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Everything posted by Matthew Fleharty
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I certainly didn't forget that rule (refer to post #16). Whether my definitions were adequate or not, well... 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? 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.
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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.
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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?" 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?"
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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.
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According/pursuant to...? 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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Vern, Depends on what you mean by "field inquiries personally" and "entail personal performance," but I think I can adequately respond with only minimal assumptions. "Focal point" is defined as a point of convergence or "center of activity" (http://www.dictionary.com/browse/focal-point or https://ahdictionary.com/word/search.html?id=F5223400 ) which means after the release of a solicitation, information should flow in and out of the organization through the contracting officer - once the information is within the organization, the team can work together in preparing/drafting a response (e.g. the drafting of an amendment or a response could be "delegated" to a contracts manager or other acquisition team member), but it shouldn't leave the organization without going through the contracting officer (for signature and/or distribution) which would entail at least some personal performance by the contracting officer.
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I don't see FAR 15.201(f) as an authority (FAR 1.102-4(b) discusses "authority" in the regards to making decisions), I consider it a procedural issue, which FAR 1.108(b) does not mention. Maybe I'm wrong though, I'd be happy to hear others' thoughts.
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The FAR makes it clear that the contracting officer is the point of contact:
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Tell them to show you the policy or rule stating as much - I doubt they will be able to, but if they do produce something substantive, please share because I've never heard of an agency with such a policy (it isn't in the FAR). As far as working towards educating your program people, go back and review the requirements for exercising of an option at FAR 17.207( c ) - there are 7 different criteria need to be met and, therefore, there are 7 different and separate reasons for not exercising an option. I imagine the misinterpretation is stemming from FAR 17.207( c )(2); however that is only one of the possible seven reasons (and I'd also argue just because a need doesn't exist at one point in time does not mean it cannot exist for 12 months). Have them consider a situation where that the option was not exercised due to the lack of funds availability (requirement 17.207( c )(1))...the requirement could be an existing need for an agency, but it is a need that goes unfulfilled due to inadequate resources. I don't know why an agency would have or adopt a policy that requires a 12 month waiting period in such circumstances, but I'm sure more experienced/seasoned individuals would say they've seen stranger things than that...
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Dissolving Small Business Set Aside SAP
Matthew Fleharty replied to thecontractingguy's topic in Contract Award Process
Boof, Incorrect - all requirements under the SAT are not mandatory for small businesses - refer to FAR 19.502-1(b) regarding requirements for setting aside acquisitions which reads: -
I think that's a silly question - preference doesn't take precedence over policy which, in many cases, drives the use of FAR Part 8 (via 8.002 and 8.003) and FAR Part 13 (via 13.003(a)) over FAR Part 15. If I were asked that question though I'd answer with whichever procedures best fit the acquisition at hand taking into account policy prescriptions, market research, personal/organizational competence, and any other acquisition situational impacts. (I fully understand that doesn't answer the question directly, but so be it) Just taking a guess here - if you're trying to assess an individual's competence regarding acquisition procedures, a better question to ask is something along the lines of "which acquisition procedures have you used or would be comfortable using?" Lastly, if you're interviewing with DCMA, I'm not sure why you're focusing on contract formation - you should focus on studying/understanding contract administration.
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FAR Part 12 versus FAR Part 15
Matthew Fleharty replied to mjthomas's topic in Contract Award Process
Jason & Todd, Prior to being made permanent, the procedures authorized by the Test Program for Certain Commercial Items at FAR 13.5 also included the terminology "to the maximum extent practicable" yet many COs did not use the FAR 13.5 procedures for commercial acquisitions between $150k and (at the time) $6.5M - FPDS-NG data from Feb 2013 to May 2014 shows the usage rate of the Test Program in the Air Force was between 27.79% and 51.49% (large range due to coding inconsistencies). I've yet to hear of someone that was held accountable for ignoring that prescription (though to this day I cannot understand why we continue to forego such acquisition flexibility...) mjthomas, To answer the OP's question, (which is "are you required to use FAR part 15 procedures and the Uniform Contract Format?") the terminology "to the maximum extent practicable" does not impose a requirement so no you do not always have to do so (even though the term shall is in that sentence, it is caveated by the use of to the maximum extent practicable). -
I might add that value is also dependent on the buyer's circumstances and needs, not just what prospective contractors offer to provide. For example, if an individual is starving, the value/utility of a cracker to that individual is much higher than for someone who is well fed.
