 5:38 AM, Maquoketa said:

    Programming only has $950,000 available for this project.

     

  7. 7 hours ago, here_2_help said:

    Matthew your analogy is inapt. If I get a quote from a dealer on a new Ferrari and it's outside my price range, I'm not going to expect the Ferrari dealer to meet my budget. Instead, I'm not going to buy a new Ferrari because the price is outside of my budget.

    Let me offer my analogy:

    Next time I go to my auto mechanic and he tells me it will cost $500 for the repairs, I will either accept his quote or go find another auto repairman. I will not attempt to negotiate him down. The commercial price is the price.

    And if I get 4 quotes from 4 auto mechanics for the same repair and they are all in the same range, I will either accept the lowest quote or not get my repairs done. I will not go back to the lowest price mechanic and tell him he can have my business if he can shave off 10%.

    In summary:

    There is no purpose in getting commercial item competition if you're going to ignore the pricing information provided by the commercial marketplace. If you're going to ignore that information, why not just go sole-source and negotiate a price? Why pretend the competition is a valid means of determining price reasonableness?

    Please don't consider negotiation and competition mutually exclusive - they're not and, in fact, buyers are better off (personally and professionally) if they leverage both together rather than either independently/separately.

    I don't understand how my analogy is inapt or any different than yours - in both of those cases (and in many others) I would take the opportunity to bargain for a better price.  For example, when buying a car or obtaining repairs from a dealership, a common metric that is used for employee bonuses these days is "customer satisfaction" (since wholesale/invoice prices are pretty easy to find through market research these days) - knowing that, I've been able to leverage (multiple times) additional discounts on the lowest quoted price in exchange for those maximum ratings (after all, my satisfaction is a function of receiving a quality product/service at a low price).  Try it next time you go to buy a car...or if you're ethically opposed to doing so, I'll gladly negotiate your next vehicle in exchange for keeping the difference between the lowest quoted price you receive and the amount I settle at. :)

    Finally, I think Vern's comment regarding the concept of price reasonableness is spot on - a fair and reasonable price is not a price point, but rather a range of prices.  If you disagree, just consider how transactions in markets would have to occur if the converse were true...

  8. On July 14, 2016 at 3:17 PM, Navy_Contracting_4 said:

    Maintaining the contractor's profit/loss position is not a principle I espouse.  It was merely an observation I made to counter people's possible objection that my adjustment method might somehow help the contractor get some kind of windfall.

    Your adjustment method based on hours is inappropriate because pricing in year to year adjustments to hours would remove all effort (hour) risk from the contractor - that's certainly not what the parties sign up to when they execute FFP service contracts.

    The adjustment is not designed to maintain profit/loss positions year to year, but rather to remove Government mandated wage minimums (to the extent that they actual impact the contract) from the risk equation.  

  9. 7 hours ago, jdm843 said:

    The contractor's REA also cites 52.243-1: "IAW FAR 52.243-1 Changes, I respectfully submit a request for equitable adjustment based upon the impact of the contract changes realized since inception of the contract."

    Is FAR 52.243-1 even in your contract?  As it has already been stated, for commercial contracts, it shouldn't be.

    8 hours ago, jdm843 said:

    Yes, all the modifications were "supplemental agreement" (SF30 box 13c).  See naivete discussion above.  I'd argue that the Government had some culpable naivete at this point as well.

    Sounds like the contractor realizes he/she made a bad deal (but a contractually binding deal with consideration nevertheless) and now he/she wants the new PCO to Monday Morning Quarterback the issue.  Have you spoken to the previous PCO and has it occurred that he/she may have known exactly what he/she was doing when the previous modifications were signed?  Even with all these letters and tertiary documentation you point to, there were multiple opportunities for this contractor to price into the contract modifications whatever consideration should have been adequate for the change and he/she failed to do so (or do so accurately) - OR they did price them in accurately and now the contractor is trying to extract even more from the new PCO...

