I have a multiple award BPA that will be awarded soon. The terms states that no PII will be involved in the performance of duties. We have upcoming orders that may involve PII information. The work was unknown prior to BPA being solicited but critical. My question is whether the BPA can be modified post-award bilaterally to correct that section of the contract or is that considered out of scope. If not able to be modified, are there any options?

15 hours ago, BOS-COR said:

I have a multiple award BPA that will be awarded soon. The terms states that no PII will be involved in the performance of duties. We have upcoming orders that may involve PII information. The work was unknown prior to BPA being solicited but critical. My question is whether the BPA can be modified post-award bilaterally to correct that section of the contract or is that considered out of scope. If not able to be modified, are there any options?

Interesting question.   Here are my thoughts.

There is case law that supports that orders against BPA's must consider the scope of the BPA. (https://www.gao.gov/products/b-412821)  You have presented an example where it seems the specific terms of the mulitple BPA's have specific language that set scope with regard to PII.   So if awarded I would say that attempting a call against the BPA's for efforts that involve PII would be beyond the scope of the BPA's.  

However your example also uses this "awarded soon".   If true still the best option in my view would be to amend the solicitation or whatever was used to set up the BPA's prior to award (issuing the BPA's) and add PII. 

If too late the option could be to go back to all BPA holders and modify the BPA's however doing so would put you at risk of possible protest as there may be contractors that did not submit an offer and that were not issued a BPA that with the addition of PII proclaim that if they knew PII was involved they would have submitted an offer.  So your dilemma is to evaluate whether that risk is real and could be a basis for a protest that would be sustained.  In this case the best option could be simply issuing a new solicitation with PII in it and go through the whole process again.  While doing so remember you could do individual procurements for known needs until the new BPA solicitation process is completed and you have BPA's set up with PII in the scope.

Post Script - I do want to add that you have used words that conflict with the ideals of BPA's.   Best example is the word "contract".  However I have gone beyond offering thoughts about proper terminology to offer a response that may help.