Proposed Rule: FAR Limitations on LPTA Source Selection Process
Today, the Department of Defense ("DoD"), General Services Administration ("GSA"), and the National Aeronautics and Space Administration ("NASA") have published a proposed rule to amend the Federal Acquisition Regulation ("FAR") to provide limitations on the use of lowest price technically acceptable ("LPTA") source selection procedures.
Notably, this rule comes on the heels of DoD's recent final rule (discussed here) amending the Defense Federal Acquisition Regulation Supplement ("DFARS"), which which provides limitations and prohibitions on DoD's use of the LPTA source selection process.
Comments Due: December 2, 2019
Implements Section 880 of FY2019 NDAA, which makes it the policy of the Government to avoid using LPTA procedures "in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process."
Does not cover DoD procurements.
Proposed rule is similar to DoD's recent DFARS final rule restricting the use of the LPTA source selection process. However, unlike the DFARS rule, which provides eight criteria that must be met in order to justify LPTA source selection, the FAR proposed rule has six criteria.
Covers commercial items (FAR Part 12), simplified acquisition (FAR Part 13), and contracting by negotiation (FAR Part 15), ordering (FAR Subpart 16.5), and service contracting (FAR Part 37).
GSA will separately address LPTA source selection in the Federal Supply Schedules Program.
Proposed –– FAR § 15.101-2
Except for DoD procurements, the LPTA source selection process "shall only be used when":
The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements;
The agency believes the technical proposals will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;
The agency has 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 to the agency;
The agency determined that the lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired; and
The contracting officer documents the contract file describing the circumstances that justify the use of the lowest price technically acceptable source selection process.
In addition, the proposed rule also provides that, except for DoD procurements, contracting officers "shall avoid, to the maximum extent practicable," using LPTA source selection procedures in the case of a procurement that is "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, or other 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.
Should the proposed rule become final in its current form, civilian agencies will be greatly limited in their ability to use the LPTA source selection process. Indeed, this proposed rule is welcome news for many government contractors in the IT, cyber, systems engineering, consulting, telecom, and healthcare sectors, as a number of contractors have expressed concerns regarding the use of LPTA source selection in these types of procurements.
Lastly, given that civilian agencies will likely need to satisfy all six conditions to justify using the LPTA source selection process, it's possible that civilian agencies could see an uptick in pre-award bid protests challenging the use of LPTA source selection procedures.
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