Legislation Takes Aim at Federal Contracting Process
A recent bill introduced by Representatives Mark Meadows (R-NC) and Don Beyer (D-VA) would modify the federal contracting process, aiming to cut back on incessant use of lowest-price technically acceptable (LPTA) in procurement proceedings.
Under LPTA, agencies quite literally make procurement decisions on the basis of what meets a “technically acceptable” standard while also being the “lowest-priced” bid. While this can help to mitigate some egregious examples of waste, critics of a broad application of LPTA argue that cost should not be the chief consideration in all federal procurement matters and that recent years have seen a concerning spike in the use of LPTA.
Rep. Beyer explained the bill’s rationale: “Price should not be the sole deciding factor when the federal government is purchasing complex, innovative information technology and engineering systems, where the least expensive option often may not lead to the best long-term value. We can help spur innovation by allowing contractors for certain high-tech procurements to compete on the strengths of their products, not the cost.”
The Promoting Value Based Procurement Act (H.R. 3019 ) would apply the standards already in place at the Department of Defense (DOD) to other civilian agencies, outlining specific instances in which an LPTA procurement decision would be acceptable. Those criteria are:
(1) an executive agency is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
(2) the executive agency would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;
(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the executive agency;
(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
(6) the executive agency has determined that the lowest price reflects full life-cycle costs, including for operations and support.
The legislation also addresses the flipside of the equation, stating that “To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—
(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;
(2) personal protective equipment; or
(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
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