FedSubK Feature: Lowest Price Technically Acceptable (LPTA) - What is it Good For? Absolutely Nothing When Not Used Correctly.
Who needs a quiet Sunday? I guess I decided I didn’t since I got a slew of questions related to my response to Jackie Robinson-Burnette’s post on LPTA a while back where she posted a picture of a partial started house addition with a blue tarped roof with the tag line “Covered Deck. Lowest Priced Technically Acceptable”. (By the way, great picture, Jackie. It illustrated the concept most people have about LPTA perfectly. You can find Jackie’s post and my comment here.)
If you know anything about me it’s--
(1) I love a chance to talk about the FAR, and
(2) source selection is one of my favorite topics because it was my favorite thing to do as a Contract Specialist and Contracting Officer.
And I did A LOT of source selections. So much so I was THE person that reviewed and critiqued all evaluation criteria written for service contracts within my branch, division, or business line at the three agencies where I worked. I was able to write evaluation criteria that were protest-proof, and I trained evaluation teams on how to evaluate criteria correctly and document their evaluation in such a manner that there were no protest gaps. I was good at it because I always wrote / reviewed solicitations from the perspective of not only the Government but the industry perspective and how it could be interpreted. This allowed us to shore up gaps before moving forward.
And this takes me back to one of the most controversial and polarizing things in source selection, use of the Lowest Price Technically Acceptable (LPTA) evaluation method. If you’ve been in the Federal marketplace for any amount of time you know what it is and the history behind its popularity and bad rap. For those that don’t, let’s go over it quickly.
What is LPTA?
FAR Subpart 15.101-2 covers the LPTA process and states LPTA is a source selection process that is right for use when the best value is expected to result from selection of the “technically acceptable proposal with the lowest evaluated price”. In the case of LPTA, cost tends to be the driver in the selection since technical superiority is not desired, only that the contractor meets a minimum acceptability threshold as set in the solicitation. The solicitation will also specify the award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors.
What does that mean? Ultimately, if you meet the technical thresholds set across the board and your price is the lowest, you win! It’s a way to verify that a company can meet minimum technical requirements though budget is the true driver for the acquisition.
So, let’s break that down a little more.
Technical Acceptability. The level of technical acceptability is determined by the Government and evaluation factors must describe technical acceptability in terms of objective measures and/or standards. When evaluating only “Pass/Fail”, “Go/No Go”, or “Green/Red” scores are used. To be among offerors considered for contract award, an offer must receive a “Pass”, “Go”, or “Green” in every factor and subfactor. Those offers move forward for the evaluation of price. It only takes one “Fail”, “No Go”, or “Red” rating and the offer is eliminated from further consideration. Because there is no subjectivity in this type of evaluation method, offers are not ranked in terms of technical superiority.
Conversely, when using the tradeoff method, factors are written such that subjective analysis and review results in various degrees of technical acceptability which are expressed as adjectival ratings, colors, or numeric scores within a range. A Competitive Range is established and only those offers with the most likelihood of award continue on into negotiations with the Government.
While there is no room for subjectivity in the LPTA technical review, trust me, evaluators will try to sneak it in. For example, they will use ratings like “Pass++”, “Go – “, and “Bright Green”. And you guessed it, that doesn’t fly. They get sent back to the evaluation room to do it all again and put offers clearly into one of the two categories for every factor.
In LPTA, those offers that meet the technical acceptability thresholds then moved on to the price evaluation.
Lowest Evaluated Price. Notice the word “evaluated”. This means that the agency may review the price along with any other price factors as stipulated in the solicitation for those offers that achieved a “Pass”, “Go”, or “Green” in all technical factors.
In some instances, the term “evaluated price” means the actual price offers. But in other instances, the Government may add other price factors into the mix (and as disclosed in the solicitation) to arrive at an evaluated price, or a price that may not reflect the actual price(s) proposed but is used to determine the awardee.
Evaluated prices are ranked in order from low to high. The technically acceptable offer with the lowest evaluated price is the apparent contract awardee.
When is LPTA Used?
