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physiocrat

BPAs and Exercise of Option Periods?

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[...] the CAA and the DAR council have no clue, see http://www.regulations.gov/#!documentD...FRDOC_0001-0476.

Specifically, the interim rule speaks in terms of exercising options in BPAs!!! These are the leaders and experts in acquisition procedures?

Clearly, no need to repeat what is wrong with the idea but briefly:

1) BPAs are not contracts which simply means they are not enforceable in a court of law

2) FAR Option clauses refer to contracts

3) An option is a unilateral right (uncommon in UCC) to extend the period of performance

4) Just dumb, practically, who in their right mind would attempt to include option periods in a BPA? Got it, try to bind a contractor unilaterally to an "option period" under a vehicle that is not binding under an agreement that can be canceled at any time, no consideration and proceed to establish FAR 17 requirements including funds are available, etc? Shall I use 52.217-9?

5) Ridiculous.

I'll be submitting comments to this interim proposed rule, make no mistake though I should probably spend more time finding a woman though I do have several prospects but the acquisition is all very annoying.

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[...} the CAA and the DAR council have no clue, see http://www.regulations.gov/#!documentD...FRDOC_0001-0476.

Specifically, the interim rule speaks in terms of exercising options in BPAs!!! These are the leaders and experts in acquisition procedures?

Clearly, no need to repeat what is wrong with the idea but briefly:

1) BPAs are not contracts which simply means they are not enforceable in a court of law

2) FAR Option clauses refer to contracts

3) An option is a unilateral right (uncommon in UCC) to extend the period of performance

4) Just dumb, practically, who in their right mind would attempt to include option periods in a BPA? Got it, try to bind a contractor unilaterally to an "option period" under a vehicle that is not binding under an agreement that can be canceled at any time, no consideration and proceed to establish FAR 17 requirements including funds are available, etc? Shall I use 52.217-9?

5) Ridiculous.

I'll be submitting comments to this interim proposed rule, make no mistake though I should probably spend more time finding a woman though I do have several prospects but the acquisition is all very annoying.

BPAs under FAR 8 (see FAR 8.405-3) are quite a bit different than those under FAR Part 13 (see FAR 13.303). FAR Part 8 BPAs have much more in common with FAR Part 16 multiple award contracts than with FAR Part 13 BPAs. As you have seen from the interim rule you reference, options are used with FAR 8 BPAs. By using option periods, an agency could obtain discounts from prices below those contained in the schedule, and its options, against which the BPA is placed.

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BPAs under FAR 8 (see FAR 8.405-3) are quite a bit different than those under FAR Part 13 (see FAR 13.303). FAR Part 8 BPAs have much more in common with FAR Part 16 multiple award contracts than with FAR Part 13 BPAs. As you have seen from the interim rule you reference, options are used with FAR 8 BPAs. By using option periods, an agency could obtain discounts from prices below those contained in the schedule, and its options, against which the BPA is placed.

Informal fallacy, establishes my argument unknowingly but thanks for your comment.

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physiocrat,

It's not entirely accurate to say, in general, that a BPA is not a contract. A FAR Part 13 BPA is not a contract. A FAR Part 8 BPA (which should be called something else) typically takes the form of additional/modified terms or conditions to an existing Federal Supply Schedule. Such terms and conditions may or may not be enforceable, depending on how they are written.

However, I'd still like you to submit your comment to the FAR Councils to see how they answer it.

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I can tell you how they'll answer it: Nonconcur.

Thanks for replying, at the end of the day, probably more important to me how Vern replies rather than the councils. Your thoughts or comments?

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GSA has created a wonderland of devices designed to make it easy to buy things. BPAs with options are among those devices. The objective is not to bind the BPA holder, but to make it possible for an agency to stay in a quasi-contractual relationship without getting new competition. This is the way things are. No point in being a purist about it. Just go with it. The councils will nonconcur with any comment that BPAs are not contracts and that BPA options therefore make no sense.

