Transfer an existing BPA to a new 20-year GSA MAS contract?

[formerfed]

@Vern Edwards Good question.  If the clear intent was having an ordering agreement in place for five years using GSA contract rates, I think an administrative mod works.  If a supplemental agreement is used, I think mutual consideration applies.

[Vern Edwards]

@formerfedI think that a mod to move a BPA from an expiring contract to a continuing contract affects the rights of the parties. If so, then it cannot be an administrative change. See FAR 43.101:

Quote

Administrative change means a unilateral (see 43.103(b)) contract change, in writing, that does not affect the substantive rights of the parties (e.g.,a change in the paying office or the appropriation data).

If the mod is a supplemental agreement, then there must be consideration.

I'm not sure what you meant by "mutual consideration." 

[joel hoffman]

9 hours ago, Vern Edwards said:

If the mod is a supplemental agreement, then there must be consideration.

I'm not sure what you meant by "mutual consideration." 

This would be an out of scope supplemental agreement, presumably beneficial to both the contractor and to GSA, wouldn’t it? If so, what and who would provide “consideration”?  Sorry for the interjection into your discussion. 

[Vern Edwards]

All contracts are presumably beneficial to both parties. You still need consideration in order to seal the deal.

In the case of government bilateral contracts, such as a supplemental agreement, what usually happens is that one party makes an offer (a promise) and the other party accepts and makes a return promise. The return promise is the consideration.

[formerfed]

25 minutes ago, Vern Edwards said:

All contracts are presumably beneficial to both parties. You still need consideration in order to seal the deal.

In the case of government bilateral contracts, such as a supplemental agreement, what usually happens is that one party makes an offer (a promise) and the other party accepts and makes a return promise. The return promise is the consideration.

Isn’t the opportunity to compete consideration?

[Vern Edwards]

I think the promise of an opportunity to compete would be consideration.

So the deal would go down like this:

The contractor with the BPA contacts a GSA CO and say it has a BPA under another contract that is about to expire and offers to transfer it to the CO's contract and compete for orders, which would benefit the the government by increasing competition. The CO agrees to do it and promises to let the contractor compete, which serves as consideration in return for the contractor's offer.

Is that it? Is that how it works?

[Vern Edwards]

@formerfed Go to https://www.gsa.gov/cdnstatic/PSS_Implementation_-_Customer_Presentation_July_2015.pdf

Read pages 20 -25. GSA refers to the process of "migration" of BPAs.

[formerfed]

Vern, 

I imagine this scenario is somewhat different from what the OP faces.  This slide deck covers GSA’s migration of several individual Schedules into a single one for Professional Services.  In that instance, GSA was the party causing contracts to end. The OP sounds like their company’s contract is just ending and they were awarded a new contract for the same services.  Regardless the GSA information is helpful in how GSA views the subject.

[formerfed]

4 hours ago, Vern Edwards said:

I think the promise of an opportunity to compete would be consideration.

So the deal would go down like this:

The contractor with the BPA contacts a GSA CO and say it has a BPA under another contract that is about to expire and offers to transfer it to the CO's contract and compete for orders, which would benefit the the government by increasing competition. The CO agrees to do it and promises to let the contractor compete, which serves as consideration in return for the contractor's offer.

Is that it? Is that how it works?

That’s how I see it. That’s assuming GSA awarded the BPA for the user agency using their Assisted Services capability.  The user agency could also have awarded the BPA themselves.

[Retreadfed]

On 4/5/2022 at 4:08 PM, Vern Edwards said:

Would the transfer of a BPA from one contract to another be a contract modification?

What would be modified, the BPA or the contract?  If the BPA, why would consideration be needed if  the BPA is not a contract?

[C Culham]

Deleted

[Vern Edwards]

12 hours ago, Retreadfed said:

What would be modified, the BPA or the contract?  If the BPA, why would consideration be needed if  the BPA is not a contract?

I don't know. To be honest, I haven't paid much attention to GSA and its FSS procedures and don't plan to in the future, because I don't think its "contracting" in any meaningful sense of the term. It's a bureaucratic madhouse. But if GSA's madhouse works for people, and it apparently does, then that's fine. Besides, FARWorld is a madhouse, too.

Thanks, Retread. Thanks formerfed.

 

[formerfed]

10 hours ago, Vern Edwards said:

I don't know. To be honest, I haven't paid much attention to GSA and its FSS procedures and don't plan to in the future, because I don't think its "contracting" in any meaningful sense of the term. It's a bureaucratic madhouse. But if GSA's madhouse works for people, and it apparently does, then that's fine. Besides, FARWorld is a madhouse, too.

Thanks, Retread. Thanks formerfed.

 

Vern, yeah GSA and FSS procedures really evolved from entrepreneurial motivation by GSA and a push by agencies and contractors to expedite ordering.  One major reason why it includes some more sound contracting basics like requiring a minimum of three anticipated responses and use of a SOW for services exceeding the SAP threshold is because of numerous abuses by agencies.  

[sdvr]

At its simplest, isn't a GSA BPA a task order under a contract? I don't see how contractually one could take an awarded task and just modify it to a different overarching contract. Yes the terms are similar, but one could start extending that argument outside of GSA and it would get very messy.   Is a follow on base GSA contract really the exact same, same terms, same pricing? 

[formerfed]

5 hours ago, sdvr said:

At its simplest, isn't a GSA BPA a task order under a contract? I don't see how contractually one could take an awarded task and just modify it to a different overarching contract. Yes the terms are similar, but one could start extending that argument outside of GSA and it would get very messy.   Is a follow on base GSA contract really the exact same, same terms, same pricing? 

Take a look at the link provided in Vern Edwards 12:10 PM post from yesterday above.  You’ll see what GSA recommends migrating from one contract to another.  Also, yes it’s very likely the follow-on schedule contract is the same as the expiring contract.  GSA is conscious about updating existing contracts so everything is current.  In addition expiring contracts don’t have a common end date among contractors.  New follow-on contracts need to be close to competitors contracts which haven’t expired to ensure fair competition.

[Retreadfed]

On 4/7/2022 at 11:50 AM, sdvr said:

At its simplest, isn't a GSA BPA a task order under a contract?

No, a BPA is a mechanism by which agencies can issue task or delivery orders.  No supplies or services are acquired by the execution of a BPA.

[contractor2589]

OP here. I realize this discussion has been over for 7.5 months, but I was just revisiting it and wanted to say that the level of thoughtful discussion and critical thinking that you all engage in on Wifcon is both comforting and inspiring to me. As a contractor, we often encounter agency actions that are inconsistent, noncompliant, or just nonsensical, but knowing there are smart people interested in understanding, exploring, and testing the rules of the game feels like a lifeline. I hope there are others following in your footsteps so this type of dialog continues into the future. Thank you.