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Don Mansfield

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Posts posted by Don Mansfield

  1. On 9/21/2018 at 12:00 PM, GeoJeff said:

    Is this yet another case of FAR not having "caught up" with an underlying regulation, as is the case with the limitations on subcontracting changes?

    Yes, it is. Status of FAR Case 2016-011:


    09/21/2018 OIRA cleared proposed FAR rule. FAR staff processing.

    It's only been a little over two years since the SBA published the change in its regulations, which implemented a section of the FY 2013 NDAA. You don't want to rush these things.

  2. 2 hours ago, Matthew Fleharty said:

    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.

    Shouldn't you determine whether what you are comparing to the lowest priced offer is comparable? Or do you just assume that it is?

  3. 1 hour ago, ji20874 said:


    Adequate price competition is a standard for determining if certified cost or pricing data is required.  That's all.  It is irrelevant for our discussion.

    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.  


    It's not "irrelevant for our discussion". Vern seemed to be hanging his hat on FAR 15.404-1(b)(2)(i) in his scenario and I wanted to know if it was because he thought he had adequate price competition or because of some other reason.

    1 hour 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.

    No, FAR 15.404-1(b)(2)(i) doesn't say anything about the validity of any method. It just lists examples of methods that can be used to conduct price analysis. 

    Back to your method of comparing the proposed price for a technically acceptable product/service to proposed prices for products/services that you haven't technically evaluated, is there any consideration of the comparability of the products/services that you haven't technically evaluated? Or do you assume that they are comparable? 

  4. 6 minutes ago, Vern Edwards said:

    Adequate price competition is irrelevant. I'm buying apples, a commercial item. The market for fruits is pretty large. And I live in Washington state. Everybody here knows the prices of apples. And cherries. And pears. And grapes. And watermelon. I can detrermine fairness and reasonableness through pleasure analysis.

    For purposes of applying TINA it is. But in your scenario you want to hang your hat on FAR 15.404-1(b)(2)(i):

    9 minutes ago, Vern Edwards said:

    Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price (see 15.403-1(c)(1)(i)).

    So I ask again, did you get adequate price competition in your scenario?

  5. 1 minute ago, PepeTheFrog said:

    To the naysayers of the "first LPTA discovered" method of starting with the lowest price and awarding to the first offeror that is technically acceptable (without evaluating other offers)...

    Not sure if you consider me a "naysayer", but as a selection method I don't see a problem with "first LPTA discovered". But that's not the issue we're discussing. The issue is whether the other proposed prices should be used as a basis of comparison in determining a fair and reasonable price.

    5 minutes ago, PepeTheFrog said:

    Yes, under the FAR 15.403-1(c) definition of "adequate price competition." There are three options and the contracting officer should be able to apply one of the three.

    Ok, which one?

  6. 1 minute ago, Vern Edwards said:

    What am I supposed to do, embark on an endless quest for the offer that might exist but that I didn't get?

    Is comparison of proposed prices the only basis for establishing price reasonableness? Or are there others?

    3 minutes ago, Vern Edwards said:

    I conducted a competition for apples. I got an offer for apples that was lower than all the others. All the other offers I got were higher. I don't give a damn if they were for apples or coconuts. I announced a contest, I specified the rules, I conducted the contest in accordance with the rules, Game over.

    Did you get adequate price competition?

  7. On 9/14/2018 at 12:52 PM, ji20874 said:

    In an ordering situation using LPTA, the price analysis can occur before the technical evaluation -- compare all the proposed prices received in response to the solicitation (amenable to FAR 15.404-1(b)(2)(i)), and rank offers from lowest price to highest price -- absent a reason for finding otherwise, one may generally assume that the lowest-price among many is a reasonable price.

    The problem I have with this approach is that you don't know if you would be making an apples-to-apples comparison. You have received several offers to provide apples. You have confirmed that one such offer is for something that meets the criteria for being an apple. You don't know if the other offers are for things that meet the criteria for being apples. You have no evidence that they meet the criteria for being apples, but you also have no evidence that they don't. You're comparing apples to something in a quantum superposition of being both apples and not apples. Why would it be reasonable to assume that they are apples? Because you asked for apples and received several offers to provide apples?

  8. This is a remarkable case if I'm reading it correctly: AeroSage, LLC, B-416381, August 23, 2018.

    DLA issued an RFP that contained ten line items, two of which were each estimated to be below $150,000. The aggregate of all 10 line items was greater than the simplified acquisition threshold (SAT). Award was to be made on a line item by line item basis. DLA issued the solicitation on an unrestricted basis based on the conclusion that two or more small businesses could not perform the entire contract and that the nonmanufacturer rule (NMR) applied (NMR does not apply below the SAT per 13 CFR 121.406(d)).

    A small business concern protested that the two line items below $150,000 should have been automatically reserved per for small business per FAR 19.502-2(a) and that the NMR did not apply to those line items. GAO asked for SBA's interpretation. SBA said that, when award is to be made on a line item by line item basis, the Rule of Two analysis should be made at the line item level. Also, the NMR is to be applied at the line item level. GAO deferred to SBA's interpretation of its own rules and sustained the protest.

  9. 3 hours ago, PepeTheFrog said:

    It is extremely rare (how many times has it ever happened?) for a contractor to get successfully slapped with liquidated damages for failure to make a good faith effort to comply with the subcontracting plan.

    I looked for evidence a few years ago for a presentation on the subject. I couldn't find anything. All I have is a third-hand anecdote of NAVFAC assessing liquidated damages.


    1 hour ago, Retreadfed said:

    Carl, small businesses should not be required to submit a plan for a set aside procurement because the extent of small business utilization evaluation factor is only applicable to contracts that require the use of the clause at FAR 52.219-9.  Thus, the factor would only come into play in full and open competitions.

