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Ensuring best value in procurement

Division A · Title VIII: Acquisition Policy, Acquisition Management, and Related Matters · Subtitle A: Acquisition Policy and Management

Plain-language summaryAI

The bill sets rules for when the government, including the Department of Defense, can use a procurement method called "lowest price technically acceptable," which selects the cheapest offer that meets minimum requirements. It requires clear justification for using this method and limits its use to cases where higher-priced proposals would not provide significant added value, especially avoiding it for complex services like IT, cybersecurity, or protective equipment. These rules aim to ensure that cost and quality tradeoffs are properly considered in government contracting.

AI-generated from this section’s text — a quick orientation, not a substitute for the full text below. Not legal advice.

Section Text · Sec. 802.
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(a) Codification of use of lowest price technically acceptable source selection process

(1) Title 10

Chapter 223 of title 10, United States Code, is amended by inserting after section 3243 the following new section:

3244. Use of lowest price technically acceptable source selection process

(a) Statement of policy

It shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.

(b) Regulations

The Secretary of Defense shall ensure the Defense Federal Acquisition Regulation Supplement requires that lowest price technically acceptable source selection criteria are used only in situations in which—

(1)

the Department of Defense 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 Department of Defense 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 Department;

(5)

the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file;

(6)

the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support;

(7)

the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and

(8)

with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.

(c) Avoidance of use of lowest price technically acceptable source selection criteria in certain procurements

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.

(2) Title 41

(A) In general

Chapter 47 of title 41, United States Code, is amended by inserting after section 4714 the following new section:

4715. Use of lowest price technically acceptable source selection process

(a) Statement of policy

It shall be the policy of the United States Government to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.

(b) Regulations

The Federal Acquisition Regulatory Council shall ensure the Federal Acquisition Regulation requires that lowest price technically acceptable source selection criteria are used only in situations in which—

(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 executive agency 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.

(c) Avoidance of use of lowest price technically acceptable source selection criteria in certain procurements

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, health care services and records, telecommunications devices and services, munitions response 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.

(d) Definitions

In this section:

(1) Executive agency

The term executive agency has the meaning given that term in section 102 of title 40, except that the term does not include the Department of Defense.

(2) Contingency operation

The term contingency operation has the meaning given that term in section 101 of title 10.

(B) Clerical amendment

The table of contents for such chapter is amended by inserting after the item relating to section 4714 the following new item:

(b) Ensuring best value in procurement

Section 152(3)(B) of title 41, United States Code, is amended by striking lowest overall cost alternative and inserting best value .

(c) Conforming repeals

(1) Department of Defense requirement

Section 813 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 3241) is repealed.

(2) Government-wide requirement

Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 ( 41 U.S.C. 3701 note) is repealed.