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Boof

Delivery Order against a GSA BPA

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I am hoping a GSA expert can help me out on something.

Situation: GSA has FSS schedule contracts for Office Supplies. They competed and awarded BPAs against these contracts as part of the Strategic Sourcing Initiative (OS2). Our Agency mandated that all supplies by bought by either purchase card or BPA Call against these BPAs. The BPAs are expiring next month and GSA decided to award IDIQ contracts outside the FSS program for the Strategic Sourcing Initative instead of reawarding the BPAs. The IDIQs are not awarded yet and when we asked about a BPA exention the GSA CO said they were not planning on doing so. Instead they suggested we award a very broad "delivery order" against each BPA before it expires to essentially extend the BPA on our own. We need about a year to downselect the IDIQ vendors and catalog thier products in our automated system. I believe this would have to be an IDIQ BPA Call not a "delivery order".

This seems incorrect on the surface but I cannot think of a reason that it couldn't be done. Anyone see an issue with this plan. Some questions:

1. Can you have a IDIQ BPA Call that extends past the expiration of the BPA?

2. Can you award a BPA call against another BPA Call? (never mind my problems with our automated system)

I would just like to hear some expert comments on this whole idea.

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Well the information in the orginal post has my head spinning and I am sure there will be other comments that may or may not support my thoughts but....

1. What the heck is a IDIQ BPA call? By FAR definition and I would suggest by implied definition of FSS procedures stated in FAR 8.4 there is no such thing. Now can a BPA call extend past the expiration of the BPA I would think so if the call for the supplies was issued prior to the expiration of the BPA and the issues related to filling are related to back ordering etc.

2. Regarding issuing a BPA call against a BPA call I am left wondering about satisfaction of the CICA. This reference is blog so I will let you decide on its authority and besides it is not spot on but may be helpful. http://archive.legion.org/bitstream/handle/123456789/2493/2013S020.pdf?sequence=1

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I realize there is no such thing as an IDIQ BPA Call but I call it that because it has no items on it other than to say "everything on the BPA" , no quantitites and no funding. It one and only purpose is to extend the BPA past its expiration.

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There is an NIH BPA FAQ that answers the broader context of your question, irrespective of the 'nomenclature' you're using - see below. I would offer that you can always request a policy waiver, consolidate your requirements as you would against the BPA, and issue you're own Schedule 36 solictation (Office Supplies) via eBuy. You're likely to get a robust response and with selective, or market basket pricing and minimal brand name specific products, get by with a lowest price acceptable outcome.

Q. Can a BPA Call for services extend beyond the period of performance of the parent BPA?
A. Yes, BPA Calls for services may extend beyond the period of performance of the parent BPA. However, if a BPA expires and is not renewed, you may not add more funds to the BPA Call.

Q. Can a BPA Call be placed on a BPA before it expires?

A. Yes, a BPA Call can be placed against a BPA before it expires. However, performance must begin before expiration of the BPA. A BPA Call cannot be placed against a parent BPA with performance on the BPA Call to commence after the parent BPA ends.

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Boof – Okay your comment made me dig deeper. Noting that the FSSI BPA’s were issued to contractors holding contracts under FSS the BPA’s are then subject to not only their own terms and conditions but FAR 8.4. Noting this I believe this is what you intended as questions and I have provided my response based on my own research that excludes actually finding the full text of one of the FSSI BPA’s.

1. Can I extend a BPA issued against a FSS contract beyond the BPA’s stated original base and option periods?

Extension would not be appropriate without following FAR 8.405-3(e). Likewise it would not be appropriate under the guidance of FAR 17.2 as to do so would be related to scope of contract and CICA matters.

2. Can a BPA be issued to a FSS contractor that extends beyond the contractor’s FSS contract?

FAR 8.405(d)(3) Contractors may be awarded BPAs that extend beyond the current term of their GSA Schedule contract, so long as there are option periods in their GSA Schedule contract that, if exercised, will cover the BPA’s period of performance.

