Matthew Fleharty

5 hours ago, jonmjohnson said:

Here is exactly where you go wrong.  GSA is not the buyer of anything.  You are the buyer.  GSA just established a structure whereby you can do as Vern suggested earlier:  1) do you homework, 2) pick 3 vendor, 3) compete the pricing, and 4) make an award.

The GSA CO determines a fair and reasonable price, based on the commercial entities commercial practices that they justify and provide evidence for, in order to allow for an item to be placed on their schedule contract.  These are ceiling prices that are established, or MSRP for government.  They are not, nor have they ever claimed to be, floor pricing as would be given to a buyer who has money and is ready to make a buy.

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.

24 minutes ago, Jamaal Valentine said:

Availability of gaming consoles, during launch (initial release), is scarce, which drives prices up. $800 for an XBOX 360 was fair and reasonable for a time.

http://www.gamespot.com/articles/xbox-360-scalpers-clean-up-on-ebay/1100-6140373/

Maybe the GSA buyer/CO were provided that article (or one similar) and the subsequent eBay sales data when they made their determination.  A common definition of fair and reasonable price includes the term prudent which is defined as "acting with or showing care and thought for the future."  Even with the early release demand during a holiday season, I'd argue that the determination was made inappropriately by such a standard.

Edit: Still, thanks Jamaal for actually providing evidence that could serve as the basis for why the price might have been listed on those GSA Schedules as it was.

1 hour ago, Vern Edwards said:

I think business judgment gives us a reasonably clear and almost universal standard:

What a similarly situated and honest businessperson would do to survive and to achieve long term growth and profitability.

I have some thoughts here, but before I respond, would you apply this definition to Government activities (where profitability is not a concern) or do you have an alternate definition specific to business judgment for Government officials?

27 minutes ago, jonmjohnson said:

This statement alone indicates to me that you really don't know what you are talking about, at least as it pertains to Schedules, pricing, and FAR Part 8.  That this was listed at this price is only an indication that the market rate for the item was that at a particular time.  Prices for IT decrease over time.  The CO at GSA established the fair price for that item at a time when that was the market rate of $800 (which it was when it was initially released).  That price point decreased over time, as it typically does for consumer electronics.  You characterize this as the fault of a GSA CO, whereas this is nothing more than the market at work.  Your cell phone that you pay $600-$700 today will be worth .99 in 12 months.  This is not the fault of a CO that sets a market price at a particular point in time, it is simply the way that the IT market works, and has nothing to do with your "fairness" argument.

Jon, at no time did the cost of an XBOX 360 ever reach $800 for the market (http://money.cnn.com/2005/08/17/commentary/game_over/column_gaming/).  Provide me evidence of such and then maybe you can tell me that I don't know what I'm talking about.  I understand how markets work, but I don't understand how you can make the assumptions you do in your post and claim I'm being ignorant or naïve in my remarks.  Sure it may be only one example (one that has stuck with me), but I think you would find a number of additional examples of inflated or unreasonable prices on GSA schedules if you took just a small amount of time to research the issue before posting (http://www.rjo.com/PDF/law360_12182013.pdf or https://www.justice.gov/usao-md/pr/axway-inc-agrees-pay-62-million-resolve-false-claims-act-allegations-related-gsa-multiple or even http://www.law360.com/articles/219983/fastenal-to-pay-6-25m-after-inflating-fastener-prices and those only took me a few minutes).

29 minutes ago, jonmjohnson said:

You are correct that nobody pays this anymore, just like nobody pays $600 for an iPhone 4.  Market research will bore this out, just as it did in your example above.  When you use schedules, you still do your research, and negotiate a price.

