Defense Federal Acquisition Regulation Supplement: Restrictions on Use of Lowest Priced Technically Acceptable Source Selection Process (DFARS Case 2018-D010), 62550-62554 [2018-26306]
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62550
Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / Proposed Rules
(d) If the acquisition was set aside for
small business and has a value above
$150,000, or is an 8(a), HUBZone,
Service-Disabled Veteran-Owned,
Economically Disadvantaged WomenOwned, or Women-Owned Small
Business set-aside or sole-source award
regardless of dollar value, the small
business size standard for a Contractor
providing a product which it does not
manufacture, process, or produce itself,
for a contract other than a construction
or service contract, is 500 employees.
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■ 26. Amend section 52.219–29 by—
■ a. Revising the date of the clause;
■ b. Removing from the definition
‘‘Economically disadvantaged womenowned small business (EDWOSB)’’
‘‘means- A small’’ and adding ‘‘means a
small’’ in its place;
■ c. Removing from paragraph (c)(3)
‘‘contracting officer’’ and adding
‘‘Contracting Officer’’ in its place;
■ d. Removing paragraph (d);
■ e. Redesignating paragraph (e) as
paragraph (d);
■ f. Removing newly redesignated
paragraph (d)(4);
■ g. Redesignating paragraph (d)(5) as
(d)(4) and revising newly redesignated
paragraph (d)(4); and
■ h. Removing paragraph (f).
The revisions read as follows:
52.219–29 Notice of Set-Aside for, or SoleSource Award to, Economically
Disadvantaged Women-Owned Small
Business Concerns.
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*
*
Notice of Set-Aside for, or Sole-Source
Award to, Economically Disadvantaged
Women-Owned Small Business
Concerns (Date)
*
*
*
*
*
(d) * * *
(4) The Contracting Officer executes
the contract in the name of the
EDWOSB or joint venture.
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■ 27. Amend section 52.219–30 by—
■ a. Revising the date of the clause and
the introductory text of paragraph (a);
■ b. Removing from the second sentence
of paragraph (c)(1) ‘‘WOSB program’’
and adding ‘‘WOSB Program’’ in its
place;
■ c. Removing paragraph (d);
■ d. Redesignating paragraph (e) as
paragraph (d);
■ e. Removing newly redesignated
paragraph (d)(4);
■ f. Redesignating paragraph (d)(5) as
(d)(4) and revising newly redesignated
paragraph (d)(4);
■ g. Removing paragraph (f).
The revision reads as follows:
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52.219–30 Notice of Set-Aside for, or SoleSource Award to, Women-Owned Small
Business Concerns Eligible Under the
Women-Owned Small Business Program.
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Notice of Set-Aside for, or Sole-Source
Award to, Women-Owned Small
Business Concerns Eligible Under the
Women-Owned Small Business
Program (Date)
(a) Definitions. As used in this
clause—
*
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*
*
*
(d) * * *
(4) The Contracting Officer executes
the contract in the name of the WOSB
concern eligible under the WOSB
Program or joint venture.
*
*
*
*
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■ 28. Add section 52.219–XX to read as
follows:
52.219–XX
Nonmanufacturer Rule.
As prescribed in 19.508(g), insert the
following clause:
Nonmanufacturer Rule (Date)
(a) Definitions. As used in this clause—
‘‘Manufacturer’’ means the concern that
transforms raw materials, miscellaneous
parts, or components into the end item.
Concerns that only minimally alter the item
being procured do not qualify as
manufacturers of the end item. Concerns that
add substances, parts, or components to an
existing end item to modify its performance
will not be considered the end item
manufacturer, where those identical
modifications can be performed by and are
available from the manufacturer of the
existing end item.
‘‘Nonmanufacturer’’ means a concern,
including a supplier, that provides an end
item it did not manufacture, process, or
produce.
(b) Applicability.
(1) This clause does not apply to contracts
awarded pursuant to the unrestricted portion
of a partial set-aside or to a contractor that
is the manufacturer of the product or end
item.
(2) This clause applies to—
(i) Contracts that have been awarded
pursuant to a set-aside, in total or in part, for
any of the small business concerns identified
in 19.000(a)(3);
(ii) Contracts that have been awarded on a
sole-source basis in accordance with subparts
19.8, 19.13, 19.14, and 19.15; and
(iii) Orders set aside for any of the small
business concerns identified in 19.000(a)(3)
under multiple-award contracts as described
in 8.405–5 and 16.505(b)(2)(i)(F).
(c) Requirements.
(1) The Contractor shall—
(i) Provide an end item that a small
business has manufactured, processed, or
produced in the United States or its outlying
areas; for kit assemblers who are
nonmanufacturers, see paragraph (c)(2) of
this clause instead;
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(ii) Be primarily engaged in the retail or
wholesale trade and normally sell the type of
item being supplied; and
(iii) Take ownership or possession of the
item(s) with its personnel, equipment, or
facilities in a manner consistent with
industry practice; for example, providing
storage, transportation, or delivery.
(2) When the end item being acquired is a
kit of supplies, at least 50 percent of the total
cost of the components of the kit shall be
manufactured, processed, or produced in the
United States or its outlying areas by small
business concerns. Where the Government
has specified an item for the kit that is not
produced by small business concerns in the
United States or its outlying areas, such item
is excluded from the calculation of total cost.