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physiocrat,

It's not entirely accurate to say, in general, that a BPA is not a contract. A FAR Part 13 BPA is not a contract. A FAR Part 8 BPA (which should be called something else) typically takes the form of additional/modified terms or conditions to an existing Federal Supply Schedule. Such terms and conditions may or may not be enforceable, depending on how they are written.

However, I'd still like you to submit your comment to the FAR Councils to see how they answer it.

Thanks Don, disagree, a BPA is not a contract and there is a plethora of court cases establishing the fact plus common knowledge, agree it should be called something else (GSA) but the main reason it is not a contract is that there is no consideration or mutual conventional inducement or a promise to order anything under a resultant BPA.

No real need for me to submit comments but I am shocked at the councils ostensible ignorance of basic contract principles and law.

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GSA has created a wonderland of devices designed to make it easy to buy things. BPAs with options are among those devices. The objective is not to bind the BPA holder, but to make it possible for an agency to stay in a quasi-contractual relationship without getting new competition. This is the way things are. No point in being a purist about it. Just go with it. The councils will nonconcur with any comment that BPAs are not contracts and that BPA options therefore make no sense.

OK, hard for me to "just go with it" because it makes no sense and am purist or at least have legal background or common sense. Instead, I'll think about more important things.

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Rousseau with a thesaurus vs. Locke with the FAR.

Thank you for the link, shocked that Vern might think that GSA BPAs are contracts, there is plenty of case law to the contrary, not that a court is the final authority on anything but the reasoning is bonified, not like the opinions of 5 out of 9 Supreme Court justices.

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Thank you for the link, shocked that Vern might think that GSA BPAs are contracts, there is plenty of case law to the contrary, not that a court is the final authority on anything but the reasoning is bonified, not like the opinions of 5 out of 9 Supreme Court justices.

physiocrat,

Cite one case holding that a BPA under a Federal Supply Schedule (the type described at FAR 8.405-3) is not a contract. Should be an easy task if there is "plenty of case law."

Folks,

Who wants to bet that, if physiocrat bites, he will cite a case holding that a FAR Part 13 BPA is not a contract? The case will not have anything to do with BPAs under Federal Supply Schedules. Anyone?

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physiocrat,

Cite one case holding that a BPA under a Federal Supply Schedule (the type described at FAR 8.405-3) is not a contract. Should be an easy task if there is "plenty of case law."

Folks,

Who wants to bet that, if physiocrat bites, he will cite a case holding that a FAR Part 13 BPA is not a contract? The case will not have anything to do with BPAs under Federal Supply Schedules. Anyone?

Works well Don, just not my issue; you do your research on case law and you will find the answer without my assistance, not important for me to cite or convince you that a BPA FAR 13 or FAR 8 is not a contract, if you think otherwise, don't care, God bless you and good luck because I have to paint my house and replace my shower diverter valve!

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Works well Don, just not my issue; you do your research on case law and you will find the answer without my assistance, not important for me to cite or convince you that a BPA FAR 13 or FAR 8 is not a contract, if you think otherwise, don't care, God bless you and good luck because I have to paint my house and replace my shower diverter valve!

Folks or Don, in terms of legal analysis, the courts speak at length regarding the fact that BPAs are not contracts and see FAR 2 definition; are you really resting your hat that there is not a case on point for GSA BPAs? If so, your ideas are remarkable and parochial which is certainly your prerogative.

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That's quite [ . . .] of you, physiocrat. You criticize Vern for saying that GSA BPAs are contracts, despite "plenty of case law to the contrary." Then when asked to cite one case (which you obviously can't), your housework becomes a priority.

Why did you start this thread anyway? To get someone to agree with you? How's that working out for you?

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If so, your ideas are remarkable and parochial which is certainly your prerogative.

Well, some of us attended parochial schools.

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That's quite [ . . .] of you, physiocrat. You criticize Vern for saying that GSA BPAs are contracts, despite "plenty of case law to the contrary." Then when asked to cite one case (which you obviously can't), your housework becomes a priority.

Why did you start this thread anyway? To get someone to agree with you? How's that working out for you?

