Competition and extending the PoP of BPAs

You may establish a FAR Part 13 BPA with any firm you choose, without competition or notice or requisition or J&A -- and if you establish several BPAs, those BPA holders may provide you with adequate competition for some of your subsequent simplified acquisition purchases. 

A BPA doesn't have a POP as there is no performance; rather, a BPA may have a period for making purchases.

A BPA is established, not awarded.

If a purchase intended for a BPA exceeds the threshold for posting or synopsis, you will want to comply with those rules for that purchase.

Sascha Kemper said:

As such, I think that I can extend the PoP by 5 years without having to do a J&A?

"Extend" the BPA's does not in my view seem to be the appropriate terminology.  By my read of FAR 13.303-7 you have 3 completed BPA's ("stated time period has expired') therefore you are intending to issue 3 new BPA's.

Sascha Kemper said:

As such, I think that I can extend the PoP by 5 years without having to do a J&A?

Continuing my line of thought that they would be new BPA's the question becomes whether simply issuing the 3 new BPA's to the same three vendors is accomplishing maxiable practicable competition for not only issuing the 3 new BPA's and then in use of the BPA's to issue calls or orders against them.

The basis for my thoughts is a GAO decision in Envirosolve LLC, B-294974.4, June 8, 2005.   Go to this WIFCON website (link follows) and read the synopsis of the case where you can find the link to the full GAO decision.   /legacy/reg/9d5de9ec1fe8dce0.html

In the end you may be on the right track but there are considerations that you need to make that while documentation may not be a J&A one would want to document the rational of why maximum practicable competition has been met by simply returning to the same 3 contractors with the BPA's.  Documentation that most certainly would address the considerations of FAR 13.104.

PS - jio20874 posted as I was completing my thoughts.   Even in consdieration of his comments I have decided to leave mine exactly as I wrote them initially.

Sascha Kemper said:

I think that I can extend the PoP by 5 years without having to do a J&A? Am I wrong? Please let me know if I need to provide additional details to assist with this question.

@Sascha KemperFAR Part 13 BPA's are agreements, not contracts. Do you understand the distinction under FAR? As mere agreements, they are not binding on the parties, do not buy anything, and do not obligate any funds. That's why they are not "awarded" and don't have periods of performance. They need only be reviewed, and updated if necessary, on an annual basis.

And that's why you don't need a J&A to extend the agreement.

Vern Edwards said:

That's why they are not "awarded" and don't have periods of performance. They need only be reviewed, and updated if necessary, on an annual basis.

But a BPA can be considered complete    -

"FAR 13.303-7 - An individual BPA is considered complete when the purchases under it equal its total dollar limitation, if any, or when its stated time period expires."

Vern Edwards said:

And that's why you don't need a J&A to extend the agreement.

Thanks, Vern!

@Sascha KemperYou're welcome! One more thing. Let me explain in a little more detain about FAR 6.001.

On 3/20/2024 at 12:59 AM, Sascha Kemper said:

FAR part 6.001 states that it is not applicable to Part 13.

Here's what FAR 6.001 says about Part 13:

Quote

This part applies to all acquisitions except—

(a) Contracts awarded using the simplified acquisition procedures of part  13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial products or commercial services, under subpart  13.5)...

Emphasis added.

Now look a the definition of acquisition in FAR 2.101, which begins:

Quote

Acquisition means the acquiring by contract with appropriated funds of supplies or services (including construction)...

Now look at the definition of contract in FAR 2.101, which begins:

Quote

Contract means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds...

FAR Part 13 BPA's are agreements, not contracts as defined by FAR. They are not purchase orders. They're supposed to be "charge accounts", i.e., billing arrangements. They anticipate future buys, but don't buy anything. Orders (or "calls") may or may not be made later. They are paperwork reduction devices. Thus, the creation of a BPA is not an acquisition. (Who knows what GSA's stupid BPAs under 8.405-3 are. I am not addressing them.)