(End of clause)
[FR Doc. 2018–25506 Filed 12–3–18; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 208, 212, 213, 215, 216,
217, 234, and 237
[Docket DARS–2018–0055]
RIN 0750–AJ74
Defense Federal Acquisition
Regulation Supplement: Restrictions
on Use of Lowest Priced Technically
Acceptable Source Selection Process
(DFARS Case 2018–D010)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD proposes to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement
sections of the National Defense
Authorization Acts for Fiscal Years 2017
and 2018 that establish limitations and
prohibitions on the use of the lowest
price technically source selection
process.
SUMMARY:
Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
February 4, 2019, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2018–D010,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2018–D010.’’ under the
heading ‘‘Enter keyword or ID’’ and
selecting ‘‘Search.’’ Select ‘‘Comment
Now and’’ follow the instructions
provided to submit a comment. Please
DATES:
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include ‘‘DFARS Case 2018–D010’’ on
your attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D010 in the subject
line of the message.
Æ Fax: 571–372–6093.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Carrie
Moore, OUSD (A&S)DPC/DARS, Room
3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Carrie Moore, telephone 703–372–6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the
DFARS to implement the limitations
and prohibitions on use of the lowest
prices technical acceptable (LPTA)
source selection process provided in
sections 813, 814, and 892 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2017 (Pub.
L. 114–328) and sections 822, 832, 882,
and 1002 of the NDAA for FY 2018
(Pub. L. 115–91). The following is a
summary of the statutory restrictions:
• Section 813 of the NDAA for FY
2017, as amended by section 822 of the
NDAA for FY 2018, establishes that the
LPTA source selection process shall
only be used when—
Æ Minimum requirements can be
described clearly and comprehensively
and expressed in terms of performance
objectives, measures, and standards that
will be used to determine the
acceptability of offers;
Æ No, or minimal, value will be
realized from a proposal that exceeds
the minimum technical or performance
requirements;
Æ The proposed technical approaches
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;
Æ The source selection authority 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;
Æ No, or minimal, additional
innovation or future technological
advantage will be realized by using a
different source selection process;
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Æ Goods to be procured are
predominantly expendable in nature,
are nontechnical, or have a short life
expectancy or short shelf life;
Æ The contract file contains a
determination that the lowest price
reflects full life-cycle costs of the
product(s) or service(s) being acquired;
and
Æ The contracting officer documents
the contract file describing the
circumstances justifying the use of the
lowest price technically acceptable
source selection process.
Section 813, as amended, further
provides that use of the LPTA process
should be avoided, to the maximum
extent practicable, when acquiring
information technology, cybersecurity
services, systems engineering and
technical assistance services, advanced
electronic testing, other knowledgebased professional services, personal
protective equipment, or certain
services in support of contingency or
other operations outside the United
States.
• Section 814 of the NDAA for FY
2017 prohibits the use of reverse
auctions or the LPTA source selection
process when purchasing personal
protective equipment, if the level of
quality or failure of the item could
result in combat casualties. Section 882
of the NDAA for FY 2018 amends
section 814 to further prohibit the use
of reverse auctions or the LPTA source
selection process for aviation critical
safety items as defined in 10 U.S.C.
2319(g).
• Section 832 of the NDAA for FY
2018 prohibits the use of the LPTA
source selection process for engineering
and manufacturing development (EMD)
of a major defense acquisition program
(MDAP) for which budgetary authority
is requested beginning in FY 2019.
• Section 892 of the NDAA for FY
2017, as amended by section 1002 of the
NDAA for FY 2018, amended 10 U.S.C.
254b to prohibit the use of the LPTA
source selection process when acquiring
auditing services and requires selection
of service providers based on the best
value to the Department, as determined
by the resource sponsor for an auditing
contract.
II. Discussion and Analysis
Use of the LPTA source selection
process is implemented in Federal
Acquisition Regulation (FAR) section
15.101–2. To supplement the FAR, DoD
is proposing to add a new DFARS
section 215.101–2–70 that addresses the
various limitations and prohibitions on
the use of the LPTA source selection
process. This new section is broken into
two paragraphs: Paragraph (a) addresses
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62551
the limitations provided in section 813
of the NDAA for FY 2017, as amended
by section 822 of the NDAA for FY
2018; paragraph (b) addresses the
prohibitions provided in sections 814,
832, and 892 of the NDAA for FY 2017,
as amended by sections 882 and 1002 of
the NDAA for FY 2018.
Currently, reverse auctions are not
addressed in the FAR or DFARS. To
implement the specific restriction on
the use of reverse auctions to procure
personal protective equipment and
aviation critical safety items, DoD is
proposing to add a new subpart 217.7X
under DFARS part 217, Special
Contracting Methods, to address the
prohibition associated with reverse
auctions under a section titled
‘‘Prohibitions.’’
The new statutory limitations and
prohibitions on the use of the LPTA
source selection process and reverse
auctions apply to not only acquisitions
conducted using FAR part 15
procedures for negotiation, but also—
• Orders placed against Federal
Supply Schedules using FAR subpart
8.4 procedures;
• Acquisitions for commercial items
using FAR part 12 procedures;
• Acquisitions conducted using FAR
part 13 simplified acquisition
procedures; and
• Orders placed under multiple
award indefinite delivery contracts
using FAR 16.505 procedures for fair
opportunity.
In order to notify contracting officers
of the new limitations and prohibitions
when using these other procedures, DoD
is proposing to add cross-references to
the new limitations and prohibitions
outlined at DFARS 215.101–2–70 in
DFARS sections 208.405, 212.203,
213.106–1, and 216.505. The new crossreferences make clear that the
limitations and prohibitions on the use
of LPTA at DFARS 215.101–2–70 apply
to the type of procurement being
conducted. In addition, separate crossreferences are added in these sections to
highlight the restriction on the use of
reverse auctions for the procurement of
personal protective equipment and
aviation critical safety items at
217.7XXX.
