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DingoesAteMyBaby

The Contracting Officer determines fair and reasonable price

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How would you combat with facts a statement that "the technical analyst determines fair and reasonable price in a sole source negotiation, rather than the contracting officer"? Specifically, in a situation where a technical analyst provides a report which applies the concepts of FAR 15.404-1 in considering proposed labor, material, and subcontractor and the report subsequently is almost entirely relied upon by the contracting officer to formulate a pre-negotiations position within a business clearance memorandum? And this arrangement is repeated for years for a similar procurement type. And what if the statement cannot be successfully refuted by the plain reading of the FAR's guiding principles and sections regarding fair and reasonable pricing? Is there case law that reinforces that the determination is made by the contracting officer and no other representative of the Government?

The FAR states:

"Contracting Officers shall purchase supplies and services from responsible sources at fair and reasonable prices" (FAR 15.402(a)).

"The objective of proposal analysis is to ensure that the final agreed-to price is fair and reasonable. The contracting officer is responsible for evaluating the reasonableness of the offered prices. The analytical techniques and procedures described in this section may be used, singly or in combination with others, to ensure that the final price is fair and reasonable. The complexity and circumstances of each acquisition should determine the level of detail of the analysis required." "The contracting officer may request the advice and assistance of other experts to ensure that an appropriate analysis is performed." (FAR 15.404-1(a))

"Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall request and consider the advice of specialists in audit, law, engineering, information security, transportation, and other fields, as appropriate" (FAR 1.602-2).

"The purpose of defining the Federal Acquisition Team (Team) in the Guiding Principles is to ensure that participants in the System are identified -- beginning with the customer and ending with the contractor of the product or service. By identifying the team members in this manner, teamwork, unity of purpose, and open communication among the members of the Team in sharing the vision and achieving the goal of the System are encouraged. Individual team members will participate in the acquisition process at the appropriate time." (FAR 1.102-3)

"Government members of the Team must be empowered to make acquisition decisions within their areas of responsibility, including selection, negotiation, and administration of contracts consistent with the Guiding Principles. In particular, the contracting officer must have the authority to the maximum extent practicable and consistent with law, to determine the application of rules, regulations, and policies, on a specific contract." (FAR 1.102-4(a))

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How would you combat with facts a statement that "the technical analyst determines fair and reasonable price in a sole source negotiation, rather than the contracting officer"?

It looks like you did a good job of supplying those facts from the FAR. :) I think this contracting officer has determined the price is fair and reasonable by relying on the opinion of the technical analyst.

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Dingoes, I agree with the Wise Man here.

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