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Federal civilian agencies will now face new restrictions on when and how they can use Lowest Price Technically Acceptable source selection procedures. A new rule in the Federal Acquisition Regulation is the latest in a series of measures aimed at regulating the use of LPTA source selection procedures. The new rule implements an October 2019 proposed rule and takes effect on February 16, 2021.

As previously discussed on this blog, the Department of Defense issued a final rule in late 2019 amending the Defense Acquisition Regulation Supplement to establish restrictions on when and how DOD may use LPTA source selection procedures. Pursuant to the John S. McCain National Defense Authorization Act for Fiscal Year 2019, the new FAR rule places similar — though not identical — restrictions on civilian agencies.

The new FAR rule imposes three primary limits on the use of LPTA procedures.

First, the rule requires civilian agencies to “avoid, to the maximum extent practicable, using” LPTA procedures for procurements that are “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, health care services and records, telecommunications devices and 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.

Second, the rule sets forth five criteria that must be met in order for LPTA procedures to be permissible for a procurement:

  1. The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
  2. The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements;
  3. The agency believes the technical proposals 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 agency has a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit to the agency;
  5. The agency determined that the lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired.

Third, the rule requires contracting officers to document, in the contract file, “the circumstances that justify the use of the lowest price technically acceptable source selection process.” Per a response to a comment, however, agencies will not be required to provide “public notice or publication of the documented determination.”

Unlike the DFARS rule, the FAR rule does not contain a “Prohibitions” section designating certain circumstances when “contracting officers shall not use the lowest price technically acceptable source selection process.”

The new FAR rule, like the DFARS rule, will likely improve the viability of pre-award protests challenging the use of LPTA procedures, as it identifies specific criteria that agencies are supposed to consider in making the determination of whether to use LPTA procedures. Stay tuned for further developments on how GAO and the Court of Federal Claims interpret and apply both the DFARS rule and the new FAR rule.

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Photo of Kayleigh Scalzo Kayleigh Scalzo

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability Office, U.S. Court of Federal Claims, U.S. Court of Appeals for the Federal Circuit, FAA Office of Dispute Resolution for Acquisition, federal and state agencies, and state courts.

Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

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Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

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Photo of Andrew Guy Andrew Guy

Andrew Guy advises clients across a broad range of government contracting issues — including regularly representing contractors in bid protests before the U.S. Court of Federal Claims and the U.S. Government Accountability Office (“GAO”).

Andrew also has extensive investigations and False Claims Act…

Andrew Guy advises clients across a broad range of government contracting issues — including regularly representing contractors in bid protests before the U.S. Court of Federal Claims and the U.S. Government Accountability Office (“GAO”).

Andrew also has extensive investigations and False Claims Act experience. He routinely assists clients in responding to Civil Investigative Demands and other government inquiries.

Before joining the firm, Andrew clerked for the Honorable Kenneth F. Ripple of the U.S. Court of Appeals for the Seventh Circuit.

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