On October 2, 2019, the Department of Defense, General Services Administration, and NASA issued a proposed rule that would amend the Federal Acquisition Regulation to establish new restrictions on when and under what circumstances civilian agencies may employ Lowest Price Technically Acceptable source selection procedures.  The proposed rule would implement Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, and follows hot on the heels of DoD’s final rule making similar — but not identical — amendments to the Defense Federal Acquisition Regulation Supplement.  (See our recent blog post on the new DFARS rule.)

The proposed FAR rule would make three significant changes to civilian agencies’ use of LPTA procedures.

First, it would require civilian agencies to “avoid, to the maximum extent practicable, using” LPTA procedures for procurements that are “predominately for the acquisition of”:

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.

This provision is similar to the corresponding provision in the final DFARS rule — except that the proposed FAR rule includes audit or audit readiness services, health care services and records, and telecommunications devices and services in the first category above, whereas the final DFARS rule does not.

Second, the proposed FAR rule includes five criteria that must be met in order for LPTA procedures to be permissible for a particular procurement, including:

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; and
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.

Again, the proposed FAR rule is similar to the final DFARS rule — except that the final DFARS rule includes two additional criteria regarding (1) the potential for future innovation; and (2) the life expectancy and nature of the goods to be procured.

Third, the proposed FAR 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.”  This requirement also appears in the final DFARS rule.

A few other aspects of the proposed FAR rule bear mention:

• Unlike the final DFARS rule, the proposed FAR rule does not outright prohibit LPTA procedures for any types of procurements.
• The proposed FAR rule would not apply to the Federal Supply Schedule program — and “GSA will separately address the applicability of section 880 [of the 2019 NDAA] to the Schedules Program.”
• The agencies note that “[t]he Government does not collect data on the total number of solicitations issued on an annual basis that do or do not specify the use of the LPTA source selection process.”

Comments on the proposed FAR rule can be submitted on or before December 2, 2019.

As discussed in our post on the final DFARS rule, the proposed FAR rule — once finalized — likely will improve the viability of pre-award protests challenging the use of LPTA procedures in civilian-agency procurements.  Stay tuned for developments.