  10. 2 hours ago, here_2_help said:

    Open competition in the commercial marketplace has determined the price. The available budget is insufficient. Either cancel the requirement or get more money.

    In my view the entire purpose of going to the marketplace to acquire commercial services is to provide assurance that the price is fair and reasonable. In this case there is no question about that. Trying to "negotiate" undercuts the entire philosophy of commercial item acquisitions.

    I'm just saying.

    I couldn't disagree more. Next time you go by a car will you be accepting the lowest quoted price of the vehicle or will you bargain?

  11. 6 hours ago, boricua said:

    Acquisition Method - I would not have worked a million dollar IT services project as an RFQ, I would have used a RFP (FAR Part 15).

    Why?  I don't understand this desire to automatically jump to utilizing FAR Part 15 procedures when, for commercial items, the authority in FAR 13.5 exists.  How was using an RFQ the cause of this situation and what in FAR Part 13 prohibits the OP from resolving it?

    Also the OP never states that these are IT services...the post states "commercial services."

  12. On July 26, 2016 at 2:58 PM, SubK said:

    My guess is that the clause also states  Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order.

    Your guess?  Why not determine what the situation actually is (unless you don't want relevant input)...

  13. 1 hour ago, baierle said:

    At my federal agency, we will not award a contract to a vendor not registered and current in SAM, and their SAM record must show the NAICS/size for the pending procurement.  This is regardless of set aside or no set aside, and regardless of appropriated or non appropriated funding.

    Now, under most circumstances, I notify vendor and allow time for them to input a specific missing NAICS.

    EB

     

    I understand the requirement for current registration in SAM, but where does your agency's requirement for a particular NAICS code listing come from?

  14. 37 minutes ago, thecontractingguy said:

    Must a vendor have a NAICS code listed in SAM in order to receive a federal contract?

    Apologies in advance for answering your question with questions, but have you thought about the purpose and function of NAICS codes (specifically in relation to federal contracting)?  Also, where would you find information that explains why a prospective contractor may not be able to receive a federal contract and is there a NAICS requirement there?

  15. 5 hours ago, styrene said:

    Thoughts?  . Anyone here actually "scoring" Past Performance instead of using it as a risk indicator? 

    Happens quite often - there are even some best value source selections where past performance is the only factor trading off with price - research the term "Past Performance Tradeoff" and look here: www.farsite.hill.af.mil/archive/affars/2009-0803/IG5315.101-1.doc (Disclaimer: this IG is archived and no longer part of the AFFARS)

    Also, if you're uncomfortable with the data in PPIRS, maybe you should consider other means of assessing past performance.  I'm not sure what types of contracts you work on, but as an example, if you're contracting for commercial services you could consider using past performance surveys of contractors' performance in the commercial sector as well.

    5 hours ago, styrene said:

    Knowing that the quality of the past performance data in PPIRS is by no means standard, I would find it difficult at best to downgrade vendors who received less than an excellent rating, and I think I would have a hard time supporting that evaluation score if the vendor protests.

    Is anything subjective standard?

  16. 3 hours ago, Vern Edwards said:

    Definition and context are the only ways to distinguish that I can think of.

    I've gained a new interest in pursuing/understanding this topic a bit more so, while I'm doing my own research, if you or anyone else has examples of the use of metaphor instead of plain English in contracting regulations I'd like to see the references/excerpts.

  17. 3 hours ago, Vern Edwards said:

    Well, a FAR Bootcamp graduate will remember that you first look for an official definition.

    I certainly didn't forget that rule (refer to post #16).  Whether my definitions were adequate or not, well...

    3 hours ago, Vern Edwards said:

    FAR 15.201(f) is what happens when people assigned to write a regulation resort to metaphor instead of plain English, which is what the law requires. And what you have been doing is what people do when they inappropriately attribute clear meaning of their own choice to the inappropriate choices of regulation writers in a way that needlessly limits CO discretion and freedom of action.

