Georgia Tech Procurement Assistance Center

LPTA solicitations no longer acceptable? Reviewing DoD’s proposed changes to the DFARS

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In a proposed rule issued last month, the Department of Defense (DoD) seeks to incorporate into the Defense Federal Acquisition Regulations Supplement (DFARS) restrictions on the use of the lowest price technically acceptable (LPTA) source selection method from the National Defense Authorization Act (NDAA) for Fiscal Years 2017 and 2018.  This proposed rule makes clear that these NDAA-imposed restrictions are not going away any time soon, and that DoD contracting officers need to engage in a thorough and reasoned analysis before conducting an LPTA procurement.

Just as its name suggests, the LPTA source selection process prioritizes cost or price over technical capability — the agency will make award to the lowest-priced offeror that presents a technically acceptable proposal.  Typically, agencies use the LPTA process to procure straightforward goods and services such as routine maintenance work or office equipment.  In recent years, however, contractors have complained that agencies employ LPTA selection processes in inappropriate circumstances where qualitative differences really matter and technical superiority is worth a price premium.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/12/lowest-price-technically-acceptable-solicitations-no-longer-acceptable-reviewing-department-defenses-proposed-changes-dfars/

GAO: DoD should clarify criteria for using LPTA

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Although Congress has restricted when the Dept. of Defense (DoD) might use lowest-price technically-acceptable (LPTA) contractor selection criteria, the Department has not followed this mandate.

Note: This article was written by Matthew Schoonover of Koprince Law, LLC and first appeared in SmallGovCon.

A recent GAO report highlights DoD’s struggle.  As of September 2018, DoD has not yet revised its regulations to reflect certain statutory restrictions against LPTA awards and, as a result, DoD contracting officers believe they are not yet required to follow these new requirements.

Candidly, I’m not so sure. But in any event, GAO’s report issued a couple of recommendations to help DoD fully implement the restrictions against LPTA procurements.

Let’s take a look.

Keep reading this article at: http://smallgovcon.com/statutes-and-regulations/gao-report-lpta/

Booz Allen wins corrective action from GSA on Army software contract

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The General Services Administration must reimburse global contractor Booz Allen Hamilton for the costs of a recent bid protest due to delays in agency responses, the Government Accountability Office determined.

In a decision from its general counsel dated May 7 but released only in redacted form last week, the congressional watchdog ruled in Booz Allen’s favor in two of three provisions of its complaint against competitor Raytheon over computer resource engineering support for the Army’s Software Engineering Directorate.

The cost-plus, fixed-fee task order for the contract solicited in December 2016 was worth between $582 million and $690 million and was limited to the firms in GSA’s One Acquisition Solution for Integrated Services (OASIS) pool for indefinite-delivery, indefinite-quantity contracts. “The contracting officer, who was also the source selection authority, selected Raytheon’s proposal for award based on its total assessed value,” which was lower than that of Booz Allen, the ruling noted.

Keep reading this article at: https://www.govexec.com/contracting/2018/06/booz-allen-wins-corrective-action-gsa-army-software-contract/148906

New debriefing rules in effect for DOD contractors

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As discussed in an earlier post about the NDAA for FY 2018, one of the most significant changes with respect to procurement issues may be related to the DoD’s conduct of debriefings.

Perhaps missed in the discussions of a potential new protest regime going into effect in a couple years is the fact that one of the most significant debriefing changes is effective immediately without the need for a new regulation.

Specifically, Section 818 of the NDAA required that DoD agencies provide disappointed offerors with an opportunity to ask follow-up questions “within two business days after receiving a post award debriefing” and provided that the “5-day period” associated with the timeline for a CICA stay “does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted” pursuant to the new rule. Because these provisions of the NDAA amended the underlying statutes (10 U.S.C. § 2305 and 31 U.S.C. § 3553) instead of requiring the Secretary to amend the DFARS, these rules went into effect upon the signing of the NDAA. In fact, in a few cases since the NDAA went into effect, we have seen DoD agencies agree that the new rules are in effect.

So, what do contractors need to know?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=674748

Unstated evaluation criteria and waived solicitation requirements

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This week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements.

In each, the focus of the protest is on what was required (or not required) by the solicitation and whether the agency’s evaluation was consistent with the information provided to offerors in the solicitation.

  • Unstated Evaluation Criteria – Under an unstated evaluation criteria theory, the protester must show that it was faulted for a weakness, or the awardee was credited with a strength, that has no logical relation to the stated evaluation criteria.
  • Waived or Relaxed Requirements – While an unstated evaluation criteria protest ground may concern an agency’s application of a requirement that does not exist in a solicitation, the waived or relaxed requirement protest ground involves the agency’s failure to apply a solicitation or specification requirement.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=642102

The top 10 government contracting compliance headaches in 2017

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In the government contracting industry, compliance related issues tend to take place.  With administration and party changes, 2017 promises to offer additional complexities.

