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New rules limit lowest price, technically acceptable selection procedures

The Department of Defense (DOD) has issued a final rule to prohibit the use of lowest price, technically acceptable (LPTA) source-selection procedures unless the circumstances satisfy eight criteria. The procedures direct contracting officers to avoid LPTA procedures for certain knowledge-based professional services.

Under the final rule, DOD may use LPTA procedures only when—

  1. DOD can clearly describe minimum requirements in terms of performance objectives and acceptability standards.
  2. DOD would realize little or no value from a proposal exceeding the minimum technical requirements.
  3. DOD would realize little or no additional innovation or technological advantage through a different methodology.
  4. The proposed technical approaches can be evaluated with little or no subjectivity.
  5. It is highly likely that reviewing technical proposals, other than the lowest bidder, would not identify factors providing other benefits to the Government.
  6. A written justification is in the contract file.
  7. For procurement of goods, the goods are predominantly expendable in nature, are nontechnical, or have a short life expectancy.
  8. The lowest price reflects full life-cycle costs, including operations and support.

In a more liberal context, the new rules only require contracting officers to avoid LPTA procedures “to the maximum extent practicable” for—

  • Information technology and cybersecurity services.
  • Systems engineering.
  • Advanced electronic testing.
  • Other knowledge-based professional services.
  • Personal protective equipment.
  • Knowledge-based training or logistics services in overseas contingency operations.

The DOD rule further prohibits use of LPTA procedures for personal protective equipment and aviation-critical safety items if their failure could cause combat casualties, as well as for engineering and manufacturing development for major programs. The rule implements §§ 813, 814, and 892 of the National Defense Authorization Act (NDAA) for fiscal year (FY) 2017 and §§ 822, 832, 882, and 1002 of the FY 2018 NDAA. The final rule was effective on October 1, 2019. See 84 Fed. Reg. 50785 (Sept. 26, 2019).

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2019

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Tuesday, 07 July 2020

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