Are you sure?  You're telling me that the thousands of "buyers" with GPCs who order off of GSA Schedules do precisely that (especially under the micropurchase threshold)?  I doubt it because I've seen evidence to the contrary and advised my customers on how they can do better.  But that is besides the point here....even if buyers do what you state, that doesn't disprove that at some point in time a GSA CO determined the inflated price on the pricelist to be fair and reasonable.  Having not worked at GSA, I hesitate to presume why, but I have my thoughts on how it occurs.  Still, the inflated GSA Schedule prices, combined with laziness by purchasing officials, buyers, and even contracting officers likely resulted in the following deviation to 8.404(d):

Quote

(d) Pricing. Supplies offered on the schedule are listed at fixed prices. Services offered on the schedule are priced either at hourly rates, or at a fixed price for performance of a specific task (e.g., installation, maintenance, and repair). GSA has already determined the prices of supplies and fixed-price services, and rates for services offered at hourly rates, under schedule contracts to be fair and reasonable. Therefore, ordering activities are not required to make a separate determination of fair and reasonable pricing, except for a price evaluation as required by 8.405-2(d). By placing an order against a schedule contract using the procedures in 8.405, the ordering activity has concluded that the order represents the best value (as defined in FAR 2.101) and results in the lowest overall cost alternative (considering price, special features, administrative costs, etc.) to meet the Government's needs. Although GSA has already negotiated fair and reasonable pricing, ordering activities may seek additional discounts before placing an order (see 8.405-4).

(d) Pricing. (DEVIATION) Supplies offered on the schedule are listed at fixed prices. Services offered on the schedule are priced either at hourly rates, or at a fixed price for performance of a specific task (e.g., installation, maintenance, and repair). GSA has determined the prices of supplies and fixed-price services, and rates for services offered at hourly rates, to be fair and reasonable for the purpose of establishing the schedule contract. GSA's determination does not relieve the ordering activity contracting officer from the responsibility of making a determination of fair and reasonable pricing for individual orders, BPAs, and orders under BPAs, using the proposal analysis techniques at 15.404-1. The complexity and circumstances of each acquisition should determine the level of detail of the analysis required.

Vern, thank you for engaging in the discussion and for the design competition article.

You're right to an extent and I knew a day of thinking about the issue and my limited remarks would make it difficult (if not impossible) to establish a sound definition of fairness because there are inherent complications in doing, such as different beliefs regarding fairness.  For example, does one care more about fairness as a process or as an outcome (I think this is the distinction you drew when you asked about fairness to the taxpayers)?  Philosophers have tried to address the concept of fairness with much more time and brainpower than I have dedicated to it over the past few days and yet I still do not believe we have an agreed upon standard for "fairness" (otherwise I would cite it here); however, one thing I do believe is that fairness should not be defined as adherence to the rules because a rule can be unfair/discriminatory/exclusionary.

I'm also curious that if the vagueness of the term "fairness" is a concern, all things considered, how is business judgment any less nebulous?

3 hours ago, joel hoffman said:

So, you are curious about using a qualifications based selection process, then negotiating the contract terms, including price with a selectee? And you think that this will "simplify" or "streamline" the acquisition process? And this negotiation process would be led by or performed by KO's ?  And you think that the competitive 8( a ) process could be a good program on which to try this out?

I am extremely glad that Congress recently headed off attempts to allow expanding the use of qualifications based acquisition approaches, such as was advocated by certain Design-Build construction industry advocates.  

From my observation of the general reluctance of many government acquisition personnel to even engage in detailed discussions during competitively negotiated acquisitions, let alone the often mediocre quality of detailed one on one cost/price negotiations on new contracts or modifications , I don't think that that there is adequate capability within the government workforce to due this on a wide scale.

Shay Assad says that DOD already pays too much. Expanding the use of one on one price or cost negotiations won't improve the situation, in my opinion.  And EXPANDING the use of one on one price or cost negotiations under the 8 ( a)  program and adding negotiation of the technical scope? Whoa, Nellie!  And...Katybar the door! 

Joel, I don't recall ever using the words "simplify" or "streamline" in my remarks.  I'm curious about a number of acquisition methods/proposals and the one espoused by Vern in his 2007 article is quite interesting (I assume you've read it).  I only offer the idea of testing it under the 8(a) program on the competitive side because we already do something similar for sole source 8(a) awards so it wouldn't be a total culture shock to apply his concept to the competitive side of the 8(a) process as a test program of sorts.  Do you propose an alternative way to test the procedures?  I agree with Vern's response that "if a procedure is inherently sound, then we should not reject it because we do not currently have adequate capability."  Such concerns (though I don't entirely agree with you), is also why I advocated the use of it on a test basis first.