It differs for Department of Defense (DoD) and non-DoD agencies. Section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 states that, except for DoD, LPTA shall only be used when ALL the below are met—
(1) The minimum technical acceptability requirements can be comprehensively and clearly described.
(2) There is no realized, or only minimal, value from a proposal that exceeds the minimum technical or performance requirements.
(3) Technical proposals will require no, or only minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal.
(4) There is a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit.
(5) The lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired.
(6) The Contracting Officer determines in writing the circumstances that justify the use of the LPTA process.
In the same law, except for DoD, Contracting Officers are directed that they shall AVOID, to the maximum extent practicable, the use of LPTA for procurements that are predominantly for the acquisition of—
- Information technology services,
- Cybersecurity services,
- Systems engineering and technical assistance services,
- Advanced electronic testing,
- Audit or audit readiness services,
- Health care services and records,
- Telecommunications devices and services,
- Knowledge-based professional services,
- Personal protective equipment, or
- Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
The Defense FAR Supplement (DFARS) Subpart 215.101-2-70 states the same rules apply within DoD but adds* that the use of LPTA shall also only be when—
- No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process,
- Goods to be procured are predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life.
- The contract file includes a determination that the lowest price reflects full life-cycle costs of the product(s) or service(s) being acquired.
*(as amended by Section 822 of the NDAA for FY2018 (Pub. L. 115-91))
In addition, DoD outlines the following prohibitions:
- Contracting Officers shall not use the lowest price technically acceptable source selection process to procure items designated by the requiring activity as personal protective equipment or an aviation critical safety item, when the requiring activity advises that the level of quality or failure of the equipment or item could result in combat casualties.
- In accordance with section 832 of the National Defense Authorization Act for Fiscal Year 2018 (see 10 U.S.C. 4232), contracting officers shall not use the lowest price technically acceptable source selection process to acquire engineering and manufacturing development for a major defense acquisition program for which budgetary authority is requested, beginning in fiscal year 2019 and beyond.
- Contracting Officers shall make award decisions based on best value factors and criteria, as determined by the resource sponsor (in accordance with agency procedures), for an auditing contract. The use of the lowest price technically acceptable source selection process is prohibited (10 U.S.C. 240f).
Is Past Performance Evaluated under LPTA?
Unless the Contracting Officer documents the file in accordance with FAR Subpart 15.304(c)(3)(iii) that past performance is not an appropriate evaluation factor for the acquisition, it will be evaluated. ed not be an evaluation factor in lowest price technically acceptable source selections.
If the Contracting Officer elects to consider past performance as an evaluation factor, it will be evaluated like any other solicitation in accordance with FAR Subpart 15.305 but there will be no comparative assessment made. The same ratings of "Acceptable", "Unacceptable" (or similar), and "Neutral" (for no record of past performance) will be used.
If the Contracting Officer determines that a small business’ past performance is not acceptable, the matter shall be referred to the Small Business Administration (SBA) for a Certificate of Competency (COC) determination, in accordance with the procedures at FAR Subpart 19.6.
How an LPTA Evaluation is Conducted.
As is standard for all source selection procedures, the technical and price evaluations are conducted separately by different teams called the Technical Evaluation Board (TEB) and the Price Evaluation Board (PEB), who combined are known as the Source Selection Evaluation Board (SSEB). The TEB and the PEB do not show the findings of their team to the other and non-disclosure agreements are signed by all evaluators and non-voting board members (i.e., advisors).
After the Boards receive their training on how to conduct the evaluation, in accordance with the Source Selection Evaluation Plan (SSEP) (which is developed prior to the receipt of proposals), the TEB will receive copies of each offer and worksheets to document an independent review and assessment of each offer in terms of meeting the technical acceptability thresholds of each factor (and subfactor). TEB members will individually document their rationale and write down the pages of the offer and quote offer language to substantiate their position.
Once the individual reviews by TEB members are completed, the TEB will meet as a group and discuss their individual ratings and rationales until they come to a consensus evaluation rating and agree on the supporting documentation within the offer (or missing from the offer) for their findings. Typically, when using the LPTA method, once a “Fail”, “No Go”, or “Red” rating is received by an offer it is documented and the offer removed from further review and consideration for award without the remaining factors / subfactors being evaluated. Review of all factors continues for the remaining offers until all offers remaining are either eliminated from further consideration or they have received “Pass”, “Go”, or Green ratings on all factors.
