February 10, 2021
FAR UPDATE: FINAL RULE LIMITS USE OF LPTA CRITERIA BY CIVILIAN AGENCIES

Last month, on January 14, 2021, DoD, GSA and NASA issued a final rule that sets out new criteria, as well as limitations, on the inclusion of lowest price technically acceptable (LPTA) source selection criteria in solicitations by civilian agencies.  Initially proposed in October 2019, the final rule makes no changes and only a few minor edits to the October 2019 proposed rule, and is set to become effective on February 16, 2021.

The new FAR rule is similar to a final rule that DoD issued in October 2019 implementing in DFARS 215.101–2–70 restrictions on the use of LPTA criteria by defense agencies.  (That DoD final rule can be found here.)

In particular, the final FAR rule amends FAR 15.101-2 to require the use of the LPTA selection process only when six (6) conditions are satisfied:

(1) An agency can 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) An 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 agency believes 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;
(4) The agency has a high degree of confidence that reviewing 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 agency;
(5) The contracting officer has included a justification for the use of an LPTA evaluation methodology in the contract file; and
(6) The agency has determined that the lowest price reflects total cost, including for operations and support, of the product or service being acquired.

The new FAR rule also amends FAR 15.101-2 to instruct contracting officers to avoid using the LPTA selection process, to the maximum extent practicable, in procurements that are predominantly 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.

The additional criteria and restrictions, predictably, may lead to an increase in the number of protests challenging a civilian agency’s use of LPTA procedures in its procurements. 

To read or obtain a copy of the final rule go here.

To read other articles from The GovCon Bulletin™ go here.