NDAA | The Contracting Education Academy

March 12, 2019 By cs

2019 NDAA analysis: Commercial item contracting

The 2019 NDAA contains several provisions reforming commercial item contracting.

As discussed below, these changes include: 1) revision of the definition of commercial items for purposes of federal acquisition statutes; 2) limitations on the applicability to U.S. Department of Defense (DoD) commercial contracts of certain provisions of law; 3) modifications to procurement through commercial e-commerce portals; and 4) review of federal acquisition regulations on commercial products, commercial services, and commercially available off-the-shelf items.

**The “Contracting Cone” shows the full spectrum of available FAR and non-FAR contract strategies.**

Several federal acquisition statutes and regulations exist that impact commercial item contracting. The two most prominent examples are the Federal Acquisition Streamlining Act (FASA) and Part 12 of the Federal Acquisition Regulation (FAR). Before Congress passed FASA in 1994, many contractors did not conduct business with the U.S. government due to demanding terms and conditions and additional costs or risks associated with government specifications. FAR Part 12 establishes a mandatory preference for the U.S. government to purchase products and services available in the commercial marketplace using commercial terms and conditions. From time to time, Congress revises these statutes and regulations in response to shifts in policy considerations and market conditions.

The 2019 NDAA works again to reform commercial item contracting. These revisions are important for government contractors operating in the commercial item contracting space to know.

Keep reading this article at: https://www.jdsupra.com/legalnews/2019-ndaa-analysis-commercial-item-15566/

January 17, 2019 By cs

DoD’s long-awaited LPTA regulations expected in 4th quarter of FY19

For a number of years now, Lowest Price Technically Acceptable (LPTA) source-selection procedures have come under fire for overuse and misuse at the same time budget constraints make LPTA methods more enticing to some cash-strapped agencies.

In an LPTA procurement, the Government evaluates proposals for mere technical acceptability under the solicitation’s stated evaluation criteria. Of the technically acceptable proposals received from eligible offerors, the Government then awards the contract to the lowest-price proposal, without considering any additional value that more expensive proposals may provide. In an LPTA acquisition, it does not matter that the second least expensive proposal may have three times more technical merit than the lowest-price technically acceptable proposal. Even if that technically superior proposal is only a dime more expensive, the Government is required to make the award to the acceptable proposal that is ten cents cheaper.

Some of you may remember that, way back in 2016, Congress passed the National Defense Authorization Act (NDAA) for 2017, requiring the Department of Defense (DoD) to revise the Defense Federal Acquisition Regulation Supplement (DFARS) within 120 days to require DoD contracting officers to ensure six criteria are satisfied before issuing a solicitation on an LPTA basis.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=767110

December 21, 2018 By cs

Civilians are cheaper than contractors for most Defense jobs, internal report finds

Most jobs in the Defense Department are cheaper with civilian employees as compared to contractors, according to an internal Pentagon report, though the cost comparisons differ based on location, pay grade and job function.

Civil service workers are most likely to be less expensive than contractors performing the same work in the Washington, D.C. region and in the Southeastern United States, the report compiled by the Office of the Secretary of Defense found. More than 75 percent of comparisons in the Southeast the Pentagon ran between government and contract workers showed a higher cost for the private sector, and the capital region was not far behind. Government Executive obtained the never-before reported on document through a Freedom of Information Act request.

In 10 broad job groups the Defense Department studied, contractors came in as the pricier option. That compared to just four in which civilians were more expensive. When divided by Defense component the breakdown was essentially split, though three organizations had 75 percent of comparisons higher for contractor costs and just one saw the reverse.

Keep reading this article at: https://www.govexec.com/management/2018/12/civilians-are-cheaper-contractors-most-defense-jobs-internal-report-finds/153656

December 7, 2018 By cs

DoD moving away from LPTA for IT acquisitions

The Department of Defense (DoD) published a new proposed rule in the Federal Register on Tuesday of this week that follows through on legislation to remove the lowest price technically acceptable (LPTA) acquisition methodology from IT and cybersecurity acquisitions, in favor of the tradeoff source selection process.

The proposed rule, open to comment until Feb. 4, 2019 would be implemented in the Defense Acquisition Regulation Supplement (DFARS), and is based on both the 2017 and 2018 National Defense Authorization Acts (NDAAs), which include language to define when LPTA is to be used.

While initially passed as part of Section 813 in the 2017 NDAA, the 2018 NDAA included some amendments to define when LPTA should be used.

Keep reading this article at: https://www.meritalk.com/articles/dod-moving-away-from-lpta-for-it-acquisitions/

See Proposed Rule by the Defense Acquisition Regulations System on 12/04/2018 here: https://www.federalregister.gov/documents/2018/12/04/2018-26306/defense-federal-acquisition-regulation-supplement-restrictions-on-use-of-lowest-priced-technically

November 28, 2018 By cs

Pentagon lags on policing lowest price, technically acceptable contracts

Two years after Congress required clearer criteria on when the Defense Department could issue lowest price, technically-acceptable (LPTA) contracts, Pentagon contracting officers still lack adequate written guidance, the Government Accountability Office (GAO) concluded in a recently released audit.

Under the fiscal 2017 National Defense Authorization Act (Section 813), the department is required to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to reflect eight criteria that justify the sometimes-controversial use of LPTA’s for awards of $5 million or more. (The requirements governing their use were expanded in the fiscal 2018 version.)

***FAR Part 15 describes the use of several competitive source selection*** ***processes to meet agency needs, which include the LPTA process and*** ***tradeoff process on a best value continuum.***

Though this type of contract can be efficient and quick for obtaining supplies and services, competing contractors often complain that the vehicle can short-change quality.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2018/11/pentagon-lags-policing-lowest-price-technically-acceptable-contracts/152955/

The 2019 NDAA contains several provisions reforming commercial item contracting.

For a number of years now, Lowest Price Technically Acceptable (LPTA) source-selection procedures have come under fire for overuse and misuse at the same time budget constraints make LPTA methods more enticing to some cash-strapped agencies.

Most jobs in the Defense Department are cheaper with civilian employees as compared to contractors, according to an internal Pentagon report, though the cost comparisons differ based on location, pay grade and job function.

Two years after Congress required clearer criteria on when the Defense Department could issue lowest price, technically-acceptable (LPTA) contracts, Pentagon contracting officers still lack adequate written guidance, the Government Accountability Office (GAO) concluded in a recently released audit.

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