The FAR overhaul wanted to eliminate all policies and procedures not established by law. In looking over some of the updates, I noticed the new FAR Part 16 now suggests that BPAs can be established under multiple award IDIQ contracts, which is definitely not in law. In fact, it is actually contrary to law... The concept of fair opportunity is based in law, not regulation. 41 U.S.C. § 4106(c) states very clearly:

"(c) Multiple Award Contracts.-When multiple contracts are awarded under section 4103(d)(1)(B) or 4105(f) of this title, all contractors awarded the contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of the micro-purchase threshold under section 1902 of this title that is to be issued under any of the contracts..."

ALL CONTRACTORS SHALL BE PROVIDED A FAIR OPPORTUNITY FOR EACH TASK ORDER... That is the law

I’m really struggling to understand why you would establish a BPA under an IDIQ and how would you go about establishing the agreement and comply with fair opportunity.

52 minutes ago, uva383 said:

I’m really struggling to understand why you would establish a BPA under an IDIQ and how would you go about establishing the agreement and comply with fair opportunity.

Because GSA is into gimmicks. They call them innovations.

This isn’t something coming from GSA, or I don’t think so. It’s part of the FAR overhaul. It allows a pool of similar requirements to be competed once among IDIQ contract holders. In the past large contract vehicles like NASA SEWP were used to initially select a contractor. Then a series of task orders were issued to the same contractor for incremental development with either competition where the outcome was known in advance or justified as sole source. The BPA process makes sense to me if the concept isn’t abused. Select a contractor one time and be done as long as subsequent calls are within the scope of the BPA competition.

1 hour ago, formerfed said:

This isn’t something coming from GSA, or I don’t think so. It’s part of the FAR overhaul. It allows a pool of similar requirements to be competed once among IDIQ contract holders. In the past large contract vehicles like NASA SEWP were used to initially select a contractor. Then a series of task orders were issued to the same contractor for incremental development with either competition where the outcome was known in advance or justified as sole source. The BPA process makes sense to me if the concept isn’t abused. Select a contractor one time and be done as long as subsequent calls are within the scope of the BPA competition.

Isn't that the purpose of the logical follow-on exception to fair opportunity? In the scenario you describe, wouldn't you just do a class exception that outlines how the initial requirement was competed and the end state that you're hoping to achieve through the incremental development? If I'm reading the new 16.507, I'd still have to compete the BPA orders against the smaller set of BPA holders vs the IDIQ holder, or prepare the very same exception to fair opportunity to sole source the orders.

And I guess if I wanted to establish a BPA, why wouldn't I either just write a CJ&A for all the calls under the BPA, or establish the pool of BPA holders and then compete the calls amongst them. Why go to an IDIQ just to do the same thing. Oh and then if I'm going to a GWAC, I'm going to still end up paying the servicing agency's fee for every dollar obligated to use their contract vehicle to get my BPAs in place and then all the calls. Just seems like layers of unnecessary complexity under the guise of innovation.

@uva383 You only need to do a single BPA and not multiple. There’s no need for J&As if all calls are within the scope of the BPA competition. Or you can establish more than one and compete each requirement between BPA holders. The advantage here is you don’t have to consider every IDIQ contract holder which saves lots of effort and time.

See FAR 16.507-2(c)(3):

(3) Blanket purchase agreements. If authorized in the multiple-award contract according to 16.504(f)(8), the contracting officer may establish one or more blanket purchase agreements (BPAs) to fill repetitive needs for supplies or services (see 12.201-1(e)(3) and part 13). Establish BPAs using the fair opportunity procedures at 16.507-3 through 16.507-5, based on the total estimated value of the BPA. BPAs must include—

15 hours ago, uva383 said:

why you would establish a BPA under an IDIQ

1) This meets a fairly widespread need. You have a long-term requirement that with relatively broad but stable scope, although the specifics will change over time and are unpredictable. This is ideal for an IDC/IDIQ/BPA. You can't meet this need with any GSA MAS-holders, but you could with some other multiple-award IDC contractors. Now, with RFO, you can use that other multiple-award IDIQ to establish a BPA.

2) The fact that of all the multiple-award IDIQs out there, only FSS/MAS could be used for a BPA - that feels like an anachronism, which the RFO has finally gotten around to correcting. Like striking out the text about facsimiles.

3) Ex post fasto legalizing SEWP 'Catalogs'. I hope this is the real explanation. SEWP Catalogs are great, my agency loves them. It greatly reduced time and effort of procuring routine IT hardware. A tremendous saving.

[deleted]

Edited October 9Oct 9 by General.Zhukov
Double posted

On 10/8/2025 at 5:28 PM, uva383 said:

I’m really struggling to understand why you would establish a BPA under an IDIQ and how would you go about establishing the agreement and comply with fair opportunity.