I criticize no person Don, I review reasoning, contract laws and principles and provide my thoughts and ideas in this forum as a method of discussion and as I stated prior, I maintain no need for you to accept my view but clearly maintaining that a BPA is a contract is gratuitous at best and dumb, administratively in the alternative for reasons stated prior.

Your request to cite cases is nonsense because case law abounds; Hint: when the court speaks about BPAs, the same holding applies to GSA BPAs so your demand for a case on point is parochial considering both the definition of a contract, consideration, that sort of thing but go on and believe that options can be executed in BPAs, or that GSA BPAs are contracts, don't care.

If you want to enter into a discussion on the merits, course my view is not always right and that's called learning, I am more than happy to discuss, otherwise I can do without your ad hominems.

Certainly I can only benefit from your advice and experience which serves the purpose of this forum.

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See L-3 Global Communications Solutions v. U.S., 82 Fed. Cl. 604 (2008):

This post-award bid protest is before the court on cross-motions for judgment on the administrative record filed under Rule 52.1(B) of the Rules of the United States Court of Federal Claims (RCFC). L-3 Global Communications Solutions, Inc. (Global) challenges the award by the United States Department of Homeland Security, United States Coast Guard (Coast Guard or USCG) of contract number HSCG23-08-A-TMM001 (contract) to ADCI of Delaware, LLC (ADCI). The contract is a blanket purchase agreement (BPA), procuring satellite airtime and billing services for maritime communication terminals. Global seeks a declaration that the Coast Guard's award of the contract to ADCI was contrary to applicable procurement law and regulations, and requests a permanent injunction of the award to ADCI. Compl. at 1

I found no case in which the Court of Federal Claims or the Federal Circuit held that a GSA FSS BPA is not a contract.

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physiocrat,

I attemtped to enter into a discussion on the merits, but when you realized that you had nothing to show for your statement "Vern might think that GSA BPAs are contracts, there is plenty of case law to the contrary", housework became a priority. It seems that you are now backing away from that statement. Good for you.

Let me ask you, is a BPA under FAR Part 13 the same as a BPA under FAR Part 8? In other words, does the fact that they are called the same thing mean that they are the same thing?

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physiocrat,

I attemtped to enter into a discussion on the merits, but when you realized that you had nothing to show for your statement "Vern might think that GSA BPAs are contracts, there is plenty of case law to the contrary", housework became a priority. It seems that you are now backing away from that statement. Good for you.

Let me ask you, is a BPA under FAR Part 13 the same as a BPA under FAR Part 8? In other words, does the fact that they are called the same thing mean that they are the same thing?

Don, housework is housework, I don't like it either just trying to interject a personal touch so you know me a little better. I see where you are going; both are termed BPAs with different rules, there still exists no consideration unlike IDIQs not even an exchange for a promise, therefore no contract exists. Curious, what makes you think that the plethora of cases would not apply to GSA BPAs or what do you believe is the consideration for entering into any BPA?

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Curious, what makes you think that the plethora of cases would not apply to GSA BPAs or what do you believe is the consideration for entering into any BPA?

Please cite one of the plethora of cases to which you refer. Be sure to identify the case's reference to a FAR 8 BPA. After that, re-read the FAR discussion of Part 8 and Part 13 BPAs.

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Guest carl r culham

physiocrat - First and foremost I agree with Don, poor taste with regard to your posts to this forum. As you seem to be keen on such things as rules, case law, etc. I susgest you re-read the terms of use for this site, especially Rule 10. and the part titled "Responding to Posts".

Don - The following is from http://interact.gsa.gov/wiki/schedule-bpa-contract

Is a Schedule BPA a "Contract?"

Submitted by Brad Powers on Wednesday, January 12, 2011 - 6:57 PM BPANot usually.

