Matthew Fleharty

1 minute ago, joel hoffman said:

Matthew, I think that many people quite often practice a win-lose approach for various reasons in their daily lives. This includes personal and business relations, and in any type of negotiations.

There is a difference between deliberately pursuing a win-lose approach as one's objective end state and ending up in a win-lose situation because of naivety.  I suppose that is the distinction I was trying to get at.  I don't think that on average people behave in an exploitative manner - there are people and markets that do, but I think they are the exception, not the rule.

Thanks Vern.  I understand that win-lose outcomes can and do occur - I made that comment to take exception to the characterization of positional bargaining as a situation where someone has the objective to pursue a win-lose outcome because I don’t think that generally people intentionally try to pursue such an outcome.  @FrankJon clearly didn’t intend to say that and edited his post to remove that statement.

EDIT: Maybe that scenario would make for a good topic in the new debate forums Bob created.

@FrankJon I saw you edited your initial post about having an objective to reach a win-lose outcome - that was the language I took exception to (hence why I bolded it).  I’m not going to chase a moving or non-existent target here.

If losing is defined by a feeling, I'd posit that the losing feeling is likely the result of not properly understanding one's BATNA (if one did, they wouldn't feel like a loser after reaching a negotiated agreement).  I stand by my point that absent coercion (or something similar) people do not generally enter into transactions that make them worse off.

1 hour ago, Don Mansfield said:

I've become a believer in AI, too, after reading Supercrunchers by Ian Ayres. I would like to see the use of a nonhuman source selection authority in my lifetime. 

Did the book just talk about AI's ability to compute/make decisions or did it also include any worthwhile discussions of AI's ability to learn?  I'm more familiar with the former than the latter so if you give it a solid recommendation I'm going to put it on my reading list.

29 minutes ago, C Culham said:

Let me add that you have confused your process.  You state "SAP" but then in your 212-1 provision state LPTA and reference FAR Part 15.   SAP is contained in FAR Part 13, FAR Part 15 is Negotiated Procurement.  

That's a great catch by Carl - if you are protested, you might be held to the more strict standards of FAR Part 15 instead of FAR Part 13.  I won't rehash the issue here, but see Vern's second post on the following thread:

It depends on what you define as "lose," but even with asymmetrical information or deception, absent coercion (or something similar), people do not generally enter into transactions that make them worse off.  @PepeTheFrog and @FrankJon seem to define "lose" as getting even a marginally smaller portion of the pie or not as much of the pie as they should have under an environment with 100% transparency.  I don't think that is a proper definition of "losing" in a negotiation.

3 minutes ago, FrankJon said:

Positional Bargaining: How negotiating is traditionally thought of. Entering a negotiation with your idea of a "win" and fighting for it. Because it can often lead to conflict, and the objective is a win-lose outcome, it's better left for one-off transactions.

Emphasis added: what is this "win-lose outcome" you speak of?  Why would a party willingly enter into an exchange in which they lose (absent something coercing or compelling them to do so)?

2 minutes ago, Don Mansfield said:

Yes. You have a 25% chance of winning your case at the COFC, and a 25% chance of winning your case at the CAFC. I'm saving conditional probabilities for a future problem.

25% or 20%?

And apparently I'm the one who lives in Lala Land...

30 minutes ago, PepeTheFrog said:

Fixed it to reflect PepeTheFrog's position, rather than your various straw men to burn at the stake. 

Strawman? Please - if anyone is guilty of using strawmen here it's you by (a) re-characterizing @here_2_help's clear statement that one should lie during negotiations and (b) trying to lump in issues like withholding information into my initial objection.  If I mis-characterized your argument, I apologize, but as I stated in my previous post, yours was all over the place to begin with (clearly a slippery frog like yourself doesn't like being pinned down and was able to wiggle out).

30 minutes ago, PepeTheFrog said:

Matthew, professionals understand their profession, including the beautiful and the ugly parts. PepeTheFrog, like here_2_help, is pointing out the ugly parts.

PepeTheFrog maintains his defense of @here_2_help as getting criticized for speaking frankly about reality, instead of spinning into a moral fervor. 

Wake up, frogs! People lie, misrepresent, bluff, and do all sorts of shady things during negotiations. Worst of all: Lying works sometimes! That doesn't mean it's morally good. Stop clutching pearls. 

@here_2_helpdidn't point out that lies happen - he said he would willing do so and advised a member of this forum to make the argument regardless of whether or not it was true.  Take a moment and re-read his post:

23 hours ago, here_2_help said:

1. It doesn't matter whether my argument holds water since we are negotiating. Any argument that gets the other side to hesitate, to blink, to lose confidence, is a valid argument.

That's not a case of "this is what happens in the real world so watch out."  That's clearly "this is what I would do."  So yes, this becomes a moral issue when a member of the forum is advising others to engage in outright deception.

If you truly believe those that deceive others should pay a high price, so should those that encourage others to do it.  So Pepe, show us you actually believe what you say and condemn what @here_2_help actually said...not what you mistranslated it into.

