FAR part 13, single-award BPA

[Jamaal Valentine]

I recently read the following question:

”Under FAR [part] 13, may a [contracting officer] obtain competitive unit pricing at the BPA level and later award BPA calls over the [micro-purchase threshold] that are based solely on the BPA unit prices (e.g., award to the low, based on competitive unit prices) and vendor availability?”

Now, I read this as asking if the statutory requirement to obtain maximum practicable competition can be met at the single-award BPA level; thus, not requiring further competition at the order level. But I’m interested in your thoughts about and responses to the question, whatever they may be.

[ji20874]

https://www.gao.gov/products/b-294974.4

[Jamaal Valentine]

2 minutes ago, ji20874 said:

https://www.gao.gov/products/b-294974.4

If I recall, that decision involves noncompetitive BPAs. Is there something else I should be looking at for comparison to the scenario in the question?

[C Culham]

2 hours ago, Jamaal Valentine said:

I recently read the following question:

”Under FAR [part] 13, may a [contracting officer] obtain competitive unit pricing at the BPA level and later award BPA calls over the [micro-purchase threshold] that are based solely on the BPA unit prices (e.g., award to the low, based on competitive unit prices) and vendor availability?”

Now, I read this as asking if the statutory requirement to obtain maximum practicable competition can be met at the single-award BPA level; thus, not requiring further competition at the order level. But I’m interested in your thoughts about and responses to the question, whatever they may be.

Find this...

B 294974.6 Logan LLC 12/1/2006

[Jamaal Valentine]

@C Culham

I am familiar with that one. It involved multiple awards, but thank you. I think everyone who handles BPAs should read it.

[C Culham]

3 hours ago, Jamaal Valentine said:

I recently read the following question:

”Under FAR [part] 13, may a [contracting officer] obtain competitive unit pricing at the BPA level and later award BPA calls over the [micro-purchase threshold] that are based solely on the BPA unit prices (e.g., award to the low, based on competitive unit prices) and vendor availability?”

Now, I read this as asking if the statutory requirement to obtain maximum practicable competition can be met at the single-award BPA level; thus, not requiring further competition at the order level. But I’m interested in your thoughts about and responses to the question, whatever they may be.

Ok on closer read I better understand the question.

As a call is the procurement action why couldn't a CO utilize FAR 13.106-1(b) to do so. 

Use a single source determination per call.  Or, make a single source determination when establishing the BPA.  

[Jamaal Valentine]

The original question isn’t mine so I’m just doing my best to interpret it and develop a reasoned answer for myself. This question has turned into a discussion with my peers.

That being said, isn’t the competitive solicitation a contract action, much like a request for quotation that results in a purchase order (an offer)? In this case, the solicitation—as defined by FAR—establishes a priced BPA, which facilitates the subsequent orders. Here, no further solicitation—again, as defined by FAR—is required under the BPA. Rather the contracting officer simply issues a call/order. It seems it would work much like a standing price quotations or a FAR subpart 8.4 single-award BPA. (GAO-09-792 stating that under FAR subpart 8.4, agencies may award BPAs to a single vendor and FAR does not require competition under single award BPAs)

Lastly, isn’t the requirement for competition related to the solicitation phase, in a practical sense?

[ji20874]

Jamaal,

If an office establishes pre-priced BPAs for the same items with several sources, it can consider those BPAs as providing competition for those items.  If the number of BPA holders goes down over time, the office may (1) establish additional BPAs; or (2) provide for competition by getting quotes from non-BPA sources.

[C Culham]

44 minutes ago, Jamaal Valentine said:

In this case, the solicitation—as defined by FAR—establishes a priced BPA,

For the sake of discussion where in FAR part 13 does it say you must have a solicitation to establish the BPA(s)?   Seems that it is the first hole in your premise.

[Jamaal Valentine]

2 hours ago, C Culham said:

For the sake of discussion where in FAR part 13 does it say you must have a solicitation to establish the BPA(s)?   Seems that it is the first hole in your premise.

It doesn’t. I would never argue that it does. I believe FAR anticipates, or at least allows, BPAs being established without a solicitation or competition. That being said, I don’t think it prohibits competitive solicitations either.

*I was emphasizing that the term solicitation is defined by FAR

[Jamaal Valentine]

3 hours ago, ji20874 said:

Jamaal,

If an office establishes pre-priced BPAs for the same items with several sources, it can consider those BPAs as providing competition for those items.  If the number of BPA holders goes down over time, the office may (1) establish additional BPAs; or (2) provide for competition by getting quotes from non-BPA sources.

I think most agree to these points. But do you think an office can competitively establish a pre-priced BPA with a single firm, and consider that BPA as permitting orders that satisfy the statutory requirement for maximum practicable competition? I think this is what the question is getting at.

[ji20874]

Does https://www.gao.gov/products/b-294974.6 address your question?

Note that this decision occurred after the decision I mentioned above.

[C Culham]

8 hours ago, Jamaal Valentine said:

I think most agree to these points.

