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Protesting DOD’s Use of LPTA Source Selection Criteria

In a lowest price technically acceptable (LPTA) source selection, the procuring agency evaluates the non-price factors for technical acceptability, and the offeror with a technically acceptable proposal with the lowest proposed price is selected for award. The Department of Defense (DOD) must avoid using LPTA criteria when doing so would deny the DOD benefits of cost and technical tradeoffs. The Defense Federal Acquisition Regulation Supplement (DFARS) provides eight criteria that must all be met before a solicitation can utilize LPTA source selection methodology. In addition to the eight mandatory criteria, DFARS 215.101-2-70(a)(2)(i) also requires that the contracting officer (CO) avoid using LPTA procedures for procurements of certain types of items or services to the maximum extent practicable. Such procurements involve knowledge-based professional services in industries such as information technology, cybersecurity, systems engineering and technical assistance, and advanced electronic testing. The eight criteria listed in DFARS 215.101-2-70 are:

  • i. Minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers.
  • ii. A proposal that exceeds the minimum technical or performance requirements will provide no or minimal value to the government.
  • iii. 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.
  • iv. Reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit.
  • v. No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process.
  • vi. Goods to be procured are predominantly expendable in nature, are non-technical, or have a short life expectancy or short shelf life.
  • vii. The contract file contains a determination that the lowest price reflects the full life-cycle costs of the products or services being acquired.
  • viii. The CO documents the contract file describing the circumstances justifying the use of the LPTA source selection process.

In B-422698.2, a bid protest decision issued on January 8, 2025, the Government Accountability Office (GAO) sustained a pre-award protest alleging that the Air Force improperly utilized LPTA source selection criteria in a task order under its Advisory and Assistance Services (A&AS V) indefinite-delivery, indefinite quantity (IDIQ) contract. The task order fair opportunity proposal request (FOPR) was issued to acquire pilot augmentation support services, including in-garrison functional support services, to meet the Air Force’s existing and future contingency requirements in Europe and Africa. The technical factor of the LPTA FOPR consisted of two sub-factors, namely, past technical experience and staffing plan. The solicitation described how the Air Force would evaluate each technical sub-factor. The staffing subfactor required offerors to submit a unique plan for accomplishing tasks within paragraphs 3.1 and 3.4 of the PWS, demonstrating a clear understanding of the requirements and staffing identifying roles and responsibilities. Meanwhile, to be found technically acceptable for the technical experience subfactor, offerors were required to submit two work samples demonstrating experience performing work similar to that listed in performance work statement (PWS) paragraphs 3.1 and 3.4. Notably, these paragraphs of the PWS detailed 46 pages of performance requirements for management, operational, administrative, and professional support services.

During the questions and answers (Q&As), the Air Force described the past technical experience subfactor as requiring performance within designated flying operational units. Significantly, the Air Force advised offerors that it would not require offerors to meet a minimum number of subtasks listed in paragraphs 3.1 and 3.4 of the PWS. The CO also conducted a market research report and a two-page determination and findings (D&F) memorandum for using the LPTA evaluation criteria. However, this D&F memorandum mostly only restated the language from the evaluation criteria. Before the closing date of submission of proposals, the protestor filed a protest with the GAO alleging, among other grounds, that the Air Force’s use of LPTA source selection procedures was improper and in violation of at least three of the eight criteria listed in DFARS 215.101-2-70.

Criteria (i) – Description of Minimum Requirements

As noted previously, the Air Force specifically provided that it would not stipulate a minimum number of subtasks to be met to demonstrate technical acceptability. Thus, the GAO determined that the FOPR did not provide measurable minimum requirements to offerors, leaving them to guess what combination of and how many subtasks had to be met for their proposals to be technically acceptable. Furthermore, the Air Force LPTA D&F memorandum simply restated the FOPR’s evaluation criteria without explaining the minimum requirements for technical acceptability. Therefore, the GAO found that the LPTA FOPR failed to clearly and comprehensively define the minimum requirements and failed to express the requirements in terms of performance objectives, measures, and standards that would be used to determine the acceptability of offers in violation of DFARS 215.101-2-70(a)(1)(i).

