In the Land of the Disfavored: FAR Council Issues Proposed Rule on Avoiding Usage of LPTA

On October 2, 2019, DoD, GSA and NASA proposed to amend the FAR to implement section 880 of the FY 2019 NDAA, which makes it the Government’s policy to avoid using Lowest Price Technically Acceptable (LPTA) source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs. To this end, the proposed rule sets forth six criteria that must be met to use the LPTA source selection method: (i) an executive agency is able to clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers; (ii) 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; (iii) 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; (iv) 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; (v) the contracting officer has included a justification for the use of an LPTA evaluation methodology in the contract file; and (vi) the executive agency has determined that the lowest price reflects total costs, including for operations and support.

The proposed rule requires contracting officers to document its justification for the use of LPTA in the contract file, when applicable. Contracting officers also should avoid, to the maximum extent practicable, the use of LPTA source selection criteria in procurements that are predominantly for the supplies and services identified in section 880 (e.g., IT and cybersecurity services, audit or audit readiness services).

We note that the rule does not address the applicability of section 880 to the Federal Supply Schedule Program. The rule also does not apply to DoD; section 813 of the FY 2017 NDAA and section 822 of the FY 2018 NDAA establish a similar, but not the same, set of criteria for DoD procurements. Those sections will be implemented in DFARS case 2018-D010.

Comments on the proposed rule are due on or before December 2, 2019.