3. Can a “call” against a BPA (FSS or otherwise) be used to extend the period of that BPA?

If the terms of the BPA allowed it but following general FAR guidance including any applicable supplements the most appropriate method, absent such wording in the BPA, would be to modify the BPA through use of the appropriate modification vehicle demanded by your agency. Use of a “call” could also be determined to not be appropriate as a “call” implies a firm order for something. By definition BPA’s are not a firm commitment so it does not make sense to use an instrument that implies a firm commitment to extend the original BPA.

All in all I would offer that my head continues to swim just a bit as an overall read of FAR 8.4 would suggest that the strategy that GSA has suggested is counter the overall guidance of FAR 8.4. However my research also found where agencies have done exactly what GSA has recommended you do. By example I found a VA action that suggested that the VA extended a FSSI BPA for their agency use to 2021. So I am left to swimming!!!!!

Hope these further thoughts help.

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In Boof's circumstance, he doesn't 'own' the BPA so he's limited to the constraints of the ordering provisions. I think the other elements of your response are exactly what I've found, as well. FAR 8 generally prescribes the execution of 'orders' against the awarded GSA contracts, so you're bound by the limitations of their legal POP (base and options). Technically, if the contract expires and there are no options, then there is no basis for pricing an order against the BPA. We've always differentiated a 'call' as a FAR 13 BPA action and an 'order' as a FAR 8 BPA action - the language in the respective sections also illustrates this interpretation. I think we're dealing with FAR 8 in Boof's discussion thread. GSA would also assert (and frequently does via their many factoids (not always 100% accurate)) that their schedules have met the intent of CICA and 'fair opportunity' as established by the BPA ordering procedures are the precedent.

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C and Marine-1,

Thanks for the advice and research. The GSA FSS contract is not expiring. The FSSI BPA GSA awarded against it is. We place calls against that BPA. We don't want to make our own BPAs or contract orders because we would have to compete the requirements under FAR 8GSA suggest we should award a non funded, broadly worded BPA call that would allow us to continue making purchases beyond the end of thier BPA. So we would be making BPA calls against another BPA Call that is working like a IDIQ. Yes it makes you head spin to think about it.

Then you add to it that our orders are automatically generated and sent to the vendors by our writing system and it gets even more complicated. Thanks all.

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Boof,

If I were you I would look at the current BPA holders Schedule prices plus two others. Establish a model list of supplies and quanities and evaluate prices. Since you already have one companies catalog in your ordering system, you have some admnistrative time and expense to convert to a different vendor. Factor that into your selection decision. Since GSA is in the process of awarding a new set of contracts, this is an interim acquisition for you anyway and I don't see any problems. It's a lot better than some crazy no price BPA call aginst another BPA call.

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Boof,

No such thing as issuing a BPA against a BPA. Same as you cannot issue an ID/IQ against an ID/IQ. However, you can mimic the same thing with option CLINs. Provided you issue your order before the BPA dies, you may exercise options on said order to complete the order, even after the BPA (and even the FSS contract) dies. Look to FAR 52.216-22 in their contract. Para (d) should read "(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's rights and obligations with respect to that order to the same extent as

if the order were completed during the contract's effective period." For why this ALSO includes the order's options (provided the prices in said options never exceed the prices in the BPA when it last existed) Reference: https://interact.gsa.gov/wiki/options-schedule-orders
Using this method to build option CLINS will require much work (depending on what items you "may" order). You could literally have a 500 CLINs (different amounts, different items). But it will work. Whenever you need an item, you exercise the option CLIN to turn that set of items on and order it. Works just like a BPA but with a LOT more work up front. AND you will need funds up front to order the initial items. I remember years ago, NASA SEWP had that trick up its sleeve. Since there was no authority to issue a BPA against NASA SEWP, they would use the option CLIN method I just described and call it a "Customized User Purchase Agreement" CUPA. Get it. "CUPA SEWP" Regarding what it sounds like the GSA CO told you do to (issuing one big whopping NTE delivery order), you would need all the funds up front to cover the NTE amount. You should not incrementally fund a Fixed Priced Order (hence my options suggestion as you won't need funds for said options until you "exercise" them).
I wish you well in building your option CLINS. I hope you don't suffer having to build too many....