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Congrats on the new position. In leading your shop maybe you'll be interested in the following TED Talk and Simon Sinek's book "Start With Why." The 20 minute video summarizes the book quite well and if you like what you hear I'd encourage you to pick up a copy, I've personally found it quite insightful and helpful. He breaks down organizations into three components: what they do, how they do it, and why they do it. It seems you're focused on the process (how) at the moment, but I'd encourage you to take some time to think about the why as you make improvements and lead your organization. Best of luck Jamaal!
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If you're curious about the purpose or objective of a process that is likely required or codified in a regulation I'd start there. For the DoD (which I believe you're a part of if I remember correctly from another post of yours) DFARS PGI 201.170-1 states the objectives of peer reviews as follows: Are you curious as to whether or not those objectives (or the objectives of other review processes) are accomplished through reviews? Or are you questioning the necessity/value of reviews because you feel they usurp the responsibilities of contracting officers outlined by 1.602?
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Well said. Asking questions too early (as seems to be the case with many of the "story problems") also deprives the individual of the valuable learning that comes along with searching, seeking, and thinking. It may be a bit presumptuous of me, but my guess is that the experts here at Wifcon don't have all the information they provide in a post in their hip pocket. In most cases, I imagine the Wifcon experts go out and retrieve relevant information, digest it, then post it. Sure, it may be easier for them to do perform those tasks than the person asking the question, but I bet that's largely because those individuals made a habit out of following that process early in their careers. Not only have they learned how to do those things effectively, but they've also learned things from doing it. Individual's eagerness to ask questions such as these reminds me of a couple of articles that I read last year regarding how the internet may make us feel smarter than we actually are (an HBR Q&A with one of the researchers can be found here: https://hbr.org/2015/07/the-internet-makes-you-think-youre-smarter-than-you-are and the full article on their research can be found here: https://www.apa.org/pubs/journals/releases/xge-0000070.pdf). The concluding paragraph from the research paper drives home the potential impact of such behavior:
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GAO protests: new filing fee of $350
Matthew Fleharty replied to a topic in Proposed Law & Regulations; Legal Decisions
Fair point that it may deter a protestor that behaves in such a manner, but it would only do so in regards to having them bear the costs associated with their system. If the GAO's primary purpose was to deter protests, I'd expect a higher fee than $350. A search of the GAO's site for Latvian Connection, LLC returned 151 bid protests (http://www.gao.gov/search?q=Latvian+Connection&Submit=Search). At $350 per protest that only totals $52,850. Even though it appears that all of the 104 closed protests have been either dismissed or denied, Einstein defined insanity as "doing the same thing over and over again and expecting different results" - so I suppose I'm hesitant to try and predict behavior based on what seems rational when the historical trend for some has been anything but.- 31 replies
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GAO protests: new filing fee of $350
Matthew Fleharty replied to a topic in Proposed Law & Regulations; Legal Decisions
Not one bit. $350 is a nominal amount when it comes to B&P costs. Also, that doesn't appear to be the intent based on the notice (https://www.gpo.gov/fdsys/pkg/FR-2016-04-15/pdf/2016-08622.pdf):- 31 replies
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Proposed Bill on LPTA
Matthew Fleharty replied to bob7947's topic in Proposed Law & Regulations; Legal Decisions
Maybe the memo was deemed ineffective: http://bbp.dau.mil/docs/Appropriate_Use_of_Lowest_Priced_Technically_Acceptable_Source_Selec_Process_Assoc_Con_Type.pdf -
Proposed Bill on LPTA
Matthew Fleharty replied to bob7947's topic in Proposed Law & Regulations; Legal Decisions
The press release (http://www.warner.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=A4D27777-C176-4924-970A-C72128D00A60) states: Rhetorical question: Isn't dictating or prohibiting an approach what undermines DoD's (or any agency's) procurement flexibility? I suppose for acquisition professionals who believe this is the wrong move, take comfort in the fact that it appears the language in the legislation may only state "to the maximum extent practicable." Last time I saw that language go "unheeded" with no consequences (that I am aware of) was when this language was used for the FAR 13.5 Commercial Item Test Program. -
H2H, No problem - Vern doesn't have a monopoly on the discussion of my remarks so I welcome the input. I'm confused though...are you saying we're currently in an environment with discretion, but without accountability? Or was increased discretion granted back in the mid-1990s without commensurate accountability and, as a result, that discretion was subsequently curtailed? Because I think the concerns raised by most individuals on this thread, in particular Vern, is that there is a lack of discretion, or as he would state, the ability to make business decisions (and I would agree).