The TEB completes consensus rating sheets. A final consensus TEB report of findings is prepared to summarize the process, individual and consensus ratings, and any key discussions and decisions made by the TEB, any dissenting opinions, and to summarize the outcome. The consensus evaluation report with all supporting documentation (to include individual and consensus worksheets and notes) is provided to the Contracting Officer for review and feedback.
The PEB will do its separate evaluation related to the price requirements of the solicitation similarly to the process used by the TEB (i.e., individual reviews, then by consensus, documented and a report written). Upon completion, a PEB consensus report is created and provided to the Contracting Officer, if the Contracting Officer did not take part in the price review directly.
The Contracting Officer then reviews both reports and the supporting documentation, discusses any discrepancies found, asks for more information or documentation where needed, and then writes the Source Selection Decision document outlining the process, each Boards’ findings, and the contract award decision. This decision document is then signed by the Source Selection Authority (SSA) which may be the Contracting Officer themselves but may be one level above the Contracting Officer when certain dollar thresholds are met.
Give Examples of LPTA Technical Evaluation Criteria.
“Vendor shall submit a copy of the certification documenting they are a current licensed KDHE UST contractor and tightness tester. Failure to submit this certification will cause the vendor to be rated technically.”
“Contractor shall name and provide for least one currently certified Diagnostic CT/Radiological Technologist available for the duration of the contract for the work hours shown. Include all required information as listed below with supporting credential documentation as listed in the Statement of Work. Failure to provide any document in the personnel package will result in this factor being rated as “Unacceptable.””
“The Altitude Simulation Unit to be provided must meet the following product specifications:
o Interior dimensions (minimum dimensions): 15” x 15” 15”
o Exterior dimension (maximum dimensions): 60” (W) x 30” (D) x 30” (H)
o Pressure range (minimum): 1,000’ – 8,000’
o Features a controller unit that will monitor pressure within the chamber, recognize when pressures have diverged from a given setting, and then re-pressurize as needed.
o Chamber fitted with glove access for use while pressurized.
o Whole system needs to include the pump, controller unit, and chamber.
Failure to provide a specification sheet for validation of these requirements will result in the elimination of your offer from further consideration.”
Can a Solicitation include both LPTA and Other Evaluation Criteria?
Yes, however, it is not a recommended practice. This occurs most often when a requirement must be verified through submission of a document such as a certain certification, insurance rating, or other industry standard.
Is the LPTA Evaluation Method Being Used Successfully by Government?
Well…that’s THE loaded question and where the LinkedIn post by Jackie Robinson-Burnette and my answer takes us. My opinion is--
- The Government uses LPTA.
- The Government currently awards contracts using LPTA methods.
- BUT (and it's a big one) the Government isn’t doing it correctly.
What the Government labels as LPTA criteria really isn’t measurable simply using “pass/fail” ratings. This is why TEBs tend to play around with ratings to find a way to describe for the Contracting Officer the degrees in which offers vary. This is, as Randy Lange wrote in his comment to the post, “…LPTA disguised as “best value”.” And it drives me crazy!
There are also several experiences on both sides of the fence -- industry and Government -- and takes on it. From the Government taking the easy way out, Contracting Officers not having the time to babysit Project Managers who cannot come up with objective measures, and industry bystanders who have been battle-worn by the process when it’s not deployed correctly.
Now what do you think? What is LPTA good for? Absolutely nothing? There are still very good and reasonable use cases for LPTA, when done right!
Regardless of where you stand on the LPTA debate, now you know what LPTA is supposed to be good for and how it is supposed to work. But until the Government can use it correctly, LPTA should be used for absolutely nothing.
(August 2024)
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DoD Reduction In Force (RIF) Guidance
Just when you thought it couldn't get any more confusing, some agencies also have their own RIF guidance separate from the OPM guidance that is what we've heard the most about. DoD is one of those agencies.
