Transfer an existing BPA to a new 20-year GSA MAS contract?

contractor2589 said:

Can a blanket purchase order (BPA) be modified to survive the termination of a GSA MAS contract upon which it was awarded? We have a 5-year BPA that extends beyond the expiration of our 20-year GSA MAS contract. I'm hoping to hear that there is a way to mod the BPA to the new GSA MAS contract, which has been awarded with the same rates and escalation. If that's possible, it would not affect labor rates on the BPA.

It will be interesting to see if other thoughts will make your life easy, mine probably doesn't. 

Not saying I am right or wrong but it would seem that a new GSA MAS contract implies a new scope of work, not for your BPA but for the MAS itself and orders against it.  Along with this quick thought is the mechanics of FAR 52.216-22 if in the GSA MAS.  Would the BPA, as an order and then modified, some how be affected by the date stipulated in -22?  A spinoff thought if you will of the scope thought. 

Of course everything depends on the specifics of the GSA MAS, the BPA as an order, just my quick thoughts.

Vested interest here, but the BPA (and its scope) hasn't changed, and the BPA scope is well within both the original and new GSA MAS scope.

The most common way of handling this is simply modify the BPA to show a switch from the old to the new contract number.  That’s what most agencies do in similar circumstances.  I’m not saying it’s proper or not but I haven’t heard criticism from any source.  It’s a relatively frequent occurrence especially with the GSA merger and consolidation of Schedules over the past few years.

Another approach is prepare a Limited Sources Justification, do the BPA action, and then post in FedBizOpps for the required time period.

Excellent. Thank you.

formerfed said:

I’m not saying it’s proper or not but I haven’t heard criticism from any source.

Who knows what goes on in the GSA MAS program after contract award? Really, who knows? GSA's MAS rules and procedures are a wilderness. No one can sort it out, and I think that's by design. Let's adapt and adopt Dante's motto for MAS programs:

Do whatever you want, if you're smart enough, all ye who enter here.

Don't take my comments to suggest that I disapprove. Without GSA MASs, our procurement system would fail completely.

C Culham said:

Can a blanket purchase order (BPA) be modified to survive the termination of a GSA MAS contract upon which it was awarded?

So I do not mind simple.   And no debate with any thoughts offered, but I do wonder?  Today I have responded to two posts in Forum regarding IDIQ's and what do I wonder?  Why are not the OP's asking the CO designated for each of the IDIQ's, and specifically the CO with regard to the GSA MAS in this thread?    I guess I am old school but if I was the CO for an IDIQ that was available for use by multiple agencies and someone wondered what they could and could not do with regard to actions regarding orders under the IDIQ I would like the opportunity to give my advice followed or not.  I think the CO's are noted somewhere.   Are they responsive who knows!    Just wondering!

C Culham said:

Why are not the OP's asking the CO designated for each of the IDIQ's, and specifically the CO with regard to the GSA MAS in this thread?    I guess I am old school but if I was the CO for an IDIQ that was available for use by multiple agencies and someone wondered what they could and could not do with regard to actions regarding orders under the IDIQ I would like the opportunity to give my advice followed or not.  I think the CO's are noted somewhere.

It's not that simple.  There are 12 different Schedules and each has huge numbers of awards.  For example the IT has nearly 5,000 contractors.  While there’s a single CO for a solicitation, the thousands of responses get assigned to a large number of contract specialists.  A contract specialist also may or may not be the CO for the offer that are evaluating and negotiating.  It depends upon the estimated dollar value of the award and the CS/COs warrant.

In addition COs concentrate on getting contracts out.  Probably many don’t know that much about BPAs and the specific question asked here.  Even if you somehow found the CO assigned contract responsibility, do you ask the CO of the expiring contract or the CO of the new contract.  You may get two different answers.

Some of the typical questions agencies ask about placing orders are beyond COs expertise. Details of how the Price Reduction clause operates is a prime example.  GSA does have groups that are set up to answer these type issues but it’s a completely different part of the organization.

formerfed said:

It's not that simple.

The easy out I guess, just wing it.   I for one would be a little more cautious in case someone is lurking around my door that sure would like the work going into the future.

