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17 May 2021
The Federal Acquisition Regulation (FAR) Council recently issued its long-awaited final rule limiting the ability of civilian agencies to use the Lowest Price Technically Acceptable (LPTA) procurement method. The final FAR rule — which takes effect on February 16, 2021, and largely tracks the language contained in the Defense Federal Acquisition Regulation Supplement (DFARS) final rule from 2019 — is codified at FAR 15.101-2.
The LPTA method is a competitive negotiation source selection process where the non-price factors of a proposal are evaluated to determine which proposals are "technically acceptable," and an award is then made to the "technically acceptable" offeror with the lowest price.
Under the final FAR rule, the LPTA source selection process shall only be used when:
Importantly, the final FAR rule also states that contracting officers shall avoid, to the maximum extent practicable, using the LPTA source selection process in the case of a procurement that is predominantly for the acquisition of:
The main difference between the final DFARS rule from 2019 and the new FAR rule is that the DFARS rule imposes certain per se prohibitions on the use of the LPTA procurement method, whereas the new FAR rule does not. In particular, DFARS 215.101-2-70(b) imposes a per se prohibition on the use of the LPTA method for procurements of:
As noted above, the new FAR rule takes effect on February 16, 2021.
The final FAR rule — like the 2019 DFARS rule — greatly restricts the circumstances under which procuring agencies may use the LPTA source selection process. As such, government contractors should be on the lookout for improper inclusion of the LPTA method in solicitations, as well as agency misuse of the LPTA method during proposal evaluations. The former situation may give rise to a pre-award bid protest — which generally must be filed before the closing time set for receipt of initial proposals — and the latter situation may give rise to a post-award bid protest — which generally must be filed within a very tight timeframe after contract award.
For further information on this topic please contact Aron C Beezley or Lisa Markman at Bradley Arant Boult Cummings LLP by telephone (+1 202 719 8241) or email (email@example.com or firstname.lastname@example.org). The Bradley Arant Boult Cummings LLP website can be accessed at www.bradley.com.
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