Thus, nothing in FAR Part 6, which applies to "all acquisitions", applies to Part 13 BPAs, including FAR 6.001(a), which applies only to contracts awarded using SAP.

So if you want to create or extend a BPA you can stop reading 6.001 after "This part applies to all acquisitions..." It's not paragraph 6.001(a) that takes us off the hook, it's the prefatory phrase.

On 3/19/2024 at 11:59 PM, Sascha Kemper said:

Please let me know if I need to provide additional details to assist with this question.

You have probably disappeared based on Vern's most recent post but the continuing thread had me come up with this question.

Was the issuance of the 3 BPA's done competitively, or in other words, synposized in SAM.gov?   If so and the wording in the BPA's carried the term "period of performance"  then I as one commenter am concerned that a simple extension of the BPA's, absent some kind of wording in the original solicitation and BPA itself, would still demand documentation that they still represent maximum practiable competition otherwise the BPA's could be at odds with the guiding principles of FAR part 13 and case law.  To be clear I am not saying the documentation is to be a J&A but a determination, similiar to that as suggested in FAR 13.106-1(b).

Now I understand that my view may be not in alignment with reality where the concerned contractors surely want the work and as it goes in the Federal government a CO or other authorized official can  simply extend the BPA's and nobody would be concerned.   Or in other words noboby is going to protest the extensions.   

This goes along with my crazy thoughts as I read the ongoing thread  that if in fact the establishment BPA's was done competitively why did the agency do that in the first place?   Seek competition?  And if so one would seem to think at least some documentation as to why after 5 years the establishment of the BPA's with the same 3 firms still represents maximum practicable competition.

C Culham said:

Was the issuance of the 3 BPA's done competitively, or in other words, synposized in SAM.gov?

Why would they synopsize it? You must synopsize only contract actions, as defined in FAR 5.001. An action to create or extend a BPA issued under FAR Part 13 is not a contract action.

Presumably because the “[s]tatutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” Logan, LLC., B-294974.6, December 1, 2006. It’s likely that this is an attractive feature to some contracting officers. They can establish a poor man’s IDIQ without funding or minimum guarantees.

Vern Edwards said:

Why would they synopsize it?

(My inclusion of "synopsize" was probably not correct.    I should of kept to competitively.)

 Why?   I am reminded of a Forum discussion of years back from which I have captured this quote.  As to the Forum discussion it is referenced at the very end of this post.

"Statutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs." Reference  https://www.gao.gov/assets/b-294974.6.pdf

Many agencies do use competitive procedures to establish BPA's so that they only have to compete an actual reguirement via the BPA's that were established competitively.   My reference to "many agencies" can be confirmed by a search of SAM.gov Contract Opportunities. 

Example of wording I found in SAM solicited contract opportunities - 

• "The Government anticipates this solicitation will result in multiple BPAs." 
• "The anticipated period of performance for any contract awarded..."
• "The anticipated contract type for any contract awarded as a result of this solicitation is a Blanket Purchase Agreement (BPA)."

So what do you think?  Should an agency that competitively established multiple BPAs simply extend the BPA's established in the competition if the BPA's had a set "performance period" which has ended/expired and neither the BPA(s), nor the solicitation, carry or carried language, options or otherwise, that the BPA's would be extended beyond the stated performance period?  

The past WIFCON discussion noted above -

Jamaal Valentine said:

Presumably because the “[s]tatutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” It’s likely that this is an attractive feature to some contracting officers.

Sorry we posted simultaneously.

The Logan decision goes farther than the text of FAR 13 on the topic of BPAs, and has not been codified in a FAR update.  Logan's premise should only be used by competent and careful practitioners.

That said, I like it!

ji20874 said:

The Logan decision goes farther than the text of FAR 13 on the topic of BPAs, and has not been codified in a FAR update.  Logan's premise should only be used by competent and careful practitioners.