As usual a OP sometimes is lacking pertinent facts and while this may not be directly on point I could see where some of the concepts discussed might be applicable such as GSA policy on continuous contracts - https://www.gao.gov/assets/b-417956.pdf 

No more deep dive on my part with my only advice to the OP that further research beyond getting some quick responses here to support your proposed fix might be well worth it.

formerfed said:

Probably many don’t know that much about BPAs and the specific question asked here.

Probably? 😂

C Culham said:

No more deep dive on my part with my only advice to the OP that further research beyond getting some quick responses here to support your proposed fix might be well worth it.

Since you are quoting me, I think the comment “your proposed fix” is referring to me.  If so, I never proposed a fix.  I said that’s what many agencies do.  It happened very frequently a couple years ago with consolidation of schedules.  I haven’t heard any criticism either.  It’s a situation where an exact answer isn’t apparent or not worth the effort digging further.  The OP can do a limited source justification if he’s uncomfortable. 

Also my “it’s not that simple” referred to asking the GSA CO - nothing more

formerfed said:

Since you are quoting me, I think the comment “your proposed fix” is referring to me.  If so, I never proposed a fix.  I said that’s what many agencies do.  It happened very frequently a couple years ago with consolidation of schedules.  I haven’t heard any criticism either.  It’s a situation where an exact answer isn’t apparent or not worth the effort digging further.  The OP can do a limited source justification if he’s uncomfortable. 

Also my “it’s not that simple” referred to asking the GSA CO - nothing more

Nope not you on the "fix" it was directed at the OP, sorry I was not clear.

C Culham said:

Nope not you on the "fix" it was directed at the OP, sorry I was not clear.

👍

On 1/14/2022 at 6:57 AM, contractor2589 said:

Can a blanket purchase order (BPA) be modified to survive the termination of a GSA MAS contract upon which it was awarded? We have a 5-year BPA that extends beyond the expiration of our 20-year GSA MAS contract. I'm hoping to hear that there is a way to mod the BPA to the new GSA MAS contract, which has been awarded with the same rates and escalation. If that's possible, it would not affect labor rates on the BPA.

Why must there be a BPA in place? Can't agencies just order off of your new GSA MAS?

Don Mansfield said:

Why must there be a BPA in place? Can't agencies just order off of your new GSA MAS?

Establishing a competitively-awarded BPA valued at up to $100 million with a single contractor lets an agency issue orders without having to comply with FAR 8.405. It's a way around competition. An innovation.

Don't interpret this comment as a criticism. If every buy had to be competed we'd never get anything done.

On 1/17/2022 at 12:37 PM, Don Mansfield said:

Why must there be a BPA in place? Can't agencies just order off of your new GSA MAS?

OP here. In our case, we have never had an agency just order off our GSA MAS - always through either single- or multiple-award BPAs. For multiple award BPAs, we are trying to find a way to not be kicked out of the contractor pool.

On 1/14/2022 at 2:55 PM, C Culham said:

Why are not the OP's asking the CO designated for each of the IDIQ's, and specifically the CO with regard to the GSA MAS in this thread?

We are speaking to our GSA CO and the COs for each agency that has awarded a BPA, and we get answers ranging from "no problem, we will handle it administratively" (whatever that means) to "there is nothing we can do; when your previous GSA contract expires, so does the BPA." GSA is saying they expect a surge of contract terminations (and this related issue) from now until 2027 or so.

OP here.

Let's use the example of a multiple-award BPA competitively awarded under a GSA MAS. Presumably, the number and mix of contractors was selected because it was int he best interest of the Government. One of the contractors' MAS is expiring a year into the BPA POP. It seems the options come down to:

1. Just mod the BPA for the expiring contractor and connect it to the new GSA contract.
2. Task orders can be modified for up to 60 months after GSA contract expiration, so...Award the expiring contractor a task/call order with a generalize scope that contains option period CLINs extending the POP to the end of the BPA POP and some kind of reserve/max funding. Compete tasks/calls across the BPA contractor holders (including the expiring contractor with a now invalid BPA but a viable task/call order). IF the expiring contractor is selected for task/call order award, modify the previously awarded task/call order to add scope items and funding as necessary. 
3. Sole source the expiring contractor to add them back to the BPA or to award an identical stand alone contract. Continue to compete tasks/calls across all BPA contract holders and the expiring contractor. Per 8.405-6(C), the sole source justification is the fact that maintaining the pool of BPA contractors that were selected through competitive award is a logical follow-on to an original Federal Supply Schedule order and in the interest of economy and efficiency.