The new list of prohibitions at DFARS
215.101–2–70(b) includes the
prohibitions on use of the LPTA source
selection process for EMD of certain
MDAPs and for audit services. Special
requirements associated with the major
system acquisitions are addressed in
FAR part 234 and special requirements
for the acquisition of audit services are
addressed at DFARS 237.270. As such,
DoD is proposing to add crossreferences at DFARS 234.005–2 and
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237.270 to the prohibitions associated
with these types of procurement at
DFARS 215.101–2–70(b).
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not propose to create
any new provisions or clauses or impact
any existing provisions or clauses.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
V. Executive Order 13771
This proposed rule is not expected to
be subject to E.O. 13771, because this
rule is not a significant regulatory action
under E.O. 12866.
VI. Regulatory Flexibility Act
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. The rule primarily affects
internal Government requirements
determination and acquisition strategy
decisions, and contract file
documentation requirements. However,
an initial regulatory flexibility analysis
has been performed and is summarized
as follows:
The rule proposes to revise the
Defense Federal Acquisition Regulation
Supplement (DFARS) to establish a
preference for the use of the tradeoff
source selection process for certain
safety items and auditing services;
prohibit the use of reverse auctions or
the lowest priced technically acceptable
(LPTA) source selection process for
specific supplies and services; and
specify criteria for use of the LPTA
source selection process. The legal basis
for the rule is the National Defense
Authorization Act (NDAA) for Fiscal
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Year (FY) 2017 (Pub. L. 114–328) and
the NDAA for FY 2018 (Pub. L. 115–91).
DoD does not have access to
information on the total number of
solicitations issued on an annual basis
that did or did not specify the use of the
lowest price technically acceptable
source selection process. However, the
Federal Procurement Data System
(FPDS) provides the following
information for fiscal year 2016:
• DoD competitive contracts using
FAR part 15 procedures. DoD awarded
18,361 new contracts and orders using
negotiated competitive procedures, of
which 47% were awarded to 5,221
unique small businesses. It is important
to note that FPDS does not collect data
for solicitations using the LPTA source
selection process; therefore, this data
applies to solicitations using both
tradeoff and LPTA source selection
procedures, which will be subject to
future considerations and restrictions
provided by section 813 of the NDAA
for FY 2017 and section 822 of the
NDAA for FY 2018.
• Personal protective equipment.
Based on information from FPDS for FY
2016, DoD issued 9,130 new
competitive contract actions (including
task, delivery, and call orders)
potentially for combat-related personal
protective equipment (PPE) items that
could be impacted by restrictions in
section 814 of the NDAA for FY 2017.
Of those new contract actions, 89%
were awarded to 668 unique small
businesses.
• Aviation critical safety items. As
discussed during the rulemaking
process for DFARS 252.209–7010
published in the Federal Register at 76
FR 14641 on March 17, 2011, the
identification of aviation critical safety
items occurs entirely outside the
procurement process and is not
captured in FPDS. Therefore, it is not
possible to assess the impact on small
businesses.
• Audit-related services. DoD issued
46 new competitive contract actions
(including task, delivery, and call
orders) for audit services which may be
impacted by section 1002 of the NDAA
for FY 2018. Of those new contract
actions, 61% were awarded to 17
unique small businesses. The average
award (including all options) to small
business was valued over the simplified
acquisition threshold.
• Major defense acquisition programs
(MDAPs). The impact to small
businesses resulting from
implementation of sections 832 and 882
of the NDAA for FY 2018 cannot be
assessed, since FPDS does not collect
data for major defense acquisition
programs (MDAPs) or for specific
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acquisition phases (i.e., engineering and
manufacturing development (EMD)).
Subject matter experts within DoD know
of no instances where the LPTA source
selection process has been used for
procurement of EMD of an MDAP.
The proposed rule does not impose
any Paperwork Reduction Act reporting
or recordkeeping requirements on any
small entities. The rule may impact
some small businesses as offerors may
need to change the way their quotations
or offers are structured to conform to
proposal instructions and corresponding
evaluation criteria when responding to
solicitations that use the tradeoff source
selection process for supplies or
services where the LPTA source
selection process is now prohibited or
must now be avoided. This incremental
impact, which represents the
incremental difference between a
noncomplex LPTA proposal and
additional information required for a
tradeoff proposal, is expected to be
minimal.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known, significant,
alternative approaches to the proposed
rule that would meet the requirements
of the applicable statute.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2018–D010), in
correspondence.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 208,
212, 213, 215, 216, 217, 234, and 237
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 208, 212, 213,
215, 216, 217, 234, and 237 are
proposed to be amended as follows:
■ 1. The authority citation for 48 CFR
parts 208, 212, 213, 215, 216, 217, 234,
and 237 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
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PART 208—REQUIRED SOURCES OF
SUPPLIES OR SERVICES
215.101–2–70
prohibitions.
208.405 Ordering procedures for Federal
Supply Schedules.
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(2) See 215.101–2–70 for the
limitations and prohibitions on the use
of the lowest price technically
acceptable source selection process,
which are applicable to orders placed
under Federal Supply Schedules.
(3) See 217.7XXX for the prohibition
on the use of reverse auctions for
personal protective equipment and
aviation critical safety items.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
3. Add section 212.203 to read as
follows:
■
212.203 Procedures for solicitation,
evaluation, and award.