This has been done under FSS Schedule contracts, which are multiple award IDIQ contracts, for years. In fact, they encourage it.

@formerfed @General.Zhukov @Retreadfed Your responses miss the point of the initial post. @uva383 Your second post shifts the topic from legality to practicality.

The question is how this change complies with the statutory requirement for fair opportunity. Subpart 8.4 is irrelevant, as GSA MAS has its own statutory authority that doesn't require fair opportunity. (The term "fair opportunity" is only mentioned under subpart 8.4 with respect to soliciting competition under multiple-award BPAs.)

Personally, I think such flexibility would be extremely useful for Government procurement offices; however, I'm skeptical this language will remain as written in the RFO. If it does, and it's challenged, I don't see how it can stand.

Edited October 14Oct 14 by FrankJon
Removed erroneous duplicate language.

On 10/8/2025 at 2:28 PM, uva383 said:

ALL CONTRACTORS SHALL BE PROVIDED A FAIR OPPORTUNITY FOR EACH TASK ORDER...

2 hours ago, FrankJon said:

The question is how this change complies with the statutory requirement for fair opportunity.

So how about this?

Multiple award IDIQ's awarded. Now agency wants set up a BPA with one or more to the awardees. Is not the agency required to do fair opportunity to do so? Reference - Rewrite at 16.507-2(a)(1).

Result tracks like this 1) Multiple award IDIQ awarded via competition 2) BPA(s) awarded via TO/DO's to those chosen 3) Calls issued against the BPA(s) as needs arrive. A "D" contract award to a "F" TO/DO as a BPA to a "P" call (FAR 4.201 Table 4-1).

Seems to meet statutory intent to me.

I agree with Carl Culham. That approach is consistent with Fair Opportunity and the law. Another justification coming elsewhere is if the scope of the competed BPAs, which utilized Fair Opportunity, covers all the subsequent calls/orders, then all the IDIQ contractors had a chance to compete. I’m not completely buying that and Carls explanation is the correct way.

19 hours ago, C Culham said:

Result tracks like this 1) Multiple award IDIQ awarded via competition 2) BPA(s) awarded via TO/DO's to those chosen 3) Calls issued against the BPA(s) as needs arrive. A "D" contract award to a "F" TO/DO as a BPA to a "P" call (FAR 4.201 Table 4-1).

Seems to meet statutory intent to me.

14 hours ago, formerfed said:

That approach is consistent with Fair Opportunity and the law.

Well for starters, it seems pretty clear that a BPA can't be awarded as a DO/TO. In Harris IT Services Corporation, B-411699; B-411796 (https://www.gao.gov/assets/b-411699.pdf) the GAO pointed out that FAR 16.505(a)(7) requires a DO/TO to have specific elements, including a "quantity" and a "delivery or performance schedule." These same elements remain in the FAR Rewrite at 16.506(b). Neither is consistent with the characteristics of a BPA.

Regarding the question of whether competitively awarding a task order against a competitively awarded BPA under a competitively awarded IDIQ meets the statutory requirement at 41 U.S.C. § 4106(c) to provide "all contractors awarded the contracts . . . a fair opportunity to be considered . . . for each task or delivery order" seems like a matter of perspective. But here's what the GAO in Harris thought:

This broad direction is self-explanatory and requires agencies to afford each multiple-award IDIQ contract holder a fair opportunity to be considered for each delivery order exceeding $3,500.

(Emphasis added.) Of the FBI's plan to competitively award two DOs for indefinite equipment needs, it called this a "second-tier IDIQ" that would:

deprive all the other TacCom contractors of a fair opportunity to compete for each of the delivery orders that will be issued in the future . . . .

(Emphasis added.)

Either way, I have a feeling we'll be hearing more on this topic soon. (Hey @Don Mansfield - If you're planning the third FAR Overhaul podcast, I think this would be an interesting topic of discussion!)

3 hours ago, FrankJon said:

second-tier IDIQ

Having read the relevant USC and GAO case, I agree @FrankJon that a BPA issued against a multiple-award IDIQ is exactly the 'second-tier IDIQ instrument' which will remain inconsistent with statute regardless of what's stated in FAR 16.5.

From B-411699; B-411796: The FBI’s contemplated award of a 5-year second-tier IDIQ instrument to a single contractor is inconsistent with the requirements of the applicable statutes and FAR provisions regarding what constitutes a “delivery order.” Those requirements are, at a minimum, that the delivery order be defined as to quantity, place of delivery and schedule. In essence, the two orders contemplated under these RFPs will deprive all the other TacCom contractors of a fair opportunity to compete for each of the delivery orders that will be issued in the future ...