 

1 hour ago, ji20874 said:

Does https://www.gao.gov/products/b-294974.6 address your question?

So we are going full circle.   I pointed out Logan early on and I think I get why Jamaal thinks it is not applicable - multiple BPA's were established.  Yet as the discussion unfolds I would agree Logan applies.   But it does get tricky thinking about such things as FAR part 5....

If individual calls are stated to be over the micro purchase threshold yet under under $25,000 what is extent of competition?   Post the proposed BPA somewhere and say there will only be one BPA issued?  Additionally document the file with a single source determination that calls into application (FAR 13.302(c)(2)).  It would seem this would avoid a GAO adverse view if protested. While the FAR provides that that the existence of a BPA does not justify purchasing from one source (13.505-1(c)) does not the FAR allow that further determination could via a single source determination(FAR 13.106-1(b))?

If individual calls are stated to be over the micro purchase threshold and over $25,000 what is extent of competition?   Post the proposed BPA on SAM.gov say there will only be one BPA issued?  It would seem this would also solve an adverse view of GAO.

The extent and ability of a single source determination to stand the muster of GAO as to why only one BPA supports that only one source is reasonably available.   In the context of a BPA I would think doing so would take some very unique thinking but there is, in my view and in consideration of the Logan decision, a way to make it happen.  

[Jamaal Valentine]

1 hour ago, C Culham said:

 

So we are going full circle.   I pointed out Logan early on and I think I get why Jamaal thinks it is not applicable - multiple BPA's were established.  Yet as the discussion unfolds I would agree Logan applies.   But it does get tricky thinking about such things as FAR part 5....

I think we can use Logan for comparison and reasoning. (Five Methods of Legal Reasoning)

1 hour ago, C Culham said:

Post the proposed BPA on SAM.gov say there will only be one BPA issued?  It would seem this would also solve an adverse view of GAO.

I think this is the answer. FAR 13.303-2(c)(2) has to mean something. Why would FAR expressly state that you may establish a BPA with a single firm, if the orders needed to be competed? 

[formerfed]

Single award competitive BPAs were used in the past for office supplies and weren’t uncommon.  They were synopsized and competed using hypothetical shopping lists which quoters priced against.  Often the quoters associated discounts from their published prices were used as a basis for long term BPA pricing adjustments. 

[Jamaal Valentine]

@formerfed

This is what we were doing when I first got into contracting. We created price lists and had to review them annually.

[Jamaal Valentine]

On 10/21/2023 at 6:28 AM, C Culham said:

While the FAR provides that that the existence of a BPA does not justify purchasing from one source (13.505-1(c)) does not the FAR allow that further determination could via a single source determination(FAR 13.106-1(b))?

The existence of a BPA does not justify purchasing from one source because BPAs can be established noncompetitively. Thus, the mere existence of a BPA is not dispositive. We have to know more about the BPA. For example, was it competitively or noncompetitively established?

Here, we focus on the general rule at issue. What is the specific question? What are the significant facts?

The rule is the statutory requirement for maximum practicable competition. I’m not aware of anything the prohibits Acquisition Teams from exercising discretion in deciding to satisfy the competition requirement at the BPA or order level.

FAR 13.104( b ) indicates how maximum practicable competition can be obtained:

“If using simplified acquisition procedures and not providing access to the notice of proposed contract action and solicitation information through the Governmentwide point of entry (GPE), maximum practicable competition ordinarily can be obtained by soliciting quotations or offers from sources within the local trade area. Unless the contract action requires synopsis pursuant to  5.101 and an exception under 5.202 is not applicable, consider solicitation of at least three sources to promote competition to the maximum extent practicable.”

Based on FAR 13.104( b ), synopsizing on GPE or soliciting at least three sources satisfies the competition requirement. Accordingly, the statutory requirement to obtain maximum practicable competition is met through the use of competitive procedures in establishing the BPA. Thus, the answer to the question is that there should be no requirement to conduct further competition for each order subsequently issued under the BPA. Logan, LLC, B-294974.6, Dec 01, 2006.

Thoughts?

[formerfed]

@Jamaal Valentine  Makes perfect sense.  Good summary analysis.  Picking up on Carl’s prior point, if individual calls might exceed $25,000 in value the competitive BPA should be synopsized in the GPE.

[C Culham]

4 hours ago, Jamaal Valentine said:

Thoughts?

 

4 hours ago, Jamaal Valentine said:

The rule is the statutory requirement for maximum practicable competition.

Shooting from the hip yet I do know the Competition in Contracting Act does not apply to FAR Part 13.  So is the rule statutory or regulatory?

Otherwise I do agree.

[formerfed]

It’s statutory.  But it really doesn’t make any difference.  

https://www.law.cornell.edu/uscode/text/41/3305

[C Culham]

3 minutes ago, formerfed said:

It’s statutory.  But it really doesn’t make any difference

https://www.law.cornell.edu/uscode/text/41/3305

Thanks and agree.