That said, I like it!

Me too.

I don't understand what there is to like so much about the Logan decision. That decision has been cited only four times, and never about the BPA competition issue. A few agencies have established priced BPAs for decades. Logan is just common sense in such cases.

And I don't understand how the Logan decision answers my question: Why synopsize a competition for BPAs  when such competitions are not contract actions? What would it do for you?

Clue me in, fellas.

It’s probably worth distinguishing what a synopsis is under FAR. That would highlight that the value isn’t in the synopsis itself. The value is in using competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors. Disseminating information through a so-called synopsis just seems to be a convenient avenue of approach for soliciting competition because the so-called synopsis is a byproduct of using SAM.gov to publish solicitations.

Why use competitive procedures to establish multiple BPAs? Why not just do market research and then enter into BPAs with vendors you like? Then seek competitive quotes from them. Maximum practicable competition is not full and open competition.

Again... A Part 13 BPA is just a charge account, a billing arrangement. That's all it does for you. It's not a contract.

C Culham said:

So what do you think?  Should an agency that competitively established multiple BPAs simply extend the BPA's established in the competition if the BPA's had a set "performance period" which has ended/expired and neither the BPA(s), nor the solicitation, carry or carried language, options or otherwise, that the BPA's would be extended beyond the stated performance period?

Well, if you're going to conduct competitions for SAP BPAs when you don't have to, why not conduct new competitions when they expire?

BTW, I do not think GAO has protest jurisdiction over actions to establish or extend BPAs. See 31 USC 3551 and the definition of protest in FAR 33.101.

Logan was not about the establishment or extension of a BPA.

Using competitive procedures to establish multiple BPAs means “there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” This could facilitate rotation of vendors contracting officers often talk about. In context, rotating is where orders are placed with different BPA holders to maintain properly balanced sources of supply/services, for example. If the BPAs aren’t established competitively, mini competitions would be necessary for certain actions over the micropurchase threshold.

I need to think about actions over the micropurchase but less than $25K since actions over $25K would need to be synopsized.

I think establishing BPAs competitively might make you vulnerable to protests when you place orders ("calls") against the BPAs. Is rotating vendors consistent with competition? How do yo explain paying a higher price just because someone has come up on rotation? If you're going to do that, what was the point of the original competition?

And remember, an order against a BPA is contract action, and each one that meets the criteria in 5.201(b) must be synopsized. I don't think you can restrict the competition to BPA-holders.

A SAP BPA is just a charge account. It is not a contractual instrument.

Vern Edwards said:

A SAP BPA is just a charge account.

Over time, it seems that BPAs stopped being used this way. The modern practice for many BPAs more closely resembles the thing FAR 13.303-2(a)(3) implies they were supposed to avoid - writing numerous purchase orders.

Now, purchase requisitions and accounting and appropriation data initiate many orders and the literal calls of the past are extinct. In there place are ad-hoc electronically written orders—from a contract writing system—for each delivery or performance required.

Today, BPAs are used more like standing RFQs or a poor man’s multi-award contract (noting that they are not contracts at all) rather than charge accounts. There aren’t any billing periods and invoices have replaced delivery tickets.

 Has anyone else had similar experiences/observations? What about in the civilian agencies?

Vern Edwards said:

Well, if you're going to conduct competitions for SAP BPAs when you don't have to, why not conduct new competitions when they expire?

Yep.  My view is that an agency has set an expectation on competition for the future.   I tried and could not find any protests that addressed the situation.  I wonder if GAO would do an advance decision on the matter? 

Vern Edwards said:

BTW, I do not think GAO has protest jurisdiction over actions to establish or extend BPAs. See 31 USC 3551 and the definition of protest in FAR 33.101.

