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Matthew Fleharty
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Posts posted by Matthew Fleharty
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9 minutes ago, Neurotic said:
we are wondering how to deal with a situation of a known potential cost overrun, if that offeror is selected for award.
That's an oxymoron Neurotic.
10 minutes ago, Neurotic said:Would you request an updated proposal (after source selection)incorporating the FPRP rates?
Are you asking if you should modify the contract after award to increase the Target Cost based on the FPRP? Why does (or should) a contractor's proposed rates have to match their FPRP?
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If anyone is interested in a 20 minute primer on blockchain see the following:
The professor in the podcast also wrote an article for HBR titled "The Truth About Blockchain" earlier this year that can be found here (may require login):
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Jake,
Unfortunately I'm not surprised and I doubt you'll have much luck on your own even if you find this particular COFC decision to send to your contractor. I was in your shoes a year ago and made all the right arguments to no avail; however, what worked beautifully was elevating the issue up through leadership (if this procurement is as large as you say they'll be more than happy to help). Within a week I received complete and properly segregated actuals. So don't be afraid to ask for help - I suspect if you do you'll likely get exactly what you need. If that's unsuccessful, PM me and we can discuss further.
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4 hours ago, Vern Edwards said:
Retread:
You're wasting your time and breath.
FAR 44.402(b) says: "Notwithstanding any other clause in the prime contract, only those clauses identified in the clause at 52.244-6 are required to be in subcontracts for commercial items or commercial components."
FAR 52.224-3, Privacy Training, is among the clauses listed at FAR 52.244-6. FAR 52.224-2, Privacy Act, is not.
Case <bleep> closed.
I fought a similar and equally frustrating battle at my first assignment over which provisions/clauses might be necessary for inclusion in contracts for commercial items. FAR 12.301(d) has similar language:
Quote(d) Other required provisions and clauses. Notwithstanding prescriptions contained elsewhere in the FAR, when acquiring commercial items, contracting officers shall be required to use only those provisions and clauses prescribed in this part. The provisions and clauses prescribed in this part shall be revised, as necessary, to reflect the applicability of statutes and executive orders to the acquisition of commercial items.
Yet still, individuals would use the entire FAR and DFARS provision/clause matrices when writing the solicitations/contracts. I couldn't (and still can't) understand how the definition of "notwithstanding" and the language that follows was unclear, but it doesn't surprise me that some are facing a challenge in this case given the similarities. I suppose this might be one of the procurement lore versus procurement rule issues and some people just get stuck in the way of doing things without knowing why or whether that way is proper or improper. It's such a shame that some would rather be right instead of doing things right.
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19 minutes ago, Don Mansfield said:
Kelman did not write the article. It was written by David Eaves, Lecturer in Public Policy at the Harvard Kennedy School.
I saw that, but based on his work with David Eaves and the inclusion of "by Steven Kelman," they presumably share the same thoughts (I know I wouldn't let a colleague put my name on an article or document without my review and consent).
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7 hours ago, Lionel Hutz said:
No, but a federal regulation stating that a contract "shall" be awarded at a fair and reasonable price is an express prohibition against awarding at an unreasonable price. If you want to argue that there is an exception to that requirement, the burden is on you to identify it. But, nothing in 15.405(d) suggests that it is providing such an exception.
Agree 100%.
55 minutes ago, joel hoffman said:I can't tell what is actually supposed to happen if the KO can't determine that the price is fair and reasonable for award purposes and the higher level agrees that it isn't fair and reasonable.
I think the FAR's pricing policy is crystal clear that awards shall be made at fair and reasonable prices...if no one can do that and, therefore, compliance with the FAR is not possible, I'd imagine one would have to pursue a Deviation IAW FAR Subpart 1.4 (emphasis added below).
Quote“Deviation” means any one or combination of the following:
(a) The issuance or use of a policy, procedure, solicitation provision (see definition in 2.101), contract clause (see definition in 2.101), method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR.
(b) The omission of any solicitation provision or contract clause when its prescription requires its use.
(c) The use of any solicitation provision or contract clause with modified or alternate language that is not authorized by the FAR (see definition of “modification” in 52.101(a) and definition of “alternate” in 2.101(a)).
(d) The use of a solicitation provision or contract clause prescribed by the FAR on a “substantially as follows” or “substantially the same as” basis (see definitions in 2.101 and 52.101(a)), if such use is inconsistent with the intent, principle, or substance of the prescription or related coverage on the subject matter in the FAR.
(e) The authorization of lesser or greater limitations on the use of any solicitation provision, contract clause, policy, or procedure prescribed by the FAR.
(f) The issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations in accordance with 1.301(a).
The only question that remains is whether or not such a deviation is precluded by law, executive order, or regulation...