On April 18, 2016 at 4:12 PM, Vern Edwards said:

What does "fairness within the acquisition system" mean, and why should fairness be public policy? That question may seem absurd at first, but only because the words "fair" and "fairness" are so widely used and heavily freighted in our society that we rarely ask people who use those terms what they mean by them. And if we did, few could answer clearly and definitely.

I don't think the questions are absurd at all, but at the same time a day of thinking on the issue probably won't result in an adequate answer.  Still, I'll try to provide some thoughts to hopefully move the discussion forward.

First, "fairness within the acquisition system" from a practical standpoint likely depends on the acquisition situation (competitive versus sole source), but from a broad standpoint I'd define it as evenhandedness in business dealings and limiting discrimination/providing maximum practicable opportunity (I say limiting discrimination because I think there are some situations where discrimination may/can result in a more fair outcome, i.e. small business set-a-sides).  Do you have a definition or concept of fairness that you'd like to share?

To answer the second question, I'd argue fairness should be public policy not merely because as a democratic republic the nation has decided as much (what is doesn't necessarily mean that it should be), but rather because participation in financing/supporting government acquisitions is not voluntary in our society.  Unlike corporations, where members of society can influence or show support for the activities of firms through economic behavior, citizens cannot do that when it comes to our government and paying taxes (some try to unsuccessfully, i.e. tax-resistors).  This means that unlike corporations, a government, by its very nature, has social obligations and to fulfill those obligations a just government does so in a fair manner (some of my thoughts regarding this position remind me of John Rawls' work in A Theory of Justice).  It's rather interesting that not just on this forum, but on the political landscape there are a plethora of calls to make government run more like a business (I can just hear Donald Trump shouting now).  So it's obvious that many others believe a government should be as efficient or as effective as possible and that fairness (as well as other principles) should take a backseat, but I guess I believe in a principled/bounded approach that tries to maximize our operating capabilities within that construct.  Essentially, that's the heart of the issue here - what do we believe is the function of government

On April 18, 2016 at 4:12 PM, Vern Edwards said:

I can't help but think that what you call "fairness" is nothing but a political sop that has little if anything to do with good business practice and outcomes. Consider this. GSA just reported in the Federal Register that:

• 5.6% of all FSS contractors received 80% of all sales;
• the top 20% of FSS contractors accounted for 92.5% of FSS sales; and
• only 2.6% of FSS contractors reported more than $1 million in FSS sales.

81 FR 21346, 48; April 11, 2016. Is that evidence of unfairness, or does it indicate that the FSS system is a sump of "fairness" waste? Think what it cost to award and maintain those 20,094 active FSS contracts. What price "fairness"?

This isn't an indictment of "fairness" as much as it is an indictment of execution.  I'll never forget the first time I came across my first wasteful GSA pricelist where I saw the XBOX 360 listed on multiple GSA Schedules for $800 (market price at the time was approximately $300).  Some GSA Contracting Officer made that determination of price reasonableness and I'm fairly certain (or hopeful) that no one purchased that item (or the others with inflated prices) for the $800 it was listed at.  I think it is fair to assume that those contractors likely fell into the bottom 80% that received only 7.5% of all sales, but was that because of fairness or because or poor procurement practices on behalf of GSA Contracting Officers?  I don't think we have to shirk the concept of fairness to improve the GSA outcomes listed above.

On April 19, 2016 at 5:38 PM, Vern Edwards said:

For instance, assuming that competition is a good thing, is it always best to allow all responsible offerors an opportunity to compete, instead of, say, three firms prequalified through market research? Allowing all to compete might be the appropriate when buying commodities at the lowest proposed price, but it might not be appropriate when seeking proposals to fulfill a complex requirement.

Is it always best to rely on the competitive bids or proposals processes when selecting a contractor, with their complex and restrictive rules about proposal evaluation and business communications, or might it sometimes be better to select the contractor based on qualifications and then negotiate contract terms one-on-one with the selectee, as in architect-engineer contracting?

