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physiocrat

BPAs and Exercise of Option Periods?

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Don,

You swayed me back the other direction. I recind my previous post. Perhaps I was too hasty in my review of the case.

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Guest carl r culham

Don - We agree and we agreed in the previous thread you referenced. I am not swayed by Powers who has noted many of the cases that were discussed in the archived thread nor am I swayed by physiocrat who has brought absolutely nothing to the table to be persuasive.

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Don - We agree and we agreed in the previous thread you referenced. I am not swayed by Powers who has noted many of the cases that were discussed in the archived thread nor am I swayed by physiocrat who has brought absolutely nothing to the table to be persuasive.

Works well [ . . . ], like it Don, cite the cases and you remark do you believe what GAO says? Very good; wasn't debating you just inquiring what you think is the consideration for establishing a GSA BPA. I too do not agree with GAO in all instances but for the most part, they are right on. GAO's jurisdiction of review of GSA task orders, in fact rests on the idea that BPAs are not contracts.

Again Don, what do you think is the consideration for entering into a GSA BPA?

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One form of consideration for entering into the BPA is the opportunity to receive task/delivery orders with no further competition (or reduced competition in the event multiple BPAs are awarded)

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GAO's jurisdiction of review of GSA task orders, in fact rests on the idea that BPAs are not contracts.

Ridiculous.

Again Don, what do you think is the consideration for entering into a GSA BPA?

That's actually the first time you asked me that. If you had read the discussion that I referenced earlier, the issue of consideration is addressed in Vern's post #635 and Carl Culham's post #153. Again, here's a link to that discussion:

http://www.wifcon.com/discus/messages/8523/9699.html

If you're not open to the possibility that a FSS BPA could be a binding contract (depending on how it is written), don't waste your time reading. Finish painting instead.

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Guest carl r culham

Well this thread in almost equal to a bad dream, but even so I have been game in re-living it as I am always open to new thoughts.

I am convinced more than ever, after revisiting the references, especially those in the Powers blog referenced previously, that GAO has actually stated that a BPA can in fact be a contract. In the archived thread referenced a few times Vern noted the poor wording of the GAO Canon decision, and I agree. But having re-read all the references including Canon I have concluded that GAO acknowledged in this specific decision that a BPA can in fact be a contract in exactly the way that a FSS contract makes a BPA a contract.

My conclusion is based on how I read the following statement from the Canon Decision which I restate here based on my read. What GAO is saying is that a BPA is not a generally a contract (FAR Part 13) but (rather) can be when an order is placed against the BPA OR if the BPA is part of or otherwise required by a new contract. Or in other words when a FSS contract requires that a BPA is an "order" that must be accepted then the BPA becomes a contract. Here is the GAO quote from Canon that I am interpreting in this manner.

?As relevant here, FAR sect. 8.405-3(a)(1) authorizes the establishment of BPAs under FSS contracts as a means to fill ?repetitive needs for supplies or services.? It is well-settled, however, that a BPA itself is not a contract; rather, a contract is formed by the subsequent placement of a valid order against the BPA, or by the incorporation of the basic agreement into a new contract.?

Right read? I am sure some folks following this thread will let me know their opinion but in the end I agree with all previous conclusions, save that of Ms. pyhsiocrat, that a BPA established under the authority of the parent FSS contract is a contract.

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But having re-read all the references including Canon I have concluded that GAO acknowledged in this specific decision that a BPA can in fact be a contract in exactly the way that a FSS contract makes a BPA a contract.

My conclusion is based on how I read the following statement from the Canon Decision which I restate here based on my read. What GAO is saying is that a BPA is not a generally a contract (FAR Part 13) but (rather) can be when an order is placed against the BPA OR if the BPA is part of or otherwise required by a new contract. Or in other words when a FSS contract requires that a BPA is an "order" that must be accepted then the BPA becomes a contract. Here is the GAO quote from Canon that I am interpreting in this manner.

?As relevant here, FAR sect. 8.405-3(a)(1) authorizes the establishment of BPAs under FSS contracts as a means to fill ?repetitive needs for supplies or services.? It is well-settled, however, that a BPA itself is not a contract; rather, a contract is formed by the subsequent placement of a valid order against the BPA, or by the incorporation of the basic agreement into a new contract.?

