[Senate Report 118-258]
[From the U.S. Government Publishing Office]
Calendar No. 659
118th Congress } { Report
SENATE
2d Session } { 118-258
_______________________________________________________________________
SAFE AND SMART FEDERAL
PURCHASING ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 5528
TO REQUIRE THE DIRECTOR OF THE OFFICE OF
MANAGEMENT AND BUDGET CONDUCT A REVIEW TO
DETERMINE THE IMPACT OF THE LOWEST PRICE
TECHNICALLY ACCEPTABLE SOURCE SELECTION PROCESS
ON NATIONAL SECURITY, AND FOR OTHER PURPOSES
December 2, 2024.--Ordered to be printed
_______
U.S. GOVERNMENT PUBLISHING OFFICE
59-010 WASHINGTON : 2025
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA R. BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Michelle M. Benecke, Senior Counsel
Tiffany Ann Shujath, U.S. Department of Homeland Security Detailee
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Kendal B. Tigner, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 659
118th Congress } { Report
SENATE
2d Session } { 118-258
======================================================================
SAFE AND SMART FEDERAL PURCHASING ACT
_______
December 2, 2024.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 5528]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 5528) to require
the Director of the Office of Management and Budget conduct a
review to determine the impact of the lowest price technically
acceptable source selection process on national security, and
for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................2
IV. Section-by-Section Analysis of the Bill, as Reported.............2
V. Evaluation of Regulatory Impact..................................3
VI. Congressional Budget Office Cost Estimate........................3
VII. Changes in Existing Law Made by the Bill, as Reported............4
I. PURPOSE AND SUMMARY
H.R. 5528, the Safe and Smart Federal Purchasing Act, would
require the Director of the Office of Management and Budget
(OMB) to review the Lowest Price Technically Acceptable (LPTA)
provisions in the Federal Acquisition Regulation (FAR) and the
procurement management practices of federal agencies to
determine whether the LPTA purchasing process creates any
national security risks.\1\ The bill requires a report with the
results of this review to be submitted to Congress within 180
days of enactment.
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\1\See Federal Acquisition Regulation 15.101-2, ``Lowest price
technically acceptable source selection process.''
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II. BACKGROUND AND NEED FOR THE LEGISLATION
The LPTA procurement process is one in which a federal
contract is awarded to the contractor that meets minimum
government requirements and has the lowest cost.\2\ The LPTA
process differs from the ``trade-off'' process, in which an
agency can assess the value of better technical characteristics
or other features in a contractor proposal based on its
evaluation criteria, and may make trade-offs and pay more for a
better technical proposal provided it still presents the best
value to the government.\3\ The Government Accountability
Office reviewed federal agency use of the LPTA process in 2019,
and found that use of the process may not be appropriate for
more complex agency mission needs such as for information
technology services.\4\ Recent legislation has prohibited or
restricted the use of LPTA by federal agencies for specific
types of supplies and services, such as personal protective
equipment and certain software development programs.\5\ The
bill would require a study and report to Congress that provides
insight into how agencies are using LPTA and whether its use is
associated with any adverse impacts for national security.
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\2\Federal Acquisition Regulation 15.101-2.
\3\Federal Acquisition Regulation 15.101-1.
\4\Government Accountability Office, Federal Contracting:
Information on Agencies' Use of the Lowest Price Technically Acceptable
Process (GAO-19-691) (Sep. 26, 2019).
\5\Congressional Research Service, Defense Primer: Lowest Price
Technically Acceptable Contracts (IF10968) (Updated Aug. 15, 2024).
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III. LEGISLATIVE HISTORY
Representative Byron Donalds (R-FL-19) introduced H.R.
5528, the Safe and Smart Federal Purchasing Act, on September
18, 2023, with original cosponsor Representative Lauren Boebert
(R-CO-3). The bill was referred to the House Committee on
Oversight and Accountability. The Committee considered H.R.
5528 at a business meeting on September 20, 2023 and reported
the bill with an amendment, by roll call vote of 43 yeas to 0
nays. The House of Representatives considered H.R. 5528 on
January 29, 2024, under suspension of the rules, and passed the
bill by roll call vote of 397 yeas to 0 nays.
The bill was referred to the Senate Committee on Homeland
Security and Governmental Affairs. The committee considered
H.R. 5528 at a business meeting on May 15, 2024. The bill was
ordered reported favorably by roll call vote of 10 yeas to 0
nays, with Senators Peters, Carper, Hassan, Rosen, Blumenthal,
Lankford, Romney, Scott, Hawley, and Marshall voting in the
affirmative and with Senator Paul recorded as Present. Senators
Sinema, Ossoff, Butler, and Johnson voted yea by proxy, for the
record only.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section establishes the short title of the bill as the
``Safe and Smart Federal Purchasing Act.''
Section 2. Review to determine the impact of the lowest price
technically acceptable source selection process on national
security
Subsection (a) requires the Director of OMB to review the
procurement management practices of defense and civilian
agencies to determine whether the provisions of Federal
Acquisition Regulation section 15.101-2 have created any
national security risk.
Subsection (b) requires the Director of OMB to submit a
report with the results of the review under subsection (a) to
the House Committee on Oversight and Accountability and the
Senate Committee on Homeland Security and Governmental Affairs.
Subsection (c) provides definitions of ``Defense and
Civilian agency'' and ``Director.''
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's (CBO) statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
H.R. 5528 would require the Office of Management and Budget
(OMB) to evaluate whether using the lowest price technically
acceptable (LPTA) process for federal procurement poses a
national security risk. LPTA is a competitive procurement
process that allows agencies to select the lowest evaluated
price that meets minimum performance requirements. The bill
also would require OMB to report its findings to the Congress
within 180 days of enactment.
Based on the cost of preparing similar studies, CBO
estimates that implementing the bill would cost less than
$500,000 over the 2024-2029 period. Any spending would be
subject to the availability of appropriated funds.
On October 23, 2023, CBO transmitted a cost estimated for
H.R. 5528, the Safe and Smart Federal Purchasing Act, as
ordered reported by the House Committee on Oversight and
Accountability on September 30, 2023. The two bills are
similar, as are CBO's estimates of the budgetary effects.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by Chad Chirico, Director
of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation would make no change in existing law,
within the meaning of clauses (a) and (b) of subparagraph 12 of
rule XXVI of the Standing Rules of the Senate, because this
legislation would not repeal or amend any provision of current
law.