Ever since I read about the second approach (I believe this is the same approach you advocated for performance-based services in the Defense Acquisition Review Journal from 2007) I've been intrigued by it (As an aside, a pilot of this or similar procedures could be done through the competitive 8(a) process if they were revised to allow it).  Still, I don't see how the either approach requires less fairness in the process, they just requires different processes.  Would/should we not ensure fairness during the qualifications phases of these alternative acquisition approaches?

This discussion essentially comes down to a matter of priorities.  I want a more efficient and effective acquisition system as much as the next person, but not at the expense of comprising fairness.

17 minutes ago, Vern Edwards said:

Now, if we want to do business that way for political reasons, well, we're a democratic republic and that's what we'll do. But shouldn't we at least consider the possibility that we'd all be better off if we reconsidered and forsook "fairness" in at least some cases and acted like people running a business? Or is government so fundamentally unbusinesslike that all the talk about "better buying power" is just a lot of hooey?

Vern,

Appreciate the well thought out remarks - while I'm contemplating them (and a response), would you mind clarifying what a/the standard would be for forsaking fairness?  If we're talking about acquisitions as a matter of principle, it'd be nice to know what the alternative might be (sounds like it could be business judgment, but I didn't want to be presumptuous).

1 hour ago, Vern Edwards said:

I'm trying to understand your point. Are you saying that the problem is not with acquisition principles, rules, and procedures, but with workforce execution?

Vern, I've read enough of your work to know better than to say there are no problems with acquisition principles, rules and procedures; however, as I was reading the article you provided I couldn't help but think about the Supreme Court's "least restrictive means" standard when dealing with free speech issues and how a similar standard could/should be applied concerning the principles governing the execution of federal acquisitions.  Whether we like it or not, government contracts are taxpayer funded and, as such, should take public policy objectives into consideration as much as possible - this includes maintaining fairness within in the acquisition system.  I suppose my point is that in trying to improve the effectiveness of said acquisition system, I'd argue we should first concentrate on other means to do so before we start compromising principles of fairness (or others) by creating more exemptions/exceptions.

1 hour ago, Todd Davis said:

While taxpayers expect and deserve a fair contracting system, I suspect they also want the government to spend less on a particular contracting action when they can by negotiating a great deal on their behalf.

Are the two mutually exclusive?  Maybe I misread the article, but it seemed to me like the author was stating that "fairness" was being employed to extract too much information or force too hard of a bargain from industry...

22 hours ago, here_2_help said:

Excellent article -- thanks for sharing the link. It led me to the tentative maxim: "Buy the way you fight."

I'll probably take a lot of flak for the following remarks, but I disagree.  I don't think buying "unfairly" is appropriate when the DoD is funded with taxpayer's dollars and represents approximately 15% of all federal dollars spent and roughly 50% of the discretionary budget (though the exact values vary from year to year, it is pretty clear the DoD represents a considerable portion of the federal budget on average).  As such, we have an obligation to fulfill public policy objectives, which includes maintaining fairness in our processes.  Sure, that introduces inefficiencies into the procurement system, but I'd argue that it's worth it in order to maintain the public's trust (they pay our salaries and for our requirements).

The author of the article posted by Vern states in his concluding paragraph "the problem is that the cultural focus on fairness often prevents the government from buying the right kit from the right supplier at the right price, just because everybody has to be given a fair chance to try for that fair price" (http://www.atlanticcouncil.org/blogs/defense-industrialist/what-does-shay-assad-mean-by-fair-price); however, is the problem truly fairness or could it be an undereducated acquisition workforce, poor requirement(s) development, etc.?  I think as a community we can maintain the former by doing better at the latter.