I agree in general.  I would add clarity that I believe you are referring to FAR part 13 BPA's.   I will also play the "it depends" card only from the view that as mulitple award FAR part 13 BPA's get more and more use as "the poor mans mulitple award contract" (thanks @Jamaal Valentine) some day, some how jurisdiction will be found by GAO or created by congress just as they interjected requirements for multiple award IDIQs.  By example I agree Logan was not about jurisdiction but does this quote in footnote 5 leave the door open - "In order to obtain competition to the maximum extent practicable, agencies must make reasonable efforts, consistent with efficiency and economy, to give responsible sources the opportunity to compete..."

Jamaal Valentine said:

Over time, it seems that BPAs stopped being used this way. The modern practice for many BPAs more closely resembles the thing FAR 13.303-2(a)(3) implies they were supposed to avoid - writing numerous purchase orders.

Now, purchase requisitions and accounting and appropriation data initiate many orders and the literal calls of the past are extinct. In there place are ad-hoc electronically written orders—from a contract writing system—for each delivery or performance required.

Today, BPAs are used more like standing RFQs or a poor man’s multi-award contract (noting that they are not contracts at all) rather than charge accounts. There aren’t any billing periods and invoices have replaced delivery tickets.

 Has anyone else had similar experiences/observations? What about in the civilian agencies?

Yes.  I’ve seen similar situations all across the government in both DoD and civilian agencies.   The practices vary but they are for the most part just as you described.  In some instances, individuals in program offices are designated as ordering officials and place “calls” through use of P-cards.

Jamaal Valentine said:

Using competitive procedures to establish multiple BPAs means “there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” This could facilitate rotation of vendors contracting officers often talk about. In context, rotating is where orders are placed with different BPA holders to maintain properly balanced sources of supply/services, for example. If the BPAs aren’t established competitively, mini competitions would be necessary for certain actions over the micropurchase threshold.

I need to think about actions over the micropurchase but less than $25K since actions over $25K would need to be synopsized.

Vern Edwards said:

I think establishing BPAs competitively might make you vulnerable to protests when you place orders ("calls") against the BPAs. Is rotating vendors consistent with competition? How do yo explain paying a higher price just because someone has come up on rotation? If you're going to do that, what was the point of the original competition?

And remember, an order against a BPA is contract action, and each one that meets the criteria in 5.201(b) must be synopsized. I don't think you can restrict the competition to BPA-holders.

A SAP BPA is just a charge account. It is not a contractual instrument.

This part of the discussion leads me back to the obeservation by Vern that in Logan GAO avoided discussion of rotating where GAO said in footnote 6 -   "To the extent Envirosolve argues that DEA did not achieve competition to the maximum extent practicable by competing the establishment of the BPAs (and thus must compete issuance of the purchase orders under the BPAs), this argument is untimely."  I have not taken the time to look at every multiple BPA advertisement on SAM.gov but in the few I have looked at there is an indication of a mini-competition among BPA holders at the discreation of the agency with the door left open that they might do "sole source" too.     So my view would be the issue of rotating or not would be dictated by the BPA wording. 

I guess we just wait and see.

Just now, C Culham said:

I would add clarity that I believe you are referring to FAR part 13 BPA's.

Yes. I'm talking about FAR Part 13 SAP BPAs, not the GSA FSS 8.405-3 things ("Schedule BPAs").

Under the terms of 31 USC 3551 and FAR Part 33, protests are complaints about contract actions. See GAO's protest rules, 4 CFR 21.1(a):

Quote

An interested party may protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; the cancellation of such a solicitation or other request; an award or proposed award of such a contract; and a termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract.

Emphasis added. SAP BPAs are not contracts.

Moreover, synopsis of a competition for multiple SAP BPAs does not free an agency from the statutory requirement to synopsize "each" contract action conducted thereafter. Any prospective order (or "call") against a SAP BPA that meets the criteria in FAR Part 5 must be synopsized. The existence of a SAP BPA provides no exception.

However... Practice generally precedes regulation, and many new practices are based on faulty interpretations of the regs. I do not doubt that buyers today are using SAP BPAs in ways that the regulations do not contemplate.