Mathematically:

Probability of winning at agency: 20%

Probability of winning at GAO conditional on losing at Agency: 20% * (1 - 20%) = 16%

Probability of winning at COFC conditional on losing at Agency and GAO: 20% * (1 - 20% - 16%) = 12.8%

Probability of winning at CAFC conditional on losing at Agency, GAO, and COFC: 20% * (1 - 20% - 16% - 12.8%) = 10.24%

Combined probability of winning: 20% + 16% + 12.8% + 10.24% = 59.04%

@here_2_help

(I’m going to call it what it is now instead of this “misrepresentation of facts” because you’re using my kindness with language to pivot) Yesterday you advocated for outright misrepresenting facts lying about paying loan interest costs in order to win a negotiation on fee.  This behavior you cite (and probably plenty you don’t cite) has clearly jaded you to the point where you think such behavior is permissible (others think it is strategically valuable).  If that isn’t a case in point I don’t know what is.

As for your examples, maybe #1 fits the bill of this discussion (and if #1 happened without any price paid for such a tactic then maybe these non-government officials aren’t as amazing as you allege); however, you’re stretching quite far on #2-4 (situations where we may not be dealing with facts or the facts are in dispute).  Moreover, you’re not responding to the specific argument at hand. I never said all short term interests are outweighed by long term interests; my argument is specifically in regards to knowingly misrepresenting facts lying.  You don’t seem inclined to engage in that discussion nor recant your previous recommendation and I won’t persist any further.  I think such behavior by anyone, the Government or the contractor, is unethical, counter productive, and inexcusable.

5 hours ago, PepeTheFrog said:

@here_2_help is getting heat for making an accurate observation and holding a realistic, sober viewpoint that reflects reality and human nature (and human evolutionary psychology). Language helps us communicate. Language also helps us deceive. Don't shoot the messenger.

Negotiation almost always involves some deception or "misrepresenting facts." PepeTheFrog thought this was a forum for contracting professionals, not naive Puritans. PepeTheFrog smells some (exclusively) federal employees who have never been subjected to reality. 

If it doesn't, why are some people better at negotiating than others? Think about what makes someone a strong negotiator. Here are some:

*bluffing (lying, misrepresentation) 

*knowing what to say (hiding information)

*knowing what not to say (hiding information)

*appealing to the interests of the other party (deceiving someone to think their interests coincide with yours)

*using emotions, psychological weaknesses, cognitive biases, to persuade (Cialdini's Influence has a solid list of these short-circuits)

*"I don't have the authority" (misrepresentation)

*"That's the best I can do" (misrepresentation if not an outright lie)

*"That's too steep" (misrepresentation if not an outright lie)

Those are just a few. They all involve "misrepresenting the facts" or deception. 

Sure, laws (e.g. fraud, False Claims Act) proscribe going "too far" in misrepresenting the facts, and that's vital to having efficient and transparent markets. But misrepresentation is a fundamental part of negotiation. It's best to minimize misrepresentation and deception through (a) habituation by institutions like juries, common law, rule of law, insurance markets, (b) cultural and therefore genetic reinforcement through making truth-telling a heroic act that is rewarded by material goods (e.g. science and technology), and (c) steep penalties for "crossing the red line" of misrepresentation or deception (e.g. the common law of fraud). But up to that red line... 

Is PepeTheFrog incorrect? (Spare PepeTheFrog nonsense about morality.)

 

Honestly, I don’t even know what your position is because you’re constantly hedging in your remarks...at one point you advocate for misrepresentation based on some realist view of negotiations, then you pivot to arguing that some forms of misrepresentation are improper by referring to a red line and stating “it’s best to minimize misrepresentation and deception.”  So which is it?  Apparently I don’t even need to write a response because you’re effectively arguing against yourself!

When I tried to inquire about a specific instance of misrepresentation to discuss, you were unwilling to take a position...but you persisted in asking if you are incorrect.  Well, if your position is misrepresentation is an effective and permissible practice in negotiations, then I say yes, you are absolutely incorrect (see next paragraph).  As for your final remark to “spare PepeTheFrog nonsense about morality,” that makes it near impossible to properly have a discussion about the concept of “negotiating in good faith” which is as much a moral/ethical issue as it is a practical one.

But since you only want to address this concept in terms of real world applicability, I’ll bite.  What is actually “naive” is to think that there are no negative real world implications to the strategy or tactics/practices you advocate.  Apparently frogs are only concerned with the short term (which isn’t surprising since your life expectancy is only 10-12 years), but I approach negotiations with the long term in mind (as should others negotiating Government contracts because these are often 5+ year deals).  Unless the negotiation is a one time transaction with no future interaction (aka buying a car could be an example) the resulting deal is only one outcome of the negotiation, another outcome, arguably a more important one, is the relationship between the negotiating parties.  At some point, your “misrepresentation” scheme is going to fail (it’s a matter of basic probabilities that with each subsequent misrepresentation you will inevitably be caught - surely you’ve read NNT’s latest book so you should know this - moreover, with an experienced, well prepared negotiator it’s highly likely misrepresentation will fail sooner rather than later).  So when you do get caught, then what?  You’ve lost all credibility, you’ve damaged the relationship with the other party, and you’ve potentially exposed yourself to penalties or litigatation depending on the severity of the misrepresentation.  Those aren’t risks worth taking, particularly when there are equally (I’d even argue more) effective ways to negotiate.  Ultimately, good contract management requires a good relationship between the parties and your tactics risk poisoning the ultimate outcome (remember, the contract is not the ultimate outcome, it merely embodies the promises of the parties to reach some defined outcome(s)...they still have to work with one another for some period of time to reach that end state).