SAP still provides agility and flexibility in the acquisition process (though you're probably right Boof that the procedures have become more complex since 1998 - that just seems to be the general trend concerning rules and regulations).  When commercial and utilizing SAP, contracting officers can still quickly contract to meet their customers' needs by utilizing the following (to name a few efficiencies):

• FAR 12.603 allows contracting officers to combine the synopsis and solicitation (saves 15 days)
• FAR 5.203(b) allows contracting officers to utilize their business judgment to establish any response time (as long as it affords offerors a reasonable opportunity to respond) for all SAT & commercial buys (saves any number of days chosen < 30)
• FAR 13.106-2 allows a range of efficiencies when it comes to evaluations including the "broad discretion in fashioning suitable evaluation procedures" (FAR 13.106-2(b)(1)) and the ability to "conduct comparative evaluations of offers" (FAR 13.106-2(b)(3)).

On a side note, I also think agencies don't do themselves any favors in regards to keeping acquisitions simple and straight forward.  I've seen many a commercial requirement that could have utilized SAP pursuant to FAR 13.5 (commercial actions above $150k but less than $6.5M), yet the Government conducted a FAR Part 15 Source Selection instead.  While at grad-school, a class-mate and I did some research on the utilization rate based on a data pull from FPDS that spanned approximately 15 months.  Of the number of actions that were eligible for 13.5 Procedures only between 27% and 51% actually utilized them (I can only list a range because there were some anomalies and inconsistencies in the FPDS-NG data that could not be reconciled without pulling each individual file).  I never understood (and still can't) why a contracting officer would needlessly subject him/herself, the customer, and industry needlessly to the more complex, burdensome process of FAR Part 15 rather than utilize FAR Part 13 (when eligible).

1 hour ago, Todd Davis said:

By using the words "display requirements of this section" the FAR is referring to any discussion of display requirements found anywhere in that section (5.101), regardless of what paragraph in that section that display requirements are discussed in.

If what you've stated is true, how does that not exempt oral solicitations from paragraph (a)(1) which is contained under section 5.101?

I understand the argument you're making that the FAR reads "For proposed contract actions expected to exceed $15,000, but not expected to exceed $25,000...the contracting officer need not comply with the display requirements of this section when...oral solicitations are used" and, as such, only applies to oral solicitations within that range; however, I also think it is rather sloppy that the FAR uses the word section because there are a number of display requirements under section 5.101 outside of those at paragraph 5.101(a)(2). 

Also another argument (on your side Todd) might be that display requirements are different from or a specific subset for disseminating information on proposed contract actions, and since 5.101(a)(1) does not use the term display requirements (it is unique to paragraph 5.101(a)(2)) oral solicitations over $25,000 must still be synopsized in the GPE unless otherwise excepted.  Apologies for thinking out loud on both sides of the issue, but I certainly appreciate you engaging in the discussion.

There were two positions in my previous post, one regarding the requirements at 5.101 and the other regarding whether an exception to 5.101 results in an exception to 5.201.  On the first point you state:

1. 16 hours ago, Todd Davis said:

5.101(a)(2) only deals with actions exceeding $15K, but not exceeding $25K...The fact that (a)(1) and (a)(2) are discussed under the same section and same paragraph is not relevant.

I don't necessarily agree with this statement - it's dismissive and doesn't consider the content of the position I presented.  The statement at 5.101(a)(2)(ii) states "section."  According to the arrangement of the FAR, if the FAR wanted to exempt oral solicitations from only the requirements at 5.101(a)(2), would it not have said "paragraph" instead?  I still think this results in a "chicken or the egg" situation.

16 hours ago, Todd Davis said:

The display (in a public place) requirement is different than the synopsis requirement at 5.101(a)(1), which is further covered at FAR 5.2.  

Personally, I agree with this position.  The statement at 5.201 references the "threshold" not the "requirement" at 5.101 and, as a result, I'd argue we consider simply whether a requirement exceeds the dollar value regardless of further exemptions in that section - I was making the point for consideration to see if someone had a different take that they could explain (and maybe someone still does - we shall see).