Anyway, I am still in the dark about what ji20874 and Don like so much about Logan with respect to BPAs. To me, what it says about maximum practicable competition is just a common sense reading of the FAR. Under Part 13, competitive quotes are competitive quotes, no matter how you got them. Having received competitive quotes through its (seemingly) pointless BPA competition, the agency did not have to get new quotes when placing orders against the BPAs. Big whoopee. (Apparently, the BPAs included prices. Agencies have been issuing "priced BPAs" since I entered contracting in 1974. They did that in order to permit no KO "ordering officers" to place calls without having to determine fairness and reasonableness.)

I suspect that the agency in Logan may have been confused about the difference between SAP BPAs and Schedule BPAs.

Another Wifcon wild diversion.

Vern Edwards said:

Another Wifcon wild diversion.

Yes sir!   

I too am in the dark to some extent about Don and ji's comment as Jamaal's quote about poor man's multiple award contract pegs it for me.   Even more so after reading some of the BPA's on SAM.gov where they seem to me to look like multiple awards not "establishment of a charge account".  I even found one that seemed to provide that calls/orders were a firm offer by the government that the BPA holder could no reject.  If it walks like a duck........

The decision by GSA to adopt the term "BPA" in connection with schedule contracts created a lot of confusion. Before his death in 2005, Professor John Cibinic criticized that decision in "Contracting Methods: Square Pegs and Round Holes," The Nash & Cibinic Report, September 2001.

I think that conducting competitions for the "award" of SAP BPAs is a needless complication of simplified acquisition. It is not clear to me what practical advantage there is in such a process. I think GSA's hijacking of the term has poisoned the well of common sense. But I am open to be educated.

Vern Edwards said:

I think that conducting competitions for the "award" of SAP BPAs is a needless complication of simplified acquisition. It is not clear to me what practical advantage there is in such a process. I think GSA's hijacking of the term has poisoned the well of common sense. But I am open to be educated.

No doubt hijacking of the terms has a lot to do with the way current SAPs evolved.  I’ve seen several ways BPAs are used, some of which are probably improper.  But without seeing details or agency documentation and rational, it’s hard to pass judgement.  For example:

• Synopsizing upfront the intent to competitively award BPAs.  The synopsis includes the scope of the BPAs and orders are not further synopsized regardless of dollar value
• Competition at the order level is limited to BPA holders
• Program office individuals are authorized to place calls for supplies and some services and contracting officers later consolidate all calls on a recurring basis such as monthly 
• Program officers may solicit quotes from BPA holders directly
• A single order is placed as bulk funding and subsequent orders for supplies/services draw down from the bulk funds
• As many BPAs are for commercial items, orders can be significant in terms of dollar value
• Noncompetitive orders are justified in narrative terms with only contracting officer approval or selection of a specific source is based upon past performance

Yes, I do like the Logan decision.  However, I do not encourage widespread use of the Logan decision as justification for any other contracting officer's action -- as I said, the Logan decision goes farther than the text of FAR 13 on the topic of BPAs, and has not been codified in a FAR update.  Logan's premise should only be used by competent and careful practitioners.

The old adage is that hard cases make bad law.  Logan was a hard case, with a tortured history.  The agency had a real and difficult need, and stretched the FAR 13 text beyond the comfort level of many in order to meet their need -- the GAO allowed it to stand.

Vern says the Logan decision was a big whoopee -- but I think it was a meaningful decision, because until then the approach was untested legally and probably rarely (or never?) used.  The Logan players in the DEA were bold and did it, and they won the protest.  I like that.

Unless I missed something, all Logan boils down to is that if you conduct a competition to establish BPAs and get competitive quotes, you don't have get new quotes from the BPA holders for each order. You can just use the quotes you already have. That strikes me as nothing more than common sense. I presume DEA included price lists in each BPA and that the work was fairly standard from one order to the next.