(1) See 215.101–2–70 for the
limitations and prohibitions on the use
of the lowest price technically
acceptable source selection process,
which are applicable to the acquisition
of commercial items.
(2) See 217.7XXX for the prohibition
on the use of reverse auctions for
personal protective equipment and
aviation critical safety items.
PART 213—SIMPLIFIED ACQUISITION
PROCEDURES
4. Revise section 213.106–1 to read as
follows:
■
Soliciting competition.
(a) Considerations. (2)(i) Include an
evaluation factor regarding supply chain
risk (see subpart 239.73) when acquiring
information technology, whether as a
service or as a supply, that is a covered
system, is a part of a covered system, or
is in support of a covered system, as
defined in 239.7301.
(ii) See 215.101–2–70 for limitations
and prohibitions on the use of the
lowest price technically acceptable
source selection process, which are
applicable to simplified acquisitions.
(iii) See 217.7XXX for the prohibition
on the use of reverse auctions for
personal protective equipment and
aviation critical safety items.
PART 215—CONTRACTING BY
NEGOTIATION
5. Add section 215.101–2 heading to
read as follows:
■
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6. Add section 215.101–2–70 to read
as follows:
■
2. Amend section 208.405 by
redesignating the text as paragraph (1)
and adding paragraphs (2) and (3) to
read as follows:
■
213.106–1
215.101–2 Lowest price technically
acceptable source selection process.
Limitations and
The following limitations and
prohibitions apply when considering
the use of the lowest price technically
acceptable source selection procedures.
(a) Limitations. (1) In accordance with
section 813 of the National Defense
Authorization Act for Fiscal Year 2017
(Pub. L. 114–328) as amended by
section 822 of the National Defense
Authorization Act for Fiscal Year 2018
(Pub. L. 115–91) (see 10 U.S.C. 2305
note), the lowest price technically
acceptable source selection process
shall only be used when—
(i) Minimum requirements can be
described clearly and comprehensively
and expressed in terms of performance
objectives, measures, and standards that
will be used to determine the
acceptability of offers;
(ii) No, or minimal, value will be
realized from a proposal that exceeds
the minimum technical or performance
requirements;
(iii) The proposed technical
approaches 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;
(iv) The source selection authority 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;
(v) No, or minimal, additional
innovation or future technological
advantage will be realized by using a
different source selection process;
(vi) Goods to be procured are
predominantly expendable in nature,
are nontechnical, or have a short life
expectancy or short shelf life;
(vii) The contract file contains a
determination that the lowest price
reflects full life-cycle costs (as defined
at FAR 7.101) of the product(s) or
service(s) being acquired; and
(viii) The contracting officer
documents the contract file describing
the circumstances justifying the use of
the lowest price technically acceptable
source selection process.
(2) In accordance with section 813 of
the National Defense Authorization Act
for Fiscal Year 2017, as amended by
section 822 of the National Defense
Authorization Act for Fiscal Year 2018
(see 10 U.S.C. 2305 note), contracting
officers shall avoid, to the maximum
extent practicable, using the lowest
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62553
price technically acceptable source
selection process in the case of a
procurement that is predominately for
the acquisition of—
(i) Information technology services,
cybersecurity services, systems
engineering and technical assistance
services, advanced electronic testing, or
other knowledge-based professional
services;
(ii) Items designated by the requiring
activity as personal protective
equipment (except see paragraph (b)(1)
of this section); or
(iii) Services designated by the
requiring activity as knowledge-based
training or logistics services in
contingency operations or other
operations outside the United States,
including in Afghanistan or Iraq.
(b) Prohibitions. (1) In accordance
with section 814 of the National Defense
Authorization Act for Fiscal Year 2017
as amended by section 882 of the
National Defense Authorization Act for
Fiscal Year 2018 (see 10 U.S.C. 2302
note), contracting officers shall not use
the lowest price technically acceptable
source selection process to procure
items designated by the requiring
activity as personal protective
equipment or an aviation critical safety
item, when the requiring activity
advises the contracting officer that the
level of quality or failure of the
equipment or item could result in
combat casualties. See 252.209–7010 for
the definition and identification of
critical safety items.
(2) In accordance with section 832 of
the National Defense Authorization Act
for Fiscal Year 2018 (see 10 U.S.C. 2442
note), contracting officers shall not use
the lowest price technically acceptable
source selection process to acquire
engineering and manufacturing
development for a major defense
acquisition program for which
budgetary authority is requested
beginning in fiscal year 2019.
(3) Contracting officers shall make
award decisions based on best value
factors and criteria, as determined by
the resource sponsor (in accordance
with agency procedures), for an auditing
contract. The use of the lowest price
technically acceptable source selection
process is prohibited (10 U.S.C. 254b).
PART 216—TYPES OF CONTRACTS
7. Amend section 216.505 by—
a. Adding new paragraph (a) heading;
b. Redesignating paragraph (1) as
paragraph (a)(S–70);
■ c. Redesignating paragraph (2) as
paragraph (a)(6);
■ d. Adding new paragraph (b) heading;
and
■
■
■
E:\FR\FM\04DEP1.SGM
04DEP1
62554
■
Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / Proposed Rules
e. Adding new paragraph (b)(1).
The additions read as follows:
216.505
Ordering.
(a) General.
*
*
*
*
*
(b) Orders under multiple-award
contracts—(1) Fair opportunity.
(A) See 215.101–2–70 for the
limitations and prohibitions on the use
of the lowest price technically
acceptable source selection process,
which are applicable to orders placed
against multiple award indefinite
delivery contracts.