Let's consider the following FAR excerpts:

Quote

FAR 13.106-1( c ) Soliciting orally

  (1) The contracting officer shall solicit quotations orally to the maximum extent practicable, if--

    (i) The acquisition does not exceed the simplied acquisition threshold;

    (ii) Oral solicitation is more efficient than soliciting through available electronic commerce alternatives; and

    (iii) Notice is not required under 5.101. (emphasis added)

  (2) However, an oral solicitation may not be practicable for contract actions exceeding $25,000 unless covered by an exception in 5.202

Quote

FAR 5.101(a)(2)(ii) The contracting officer need not comply with the display requirements of this section (emphasis added) when the exemptions at 5.202(a)(1), (a)(4) through (a)(9), or (a)(11) apply, when oral solicitations are used (emphasis added), or when providing access to a notice of proposed contract action and solicitation through the GPE and the notice permits the public to respond to the solicitation electronically.

Quote

FAR 5.201(b)(1) For acquisitions of supplies and services, other than those covered by the exceptions in 5.202, and the special situations in 5.205, the contracting officer must transmit a notice to the GPE, for each propose--(i) Contract action meeting the threshold in 5.101(a)(1)

The FAR defines section under 1.105-2(c)(ii) as "Section would be “FAR 9.106” outside the FAR and “9.106” within the FAR" so the above reference in 5.101(a)(2)(ii) seemingly exempts oral solicitations from the display requirements of section 5.101 (does that also exempt it from the threshold referenced in FAR 5.201(b)(1)?).  Then, FAR 13.106-1( c ) only permits oral solicitations when notice is not required under 5.101.  The result seems to be a wonderful "chicken or the egg" argument (or maybe there is clarity somewhere that I'm just missing)...thoughts?

Jamaal,

My mistake for assuming you were taking a position on the issue based on your line of questioning.  I'm certainly not taking anything personally or avoiding pointed questions (the question was quite open/broad) or twisting words (I quoted fairly heavily from the FAR and your posts); still I think this discussion would have been better served had you taken or stated a position one way or the other from the beginning because, as someone that does not think the DoD SSPs take away contracting officers' "wide latitude to exercise business judgment," I (or others) who felt similarly were in a position to try and prove a negative (which is a fallacy in reasoning).  Until someone makes a credible argument that they do, I don't believe there is much discussion to be had regarding that line of questioning.

27 minutes ago, Jamaal Valentine said:

For arguments sake, in your opinion, would the SSP be inconsistent with FAR (a deviation) if FAR permitted evaluating a technical factor without evaluating risk, but now contracting officers shall evaluate risk when evaluating technical factors as outlined in the SSP? If you believe that's a deviation what is the process that should be followed? I have not and am not saying the process was not followed.

Note that the SSP states that its policies supplement existing statutes and regulations.

Of the six criteria for "deviation," I think two are pertinent to your question: 1.401(a) (is it inconsistent with the FAR) and 1.401(e) (does it impose lesser or greater limitations on the use of any policy or procedure prescribed by the FAR).

For 1.401(a), inconsistency is the operative word and one definition is "not compatible with."  Your scenario lacks specificity, so it would depend on the hypothetical FAR language that permits evaluation of a technical factor without evaluating risk as to whether or not the DoD SSPs are inconsistent.  The likely case is that the FAR is silent and broad on what constitutes an appropriate evaluation factor (as it is today) and therefore, the additional specificity in the DoD SSPs wouldn't necessarily represent an inconsistency, but rather more specificity.

In which case, 1.401(e) becomes an interesting discussion.  Requiring the evaluation of risk when evaluating technical factors would likely be a requirement above merely evaluating the technical factor; however, it's impossible to answer this hypo without specific language because the FAR currently states under 15.304( c ) "The evaluation factors and significant subfactors that apply to an acquisition and their relative importance are within the broad discretion of agency acquisition officials, subject to the following requirements..."  In that case, I don't believe it imposes greater limitations because the FAR has already ceded that discretion to the agency officials.

Therefore, because the DoD does not meet either of the relevant two criteria for a "deviation" and because of 15.304( c ) I'd argue that it would not be a deviation needing to follow the process.  As for the process that should be followed, I know from reading your posts on Wifcon that you're smart enough to have already drilled down to the DFARS, AFFARS or whatever agency supplement applies to your organization and that you're likely asking as a matter of practice.  Unfortunately, I cannot help you there as I have not had to process a deviation before.  Happy hunting for someone who has!

