Is LPTA effectively dead for DOD procurements? On October 2, 2019, on the heels of the DOD’s final rule implementing statutory restrictions via the Defense Federal Acquisition Supplement (DFARS) on the use of the LPTA source selection processes in DOD procurements1, the FAR Council issued a proposed rule which would amend the FAR in a similar manner. The proposed rule would incorporate into the FAR the statutorily mandated limitations and prohibitions on the use of the LPTA process found in section 880 of the John S. McCain National Defense Authorization Act (NDAA) for fiscal year (FY) 2019 (Pub. L. 115–232). Of note, section 880 of the NDAA does not apply to the DOD; rather section 813 of the NDAA for FY 2017 (10 U.S.C. 2305 note) and section 822 of the NDAA for FY 2018 (10 U.S.C. 2305 note) establish similar restrictions applicable to use of the LPTA process in DOD procurements, which are being implemented via the DFARS amendment.
The LPTA process is part of the FAR Part 15 best value continuum and is one tool of many that may be used for competitive acquisitions. Currently, FAR 15.101-2 describes the LPTA process as being appropriate when the best value to the government will result from the selection of the technically acceptable proposal with the lowest price. The LPTA process has long been criticized, however, and has been viewed as an overused procurement procedure that ultimately stunts innovation and results in the U.S. government purchase of low-quality products and services.
The proposed rule would require contracting officers to: ensure procurements meet the criteria of section 880 before incorporating LPTA source selection criteria in solicitations; justify the use of the LPTA source selection process, when applicable, and ensure this justification is added to the contract file; and to avoid the use of LPTA source selection criteria in procurements that are predominantly for the supplies and services identified in section 880, to the maximum extent practicable. The proposed rule does not address how section 880 will apply to Federal Supply Schedules (“FSS”). General Services Administration has indicated that it will separately address the applicability of section 880 to the FSS Program at a later date.
The proposed rule will modify FAR 15.101-2 by adding two paragraphs. The paragraphs provide guidance and direction regarding the use of LPTA procedures that are categorized as follows: situations where the use of the LPTA process is limited, and situations where the LPTA process should be avoided, to the maximum extent practicable.
The proposed addition of FAR 15.101-2(c) limits the use of the LPTA process to situations where:
- 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 determines that the lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired.
- The contracting officer documents the contract file describing the circumstances that justify the use of the lowest price technically acceptable source selection process.
The proposed addition of FAR 15.101-2(d) requires contracting officers to avoid, to the maximum extent practicable, the use of the LPTA process in procurements that are predominately 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.
- Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
- Contractor action
The FAR Council has encouraged written comments to be submitted on or before December 2, 2019, in order for comments to be considered in the formation of the final rule. Contractors should familiarize themselves with the provisions of the proposed new rule and should submit comments to the Regulatory Secretariat Division. Contractors should also track developments on the related FAR case, at FAR Case 2018–016.