Bradley attorney Aron Beezley was quoted in Law360 on a new Federal Acquisition Regulatory Council rule clamping down on federal agencies' use of price-focused contracts that could prompt fresh bid protests with uncertainty over definitions and other restrictions that could be interpreted in multiple ways. The rule discourages federal civilian agencies from using the lowest price technically acceptable (LPTA) model for certain types of complex acquisitions. LPTA deals make price the only distinguishing factor between bids as long as bidders meet a certain minimum technical standard.
Disputes over the rule's implementation could arise with contracts that are not explicitly included in the regulation, such as unusual technology deals that don't clearly fall under the rule's "information technology services" category. The full scope of the limited circumstances under which the rule still allows the use of LPTA contracts could also be tested, said Beezley.
"Agencies are still trying to figure out how this all works, whether they can still use LPTA procurements in certain situations; was it adequately documented; the justification for using it when they do," he said.
The almost inevitable result is a spike in related bid protests over the next few months, touching on issues such as whether an agency can properly justify an exception to the rule, Beezley said.
"If you're able to document that, and it's compelling, the [Federal Acquisition Regulation] gives you a little bit of wiggle room to do that," he added.
The original article, "Cost-Focused Contract Limits May Drive Bid Protest Spike," appeared in Law360 on February 16, 2021. (login required)