    I think Carl is referring to the small business participation plan that a small business would have to submit in a full and open competition.

  10. 10 hours ago, Vern Edwards said:

    My assertions are true for me, and for anyone who agrees with me, until you prove to me and those others that they're wrong.

    Fine, but I think you're presenting your assertions as if they were facts. That's what Merriam-Webster defines as dogmatism.



    Definition of dogmatism

    1: the expression of an opinion or belief as if it were a fact : positiveness in assertion of opinion especially when unwarranted or arrogant


    As far as the use of commit at DFARS 215.304(c)(i), I think that could be evaluated by requesting evidence of commitment to include small business concerns in performance. Such evidence could be subcontracts contingent on contract award, joint venture agreements, and teaming agreements. I think your interpretation of "commit" as used in DFARS 215.304(c)(i) is too narrow.


  11. 2 hours ago, Vern Edwards said:

    Have you actually scoped the problem? Just because some agencies decide to call for a small business participation plan, that doesn't mean that there is a problem, much less a general problem.

    What's your point? I didn't say there was a problem.

    2 hours ago, Vern Edwards said:

    How about:

    • A personnel management plan?
    • A QA plan.
    • A safety plan.
    • A program or project management plan.
    • A disaster preparedness plan.
    • A system test plan. 

    And so on.

    What about them? Nobody is arguing that it's illegal to incorporate things in proposals in the contract. The issue is whether a policy of binding offerors, including small business offerors, to their proposed small business participation should be subject to requirements of 41 USC 1707. Incorporation of a plan is just a technique. Some activities use clauses, others put requirements in the statement of work.

    2 hours ago, Vern Edwards said:

    As for evaluating small business participation on an acceptable/unacceptable basis, you and Joel have expressed reservations, but neither of you has made an argument about your cause for hesitation.

    No, I didn't. I said the DoD Source Selection Guide expressly permits it. I have no reservations.

    2 hours ago, Vern Edwards said:

    The DFARS calls for proposals of small business participation. Calling them plans doesn't change what they are. That's just poor usage, which is common in our business.

    I don't see your point. To comply with DFARS 215.304, it has become common practice by DoD activities to request "small business participation plans." When they request them, they receive them. There's a lexicon that exists outside of the regulations. Agencies and their contractors use words and terms that they both understand, despite these terms not being used in the regulations. Sometimes these words and terms end up in regulations.

  12. 5 minutes ago, Vern Edwards said:

    Yes, I do think I do. If I'm wrong it's up to you to tell us what your premises are. If you don't want to do that, then you won't change my mind

    Is that how it works? Your assertions are true unless I prove them false? Quod grātīs asseritur, grātīs negātur

    BTW, "proposals" are not covered under OMB Control No. 9000-0037. The OMB clearance is for "Presolicitation Notice and Response." See https://www.gpo.gov/fdsys/pkg/FR-2017-08-23/pdf/2017-17830.pdf#page=1 

  13. 4 minutes ago, joel hoffman said:

    1. The small business utilization plan would only be separately incorporated in contracts without a small business subcontracting plan. It’s already necessary to incorporate it into the subcontracting plan. My point is that the industry had the opportunity to review and comment, per 41 USC 1707, on the requirement to incorporate it in the subcontracting plan. 

    That's not always happening in practice. Some contracts require compliance with the small business subcontracting plan pursuant to FAR 52.219-9 and a small business participation plan (which I think you are calling a small business utilization plan). Under FAR 52.219-9, the contractor has to make a good faith effort to comply with its subcontracting plan. On the other hand, the amounts proposed in the small business participation plan become contract requirements, good faith effort notwithstanding. The public had the opportunity to review and comment on the former, but not the latter. If agencies merely incorporated the amounts proposed in the small business participation plan in their subcontracting plans, there would be no issue regarding 41 USC 1707.

  14. 6 minutes ago, Vern Edwards said:

    The regulation mentions "proposals" for small business participation, which are to be separate from the subcontracting plans required by FAR 52.219-9.

    ...which are commonly referred to as Small Business Participation plans. 



    6 minutes ago, Vern Edwards said:

    This thread is based on a false premise.

    No, you just don't understand.

    10 minutes ago, Vern Edwards said:

    And Don, if you're going to refer to a Federal Register entry, you should cite the entry. Did I miss it?

    I didn't cite a Federal Register entry--joel did and provided a link.

  15. 17 minutes ago, joel hoffman said:

    1. The fed register notice did state that the information in the plan will be incorporated into the subcontracting plan ( large business) which is to be made part of the contract  Thus,   no conflict with 41 USC 1707.

    I don't think it says that exactly, but that's ok. If the subcontracting plan reflected what was in the small business participation plan, what would be the reason for incorporating the small business participation plan?

    23 minutes ago, joel hoffman said:

    That leaves the question of what significant additional administrative or cost impact would likely result from the government incorporating the plan into a contract with other than a large business. Thus, no subcontracting plan involved.

    It may also have an effect on large businesses, depending on what the contract required. For example, the contractor need only make a good faith effort to comply with the subcontracting plan under FAR 52.219-9. Some contracts require that the contractor actually achieve what was proposed in their small business participation plan, good faith effort notwithstanding.

    32 minutes ago, joel hoffman said:

    If the contractor had proposed enforceable commitments to identified firms  in the plan, what is the significant additional burden due to it being in the contract?

    If the contractor didn’t identify firms or include enforceable commitments , then what is the significant additional burden?

    I don't know. I can only speculate. When I asked contractors what they thought, they said it was a big deal. I'm hoping some join this thread to share their experience.

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