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Thanks all. Problem at least temporariy delayed for 6 months. Several agencies complained to GSA and they will extend the BPAs for us.

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shikakenin:

You said:

No such thing as issuing a BPA against a BPA. Same as you cannot issue an ID/IQ against an ID/IQ.

Prove it. In these days of "inventive" contracting, prove that those two statements are true.

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Vern,

You are touching upon a continual and perpetual debate on this subject. I never heard a good answer on this, and maybe it is a contract officer myth that has been repeated so many times people assume it to be true. To get around this debate/perception I started advising the use of open orders or open ordering agreements under BPAs to achieve the same affect without using the same language. The problem is that, absent of any proof that shikakenin identifies, this is a perception that a CO will have to battle with their branch chief, director, and HPA. To avoid these headaches I simlly change the frame to avoid pushback.

JJ

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Jon:

Branch chiefs, directors, and HPA's can rule by fiat. They don't have to prove anything to subordinates (although they should). My concern is with firm assertions from people that come without backup.

Are shikakinen's assertions so plainly true on their face that we shouldn't question them? Is there a regulation or policy statement? Has there been an authoritative ruling? Are they based on logical inference? If the latter, what's the argument?

That's what this site is ought to be about, instead of answering some of the dumb questions I've been reading in other threads lately, where the asker simply hadn't thought things through or done any homework, looking instead for a quick answer on the cheap.

So, I want to see shikakinen's proof or argument.

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Vern,

Pretend for a moment that the phrase “A BPA against a BPA or an ID/IQ against an ID/IQ” is God.

Now imagine that I said “There is no such thing as God. “ Prove to me that I am wrong. You cannot. Nor can I prove that I am right.

Now back to the issue. You are correct. There is no explicit prohibition I am aware of against issuing a BPA against a BPA or an ID/IQ against an ID/IQ. There is also no prohibition in the FAR against me stating that a Chipmunk is in fact Cinderblock. Does the absence of explicit prohibition of an action justify its implementation?

I speculate that if a CO competed and issued a BPA as an order instrument against an existing Multiple Award GSA BPA program and it were protested on the grounds that any future order issued against that BPA order instrument (or whatever “innovative” term you assign to it (e.g. “Supplemental Ordering Protocol” (SOP)) violates the fair opportunity requirements, the CO would lose. The risk of losing would increase regarding a BPA program awarded with hourly rates. There would be no way to compete price at SOP establishment for the future SOP orders with regard to labor mix/LOE as that is the nature of an indefinite quantity. Since they cannot be priced or known at the time of SOP establishment, then issuing them without competition violates the requirement for fair opportunity under the multiple award GSA BPA program. Unless, of course, you are Leonardo DiCaprio trying to achieve inception and are diving down a few dream levels. He would have no qualms about issuing a “Subordinate Ordering Arrangement” against an existing “Auxiliary Ordering Arrangement” that was issued from a SOP that originated from a multiple award BPA from which the FSS contract holder had its contract cancelled by an extraction dream guardian.

So, I DARE a CO to do it. Go ahead and issue a BPA against an existing BPA. Why the hell not? Just because the FAR is silent on the fact that a Chipmunk is NOT a Cinderblock should not hold you back. Don’t be a wuss. DO IT.

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Vern,

Pretend for a moment that the phrase “A BPA against a BPA or an ID/IQ against an ID/IQ” is God. Now imagine that I said “There is no such thing as God. “ Prove to me that I am wrong. You cannot. Nor can I prove that I am right.