How was statement true then, but is not true now, given the applicable statutes haven't changed?

Caveats: 1) I am not an attorney, and definitely not a federal contract attorney, nor an expert practitioner. 2) I think second-tier IDIQ instruments are a great idea, and the prohibition against them is red tape.

9 hours ago, FrankJon said:

Either way, I have a feeling we'll be hearing more on this topic soon.

My thoughts.

Why can't a BPA stipulate "quantity" and a "delivery or performance schedule."? Afterall a TO/DO with a NTE is done otherwise.

To GAO, they seem conflicted. Per Logan (see link below) you can achieve competition in establishing BPA's where calls after do not need to be. So would not a fair opportunity effort accomplish the same or in otherwords my example.

https://www.gao.gov/assets/b-294974.6.pdf

There’s a large difference between the RFO BPA coverage and the Harris case. The RFO specifically identifies use of BPAs as a means of buying repetitive items. Several conditions must be met for their use - they must be authorized in the multiple award contracts, the contracting officer may establish them, fair opportunity procedures must be utilized in making awards, and fair opportunity procedures are used when placing BPA orders.

4 minutes ago, formerfed said:

fair opportunity procedures are used when placing BPA orders

Cheating to save me a read, do you mind a citation please?

2 hours ago, C Culham said:

Cheating to save me a read, do you mind a citation please?

It’s FAR 16.507-2(c)(3)

24 minutes ago, formerfed said:

It’s FAR 16.507-2(c)(3)

Thank you!

I am going to have to research to see if the wording is statutorily supported.

29 minutes ago, formerfed said:

It’s FAR 16.507-2(c)(3)

I am too literal but in consideration of the wording of 41 U.S.C. § 4106(c) (below) I see nothing regarding a call against a BPA that is established via fair opportunity as TO/DO as I proposed in my example. And again I lean towards the Logan decision as I would argue that the fair opportunity in setting up the BPA has accomplished statutory intent. Conclusion on may part is that using fair opportunity to place calls against BPA's is not statutorily required and flies in the face of the intent that the Rewrite will only carry that which is statutorily required.

(c)Multiple Award Contracts.—When multiple contracts are awarded under section 4103(d)(1)(B) or 4105(f) of this title, all contractors awarded the contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of the micro-purchase threshold under section 1902 of this title that is to be issued under any of the contracts, unless—

(1)

the executive agency’s need for the services or property ordered is of such unusual urgency that providing the opportunity to all of those contractors would result in unacceptable delays in fulfilling that need;

(2)

only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;

(3)

the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or

(4)

it is necessary to place the order with a particular contractor to satisfy a minimum guarantee.

On 10/14/2025 at 9:37 AM, FrankJon said:

@formerfed @General.Zhukov @Retreadfed Your responses miss the point of the initial post. @uva383 Your second post shifts the topic from legality to practicality.

The question is how this change complies with the statutory requirement for fair opportunity. Subpart 8.4 is irrelevant, as GSA MAS has its own statutory authority that doesn't require fair opportunity. (The term "fair opportunity" is only mentioned under subpart 8.4 with respect to soliciting competition under multiple-award BPAs.)

Personally, I think such flexibility would be extremely useful for Government procurement offices; however, I'm skeptical this language will remain as written in the RFO. If it does, and it's challenged, I don't see how it can stand.

Legally, I don’t see how it makes sense given the statutes, practically I don’t see where it’s needed and am struggling to see where the use cases presented can’t be solved with existing tools and structures if folks just through creatively about the tools they already had… feel like I’m missing something because a lot of smart people are excited about this and how it’s going to save so much time but just seems like layers of unneeded complexity to get the same results.

3 hours ago, uva383 said:

I don’t see how it makes sense given the statutes

Your questions created further research on my part with the admission that I have not studied rewrite parts in detail, BUT.....

Rewrite. I now see that BPA is now in FAR Part 12 and not 13. Part 12 has little info. FAR Part 8 has an interesting twist and the inclusion FSS procedures now takes you to GSAs FAR supplement. Yes I know we are not talking about FSS BPA's. Yet what is interesting is the GSA supplement that discusses FSS BPA's. At GSA 538.7204-1(4) allows for competing orders against those that BPA's are set up with not all GSA FSS holders for the particular need . Seems like reinforcement that the process I provided for Agency awarded IDIQ BPA could work.

Of note in my reading an agency that sets up IDIQ's that are available ( approved at a higher level) for government wide use is wading into some interesting waters pursuant to the GSA's instruction regarding use of FSS. See by example FAR 8.104 and FAR 12.200.

A take way is also that BPA's can not be for non-commercial items.

