Government Contracts Evaluation Scheme Didn’t Violate LPTA Restrictions
Thursday, December 12, 2019

Evaluation Scheme Didn’t Violate LPTA Restrictions

By Government Contracts Editorial Staff

A protest of the terms of a request for quotations for information technology and cybersecurity services was denied because the protester failed to show the RFQ’s evaluation scheme violated statutory restrictions on the use of lowest-priced, technically acceptable award criteria. The RFQ stated the government would “award a task order … to the responsible offeror whose quote is responsive to the RFQ, technically acceptable and considered to be [the] [b]est [v]alue based upon a price/past performance trade-off.” The protester contended the provision was contrary to section 813(c) of the National Defense Authorization Act for Fiscal Year 2017 (PL 114-328, 10 USC 2305 note), as amended by the FY 2018 NDAA (PL 115-91), because it used LPTA source selection criteria to make the award determination and did not provide for a tradeoff between price and technical factors. Section 813(c) provides in part “[t]o the maximum extent practicable, the use of [LPTA] source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of … information technology services, cybersecurity services, ….”

Tradeoff Contemplated. The government’s interpretation of section 813 relied on FAR 15.101-2(b), which provides the LPTA process is used when “(1) award is based on the offer with the lowest evaluated price that meets or exceeds the acceptability standards for non-cost factors set forth in the solicitation; (2) if past performance is used as an evaluation factor, no comparative assessment is conducted; and (3) tradeoffs are not permitted.” According to the government, the RFQ did not use LPTA selection criteria as the basis for award because it contemplated a best-value tradeoff between price and past performance.

Reasonable Interpretation. The Comptroller General found the government’s interpretation of section 813(c) to be reasonable. Section 813(a) of the 2017 NDAA established a policy to avoid use of LPTA source selection criteria in circumstances that would deny the government the benefits of a cost and technical tradeoff, and in defining the situations in which LPTA selection criteria may be used, section 813(b) refers to technical requirements and technical approaches, not past performance. Neither section suggested that Congress specifically intended to preclude the use of past performance as a technical tradeoff factor with price. Since the protester could not point to anything in section 813 or in a regulation that specifically precluded the RFQ’s selection criteria, the RFQ’s evaluation scheme did not violate procurement law. (Inserso Corp., 34 CGEN ¶116,593)

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