FAR Council Publishes Proposed Rule Limiting the Use of LPTA Procurements

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

We have written about Congress’s plan to limit the use of Lowest Price Technically Acceptable (LPTA) source selection criteria.  Recall that the FAR Council, the body responsible for adding new sections of the FAR, was preparing to issue a proposed rule implementing Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (2019 NDAA).  Section 880 includes the following policy statement: “It shall be the policy of the United States Government to avoid using lowest priced technically acceptable source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.”  Section 880 then goes on to provide a list of burdensome procedures that contracting officers must follow to use LPTA procurement procedures, and a list of services in which the use of LPTA will be avoided “to the maximum extent practicable.”

On October 2, 2019, the FAR Council finally published its proposed rule, which you can find here.  The proposed rule tracks the language in Section 880 of the 2019 NDAA.  Under the proposed rule contracting officers will be allowed to use LPTA procedures when:

  1. 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;
  2. The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements;
  3. 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;
  4. 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;
  5. 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
  6. The contracting officer documents the contract file describing the circumstances that justify the use of the lowest price technically acceptable source selection process.

And the use of LPTA will be avoided “to the maximum extent practicable” for contracts for:

  1. 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;
  2. Personal protective equipment; or
  3. Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

If you want to have input on how the FAR Council implements this rule for civilian agencies now is the time to enter comments in the rulemaking process.   You can submit a comment here.

It is important to note that the proposed rule applies to all government agencies except the Department of Defense (DOD).  The DOD has already implemented similar requirements through a new rule added to the Defense Federal Acquisition Regulation Supplement (DFARS), which was finalized October 1, 2019.  It is codified at DFARS 215.101-2-70.  So the DOD should already be avoiding the use of LPTA procurements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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