A quick update on a proposed FAR rule that will put in place restrictions on use of lowest-price, technically acceptable (LPTA) solicitations in non-DOD agencies, as mandated in the 2019 NDAA. There are a few differences from the similar rule that recently went into effect for DOD.
The proposed rule implements the 2019 NDAA’s policy to avoid LPTA “in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.” It applies only to civilian agencies, not the Department of Defense, which has its own LPTA rule. GSA will also implement its own rule for Federal Supply Schedules.
Here are the key takeaways.
The rule limits states that LPTA “shall only be used” in certain circumstances, pretty much taken directly from the language of the NDAA. For instance, the “agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements” and evaluation would require no “subjective judgment.” Another requirement is that the contracting officer provide a written justification for LPTA. Note that all of the circumstances must be present, not just a few.
Interestingly, two requirements for DOD use of LPTA are not found in the civilian rule:
- No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process
- Goods to be procured are predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life
Contracting officers should also avoid LPTA for certain types of acquisitions, at least “to the maximum extent practicable”:
(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.
Again, there is a distinction with the DOD rule. For one, the civilian rule includes health care services and records, but the DOD rule does not.
Under the new rule, contracting officers have less leeway to choose LPTA style procurements, and when they do choose them, the agency must include a detailed justification.
But it will be interesting to see how much this new regulation affects how agencies use LPTA. One the one hand, it definitely discourages LPTA. On the other hand, it’s not definitive because it still allows some wiggle room. For instance, an agency could still use of LPTA, even for cybersecurity services, if the agency found it was not practicable to avoid the use of LPTA.
Similarly, how can an agency determine if evaluation of a proposal would require “subjective judgment”? Presumably, the agency has to make a subjective judgment to determine whether evaluation would require subjective judgment .
Another thing to keep in mind. These additional criteria and justification requirements may provide additional basis for asking questions in a debrief or potentially protesting LPTA solicitations. For instance, if an information technology services is done under LPTA, the agency should have an ironclad justification for that decision, and be able to articulate that justification.
Remember though, if you want to protest a LPTA solicitation, you typically must file a protest prior to any offer due date.
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