Confusion amongst government contracting professionals includes: compliance with the Service Contract Labor Standards, DoD source selection procedures and cybersecurity requirements. In addition to keeping your company in line and compliant with the expanding rights of government contractors, budget uncertainty, provisions of the NDAA and bid protests should also be addressed.  Although more compliance issues may arise, it is essential to give attention to the policies that influence government contracting.

See full article published in Contract Management magazine here: http://www.jdsupra.com/legalnews/the-top-10-government-contracting-13317/

GAO tackles cybersecurity

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GAO-GovernmentAccountabilityOffice-SealIn two recent decisions, the Government Accountability Office (GAO) denied protest grounds challenging the ability of contract awardees to satisfy government requirements related to cybersecurity.  This posting analyzes those decisions and their implications for contractors.

  • In Discovery Technologies LLC, GAO denied a protest challenging the awardee’s ability to comply with the Federal Information Security Modernization Act (“FISMA”).  The solicitation, issued by the Food and Drug Administration (“FDA”) under FAR Subpart 8.4 for GSA Schedule 70 vendors, stated “[t]he Contractor shall be familiar and comply with applicable federal information technology and information management laws, regulations, policies, and standards.”
  • In Booz Allen Hamilton, Inc., GAO denied a protest challenging the Navy’s evaluation under a task order procurement for cybersecurity support.  Among the protester’s challenges was an allegation that the awardee should have received a lower technical score based on its lack of experience in certain areas related to cybersecurity.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=507776

Technology company lambastes Army over $206 million contract bidding

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Army - CopyPalantir Technologies, Inc. has sent a letter to the U.S. Army saying it intends to sue over the way the Army solicits bids for its data intelligence technology used on battlefields worldwide.

Palantir claims the Army’s solicitation is “unlawful, irrational, arbitrary and capricious,” according to the letter of intent Palantir sent to the U.S. Army and the Department of Justice, which was obtained by Bloomberg.  The letter is a legal courtesy, which states Palantir will file a formal protest in the U.S. Court of Federal Claims next week and requests the Army delay awarding the first phase of the contract until litigation is resolved. The contract is slated to be awarded by the end of 2016.

Palantir declined to comment on the case, and the Army did not immediately respond to a request for comment.

Co-founded in 2004 by Peter Thiel, Palantir makes software that finds patterns in complex data to aid in decision making. The tools have been used to help detect human sex traffickers, analyze the cholera outbreak in Haiti and convict white collar criminals.

Keep reading this article at: http://www.stripes.com/news/us/palantir-lambastes-army-over-206-million-contract-bidding-1.415593

Contracting success in a changing government environment

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Behind many contracting issues today is the implied topic of who is or isn’t winning contract awards. In the private sector, it’s rare to attribute lack of business success to the customer. Certainly in a commercial market, industry success and failure is usually laid at the feet of company management and its ability to understand and meet market needs. Not so in government contracting.

Along with well-structured protest procedures, industry can and does appeal to government legislative representatives, investigatory bodies, contracting managers, trade groups, and agency leaders concerning any real or perceived unfair treatment before, during, or after contract performance. One regularly hears rationale that the buyer, not the seller, was at fault for lost business and revenue. It’s common practice, if not encouraged by government, for industry to openly critique customer policy, processes, strategy, requirements, and staff. These critiques include time of awards; market conditions; workforce training; communication; sensitivity to private sector concerns; selection methodology; risk mitigation; receipt of external advice (program, technical, incumbents, business, legal, trade groups, etc.); past performance criteria; and more. That’s the nature of an open and fair process.

Keep reading this article at: http://www.federaltimes.com/story/government/acquisition/blog/2015/02/25/contracting-success-changing-government-environment/23993719/

Get a contracting plan in place early

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When contracting fails, there are several common reasons offered: the source selection and bid protest requirements; onerous acquisition regulations; an understaffed, poorly trained workforce. However, many contracting officers can relate to significant delays during the planning phase, particularly to difficulties obtaining an acquisition plan (AP).

Often it’s developed well after the contracting request for action. When this occurs, it places contract managers in the unenviable position of delaying RFP release, thus risking agency funding, but more importantly, jeopardizing mission success. The alternative is to jump into a contracting process with ambiguous goals or results. Thus, for all the debate about the effectiveness of government contracting, the success or failure of programs involving government contracting is actually determined very early, often unfortunately before the contracting officer’s involvement—that is, during acquisition planning.

Eyes glaze over when someone references the Federal Acquisition Regulation (FAR), and many are on record as wanting to modify, reduce, or even abolish it. However, the FAR’s Part 7 acquisition planning guidance provides a great roadmap to all the many considerations necessary before satisfying a government need via contract. The program office must take non-delegable responsibility to figure out what, why, when, where, and how they will obtain acquired resources to support their goals. This shouldn’t be another paperwork drill, completed by support contractors or the contracting officer and subsequently filed away. However, that sometimes is the case.

Keep reading this article at: http://www.federaltimes.com/article/20140814/BLG06/308140006/Get-contracting-plan-place-early

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