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1 hour ago, Jamaal Valentine said:
Seeker:
Not sure who this was directed to, but it is essentially what I have heard repeated by instructors, trainers, leaders, contract specialists, and contracting officers, etc. I understand the argument, but do not see how it comports with FAR.
Jamaal,
It was likely directed at me - Seeker sent me a few PMs laced with ad hominems labeling me an "awful bureaucrat" amongst other things. I'll no longer be engaging with Seeker on these forums as a result. Maybe you'll have better luck getting a response that is supported by facts or references to the law/policy/regulation, but I doubt it.
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Seems team Schooner has some more supporters:
'Pay Trump Bribes Here' Projected on Trump Hotel in Washington
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11 minutes ago, Lionel Hutz said:
The portion I'm referencing is the exact portion that Jamaal asked about in the original question:
I was explaining what that passage meant. You know, actually answering the question asked.
I never said it authorized making a purchase at an unreasonable price. In fact, I said just the opposite:
My apologies Lionel - I read in haste - I'll edit my post accordingly.
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Edited by Matthew Fleharty
Refer to FAR 15.402 "Pricing Policy" (emphasis added below):
QuoteContracting officers shall—
(a) Purchase supplies and services from responsible sources at fair and reasonable prices. In establishing the reasonableness of the offered prices, the contracting officer--
(1) Shall obtain certified cost or pricing data when required by 15.403-4, along with data other than certified cost or pricing data as necessary to establish a fair and reasonable price; or
(2) When certified cost or pricing data are not required by 15.403-4, shall obtain data other than certified cost or pricing data as necessary to establish a fair and reasonable price, generally using the following order of preference in determining the type of data required:
(3) Obtain the type and quantity of data necessary to establish a fair and reasonable price, but not more data than is necessary. Requesting unnecessary data can lead to increased proposal preparation costs, generally extend acquisition lead time, and consume additional contractor and Government resources. Use techniques such as, but not limited to, price analysis, cost analysis, and/or cost realism analysis to establish a fair and reasonable price. If a fair and reasonable price cannot be established by the contracting officer from the analyses of the data obtained or submitted to date, the contracting officer shall require the submission of additional data sufficient for the contracting officer to support the determination of the fair and reasonable price.
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(i) No additional data from the offeror, if the price is based on adequate price competition, except as provided by 15.403-3(b).
(ii) Data other than certified cost or pricing data such as—
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(A) Data related to prices (e.g., established catalog or market prices, sales to non-governmental and governmental entities), relying first on data available within the Government; second, on data obtained from sources other than the offeror; and, if necessary, on data obtained from the offeror. When obtaining data from the offeror is necessary, unless an exception under 15.403-1(b)(1) or (2) applies, such data submitted by the offeror shall include, at a minimum, appropriate data on the prices at which the same or similar items have been sold previously, adequate for evaluating the reasonableness of the price.
(B) Cost data to the extent necessary for the contracting officer to determine a fair and reasonable price.
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(b) Price each contract separately and independently and not --
(1) Use proposed price reductions under other contracts as an evaluation factor; or
(2) Consider losses or profits realized or anticipated under other contracts.
(c) Not include in a contract price any amount for a specified contingency to the extent that the contract provides for a price adjustment based upon the occurrence of that contingency.
That policy couldn't be clearer and I do not see any exception to it there or in FAR 15.405. Short of an approved deviation, I'm not aware of any authority for a Contracting Officer (or even individuals one level above) to make or authorize purchases at unreasonable prices.
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Jamaal,
I'm not seeing the inconsistency. I don't read FAR 15.405(d) as authorizing or instructing anyone to award a contract at an unreasonable price. It merely states that the unsuccessful contracting officer "shall refer the contract action to a level above the contracting officer. Disposition of the action should be documented." Nowhere does that reference (or any other that I am aware of) give anyone, including the individual one level above the contracting officer, authority to award at an unreasonable price.
While not my precise thoughts on the matter, I presume this may be why the FAR says what it says:
On 5/12/2017 at 5:16 AM, ji20874 said:A price that might be unreasonable to one person might be reasonable to someone else. A price that is unreasonable to a contracting officer, after "the contracting officer has taken all the authorized actions . . . without success," might be reasonable to someone at a level above the contracting officer.
That individual one level above the contracting officer may also have more experience, skills, knowledge, etc. to resolve the situation - I believe the FAR is just instructing lower level CO's on what to do when they reach an impasse.
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19 hours ago, joel hoffman said:
Matthew, I think that CICA has already been regarded concerning this matter. The original contract is a negotiated, sole source contract.
