The National Defense Authorization Act for Fiscal Year 2017 has imposed significant restrictions on, and preconditions for the use of, the Lowest Price Technically Acceptable (LPTA) Basis for Award. LPTA has been increasingly employed by organizations within the Department of Defense (DoD) in a wide array of acquisitions based upon the relative speed with which such acquisitions can be completed and the minimal protest risk attributable to that approach regardless of the appropriateness or applicability of the LPTA Basis for Award to the objectives and structure of those acquisitions. This change, which must be implemented in the Defense Federal Acquisition Regulation Supplement (DFARS) within the next four months, should substantially limit DoD’s reliance upon LPTA, and instead require DoD to more frequently employ the Best Value Trade-Off Basis for Award.
SEC 813 – Use of lowest price technically acceptable source selection process.
(a) Statement of policy.—It shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.
(b) Revision of defense federal acquisition regulation supplement.—Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support.
(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—
(1) 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;
(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.
(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, 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.