Here's another option: Let the BPA under the expiring MAS contract expire and let the contractor seek a new MAS contract and a new BPA.

Vern Edwards said:

Here's another option: Let the BPA under the expiring MAS contract expire and let the contractor seek a new MAS contract and a new BPA.

Yes, that's an approach, but it would result in mass terminations and total destruction of a small business contractor. That's not an issue for this forum, but it's my reality.

Contracts end. That is part of the expected order of business. Businesses must plan for that and take the actions necessary to survive or they will die.

The "transfer" of a BPA from a dying MAS contract to a living MAS contract in order to keep it "alive" is a strange idea to an old-timer like me. But the GSA MAS program is a madhouse of procedures and "vehicles", so I do not doubt that agencies do it.

As for worries about  survival, such worries are every businessperson's reality.

Actually “transferring” BPAs from an old GSA MAS contract to a new isn’t that uncommon.  GSA Schedule solicitations are open on a continuous basis without a closing date so a common award date doesn’t exist.  So when an agency awards BPAs to multiple sources, GSA Schedule contracts might have varying ending dates.  

In this case where a follow on contract has the same rates, transferring the BPA has benefits of maintaining an existing source as well as maintaining the same level of competition.  The BPA itself still keeps the original 5 year duration.  As long as the solicitation didn’t preclude it, transferring contracts has mutual benefits.

What if the new GSA contract includes contract clauses that were not in the old GSA contract, or different versions of the clauses that were in the old GSA contract?

@Vern Edwards That’s a possibility but slight.  GSA periodically updates all Schedule contracts with current clauses.  They use the term “mass mod” so I’m pretty sure new awards likely have the same clauses as existing contract.

I sometimes envision BPAs as similar to multiple award IDIQ contracts using GSA Schedule pricing rates.  Often agencies add so many agency specific terms, they look like agency contracts rather than GSA ones.

@formerfedWould the transfer of a BPA from one contract to another be a contract modification? If so, what kind of mod would it be, administrative change or supplemental agreement?

If a supplemental agreement, what would be the consideration needed to make the mod binding? From which party should the consideration flow?

@Vern Edwards Good question.  If the clear intent was having an ordering agreement in place for five years using GSA contract rates, I think an administrative mod works.  If a supplemental agreement is used, I think mutual consideration applies.

@formerfedI think that a mod to move a BPA from an expiring contract to a continuing contract affects the rights of the parties. If so, then it cannot be an administrative change. See FAR 43.101:

Quote

Administrative change means a unilateral (see 43.103(b)) contract change, in writing, that does not affect the substantive rights of the parties (e.g.,a change in the paying office or the appropriation data).

If the mod is a supplemental agreement, then there must be consideration.

I'm not sure what you meant by "mutual consideration."

Vern Edwards said:

If the mod is a supplemental agreement, then there must be consideration.

I'm not sure what you meant by "mutual consideration."

This would be an out of scope supplemental agreement, presumably beneficial to both the contractor and to GSA, wouldn’t it? If so, what and who would provide “consideration”?  Sorry for the interjection into your discussion.

All contracts are presumably beneficial to both parties. You still need consideration in order to seal the deal.

In the case of government bilateral contracts, such as a supplemental agreement, what usually happens is that one party makes an offer (a promise) and the other party accepts and makes a return promise. The return promise is the consideration.

Vern Edwards said:

All contracts are presumably beneficial to both parties. You still need consideration in order to seal the deal.

In the case of government bilateral contracts, such as a supplemental agreement, what usually happens is that one party makes an offer (a promise) and the other party accepts and makes a return promise. The return promise is the consideration.

Isn’t the opportunity to compete consideration?

I think the promise of an opportunity to compete would be consideration.

So the deal would go down like this:

The contractor with the BPA contacts a GSA CO and say it has a BPA under another contract that is about to expire and offers to transfer it to the CO's contract and compete for orders, which would benefit the the government by increasing competition. The CO agrees to do it and promises to let the contractor compete, which serves as consideration in return for the contractor's offer.

Is that it? Is that how it works?

