A recent bill before the U.S. House of Representatives seeks to limit the use of the lowest price technically available (“LPTA”) source selection process in procurements. H.R. 3019, which was introduced on June 22, 2017, would create a policy to avoid using LPTA criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process. The LPTA process dictates that when conducting a competitive procurement, the agency will select the offeror that offers the lowest price and whose proposal is technically acceptable under the terms of the solicitation. The LPTA method is typically used when the best value is expected to result from the selection of the technically acceptable proposal with the lowest evaluated price.
H.R. 3019 would require a revision to the Federal Acquisition Regulation to provide that the LPTA process only be used when:
- 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;
- 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;
- 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;
- the source selection authority 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;
- the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
- the executive agency has determined that the lowest price reflects full life-cycle costs, including for operations and support.
Additionally, it would prohibit the use of LPTA procedures when a procurement is for the acquisition of: (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness 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.
This bill follows the 2017 National Defense Authorization Act, signed into law on December 23, 2016, which enacted a nearly-identical policy to reduce the use of LPTA in U.S. Department of Defense (“DoD”) procurements. If this bill is passed, all agencies, and not just DoD, will likely reduce their use of LPTA procurements. H.R. 3019 is currently before the House Committee on Oversight and Government Reform.
About the Author: Julia Di Vito practices in the areas of government contracts, litigation, employment, and labor. She may be reached at firstname.lastname@example.org.