Key provisions

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.

1. On September 26, 2019, the DOD issued a final rule to implement statutory restrictions on the use of the LPTA source selection process. See Reed Smith's recent client alert.

Client Alert 2019-249