The National Defense Authorization Act for Fiscal Year 2017 and the NDAA for Fiscal Year 2018 imposed new limitations on when the Department of Defense can use Lowest Price Technically Acceptable source selection methods.
Just last month, the Department of Defense issued a final rule amending the Defense Federal Acquisition Regulation Supplement to implement those provisions. Now, in Inserso Corp., B-417791, B-417791.3, Nov. 4, 2019, GAO has weighed in on what counts as LPTA for purposes of those restrictions. This decision may indicate a potentially significant limitation on the reach of the NDAA provisions, new DFARS rule, and proposed FAR rule.
In Inserso, the protester argued that the 2017 NDAA restricted not only DoD’s use of an LPTA source selection process, but also the use of (what the protestor labeled) LPTA criteria within the evaluation process. Specifically, the protester challenged the fact that, under the RFQ, the agency would (1) “first rank quotations according to price, from lowest to highest”; (2) then “evaluate the five lowest-priced quotations as either technically acceptable or unacceptable” (while “reserving the right to evaluate additional quotations”); (3) then “evaluate only technically acceptable quotations under the past performance factor”; and (4) award the task order to the offeror “considered to be the Best Value based upon a price/past performance trade-off” (alteration omitted). According to the protester, the 2017 NDAA required the agency to conduct a tradeoff between price and technical factors — rather than relegating the technical factor to a pass/fail gating criterion.