Sign In
  • Question

    Despite the NDAA's issuing the above rules, when the DFARS was implemented via 215.101-2-70, the paragraphs were explicitly reorganized so that they are now in the following order: 1, 2, 3, 4, 7, 8, 6, and 5. When one reads the DFARS, it reads as "shall only be used when, [limitation 1], [limitation 2]...[limitation 7], "and" [limitation 8] which is the justification as to why LPTA is justified. If the "and" precedes the justification #8, it could be surmised that only 1 item need be present, a justification could be written, and a KO could proceed with LPTA. 1) Is the intent of the law to satisfy all 8 limitations (7 plus a justification) (i.e. an inclusive list) or is the intent if any of the limitations apply LPTA can be used (i.e. an exclusive list)? 2) Why is there not an "and' after each semicolon in the list of limitations? The regulations do not seem to be uniform with their list-making and creates ambiguity when looking at the verbiage grammatically. 3) Lastly, limitation number 6 clearly underscores every other limitation, by covering expendable goods, nontechnical goods, short life expectancy, or short shelf life. So, why does the DFARS have 7 limitations, when only 1 will do? Is this merely to be in line with the NDAA's?


    Answer

    Unfortunately the new AAP platform (Microsoft SharePoint) does not recognize cut and pasted quotations from the FAR or DFARS or other websites.  Therefore we are unable to read some of your question references.

    Currently, the DPC website that keeps the case summaries of DFARS and FAR cases is down for repair and maintenance.  Hopefully it will be back up in the near future and you can read a summary of DFARS case number 2018-D010 which implemented the FY17 NDAA section 813 changes to LPTA source selections.

    One of the hardest parts of the rule making process is to interpret or translate the language of the NDAA into an understandable regulatory format. When the language is broad and/or vague it can be extremely difficult.  The NDAA is statutory law and must be implemented; so the limitations are written to comply with the NDAA.  This particular case was a difficult challenge.

    A regulatory interpretation rule known as the canons of statutory construction would apply here.   One such rule—expressio unuius est exclusio alterius (the inclusion of one is the exclusion of others)—can be particularly helpful when trying to interpret the regulations (see the rules of statutory construction apply when interpreting regulations.  Williams v. Chu, 641 F.Supp.2d 31, 38 (D.D.C. 2009).) 

    So if your acquisition doesn’t meet any one of the limitations in DFARS 215.101-2-70(a) LPTA cannot be used.  If you were to answer affirmative to 7 of the 8 items listed at DFARS 215.101-2-70(a)(1) but negative to one of them (e.g. DFARS 215.101-2-70(a)(1)(iii) technical approaches would require more than minimal subjective judgement…) you could not use LPTA.

    Open full Question Details
Chat with DAU Assistant
Bot Image