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Question: If I award an open market commercial BPA (between $150K - $4M) under FAR Part 12 and 13, NOT FAR 15, that was advertised on FBO.gov for fair opportunity public response, am I required to post an award synopsis/announcement for my BPA award?

Thoughts: FAR Part 13.303 BPAs and FAR 12.6 do not state that a post award synopsis are required, and FAR 13.106-3© states that contract awards under SAT need only to provide results when requested or as FAR 5.301 is applicable. According to FAR 5.301, the contract award needs to be announced on GFE when the

1) contract award is over $25K and i) covered under WTO/FTA OR ii) likely to results in subcontracts,

2) the contract award is over SAT and i) FSS orders of BPAs supported by limited source justifications IAW FAR 8.405-6 OR ii) TO/DOs awarded w/o fair opportunity.

Then FAR 5.301(a)(3) provides exceptions to posting an award synopsis/announcement.

Based on the above, my BPA award does not fit anywhere because of the following:

1) manufactured or services to be provided in the US - WTO/FTA does not apply

2) it is a BPA NOT a contract being awarded

3) the solicitation was publicized unrestricted on FBO.gov, so the public had a fair opportunity to bid

What am I missing or do I have it right? I have no problem sending unsuccessful letters, but I want to make sure that I am following FAR Part 5 publications. Please provide the authority with your feedback. Thank you.

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elsmiles writes,

Please provide the authority for your feedback

I agree with your statement that it is a Part 13 BPA not a contract being awarded. It seems reasonable to me that, before one can be required to announce a "contract award” as that phrase is used in FAR Subpart 5.3 (presumably the same thing as the award of a contract), one has to award something that qualifies as a contract. Likewise, when FAR Subpart 5.3 uses the phrase “contract action,” defined at FAR 5.001, it plainly envisions a Part 2 contract. As I understand it, a Part 13 BPA isn't a “contract” for purposes of FAR 2.101. Contrast FAR 13.303-3(a)(2) to the Part 2 definition of contract. Additionally, there are lots of secondary sources that make clear that Part 13 BPAs aren't contracts. For a primary source, consider Modern Sys. Technology Corp. v. U.S., 24 Cl. Ct. 360 (1991), cited in Nash & Cibinic, Formation of Government Contracts (3d Ed. 1998), at 211, describing a USPS “basic pricing agreement” that seems similar in material respects to a Part 13 BPA, finding that no contract was formed because the document made clear the parties had no present intent to be bound. (Objective indication(s) of the parties’ intent to be bound is a typical prerequisite under general contract law principles for the formation of a contract based on mutual assent (think offer, acceptance, consideration, sufficiently definite terms...).)

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The short answer is yes you have to post an award notice.

Question: If I award an open market commercial BPA (between $150K - $4M) under FAR Part 12 and 13, NOT FAR 15, that was advertised on FBO.gov for fair opportunity public response, am I required to post an award synopsis/announcement for my BPA award?

You have to post an award notice. It is over the SAT ($150K). Authority 5.301(B )(6) & 2.101. “Simplified acquisition threshold” means $150,000, except for acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack (41 U.S.C. 1903), the term means—(1) $300,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and (2) $1 million for any contract to be awarded and performed, or purchase to be made, outside the United States.

FAR 13.5 only allows you to use SAP procedures for commercial items <$6.5M, it does not raise the SAT to $6.5M. See 13.500(a)

I agree that a BPA is not a contract, however it is still considered a contract action. If you think a BPA is not a contract action answer this question. Do you have to complete a contract action report in FPDS for a BPA? See FAR 4.601.

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j_dude77,

The FAR 4.601 definition of "contract action" doesn't apply to FAR part 5. The applicable definition of "contract action" is at FAR 5.001.

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Update: Thank you for your insightful input. It's the same logic and thought processes (or arguments) that I had originally considered. In the end, I posted the BPA award at my supervisor's urging; however, I did not feel it necessary to post the all the details in which the world was not privy to, considering it was not an interested party. I merely posted that the award was made and to whom it was made to. All of the interested parties who suffered with me through the agonizingly long process were provided the appropriately allowable information as provided by the FAR. Thanks again.

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