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Vern, Apologies for the delay. Just as I thought I knew what to say in my response, I read the latest CNR and the thought occurred to me that we may be "argreeing" (arguing, but in agreement) at least when it comes to the subject of fairness and business judgment in the contractor selection phase. You stated in "Highest Technically Rated Offerors with Fair and Reasonable Pricing: A New Source Selection Technique" 30 No. 5 NCR. NL ¶ 23: While I may take exception to the phrase "some level of competition" depending on the specifics, generally, I support the preceding comments as follows. Unless I'm reading too far into them or outright misunderstanding your position, it appears that any exceptions to the standard of competition would not be based on business judgment, but rather on justifications and approvals tied to statutory exceptions (similar to the status quo). Business judgment could then be used to fashion/employ various techniques to select a contractor to fulfill the Government's requirement. I'd support that type of acquisition environment as those techniques need not be uniform throughout the DoD (or any agency) to provide for fairness as long as that process allows for competition to the maximum extent practicable and equal treatment of similarly situated or like offerors. Still, I'm left a bit concerned. I've read on numerous occasions your (and others') indictments of the acquisition system, the lack of training and professionalism, and the overall youth and inexperience of the workforce and can't help but wonder: if the Government acquisition workforce isn't well trained, can't critically think, write well, etc. would they not do more harm in a world where they have this wide-latitude afforded to them by invoking business judgment? Forgive me in advance for what might be an oversimplification of the matter, but I'm reminded of a comical scene in the movie The Big Short where the investors are talking to two mortgage brokers in Florida about their process for issuing homebuyers loans and these brokers' "business judgment" (the term is used quite loosely here) was basically non-existent due to the latitude they had from their banks. Moreover, during the time (as we all know from the economic crash in 2008) the resulting sub-prime loans were par for the course. In hindsight, sure they look like poor business judgment (or a complete lack thereof), but when they were being issued beforehand it certainly didn't appear that way - home loans were driving profits and empirically carried small amounts of risk (which banks then thought could also be offset further). Where were the critical thinkers and experts then to stop such behavior by employing business judgment? Where will they be in an alternative world of acquisition policy if left quite unrestrained and to their own devices and conceptualization of "business judgment?" Finally, if we're going to hold acquisition officials accountable for utilizing "business judgment" as the standard, how do we do so fairly?
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It hasn't - my thoughts regarding our discussion are not yet complete. The squabbling doesn't require the critical thought that our discussion takes - I'll respond sometime today.
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Jon, I never said that a buyer shouldn't do the things you say - what I do say, and you once again ignore, is that GSA COs have a responsibility when making fair and reasonable determinations on price lists and I've seen first hand (and provided additional examples) where that was done poorly or improperly. Call it what you want, even if it is a "ceiling" the GSA CO should make sure that "ceiling" is fair and reasonable. I'm done discussing this matter with you because you once again conveniently ignore what I've said and the examples I provided.
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