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IDIQ contract under GSA Schedule

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I am familiar with the process by which orders, BPAs, and calls under those BPAs are issued under GSA Schedule using FAR Part 8 procedures, and ordering procedures established by GSA.

But this following concept is new to me.

Is it allowable to obtain proposals from 3 vendors under GSA Schedule and on the basis of those 3 proposals, award a contractually binding IDIQ contract with minimum and maximum ordering quantities? I recently came accross a contract where this was done. The resulting "IDIQ contract" contains FAR Clauses 52.216-18 and 19. The IDIQ contract minimum ordering quantity is $100,000 and the maximum is $50,000,000. The Government is now in a position to issue noncompetitive task orders totalling up to $50 Million over the next 5 years under this IDIQ contract.

This is inconsistent with my understanding of how GSA Schedules operate but I have been unable to find anything that clearly prohibits or allows this technique.

Can anyone illuminate the conceptual contracting principles that either make this approach permissible or prohibited?

Thanks

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The GSA Schedule is an indefinite delivery contract. You do not issue an indefinite delivery contract under a GSA Schedule. You issue an order or create a BPA against the Schedule.

Quote

8.403 -- Applicability.

(a) Procedures in this subpart apply to--

(1) Individual orders placed for supplies or services placed against Federal Supply Schedules contracts; and

(2) BPAs established against Federal Supply Schedule contracts.

Unquote

Take a look at 8.405-3. I suspect you want to establish a BPA.

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We make GSA FSS BPAs by this method all the time. You can specify extra terms if you need to but the FAR Clauses for min and max are not necessary. We give the companies our estimated volume at time of competeing the BPA. The BPA is awarded for five years and all delivery orders are awarded to the winning vendor. An annual review is required but no options are.

But remember you just have a BPA and not a contract so either party can walk away at any time or demand price changes at any time.

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Boof,

That's not what PWG is describing. He/she is saying that the action placed under the GSA schedule is itself an IDIQ contract--an IDIQ contract within an IDIQ contract. I've never heard of such a thing, but it does not surprise me. There is no limit to the creativity of an agency that wants to avoid competition.

I don't know if there is anything wrong with this, but I'm not very knowledgeable of GSA Schedule contracting.

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Yes, Don Acquisition summarized my intent accurately. My question is not whether the min and max clauses are necessary but whether it is permissible to do this. I was hoping that someone knowedgeable about GSA Schedules or GSA Policy could weigh in on this.

My concern is exactly as Don Acquisition articulates, that the agency may be inappropriately circumventing the competitive process. Any time I have awarded an IDIQ contract for $50+ Million, I posted it on FedBizOpps either full and open or as a small business set aside, but either way, there was a healthy opportunity for competition. It seems to me that hand picking 3 GSA Schedule holders to obtain proposals and award a $50 Million IDIQ contract on that basis compromises the integrity of the process.

A fact I omitted from my initial post is that the 3 GSA Schedule holders were each given exactly one week to submit proposals and only one of the organizations submitted a viably competitive proposal, largely because they were already familiar with the work requirements from a previous contract.

Maybe this is legal but it sure doesn't seem to satisfy the intent and spirit of open competition.

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Smells fishy to me.

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Without actually examining the order/contract, it's impossible to say whether it's proper. GSA advises agencies can add clauses as long as they don't conflict with the terms and conditions of the GSA Schedule contract itself. So it's possible someone could craft something like that an IDIQ agreement or BPA with a min and max clause and still be okay. I would have to see the document to answer your question.

However PWG's concern is right on the mark. Getting three quotes in the manner described (offerors given one week to respond) for a $50 million isn't right. The areas that are questionable is how the sources solicited got picked, did they have enough time to respond, how the selection was made, and are the prices good? So your last statement of "Maybe this is legal but it sure doesn't seem to satisfy the intent and spirit of open competition" sums it up well.

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Yes, my mistake. I should not have added the last comment about being able to walk away from a BPA when it is under FAR Part 8. It is awarded under the terms of a real contract that has specific BPA procedures so walking away or failing to deliver would probably be upheld as a breech.

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I didn't totally understand your initial description of the ordering limits. Is the overall limit on the "new ID/IQ contract" within the individual per task order ordering limit on the original contract (amounting to a "contract" within a task order)?

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Joel,

The GSA Schedule contracts just have a "maximum order threshold" where GSA encourages agencies to negotiate for a better deal. There isn't really a limit.