A copy of the current DoD RIF guidance, DoD Instruction 1400.25, Volume 351, is found at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_V351.PDF?ver=DgEFMmb9dLDV7OV-PLb7VQ%3D%3D
This guide establishes policy, assigns responsibilities, and prescribes procedures for reduction in force (RIF) actions taken under Part 351 of Title 5, Code of Federal Regulations (CFR), as modified by Section 1597(f) of Title 10, United States Code (U.S.C.).
This guidance does not, in full, apply to DoD employees covered by an alternative personnel system (e.g., the Acquisition Demonstration; Science and Technology Reinvention Laboratories; and the Defense Civilian Intelligence Personnel System). Those systems will develop their own policies and procedures for RIF that comply with the law, as approved by the Under Secretary of Defense for Personnel and Readiness (USD(P&R)). This guide also does not apply to Senior Executive Service (SES) positions.
The policy statement in 1.2 states that, "For any RIF of civilians in the competitive and excepted services in the DoD, the determination as to which employees will be separated from employment must be made primarily on the basis of performance."
In accordance with 10 U.S.C. 1597, DoD must report to Congress 45 days prior to implementing an approved RIF.
DoD will comply with 5 CFR 351.402 and 351.403 when establishing competitive areas and competitive levels, respectively. Competitive service employees and excepted service employees are placed on separate retention registers established in accordance with 5 CFR 351.404 and 351.405.
For purposes of DoD RIF, employees are placed in one of two categories:
- employees with a period of assessed performance of less than 12 months, and
- employees with a period of assessed performance of 12 months or more.
An employee’s period of assessed performance for purposes of RIF will be the sum of the months of assessed performance associated with the employee’s performance appraisals within the most recent 4-year period preceding the cutoff date established for the RIF. However, periods of time in a rating cycle for which an employee’s performance was not assessed are not included in the employee’s period of assessed performance.
For example, if an employee receives a rating after serving 10 months of the 12-month cycle, the employee’s period of assessed performance is 10 months for that rating cycle.
For employees absent for military service, periods of time during the rating period may be treated as periods of assessed performance if they meet the requirements of Paragraph 3.3.c.(1) under Paragraph 3.3.b.(2) of the DoD guide.
Retention Factors
Competing employees are listed on a retention register based on--
- Rating of Record. See Section 3.3.c. for rating of record examples based on cutoff dates, military service, time frames for ratings to be used, and ratings from a system other and the Defense Performance Management Program (DPMAP).
- Tenure Group. This follows the definitions found in 5 CFR 351.501(b) for competitive service and 5 CFR 351.502(b) for excepted service.
- Average Score. In general, an employee’s average score for one performance appraisal is derived by dividing the sum of the employee’s performance element ratings by the number of performance elements. The average of the average scores drawn from the two most recent performance appraisals received by the employee, except when the performance appraisal reflects an “unacceptable” rating of record will be reviewed. When the most recent performance appraisal reflects an “unacceptable” rating of record, only that performance appraisal will be considered for purposes of the employee’s average score.
- Veterans’ Preference. This follows the procedures in 5 CFR 351.501(c) with three veterans' preference subgroups:
- AD - 30% or more disabled veteran
- A - eligible for veterans' preference for the purpose of RIF but not for placement in the AD category (i.e., less than 30% disabled veteran determination)
- B - not eligible for veterans' preference for purpose of RIF
- DoD Service Computation Date-Reduction in Force (DoD SCD-RIF). Follows rules of credible service as found in 5 CFR 351.503(a) and (b). DoD does not follow 5 CFR 351.504, which grants additional retention service credit in RIF based on an employee's ratings of record.
Rounds in Reduction in Force (RIF)
Two rounds of RIF will be conducted. Round One, Release from Competitive Level, and Round Two, Assignment Rights, are explained in the document in detail related to types of appointments, order of release from the competitive level, and exceptions that may apply. They are found in sections 3.5 and 3.6, respectively.
Displacement may occur during Round Two. Displacement is the assignment of an employee to a continuing position in a different competitive level that is held by another employee with a lower retention standing (i.e., “bumping” another employee). Displacement may be at the same grade or at a grade up to three grades or grade intervals (or equivalent) below the position of the released employee.
