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contractor100

what clauses apply to GSA IDIQs and BPA after refreshes

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Are GSA BPAs self-updating for refresh changes, unlike GSA IDIQs?

IDIQs. GSA schedule is awarded Jan 1, 2014, with clauses “Clauses A.” Jan 2, an IDIQ is issued against the schedule. "Clauses A" govern that IDIQ. Jan 3, task order one is issued against the IDIQ. Jan 4, GSA issues a refresh mod, with new clauses, "Clauses B." Jan 5, task order two is issued against the IDIQ.

Task order one AND task order two are governed by Clauses A, right? All task orders will be, unless the IDIQ is modified to incorporate the refresh mod?

Now suppose a BPA was issued, not an IDIQ. The BPA says:

“The Contractor shall comply with all terms and conditions of the awarded GSA schedule

contract under this BP A and orders issued against the BPA. The terms and conditions of the

Contractor's GSA Schedule contracts shall prevail over the BPA and task orders, except

to the extent that lower prices established in the resulting BPA take precedence over GSA Schedule

higher prices.”

So, for the BPA, would task order two automatically be governed by Clauses B? Because the BPA is not a contract that needs to be modified except to the extent that the BPA + call = contract, so the BPA can just update itself, unlike the IDIQ contract?

A contractor trying to flow down the correct clauses to its subcontractor needs to know the answer to this.

I would like to offer this question to the topic posted elsewhere “Are the rules for using GSA schedule MAS/FSS contracts too complicated” if the opinion of vendors is sought.

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I am surprised no one has any answers to/speculations on this topic. Perhaps I described it too confusingly. Here is another example.

Agency issued contractor a BPA in 2011. It says "The Contractor shall comply with all terms and conditions of the awarded GSA schedule," The GSA schedule against which the BPA was issued was modified in February 2014 to incorporate 52.204-15, which requires contractors to make a report of certain employment stats, by October 31 2014, covering "orders" over $2.5M issued in FY 2014. The contractor received a $3M call against the BPA 9/29/2014.

Does the contractor have to make the 52.204-15 report on the call? Some here say no, because 52.204-15 is not included in the BPA. The BPA would have to have been modified to include 52.204-15. Other people here say yes, when the GSA schedule is refreshed, the BPA automatically is refreshed as well, because the BPA says the contractor has to comply with terms and conditions of the awarded GSA schedule.

Opinions? Please?

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Here's an opinion:

WHY ASK HERE? Why not ask the parties to the BPA? Heck, why not ask the oracle at Delphi?

A BPA IS AN AGREEMENT BETWEEN SPECIFIC PARTIES!!!

What did they intend?

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If you're looking for a yes/no answer because I think the actual answer is "it depends," I say no. The BPA was established against the Schedule in effect in 2011. If the Schedule was revised later, the contractor has to agree to including changes to the BPA.

But that's just one answer. The correct one is what was the parties intensions as Vern points out?

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Evidence for the intention of the parties consists of only the language I've quoted,

"The Contractor shall comply with all terms and conditions of the awarded GSA schedule."

which Pythia herself could not beat for ambiguity.

Nothing in the RFP or RFP questions. No post award guidance.

I've never seen a GSA BPA that addressed this point in the text or the negotiation process. But there are a lot of BPAs out there, some with very large amounts of money passing through (AMCOM Express - $6B?). Guess I'll do a little more research.

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In your scenario, a "call" was issued in 2014. Since each "call" is an "order", and this order meets the required threshold and was placed after the clause was incorporated into the contract which the BPA was placed against, my opinion is that the report will be required.

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In the situation you outlined, the GSA contract was modified with the reporting requirement for "new orders". A call against a BPA is an order. If the order was received after the contract modification was signed, it is my opinion that this would be required to be reported regardless whether there is a flowdown or not.

There is a logistics issue with the MAS program that has led to GSA interpreting that clauses automatically flow down. I will try to describe that issue. GSA establishes an MAS contract with the contractor. A customer agency writes a BPA against this contract. GSA has no visibility on the BPA since the agency can write it without involving GSA itself (one of GSA's selling points). Additionally, the customer agency has no visibility on any modifications to the MAS contract completed by GSA and the contractor.

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I see the logistical issue, although the ordering agency can see all of the GSA clauses AND the mass mods AND whether the contractor has signed up to the mass mod. And the same issue applies to a task order or an IDIQ task order issued against GSA schedules.

In further discussions with colleagues, some believe that existing task orders, as well as IDIQs, are automatically updated by the mass mods. In other words, when a contractor signs up to a GSA schedule, it is agreeing that all task orders will automatically be updated when it signs the mass mods (which are "MANDATORY" according to GSA, and that is a whole other question).

