The Department of Defense (DOD) recently joined the General Services Administration and National Aeronautics and Space Administration in amending the Federal Acquisition Regulation (FAR). The change will implement Section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019.
The amendment applies to criteria for, and limitations to, the use of the oft-criticized Lowest Price Technically Acceptable (LPTA) source selection criteria in federal contracting process.
The LPTA has long been a source of irritation for contractors, who see it as an unfair and possibly dangerous method to cut costs – with their main concern being that, in doing so, vendors would provide inadequate services and products to the federal government.
The Federal Register published a Final Rule effective on Feb. 16, 2021 in which it implemented LPTA restrictions for civilian agencies, as DOD had earlier implemented the same restrictions in October 2019. The timeline difference was related to DOD’s changes mandated by the 2017 and 2018 NDAA (with civilian agencies catching up in the 2019 NDAA).
While the Final Rule does not prohibit use of the LPTA in the source selection process, it does heighten clarity as to when it may be used. For example, it states, “Section 880 does require contracting officers to avoid, to the maximum extent practicable, using the LPTA source selection process … that is predominantly for the acquisition of information technology, 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-related procurements.”
Within the Analysis of Public Comments in the Federal Register, respondents expressed concern that the rule will be considered a complete ban on the use of the LPTA source selection process. However, that is clearly not the intention of this update.
The rule simply “aims to identify circumstances that must exist for an acquisition to use the LPTA source selection process and certain types of requirements that will regularly benefit from the use of trade-off source selection procedures” and that contracting officers are now required to document why they are using the LPTA process.
It is hoped that this formal rule change may usher in a dramatic upswing in quality that would benefit contractors and the federal agencies, with the better investment of tax dollars resulting in the creation of better, more efficient products.
The Small Business Administration (SBA) has issued another direct Final Rule. This dictum is the latest to concern the HUBZone Program’s map freeze, which was mandated by the NDAA 2018 from Dec. 31, 2021, to June 30, 2023.
First, some background: Several years ago, the SBA froze the HUBZone maps until the end of 2021 to ensure that firms would have ample time to plan after analyzing the results of the 2020 Census and discern how it would impact map boundaries. However, due to the COVID-19 pandemic, efforts to assess the results are lagging and the SBA does not expect to have the data it needs until the end of 2022.
The SBA’s direct final rule is a welcome change for many firms that were facing the loss of their HUBZone status at the end of this year; now, companies located in a redesignated area will have an extra 18 months to maintain eligibility in their current principal office location.
It is also possible that, once the HUBZone maps are updated, some areas that are currently in redesignated status could come back into the program.
Gloria Larkin is president and CEO of TargetGov. Email glorialarkinTG@targetgov.com, visit www.targetgov.com or call toll-free 1-866-579-1346 x 325 for more information.