Single-Award BPAs Pursuant to the Authority of FAR Part 8.405-3

[Acq_4_life]

I would like to get your feedback on Single-Award BPAs issued against the GSA Schedule. I plan to issue 2 separate Single-Award BPAs pursuant to the authority of FAR Part 8.405-3. Both BPAs will not exceed one-year in duration and have up to four one-year options, which will enable our agency to fulfill necessary requirements in the form of issued Orders. Orders will be issued on a Firm-Fixed Price, Time-and-Material and/or Labor Hour basis.

Before moving forward with this acquisition strategy, the Contract Review Board (consisting of Branch Chiefs and COs) recommended that I combine the 2 Single-Award BPAs into 1 Single-Award BPA to avoid the administrative burden on the assigned Contract Specialist’s workload. I do understand the administrative burden; however, I am not in agreement with this recommendation because the estimated value of both BPAs combined would exceed $100M.

Per FAR 8.405-3(a) (3) (ii), “no single-award BPA with an estimated value exceeding $100M (including any options), may be awarded unless the head of the agency determines in writing that – the BPA provides only for firm-fixed priced orders…..” Since both BPAs will be issued on a Time-and-Material and/or Labor Hour basis, this recommendation would conflict with the regulation stated in the FAR. I plan to present my reasons to the Board for not considering this recommendation.

Do you agree that the Board’s recommendation conflicts with the FAR?

[ji20874]

First,

• Are you thinking of competitively establishing two single-award BPAs?  Each one competitively established?
• Is your contract review board thinking of competitively establishing one single-award BPA?

Now, to your question...

I think you might be mis-reading the FAR.  To me, FAR 8.405-3(a)(3)(ii) does not require a determination that the BPA provides only for firm-fixed-price orders.  Read it again.  To me, FAR 8.405-3(a)(3)(ii) requires a determination that (A), (B), (C), or (D) applies.  Take your pick among (A), (B), (C), or (D).  It says "or" rather than "and" -- and the word choice has meaning.

From what you have shared, it seems to me that (A), (B), and (C) don't fit your circumstances -- that leaves maybe only (D).  Public interest does not usually reach to a single contract specialist's workload, so even (D) doesn't seem to fit.  Maybe you cannot establish a single-award BPA for your need?

You might not be able to justify establishing two single-award BPAs, either.  For that, you need to carefully read FAR 8.405-3(a)(3)(i) and (iv) (in addition to (ii), which you already read, though perhaps erringly).  These paragraphs (i) and (iv) apply to all single-award BPAs, while (ii) and (iii) only apply to BPAs over $100 million.  And while you're at it, please also carefully read FAR 8.405-6(a) if you are thinking of non-competitively establishing the BPAs. 

To master FAR subpart 8.4, you must read the text very carefully -- every word matters.  And, to a large degree, you must forget much or all the baggage you may have accumulated from the rest of the FAR or your local procedures, as FAR subpart is largely intended to be read alone (see FAR 8.404(a)).

I hope this is helpful.

[Acq_4_life]

ji20874,

I appreciate your response. Yes, the intent is to competitively establish 2 single-award BPAs -- each one competitively. And yes, the contract review board has recommended that I competitively establish one single award BPA. I agree that FAR 8.405-3(a)3)(ii) requires a determination that (A), (B), (C), or (D) applies. I was only making a point that (B) would definitely not fit the Board's recommendation, along with (A), (C), and (D). In determining whether to establish a single-award BPA, the Contracting Officer has already considered the factors laid out in FAR 8.405-3(a)(3)(iv) and documented the decision in the acquisition plan. However, after reading your post it appears that the CO would not be able to justify establishing two single award BPAs (each would be under $100M). Is this accurate?

 

[ji20874]

If each of your two proposed single-award BPAs can be separately justified under FAR 8.405-3(a)(3)(iv), you should be good to go.  Good luck with convincing your contract review board.

I am assuming that the work or scope of the two BPAs is related but different.  If they are identical, someone might suggest you are trying to get around task order competitions or splitting a requirement to stay under a dollar threshold.  

[C Culham]

And....I know that the effort to do so would most likely be monumental but if the  board and the CO believe that a BPA(s) is the route and the single award BPA is also the route as proposed by the board then would not the next step be to get head of agency's determination to do so?  Noted as a possible matter to also raise to the board.....or in other words...who will be left carrying the request and its reasoning to the agency head if a single award BPA is the route. 

[Acq_4_life]

ji20874,

The 2 requirements were initially combined and competitively awarded as multiple BPAs. After 3 years of performance, the contractors (small businesses) struggled to perform both services. As stated by the program office, the 2 requirements are unrelated and should have been separated from the very beginning. 

[Acq_4_life]

C Culham,

Yes, the next step is to get the head of the agency's determination to do so. This has all been dropped in my lap, so I am seeking recommendations on the most efficient way to move forward. I appreciate your feedback.

[formerfed]

1 hour ago, Acq_4_life said:

As stated by the program office, the 2 requirements are unrelated and should have been separated from the very beginning. 

Then I think you should be good as long as you justify and get approval for single awards.

As a side note, many agencies just decide to make multiple awards with a simple task order selection process.  They say that’s easier than trying to justify a single award.

[C Culham]

17 hours ago, Acq_4_life said:

ji20874,

The 2 requirements were initially combined and competitively awarded as multiple BPAs. After 3 years of performance, the contractors (small businesses) struggled to perform both services. As stated by the program office, the 2 requirements are unrelated and should have been separated from the very beginning. 

As this unfolds another thought comes to mind that you may have addressed.  I am just passing it along.....

Small businesses?   So what is the plan for the single award - small business or large business.   Consider FAR 8.404(a) and application of FAR 19.202-1(e)(1)(iii). 

[Acq_4_life]

C Culham,

The plan is to award 2 single award BPAs to a small business with teaming arrangements. I appreciate all the feedback and will take them into consideration.