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C Culham

Can you do a GSA FSS MAS delivery order as a IDIQ

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In light of the recent GAO decision B-411699,B-411796, Harris IT Services Corporation, October 2, 2015 I wondered if the decision could apply to GSA FSS contracts?

I have concluded Harris could and would prevent a GSA FSS MAS delivery order from being awarded as a IDIQ (IDIQ within an GSA FSS MAS delivery order) but thought I would canvas WIFCON to set me straight.

My conclusion that Harris would apply to GSA FSS contracts in some cases is based on the following acknowledging that the Harris decision relates to a non- GSA FSS procurement. Here are my thoughts and conclusion.

GSA awards GSA FSS MAS contracts as IDIQ contracts pursuant to FAR Subpart 16.5. FAR Clause 52.216-1 is contained in these contracts Additionally FAR Clause 52-216-22 is included in the contacts supporting again the contract is an indefinite delivery contract. Clauses 52.216-18 and 19 are also included in the contracts and while these two clauses apply to varied contract types issued pursuant to FAR 16.5 they are to be used in IDIQ contracts.

GSAM Clause 552.216-74 contained in the contracts provides that a contractor is ensured a “fair opportunity” to be considered for award of a delivery order under the contract.

Most importantly to my conclusion is that GSA itself provides that FAR 8.4 is a fair opportunity process. The following reference notes this specifically.

http://www.gsa.gov/portal/mediaId/152783/fileName/GSA_MAS_vs_Open_Mkt_StudentGuide_Fall2014.action

This reference notes that a minimum orders placed against GSA FSS MAS BPA’s demand fair opportunity.

http://www.gsa.gov/portal/mediaId/251999/fileName/Desk_Reference_Version_6_Final.action

My conclusion, borrowing from the Harris decision, GSA, via FAR 8.4, has used significant discretion to tailor the procedures that agencies are to use in placing orders against a GSA FSS MAS contract , but in using this discretion the FAR 8.4 processes, if followed to the “T”, comply with FAR § 16.505(a)(7) in that a GSA FSS MAS delivery order as directed by the whole of FAR 8.4 be defined as to quantity, place of delivery and schedule. Especially see FAR 8.406-1.

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FAR 16.505 is wholly irrelevant to orders issued under GSA schedule contracts. FAR Subpart 8.4 covers orders issued under GSA schedule contracts.

FAR Subpart 8.4 expressly allows a contracting officer to issue a BPA against a GSA schedule contract, and then to issue orders under the BPA. FAR 16.505 provides no similar flexibility for non-schedule IDIQ contracts. With this BPA flexibility for GSA schedule contracts, there is no need for an IDIQ within an IDIQ approach that was shot down by the Harris decision.

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GSA awards GSA FSS MAS contracts as IDIQ contracts pursuant to FAR Subpart 16.5. FAR Clause 52.216-1 is contained in these contracts[.]

Just a technicality, but FAR 52.216-1, "Type of Contract," is not a contract clause. It is a solicitation provision and is not included in contracts, but only in solicitations. See FAR 16.105.

The argument against C Culham's conclusion that the GAO's Harris decision (Harris) would prohibit the issuance of IDIQ-type orders under a GSA FSS MAS contract is that the GAO's decision in Harris is based on its conclusion that issuance of an IDIQ-type order under a multiple-award IDIQ contract violated FAR 16.505(a) and FAR 16.505.

However, FAR Subpart 16.5 is not binding on the GSA FSS MAS program. See FAR 16.500, "Scope of subpart," which says, in paragraph [c]:

Nothing in this subpart restricts the authority of the General Services Administration (GSA) to enter into schedule, multiple award, or task or delivery order contracts under any other provision of law. Therefore, GSA regulations and the coverage for the Federal Supply Schedule program in subpart 8.4 and Part 38 take precedence over this subpart.

See also Severn Companies, Inc., B-275717, April 28, 1997, 97-1 CPD ¶ 181, Footnote 1, in which GAO declared that FASA treated GSA FSS contracts "as separate from other indefinite delivery contracts" and expressly cited FAR 16.500.

The only mention of "fair opportunity" in FAR Subpart 8.4 is in FAR 8.405-3[c](2)(ii), "Ordering from BPAs - Multiple-award BPAs," which does not refer to FAR 16.505 in any way. FAR Part 38 makes no mention of FAR 16.505 or of "fair opportunity." I could find nothing in the GSAR/GSAM that applies FAR 16.505 to GSA FSS MAS contracts. I have not found any GAO or COFC decision that applies the "fair opportunity" requirements of FAR 16.505 apply to GSA FSS MAS contracts.

Thus, I do not think that Harris would prohibit issuance of an IDIQ-type order under a GSA FSS MAS contract. I think that if GAO were to rule that you cannot issue an IDIQ-type order under a GSA FSS MAS contract, it would not be based on Harris, but on something else.

If there is any basis for concluding that a CO cannot issuing an IDIQ-type order under a GSA FSS contract, it is likely in the GSA FSS MAS contract itself, although I don't know where it might be.

I do not think that issuance of IDIQ-type orders under IDIQ contracts makes much sense or is a good idea, but I don't know anything that leads me to believe that the practice is prohibited under a GSA FSS MAS contract. However, I admit that I don't pay much attention to the FSS program.

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Thanks ji and Vern. Vern's added references which I did not catch help. Time will tell I guess but I do wonder if what I will call Harris like conclusions might be reached for a IDIQ within a IDIQ GSA FSS MAS.

The whole of FAR 8.4 is admittedly vague but when read in concert with MAS Desk Reference that I provided a link to in my OP suggests that the following are the only type of delivery orders allowed - FFP, FP, T&M and labor hour. Supported by FAR 8.404(h), again vaguely and 8.405-3(B )(2)(ii) for BPAs under the FSS MAS.

Again I guess time will tell.

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Carl,

Since I have the ability to issue a single-award BPA under a GSA schedule, and then to issue as many orders as I want as often as I want under the BPA, I cannot understand why I or anyone would ever need or want to issue an IDIQ-type order of the type covered by the Harris decision under a GSA schedule. I wonder what I am missing?

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ji - Missing nothing, my OP was made as by experience I believe that some folks do go the IDIQ route on a GSA FSS MAS delivery order just as they have done on none GSA IDIQ's.

Carl

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BPA's arguably have more administrative burden (see FAR 13.303-6) and have several limitations, in what, how much, and how you can buy supplies. These limitations are sprinkled throughout SubPART 13.3. Not to mention, a call can be rejected whereas an order within the ordering quantity cannot.

EDITED - Part 13, does not apply to GSA orders.

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Jamaal - Comments noted but they do hit me as possibly not necessarily a true evaluation of the advantages/disadvantages of a BPA as they related to a BPA under a GSA FSS MAS. See ji's post #2.

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Agreed, the comments are not true since the discussion is about GSA.

I failed to remember this was specifically considering ordering off GSA to which Part 13 does not apply (FAR 8.404( a )).

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