Vern’s right: any competent party should/would make you pay a heavy price if you’re caught employing these tactics you think are better and stronger.  Do yourself a favor and stop assuming those you disagree with are incompetent, soy milk drinking, non-deadlifting, unprofessional federal employees (after reading NNT’s books I now know where you get most of your jibes from...maybe you should change your moniker to PepeTheParrot).  This pessimism disguised as realism may sound cute when written on these forums, but this isn’t effective or good advice for contracting professionals.

Pepe, 

Before I respond further, let me ask you this: do you support the specific “misrepresentation” H2H deemed appropriate on this thread?

20 minutes ago, here_2_help said:

Perhaps I simply don't agree with your characterization that, if I made such an argument, I would be "misrepresenting the facts." Facts and judgments are two different things. In any case, enjoy your moral superiority.

Well you could have said that, but you didn't (and still haven't by saying "perhaps").  You instead hid behind a fallacious argument by appealing to (what you assert is) common practice by the Government.  Re-read what you argued and explain how your counter argument is equally valid under a cost-reimbursement environment as it is in a fixed price environment.  When Vern pointed out that your argument is not applicable in both of those situations, you posted what I consider an egregious negotiation philosophy.  Now you're pivoting again.  Are you going to defend your original position or admit its flaws?  It's okay to do the latter, I've done it plenty of times on these forums and felt no shame whatsoever.  After all, we're all here to learn (so let's learn the right things).

2 minutes ago, here_2_help said:

You're hilarious. Government negotiators do it routinely.

Didn't your mother teach you that two wrongs don't make a right?

I personally hope no one heeds your advice on what constitutes proper behavior at the negotiating table - I think if you took some time to reflect on what you stated, you'd realize its inappropriate.  If you do come to that realization, you should retract that statement.  If you don't, it will just serve as a piece of information about who you are and how you operate.

44 minutes ago, here_2_help said:

1. It doesn't matter whether my argument holds water since we are negotiating. Any argument that gets the other side to hesitate, to blink, to lose confidence, is a valid argument.

I disagree - misrepresenting facts is not negotiating in good faith...

41 minutes ago, jfeibel said:

Since the FAR doesn't apply to NAF; and you want a put a contract in place (or would you call it something else a non-FAR Contract)? with a contractor, would you be bound be FAR since you are using a contract.  Would a price evaluation need to be conducted that is follows the FAR? 

No, the FAR is only Applicable when (according to FAR 1.104):

Quote

The FAR applies to all acquisitions as defined in Part 2 of the FAR, except where expressly excluded

See definition of "acquisition" which states (emphasis added):

Quote

“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

Since you're using non-appropriated funds the FAR, including its pricing policies, do not apply.

Take a moment and re-read your original post jfeibel.  Do you notice how it contradicts itself?  Why state upfront that "the FAR doesn't apply to NAF" then immediately disregard that statement to inquire as to whether or not you would "be bound be [sic] FAR since you are using a contract"?

Desparado,

While I'm not Vern, here are some examples of what I consider Discussions versus Questions:

13 minutes ago, Vern Edwards said:

you don't get "guarantees" with contracts. You get only promises, and there is no guarantee that you can enforce them, not even in court.

If there was a book of contracting aphorisms, this statement would certainly be in there.

Lotus - you might get the help you're looking for if you properly responded to Vern's original request by actually providing the solicitation number so he (or others) could review it in its entirely rather than cherry picked portions of the document.

When you say “defective pricing” are you trying to inquire about “defective certified cost or pricing data?”  See FAR 15.407-1.

34 minutes ago, Mildly Entertaining said:

If they give different answers, who do I go with?

Assuming you're the individual with decision authority in all of this, I recommend you go with the individual who can give you a sound explanation for his/her position.  The individual should be able to explain what the issue is and what the rule(s) is/are in relation to that issue, apply the rule(s) to the issue, and reach a valid conclusion (see syllogism or deductive reasoning).

Other decision methods include flipping a coin or choosing the person whose answer best aligns with your preconcieved opinion (neither of which I'd recommend).

50 minutes ago, C Culham said:

Matthew - I would appreciate it if you would hold off on any comments that are based on false impression and false information attributed to me.   You are more than welcome to ask me directly and then fashion your posts based on my direct response.   I think doing so would add value to the discussion rather than detracting from it.  Thanks! 

Carl, 

Falsely assuming comments were directed at you detracts from the discussion - my comments were broad and general.  You’ll know if I’m directing a comment at you (like with this one).