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lawyergirl

Joint Venuture with a GSA Schedule and BPAs

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Hello:  We have a mentor/protégé SBA JV with its own GSA Schedule, and that JV would like to submit solicitations for BPA work.  Under the SBA rules to avoid affiliation, the JV cannot be awarded more than three or more contracts in three years (3-in-2 rule).  If the JV wins a BPA, does each task order awarded under the BPA count as a contract award under this rule?  Or is the BPA itself considered one contract award?  I understand that ordinarily a BPA is a vehicle only, and that orders under the BPA are considered the contracts themselves.  But is this also true in the JV context?

Thanks so much for any practical guidance here! 

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Thank you!  Two follow up questions:

1.  Are 8(a) JVs exempt from the 3-over-2 rule?

2.  If not, Does the award of a GSA Schedule itself count as one award, such that any task orders or BPA calls under the Schedule are counted as a going towards a single contract?   

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In response to 1, I can find no exemption.

For 2, SBA has not adopted Kingdomware so that each separate order under an IDIQ contract whether GSA schedule or otherwise, is considered a separate contract.  Recall that the Kingdomware rationale was based on the definition of  contract in FAR 2.101.

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16 hours ago, lawyergirl said:

Does the GSA Schedule itself count as one award towards the 3-over-two rule?

I can find nothing that indicates that IDIQ contracts, whether GSA schedule contracts or otherwise, count as other than one contract. 

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Apologies I think I just reposted my last question by accident!  So, if the GSA Schedule contract itself counts as one contract, do you think each award/order under the Schedule counts as an additional contract?  Obviously, it would be great if the reverse was true -- that the Schedule itself counts as one contract, such that anything awarded underneath it does not count towards the three over two.

Separately, if this is a JV with the protégé being an Alaskan Native Corporation, is the JV still subject to the three over two rule? 

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The schedule counts as one contract.  Despite the Supreme Court's ruling in Kingdomware, SBA has not adopted the view that each order under a schedule contract is a separate contract for purposes of the rule of three.

A mentor-protégé JV that includes an ANC is treated no differently than any other JV for purposes of the rule of three.

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