ji20874

How about throwing your past performance questionnaire in the trash, and doing phone calls with recent customers instead?

Neil, Please read FAR 13.303-4(b). A FAR 13 BPA is not an acquisition -- it is not a contract. For clauses, reviews, small business coordinations, competition, and every other purpose, the individual purchase limit is the only dollar amount that matters -- the potential aggregate (or maximum), if one is specified, is irrelevant (and isn't even mandatory). You are in good company -- many, many people in the federal acquisition community do not understand FAR 13 BPAs, and they make the same mistakes that you are making. They treat a FAR 13 BPA erroneously as a procurement based on the maximum, rather than correctly as a method for repeat purchases within the individual purchase limit. [Please note that this entire thread deals with FAR 13 BPAs for simplified acquisitions, not BPAs against schedule contracts under FAR 8.4.] I hope this discussion helps the OP and other readers understand correct principles.

I also disagree for a FAR 13 BPA. Each purchase under the BPA stands alone. The BPA is not a contract. Neil, If you were doing a FAR 13 BPA with a micro-purchase limit for individual purchases and an overall aggregate limit (maximum) of $1 Million, would you use clauses prescribed for a $1 Million action?

You might ask your prime contractor to tell you which clause(s) numbered FAR 52.229-xx are included in the prime contract and will flow down to your subcontract. Then, you can read that clause and know how to comply.

A FAR 13 BPA with an individual purchase limit at the micro-purchase threshold is not a $1 Million acquisition, even if the BPA has an aggregate limit of $1 Million. Handling such a BPA as a $1 Million procurement is error. I have no problem establishing a FAR 13 BPA with a small business concern; indeed, I encourage it when the conditions for a BPA are present -- but such an action is not a set-aside. So many practitioners want to see a FAR 13 BPA as a procurement, but it isn't -- a requisition is not required, funding availability is not required, competition is not required, an acquisition plan is not required, an aggregate limit or maximum is not required, and so forth. If a BPA has an aggregate limit, that maximum limit is irrelevant for clause selection and other purposes (for every purpose, the instant purchase amount is what matters). Competition, acquisition plan, small business coordination, and similar matters are dealt with for each individual purchase (or not, such as for micro-purchases).

Please, let's be careful of creep. There is ZERO requirement that micro-purchases be set-aside for small businesses. Citing FAR 13.003(b) as requiring set-asides for micro-purchases is error -- indeed, the very text of 13.003(b) militates against this creep -- here is the text: "Acquisitions of supplies or services that have an anticipated dollar value above the micro-purchase threshold . . . shall be set aside for small business concerns." This creep is all too common among 1102 practitioners -- please, let's avoid it.

Christal, What do you say? Do you use the individual purchase limit for clauses and reviews, or what you call the master BPA limit?

Override? It's not a matter of override; rather, it is a matter of applicability. Does FAR 15.506 apply to your procurement?

I'm with Carl. A Part 13 BPA contains clauses and follows rules based on the maximum individual purchase limit, not the cumulative possible total. No requisition or purchase request is needed.

As I understand from this thread, there is no contract that obligates funds for later disbursement -- there is a GPC purchase.

Do what the FAR says -- for a micropurchase, take your pick among FAR 13.301 (preferred, and your selection for the case in this thread), 302, 303, 305, or 306. If you choose 13.302 for a micropurchase, then YES, you will use appropriate clauses for a purchase order because you're in 13.302, and 13.302 prescribes clauses for purchase orders. But for the case in this thread, are you ready to drop the idea of imposing T4D clauses? And maybe use GPC dispute procedures instead?

Really? Are you dealing with (1) a purchase using the GPC, or (2) a purchase order? You assert that FAR 13.302-4 applies to both purchases using the GPC and purchase orders, but I don't understand the basis for your assertion. According to my understanding, FAR 13.301 applies to purchase card purchases, and FAR 13.302-1, -2, -3, -4, and -5 apply to purchase orders. Isn't the Christian Doctrine is a judicial doctrine or remedy? Are contracting officers allowed to cite the Christian Doctrine as authority for imposing their will on contractors? I think maybe you are pushing too hard. I agree with Carl for one-on-one with the vendor, and then maybe a credit card chargeback if appropriate.

How about a credit card chargeback?

So, it is 2 and 2 from my lists above? Please don't try to negotiate additional clauses into the contract. Oh, is there a contract? Maybe you should excuse the contractor from further performance, and close the matter?

What is the real circumstance? Supplies. Services. Something else? Government made an order, vendor has not delivered/performed, vendor has not charged card. Government made an order, vendor has not delivered/performed, vendor has already charged card. Government made an order, vendor has delivered/performed, vendor has not charged card. Government made an order, vendor has delivered/performed, vendor has already charged card. Something else? With facts, you might get better answers.

