As previously discussed on this blog, the Department of Defense issued a final rule in late 2019 amending the Defense Acquisition Regulation Supplement to establish restrictions on when and how DOD may use LPTA source selection procedures. Pursuant to the John S. McCain National Defense Authorization Act for Fiscal Year 2019, the new FAR rule places similar — though not identical — restrictions on civilian agencies.
The new FAR rule imposes three primary limits on the use of LPTA procedures.
First, the rule requires civilian agencies to “avoid, to the maximum extent practicable, using” LPTA procedures for 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; or
- Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
Second, the rule sets forth five criteria that must be met in order for LPTA procedures to be permissible for a procurement:
- 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.
Third, the rule requires contracting officers to document, in the contract file, “the circumstances that justify the use of the lowest price technically acceptable source selection process.” Per a response to a comment, however, agencies will not be required to provide “public notice or publication of the documented determination.”
Unlike the DFARS rule, the FAR rule does not contain a “Prohibitions” section designating certain circumstances when “contracting officers shall not use the lowest price technically acceptable source selection process.”
The new FAR rule, like the DFARS rule, will likely improve the viability of pre-award protests challenging the use of LPTA procedures, as it identifies specific criteria that agencies are supposed to consider in making the determination of whether to use LPTA procedures. Stay tuned for further developments on how GAO and the Court of Federal Claims interpret and apply both the DFARS rule and the new FAR rule.