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4 min read

Bid Protest: LPTAs - Are They Still Okay?

Lowest Price Technically Acceptable | Bid Protest | Procurement Law

Legal questions this webinar answers

  1. What does "LPTA" (lowest price technically acceptable award) mean and how does it differ from a "best value award" in government contracting?
  2. How have recent rule changes related to FAR provisions affected the use of LPTA contracts?
  3. What are the legal implications of these rule changes for the way contracting officers articulate minimum requirements and technical specifications?
  4. What are the specific conditions that must be satisfied for a solicitation to be appropriate for an LPTA offering?
  5. In what circumstances can one file a bid protest, and what stages of the procurement process allow for a contractor to protest?

lowest price technically acceptable (LPTA) award

During the webinar, the concept of "lowest price technically acceptable" (LPTA) awards or solicitations is thoroughly discussed. LPTA refers to the government's process of awarding a contract to the offer with the lowest price that meets the minimum technical requirements. The advantage of LPTA is that once a proposal meets these requirements, the focus shifts to offering a lower price than competitors.

In contrast, there is also the option of a "best value" award, which evaluates proposals based on multiple criteria such as technical aspects, past performance, and price. The webinar highlights a recent rule change that took effect in February 2021, which imposes restrictions on the use of LPTA awards. This rule was initiated by the John S McCain National Defense Authorization Act for fiscal year 2019 and sets specific criteria that must be met before the government can issue an LPTA solicitation.

It is crucial for contractors to be aware of this rule and question any language related to LPTA in solicitations. Furthermore, the webinar delves into the impact of the rule on various sections of the Federal Acquisition Regulation (FAR), including FAR parts 12, 13, 15, and 37. FAR part 12 pertains to commercial items, FAR part 13 relates to simplified acquisition, and FAR part 15 deals with negotiated procurements. The new rule essentially eliminates the use of LPTA awards in all contract competitions, except under FAR part 14.

Contracting officers must articulate the minimum requirements

If a contracting officer fails to meet the requirements outlined in FAR 15.101-2(c)(1-5), it could serve as grounds for a bid protest. This rule also extends to simplified acquisition thresholds, preventing contracting officers from using LPTA awards as a shortcut. The rule mandates that contracting officers clearly articulate the minimum requirements for a contract, including performance objectives, measures, and standards. Additionally, technical specifications must be unambiguous and easily understood.

Furthermore, the rule necessitates contracting officers to provide justification for awarding a contract to a higher-priced offer if it offers greater value. Contracting officers must determine whether the agency would benefit from a proposal that surpasses the minimum thresholds. Additionally, technical proposals should not rely on subjective judgment by the source selection authority.

no subjectivity rule

In order for a solicitation to be appropriate for an LPTA offering, it is crucial to eliminate any subjectivity. The agency must have confidence that when reviewing technical proposals, there won't be any identification of characteristics that could benefit the agency. The importance of meeting the minimum threshold for technical acceptability is emphasized in the document, along with a warning about the government potentially not considering a higher-priced proposal that offers better value.

The presentation also addresses the challenges associated with protesting a bid based on the lack of technical acceptability. Additionally, it highlights the significance of the government ensuring that the lowest price includes all necessary components. The document stresses the importance of contractors submitting offers that align with the requirements of the contracting office.

problem solving during the performance period

The presentation emphasizes the significance of contracting officers documenting the rationale behind their decision to use the lowest price technically acceptable source selection. It also highlights the importance of avoiding this source selection method for specific types of procurements, such as those related to IT and cybersecurity. Additionally, the presentation underscores the value of problem-solving skills during the performance period and acknowledges the inclusion of personal protective equipment (PPE) in the regulation. Another key point discussed is the importance of knowledge-based training for contracting officers.

The presentation argues that the government should thoroughly review all technical proposals to determine if a higher-priced product could provide greater benefits. Furthermore, the presentation refers to four provisions in the Federal Acquisition Regulation (FAR) and invites questions from the audience. It specifically addresses a query regarding bid protests related to the regulation, confirming that there have been no protests based on research conducted on Westlaw. This suggests that the regulation has not yet undergone adjudication. The presentation advises listeners to stay informed about future decisions related to the regulation and emphasizes the importance of understanding how the Government Accountability Office (GAO) and Court of Federal Claims will enforce it.

taking advantage of the Q&A period

The presentation delves into the question of when to file a bid protest and emphasizes the importance of submitting it before the submission date on a solicitation. An example is provided, highlighting a solicitation with a submission date of July 10th, and it is advised to file a bid protest prior to that date. The presentation suggests utilizing the Q&A period as an opportunity to inquire about the justification for using LPGA instead of the best value. It also recommends using the contracting officer's response, or lack thereof, as evidence in a bid protest.

Additionally, the presentation proposes utilizing site visits as a platform to raise questions with the contracting officer. The webinar further explores the various stages of the procurement process in which a contractor can protest. It explains that a pre-award bid protest must be resolved before the government can proceed with the solicitation. Moreover, the timing requirements for filing a post-award bid protest are discussed, depending on whether the procurement falls under FAR Part 15 or not.

requirements for filing a bid protest

The webinar delves into the timing requirements for filing a bid protest, noting that the specific timeframe depends on whether the protest is filed after a debriefing or after a Notice of Award. It emphasizes that a successful bid protest has the power to halt the procurement process until the Government Accountability Office (GAO) makes a final determination.

During the webinar, two crucial reasons are highlighted for the significance of the protest process. Firstly, it serves to hold the government accountable for its procurement decisions, ensuring transparency and fairness. Secondly, it ensures a level playing field for all contractors involved in the bidding process.

In terms of effectiveness, the webinar reveals that bid protests have an average success rate of around 50%. It clarifies that this rate includes both sustained protests, where the GAO rules in favor of the protesting party, and instances where the government takes corrective action in response to a protest.

possible forms of corrective action

The webinar explores a range of potential actions for correcting issues, including evaluating proposals again, competing the requirement anew, or making amendments to the solicitation. As the webinar draws to a close, the audience is invited to ask any remaining questions. The upcoming webinar is announced, focusing on contract disputes and the chain's clause.

During the webinar, it is mentioned that a survey will be sent out within the next 24 hours to gather valuable feedback on topics for future webinars. Contact information is provided for any follow-up questions, and it is noted that the slides will also contain this information. The webinar expresses gratitude to the attendees for their participation and looks forward to their presence at the next webinar in August.