Criteria (ii) – Value from Exceeding Minimum Requirements

On reviewing the record, the GAO determined that the Air Force also failed to demonstrate that it would obtain no or minimal value from an offeror’s proposal that exceeded the minimum requirements. Specifically, the staffing subfactor required offerors to submit a unique staffing approach, which indicated that the Air Force could receive at least some value from proposals exceeding the bare minimum requirements. Additionally, the CO provided no explanation in the LPTA D&F memorandum supporting the Air Force’s position to use LPTA criteria despite requiring offerors to submit their unique staffing approach. The GAO offered a comparison to a previous protest decision where the CO had provided details on various PWS requirements, demonstrating how no additional value would be realized when proposals exceeded the minimum requirements. Thus, by using the LPTA FOPR, the agency violated DFARS 215.101-2-70(a)(1)(ii).

Criteria (vii) – Lowest Price Reflects Full Life-Cycle Costs

The use of LPTA criteria violated DFARS 215.101-2-70(a)(1)(ii) because the CO provided no explanation in the D&F memorandum as to how the lowest price would reflect full life-cycle costs when the FOPR contained several cost-reimbursable CLINs that did not have defined costs at the time of award. During the protest, the Air Force argued that the CO could not make the necessary life-cycle cost determination until after the awardee was selected. However, the GAO rejected this argument as a post-protest statement that was inconsistent with the contemporaneous record. Additionally, the procedures guidance and information (PGI) resource companion to the DFARS requires the CO to obtain and document in the contract file a determination from the contract activity that the lowest price offer reflects full life-cycle costs. Here, the Air Force failed to document a determination from the contract activity and instead attached a similar determination by the CO. Thus, the GAO found that the agency had committed both substantive and procedural violations of DFARS 215.101-2-70(a)(1)(vii).

Avoidance of LPTA Criteria in Procuring Knowledge-Based Professional Services

The CO’s LPTA D&F memorandum acknowledged that the FOPR sought to acquire knowledge-based professional services. Thus, the Air Force was required to demonstrate that it had avoided using LPTA criteria to the maximum extent practicable. The LPTA D&F memorandum explained that using LPTA criteria was the most viable and efficient means of evaluating proposal submissions in the subject procurement. The Air Force proposed that its use of LPTA criteria was justified because its procurement complexity analysis tool (CAT) recommended an LPTA approach and that the A&AS V IDIQ ordering guide expressly permitted the use of LPTA methodology. However, the GAO pointed to the Air Force’s failure to meet mandatory criteria (i), (ii), and (vii) of DFARS 215.101-2-70 as indicating that its justification for using LPTA source selection procedures was unreasonable. The Air Force also misconstrued the standard set by the DFARS for the use of LPTA criteria. The GAO noted that the use of LPTA procedures had to be avoided unless it was impractical to do so. This was inconsistent with the agency’s rationale that it used LPTA criteria because that was the most viable and efficient means of evaluation. Additionally, since the record did not explain the tool’s findings, it was unreasonable for the agency to rely on CAT’s recommendation as its rationale for using an LPTA approach. Finally, in sustaining the protest, the GAO also reminded the agency that each procurement stands alone and the reasonableness of an action in a previous procurement does not justify an action in a later procurement.

Improper use of LPTA in defense procurements is a patent defect in the solicitation subject to a pre-award protest, which must be filed before the closing date for the submission of proposals. To justify the use of LPTA in defense procurements, agencies must satisfy eight mandatory DFARS criteria. The procuring agency’s failure to meet even one of the eight criteria can be grounds for sustaining a protest. The DFARS PGI has additional limitations and prohibitions that COs must follow. For instance, as demonstrated by the Air Force’s failure to meet criteria (vii) in this procurement, if a solicitation contains cost-reimbursable CLINs, then the agency will not be able to determine full-lifecycle costs at least until after the awardee is selected. There are other prohibitions on the use of LPTA criteria in procurements of certain defense items. For instance, designated personal protective equipment and aviation critical safety items may not be procured via the LPTA process when the level of quality or failure of the item could result in combat casualties. Finally, in procurements that predominantly seek to acquire knowledge-based professional services, defense agencies must demonstrate that they attempted to avoid competing the procurement on an LPTA basis to the maximum extent practicable. Since this is a high standard, the record must include a D&F document that adequately supports the agency’s decision to utilize LPTA criteria. Thus, protesters are well advised in such protests to thoroughly review the agency’s D&F document for deficiencies and inconsistencies, as it may provide additional grounds for sustaining the protest.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.

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Protesting DOD’s Use of LPTA Source Selection Criteria

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