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Matthew Fleharty
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Posts posted by Matthew Fleharty
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3 hours ago, Vern Edwards said:
Well, a FAR Bootcamp graduate will remember that you first look for an official definition.
I certainly didn't forget that rule (refer to post #16). Whether my definitions were adequate or not, well...
3 hours ago, Vern Edwards said:FAR 15.201(f) is what happens when people assigned to write a regulation resort to metaphor instead of plain English, which is what the law requires. And what you have been doing is what people do when they inappropriately attribute clear meaning of their own choice to the inappropriate choices of regulation writers in a way that needlessly limits CO discretion and freedom of action.
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?
3 hours ago, Vern Edwards said:As to your last question: as I recall you were unable to attend the recent Critical Thinking course at SMC. Check online listings of logical fallacies and see if you can identify the one that your question entails. The research will be useful to you. I won't answer such a question.
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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16 minutes ago, Vern Edwards said:
Matthew:
You are making way too much of the phrase "focal point."
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?"
23 minutes ago, Vern Edwards said:"After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors" indicates nothing more than that the people in the contracting office are in charge of all exchanges of information. That sentence was put there to give the contracting people a regulatory basis to rein in the technical people who, left to their own devices, would say goodness-knows-what to goodness-knows-who. It's absurd to claim that it requires the contracting officer to follow any particular procedure.
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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12 hours ago, Vern Edwards said:
Matthew:
FAR 15.201(f) does not specify any "procedural requirements" for responding to inquiries. It says that the contracting officer must be the focal point. Focal point is not a procedure. The focal point is responsible, but they fulfill that responsibility through the auspices of their offices and their representatives.
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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33 minutes ago, Vern Edwards said:
I say that it is within her authority as a CO to delegate that task in that way.
According/pursuant to...?
34 minutes ago, Vern Edwards said:Do you agree?
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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38 minutes ago, Vern Edwards said:
Matthew:
Do you think that the contracting officer must field all inquiries personally and that he or she may not delegate that task? Does being a "focal point" entail personal performance?
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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2 hours ago, joel hoffman said:
I'm not sure whether a contractor can act as point of contact for questions from prospective offerors before the proposal due date. I feel that is the responsibility of the agency to clear up.
The FAR makes it clear that the contracting officer is the point of contact:
QuoteFAR 15.201(f)
"After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors."
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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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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:
QuoteThis requirement does not apply to purchases of $3,500 or less ($20,000 or less for acquisitions as described in 13.201(g)(1)), or purchases from required sources of supply under Part 8 (e.g., Committee for Purchase from People Who are Blind or Severely Disabled, and Federal Supply Schedule contracts).
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4 hours ago, jeff4757 said:
"Which Part of the FAR do you prefer working out of- 8, 13, or 15? And why?
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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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).
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On 5/7/2016 at 4:30 PM, Vern Edwards said:
One part of an offer is the proposed price (or the estimated cost and fee). We usually evaluate that part of an offer on the basis of the attribute we call "reasonableness" of amount and sometimes on the basis of the attribute we call "realism." The question is, what is the nature of the functional relationship between value and reasonableness and/or realism of price? Is reasonableness simply a matter of highness or lowness? Does value go up as price goes down? Does it go up as it becomes more realistic? And is the effect on the value of price when we're interested in both reasonableness and realism? What do we do when more is less, but less is also less? Is reasonableness a matter of "rightness"? If so, what is rightness? What makes a price "right"?
Price (or estimated cost and fee) is something we evaluate. We assign a value to it in some way. What is the relationship between price (or estimated cost and fee) and value? How can we think clearly about and talk clearly about this in terms that makes sense to ourselves and to others so we can explain and justify our competitive price evaluations?
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:
QuoteThe objectives of peer reviews are to-
(a) Ensure that DoD contracting officers are implementing policy and regulations in a consistent and appropriate manner;
(b) Continue to improve the quality of contracting processes throughout the DoD; and
( c ) Facilitate cross-sharing of best practices and lessons learned throughout the DoD.
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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On 4/30/2016 at 0:39 AM, Vern Edwards said:
All:
These kinds of What should I do? and What's going to happen? questions (I call them "story problems": This happened, and then this happened, and this is what's going on. What should I do?) are pointless to ask. They are essentially asking for a legal analysis and almost always indicate that the person asking does not understand contract law and how it works. A reasonable answer almost always depends on facts and contract language that we at Wifcon Forum do not have and cannot get. Yet they are very common at Wifcon. Such questions are distressing, because while Wifconers would like to help the person asking, they simply can't. Not if they're responsible persons. Yet Wifconers probe and probe, trying to get more information out of the asker, which is almost always a waste of everyone's time and a source of frustration.