(B) See 217.7XXX for the prohibition
on the use of reverse auctions for
personal protective equipment and
aviation critical safety items.
*
*
*
*
*
PART 217—SPECIAL CONTRACTING
METHODS
8. Add new subpart 217.7X, to read as
follows:
■
217.7X—REVERSE AUCTIONS
Sec.
7XXX Prohibition.
Prohibition.
In accordance with section 814 of the
National Defense Authorization Act for
Fiscal Year 2017 (Pub. L. 114–328) as
amended by section 882 of the National
Defense Authorization Act for Fiscal
Year 2018 (Pub. L. 115–91) (see 10
U.S.C. 2302 note), contracting officers
shall not use reverse auctions when
procuring items designated by the
requiring activity as personal protective
equipment or an aviation critical safety
item, when the requiring activity
advises the contracting officer that the
level of quality or failure of the
equipment or item could result in
combat casualties. See 252.209–7010 for
the definition and identification of
critical safety items.
PART 234—MAJOR SYSTEM
ACQUISITION
9. Add section 234.005–2 to read as
follows:
■
234.005–2
Mission-oriented solicitation.
See 215.101–2–70(b)(2) for the
prohibition on the use of the lowest
price technically acceptable source
selection process for engineering and
manufacturing development of a major
defense acquisition program for which
budgetary authority is requested
beginning in fiscal year 2019.
PART 237—SERVICE CONTRACTING
■
10. Amend section 237.270 by—
VerDate Sep<11>2014
16:41 Dec 03, 2018
Jkt 247001
237.270
Acquisition of audit services.
(a) * * *
(2) See 215.101–2–70(b)(3) for the
prohibition on the use of the lowest
price technically acceptable source
selection process when acquiring audit
services.
*
*
*
*
*
[FR Doc. 2018–26306 Filed 12–3–18; 8:45 am]
Defense Acquisition Regulations
System
48 CFR Part 219
[Docket DARS–2018–0056]
RIN 0750–AK18
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2019 regarding set-asides for
architect-engineer and construction
design contracts.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
February 4, 2019, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2018–D057,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2018–D057.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
Comment. Please include ‘‘DFARS Case
2018–D057’’ on any attached
documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D057 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Jennifer
D. Johnson, OUSD(A&S)DPC/DARS,
SUMMARY:
Frm 00039
Fmt 4702
FOR FURTHER INFORMATION CONTACT:
Ms.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF DEFENSE
PO 00000
Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
Jennifer D. Johnson, telephone 571–
372–6100.
BILLING CODE 5001–06–P
Defense Federal Acquisition
Regulation Supplement: Small
Business Set-Asides for ArchitectEngineer and Construction Design
Contracts (DFARS Case 2018–D057)
217.7X—REVERSE AUCTIONS
217.7XXX
a. Redesignating paragraph (a)(2) as
paragraph (a)(3); and
■ b. Adding new paragraph (a)(2) to read
as follows:
■
Sfmt 4702
I. Background
DoD is proposing to revise the DFARS
to implement section 2804 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2019 (Pub.
L. 115–232), which amends the
thresholds at 10 U.S.C. 2855 for small
business set-asides of acquisitions for
architect-engineer services, including
construction design, in connection with
military construction projects or
military family housing projects.
Section 2804 requires these acquisitions
to be set aside for small business if
valued at less than $1,000,000. Section
2804 also removes the prohibition on
setting aside these acquisitions; as a
result, these acquisitions may now be
set aside for small business, if valued at
$1,000,000 or more.
II. Discussion and Analysis
This rule proposes to delete paragraph
(2) at DFARS 219.502–1. This paragraph
prohibits small business set-asides of
acquisitions for architect-engineer
services for military construction or
family housing projects valued at
$400,000 or more. The remaining
paragraphs would be combined into a
single unnumbered paragraph. In
addition, this rule proposes to revise the
dollar value at DFARS 219.502–2,
paragraph (a)(iii), from $400,000 to
$1,000,000. This paragraph requires
acquisitions for architect-engineer
services for military construction or
family housing projects to be set aside
for small business below a certain dollar
value.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not propose to create
any new provisions or clauses or impact
any existing provisions or clauses.
E:\FR\FM\04DEP1.SGM
04DEP1
]]>Agencies
[Federal Register Volume 83, Number 233 (Tuesday, December 4, 2018)]
[Proposed Rules]
[Pages 62550-62554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26306]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 208, 212, 213, 215, 216, 217, 234, and 237
[Docket DARS-2018-0055]
RIN 0750-AJ74
Defense Federal Acquisition Regulation Supplement: Restrictions
on Use of Lowest Priced Technically Acceptable Source Selection Process
(DFARS Case 2018-D010)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD proposes to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement sections of the National
Defense Authorization Acts for Fiscal Years 2017 and 2018 that
establish limitations and prohibitions on the use of the lowest price
technically source selection process.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before February 4, 2019, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2018-D010, using
any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2018-D010.'' under the heading ``Enter keyword
or ID'' and selecting ``Search.'' Select ``Comment Now and'' follow the
instructions provided to submit a comment. Please
[[Page 62551]]
include ``DFARS Case 2018-D010'' on your attached documents.
[cir] Email: [email protected]. Include DFARS Case 2018-D010 in
the subject line of the message.
