The Federal Government is emphasizing Lowest Price Technically Acceptable (“LPTA”) source selections. If your company submits a proposal for such a contract, but is not selected, on what grounds might it challenge the award to a competitor?
LPTA is a type of Best Value analysis, but with some twists. Unlike a typical Best Value selection, there is no tradeoff made between price and non-price factors. The federal agency will evaluate whether each offeror meets the technical requirements of the RFP. Of the ones that do, the lowest cost offeror will be selected. Per FAR 15.101-2, technically acceptable proposals are not ranked in the order of desirability, so you will receive no advantage for offering a “better” technical package or extra enhancements.
Sometimes the evaluation process will proceed inversely. Meaning, the agency first identifies the lowest price proposal, then determines if it’s technically acceptable. If it isn’t, the evaluator moves to the next lowest priced proposal.
Either way, in an LPTA acquisition, the grounds for protesting an award to your competitor are narrow. Challenging the evaluation criteria themselves is usually not an option, as the GAO affords agency acquisition officials broad discretion in establishing the criteria. A contractor whose price was lowest, but who is judged technically unacceptable can challenge that finding. Alternately, if there is a good-faith basis to believe the winning offeror should have been technically unacceptable, one can challenge the awardees’ technical proposal. To prove such a claim, your legal counsel can gain access to the awardees’ proposal pursuant to a Protective Order issued by the GAO.
Beyond that, look for optional selection criteria that the agency needn’t have included in the solicitation, but did. For example, per FAR 15.101-2(b)(1), past performance needn’t be part of the non-price factors to be considered, though many solicitations include it anyway. Ultimately the evaluation process needs to be consistent with the grounds announced in the RPF. If they are not, the remedies available from the GAO include reopening the competition, or even a Directed award.
Sebaly Shillito + Dyer’s Government Contracts team has experience in protesting awards, which enables us to provide pre-bid and post-bid advice to our clients. If you have questions, please contact Bob Hanseman at 937.226.5601, or visit us at ssdlaw.com.