No need to make up bad analogies. You don't have to prove that you are right, because I can prove that you are wrong. See FAR 1.102(d) and FAR 1.102-4(e), the FAR guiding principles. If there is no express rule against it, then you can do it. Now, you said there is no such thing as a BPA against a BPA or an IDIQ against an IDIQ. First, you cannot know that unless you know of every contractual action that has been carried out. Since you and I both know that you don't know of that, I'll cut you some slack. Just show me the rule against it and I'll admit that it cannot be. Well, I know of no rule against it, either express or inferred from other rules and, apparently, neither do you. Let's assume for the moment that our lack of knowledge reflects the fact. Since there is no rule against it, we can do it. Has anyone done it? We don't know, but we know that they can if they want to (unless they work for you). So your statement: "No such thing as issuing a BPA against a BPA. Same as you cannot issue an ID/IQ against an ID/IQ" was just a lot of hooey.

But now you want to change the ground of discourse. It's no longer a matter of "no such thing," it's now a matter of whether it's justified. Try that B.S. on someone dumber than me. I never said it would be justified. That is a matter of circumstances. I just said, "Prove it," and now we know you can't.

As for your dare, why shouldn't a CO try it if he or she thinks there is some benefit to it? A protest might scare you, shikakinen, but there are plenty of COs who are not scared of protests. I can remember when some COs thought you couldn't base a source selection on just price and past performance. Once upon a time there were no FFP award fee contracts. Once upon a time some COs thought you couldn't evaluate oral presentations instead of written proposals. Once upon a time there were no award term contracts or task orders with options to extend. Hell, once upon a time BPAs against IDIQ contacts were unheard of. All those things were tried before there were regulations saying they could be done. Are they all good? Not always, but they prove my point. Heck, man, the whole GSA MAS program is proof that you can make stuff up and get away with it. If I have learned one thing in 40+ years in this business it is that you've never seen the end of things you haven't heard of.

As for your protest speculation, who cares? I can come up with solutions to all of your concerns while making coffee in the morning half asleep. What do you think procurement is -- rocket science?

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As for your protest speculation, who cares? I can come up with solutions to all of your concerns while making coffee in the morning half asleep. What do you think procurement is -- rocket science?

Ok, enlighten us with your solution to the fair opportunity problem.

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I'll do no such thing.

I don't consider GSA FSS questions to be the least bit interesting. I rarely look at threads about placing orders against schedule contracts. The only reason I looked at this one was that I wondered what was being discussed that could make GSA FSS questions interesting to people like Carl and formerfed. The only reason I posted was to challenge the bold assertions you made in Post #9.

My mission is complete.

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Having kept up on this thread and reaching back to my own posts I have the following additional thoughts....

Any reference to FAR, other than possibly FAR 8.4 with regard to FSS, regarding a BPA against a BPA or an IDIQ against a IDIQ, is misplaced. What dictates whether what and how an order can be placed against a BPA or IDIQ is the terms and conditions of the specific BPA or IDIQ. This would include matters of CICA as related to how and what was included in the solicitation that lead to the award of BPA/IDIQ.

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I'll do no such thing.

I don't consider GSA FSS questions to be the least bit interesting. I rarely look at threads about placing orders against schedule contracts. The only reason I looked at this one was that I wondered what was being discussed that could make GSA FSS questions interesting to people like Carl and formerfed. The only reason I posted was to challenge the bold assertions you made in Post #9.

My mission is complete.

Wow, that's helpful. So what you are really interested in is ridicule. You did complete your mission. Nice work. I am sure you will respond with more of the same. That seems to make you feel better, and it is entertaining. I am happy I could assist!

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I wasn't trying to help, and I wasn't trying to ridicule. I was trying to figure out if you knew what you were talking about in Post #9, and I learned that you didn't. A thoughtful person might have responded to my call for proof by saying, "Okay, maybe I overstated my case, but...." But you came back with the "Pretend it's God" and "I dare you" childishness. So If you feel ridiculed, you asked for it, blame yourself, not me.

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