[cir] Fax: 571-372-6093.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Carrie Moore, OUSD (A&S)DPC/DARS, Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 703-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement the limitations
and prohibitions on use of the lowest prices technical acceptable
(LPTA) source selection process provided in sections 813, 814, and 892
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY)
2017 (Pub. L. 114-328) and sections 822, 832, 882, and 1002 of the NDAA
for FY 2018 (Pub. L. 115-91). The following is a summary of the
statutory restrictions:
Section 813 of the NDAA for FY 2017, as amended by section
822 of the NDAA for FY 2018, establishes that the LPTA source selection
process shall only be used when--
[cir] Minimum requirements can be described clearly and
comprehensively and expressed in terms of performance objectives,
measures, and standards that will be used to determine the
acceptability of offers;
[cir] No, or minimal, value will be realized from a proposal that
exceeds the minimum technical or performance requirements;
[cir] The proposed technical approaches 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;
[cir] The source selection authority 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;
[cir] No, or minimal, additional innovation or future technological
advantage will be realized by using a different source selection
process;
[cir] Goods to be procured are predominantly expendable in nature,
are nontechnical, or have a short life expectancy or short shelf life;
[cir] The contract file contains a determination that the lowest
price reflects full life-cycle costs of the product(s) or service(s)
being acquired; and
[cir] The contracting officer documents the contract file
describing the circumstances justifying the use of the lowest price
technically acceptable source selection process.
Section 813, as amended, further provides that use of the LPTA
process should be avoided, to the maximum extent practicable, when
acquiring information technology, cybersecurity services, systems
engineering and technical assistance services, advanced electronic
testing, other knowledge-based professional services, personal
protective equipment, or certain services in support of contingency or
other operations outside the United States.
Section 814 of the NDAA for FY 2017 prohibits the use of
reverse auctions or the LPTA source selection process when purchasing
personal protective equipment, if the level of quality or failure of
the item could result in combat casualties. Section 882 of the NDAA for
FY 2018 amends section 814 to further prohibit the use of reverse
auctions or the LPTA source selection process for aviation critical
safety items as defined in 10 U.S.C. 2319(g).
Section 832 of the NDAA for FY 2018 prohibits the use of
the LPTA source selection process for engineering and manufacturing
development (EMD) of a major defense acquisition program (MDAP) for
which budgetary authority is requested beginning in FY 2019.
Section 892 of the NDAA for FY 2017, as amended by section
1002 of the NDAA for FY 2018, amended 10 U.S.C. 254b to prohibit the
use of the LPTA source selection process when acquiring auditing
services and requires selection of service providers based on the best
value to the Department, as determined by the resource sponsor for an
auditing contract.
II. Discussion and Analysis
Use of the LPTA source selection process is implemented in Federal
Acquisition Regulation (FAR) section 15.101-2. To supplement the FAR,
DoD is proposing to add a new DFARS section 215.101-2-70 that addresses
the various limitations and prohibitions on the use of the LPTA source
selection process. This new section is broken into two paragraphs:
Paragraph (a) addresses the limitations provided in section 813 of the
NDAA for FY 2017, as amended by section 822 of the NDAA for FY 2018;
paragraph (b) addresses the prohibitions provided in sections 814, 832,
and 892 of the NDAA for FY 2017, as amended by sections 882 and 1002 of
the NDAA for FY 2018.
Currently, reverse auctions are not addressed in the FAR or DFARS.
To implement the specific restriction on the use of reverse auctions to
procure personal protective equipment and aviation critical safety
items, DoD is proposing to add a new subpart 217.7X under DFARS part
217, Special Contracting Methods, to address the prohibition associated
with reverse auctions under a section titled ``Prohibitions.''
The new statutory limitations and prohibitions on the use of the
LPTA source selection process and reverse auctions apply to not only
acquisitions conducted using FAR part 15 procedures for negotiation,
but also--
Orders placed against Federal Supply Schedules using FAR
subpart 8.4 procedures;
Acquisitions for commercial items using FAR part 12
procedures;
Acquisitions conducted using FAR part 13 simplified
acquisition procedures; and
Orders placed under multiple award indefinite delivery
contracts using FAR 16.505 procedures for fair opportunity.
In order to notify contracting officers of the new limitations and
prohibitions when using these other procedures, DoD is proposing to add
cross-references to the new limitations and prohibitions outlined at
DFARS 215.101-2-70 in DFARS sections 208.405, 212.203, 213.106-1, and
216.505. The new cross-references make clear that the limitations and
prohibitions on the use of LPTA at DFARS 215.101-2-70 apply to the type
of procurement being conducted. In addition, separate cross-references
are added in these sections to highlight the restriction on the use of
reverse auctions for the procurement of personal protective equipment
and aviation critical safety items at 217.7XXX.
The new list of prohibitions at DFARS 215.101-2-70(b) includes the
prohibitions on use of the LPTA source selection process for EMD of
certain MDAPs and for audit services. Special requirements associated
with the major system acquisitions are addressed in FAR part 234 and
special requirements for the acquisition of audit services are
addressed at DFARS 237.270. As such, DoD is proposing to add cross-
references at DFARS 234.005-2 and
[[Page 62552]]
237.270 to the prohibitions associated with these types of procurement
at DFARS 215.101-2-70(b).
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not propose to create any new provisions or clauses
or impact any existing provisions or clauses.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
V. Executive Order 13771
This proposed rule is not expected to be subject to E.O. 13771,
because this rule is not a significant regulatory action under E.O.