A Blanket Purchase Agreement is Usually Not a ?Contract? for Most Federal Procurement Purposes

Summary: A BPA (whether a Part 13 BPA or a SubPart 8.4 BPA) is not a contract because it neither obligates funds not requires placement of any orders against it. Instead, it is an understanding (sometimes referred to as a ?vehicle? or ?agreement? in regulations, court, and review board cases) between an ordering agency and a contractor that allows the agency to place future orders more quickly by identifying terms and conditions applying to those orders, a description of the supplies or services to be provided, and methods for issuing and pricing each order. The government is not obligated to place any orders. Either party may cancel a BPA at any time. The award of a BPA lacks mutuality of consideration. However, circumstances may transform a BPA into a binding obligation, that is, an enforceable contract. An enforceable contract exists when the ordering agency places an order against the BPA and the contractor accepts it (either by signature or by commencing performance). When an order is issued under the BPA and the BPA-holder agrees to provide the service, then that individual order becomes a binding contract between the parties and both parties are then bound to all the terms and conditions in the BPA for that order. The result is that a BPA is a flexible simplified method of procurement for filling anticipated repetitive requirements that is itself somewhat protest-resistant - - at least until that first order is placed.

[for the purpose of business size] 13 C.F.R. ?121.404 (g) (vi): ?A Blanket Purchase Agreement (BPA) is not a contract. Goods and services are acquired under a BPA when an order is issued. Thus, a concern's size may not be determined based on its size at the time of a response to a solicitation for a BPA.?

[for the purpose of the requirement to be registered in CCR: ?Prospective contractors shall be registered in the CCR database prior to award of a contract or agreement...?] 48 C.F.R. ? 4.1101 defines ?agreement? as ?basic agreement, basic ordering agreement, or blanket purchase agreement.?

The Federal Acquisitions Regulations (FAR) System "prescribes policies and procedures for establishing and using basic agreements and basic ordering agreements." 48 C.F.R. ? 16.701. Both "basic agreements" and "basic ordering agreements" contain "contract clauses applying to future contracts between the parties during [the] term [of the contract]." 48 C.F.R. ?? 16.702(a), 16.703(a).

Almar Indus., Inc. v. United States, 16 Cl.Ct. 243 (1989).

Fay Zhengxing v. United States, 71 Cl.Ct. 732 (2006).

Labat-Anderson, Inc v. United States & JHM Research and Development Inc., __Cl.Ct.___ (2001), No. 01-350C, Wilson, J.

Modern Systems Technology Corp v. United States, 24 Cl.Ct. 360 (1991) aff?d 979 F.2d 200 (1992).

Boehringer Mannheim Corp., B-279238, May 21, 1998.

Canon USA, Inc., B-311254.2, June 10, 2008.

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

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Carl,

Thank you for stepping in. I prefer to debate this issue with you.

I don't agree with Mr. Powers assessment, as I believe that his remarks only apply to a FAR Part 13 BPA (even though he referenced FAR Subpart 8.4). I think what causes confusion is that the same term (Blanket Purchase Agreement) is being used to describe two different things. I believe the regulations and decisions that you have cited in support of the proposition that a BPA is not a contract is true for one of the things that we call a blanket purchase agreement. That type of blanket purchase agreement is described at FAR 13.303-1(a) as follows:

A blanket purchase agreement (BPA) is a simplified method of filling anticipated repetitive needs for supplies or services by establishing ?charge accounts? with qualified sources of supply (see Subpart 16.7 for additional coverage of agreements).

If you think that accurately describes the type of blanket purchase agreement discussed in FAR Subpart 8.4, then we'll have to disagree.

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I have been following this thread for a couple of days and would have to say I generally agreed with Don as he made the more compelling argument. However, I did come across the following case that specifically discusses FSS BPA?s and my opinion was swayed.

See AINS, Inc. B-400760.2; B-400760.3, conveniently posted on WIFCON here:

http://www.wifcon.com/cgen/4007602.pdf

The specific quote that changed my opinion is:

?Although Privasoft, Inc. submitted the original quotation, under the facts here we see no basis to object to the establishment of a BPA with Privasoft Corp., the vendor holding the FSS contract. A BPA is not a contract, and orders placed against an FSS BPA are placed against the underlying FSS contract.?

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