period for measuring compliance with limitations on subcontracting rule on GSA BAP

[contractor100]

A BPA was setaside against a GSA schedule. The GSA schedule is not setaside for small businesses. The BPA is setaside for small businesses. The BPA has a base ordering period, with up to five optional ordering periods. Does the awardee have to comply with the limitations on subcontracting:

1 For each call on the BPA
2 For the period of the BPA
3 For the individual ordering periods of the BPA


The BPA does not address this question. I think it is 1., because the calls are orders and each order under the BPA has effectively been setaside and 125.2(6)(v) applies:

(v) A business must comply with applicable limitations on subcontracting provisions (see§ 125.6) and the nonmanufacturer rule (see§ 121.406(B )), if applicable in the performance of each order that is set-aside against the contract.

Alternative views are that the BPA itself is an order, and that the limitation applies for the entire period of the BPA or that the BPA itself is a kind of MAC and that the language applies that says that awardees have to meet the limitation for the "performance period of the contract (e.g., during the base term and then during option period thereafter). (I feel this last one is wrong.)

[Jacques]

Contractor100,

(1) Are you asking about a previously awarded contract or a contract to be awarded?

(2) When you talk about complying with a limitation on subcontracting, are you referring to a contractual obligation? If so, I don’t understand your reference to SBA’s regulations. If not, I recommend reading the regulation a little closer to see who is required to comply.

[contractor100]

Good question. The BPA has been awarded. All of the clauses included in the GSA master contract are included in the BPA (by reference and by regulation.) The GSA schedule includes 52.219-14, Limitations on Subcontracting. That FAR clause states it applies to
(1) Contracts that have been set aside or reserved for small business concerns or 8(a) concerns;
(2) Part or parts of a multiple-award contract that have been set aside for small business concerns or 8(a) concerns; and
(3) Orders set aside for small business or 8(a) concerns under multiple-award contracts as described in 8.405-5 and 16.505(B )(2)(i)(F).

Assuming the BPA can only fall under (3), is the BPA the "order", in which case awardee must do 50 percent of the labor over the entire period of the BPA, or are the individual orders under the BPA the "orders," in which case the awardee must do 50 percent of the labor on each order? Or is the BPA a "contract that has been set aside for [a] small business concern" in which case, according to the SBA rule, the awardee must "comply with the applicable limitations on subcontracting provisions (see§ 125.6) and the nonmanufacturer rule (see§ 121.406(B )), if applicable, during each performance period of the contract (e.g., the base term and each subsequent option period)."

[Don Mansfield]

contractor100,

Good question. The rules don't directly address this situation. 13 CFR 125.6(f) states:

The period of time used to determine compliance for a total or partial set-aside contract will be the base term and then each subsequent option period. For an order set aside under a full and open contract or a full and open contract with reserve, the agency will use the period of performance for each order to determine compliance unless the order is competed amongst small and other-than-small businesses (in which case the subcontracting limitations will not apply). However, the contracting officer, in his or her discretion, may require the concern to perform the applicable amount of work or comply with the nonmanufacturer rule for each order awarded under a total or partial set aside contract.

The applicable definition of "contract" at 13 CFR 125.1(d) states:

Contract, unless otherwise noted, has the same definition as set forth in FAR 2.101 (48 U.S.C. 2.101) and includes orders issued against Multiple Award Contracts and orders competed under agreements where the execution of the order is the contract (e.g., a Blanket Purchase Agreement (BPA), a Basic Agreement (BA), or a Basic Ordering Agreement (BOA)).

So, does the BPA that was awarded meet this definition of "contract"? Assuming that it does not, then the rule about using the base term and each subsequent option period to measure compliance would not apply. As such, the limitation would apply to each order.

My advice would be to ask for the contracting officer's interpretation in writing.

[contractor100]

Thank you, that is very helpful. I agree with you that the BPA clearly cannot qualify as a contract under this definition. But I am still wondering whether the BPA is an "order" or whether the BPA calls are the "orders." It makes quite a difference in how the relationship between the prime and its subs is structured!

I am a potential sub; I will see if the prime will request a written interpretation. They are, naturally, inclined to make their own determination.

[Don Mansfield]

I don't think that a BPA can be considered an "order" because FAR 8.405-5(a)(1) clearly distinguishes between the two. Also, I wouldn't refer to an order under a FSS BPA as a "call". An order under an established contract would be either a "delivery order" or a "task order" as defined at FAR 2.101. A purchase under the type of BPA described at FAR 13.303 is commonly referred to as a "call".

[contractor100]

Good points. That is interesting, I see a lot of FSS BPAs where the orders are called "calls." I guess just borrowed nomenclature.

[contractor100]

Reviewing a solicitation from SSA right now where the purchases under the BPA are called "call orders."

[Don Mansfield]

Just what we need--a new term.

[Boof]

Don,

At Department of State we consider BPA orders to GSA FSS contracts to be "calls" and use Letter L in the document number (BPA Call). A BPA under the GSA FSS is awarded on letter A (BPA award). So therefore a order against the BPA is a "call" against the BPA number with the GSA contract number only referenced in the order header. Been done this way for at least 10 years and probably much longer.