Right read? I am sure some folks following this thread will let me know their opinion but in the end I agree with all previous conclusions, save that of Ms. pyhsiocrat, that a BPA established under the authority of the parent FSS contract is a contract.

Why is it so hard to understand that the terms of the blanket purchase agreement are simply incorporated into the orders? A BPA (at least under Part 13) is simply a prearranged, "agreed" set of terms and conditions that apply to any orders, placed against it, so that the parties don't have to issue reams of paper and establish all the details each time an order is issued. Isn't the order the actual contract vehicle?

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Guest carl r culham

Joel - Yes Joel under FAR Part 13 the order (or purchase order per your post) under a BPA is viewed as the contract, no arguement on my part on this fact. The question that my post addresses is whether a BPA issued under FAR Part 8 against a FSS contract is a contract or not. My post is intended to support that it usually is.

I note that your post is slightly confusing because in one part you state "basic ordering agreement" and then go on to reference "BPA". You do realize that under the FAR these are different, correct?

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I note that your post is slightly confusing because in one part you state "basic ordering agreement" and then go on to reference "BPA". You do realize that under the FAR these are different, correct?

Yes, thanks, Carl. I was in Walmart, being hurried by my wife. I didn't mean to refer to a BOA. Now I'm sitting in the gym, watching my wife's volleyball team. I had some time to fix it. Thanks.

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Why is it so hard to understand that the terms of the basic ordering agreement are simply incorporated into a purchase order? A BPA (at least under Part 13) is simply a prearranged, "agreed" set of terms and conditions that apply to any purchase orders, placed against it, so that the parties don't have to issue reams of paper and establish all the details each time a purchase order is issued. Isn't the purchase order the actual contract vehicle?
Emphasis added.

The terms of BPAs under FAR 13.303 are not incorporated into "purchase orders." The whole idea behind BPAs as discussed in FAR 13.303 is to avoid having to issue purchase orders. See FAR 13.303-2(a)(3) and 13.303-5(e). If you are going to issue a purchase order, why bother with a BPA? By tradition and convention for many decades and in many forums, orders against BPAs have been and are referred to as "calls," not purchase orders. That is because BPA "calls" can, and generally should, be oral.

See, e.g., Palm Springs General Trading and Contracting Establishment, ASBCA No. 56290, 10-1 BCA ? 34406 (2010); Myosook H. Whitcomb, ASBCA No. 12744, 69-1 BCA ? 7770 (1969); Department of Labor, Office of Federal Contract Compliance Programs, Debarment: Bruce Church, Inc., 52 FR 28613 (Julsy 31, 1987); The Peddler's Motor Inn, GAO Dec. B-227110, 87-2 CPD ? 112; etc.

Use of correct (or, at least, received) terminology avoids confusion.

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Emphasis added.

The terms of BPAs under FAR 13.303 are not incorporated into "purchase orders." The whole idea behind BPAs as discussed in FAR Subpart 13.303 is to avoid having to issue purchase orders. See FAR 13.303-2(a)(3) and 13.303-5(e). If you are going to issue a purchase order, why bother with a BPA? By tradition and convention for many decades and in many forums, orders against BPAs have been and are referred to as "calls," not purchase orders. That is because BPA "calls" can, and generally should, be oral.

See, e.g., Palm Springs General Trading and Contracting Establishment, ASBCA No. 56290, 10-1 BCA ? 34406 (2010); Myosook H. Whitcomb, ASBCA No. 12744, 69-1 BCA ? 7770 (1969); Department of Labor, Office of Federal Contract Compliance Programs, Debarment: Bruce Church, Inc., 52 FR 28613 (Julsy 31, 1987); The Peddler's Motor Inn, GAO Dec. B-227110, 87-2 CPD ? 112; etc.

Use of correct (or, at least, received) terminology avoids confusion.

I agree, Vern. I was probably editing my post as you were typing but you are correct.

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My conclusion is based on how I read the following statement from the Canon Decision which I restate here based on my read. What GAO is saying is that a BPA is not a generally a contract (FAR Part 13) but (rather) can be when an order is placed against the BPA OR if the BPA is part of or otherwise required by a new contract. Or in other words when a FSS contract requires that a BPA is an "order" that must be accepted then the BPA becomes a contract. Here is the GAO quote from Canon that I am interpreting in this manner.