Right of Only One Offer
Employees released from a retention register are only eligible for one offer of assignment (similar to OPM rules), with some exceptions. If the employee accepts and offer, rejects an offer, or fails to reply to an offer in a timely manner, they are not entitled to further offers. However, the DoD Component must make a better offer of assignment to a released employee (i.e., to a position with a higher representative rate) if a position becomes available before, or on, the RIF effective date.
Sample retention registers and scenarios are found in the guide in Appendix 3A. Employees have the right to request a review of retention registers and have representation also be allowed to review the registers, as requested by the employee.
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DISCLAIMER: Info is provided for awareness. I am NOT an HR professional but an HR enthusiast having started in HR and being a Federal supervisor and hiring manager. Before taking any action that changes your status, please seek the advice of an attorney knowledgeable in Federal employment law.
Voluntary Separation Incentive Payment (VSIP)
Voluntary Separation Incentive Payment (VSIP) allows agencies that are downsizing or restructuring to offer employees lump-sum payments up to $25,000 as an incentive to voluntarily separate. The amount received is reduced by Fed and state taxes, social security, and Medicare, as applicable.
The full guide on the program is found at the OPM website https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-separation-incentive-payments/guide.pdf
Eligibility for VSIP requires an employee be employed by an Executive Branch agency for at least three (3) continous years without a time limit and not be--
▶️ a reemployed annuitant;
▶️ otherwise be eligible for disability retirement;
▶️ recipient of a notice of involuntary separation for misconduct or poor performance;
▶️ recipient of any previous VSIP from the Federal Government;
▶️ on a service agreement for which--
➡️ a student loan repayment benefit was paid, or is to be paid, during the 36-months preceding the date of separation;
➡️ a recruitment or relocation incentive was paid, or is to be paid, during the 24-months preceding the date of separation; and
➡️ a retention incentive was paid, or is to be paid, during the 12-months preceding the date of separation.
If you receive a VSIP and later come back to Federal Service within 5 years of the date of the separation on which the VSIP is based, you must repay the entire amount before your first day of reemployment. This includes working under a personal services contract or other direct contract with the Government.
The top 10 questions related to VSIP can be found at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-early-retirement-authority/top-10-frequently-asked-questions-about-vera-and-vsip.pdf
OPM's page on VSIP is at https://www.opm.gov/policy-data-oversight/workforce-restructuring/voluntary-separation-incentive-payments/
DISCLAIMER: Information is provided for situational awareness. I am not an HR professional but an HR enthusiast having been a Chief of Contracting and Federal supervisor. Please consult with an attorney knowledgeable in Federal employment law before making any decisions that impact your Federal employment status.
Separate Your Government and Personal Communications
Feds...if you haven't separated your Government communications from your personal communications yet, now is the time to do it.
There has never been an expectation of privacy while using Government Furnished Equipment (GFE). But GFE has been allowed to be used for quick personal calls or emails to check in with children or with family members during the work day. And over time, you may have blended your Government and personal communications more than you realize.
Now, however, it appears your every digital and possibly physical move may be tracked, recorded, and stored. Software and hardware that tracks employee activity, digital behavior, and even movements within Government office space should be expected. Tracking software has (allegedly) already been pushed at some agencies or is (allegedly) expected to be pushed soon.
Computer monitoring programs are expected to track:
🔸️Key stroke loggers to record what is typed or edited
🔸️Analyze chats for flagged words
🔸️Network activity, file access, login, and online behaviors
🔸️Application usage and websites visited and what was searched
Expect software applications to be employed that will analyze this information and generate behavior risk scores by employee. Also expect that all online meetings and chats will be recorded, transcribed, and stored / archived for review without the choice to turn those features off.
Several employees at one prominent agency are reporting their GFE laptop cameras and possibly mics are being turned on during their work day without their consent and outside of active video meetings.
Highly suggest --
▶️ using a privacy cover for your webcam.
▶️ monitoring the activation light.
▶️ taking all personal calls away from your work space on a personal device.
▶️ taking other precautions to protect sensitive conversations, business and personal such as only using a personal device.
