Reed Smith Client Alerts

Is LPTA effectively dead for DOD procurements? On October 2, 2019, on the heels of the DOD’s final rule implementing statutory restrictions via the Defense Federal Acquisition Supplement (DFARS) on the use of the LPTA source selection processes in DOD procurements1, the FAR Council issued a proposed rule which would amend the FAR in a similar manner. The proposed rule would incorporate into the FAR the statutorily mandated limitations and prohibitions on the use of the LPTA process found in section 880 of the John S. McCain National Defense Authorization Act (NDAA) for fiscal year (FY) 2019 (Pub. L. 115–232). Of note, section 880 of the NDAA does not apply to the DOD; rather section 813 of the NDAA for FY 2017 (10 U.S.C. 2305 note) and section 822 of the NDAA for FY 2018 (10 U.S.C. 2305 note) establish similar restrictions applicable to use of the LPTA process in DOD procurements, which are being implemented via the DFARS amendment.

The LPTA process is part of the FAR Part 15 best value continuum and is one tool of many that may be used for competitive acquisitions. Currently, FAR 15.101-2 describes the LPTA process as being appropriate when the best value to the government will result from the selection of the technically acceptable proposal with the lowest price. The LPTA process has long been criticized, however, and has been viewed as an overused procurement procedure that ultimately stunts innovation and results in the U.S. government purchase of low-quality products and services. 

The proposed rule would require contracting officers to: ensure procurements meet the criteria of section 880 before incorporating LPTA source selection criteria in solicitations; justify the use of the LPTA source selection process, when applicable, and ensure this justification is added to the contract file; and to avoid the use of LPTA source selection criteria in procurements that are predominantly for the supplies and services identified in section 880, to the maximum extent practicable. The proposed rule does not address how section 880 will apply to Federal Supply Schedules (“FSS”). General Services Administration has indicated that it will separately address the applicability of section 880 to the FSS Program at a later date.