Joel that wasn't my question. Regardless of the OPs situation, Seeker appeared to take the position the any/all contract(s) for software rights are exempt from CICA because software rights are not supplies, services, or construction and CICA only applies to "acquisitions" which, according to the FAR 2.101 definition only covers "supplies, services, or construction" and does not expressly state "software/data rights" (at least I think that is Seeker's position and presumably Seeker believe thats software/data rights do not fall into any of those categories, hence my question). I'm trying to pull on that thread - hopefully that is more clear now.
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6 hours ago, joel hoffman said:
Matthew, relax already. There wasn't any competition for the sole source contract as awarded, to include the current software rights.
Why do you assume I'm not "relaxed" Joel?
Seeker's answer appeared to use a position that applies more broadly than this one situation so I feel my question is fair game.
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On 5/11/2017 at 7:33 AM, Seeker said:
There is no scope issue. The mod will not acquire supplies, services or construction. It will obtain additional rights to software (property) you already have. Thus it will not be an acquisition as defined in FAR 2.101. CICA applies to acquisitions of contracts for supplies, services and construction. FAR 6.001 and 6.002. Thus CICA does not apply. You do not need a J&A.
Do I understand you correctly that the Government can contract for any software rights it desires without regard to CICA?
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4 hours ago, ContractSpecialistTJohn said:
My thought is that it violates the FAR Part 8 priorities.
Re-read FAR 8.004 - "agencies are encouraged to consider satisfying requirements from or through the non-mandatory sources listed in paragraph (a) of this section (not listed in any order of priority) before considering the non-mandatory source listed in paragraph (b)" - encouragement is not the same as a requirement. Moreover, if a better value can be obtained through commercial sources in the open market, I'd argue you have an obligation as a steward of taxpayers' dollars to pursue that better value given the non-restrictive language in the FAR.
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For anyone still interested in this topic, in March, the GSA Contracting Officer concluded that the hotel lease is valid. As one would expect, there is still disagreement amongst contracting professionals regarding that determination.
The article linked below contains embedded links to the GSA Contracting Officer's letter, NPR's previous coverage, and an interview with Prof. Schooner regarding his thoughts on the lease.
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Vern and ShawnT,
I don't think this issue is that clear - conceivably, valid arguments could be made on either side based on which definitions are chosen. For instance, let's consider that the language in 10 USC 2307(b) says nothing about performance based payment amounts - it uses the term "performance based payments," which based on the following definition of payment, could mean the issuance of the PBP:
QuotePayment: The act of paying or the state of being paid.
That definition along with the alternative definitions of "conditioned upon" or "condition" would be consistent with an interpretation that the PBP criteria governing when a payment shall be issued cannot be tied to costs incurred, but the amount expended can still be limited by costs incurred to avoid unintended advance payments.
Vern makes an interesting assumption that industry lobbied for the change which may very well be true; however, could it also be possible that there was a push within the Government to be more restrictive and/or explicit that PBP criteria cannot be tied to costs incurred based on misuse by agencies?
Despite the differing interpretations, I'm inclined to believe my original position for now (despite a much more experienced/educated individual disagreeing with me) because payment amounts receives its own paragraph at 10 USC 2307( c ). That would be the natural place for any language consistent with ShawnT's interpretation of the law and the language currently there does not prohibit the DoD from being more restrictive by limiting the PBP amounts to no more than the costs incurred.
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ShawnT,
I think you cut your definition search a word short - look up the definition of the term "conditioned upon" and think about how that term is distinct from a limitation. Then I'm confident you'll understand the difference/nuance and Vern's logic.
Edit: Even alternative definitions of "conditioned" might be worth considering, such as American Heritage Dictionary's (https://ahdictionary.com/word/search.html?q=condition)
Conditioned: To make dependent on a condition or conditions: Use of the cabin is conditioned on your keeping it clean.
The PBPs are dependent on performance outcomes, but limited by actual costs incurred.
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44 minutes ago, lightbulb401 said:
Thanks for that info. I'm probably wrong about all this, but wanted to seek another opinion on this situation.
You'd be surprised to hear that there are plenty of cases regarding underpayment and back wages...https://www.dol.gov/opa/media/press/whd/
For worker specific info, see the following link: https://www.dol.gov/whd/workers.htm There is even a handy link on "How to File a Complaint."
"Breakdown Activities" for the Contracting Workforce
in Contracting Workforce
I'm drafting some thoughts/recommendations on improving training for the contracting workforce and I'd like to solicit input from those of you who frequent these forums.
Specifically, I'd like to know what each of you think are the "breakdown activities" for our workforce.
"Breakdown activities" are defined as those "tasks that differentiate high and low performers."
The term comes from an article in Harvard Business Review that I read last month - for those of you interested in the complete article, you can read it here: To Better Train Workers, Figure Out Where They Struggle.
Thanks in advance for any input!