12866.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The
rule primarily affects internal Government requirements determination
and acquisition strategy decisions, and contract file documentation
requirements. However, an initial regulatory flexibility analysis has
been performed and is summarized as follows:
The rule proposes to revise the Defense Federal Acquisition
Regulation Supplement (DFARS) to establish a preference for the use of
the tradeoff source selection process for certain safety items and
auditing services; prohibit the use of reverse auctions or the lowest
priced technically acceptable (LPTA) source selection process for
specific supplies and services; and specify criteria for use of the
LPTA source selection process. The legal basis for the rule is the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017
(Pub. L. 114-328) and the NDAA for FY 2018 (Pub. L. 115-91).
DoD does not have access to information on the total number of
solicitations issued on an annual basis that did or did not specify the
use of the lowest price technically acceptable source selection
process. However, the Federal Procurement Data System (FPDS) provides
the following information for fiscal year 2016:
DoD competitive contracts using FAR part 15 procedures.
DoD awarded 18,361 new contracts and orders using negotiated
competitive procedures, of which 47% were awarded to 5,221 unique small
businesses. It is important to note that FPDS does not collect data for
solicitations using the LPTA source selection process; therefore, this
data applies to solicitations using both tradeoff and LPTA source
selection procedures, which will be subject to future considerations
and restrictions provided by section 813 of the NDAA for FY 2017 and
section 822 of the NDAA for FY 2018.
Personal protective equipment. Based on information from
FPDS for FY 2016, DoD issued 9,130 new competitive contract actions
(including task, delivery, and call orders) potentially for combat-
related personal protective equipment (PPE) items that could be
impacted by restrictions in section 814 of the NDAA for FY 2017. Of
those new contract actions, 89% were awarded to 668 unique small
businesses.
Aviation critical safety items. As discussed during the
rulemaking process for DFARS 252.209-7010 published in the Federal
Register at 76 FR 14641 on March 17, 2011, the identification of
aviation critical safety items occurs entirely outside the procurement
process and is not captured in FPDS. Therefore, it is not possible to
assess the impact on small businesses.
Audit-related services. DoD issued 46 new competitive
contract actions (including task, delivery, and call orders) for audit
services which may be impacted by section 1002 of the NDAA for FY 2018.
Of those new contract actions, 61% were awarded to 17 unique small
businesses. The average award (including all options) to small business
was valued over the simplified acquisition threshold.
Major defense acquisition programs (MDAPs). The impact to
small businesses resulting from implementation of sections 832 and 882
of the NDAA for FY 2018 cannot be assessed, since FPDS does not collect
data for major defense acquisition programs (MDAPs) or for specific
acquisition phases (i.e., engineering and manufacturing development
(EMD)). Subject matter experts within DoD know of no instances where
the LPTA source selection process has been used for procurement of EMD
of an MDAP.
The proposed rule does not impose any Paperwork Reduction Act
reporting or recordkeeping requirements on any small entities. The rule
may impact some small businesses as offerors may need to change the way
their quotations or offers are structured to conform to proposal
instructions and corresponding evaluation criteria when responding to
solicitations that use the tradeoff source selection process for
supplies or services where the LPTA source selection process is now
prohibited or must now be avoided. This incremental impact, which
represents the incremental difference between a noncomplex LPTA
proposal and additional information required for a tradeoff proposal,
is expected to be minimal.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known, significant, alternative approaches to the
proposed rule that would meet the requirements of the applicable
statute.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D010), in
correspondence.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 208, 212, 213, 215, 216, 217, 234,
and 237
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 208, 212, 213, 215, 216, 217, 234, and 237
are proposed to be amended as follows:
0
1. The authority citation for 48 CFR parts 208, 212, 213, 215, 216,
217, 234, and 237 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
[[Page 62553]]
PART 208--REQUIRED SOURCES OF SUPPLIES OR SERVICES
0
2. Amend section 208.405 by redesignating the text as paragraph (1) and
adding paragraphs (2) and (3) to read as follows:
208.405 Ordering procedures for Federal Supply Schedules.
* * * * *
(2) See 215.101-2-70 for the limitations and prohibitions on the
use of the lowest price technically acceptable source selection
process, which are applicable to orders placed under Federal Supply
Schedules.
(3) See 217.7XXX for the prohibition on the use of reverse auctions
for personal protective equipment and aviation critical safety items.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
3. Add section 212.203 to read as follows:
212.203 Procedures for solicitation, evaluation, and award.
(1) See 215.101-2-70 for the limitations and prohibitions on the
use of the lowest price technically acceptable source selection
process, which are applicable to the acquisition of commercial items.
(2) See 217.7XXX for the prohibition on the use of reverse auctions
for personal protective equipment and aviation critical safety items.
PART 213--SIMPLIFIED ACQUISITION PROCEDURES
0
4. Revise section 213.106-1 to read as follows:
213.106-1 Soliciting competition.
(a) Considerations. (2)(i) Include an evaluation factor regarding
supply chain risk (see subpart 239.73) when acquiring information
technology, whether as a service or as a supply, that is a covered
system, is a part of a covered system, or is in support of a covered
system, as defined in 239.7301.
(ii) See 215.101-2-70 for limitations and prohibitions on the use
of the lowest price technically acceptable source selection process,
which are applicable to simplified acquisitions.
(iii) See 217.7XXX for the prohibition on the use of reverse
auctions for personal protective equipment and aviation critical safety
items.
PART 215--CONTRACTING BY NEGOTIATION
0
5. Add section 215.101-2 heading to read as follows:
215.101-2 Lowest price technically acceptable source selection
process.
0
6. Add section 215.101-2-70 to read as follows:
215.101-2-70 Limitations and prohibitions.
The following limitations and prohibitions apply when considering
the use of the lowest price technically acceptable source selection
procedures.