3 hours ago, Jamaal Valentine said:

There were two questions. You appear to have provided a response to one so I'll discuss that further if you outline - what are the standards in FAR 1.401(a),(e), and (f) referring to if not FAR, etc.?

Asking another question does not make an argument.  I agree that the standards in FAR 1.401(a), (e), and (f) are referring to the FAR (after all they explicitly state as much), but that does not mean that FAR 1.602-2 is some sort of trump card that results in regulations or procedures (in this case the DoD SSPs) requiring deviation authorization or publication.  In regards to whether or not the DoD SSPs require(d) as much...:

• For (a) you need to provide an argument showing that the DoD SSPs are "inconsistent with the FAR."
• For (e) you need to provide an argument showing that the DoD SSPs authorize "lesser or greater limitations on the use of any solicitation provision, contract clause, policy, or procedure prescribed by the FAR."
• For (f) you need to provide an argument showing that issuance of the DoD SSPs are not "in accordance with 1.301(a)."  Here, Don Mansfield has provided the criteria in the above post for consideration.

Such arguments would warrant a meaningful discussion regarding the merits of how the DoD SSPs came to be (after all, whether or not the DoD SSPs even impede on the amount of latitude contracting officers have in exercising business judgment has yet to be shown, it has only been inferred by referencing 1.602-2).  Also, it may be worth nothing that 1.602-2 merely states "contracting officers should (emphasis added) be allowed wide latitude to exercise business judgment" versus shall.

2 hours ago, Jamaal Valentine said:

Does the DFARS PGI 215.300 (Source Selection Procedures) infringe on the wide latitude contracting officers are afforded by FAR 1.602-2? If yes, have the requirements in FAR 1.401, 1.301, and 1.404 been considered and/or complied with?

I've already offered an example, above, of how prospective offers can be affected by the procedures in the guide.

Just wondering how these things come to pass and if any of the above is applicable to publishing a PGI or similar internal policy.

Infringement "on the wide latitude contracting officers are afforded by FAR 1.602-2" is not the standard for whether or not the requirements of FAR 1.401, 1.301, and 1.404 need to be considered and/or complied with.  For deviations we have a definition (which you reference at 1.401) and nowhere within the six standards for "deviation" is 1.602-2 mentioned.  1.602-2 is also absent from FAR 1.301, where the consideration is instead whether or not the SSPs are an agency acquisition regulation (1.301(a)(1)) that meets the standard for publication for public comment.

If you want to make an argument that DFARS PGI 215.300 meets one of those standards, let's discuss that instead of a standard that isn't present in any of the FAR references you state should have been considered and/or complied with.

Just stopping by to share an interesting read (via Politico) regarding the current pricing environment in the Department of Defense.  Enjoy and looking forward to the discussion!

http://www.politico.com/story/2016/04/defense-pentagon-spending-assad-221776

Vern, I know you said you wouldn't discuss this matter further with anyone, but I'm interested whether or not the use of numerical scoring (back in the 1970s/1980s or even today) prompts protests during the solicitation phase with potential offerors arguing that the numerical scoring system chosen "stacks the deck" against them (or in favor of another offeror)?  I'm not asking the question to imply that a potential increase in protests during the solicitation phase would be a reason to forego the use of numerical scoring due to the fear of protests, I'm merely curious.  Also, thanks for the reference to scholarly material regarding numerical scoring/decision making - I hope you'll make an exception to your declaration not to discuss this topic anymore.

If you're not willing to discuss numerical scoring (or even if you are), would you be willing to discuss your vision for Source Selection Procedures that provide helpful guidance for the DoD contracting workforce?

2 hours ago, Jamaal Valentine said:

It looks like performance and price tradeoff with a pass/fail technical factor is no longer an option. This should be corrected.

Considering risk for all evaluations involving technical, with the exception of LPTA, doesn't always make sense and can complicate simple technical factors such as experience. This should be corrected.

I've read through the updated DoD SSPs (admittedly only once, so I may have missed it), but I don't see any language prohibiting the use of performance and price tradeoff with a pass/fail technical factor.  Could you reference the section/paragraph that does?

