FAR Update Will Limit use of LPTA in Non-DOD Procurements

A quick update on a proposed FAR rule that will put in place restrictions on use of lowest-price, technically acceptable (LPTA) solicitations in non-DOD agencies, as mandated in the 2019 NDAA. There are a few differences from the similar rule that recently went into effect for DOD.

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DoD Finalizes Restrictions on Use of LPTA Source Selection Process

Effective October 1, DoD has issued a final rule restricting the use of LPTA solicitations in certain circumstances. This rule implements statutory changes from the 2017 and 2018 NDAA that will greatly impact the use of LPTA procurements by DoD contracting officers.

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GAO: DOD Should Clarify Criteria for Using LPTA

Over the last few years, SmallGovCon has covered the Congressionally-mandated march away from use of lowest-price technically-acceptable procurements at the Department of Defense. But although Congress has restricted when DOD might use LPTA criteria, the Department has not followed this mandate.

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.

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GAO: Past Performance Evaluation Not Required In LPTA Set-Aside Competition

An agency was not required to evaluate past performance under an SDVOSB set-aside solicitation that contemplated making award to the lowest-price, technically-acceptable offeror.

According to a recent GAO bid protest decision, a past performance evaluation in the context of an LPTA set-aside is essentially duplicative of the agency’s evaluation of responsibility, meaning that a separate past performance evaluation isn’t necessary.

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2018 NDAA Bans Some LPTA Procurements

In 2017, Congress placed limits on the utilization of Lowest-Price Technically-Acceptable procurement procedures in Department of Defense acquisitions.

The 2018 National Defense Authorization Act continues this trend by completely prohibiting the use of LPTA procedures for certain major defense acquisition programs.

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Limitations On Subcontracting: “Affirmative Demonstration” Of Compliance Not Required

An offeror submitting a proposal for a set-aside solicitation ordinarily need not affirmatively demonstrate its intent to comply with the applicable limitation on subcontracting.

In a recent bid protest decision, the GAO confirmed that an offeror’s compliance with the limitations on subcontracting is presumed, unless the offeror’s proposal includes provisions that negate that presumption.

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SmallGovCon Week In Review July 11-15, 2016

I’m back in the office after a week-long family beach vacation around the 4th of July.  Kudos to my colleagues here at Koprince Law for putting out last week’s SmallGovCon Week In Review while I was out having some fun in the sun.

This week’s edition of our weekly government contracts news roundup includes a prison term for an 8(a) fraudster, a Congressional focus on full implementation of the Supreme Court’s Kingdomware decision, the release of an important new FAR provision regarding small business subcontracting, and more.

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