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Posted on Thursday, October 18, 2018

FY19 NDAA Further Limits the Use of LPTA Procedures

Because major changes in the procurement laws are difficult for Congress to pass, incremental changes tend to be made yearly in the National Defense Authorization Act (NDAA). The 2019 NDAA is no exception. One of the most significant “incremental” changes made this year involves an agency’s use of the lowest priced technically acceptable (LPTA) procurement process. This year’s changes apply to procurements by the civilian agencies. Previously, Congress made some changes to DoD laws designed to reduce DoD’s use of LPTA.
The changes include a policy statement on when an agency should use LPTA, criteria for agencies to apply in deciding whether to use LPTA, and a list of acquisitions for which use of LPTA “shall be avoided.”

The new policy is a little vague. The NDAA states that “[i]t 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.”
More specifically stated are the six criteria that must be met to permit the use of the LPTA process:

  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.

Congress was even more specific in describing situations in which use of LPTA shall be avoided. The NDAA states that LPTA shall be avoided in procurements that are 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.

These are the same restrictions that the Congress had previously imposed on DoD’s use of LPTA procurements, bringing uniformity to all federal agencies. Significantly, agencies should start to use these criteria and restrictions in the near future. Congress directed the FAR Council to implement the changes and make them applicable to solicitations issued on or after December 11, 2018.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, events, and more. This post was published in the October 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here. 

Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson  lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.