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f fed,

Are you saying that it is OK to issue an Indefinite Delivery contract against a GSA Schedule? If so, what about FAR 8.403 -- Applicability? Under what part of the FAR do you conduct the competition?

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Guest carl r culham

First, I would suggest a read of the specific GSAFSS contract clauses under which you are attempting the procurement strategy. I suspect that it won't be much help except in one area and that is interpretation of the contract and what is allowed. Remember what you are doing is based on the authority of the contract. Specifically GSA usually inserts Clause I-FSS-965 Interpretation of Contract Requirements in all FSS contracts that requires - "No interpretation of any provision of this contract, including applicable specifications, shall be binding on the Government unless furnished or agreed to in writing by the Contracting Officer or his designated representative." In other words call the GSA CO that handles the specific FSS contract to discuss the approach.

To the idea I believe what is at issue is a simple play on words. You are not attempting an "IDIQ within a IDIQ" you attempting a delivery order or task order that has specific terms and conditions that mimic an IDIQ. Noting that a TO/DO is contract in and of itself I see no regulatory issue, but again there could be a contractual issue that only can be interpreted by the CO of the specific FSS contract.

Beyond the regulatory and potential specific contractual issues I believe what is being attempted is poor business judgment and as Don has noted it is simply what it appears to be - an attempt to avoid future competition. Call me old school but if I were the CO I would refuse to pursue the idea as it flies in the face of the competition ideals on which the Federal Procurement Regulations are based.

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napolik,

No. Not an actual contract. But I've seen task orders that closely resemble contracts. Many BPA's also come close to being "contracts" as well.

I'm not saying its wise to do that and they run counter to what GSA probably intended. But PWG may have something that we can't say is flat out wrong without seeing it.

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Thanks to all for the comments. Ths feedback was helpful and insightful. The manner in which this came to my attention and the office politics makes it rather difficult and awkward for me to contact GSA at this point in time so I will need to give some thought as to what, if any, action I should take.

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Thanks to all for the comments. Ths feedback was helpful and insightful. The manner in which this came to my attention and the office politics makes it rather difficult and awkward for me to contact GSA at this point in time so I will need to give some thought as to what, if any, action I should take.

This is a curious thread. PWG said that someone had awarded an IDIQ contract against a GSA FSS contract. He gave us few details about the "contract."

An order is a contract. See the definition of contract in FAR 2.101. A BPA lets you place orders against the BPA against the GSA FSS contract. What's the real difference between a BPA and an IDIQ order? I suspect that many orders are issued against GSA FSS contracts that are worth as much as $50 million. Whoever established a min and max is an idiot (and you can quote me), but I don't see that they have done anything illegal as long as what they are buying are items on the FSS contract. Was the competition poorly done and suspicious? Yes, but that doesn't make it illegal. Hopefully, they got a better price than the one on the schedule contract.

I'm not defending this buy. I don't know enough about it to defend it. But I don't see anything wrong with issuing an order against a GSA FSS contract that can be characterized as IDIQ. Heck, they've been issuing orders with options for years. If this is a scam, it is no bigger scam than the FSS program itself.

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This is a curious thread. PWG said that someone had awarded an IDIQ contract against a GSA FSS contract. He gave us few details about the "contract."

An order is a contract. See the definition of contract in FAR 2.101. A BPA lets you place orders against the BPA against the GSA FSS contract. What's the real difference between a BPA and an IDIQ order? I suspect that many orders are issued against GSA FSS contracts that are worth as much as $50 million. Whoever established a min and max is an idiot (and you can quote me), but I don't see that they have done anything illegal as long as what they are buying are items on the FSS contract. Was the competition poorly done and suspicious? Yes, but that doesn't make it illegal. Hopefully, they got a better price than the one on the schedule contract.

I'm not defending this buy. I don't know enough about it to defend it. But I don't see anything wrong with issuing an order against a GSA FSS contract that can be characterized as IDIQ. Heck, they've been issuing orders with options for years. If this is a scam, it is no bigger scam than the FSS program itself.

I have a follow-on question. When requesting quotes via e-buy, do you also require the offerors to submit all of the clauses in their respective FSS contracts to ensure that you know which additional clauses, if any, need to be included in the task/delivery order? I noticed that many times the offeror does not have a copy of their complete contract on file and it holds up the procurement process.

Prezmil2020

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If a contractor did not bother to keep a complete copy of a contract they were obligated to adhere to, why would it matter what clauses you submitted to them? They already have dismissed the requirements under the base contract; what makes you think they would behave otherwise in your delivery order?

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