A form of contracting known as lowest-price technically acceptable, or LPTA, has long bugged federal contractors. Defense authorization legislation, and subsequent updates to the Federal Acquisition Regulations, were supposed to limit agency use of LPTA. But contractors say they’re seeing a resurgence. Federal Drive with Tom Temin turned to David Berteau, the president and CEO of the Professional Services Council.
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Federal civilian agencies will now face new restrictions on when and how they can use Lowest Price Technically Acceptable source selection procedures. A new rule in the Federal Acquisition Regulation is the latest in a series of measures aimed at regulating the use of LPTA source selection procedures. The new rule implements an October 2019 proposed rule and takes effect on February 16, 2021.
As previously discussed on this blog, the Department of Defense issued a final rule in late 2019 amending the Defense Acquisition Regulation Supplement to establish restrictions on when and how DOD may use LPTA source selection procedures. Pursuant to the John S. McCain National Defense Authorization Act for Fiscal Year 2019, the new FAR rule places similar — though not identical — restrictions on civilian agencies.
The new FAR rule imposes three primary limits on the use of LPTA procedures.
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Effective October 1, 2019, a new rule issued by the U.S. Department of Defense (DOD) amends the Defense Federal Acquisition Regulation Supplement (DFARS) to limit the use of lowest price technically acceptable (LPTA) procurements. In December 2018, we highlighted the DOD’s proposed rule limiting LPTA procurements. The final version of that rule, published on Thursday, September 26, 2019, is, as of October 1, 2019, found at section 215.101-2-70 of the DFARS. As our earlier analysis concluded, this amendment to the DFARS significantly restricts DOD’s ability to favor low-cost options over technical superiority.
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The government contracting industry has spoken—and Congress listened. In the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (2019 NDAA) Congress passed significant limitations on the use of Lowest-Priced, Technically-Acceptable (LPTA) source selection criteria, presumably intending to curtail this widely-used but generally unpopular procurement vehicle. Section 880 of the 2019 NDAA includes the following policy statement: “It shall be the policy of the United States Government to avoid using lowest priced technically acceptable source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.”
So what does that mean? Fortunately Congress clarified the limited set of circumstances in which an agency may use LPTA.
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Federal agencies have long been afforded wide discretion in defining solicitation requirements to meet their contracting needs. But are a solicitation’s requirements acceptable even where they’re likely to conflict with local zoning codes? What about where the solicitation documents conflict with one another on whether certain requirements are considered “requirements” at all? And finally, is an LPTA procurement acceptable where such conflicts have undoubtedly led to price uncertainty among the bidders?
GAO says, “yes” to all of these, so long as the requirements meet the agency’s needs.
In Flaherty Family Trust, B-414563.3 (Aug. 16, 2018), GSA issued an RLP seeking to lease a “professional” office space location for the Department of Homeland Security U.S. Customs and Border Protection port in Savannah, Georgia. GSA anticipated award to the lowest-price technically-acceptable offeror. The main RLP contained general internal space qualifications. But a separate “Agency Special Requirements” document provided specialized usage and internal space specifications that were inconsistent with the main solicitation. The RLP also required 44 government parking spaces with an additional 96 public-parking spaces within a quarter mile. But these parking specifications did not comply with local county zoning codes for majority of potential office locations.
Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-denies-protest-to-lpta-solicitation-ridden-with-cost-uncertainty-and-local-zoning-code-conflicts/
In a proposed rule issued last month, the Department of Defense (DoD) seeks to incorporate into the Defense Federal Acquisition Regulations Supplement (DFARS) restrictions on the use of the lowest price technically acceptable (LPTA) source selection method from the National Defense Authorization Act (NDAA) for Fiscal Years 2017 and 2018. This proposed rule makes clear that these NDAA-imposed restrictions are not going away any time soon, and that DoD contracting officers need to engage in a thorough and reasoned analysis before conducting an LPTA procurement.
Just as its name suggests, the LPTA source selection process prioritizes cost or price over technical capability — the agency will make award to the lowest-priced offeror that presents a technically acceptable proposal. Typically, agencies use the LPTA process to procure straightforward goods and services such as routine maintenance work or office equipment. In recent years, however, contractors have complained that agencies employ LPTA selection processes in inappropriate circumstances where qualitative differences really matter and technical superiority is worth a price premium.
Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/12/lowest-price-technically-acceptable-solicitations-no-longer-acceptable-reviewing-department-defenses-proposed-changes-dfars/
Although Congress has restricted when the Dept. of Defense (DoD) might use lowest-price technically-acceptable (LPTA) contractor selection criteria, the Department has not followed this mandate.
Note: This article was written by Matthew Schoonover of Koprince Law, LLC and first appeared in SmallGovCon.A recent GAO report highlights DoD’s struggle. As of September 2018, DoD has not yet revised its regulations to reflect certain statutory restrictions against LPTA awards and, as a result, DoD contracting officers believe they are not yet required to follow these new requirements.
Candidly, I’m not so sure. But in any event, GAO’s report issued a couple of recommendations to help DoD fully implement the restrictions against LPTA procurements.
Let’s take a look.
Keep reading this article at: http://smallgovcon.com/statutes-and-regulations/gao-report-lpta/
Low-priced, technically acceptable procurements (LPTA) shine a light on a contractor’s ability to provide the required services at the lowest possible cost to the government.
Leave your style points at home. It is all about getting lean to win the award.
But when the evaluation is that simple, is there any room to challenge an LPTA award decision?
The answer is Yes — and a recent GAO protest offers some important insights into best practices.
The protest concerned an Air Force contract to provide tactical recovery kits. Covering both LPTA bases, the protester argued that the agency:
Keep reading this article at: https://governmentcontracts.foxrothschild.com/2018/08/articles/bid-protests/establishing-prejudice-in-a-lpta-protest
Lawmakers are once again looking at ways to peel back the use of lowest price technically acceptable, or LPTA, contracting decisions to enable federal agencies to spend a little more for better products and services.
As part of the Federal Acquisition Regulation, LPTA requires agencies to choose the lowest priced option that meets the requirements set forth in a given solicitation. Abiding by the letter of the law has led to poor contracting decisions for the sake of saving some money.
“LPTA contracting is a useful source selection method for acquisitions with simple, well-defined requirements when cost is the sole objective differentiating factor,” BSA | The Software Alliance Vice President Craig Albright wrote in a letter to the Senate Armed Services Committee. “However, when it comes to more complex acquisitions involving multiple technical variable or functions … LPTA’s priority of price over value leads to acquisition outcomes that actually prevent the government from getting the most for its money.”
Keep reading this article at: https://www.nextgov.com/policy/2018/07/software-companies-push-senate-weaken-lowest-price-contracting-rule/149878/
A new bill aims to reform the way agencies use “lowest-price, technically-acceptable” for their procurements.
The “Promoting Value Based Procurement Act of 2017” — sponsored by Rep. Mark Meadows, R-N.C., and Rep. Don Beyer, D-Va. — would reform the Federal Acquisition Regulation to require civilian agencies to do the following when it comes to applying LPTA in contract bids:
Keep reading this article at: http://www.federaltimes.com/articles/psc-applauds-new-bill-to-scale-back-improper-lpta-use
