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Competitive FAR Part 13 BPA

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My agency has determined that it's necessary to synopsize and compete BPAs established under FAR Part 13. Nowhere in FAR 13.303-2 does it state that you're required to synopsize, and--even though FAR 13.303-3 allows for the establishment of one BPA--FAR 13.303-5© states that the existence of a single BPA does not justify purchasing from one source (and where only one BPA exists, you must seek competition outside of the BPAs or establish new BPAs).

I was brought up in contracting with the understanding that BPAs are just that--agreements. They are not contracts, and they are not binding. The way I understood BPAs under FAR 13 is that you can award them, non-competitively, to any contractor. The purpose it to set up "charge accounts," which include agency-specific clauses, invoice instructions, etc., but the competition is to be done at the order level. If you have a sufficient number of BPAs, you can compete among them. If you do not, you can solicit from the BPA holders as well as additional open market sources.

So, my question is this: If an agency synopsizes for the establishment of a multiple award BPA, do I have to synopsize orders that exceed $25k? Does the fact that the requirement was synopsized at the BPA level negate the need for synopsis at the order level?

...and where did the idea of "rotating" sources come from??? My agency also states that there's no need for competition among BPA holders; instead, they contend that only rotating sources is necessary, and they are not limiting the rotation to orders under the micro purchase threshold.

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Good questions. First off, I despise BPAs. That said, they are just agreements and not contracts. You do not need to advertise for establishment which you noted. I guess they jsut want you to do that to increase number of responses so you'll have more to choose from? Seems like its getting away from the intent of the BPA in the first place but that's my opinion. When it comes time to make purchases of items that BPA holders would provide, that's when you need to determine what you have to comply with as far as competition and advertising. Just because you advertised your desire to establish BPAs does not mean you do not have to advertise a purchase of $40K. The BPA is just another form of making the purchase. Are you sure the BPA is the best instrument?

Can only guess as to rotating. We used BPA's for office supplies back before GPC. Allowed for many purchases and just receive one bill a month. All were small dollar and rotating spread the business out amoung qualified local sources. Kept them interested and made everyone happy. Of course most purchaes were just a couple hundered $$ and that was eons ago. WIth the GPC I really don't see need for them stateside. Without knowing what you're buying and how much spending, frequency, it's hard to offer an opion and even if I could, the only one that matters is the CO signing the award. FAR is flexible and many ways to skin the cat. Is the BPA the best for your instance?

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Your agency approach might be dictated by an unfortunate history of contracting officers establishing BPAs and then using the BPAs to circumvent the requirement for maximum practicable competition. If so, it is a corrective reaction to reality rather than a misunderstanding of policy.

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anonoco –

You ask – “If an agency synopsizes for the establishment of a multiple award BPA, do I have to synopsize orders that exceed $25k? Does the fact that the requirement was synopsized at the BPA level negate the need for synopsis at the order level?”

My response – Probably not to synposizing the calls (orders) and probably yes the BPA synposizing negates the need to synopsize the call (order).– Reference http://www.gao.gov/decisions/bidpro/2949746.htm and the WIFCON thread I posted previously in which one poster, Vern Edwards stated the following…. “

Quote

You can make an argument that if you establish such BPAs you need not get new competition before placing calls. On the other hand, you can make an argument that you must obtain competition among BPA holders before placing orders. There are no published rules.

FAR does not contemplate the competitive award of priced BPAs. FAR contemplates getting competition prior to placing a call (order) against a BPA.

In the last case cited by Carl,
Logan, LLC, Comp. Gen. Dec. B-294974.6 (2006), the agency solicited quotes for priced BPAs and entered into multiple priced BPAs. GAO said that procedure satisfied the FAR Part 13 requirement for maximum practicable competition and that the agency did not have to obtain competition among the BPA holders prior to issuing a purchase order against one of the BPAs.

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.

However, in a somewhat worrisome footnote to the first sentence, GAO said:

Quote

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. Our Bid Protest Regulations require that protests based upon alleged improprieties which do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be filed no later than the next closing time for receipt of proposals following the incorporation. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006). Envirosolve was aware from at least March 29, 2005 (the date that Amendment 3 to RFQ No. DEA-05-R-0003 was issued) that DEA did not plan to compete the issuance of the actual purchase orders after competitively establishing BPAs with one or more sources of supply, yet did not protest this issue to our Office until August 24, 2006.

GAO did not discuss the issue in depth. It said that BPAs are not contracts, but it said nothing about whether, that being the case, issuing a BPA constituted a "contract action" as defined by FAR Part 5. The footnote makes it seem like the issue is open to debate.

Why issue a priced BPA instead of an IDIQ contract? Because, since it's not a contract, you don't need consideration, which means you don't need a minimum.

When you think about it, it's brilliant, and GAO doesn't
seem to have a problem with it.”

Next you ask “...and where did the idea of "rotating" sources come from???”

My Response – Probably came from this reference (again) http://www.gao.gov/decisions/bidpro/2949746.htm. but note that the solicitation/resulting BPA’s stated the rules (rotating).

Overall comment – Why are you stating your concerns and your questions here to let folks (including me) guess at an answer or otherwise provide input that may not be specific to the facts of your agency has instructed you to do something. My suggestion is CALL YOUR HEADQUARTERS OFFICE AND ASK THEM THE WHYS AND WHAT FORS. YOU ACTUALLY MIGHT BE SURPRISED THAT THERE IS SOUND REASONING FOR WHAT THEY ARE DOING.

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I work for a HQ agency. I have tried to discuss these issues, and I have argued my point to every level of management that will listen. I also do not like BPAs, and because we have a current requirement (that is not nominal), I pushed for an IDIQ. My immediate boss will not even engage in a conversation with me, as he beleives he is always right. I do appreciate the responses. Your feedback is very helpful.

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