In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government’s use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evaluation when technical factors are more important than price, and demonstrate the potential cost/technical trade-offs under these circumstances.
Often regarded as one of the simplest acquisition methods, Lowest Price Technically Acceptable (LPTA) procurements award the contract to the offeror that both meets an agency’s technical requirements and offers the lowest price. Yet when the Army set out to acquire a replacement for an existing Indefinite Delivery/Indefinite Quantity (IDIQ) contract through an LPTA procurement, things got complicated. In fact, a whopping 21 companies ended up protesting at GAO. When the army tried to correct the problematic procurement with corrective action, the original awardees took the case to the COFC. But it didn’t end there, and the case eventually made its way to the Court of Appeals for the Federal Circuit (CAFC). The zigzagging case sets a precedent for whether an agency must narrowly tailor corrective action to fit a procurement’s perceived flaw or if the corrective action need only be rationally related to that flaw. Continue reading “Recent Protest of Army Acquisition Has Big Implications for Future Corrective Actions”
The Federal Acquisition Streamlining Act (FASA) requires that Federal agencies seriously consider whether existing commercial items will meet their acquisition requirements before seeking to develop new technologies. In a recent case, Palantir Technologies protested when the Army failed to consider commercial technologies for its second-generation Distributed Common Grounds System (DCGS-A) intelligence system. Read on to learn why the COFC’s ruling may set a precedent for more protests from commercial vendors.
The National Defense Authorization Act (NDAA) is the name for a series of annual laws laying out the Department of Defense’s (DoD) budget for its various programs and activities. It also is a favorite vehicle for Congress to legislate how it wants DoD to operate (a companion bill, the Appropriations Act, actually funds the Department). As Congress debates the 2019 NDAA, the DoD continues to tackle tasks from previous bills. Three recent developments stemming from earlier NDAAs may be of particular interest to Defense contractors. Continue reading “A Debrief on the Latest DoD Regulatory Developments”
The Federal Government is amping up its efforts to mitigate threats to cybersecurity. You might think that the Department of Homeland Security would be the agency concerned with mitigating risk stemming from cyber threats. But a recent case at the Court of Federal Claims (COFC) shows that Government’s preoccupation with cybersecurity extends to all agencies. In this case, the Social Security Administration (SSA) needed new printers, but was determined to avoid supply chain risks that they felt one bidder’s offer posed. The COFC sided with the agency in this case, which raises the question whether the Federal Government should centralize such decisions. Continue reading “What Happens When the Government Perceives a Cybersecurity Risk in Your Supply Chain”
Companies who’ve lost out on a contract award can seek more information by requesting a debriefing, a post-award explanation of why they failed to secure a contract, with an opportunity to pose questions. But debriefings don’t always reveal enough information. Now, thanks to the 2018 National Defense Authorization Act (NDAA), DoD agencies must provide enhanced debriefings with the goal of helping bidders get more information sooner after learning they’ve lost a contract. How will enhanced debriefings affect the landscape of Defense acquisition, and does the new requirement pave the way for more meaningful debriefings for all FAR procurements?
A competitor protested when an Energy Department (DoE) contract awardee proposed an unusual plan for processing radioactive liquid waste. Given the apparent riskiness of the winner’s proposition, it’s not surprising that GAO sustained the protest. What is surprising (and remains a mystery) is how the agency assessed the winning proposal’s technical approach as sound. Read on to learn how one protestor succeeded because of an agency’s murky evaluation.
A pair of large contracts for administrative services with the Centers for Medicare & Medicaid Services (CMS) are great but two pairs are better. In a recent case, National Government Services, a company holding multiple contracts with CMS, protested when agency rules prevented them from competing for several more. Ultimately, the agency was able to successfully defend the limitations written into their solicitation, and the case provides a template for other agencies that may find themselves in similar circumstances.
The Section 809 Panel, created in section 809 of the FY 2016 National Defense Authorization Act (NDAA), is charged with recommending improvements to the defense acquisition process. In January 2018 the panel released their first volume of three, which provides guidance for simplifying the DoD procurement process in ways that could benefit contractors. Their insights shed light on the obstacles contractors face, and pave the road for changes in law to help overcome them. Continue reading “Section 809 Panel Urges DoD And Congress to Ease Compliance Burden on Commercial Item Contractors”
When DoD sought restrictions on bid protests, Congress had them commission a study to prove their case. DoD then hired the RAND Corporation to study bid protests during the 9-year period from 2008-2016. The study indicates a significant increase in the number of bid protests over that time period. That trend alone bolsters the DoD’s case. But a further look at the extensive data from RAND’s study suggests otherwise, and provides critical insights for Defense contractors.