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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle H — Other Matters

P. L. 115-

House Conference Report. 115-874

(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) Revision Of Federal Acquisition Regulation.—Not later than 120 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, 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, 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.

(d) Report Requirement.—Not later than one year after the date of the enactment of this Act, and annually thereafter for two years, the Comptroller General of the United States shall submit to the appropriate congressional committees a report on the number of instances in which lowest price technically acceptable source selection criteria is used for a contract exceeding $5,000,000, including an explanation of how the situations listed in subsection (b) were considered in making a determination to use lowest price technically acceptable source selection criteria.

(e) Definitions.—In this section:

(1) EXECUTIVE AGENCY.—The term “executive agency” has the meaning given that term in section 102 of title 40, United States Code, 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, United States Code.

(3) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term “appropriate congressional committees” means the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate.

The House bill contained a provision (sec. 886) that would require a revision of the Federal Acquisition Regulation to clarify in which solicitations the lowest price technically acceptable source selection criteria may be used.

The Senate amendment contained no similar provision.

The Senate recedes with an amendment that would clarify the categories and threshold applicable in the provision.

The conferees note that, in order to balance effective oversight with reasonable expenditure of resources, the Government Accountability Office is expected to develop a methodological approach that will provide sufficient insight into the extent to which lowest price technically acceptable source selection criteria are used by executive agencies, without requiring a review of each individual instance in which such criteria are used.