    Fair point and thanks for the reminder.  I have a follow up question:

    Since the use of metaphor versus plain English is not always readily apparent, any advice on distinguishing between the two when reading and interpreting regulations?

    3 hours ago, Vern Edwards said:

    As to your last question: as I recall you were unable to attend the recent Critical Thinking course at SMC. Check online listings of logical fallacies and see if you can identify the one that your question entails. The research will be useful to you. I won't answer such a question.

    As I was typing that sentence, I thought about stating that it was a facetious remark, but then a part of me hoped that maybe someone could offer an explanation (however unlikely).  I think you answer the point anyways with your previous statement regarding writers of the regulation using metaphor instead of plain English - I'll try in the future not to shift the burden or appeal to ignorance (not sure which term/label for the fallacy you taught in your Critical Thinking course), but it wasn't an attempt to prove my previous position if no one provided an explanation, I was merely trying to gather any information that may or may not be out there.

  18. Troy,

    I agree with Don that you're talking about Organization Conflicts of Interest (OCI) so review FAR Subpart 9.5, your agency's supplements, and, more specifically, it sounds like your concern would be related to "biased ground rules" so do some research on that topic as well.  I don't agree, however, with your initial inclination to disqualify a contractor from the competition as the solution to a potential OCI problem.  It is possible that disqualification may be the necessary course of action, but I'd argue that it should be the last resort given that CICA directs contracting officers to provide for full and open competition.  Finally, it depends what you mean by "helping define a future requirement," but an industry workshop/day with participation from multiple interested parties, consistent with FAR 15.201(a) through ( c ) shouldn't violate the standard for biased ground rules - though for my own learning/education I'd be interested to see if anyone knows of such a case where it has.

  19. 16 minutes ago, Vern Edwards said:

    Matthew:

    You are making way too much of the phrase "focal point."

    Maybe so, but I recall someone lecturing during FAR Bootcamp on the importance of paying attention to the words in the FAR, plain language, etc. and that sentence reads how it reads.  Just out of curiosity, what's your definition of "focal point?"

    23 minutes ago, Vern Edwards said:

    "After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors" indicates nothing more than that the people in the contracting office are in charge of all exchanges of information. That sentence was put there to give the contracting people a regulatory basis to rein in the technical people who, left to their own devices, would say goodness-knows-what to goodness-knows-who. It's absurd to claim that it requires the contracting officer to follow any particular procedure.

    If that is so, why doesn't FAR 15.201(f) instead read something along the lines of "...the contracting office/activity (or an individual designated by the contracting officer) must be the focal point of any exchange with potential offerors?"

  20. 12 hours ago, Vern Edwards said:

    Matthew:

    FAR 15.201(f) does not specify any "procedural requirements" for responding to inquiries. It says that the contracting officer must be the focal point. Focal point is not a procedure. The focal point is responsible, but they fulfill that responsibility through the auspices of their offices and their representatives.

    Vern,

    That explanation makes more sense - rightfully or wrongly, I still don't read that sentence as an authority to be delegated (subject to 1.108(b or 1.102-4(b)), but if you read "focal point" as detailing a responsibility of the contracting officer, I think can get on board with that train of thought.  I still don't know how a contracting officer would fulfill that responsibility with zero involvement; however, as you mentioned, all sound business/management practices are not necessarily required by law.  Thanks for your input and feedback.

  21. 33 minutes ago, Vern Edwards said:

    I say that it is within her authority as a CO to delegate that task in that way.

    According/pursuant to...?

    34 minutes ago, Vern Edwards said:

    Do you agree?

    If information will reach or leave the government without the contracting officer's receipt or distribution of that information I do not agree because that is inconsistent with FAR 15.201(f).  Is it your opinion that a contracting officer has the authority to alter the procedural requirements of the FAR (i.e. assign a focal point other than the contracting officer)?

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