Alas, yet another policy to reduces the tools available for contracting officers to use in source selections. Lowest Price Technically Acceptable (LPTA) source selection process has been shunned for as long as I have been doing contracting. Products and services procured under this methodology are often characterized as the bargain basement of deliverables. When something goes wrong during performance of a contract the knee-jerk reaction, tongue in cheek response is to lament that the whole situation is bad because it must’ve been awarded to the lowest bidder.

Take heart contracting community, the Legislative Branch has recognized the years long stereotyping of this method of source selection and, if you work in the DOD community, has made it even more challenging to use this particular tool in your toolbox. Section 822 of the National Defense Authorization Act (NDAA) 2018, signed into law by the President on Dec 13, 2017, adds more hoops to jump through than what NDAA 2017 did.

Need a refresher? Section 813 of NDAA 2017 really put the brakes on use of LPTA. In short, NDAA 2017 made it policy of the DOD that use of LPTA procedures would be avoided where circumstances would deny the Department the benefits of cost and technical tradeoffs in the source selection process. To enforce this, NDAA 2017 mandated DFARS be revised to require LPTA may only be used in situations which –

• the Department of Defense 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 Department of Defense 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 Department;
• the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
• the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support.

In case these six didn’t get the point sufficiently across, the next two paragraphs provide for further prohibitions and reporting requirements:

(c) AVOIDANCE OF — USE OF LOWEST PRICE TECHNICALLY ACCEPTABLE SOURCE SELECTION CRITERIA IN CERTAIN PROCUREMENTS. — To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—

• 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;
• 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.

(d) REPORTING.—Not later than December 1, 2017, and annually thereafter for three years, the Comptroller General of the United States shall submit to the congressional defense committees a report on the number of instances in which lowest price technically acceptable source selection criteria is used for a  contract exceeding $10,000,000 (emphasis added), including an explanation of how the situations listed in subsection (b) were considered in making a determination to use lowest price technically acceptable source selection criteria.

In addition to reducing the reporting requirement to $5,000,000, additional hoops contained in NDAA 2018 add the following:

• the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and
• with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.

With all this “help” one must think there is an epidemic of gross negligence when it comes to use of LPTA in source selections. GAO’s recent study conducted to review the use of LPTA procedures shows that this is not the case. In the GAO study titled, DOD’s Use of Lowest Price Technically Acceptable Source Selection Procedures to Acquire Selected Services, GAO-18-139, study contributors were able to identify nine source selections out of 781 total contracts, 133 of which were for information technology and support services that used LPTA as its basis for making a source selection decision. Put another way, for the data set GAO chose, contracting officers concluded that using trade off was the better way to go more than 93% of the time. Of the nine that were LPTA, seven were included in the study. The study did not cite any egregious errors, solely because of using LPTA procedures. Based on the outcome of this particular study, it would appear there is a solution in search of problem as it pertains to use of LPTA throughout DOD.

When it comes to the Best Value Continuum, I really have nothing against trade off procedures; nor I am I a proponent for carte blanche use of LPTA. I think both have their place in the procurement process and contracting officers should have the latitude to utilize their business acumen to make and document a decision that best fits the source selection they happen to be working. Contracting officers have a responsibility to make smart, prudent and well-informed decisions; however, the more “help” they get in the form of blanket policies such as “thou shalt not use LPTA except as a last resort” the more contracting officers make decisions in a checklist fashion. This sort of decision making leads to critical thinking atrophy.

The requirements we see coming out the Federal government is as complex in nature as they ever were. It is not reasonable to think that policy alone can be an answer for every decision a contracting officer must make. Policy makers should remember that at the root of most issues, subjective analysis of information available at the time is what drives contracting officers’ decisions. Any new policy should ensure that contracting officers continue to have the ability to make well-reasoned and prudent decisions that are in the best interests of the government…not compliant with a checklist that may or may not be applicable or relevant to the issue for which the contracting officer is trying to resolve.