GAO Finds Agency’s Technical Evaluation Inadequate, but Refuses to Invalidate Award

Leasing office space in a flood plain seems like a bad idea. Most people want an office with a view, but not a view of their office desk floating down a first-floor hallway. In a recent protest decision, GAO said that the agency failed to adequately document its evaluation, despite its own solicitation requirements.

But even when your protest is sustained, GAO may still recommend the award remain in place. How can that be? Follow along, while I lead you through what you need to know.  

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Contractor’s Creative Staffing Proposal Leads to Elimination from Competition

In the competitive federal marketplace, businesses are always looking for ways to make their proposals more competitive. With millions of dollars at stake, it is no surprise that some competitors develop clever approaches to give their proposal a competitive edge.

As one competitor recently discovered, however, there is a point where an offer can get too clever, which may result in proposal elimination. Especially when an agency views the clever approach as violating a solicitation staffing requirement.

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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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“Eliminate Most DoD Small Business Set-Asides,” Says Section 809 Panel

The Section 809 Panel has recommended that Congress eliminate most small business set-asides for DoD acquisitions. The Panel would replace the longstanding set-aside system with a meager five percent small business price preference.

For small government contractors, this recommendation is the policy equivalent of a five-alarm fire. Small contractors may need to fight hard to save the set-aside system.

Get ready for a battle.

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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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2017 NDAA Restricts DoD’s Use of LPTA Procedures

The 2017 NDAA is full of important changes that will affect federal contracting going forward. As Steve wrote about earlier this week, some of these changes relate to government contracting programs (like the SDVOSB program). Still others relate to how the government actually procures goods and services.

One of these important changes severely limits the use of lowest-price technically-acceptable (“LPTA”) evaluations in Department of Defense procurements. Following the change, “best value” tradeoffs will be prioritized for DoD acquisitions. This post will briefly examine when LPTA procurements will and won’t be allowed under the 2017 NDAA.

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