@formerfed Go to https://www.gsa.gov/cdnstatic/PSS_Implementation_-_Customer_Presentation_July_2015.pdf

Read pages 20 -25. GSA refers to the process of "migration" of BPAs.

Vern, 

I imagine this scenario is somewhat different from what the OP faces.  This slide deck covers GSA’s migration of several individual Schedules into a single one for Professional Services.  In that instance, GSA was the party causing contracts to end. The OP sounds like their company’s contract is just ending and they were awarded a new contract for the same services.  Regardless the GSA information is helpful in how GSA views the subject.

Vern Edwards said:

I think the promise of an opportunity to compete would be consideration.

So the deal would go down like this:

The contractor with the BPA contacts a GSA CO and say it has a BPA under another contract that is about to expire and offers to transfer it to the CO's contract and compete for orders, which would benefit the the government by increasing competition. The CO agrees to do it and promises to let the contractor compete, which serves as consideration in return for the contractor's offer.

Is that it? Is that how it works?

That’s how I see it. That’s assuming GSA awarded the BPA for the user agency using their Assisted Services capability.  The user agency could also have awarded the BPA themselves.

On 4/5/2022 at 4:08 PM, Vern Edwards said:

Would the transfer of a BPA from one contract to another be a contract modification?

What would be modified, the BPA or the contract?  If the BPA, why would consideration be needed if  the BPA is not a contract?

Deleted

Retreadfed said:

What would be modified, the BPA or the contract?  If the BPA, why would consideration be needed if  the BPA is not a contract?

I don't know. To be honest, I haven't paid much attention to GSA and its FSS procedures and don't plan to in the future, because I don't think its "contracting" in any meaningful sense of the term. It's a bureaucratic madhouse. But if GSA's madhouse works for people, and it apparently does, then that's fine. Besides, FARWorld is a madhouse, too.

Thanks, Retread. Thanks formerfed.

Vern Edwards said:

I don't know. To be honest, I haven't paid much attention to GSA and its FSS procedures and don't plan to in the future, because I don't think its "contracting" in any meaningful sense of the term. It's a bureaucratic madhouse. But if GSA's madhouse works for people, and it apparently does, then that's fine. Besides, FARWorld is a madhouse, too.

Thanks, Retread. Thanks formerfed.

Vern, yeah GSA and FSS procedures really evolved from entrepreneurial motivation by GSA and a push by agencies and contractors to expedite ordering.  One major reason why it includes some more sound contracting basics like requiring a minimum of three anticipated responses and use of a SOW for services exceeding the SAP threshold is because of numerous abuses by agencies.

At its simplest, isn't a GSA BPA a task order under a contract? I don't see how contractually one could take an awarded task and just modify it to a different overarching contract. Yes the terms are similar, but one could start extending that argument outside of GSA and it would get very messy.   Is a follow on base GSA contract really the exact same, same terms, same pricing?

sdvr said:

At its simplest, isn't a GSA BPA a task order under a contract? I don't see how contractually one could take an awarded task and just modify it to a different overarching contract. Yes the terms are similar, but one could start extending that argument outside of GSA and it would get very messy.   Is a follow on base GSA contract really the exact same, same terms, same pricing?

Take a look at the link provided in Vern Edwards 12:10 PM post from yesterday above.  You’ll see what GSA recommends migrating from one contract to another.  Also, yes it’s very likely the follow-on schedule contract is the same as the expiring contract.  GSA is conscious about updating existing contracts so everything is current.  In addition expiring contracts don’t have a common end date among contractors.  New follow-on contracts need to be close to competitors contracts which haven’t expired to ensure fair competition.

On 4/7/2022 at 11:50 AM, sdvr said:

At its simplest, isn't a GSA BPA a task order under a contract?

No, a BPA is a mechanism by which agencies can issue task or delivery orders.  No supplies or services are acquired by the execution of a BPA.

OP here. I realize this discussion has been over for 7.5 months, but I was just revisiting it and wanted to say that the level of thoughtful discussion and critical thinking that you all engage in on Wifcon is both comforting and inspiring to me. As a contractor, we often encounter agency actions that are inconsistent, noncompliant, or just nonsensical, but knowing there are smart people interested in understanding, exploring, and testing the rules of the game feels like a lifeline. I hope there are others following in your footsteps so this type of dialog continues into the future. Thank you.