In fact, I think the language under section 1.3  (pg. 2-3) still allows the use of the technique (emphasis added below):

Quote

This document describes source selection processes and some techniques that may be used to design competitive acquisition strategies suitable for the specific circumstances of the acquisition including: Value Adjusted Total Evaluated Price (VATEP) tradeoff source selection process with monetized adjustments included in the evaluated price for specific enhanced characteristics; tradeoff source selection process with subjective tradeoffs; and lowest price technically acceptable (LPTA) source selection process.  These are not the only source selection processes available on the best value continuum.  SSTs should carefully consider and use the approach that is most appropriate for their acquisition.

In other words, just because the DoD SSPs are silent on that particular technique, barring any language within the SSPs prohibiting the use of the technique it appears to be permissible.

Use of VATEP is optional so I don't buy the concern regarding distrust at the higher levels.  Furthermore, according to the guidance, the purpose is not merely to "[take] some of the subjectivity out of the best value evaluation" but also (according to the preceding sentence) to "[provide] the offeror information to determine if the additional cost of offering better past performance will put the offeror in a better position in the source selection" (1.3.1.4).  This method is just another tool in the toolbox - if the acquisition team decides that giving away subjective tradeoff flexibility is in the best interest of the Government so that offerors are more informed regarding the value of higher technical performance, I don't see how that is inherently bad.

thecontractingguy - you need to be more specific on what procedure you're using or anticipating - your $100k commercial service could be acquired in a number of ways: via a Federal Supply Schedule IAW FAR Subpart 8.4, via the open market IAW FAR Part 13, via an IDIQ IAW FAR 16.505 (and the IDIQ's specific ordering procedures), etc.  Maybe the reason why you're not getting a clear answer is that you're not asking a clear question.

46 minutes ago, jwomack said:

If I worked for that General I’d be drafting a sole source justification.  I’m pretty sure he’d sign off.

I don't recall this standard (Chief of Staff's signature) as one of the circumstances permitting other than full and open competition...

It seems that we aren't even doing the best we can with the acquisition system that we've been given.  After reading about this requirement a couple of weeks ago I could not reconcile the approach the Government is taking with what I've read in the FAR, particularly the following:

FAR 1.102 (b) "The Federal Acquisition System will -- (1) Satisfy the customer in terms of cost, quality, and timeliness of the delivered product or service by, for example -- (i) Maximizing the use of commercial products and services..."

FAR 7.102 (a) "Agencies shall perform acquisition planning and conduct market research for all acquisitions in order to promote and provide for -- (1) Acquisition of commercial items or, to the extent that commercial items suitable to meet the agency's needs are not available, nondevelopmental items, to the maximum extent practicable (10 U.S.C. 2377 and 41 U.S.C. 3307)"

FAR 12.101 "Agencies shall -- (a) Conduct market research to determine whether commercial items or nondevelopment items are available that could meet the agency's requirements; (b) Acquire commercial items or nondevelopmental items when they are available to meet the needs of the agency..."

I've read case studies of past procurements where the Government found itself in a poor position by stretching the definition of "commercial item" to use FAR Part 12 procedures (http://www.dodig.mil/audit/reports/FY06/06-115.pdf).  Here the Government appears to be doing the opposite.

FAR 12.102(b) applies to "the policies and procedures for solicitation, evaluation, and award" while FAR 12.207 applies to "making a change" which occurs post-award.  As such, I don't see how FAR 12.102(b) precludes FAR Part 12 from cross-referencing readers to FAR Subparts 8.4 and 16.5.  If the point you're trying to make is that FAR 12.102(b) should restrict any references to Parts other than 13, 14, or 15, I think FAR 12.102(c) would address that concern (as another poster already pointed out).

What alternative are you proposing for the contractor to submit the requested/required documents? Having just dealt with issues regarding the transmission of sensitive and proprietary information from Contractors it makes sense that they have concerns over the medium in which they are delivered (especially if you're just requesting they email them to you). As a potential solution to your problem, I've had great experiences with AMRDEC SAFE, which is a secure file transfer system for US Government related business. Everything you need to know about it can be found at https://safe.amrdec.army.mil.