Earlier this year the Federal Acquisition Regulation (“FAR”) Council issued a final rule, which took effect February 16, 2021, amending the FAR to limit the use of Lowest Price Technically Acceptable (“LPTA”) source selection procedures.
Similar to the final rule issued by the Department of Defense (“DoD”) restricting the use of the LPTA method, the new FAR rule significantly limits the ability of civilian agencies to use LPTA source selection procedures. The new rule contains a strong preference against the use of LPTA procedures for certain procurements and adds specific criteria that civilian agencies must consider before using LPTA procedures.
More specifically, the new rule sets forth five criteria that must be satisfied before a civilian agency is permitted to use LPTA procedures. The contracting officer is required include written documentation in the contract file demonstrating that:
- The agency can comprehensively and clearly describe its minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
- The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements;
- The agency believes the technical proposals 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;
- The agency has a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit to the agency; and
- The agency determined that the lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired.
Further, the final FAR rule also states that contracting offices “shall avoid, to the maximum extent practicable,” using LPTA procedures for procurements that are “predominantly for the acquisition of”:
- 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;
- Personal protective equipment; or
- Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
Ultimately, the new FAR rule significantly limits the circumstances for which civilian agencies may use LPTA source selection procedures and imposes a heavy burden on contracting officers to justify the use of the LPTA procurement method. By imposing these additional requirements, the new rule provides contractors another basis to challenge LPTA procurements in both pre-award and post-award bid protests.
Aleksey House is a Senior Law Clerk at Berenzweig Leonard and a third-year law student at the George Washington University Law School, where she is pursuing a concentration in Government Procurement Law.