Lawyers get these kinds of questions all the time, and they dread them, because all they can say is, Well, maybe this or maybe that--it depends. What does the contract say? What are the facts that you can prove? That kind of answer irritates people and makes them complain about lawyers, but they, not the lawyers are the ones at fault. In my opinion, such questions are the product of doubt and anxiety, seeking assurance. I asked them during my first year or so as a contract negotiator, until a stern supervisor (Thanks, Mr. Kirk) and a kindly lawyer (Thanks, Joe) sorted me out.
All you help and advice seekers, Please, Please, PLEASE, stop asking these kinds of questions at Wifcon. Instead, go see your attorney with the contract in hand and a file full of documented facts. And get yourself a copy of Administration of Government Contracts.
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:
QuoteThere are clearly benefits to the freely accessible information on the Internet; however, there may be costs inherent to the strategy of accessing that information. The boundary between personal and interpersonal knowledge is becoming increasingly blurred (Clark & Chalmers, 1998). As technology makes information ever more easily available and accessible through searching, the ability to assess one's internal "unplugged" knowledge will only become more difficult. Erroneously situating external knowledge within their own heads, people may unwittingly exaggerate how much intellectual work they can do in situations where they are truly on their own.
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2 hours ago, PepeTheFrog said:
GAO included this announcement today, right after a summary of B-412701, Latvian Connection, LLC, April 22, 2016 (denied).
Coincidence? PepeTheFrog thinks this is an inside joke.
A one-time fee of $350 is nominal. However, $350 might deter a repeat, frivolous protestor. Regarding the stated intent, PepeTheFrog is far more cynical.
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.
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2 hours ago, PepeTheFrog said:
Does anyone think this will significantly affect the number or quality of GAO protests? PepeTheFrog imagines that any effects will be minimal because $350 is not much of a deterrent for filing. What does the forum think?
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):
QuoteGAO derived the fee using actual costs GAO has incurred to develop the system, estimates of future costs for hosting and maintaining the system (adjusted for inflation), estimates of future annual bid protest filings as determined by historical filings of the past five fiscal years, and a recovery period for development costs of approximately six years. System establishment costs include payments made by GAO under an interagency agreement for development of the system, as well as GAO’s internal costs incurred for system development. Costs to maintain the system include estimated payments for post-development hosting and support of the electronic protest filing system, as well as estimates of GAO’s internal costs associated with maintaining the system after it has been deployed. All fees collected will be maintained in a separate account established by GAO. The fee will be reviewed every two years to ensure that it is properly calibrated to recover the costs of establishing and maintaining the system.
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3 hours ago, jonmjohnson said:
Wow...interesting legislation and actually fits well with the other conversation on fairness. This legislation is proposed because simple LPTA competitions for complex IT solutions and services were not doing justice (fairness?) to neither the DOD, vendor community, nor taxpayer justice.
My question to the grey-hairs on Wifcon (of which I am now one...not because of KSAs but because of some folicular discoloration)....Why? Why are they legislating something that is already fairly clear and allowable under FAR? Is this a problem that needs to be legislated, or is it a DPAP issue that could have been resolved with a simple statement or memo? Is it issued because KOs are not practicing sound business judgement and are defaulting to LPTA for the sake of convenience and expedience?
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
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The press release (http://www.warner.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=A4D27777-C176-4924-970A-C72128D00A60) states:
QuoteLPTA is a valuable tool, but it can undermine DOD procurement flexibility and should not be used to purchase complex, innovative programs.
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.
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H2H,
No problem - Vern doesn't have a monopoly on the discussion of my remarks so I welcome the input.
37 minutes ago, here_2_help said:Not Vern but I want to respond anyway. In my view the Kelman reforms of the mid-1990's were half-right. We needed to give people more discretion. The problem was that we didn't increase their accountability. We increased discretion without commensurate accountability for that discretion.
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:
QuoteThe only part of CICA worth preserving is the part that calls for some level of competition and justification and approval for the lack thereof. The rest of CICA, which calls for the use of specific competitive procedures, needs to go. Those sections should have been repealed long ago and the case law based on them sent to the rubbish heap. Agencies should have been freed from the tyranny of the awful FAR Part 15 source selection procedures in the mid-1990s. There are many ways to select contractors and form contracts with them. Why should agencies be straightjacketed the way that they are, especially in this era of seemingly never-ending calls for critical thinking and innovation?
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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1 hour ago, Vern Edwards said:
Matthew:
It appears that your interest has shifted from the question of whether contracting policy and operations should be grounded in fairness or business judgment to your squabble with Jon and Jamal about X-Box pricing under GSA FSS contracts. I'm leaving the thread.
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.
Defective Solicitation
in Contract Award Process
I've gained a new interest in pursuing/understanding this topic a bit more so, while I'm doing my own research, if you or anyone else has examples of the use of metaphor instead of plain English in contracting regulations I'd like to see the references/excerpts.