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TennisGuy

Competition and Publicizing For Orders Under BOA's

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This question regards FAR requirements for synopsizing and competing orders under Basic Ordering Agreements (BOA's). Scenario: I've been assigned a procurement request for library subscription support service, estimated over $25K and less than the SAT. My agency has available for this service two, non-mandatory, open market (non-FSS) BOA's. The BOA's do not state specific pricing, but rather explain a discount methodology for future orders. They also contain FAR clauses and provisions and a SOW that would apply to orders. There are only two BOA holders available under this program; one Large Business and one Small Business. The establishment of these BOA's was originally advertised in FedBizOpps in 2012. A J&A For Other Than Full and Open Competition was not accomplished nor was it necessary at the BOA level.

QUESTION: Should competition for this procurement be restricted to only the two BOA holders, with no further competition nor FedBizOpps synopsis required?

Notwithstanding the existence of this BOA program, and the fact that it was originally advertised in FedBizOpps, I am of the opinion I cannot simply restrict competition to only the two BOA holders. Furthermore, I believe this procurement must be advertised and competed in FedBizOpps with all interested vendors invited to submit a quote, not just the two BOA holders. It is important to make a firm distinction between IDIQ contracts and BOA's. I base these opinions on FAR 16.703(c ), 16.703(d), and in particular 16.703(d)(1)(i) 16.703(d)(1)(iii), FAR 1.602-1(B ), and 16.703(d)(2)(iv). Lastly and most importantly, I do not believe orders under these BOA's fall under the exception for publicizing at FAR 5.202(a)(11), since a BOA is not a "contract" the exception does not apply as it would if instead we had available a multi-award IDIQ contract to order from. Many contracts professionals in my organization disagree with me on these points, and are of the opinion that competition can be restricted to only the two BOA holders with no FedBizOpps necessary. I invite comments on this, I'm hoping somebody can explain it in a different way. Or, if I'm all wrong I sure would like to understand it! Thank you!

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A FAR Part 13 BOA cannot be used to avoid competition. You need to do your acquisition in accordance with FAR Part 13 (and FAR Part 5 for synopsis). Pick your winner. Then, if your winner has a BOA, issue an order under the BOA to the winner. If not, issue a purchase order to the winner.

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TennisGuy,

I'm going to boil your post down to the following two questions:

1. Can your agency limit competition to the two BOA holders when using SAP?

2. Does your agency have to publicize a proposed order under one of the BOAs?

Regarding Question #1, when using SAP, you are generally required to obtain competition to the maximum extent practicable. See FAR 13.104. As long as an agency makes a reasonable effort to obtain competition and does not intentionally and improperly exclude an interested source from competing, it will be found to have met this standard. See Formation of Government Contracts, Chapter 7, Section II. So, I don't think your agency could exclude a vendor from competition solely because they did not have a BOA.

Regarding Question #2, the exception at FAR 5.202(a)(11) does not apply to orders under a BOA. A BOA is not a contract. See FAR 16.703(a). Unless another exception applies, publication of a proposed order would be required.

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Just curious: Why use a BOA for simplified acquisitions, especially when they don't include "specific pricing"? Does such use really avoid much work?

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I see very little advantage in using the BOA. Contracting staff easily confuse it with a multi-award IDIQ contract, and seem to think the same rules and advantages apply, which is clearly not the case.

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