I have never thought that was true, anymore than a contractor agrees to any FAR change (without consideration) when it signs a multiyear contract. But if there is some actual or implied agreement in the GSA contract in general to have the terms of an existing task order...I don't see it in the schedule clauses.

Some clauses specifically require a GSA schedule holder to prospectively agree to unknown future changes on task order after a mass modification, I guess? The SCA clauses are an agreement to pay whatever's in a wage determination issued after award of the task order?

That's not true for other clauses, though. Concrete example: Small business is awarded five year setaside TO today. 52.219-14 Nov 2011 is in its schedule contract. Nov 2016, FAR amended for the new legislation on computing SB's mandatory participation. May 2017, GSA mass mod incorporates the new rule. Which rule will apply to compute the SB's required participation? It doesn't seem reasonable to say the new rule applies, either for the period November 2014 to May 2017, OR to the entire period of performance. SB's initial bid, and all of its subcontracting, have been premised on complying with the old rule, not the new one.

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You've lost me a little on the following:

"I see the logistical issue, although the ordering agency can see all of the GSA clauses AND the mass mods AND whether the contractor has signed up to the mass mod. And the same issue applies to a task order or an IDIQ task order issued against GSA schedules."

Ordering agencies can only see what clauses are currently on a Schedule contract. They cannot see mass mods or whether a contractor has signed up to the mass mod. Further, they can only see those clauses if they go into eLibrary to look for them. There is no notification process that lets ordering agencies know whether or not a mod has been issued to an MAS contract. Also, I'm not sure what you mean when you say the same issue applies to a task order. Only the agency that places the order can see the particulars of that order. In fact, in a majority of the cases, only that specific office can see it.

When I was at a GSA office, we were instructed that if an MAS contractor is not willing to sign a MASS Mod, we were to terminate their contract. This was because GSA wanted all their contracts to be as up-to-date as possible. With over 19,000 contracts, having them all in various stages of update would be a nightmare to administer.

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In further discussions with colleagues, some believe that existing task orders, as well as IDIQs, are automatically updated by the mass mods. In other words, when a contractor signs up to a GSA schedule, it is agreeing that all task orders will automatically be updated when it signs the mass mods (which are "MANDATORY" according to GSA, and that is a whole other question).

I have never thought that was true, anymore than a contractor agrees to any FAR change (without consideration) when it signs a multiyear contract.

Contractor100...you are correct and your colleagues are wrong. The task order is applicable to the terms and conditions under which it was written....not future terms that are not known. Your colleagues would have to modify the task order to reflect the updated terms. It does not make logical sense to do otherwise.

If there is silence on the issue concerning agreements (BPAs), then make an interpretation that serves you best. I had this discussion this week as well. The agreement is (should be) specific to the version of the Schedule. I had written the version into BPAs whenever I established them, therefore any refresh on the IDIQ would not be applicable. If the BPA is silent on the issue, then you make the rule that makes the most sense to you and your customers and defend your position.

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hi Desperado,

If I go to the mass mods page here:

https://mcm.fas.gsa.gov/cmservlet/control?csnum=0

and type in any GSA K number, you can see the mass mods for that K and when/whether it was signed. You can also see what was in the mod.

So any ordering agency can see what clauses were in a BPA/task order when the BPA/task order was issued, just like any member of the public.

GSA, however, doesn't know what's in an ordering agency's BPA or task order - exactly as you say. But thank you for reminding me of a very very important point. I had forgotten that all GSA schedules allow either party to terminate the schedule contract at will. So, yeah, GSA can require contractors to agree to any mass mod. But not to make the terms retroactive to existing task orders, and I don't see where my GSA contract even suggests that.

Jonmjohnson, thanks for the insight! From the contractor's perspective, I am going to try to see that any BPAs I sign in future are clear on this issue.

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Contractor100 - Thank you for the link. That was new information for me. I would imagine that most government contracting officers at the ordering level are totally unaware of that site. I was over two MAS schedules and I didn't know about link!

Please remember also that there is an important distinction between a BPA and an Order. If the date of the order (even if it is against an established BPA) is after the date your MAS contract was modified, the reporting rule would still apply. It is based on the date of the "order", not the BPA it was placed against. Wouldn't want you to get yourself into trouble with GSA.

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Desperado:

Thanks, good point on the SCA reporting! I guess, now I look at the clause, contractors have to report ANY order against a BPA of $2.5M or greater during FY2014, even if the order was issued before the contractor accepted the mass mod, and the same must be true of orders against a GSA IDIQ task order, as those are also "orders," albeit second tier orders.

(B ) The Contractor shall report, in accordance with paragraphs (c ) and (d) of this clause, annually by

October 31, for services performed during the preceding Government fiscal year (October 1–

September 30) under this contract for orders that exceed the thresholds established in 4.1703(a)(2).

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