Your statement is incomplete and, it appears to me, is intended to mislead WIFCON readers. FAR 4.2103 says the contracting officer may rely on the representations unless the contracting officer has reason to question the representation -- you are essentially saying that the contracting officer must not rely on the "will not" and "does not" representations. I understand that you take this matter seriously, but you are over-reaching. The correct principle is that a contracting officer may rely on the representations unless the contracting officer has reason to question the representation.

Joel, I'm trying to understand your position, so I took the liberty of marking up FAR 4.21 in the way it seems to me that you think it should have been written given that you oppose reasonable contracting officer reliance on offeror certifications. Am I getting it right? ------------------------------------------------- FAR 4.2103 Procedures. (a)(1)(i) If the offeror selects "does not" in paragraphs (c)(1) and/or (c)(2) of the provision at 52.204-26 or in paragraphs (v)(2)(i) and/or (v)(2)(ii) of the provision at 52.212-3, the contracting officer may [shall not] rely on the "does not" representation(s), unless the contracting officer has reason to question the representation. If the contracting officer has a reason to question the representation, the contracting officer shall follow agency procedures. * * * * * (a)(2)(i) If the offeror selects "will not" in paragraph (d)(1) of the provision at 52.204-24 or "does not" in paragraph (d)(2) of the provision at 52.204-24, the contracting officer may [shall not] rely on the representations, unless the contracting officer has reason to question the representations. If the contracting officer has a reason to question the representations, the contracting officer shall follow agency procedures. (ii) If [Regardless of whether] an offeror selects "will" [or “will not”] in paragraph (d)(1) of the provision at 52.204-24, the offeror must provide the information required by paragraph (e)(1) of the provision at 52.204-24, and the contracting officer shall follow agency procedures. (iii) If [Regardless of whether] an offeror selects "does" [or “does not”] in paragraph (d)(2) of the provision at 52.204-24, the offeror must complete the disclosure at paragraph (e)(2) of the provision at 52.204-24, and the contracting officer shall follow agency procedures. * * * * * -------------------------------------------------

Yes. "[W]here an agency has no information prior to award that would lead to the conclusion that the vendor, or the product or service to be provided, fails to comply with the solicitation’s eligibility requirements, the agency can reasonably rely upon a vendor’s representation/certification of compliance." From the GAO case provided by Carl-- A contracting officer's reliance on an offeror's self-certification in these circumstances is entirely reasonable. But the OP might be asking from the offeror's perspective, which is different from the contracting officer's perspective. An offeror needs to do what FAR 52.204-24/25/26 asks for.

Please be careful that you don't make this harder than it needs to be. For example, see the definition of "reasonable inquiry" and an offeror's/contractor's duty thereto in FAR subpart 4.21 and the provision and clauses it prescribes. And also, note that the contracting officer may generally rely on an offeror's representation of "does not" or "will not" in these matters.

Right on...

pconner, I wondering -- based on your readings so far, what are you thinking? Are you thinking that permission probably-- (A) is required; or (B) is not required? Why? In addition to reading the FAR, would you consider reading the text of the contract(s) you are wondering about? After all, it seems to me that it is the contract text that matters. Might it be possible that one T&M/LH contract might have a different answer than another T&M/LH contract?

creyes814, I hope you will engage with an answer to my question -- it will be beneficial for your learning. In the question, the pronoun "you" need not point to you personally, but could point to your organization since you might just be a cog in the wheel of your organization. Let me re-word the question (editing shown in italics): By unnecessarily re-styling these notices as RFPs, I wonder if you or your organization are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs? And I'll add an additional question, based on your consideration of the above question: Are you or your organization willing to stop styling these notices as RFPs, and instead style them as notices and prepare them under the guidelines of FAR 16.505(b)(1)?

I asked the OP a question: By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?

creyes814, Here is something for you to consider: the FAR does not require an RFP for a task order opportunity. Above the micro-purchase threshold, you simply have to "provide each awardee a fair opportunity to be considered for each order." No notice is required, and you "need not contact each of the multiple awardees under the contract before selecting an order awardee if the contracting officer has information available to ensure that each awardee is provided a fair opportunity to be considered for each order." See FAR 16.505(b)(1)(i) and (ii) for more information. Above the SAT, you have to provide a "notice" and "[a]fford all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered." See FAR 16.505(b)(1)(iii) for more information. Above $6 million, you similarly provide a "notice" that includes the factors and subfactors "that the agency expects to consider in evaluating proposals." See FAR 16.505(b)(1)(iv) for more information. By unnecessarily re-styling these notices as RFPs, I wonder if you are unnecessarily encumbering yourself with the procedural baggage that we think of as going along with RFPs?

A broad assertion by an acquisition professional that he or she "always considered considered (sic.) everything a record" seems to me to demonstrate a profound ignorance of case law and fundamental correct principles. That's my opinion. But clearly, some in our community (like Don) do indeed consider every scrap of paper, including individual evaluator notes, to be a record. Others (like every other poster in this thread) do not. Each practitioner needs to decide for him- or herself, based on the facts and within whatever leeway is allowed by his or her agency. There is no universally-agreed-upon answer.