Were the BPAs in Logan agreements or contracts? Take a look at footnote 4:

Quote

The RFQ also included a “minimum guaranteed amount” of work for each BPA holder for each contract area. AR, Tab 3, RFQ No. DEA-06-R-0002, at 4-6.

Did the agency obligate funds to cover the minimum?

There were untimely protest issues that the GAO did not consider. See footnote 6. There may have been protest issues that were not raised. 

I don't like the Logan example because I think conducting competitions is a lot of work and protest-risky. Protests cost money and delay awards. We know that competitions under FAR Part 13 have generated sustained protests largely due to needless use of FAR Part 15 procedures.

In 2006 JAN Army Law 9 (2008), in a description of the Logan decision, the author, a Lieutenant Colonel, described the DEA's BPAs as "noncompetitive." He did not explain why. Maybe he was thinking that BPAs were competitively established but that the placement of the orders was done without competition, which appears to have been the case. No need for new quotes, but shouldn't the quotes have been compared before awarding orders? It appears that they were not. The GAO dismissed that thought with a couple of simple sentences:

Quote

In this case, DEA complied with the statutory requirement to obtain maximum practicable competition when it established the BPAs for these small purchases. Under these circumstances, there is no requirement that DEA compete among the BPA holders each individual purchase order subsequently issued under the BPAs.

Why not?

I think that is a questionable statement. GAO might rethink that in dealing with a protester armed with experienced lawyers from a large firm.

But if, as ji20874 suggests, an agency has top-notch people to think through and work out potential issues, plot a good course, and steer the thing through the rocks and shoals, they should give it a try.

Experiment, by all means. What do you have to lose?

A lot has already been written here about what they like and don't like about the DEA's procedure and the GAO's decision that I won't repeat or challenge. However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure. They disclosed their intent to rotate purchases among BPA holders in the solicitation and nobody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely. So it seems DEA was home free to rotate purchases among the BPA holders.

Don Mansfield said:

A lot has already been written here about what they like and don't like about the DEA's procedure and the GAO's decision that I won't repeat or challenge. However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure. They disclosed their intent to rotate purchases among BPA holders in the solicitation and nobody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely. So it seems DEA was home free to rotate purchases among the BPA holders.

Many of our USACE Districts used to rotate task orders among IDIQ holders but quit in the late 90’s. I don’t see a big problem with rotating purchase orders off of BPAs if the vendors are similar in pricing and performance.

Don Mansfield said:

However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure.

When I was first trained by the Air Force, we were instructed to rotate BPAs. It was the common practice although I never understood how it worked over the micro-purchase threshold. Nobody gave a good explanation besides traditions and norms. I bet someone with an old contingency contracting handbook, the Van Matthews, or early BPA guidance would find the practice in writing.

Don Mansfield said:

I think the most remarkable part of the Logan decision was the DEA's rotation procedure.

I agree.

But is award of orders by rotation a competitive procedure? (Is rotation the same as, or a type of, "allocation"? See FAR 16.505(b)(1)(ii)(B).)

And since DEA awarded only one BPA per geographical region they must have awarded orders without comparing competitive quotes. If so, was that a competitive procedure? Was it maximum practicable competition?

Don Mansfield said:

[N]obody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely.

Logan's (aka Envirosolve) attorney was a single practitioner. Their name appeared as representing a protester in only nine GAO decisions, all between 1999 and 2017. In one of those nine they represented an intervenor. In three of them they represented Logan versus the DEA. Of the nine protests only one was sustained in full (one of the Logan cases), and one was sustained in part (involving a different client). They represented two clients in three COFC protests between 2004 and 2007. They succeeded only once, partially, on a motion for discovery.

They represented six clients (including Logan (as Envirosolve) in 20 BCA cases, in seven of which they represented the same client and in six of which they represented another client. The outcomes were mixed. Several were settled before coming before the board. I did not read them all.

