Restricting LPTA in Federal ContractingPosted: June 24, 2020
In the fall of 2019, the United States Government Accountability Office (GAO) released a report about agencies’ use of the lowest price technically acceptable (LPTA) process in federal contracting.
As background, in 2017 section 813 of the NDAA started to create some limitations on using LPTA and when it would be appropriate. Then section 880 of the NDAA FY 2019 required that those changes be applied to civil agencies as well.
As part of that, Congress required the GAO, which acts sort of like Congress’s review agency, to develop some reports on various aspects of the LPTA world – they were looking for large dollar value issues and so forth.
There are eight criteria established for the use of LPTA:
- The agency can clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers.
- The agency would realize no, or little, value from a proposal exceeding the solicitation’s minimum technical requirements.
- The proposed technical approaches can be evaluated with little or no subjectivity as to the desirability of one versus the other.
- There is a high degree of certainty that a review of technical proposals other than that of the lowest-price offeror would not identify factors that could provide other benefits to the government.
- The contracting officer has included a justification for the use of the LPTA process in the contract file.
- The lowest price reflects full life cycle costs, including for operations and support.
- DOD would realize little or no additional innovation or future technological advantage by using a different methodology.
- For the acquisition of goods, the goods being purchased are predominantly expendable in nature, nontechnical, or have a short life expectancy or shelf life.
The important thing about this, from our perspective, is that Congress is making a determination and imposing requirements on DoD and now on the civil agencies that LPTA has a limited space.
Specifically, there has to be a determination that the agency does not need technical trade-offs. If the agency has technical trade-offs then they can’t use LTPA. Furthermore, if there are specific trade-offs between cost and technical activity that is also not conducive to using LPTA.
From our perspective as an observer of the process, it’s clear that there were increasingly non-applicable uses of LPTA, which led to some very anomalous decisions. The net result was that subject matter experts with education, talent, and experience became too expensive to use – they were being priced out of the market.
If there was someone willing to allegedly supply these SMEs for substantially less, that person automatically won an LPTA contract. But then when they tried to hire SMEs at these discounted rates the SMEs just went elsewhere to people who would pay them fairly.
This produced ugly contracts, when half the staff would leave either in the transition time frame or shortly thereafter, and who you lost were the really good people. Fortunately this set of legislation has reigned in the excesses between the two NDAAs. Fundamentally, we must thoroughly understand not just when to use LPTA but why it makes sense (or doesn’t).