3 hours ago, uva383 said:

practically I don’t see where it’s needed

I agree. While I understand that BPA's are allowed for FSS procurements it makes sense since GSA is doing all the work to award to set up FSS multiple award contracts. Seems less time consuming to get to a BPA and utilizing as well. An agency that goes through the effort to establish multiple award IDIQ's and do BPA's begs the question why not do competitive BPA's in the first place. And always the head scratcher of why not just use GSA FSS especially with the intent of commercial product and services can only be purchased via a BPA.

Agencies think BPA's are great because they do not have to obligate monies until a BPA order is issued. For IDIQ's agencies did not like the idea of having to obligate the minimum and then administratively manage the obligation of the minimum as TO/DOs are placed. Plus there is the whole matter of publicizing needs. They think they found a work around that is a better wheel all the way around. In truth the intent of IDIQ'S has been bastardized for non-thinkers. I can just use a BPA any BPA it is so much easier but that easier has forgotten about the upfront.

All this is a quick view based on a couple of hours of thinking and reading except for the matter of IDIQs in general as I believe there are WIFCON posts of the past where I have lamented about the topic of IDIQs.

14 hours ago, uva383 said:

Legally, I don’t see how it makes sense given the statutes, practically I don’t see where it’s needed and am struggling to see where the use cases presented can’t be solved with existing tools and structures if folks just through creatively about the tools they already had… feel like I’m missing something because a lot of smart people are excited about this and how it’s going to save so much time but just seems like layers of unneeded complexity to get the same results.

10 hours ago, C Culham said:

Your questions created further research on my part with the admission that I have not studied rewrite parts in detail, BUT.....

I agree. While I understand that BPA's are allowed for FSS procurements it makes sense since GSA is doing all the work to award to set up FSS multiple award contracts. Seems less time consuming to get to a BPA and utilizing as well. An agency that goes through the effort to establish multiple award IDIQ's and do BPA's begs the question why not do competitive BPA's in the first place. And always the head scratcher of why not just use GSA FSS especially with the intent of commercial product and services can only be purchased via a BPA.

The advantage of BPAs is one can do a comprehensive evaluation a single time for a group of multiple similar and related needs. Consider the process as a down-select to one or more companies. Then individual requirements as specific needs arise can quickly be placed with BPA holders instead of conducting a competition of all contract holders.

As far to the question why wouldn’t an agency award competitive BPA’s in the first place instead of establishing multiple IDIQ’s, the answer is agency’s will be prohibited from doing their own contracts soon. The new policy requires governmentwide use of mandatory sources unless special reasons exist. The mandatory pool likely will consists of most existing GWACs plus planned new ones. It also should include FFS MAS contracts as well.

On 10/18/2025 at 10:43 AM, formerfed said:

the answer is agency’s will be prohibited from doing their own contracts soon.

Do you have specific information that supports this? The RFO at 8.104 states:

(a) When supplies or services are unavailable from the mandatory sources listed above, agencies should procure commercial products and commercial services, including those that can be modified to fill agencies' needs, to the maximum extent possible, in accordance with the policy of Executive Order 14271, Ensuring Commercial, Cost-Effective Solutions in Federal Contracts. When a commercial product or commercial service meets an agency’s needs and is available on an existing contract or Blanket Purchase Agreement awarded for Governmentwide use (such as the Federal Supply Schedule, Governmentwide Acquisition Contract, or other Indefinite-Delivery, Indefinite-Quantity contracts), the agency -

(1) must use the existing government-wide contract or blanket purchase agreement to buy the supply or service if the contract has been designated by the Office of Federal Procurement Policy a “required use” contract, unless the head of the contracting activity provides an exception (e.g., because the contract’s terms and conditions, scope, or performance period do not meet the agency’s needs); and

(2) should consider use of other existing government-wide contracts or blanket purchase agreements if there is not a suitable “required use” contract to meet the agency’s needs.

(b) Agencies should also consider the use of shared services to fulfill requirements. A shared service is a business or mission function provided by one agency for consumption by multiple other agencies, either within or between federal agencies.

For agency IDIQs to be prohibited (with exceptions), OFPP would need to go beyond GWACs to MACs and/or GSA MAS. Otherwise plenty of acquisitions for services would slip between the cracks. Even then, you're talking about a policy memorandum that could easily be revoked in the future.

@FrankJon To clarify my comment, a very large share of what the government buys as commercial is covered by GWACS, MACS, and GSA MAS. That’s especially true with MAS. Most people aren’t aware how broad the range of supplies and services are within those contracts. I suspect the RFO “must” and “should” wording will translate into individual agency policy requiring close scrutiny and strong justifications whenever an agency wants to do their own contracts.

Maybe they just do a 360 and make all MAS mandatory use? It just seems there is a lot of duplication.