?As relevant here, FAR sect. 8.405-3(a)(1) authorizes the establishment of BPAs under FSS contracts as a means to fill ?repetitive needs for supplies or services.? It is well-settled, however, that a BPA itself is not a contract; rather, a contract is formed by the subsequent placement of a valid order against the BPA, or by the incorporation of the basic agreement into a new contract.?

Right read? I am sure some folks following this thread will let me know their opinion but in the end I agree with all previous conclusions, save that of Ms. pyhsiocrat, that a BPA established under the authority of the parent FSS contract is a contract.

Carl,

So you think that the "or incorporation of the basic agreement into a new contract" is a reference to a FSS BPA? I had not read it that way, but I'm not sure what else it could mean.

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While arguing about whether FSS BPAs are contracts may be fun, it is a distraction from the more interesting truth about BPAs -- they are nothing more than mechanisms to enable agencies to avoid competitive practices when ordering against schedule contracts. I don't think a BPA lets an agency do anything under the contract that it could not do without the BPA. Heck, you can do anything in an order under a schedule contract if the contractor will go along. But if an agency establishes a BPA, then it need no longer follow the pesky ordering procedures in FAR 8.405-2, unless the agency is foolish enough to establish multiple BPAs.

It's quite smart, really. Using FSS contracts is like TEGWAR: The Exciting Game Without Any Rules, introduced to the world in the baseball novel Bang the Drum Slowly.

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Guest carl r culham

Don - Yes.

Vern - It might be TEGWAR Rev. 1, when you consider FAC 2005-50 and its discussion of FSS-BPAs especially the "new" 8.405-3(a)(3)(i).

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You are wrong, physiocrat, and "beginning, intermediate or senior contract specialists" should ignore your last post, because you didn't know what you were talking about when you wrote it. GSA schedule contracts contain the following clause:

I-FSS-646 BLANKET PURCHASE AGREEMENTS (MAY 2000)

Blanket Purchase Agreements (BPA's) can reduce costs and save time because individual orders and invoices

are not required for each procurement but can instead be documented on a consolidated basis. The Contractor

agrees to enter into BPA's with ordering activities provided that:

(a) The period of time covered by such agreements shall not exceed the period of the contract including

option year period(s);

(B) Orders placed under such agreements shall be issued in accordance with all applicable regulations

and the terms and conditions of the contract; and

( c) BPAs may be established to obtain the maximum discount (lowest net price) available in those

schedule contracts containing volume or quantity discount arrangements.

Since the contractor agrees to enter into BPAs when it enters into a schedule contract, the consideration that binds the parties to the schedule contract covers any BPAs. No new consideration is required. Is there an exchange of promises? That depends on what the BPA says.

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1. I've suspended a member for a time until I can do more research. I may lift the suspension shortly.

2. A personal attack is obvious. Look at YHOO discussion boards. It goes like this. "You are an _ _ _ _ _." Saying someone is cowardly, does not qualify as a personal attack--for the moment--as it was used. However, its use isn't necessary to express oneself and should be expected to upset the person receiving the note. If I didn't delete the post where it is used, I will.

3. Stating that one is looking for someone of the opposite sex to meet, is more appropriate for a dating site--which this site is not. Referring to men as "Ladies" or women as "Men" is something different altogether. I hope I deleted that.

4. Calling a former President our worst "despot" or responding to the comment simply does not fit in the discussion. I don't view it as political. I would view it as political if his party was mentioned and that party was attacked.

5. Much of this thread was off topic, that is the cause of most of the deleted posts.

I probably missed something else.

Wifcon.com is intended to be a professional site where work-related issues are discussed. As long as discussions are professional and work-related, I can defend its use by employees to their employers. If the government wants to allow its employees to use social sites, that is a matter to be judged by taxpayers. Although I will allow some topics not related to work and some posts not related to work, this is a site dedicated to work.

I depend on you to police yourselves. Over the years, you have done a good job. Please continue with this.

I've reopened the thread, with the intent to make more edits of posts. Please to do not comment on what I did.

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