By Government Contracts Editorial Staff
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration are proposing to amend the Federal Acquisition Regulation to implement section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (PL 115-232, 41 USC 3701 Note) which makes it the government’s policy to avoid use of the lowest price technically acceptable source selection criteria in circumstances that would deny the government the benefits of cost and technical tradeoffs. Section 880 requires the use of LPTA source selection only when:
- the agency can comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability;
- the agency would realize little or no value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposals;
- the technical approaches will require little or no subjective judgment by the source selection authority as to the desirability of one proposal versus another;
- the agency has a high degree of confidence that a review of proposals of other than the lowest bidder would not result in the identification of factors that could provide value or benefit;
- the contracting officer has included a justification for the use of an LPTA evaluation methodology in the contract file; and
- the agency has determined that the lowest price reflects total costs, including costs for operations and support.
Section 880 also provides that use of LPTA source selection criteria is to be avoided in procurements that are 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; 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.
Restrictions. The rule would amend FAR 12.203, FAR 13.106-1, FAR 13.106-3, FAR 15.101-2, FAR 16.505, and FAR 37.102 to require COs to ensure procurements meet section 880’s criteria before including LPTA source selection requirements in solicitations. The rule would also require COs to document the contract file with a justification for the use of the LPTA source selection process and avoid the use of LPTA criteria in procurements that are predominantly for the supplies and services identified in section 880. This rule does not apply to DoD or the Federal Supply Schedule Program. DoD recently finalized a separate rule implementing restrictions on the use of LPTA source selection criteria (¶70,017.14), and GSA will separately address the applicability of section 880 to the FSS Program. Submit comments on the proposed rule referencing FAR Case 2018-016 by December 2, 2019. For the text of the rule, see ¶70,006.346.
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