I cannot help but wonder how Logan might have fared had they hired an attorney with extensive bid protest experience. What issues and arguments  might a more experienced protest attorney have presented based on facts we don't know about? Also, the impression I have of GAO is that it does not always have a lot of patience with inexperienced lawyers.

Be careful not to read too much in, and rely too much on, a single GAO decision that has never been cited on-point after eight years. But feel free to innovate experiment. 😀

I do not think DEA and any other agencies actually uses a purely rotational basis to place calls and see the term as a distraction for this discussion.  Why?   Afterall Envirosolve was excluded from the rotation, so would not that mean that DEA was using other than a  rotation basis to determine who to  issue calls to(see below excerpt from the decision)?  In reviewing several BPA solicitations on SAM.gov it seems that where rotation is indicated there is an out for adverse performance.  In other words the calls may be rotated yet carry a BUT.  I have faith that CO discreation is still used and trumps just rotating calls.

"On or about July 17, 2006, DEA began excluding Envirosolve from the rotation of purchase orders for hazardous waste cleanup services among BPA holders. Envirosolve then filed the current protest challenging its exclusion. In its report to our Office in response to the protest, the agency explained that the DEA Hazardous Waste Disposal Section is presently conducting an investigation concerning the discovery of three drums containing clandestine drug laboratory waste at a location in Tulsa, Oklahoma. AR, Sept. 25, 2006, at 2. According to DEA, its initial investigation determined that the labeling on the drums indicated that the hazardous waste had been processed and transported by Envirosolve. Given Envirosolve’s apparent loss of control of the three drums of hazardous waste, the contracting officer decided to temporarily discontinue issuing purchase orders to Envirosolve during the pendency of the investigation."

On 3/21/2024 at 2:35 PM, ji20874 said:

The Logan decision

What is the Logan decision?

On 3/23/2024 at 2:51 PM, Retreadfed said:

What is the Logan decision?

Logan, LLC., B-294974.6, December 1, 2006

Thanks, Carl

I'm going to piggyback off this since I have a question that's so similar:

At my office we have one BPA for a chartered bus when a person in our area eventually passes away (state funeral) for our base's band. The BPA was solicited, and the master agreement has a one-year ordering period. The person was expected to pass away within that year, but they didn't. Now we have to extend the BPA master. 

The office wants to add in -8 to extend the agreement for 6 months, but I was wondering if that is even necessary? Looking at the discussion in this thread it seems like we should just be able to bilaterally push out the ordering period, but since we solicited, I think it might be thorny. What do you guys think?

NotEnoughMoney said:

but since we solicited, I think it might be thorny. What do you guys think?

Please clarify: Did you receive multiple responses to your “solicitation”?  Is the purpose of the BPA for a one time charter or for multiple bus charters?

It appears to be below the simplified acquisition threshold and perhaps commercial services. How thorny can that be to simply agree to extend the BPA?

NotEnoughMoney said:

The BPA was solicited, and the master agreement has a one-year ordering period. The person was expected to pass away within that year, but they didn't. Now we have to extend the BPA master.

And really a one time event?

On 4/5/2024 at 9:13 AM, joel hoffman said:

Please clarify: Did you receive multiple responses to your “solicitation”?  Is the purpose of the BPA for a one time charter or for multiple bus charters?

It appears to be below the simplified acquisition threshold and perhaps commercial services. How thorny can that be to simply agree to extend the BPA?

Yes, it did have multiple responses to the solicitation. It also had a protest (which is wild for a BPA at all; I inherited this). That's why I think it might be thorny if we extend it very much. We're already treating this thing like an IDIQ. That's why I'm fighting tooth and nail to not add a -8 to it. That just reinforces the thinking that this is a contract. 

And yes, it was anticipated (but not stated in the PWS) that it would only be used once, for one specific person. They didn't pass away within a year, though, so now the customer is scrambling.

