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Captain2722

Single-award BPA with Ordering Periods

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I just received a PR for items to be ordered off a BPA. The BPA was awarded Sept 2011 as a single-award BPA with 5 ordering periods (not option periods). According to FAR 8.405-3(d)(2), "A single-award BPA shall not exceed one year. It may have up to four one-year options." So my question is, would I even be allowed to order off this BPA since it was written incorrectly and doesn't include option periods? Is this even a valid BPA?

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The rule at FAR 8.405-3(d)(2) became effective on May 16, 2011 (see 76 FR 14548-01). Do you know when the solicitation for the BPA was issued? If it were issued before May 16, 2011, then the rule would have no effect on the placement of the BPA, IAW FAR 1.108( d )(1).

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If, by the terms of the BPA, it is still in effect, then I say go ahead and use it. You don't know the procurement history and so can't really say whether it was awarded in compliance with the regulations or not. Presumably, it was signed by a CO and went through staff and legal review, so why question it when you don't have the file and all the facts?

If COs start questioning the legitimacy of every contract vehicle involved in interagency acquisitions, the system will break down.

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FAR 8.405-3 has been changed since 2011, as was mentioned before.

Acquisition planning that occurred prior to posting the RFQ most likely considered the language at the time, which stated that a BPA established against Schedule using Part 8 procedures could not exceed five years, and required an annual review.

This actually made sense to many of us, since (generally) no funds are obligated when a Blanket Purchase Agreement is established against schedule, and the introduction of optional periods of performance into a BPA, making the BPA look and feel like a multiple-year contract, has the potential to create administrative inconveniences, as you are now dealing with three potential periods of time that must be closely coordinated with base and option years (schedule, BPA, and Order) in service contracting.

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Update: I was on board with ordering off this BPA still until the CO decided they wanted to change the language from "ordering period" to "option period". If this BPA was issued in 2011 with "option periods" we surely haven't exercised any options since then! What troubles me most is that the CO believes you can exercise option period 3 without ever exercising option periods 1 & 2.

As the CS, I want to do this the right way. I don't want to just give it to the CO even though I know they'll sign it. Question is: what is the right way??

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Captain2722,

Maybe you need to support your contracting officer? If he or she is comfortable going forward, that's his or her decision -- if there is a problem, then a protest or claim or audit will provide a resolution. By all means, you may share your questions with your contracting officer, but don't refuse to give the file to him or her -- you might be persuasive -- but if not, you're an agency employee hired to help the contracting officer, not the agency head. Talk to your supervisor if you must, but be a good and thoroughly professional employee. Give some consideration to the last sentence in FAR 1.102-4( a ) and the last sentence in FAR 1.102-4( e ).

I'm confused on whether your BPA has ordering periods or option periods, but I don't need to know and the won't change my thought above -- but you seem to be certain that the contracting officer errs in thinking "you can exercise option period 3 without ever exercising option periods 1 & 2" -- I''m not so sure of that as an absolute principle, but I haven't read your BPA and its option text. You apparently don't have a contract for continuous services, but only a BPA that allows for orders for physical items. There has been some litigation on the matter of skipping options under contracts for continuous services, but I am not sure the principles developed there will apply to your BPA.

Vern's no. 6 above offers good advice.

I have had contract specialists ask questions about my decisions as a contracting officer, and I encourage robust discussion, but I can't have my own contract specialists stonewalling me.

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Update: I was on board with ordering off this BPA still until the CO decided they wanted to change the language from "ordering period" to "option period". If this BPA was issued in 2011 with "option periods" we surely haven't exercised any options since then! What troubles me most is that the CO believes you can exercise option period 3 without ever exercising option periods 1 & 2.

As the CS, I want to do this the right way. I don't want to just give it to the CO even though I know they'll sign it. Question is: what is the right way??

If the BPA were awarded with "ordering periods", and no optional periods of performance were evaluated or awarded, then I don't see how a unilateral change is authorized from one contract structure to the next. Options are real things, not just language, and their existence, along with the unilateral rights of the government to exercise them and receive the prices that were quoted for the optional quantities or years, whatever you are dealing with, must be a part of the solicitation for them to exist.

If the CO has negotiated a bi-lateral modification with the single Awardee to incorporate options, I suppose that's doable. Are you absolutely sure that's what is going on? Maybe just request a copy of the RFQ with any awarded mods and read what's in it.

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As the CS, I want to do this the right way. I don't want to just give it to the CO even though I know they'll sign it. Question is: what is the right way??

Here is some advice from someone that has handled the kind of issue you are describing in a good way and in a poor/bad way:

1. Understand exactly what you are being asked to do and whether or not you have an ethical issue,

2. Do not assume that you know all the relevant facts around the situation and don't be afraid to ask,

3. Do not expect anyone else to change because of your conscience (if there is an ethical issue),

4. If there is an ethical issue, do not think you are absolved because you do not sign the end product, and

5. Communicate to those around you if you do not feel you can do something in good conscience.

If this is not an ethical issue for you, I would not worry about it and would just keep going. I hope this advice is an encouragement.

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I hope this isn't a matter of ethics...

I see your point. It seems like a small issue. The reason I brought up ethics is because Captain 2722 used the phrase " the right way " twice in the same paragraph. Maybe Captain 2722 is really asking, " What is the best way? " If so, Captain 2722 should have no problem sharing his thoughts and helping the contracting officer with whatever decision is made.

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