Monday, August 13, 2012


On March 22, 2012, we reported on an opinion by Judge Bush of the Court of Federal Claims (COFC) in which she said it was illegal to convert a best value tradeoff procurement to a lowest price, technically acceptable (LPTA) buy (without revising the solicitation and notifying the offerors of the change).  She pointed out that FAR 15.101-1 and 15.101-2 contain entirely different procurement methods.  As we've pointed out, best value has become synonymous with the tradeoff analysis described in FAR 15.101-1.  Also, tradeoffs are specifically not permitted in LPTA buys.

On August 5, 2012, we reported on a Government Accountability Office (GAO) decision that an agency cannot turn a best value tradeoff procurement into LPTA without revising the solicitation and notifying the offerors.

In today's procurement world, agencies are always trying to find ways to get prices down.  In the extreme, this has led to reverse auctions where bidders are actually bidding against themselves and their published competitor's prices.  In other cases, hard nosed negotiating forces offerors to revise prices down out of pure fear.  In still others, nearly all procurements are fixed price even when they should be time and materials or cost reimbursement.  Finally, the current cost/price cutting environment has led to a belief that any procurement can be turned into LPTA so long as the evaluation of proposals is reasonable (the position the agency took in the case Judge Bush addressed).

We believe one of the problems is that procurement officials think best value is a continuum and that means they can shift the evaluation along a line from tradeoff to lowest price.  The word continuum must be removed.  It is misleading and ambiguous.  Even if intellectually one can look at these two types of procurement as part of a package, there is no room for language which has no practical effect and which leads to misunderstanding and errors in how contracts get awarded.  There are two types of procurements: best value tradeoff and LPTA (call if best value if you must).

What we really are concerned about is that now is not the time to abandon best value tradeoffs in favor of LPTA (to say nothing of the inappropriateness of using LPTA for the wrong purposes).  It's the old penny wise and pound foolish issue.  It's why we invented best value in the first place: to be sure we got the very best deal, all things, including price, considered.  With all its subjectivity, best value tradeoffs nevertheless are supposed to assure the best overall deal.

We invite your views.  To avoid confusion and the possibility that even one more procurement may go the way we described in the COFC and GAO cases, we should take the word "continuum" out of the regulation and our lexicon.  It was cute, but it should go. 

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