By Government Contracts Editorial Staff
The Department of Defense has finalized a proposed rule (¶70,020.423) placing restrictions on use of the lowest price technically acceptable source selection process. The rule amends the Defense Federal Acquisition Regulation Supplement to establish limitations and prohibitions on the use of the LPTA source selection process, as directed by sections 813, 814, and 892 of the National Defense Authorization Act for Fiscal Year 2017 (PL 114-328), and sections 822, 832, 882, and 1002 of the FY 2018 NDAA (PL 115-91). These sections establish a preference for use of the tradeoff source selection process for certain safety items and auditing services, prohibit the use of reverse auctions or the LPTA source selection process for specific supplies and services, and set out criteria for the use of the LPTA process.
Limitations and Prohibitions. Under new DFARS 215.101-2-70, the LPTA source selection process may only be used when:
- minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards;
- little or no value will be realized from a proposal that exceeds the minimum technical or performance requirements;
- the proposed technical approaches will require minimal subjective judgment by the source selection authority;
- the SSA has a high degree of confidence that reviewing all technical proposals will not result in identifying characteristics that could provide value or benefit;
- there will be little or no additional innovation or future technological advantage using a different source selection process;
- the goods are predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life;
- the contract file contains a determination that the lowest price reflects full life-cycle costs of the product(s) or service(s) being acquired; and
- the contracting officer documents the contract file describing the circumstances justifying the use of the LPTA process.
DFARS 215.101-2-70 also states that the CO must avoid use of the LPTA process, to the maximum extent practical, in procurements for information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, or other knowledge-based professional services; items designated by the requiring activity as personal protective equipment; or services designated by the requiring activity as knowledge-based training or logistics services in contingency operations or other operations outside the United States. This new regulation prohibits use of the LPTA process to procure items designated by the requiring activity as personal protective equipment or an aviation critical safety item, when the requiring activity advises the CO that the level of quality or failure of the equipment or item could result in combat casualties. In addition, DFARS 215.101-2-70 prohibits use of the LPTA process for acquiring engineering and manufacturing development for a major defense acquisition program for which budgetary authority was requested beginning in FY 2019, and for auditing contracts. In connection with the rule, DoD added guidance on this new section to the DFARS companion resource, Procedures, Guidance, and Information, at PGI 215.101-2-70.
Reverse Auctions. Another new section, DFARS 217.7801, prohibits the use of reverse auctions when procuring items designated by the requiring activity as personal protective equipment or an aviation critical safety item, when the requiring activity advises the CO that the level of quality or failure of the equipment or item could result in combat casualties. DFARS 208.405, DFARS 212.203, DFARS 213.106-1, DFARS 215.101-2, DFARS 216.505, DFARS 234.005-2, and DFARS 237.270 are the other regulations impacted by the rule. The only change from the proposed rule is an editorial change to DFARS 213.106-1. The effective date of the final rule is October 1, 2019. For the text of the final rule, see ¶70,017.14.
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