(a) Limitations. (1) In accordance with section 813 of the National
Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) as
amended by section 822 of the National Defense Authorization Act for
Fiscal Year 2018 (Pub. L. 115-91) (see 10 U.S.C. 2305 note), the lowest
price technically acceptable source selection process shall only be
used when--
(i) Minimum requirements can be described clearly and
comprehensively and expressed in terms of performance objectives,
measures, and standards that will be used to determine the
acceptability of offers;
(ii) No, or minimal, value will be realized from a proposal that
exceeds the minimum technical or performance requirements;
(iii) The proposed technical approaches 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;
(iv) The source selection authority 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;
(v) No, or minimal, additional innovation or future technological
advantage will be realized by using a different source selection
process;
(vi) Goods to be procured are predominantly expendable in nature,
are nontechnical, or have a short life expectancy or short shelf life;
(vii) The contract file contains a determination that the lowest
price reflects full life-cycle costs (as defined at FAR 7.101) of the
product(s) or service(s) being acquired; and
(viii) The contracting officer documents the contract file
describing the circumstances justifying the use of the lowest price
technically acceptable source selection process.
(2) In accordance with section 813 of the National Defense
Authorization Act for Fiscal Year 2017, as amended by section 822 of
the National Defense Authorization Act for Fiscal Year 2018 (see 10
U.S.C. 2305 note), contracting officers shall avoid, to the maximum
extent practicable, using the lowest price technically acceptable
source selection process in the case of a procurement that is
predominately for the acquisition of--
(i) Information technology services, cybersecurity services,
systems engineering and technical assistance services, advanced
electronic testing, or other knowledge-based professional services;
(ii) Items designated by the requiring activity as personal
protective equipment (except see paragraph (b)(1) of this section); or
(iii) Services designated by the requiring activity as knowledge-
based training or logistics services in contingency operations or other
operations outside the United States, including in Afghanistan or Iraq.
(b) Prohibitions. (1) In accordance with section 814 of the
National Defense Authorization Act for Fiscal Year 2017 as amended by
section 882 of the National Defense Authorization Act for Fiscal Year
2018 (see 10 U.S.C. 2302 note), contracting officers shall not use the
lowest price technically acceptable source selection process to procure
items designated by the requiring activity as personal protective
equipment or an aviation critical safety item, when the requiring
activity advises the contracting officer that the level of quality or
failure of the equipment or item could result in combat casualties. See
252.209-7010 for the definition and identification of critical safety
items.
(2) In accordance with section 832 of the National Defense
Authorization Act for Fiscal Year 2018 (see 10 U.S.C. 2442 note),
contracting officers shall not use the lowest price technically
acceptable source selection process to acquire engineering and
manufacturing development for a major defense acquisition program for
which budgetary authority is requested beginning in fiscal year 2019.
(3) Contracting officers shall make award decisions based on best
value factors and criteria, as determined by the resource sponsor (in
accordance with agency procedures), for an auditing contract. The use
of the lowest price technically acceptable source selection process is
prohibited (10 U.S.C. 254b).
PART 216--TYPES OF CONTRACTS
0
7. Amend section 216.505 by--
0
a. Adding new paragraph (a) heading;
0
b. Redesignating paragraph (1) as paragraph (a)(S-70);
0
c. Redesignating paragraph (2) as paragraph (a)(6);
0
d. Adding new paragraph (b) heading; and
[[Page 62554]]
0
e. Adding new paragraph (b)(1).
The additions read as follows:
216.505 Ordering.
(a) General.
* * * * *
(b) Orders under multiple-award contracts--(1) Fair opportunity.
(A) See 215.101-2-70 for the limitations and prohibitions on the
use of the lowest price technically acceptable source selection
process, which are applicable to orders placed against multiple award
indefinite delivery contracts.
(B) See 217.7XXX for the prohibition on the use of reverse auctions
for personal protective equipment and aviation critical safety items.
* * * * *
PART 217--SPECIAL CONTRACTING METHODS
0
8. Add new subpart 217.7X, to read as follows:
217.7X--REVERSE AUCTIONS
Sec.
7XXX Prohibition.
217.7X--REVERSE AUCTIONS
217.7XXX Prohibition.
In accordance with section 814 of the National Defense
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) as amended by
section 882 of the National Defense Authorization Act for Fiscal Year
2018 (Pub. L. 115-91) (see 10 U.S.C. 2302 note), contracting officers
shall not use reverse auctions when procuring items designated by the
requiring activity as personal protective equipment or an aviation
critical safety item, when the requiring activity advises the
contracting officer that the level of quality or failure of the
equipment or item could result in combat casualties. See 252.209-7010
for the definition and identification of critical safety items.
PART 234--MAJOR SYSTEM ACQUISITION
0
9. Add section 234.005-2 to read as follows:
234.005-2 Mission-oriented solicitation.
See 215.101-2-70(b)(2) for the prohibition on the use of the lowest
price technically acceptable source selection process for engineering
and manufacturing development of a major defense acquisition program
for which budgetary authority is requested beginning in fiscal year
2019.
PART 237--SERVICE CONTRACTING
0
10. Amend section 237.270 by--
0
a. Redesignating paragraph (a)(2) as paragraph (a)(3); and
0
b. Adding new paragraph (a)(2) to read as follows:
237.270 Acquisition of audit services.
(a) * * *
(2) See 215.101-2-70(b)(3) for the prohibition on the use of the
lowest price technically acceptable source selection process when
acquiring audit services.
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[FR Doc. 2018-26306 Filed 12-3-18; 8:45 am]
BILLING CODE 5001-06-P
