BPA Duration Limitation

[USU1914]

Hello everyone,

I'm working on a consolidated maintenance multiple-award blanket purchase agreements (BPAs). The total estimated value of this requirement is slightly below SAT ($7M) over ten years. Accordingly, I'd like to set the period of performance (PoP) to last all ten years to fulfill this ongoing program need. I was hoping to find a definitive allowance for setting a multiple-year BPA but all the FAR paragraphs I find are vague about the timeline of a BPA.

From what I gather, the only FAR paragraph that defines a time frame is FAR 8.405-3(d)(1), "Multiple-award BPAs generally should not exceed five years in length, but may do so to meet program requirements."

FAR part 13, the part that I actually need to cite, is quite vague:

FAR 13.303-3(a)(1) states, "[...] during a specified period and within a stipulated aggregate amount, if any."

FAR 13.303-7 informs, "An individual BPA is considered complete when the purchases under it equal its total dollar limitation, if any, or when its stated time period expires."

Since FAR part 13 is silent on this matter, can I reference FAR part 8 for the allowance? Or am I missing something that's more obvious?

Also, I understand that either the Government or the awardee may cancel a BPA at any time with a written request. What if a vendor's cancellation request would impede the Government's mission? Could we require the vendor to continue to perform for a reasonable amount of time?

Your input and guidance will be much appreciate. Thank you!

[Boof]

USU1914,

If you are using FAR Part 8 (GSA FSS) then FAR Part 13 does not apply. If you are using FAR Part 8 then FAR Part 13.5 don't apply either. SAT is $150K. FAR 13.5 only allows use of simplified procedures, it does not raise the SAT. Follow the only the rules in FAR Part 8 if awarding against GSA FSS.

A GSA BPA cannot be walked away from as easily as a regular BPA because the contractor agreed to using BPAs in thier GSA FSS contract. Once a "call" is issued against the BPA, it is binding. In my mind a GSA BPA is not a "real" BPA. GSA just decided to call them that.

I personnally would not use FAR Part 13 BPAs the way I see a lot of offices doing it. BPAs were meant for purchases under the Micro purchase threshold prior to Purchase Cards taking over. If I were awarding the possibility of millions of dollars, I would use an IDIQ contract so that the parties cannot just walk away. I have seen DoD and others awarding BPAs with each "call" being over a million dollars. I cringe.

[USU1914]

Hi Boof,

Thanks for the response. Just to clarify, this will be a FAR part 13 BPA, not FAR part 8. Accordingly FAR 13.000, the SAT has been raised to $7 million for commercial items. Because this is a laboratory equipment maintenance requirement, each of our calls will cost a few thousand at most--generally below the MPT level.

With this information, do you have any insight on the duration limitation of a FAR part 13 BPA?

Thanks again,

USU1914

[ji20874]

You should not reference FAR Part 8.

You can make the time period as long as your suppliers and your agency reviewers will allow.

You might consider synopsizing your multiple-award BPA requirement in FedBizOpps, but I don't think you are required to. However, you will be required to do a pre-solicitation synopsis for any prospective order/call requirement over $25,000.

You should establish enough BPAs to provide maximum practicable competition for individual orders/calls.

You will be able to add new BPAs at any time.

The SImplified Acquisition Threshold is $150,000, even for commercial items. It is not $7,000,000 for commercial items. Pleasere-read FAR 13.000, and you will see that the SAT is $150,000 -- FAR Part 13 applies to ( a ) all acquisitions under the SAT, and ( b ) commercial items over the SAT and up to $7,000,000. It is error to say that the SAT for commercial items is $7,000,000.

[USU1914]

Ah, yes, that is my fault regarding SAT. Thank you for that information!

[Matthew Fleharty]

USU1914,

You asked:

What if a vendor's cancellation request would impede the Government's mission? Could we require the vendor to continue to perform for a reasonable amount of time?

If the vendor cancels the agreement IAW the terms and conditions of the BPA, you would not be able to require continued performance. Although you won't find it explicitly stated in FAR Part 13 (though you will at FAR 16.702(a)(2) which discusses "basic agreements"), BPAs are not contracts (they are agreements) because the Government is not obligated to issue any orders. Refer to Production Packaging, ASBCA No. 53662, 03-2 BCA para 32,338 stating at 159,972:

It is well established that a BPA is not a contract. Rather, a BPA is nothing more than an agreement of terms by which the Government could purchase. See, e.g. Mid-America Officials Ass'n, ASBCA No. 38678, 89-3 BCA para 22,321 at 111,775-76. Until the Government places an order under a BPA, no contract is formed for lack of consideration. Julian Freeman, ASBCA No. 46675, 94-3 BCA para 27,280 at 135,906.

It is also important to note that BPA vendors do not have to accept orders issued to them either. Until an order is offered by the Government and accepted by the Contractor, no contract exists to require performance (and such performance is limited merely to each order).

If you or your organization has concerns regarding vendor's cancelling performance, you may want to consider the use of IDIQs instead.