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Matthew Fleharty

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Posts posted by Matthew Fleharty

  1. On 12/15/2018 at 8:39 PM, Jamaal Valentine said:

    Then we need to review how unilateral actions like exercising options, issuing terminations, etc. are proper in light of 52.212-4(c). If these unilateral actions are permitted, it's reasonable to believe administrative changes that don't alter the terms and conditions of the contract in ways that affect the substantive rights of the parties are also permissible.

    Jamaal, I don’t think that’s the right discussion to have.  Are options and terminations governed by 52.212-4(c)?

  2. 21 hours ago, Lionel Hutz said:

    Giving KOs warrants but not adequate experience and training to maintain capability commensurate to the warrant and then asking them to step in when needed increases risk to the agency.

    Lionel, I think you’re putting the cart before the horse...my position, and I think Jamaal’s (though I’ll let him speak for himself) is that if a person has adequate experience and training why does it drive increased risk to give that individual a warrant commensurate with that person’s abilities?

  3. The answer is context dependent.  Some requirements and specifications for systems (think aircraft or spacecraft design or quantum computing) require terminology that will naturally reduce readability  - I don’t think it is reasonable to assume the Government should write those solicitations at a Grade 7-8 reading level.

    Ultimately, the Government should strive to be an attractive business partner and readability of solicitations is certainly part of that; however, I think one standard to rule them all would have second and third order effects that could reduce the accuracy of a solicitation in an attempt to enhance accessibility.

  4. 32 minutes ago, MileHighAcq said:

    here's what I wanted to say above:

    To clarify,  you're saying it's acceptable for a buyer  to get competitive bids, and in an LPTA environment, simply order the bids by price, start with the lowest price and award to the first technically acceptable offer they come across without looking at the other bids at all? From a technical standpoint, this could ensure that the buyer gets a technically acceptable product, but from a price perspective, how could the buyer be sure that the price is the lowest price without having received at least one other technically acceptable bid?

    The point of my "inapt" analogy is that the process you describe could ensure that you get a technically acceptable product, but not that you got it at the lowest price. 

    Short of engaging in discussions/negotiations (which is a completely different topic) how would assessing higher priced proposals for their technical acceptability result in awarding a contract for a lower price than the Lowest Priced Technically Acceptable offer?

  5. 21 minutes ago, MileHighAcq said:

    I haven't read every single response on this topic, but going back to the original inquiry, if you were buying a car, would you simply go to the first dealership and if you found a car that met your requirements, buy it right then and there at the sticker price? Even if there were several dealerships in that area that sold the car you wanted, would you simply assume that the pricing was competitive, or would you shop around?

    That analogy is not even close to the situation at hand...

  6. 13 minutes ago, Retreadfed said:

    This discussion has focused on techniques for determining if a price is fair and reasonable.  My question is if you cannot define what fair and reasonable is, how do you know that you have it regardless of the techniques you apply?  Is this something like Justice Stewart's explanation of pornography in that "I can't define it but I know it when I see it"?

    You can find a more pertinent example in the oral arguments for Kingdomware Technologies, Inc. v. United States, No. 14-916 (2016) where Chief Justice Roberts says:


    These terms imply a lot of discretion: What's fair? What's reasonable? What's best value?  The idea that that's going to operate as a significant restraint on the requirement that the VA locate veteran businesses seems a real stretch to me.


  7. 12 hours ago, Jamaal Valentine said:

    What is unclear is what you mean by market based because you also seemed to rely on the other prices (with unknown merits of comparability) as evidence of an effective competition. 'By virtue of competing against the market'? That is overly simplistic and doesn't consider several basic considerations such as a mistakes and defective, vague, or ambiguous solicitations or otherwise ineffective competitions.

    Jamaal, apologies if what I wrote was unclear, but I thought my answer to your question:

    On 9/17/2018 at 5:35 PM, Jamaal Valentine said:

    What is your reasonable argument? Does it involve or rely on comparison of proposed prices?


    22 hours ago, Matthew Fleharty said:

    Not one bit...

    Was as clear as possible; however,  you're fixated on the concept of comparison of proposed prices while I was stating another way of analysis to determine the price fair and reasonable separate from relying on comparison of proposed prices (technically evaluated or not).  If you'd like to discuss it, you know how to get in touch with me, but an answer to your questions here would only result in repeating myself.

  8. 15 hours ago, Jamaal Valentine said:

    What is your reasonable argument? Does it involve or rely on comparison of proposed prices?

    Not one bit - it relies on an understanding of the competitive markets and the concept of fair and reasonable prices.  For one, the approach doesn't use technically unacceptable offers; that's important because you're presuming those offers are unacceptable...I believe, for these purposes, they're presumed "innocent until proven guilty."  After all, that's how the contractors approach the situation.  If they don't offer a solution that is technically acceptable and the lowest price they're going to lose business to someone who does.  If a determination of fair and reasonable pricing is concerned with too high of a price, I think, generally (because there are exceptions to every rule) it is perfectly reasonable and sound business judgment to consider the LPTA offeror of a competition as not too high (and, therefore, fair and reasonable) by virtue of having competed against the market for the contract.  The fact that you have X number of unevaluated proposals simply serves as evidence of the competitiveness of that market for the requirement.


    As for all this talk about "adequate price competition normally establishing a fair and reasonable price," whether it is misplaced or not, compare the second standard  to the situation at hand:

    • Adequate price competition (15.403-(c)(1)(ii): an expectation that two or more responsible offerors, competing independently, would submit priced offers even though only one offer is received...
    • This situation: numerous offers are received, though only one offer is evaluated IAW the solicitation's procedures because it is the LPTA

    If some are willing to hang their hat on "adequate price competition = a fair and reasonable price" why wouldn't they be equally okay doing so in a situation where one receives more than one offer, but only evaluates one?  I think the second situation is far more defensible than the first, regardless of how the FAR defines "adequate price competition" (frankly, it's too narrow...).

  9. 14 minutes ago, ji20874 said:

    FAR 15.404-1(b)(2)(i) says comparison of prices received in response to the solicitation is a valid method of price analysis.  It doesn't say comparison of "technically acceptable" prices received in response to the solicitation.  

    Moreover the list isn't exhaustive nor does the FAR contain a restriction to only use the listed techniques.

    What does FAR 1.102-4(e) say again about sound business judgment?

  10. Let's not forget that the FAR is not a "how to" guide and it isn't definitive or exhaustive on how one determines prices fair and reasonable (emphasis added):


    (2) The Government may use various price analysis techniques and procedures to ensure a fair and reasonable price. Examples of such techniques include, but are not limited to the following:

    Is it possible to make a reasonable argument that a LPTA proposal's price is fair and reasonable without knowing whether the other proposals are technically acceptable?  I think so, despite what the FAR may or may not say.

    Next up in "how can we make more non-value added work for ourselves", someone is going to explain to all of us that to meet the standard of adequate price competition the Government must perform contractor responsibility determinations on the unsuccessful offerors in addition to the technical evaluations...


    (1) Adequate price competition. A price is based on adequate price competition if --

    • (i) Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement and if --


  11. 8 minutes ago, Jamaal Valentine said:

    Is there meaningful competition under CICA if an agency does not compare competing offerors' proposed prices in a certain meaningful way


    All other things being equal, do you think that offerors would propose different prices under the two LPTA frameworks?

    • Framework 1: Rank all offers by price; evaluate all proposals for technical acceptability; award to the LPTA
    • Framework 2: Rank all offers by price; starting with the lowest priced proposal, evaluate proposals from lowest to highest until one is technically acceptable; award to the LPTA
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