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n the current contracting environment of Lowest Priced Technically Acceptable (LPTA) procurement strategies, is the government really getting what they need? In many cases, it seems the government is asking for the moon, but doesn’t seem
to know how to guarantee this outcome.
We have seen procurements for multi-year, multi-million dollar service contracts solicited without providing adequate information for offerors to construct a reasonable submittal. We have also seen solicitations without requirements for
contractors to provide past performance information. In some cases, past performance may be requested, but if an offeror has no experience, they may not be scored either favorably or unfavorably. So how does this assure the government that the contractor can indeed perform? Sadly, often it does not.
Section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 directs the civilian agencies to avoid using LPTA source selection criteria for the acquisition of “
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; personal protective equipment; or, knowledgebased training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.”
A proposed FAR rule covering civilian agencies
was published on Oct. 2, 2019
. A similar statute enacted earlier covers the Department of Defense (DoD), and a
DoD final rule was published Sept. 24, 2019.
While these laws and regulations will have a positive impact on these sectors of the contracting industry, service contractors who primarily perform typically blue-collar functions may not benefit from the required shift away from LPTA.
For example, section 880 lists five factors that must be considered in order for the Government to utilize LPTA as the source selection criteria. The first factor is that “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 …”
This factor alone is one of the major stumbling blocks for both the Government and for service contractors; unless requirements are “comprehensively and clearly” described, it is almost impossible to put together an adequate responsive proposal. It is incumbent on the service contractor to attempt to extract the data needed to construct a viable response. This involves asking questions, and follow-up questions, to the answers received. This exchange may result in the needed clarifications. But often times not – and offerors must then make a bid/no bid decision regarding the solicitation without that needed information.
Another factor in Section 880 states that LPTA may be considered if “the executive agency 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 …”
Neither this factor—nor any of the other factors—address the performance capability of the offeror. Unless experience and past performance criteria are specifically detailed and required as part of the evaluation, how can the government determine that the lowest bidder would provide equivalent value or benefit than a higher priced bidder? Too often this scenario has resulted in failed performance on the part of an inexperienced contractor –a loss for both the contractor and the government, who then has to re-compete the contract, or do without.
What can the service contracting community do to counter this short-sighted approach to procurement? What can be done—once all the pertinent questions have been asked—to drive the government to amend the solicitation without result?
One option that is certainly available to offerors is to protest the solicitation. Protests can be expensive and lengthy, but can garner results. A well-framed and timely protest of an extremely flawed solicitation might cause the government to rework the solicitation so that offerors have a reasonable opportunity to submit a substantive proposal – and the successful offeror and the government can both win. Likewise, a timely protest against an award made to the low bidder who has no experience and has underbid the effort might result in a win for the protesting offeror and a win for the government, who will then have a partner who has a higher probability of delivering what the government needs.
Companies should consider all options to move agencies away from the inappropriate use of LPTA as a source selection evaluation methodology.
This article was published October 30, 2019 in the
Fall 2019 edition
of PSC's Service Contractor Magazine.
Click here for a PDF
of this article.