In the latest issue of The Wright Toolbox:

• Trying to Combat the Race to the Bottom, the DOD Limits LPTA Contracting Method – read now
• 5 Tips to Address and Prevent Workplace Violence – read now

TRYING TO COMBAT THE RACE TO THE BOTTOM, THE DOD LIMITS LPTA CONTRACTING METHOD

by Michael A. Stover

On October 1, 2019 a DOD final rule limiting the use of the Lowest Price Technically Acceptable (“LPTA”) contract award method became effective.  See Defense Federal Acquisition Regulation Supplement (DFARS), Section 215.101-2-70.  This procurement method involves evaluating the technical aspects of a proposal on an acceptable/unacceptable basis – essentially pass/fail.  If acceptable, the contract is then awarded to the lowest priced bid.  A recent Government Accountability Office (GAO) report (GAO 19-54) found that about 26 percent of the DOD’s contracts and orders valued $5 million and above were awarded using the LPTA process.  The LPTA approach is a good way to buy common off-the-shelf items or standard goods and services, however, many critics believe that LPTA is not suited for buying highly technical goods or services.  The 2017 and 2018 NDAA required the DOD to limit the use of LPTA.

The DOD final rule provides that the LPTA contracting method shall only be used by the DOD when: (1) minimum requirements can be described “clearly and comprehensively and expressed in terms of performance objectives, measures, and standards” that will be used to determine the acceptability of offers; (2) no, or minimal, value will be realized from a proposal that exceeds the minimum technical or performance requirements; (3) the proposed technical approaches will require no, or minimal, “subjective judgment” by the government as to the desirability of one offeror’s proposal versus a competing proposal; (4) the government has a “high degree of confidence” that reviewing the bids of all offerors would not result in the identification of characteristics that could provide value or benefit; (5) no, or minimal, additional “innovation or future technological advantage” will be realized by using a different contracting process; (6) items to be procured are “predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life;” (7) the government makes a written determination that the “lowest price reflects full life-cycle costs of the items being purchased; and (8) the contracting officer “documents the contract file describing the circumstances justifying” the use of the LPTA source selection process.

The final rule also provides that contracting officers “shall avoid, to the maximum extent practicable,” utilizing the LPTA method in procurements that predominately involve the purchase of: (1) Information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, or other knowledge-based professional services; (2) personal protective equipment; or (3) Services designated as “knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.”  The DOD final rule also expressly prohibits the use of the LPTA method for purchasing: (1) personal protective equipment or aviation critical safety items where lack of quality could result in combat casualties; (2) major defense acquisition program items; and (3) auditing contracts.

On October 2, 2019, the DOD, GSA and NASA proposed to amend the FAR to implement the government’s policy to avoid using the LPTA contracting method in circumstances that would deny the government the benefits of cost and technical tradeoffs.  Contact the WCS Government Contracting Group to learn more about these important government contracting changes.

5 TIPS TO ADDRESS AND PREVENT WORKPLACE VIOLENCE

According to a 2019 Society for Human Resource Management (SHRM) study, about 50% of HR professionals said their organizations had experienced workplace violence at some point.  This figure is up from a reported 36% in 2012.  However, despite the reports of workplace violence, less than half of those surveyed reported having no programs in place to prevent violence or trainings to respond to threats of workplace violence.

Most employers address violent threats on a case-by-case basis without a formal assessment process.  While each incident is, sadly, unique, the best time to plan for violence is before it happens.  Here are some tips to ready your workplace:

1. Get a Risk Assessment.
   • Work with local law enforcement and building security to obtain a risk assessment of your workplace. They’ll check door locks, entrances/exits, blind spots, lighting, and other deficiencies that tend to be overlooked.  They will also provide guidance on changes so your business can be better equipped to prevent or respond to an emergency.
2. Encourage Employees to Report Suspicious Activity.
   • Employees are the eyes and ears of any workplace.  Those with boots on the ground tend to know information before those in command.  Encourage employees to report suspicious activities ranging from employees who are under the influence, victims of domestic violence, unwanted visitors, or violence threatened against people or property.
3. Termination Meetings Should be Short.
   • When terminating a hostile employee, keep the meeting brief and calm.  Do not elevate the volume of the conversation in the room and speak in a calm voice.  Do not allow a debate about the reasons behind the termination and ensure there is a plan to escort the terminated person from the building or worksite immediately.
4. Prevent Weapons in the Workplace.
   • While some workers regularly use knives, hammers, power tools or nail guns on the job, there is no need for these tools or other deadly weapons to enter into an office environment.  Make sure policies are in place to have employees check their tools with security, store them in a secure locker, or lock them in their vehicle.  Remind employees that the workplace does not permit weapons of any kind in the workplace.
5. Don’t be afraid to notify security or local law enforcement.
   • If you have any reason to believe that an employee about to be terminated will escalate to a violent encounter, have security at the ready or notify local law enforcement immediately and ask them to be in the area or on the premises depending on the situation.

It’s always the right time to be proactive.  Start with a few small steps to protect your employees’ safety and your business.  Everyone feels safer when plans are in place.

To browse past issues, visit The Wright Toolbox page.