Gordon Shumway Posted October 20, 2015 Report Share Posted October 20, 2015 Hello WIFCON folks! I am an intern and just started a new rotation... while reviewing a few contract files to get an understanding of the team, I noticed something that didn't seem quite right: J&As are being written at the BOA level, and not for the subsequent orders under the BOA. It is almost that the BOA is being used as a single award IDIQ, but wouldn’t this violate the CICA Act? I read and research a lot of contract topics on my own, so forgive me if I have missed a simple answer here, but isn't this approach incorrect? -- GS Link to comment Share on other sites More sharing options...
ji20874 Posted October 20, 2015 Report Share Posted October 20, 2015 You're right. You probably read FAR 16.703( c ) and ( d )( 1 )( iii ). The first talks about the BOA itself, and how a BOA cannot be used noncompetitively. The second talks about the order, and how any sole-source order has to be supported by its own J&A. If an agency does a class J&A and wants one contract instrument to implement the class J&A, then a single-award IDIQ contract could work. But a BOA cannot be used in any manner to restrict competition. Link to comment Share on other sites More sharing options...
JMG Posted October 20, 2015 Report Share Posted October 20, 2015 It is a common practice to have a class J&A for a BOA. Each order must be synopsized, which differs from the IDIQ (FAR 16.5). The J&A addresses CICA concerns. Each order must be covered under the description of supplies/services of the J&A, under the market research conducted for that J&A, and under the approved value. Link to comment Share on other sites More sharing options...
ji20874 Posted October 20, 2015 Report Share Posted October 20, 2015 JMG, How does the common practice you describe comport with FAR 16.703( c ) and ( d )( 1 )( iii )? Link to comment Share on other sites More sharing options...
JMG Posted October 20, 2015 Report Share Posted October 20, 2015 JMG, How does the common practice you describe comport with FAR 16.703( c ) and ( d )( 1 )( iii )? Can't answer that. You will have to ask ASN promulgators. My Agency regulations permit it per FAR 6.304(c ) : NMCARS 5206.303-1 (FAR 6.303-1) Requirements. (d) A class J&A is required when a class of contract actions will be executed for the same or related supplies or services that require essentially identical justification. Multiyear contracts and contracts with priced options are considered individual contract actions. A class of contracts includes but is not limited to: (i) a Basic Ordering Agreement (BOA) and orders to be issued under it Link to comment Share on other sites More sharing options...
ji20874 Posted October 20, 2015 Report Share Posted October 20, 2015 That's a good answer! Your agency supplement covers you. If the original poster is Navy, then he is covered, too. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted October 20, 2015 Report Share Posted October 20, 2015 JMG didn't need a supplementary regulation for cover, nor does anyone else. Such class J&As are already covered by FAR. FAR 6.303-1(d) says that required justifications can made on an individual or class basis. Under a BOA, the class would be the class of all (or some particular) acquisitions of the supplies or services described in the BOA. There is no inconsistency with FAR 16.703[c] or (d)(1)(iii). The NMCARS is superfluous with respect to class J&As for orders issued under BOAs. Link to comment Share on other sites More sharing options...
JMG Posted October 21, 2015 Report Share Posted October 21, 2015 Another case where the answer is obvious and FAR based. Thanks Vern. Link to comment Share on other sites More sharing options...
ji20874 Posted October 21, 2015 Report Share Posted October 21, 2015 Maybe it isn't so obvious? http://www.asbca.mil/Decisions/2011/56870_052611_WEB.pdf This case concerns a dispute on whether the instrument under which a claim arose was a contract or a BOA. The ASBCA seems to be aware of the FAR citations I cited and the expectation that a BOA isn’t intended to be used as a sole-source ordering instrument at the BOA level. After all, if we apply the NMCARS text universally, then the last clause of FAR 16.703( c ) (relating to the BOA) and ( d )( 1 )( i ) and ( iii ) (relating to the orders) are superfluous and are left with no meaning. Here are two extracts from that decision-- "The government's answer that it did not intend to obtain competition before placing each delivery order appears to be inconsistent with the definition of a BOA, FAR 16.703(d)(1)(i)." and "The government also advised appellant that it did not plan to obtain competition before the issuance of each delivery order, which would be consistent with a requirements contract but would be inconsistent with a BOA." Maybe writing a BOA with the intention of using it for sole-source orders, and writing a class J&A up-front to cover all future orders, is inconsistent with a BOA? At least for non-NMCARS agencies? After all, we have to read the FAR in a way that gives meaning to all of its parts. Note: In this ASBCA case, there was no class J&A but instead, the Army (not covered by the NMCARS) did a competition for a BOA with the intention that all future orders would be issued sole-source. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted October 21, 2015 Report Share Posted October 21, 2015 ji20874: It is obvious. The ASBCA decision you cited does not support what I think is your contention, which is that the FAR itself, without agency supplementation, does not provide for the issuance of a class J&A to cover orders to be issued under a BOA. That decision described confusion on the part of an agency as to whether it was awarding a requirements contract or a BOA. The agency said the instrument was a BOA; the contractor said it was a requirements contract. The ASBCA could not decide and rejected the agency's motion for summary judgment. If anything, the ASBCA decision suggests that the agency erred in not issuing a class J&A. It might have failed to do so because it confused a BOA with an indefinite-delivery contract. When FAR 6.303-1(d) and FAR 16.703[c] and (d)(1)(i) and (iii) are read together, as they must be, there is no conflict between them. FAR 6.303-1(d) permits the use of a class J&A to cover all contracts in a given class of contracts. Such a class can be defined as all (or some) orders (contracts) to be issued under a BOA. No agency-specific FAR supplementation is necessary for the issuance of a class J&A to cover orders issued under a BOA. Was the extremely large font size inadvertent, or did you use it for emphasis? Link to comment Share on other sites More sharing options...
ji20874 Posted October 21, 2015 Report Share Posted October 21, 2015 I would prefer the class of contracts covered by a class J&A to be all contracts for a particular work or product or outcome rather than all orders that the agency might decide to issue under a BOA. To the degree that a class J&A was written for a particular work or product or outcome, and each requirement eventually was contracted for by issuance of an order under a BOA, that's fine. I'm even okay with writing a BOA knowing that many of the orders which will eventually be issued under it will be sole-source. That's different from a class J&A written to cover all orders that the might decide to issue under a BOA. Font size was cut and paste. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted October 21, 2015 Report Share Posted October 21, 2015 I would prefer the class of contracts covered by a class J&A to be all contracts for a particular work or product or outcome rather than all orders that the agency might decide to issue under a BOA. I agree with you. See FAR 16.703(a)(2). The class J&A should define the covered-class of contract actions as orders for the particular listed products or services for which the BOA-holder is the sole source. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted October 21, 2015 Report Share Posted October 21, 2015 I'll add that you don't write an individual or a class J&A for a BOA, but for orders to be issued under a BOA. Link to comment Share on other sites More sharing options...
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