Don’t know the basis of the initial selection or a protest or the basis of the protest decision. 

But if it is a one time event can you simply issue  a new BPA? Does it need to be a BPA for a single event? 

Does it necessarily need to be with the existing vendor?

joel hoffman said:

Don’t know the basis of the initial selection or a protest or the basis of the protest decision. 

But if it is a one time event can you simply issue  a new BPA? Does it need to be a BPA for a single event? 

Does it necessarily need to be with the existing vendor?

I already made that argument. I said this morning, "if it's such a low amount, why not just use oral solicitation when the person passes and put it out to our existing vendors that replied to the BPA solicitation?" I think that's the best way to do this, but the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go.

Set it up ahead of time so you can make the call when it occurs. Is it’s matter of on-call availability of a bus?

If there is a possibility of non-availability from any one company, how about prearrange with a couple companies for a rental and whoever is available gets the call. Or something like that… it just doesn’t seem to be that complicated. If they are both available for the same price, the tiebreaker would be flipping a coin. Fair enough…

Well, good luck.

NotEnoughMoney said:

I think that's the best way to do this, but the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go.

Does your customer understand that the BPA holder can reject the call against the BPA?

C Culham said:

Does your customer understand that the BPA holder can reject the call against the BPA?

They do, but I think they're hoping for the best at this point. And there is a lot of cross chatter at our own office about what we can and can't mod on a BPA, with legal, policy, and multiple KOs all saying different things. It's a pretty big mess.

If it is just a one time event, what is the cost?  Can it be done with the Government Purchase Card?

jtolli said:

If it is just a one time event, what is the cost?  Can it be done with the Government Purchase Card?

Agree

NotEnoughMoney said:

the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go

This sounds like either a requirement for a definitive contract awarded now with clearly defined availability and response timelines (if market research indicates buses may be scarce), or a pre-planned GPC buy/oral solicitation (e.g. have a market research report with local vendors, etc.) if you are confident there will be busses available from someone.

The single BPA seems to risk unavailability of a bus when you need it, but will give people misplaced confidence that there is a solution in place.

NotEnoughMoney said:

They do, but I think they're hoping for the best at this point. And there is a lot of cross chatter at our own office about what we can and can't mod on a BPA, with legal, policy, and multiple KOs all saying different things. It's a pretty big mess.

Sounds complicated. 

In my mind I dummied it down.  I would have canvassed the marketplace asking if as a commercial service they would sign a binding letter of commitment with government to provide the service if and when it occurred.  Now mind you I made the term up but so what.  When I found a willing company I would have done single source to that company with a SF1449 using single source authority of FAR part 13.  Attached the letter and got the contractor to formally accept it.  And then if timed rolled on I would of simply cancelled the order and rewrote until the untimely passing.

As to the BPA just renew it you are in too deep now.  Or if you think that's too risky do as I suggest above, yet get competition with the vendors of which you speak and go with price only and agreement to sign the letter of commitment as your selection criteria.

Good luck!

C Culham said:

binding letter of commitment

So, a requirements contract? Otherwise we'll end up in a discussion of consideration for what could be a credit card buy...

Witty_Username said:

So, a requirements contract? Otherwise we'll end up in a discussion of consideration for what could be a credit card buy...

Categorize it as you may. 

My response is based on the fact that the "customer" wants something that binds by my read.  Seems that leaves out credit card as its pay now.  Also it is not a "recurring" need so requirements does not quite fit.   By my personal experience in the commercial marketplace I get a commitment, yes even in writing, that a service vendor will do something on a specific date...aka letter of commitment for lack of a better term on my part.  So through market research (experience) it can be done and if the bus company will do it then it is a commercial acquisition based on commercial terms and conditions.  Exactly why FAR part 12 was invented.  Do it like I do it everyday with the commercial market place.  And it's simple...aka simplified acquisition... using FAR part 12.