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BPA Establishment and COC

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My agency advertises and awards multiple BPAs for various commercial resource categories (under Part 12 and 13 procedures). The following factors are used to evaluate quotes for BPA establishment:

(i) operational acceptability of equipment/resource offered to meet the Government requirement

(ii) price reasonableness

(iii) past performance dependability risk (high, low, or unknown based upon customer satisfaction as reflected in evaluations received for the quoter and other related experience within the past 36 months, compliance with Federal, state, and local laws and regulations, and quoter’s history of reasonable and cooperative behavior)

Some agency COs (and legal advisors) contend if a decision is made to not establish a BPA with a small business concern determined to be a “high performance risk” a COC must be sought from SBA. I question the need for SBA involvement as: 1) we are awarding agreements not contracts; 2) a decision not to award is based upon a high performance risk (as opposed to a non-responsibility finding) and we are establishing these BPAs under Part 13 (not strictly utilizing LPTA - Part 15); 3) FAR 13.303-2 prescribes consideration of “suppliers whose past performance has shown them to be dependable” and FAR 13.106-2 discusses evaluation based on only price and past performance with no mention of a COC requirement.

Appreciate any insight on this. Thanks.

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13 CFR 121.404

(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.

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Carl, from the October 2, 2013 Federal Register amending 13 CFR 121.404 "

With respect to ``Agreements'' including Blanket Purchase Agreements (BPAs) (except for BPAs issued against a GSA Schedule Contract), Basic Agreements, Basic Ordering Agreements, or any other Agreement that a contracting officer sets aside or reserves awards to any type of small business, a concern must qualify as small at the time of its initial offer (or other formal response to a solicitation), which includes price, for the Agreement. Because an Agreement is not a contract, the concern must also qualify as small for each order issued pursuant to the Agreement in order to be considered small for the order and for an agency to receive small business goaling credit for the order.

This amendment is effective on or before December 31, 2013. Therefore, if you can figure out when it is effective, more power to you.

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FAR 19.601© says the COC program is applicable to all Government acquisitions.

In 2.101, we see: "Acquisition" is defined as:“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

Because there is a selection of sources with the award of a BPA, I think the COC requirement applies.

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FAR 19.601© says the COC program is applicable to all Government acquisitions.

In 2.101, we see: "Acquisition" is defined as:“Acquisition” means the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract.

Because there is a selection of sources with the award of a BPA, I think the COC requirement applies.

August,

I respectfully disagree. I think you're missing, or ignoring, an essential part of the definition - "...acquiring by contract with appropriated funds..."

BPAs not being contracts in the first place eliminates them from the definition, but also, award of a BPA doesn't involve any funds at all, much less appropriated funds. I think your focus on the "selection of sources" phase is misplaced.

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Navy,

I agree that use of "contract" eliminates BPAs from the definition of "acquisition." However, would you say that the award of a requirements contract is not an "acquisition" because it does not involve the obligation of appropriated funds (assume no guaranteed minimum)?

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Navy,

I agree that use of "contract" eliminates BPAs from the definition of "acquisition." However, would you say that the award of a requirements contract is not an "acquisition" because it does not involve the obligation of appropriated funds (assume no guaranteed minimum)?

Don,

Good one. Of course, I have to say I consider a requirements contract an acquisition, but you got me on the "use of appropriated funds." I'm going to have to give that some thought. Tomorrow.

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