Competition and extending the PoP of BPAs

[Sascha Kemper]

Hello esteemed Contracting Community,

I have 3 BPAs (done under FAR Part 13) for audit services. They were awarded together and have the same period of performance (5 years, 2019 to 2024). The PoP is ending this summer and the original requiring office would like to extend the PoP of all 3 BPAs by 5 years. I've looked in Wifcon, read FAR 13.104 and 13.106 and 13.303-2 and 13.303-7 trying to figure out if a J&A is needed to non-competitively extend all 3 BPAs. FAR part 6.001 states that it is not applicable to Part 13. Additionally, my agency guidance states that competition happens at the order level, not the BPA level. As such, I think that I can extend the PoP by 5 years without having to do a J&A? Am I wrong? Please let me know if I need to provide additional details to assist with this question. Thanks!

[ji20874]

You may establish a FAR Part 13 BPA with any firm you choose, without competition or notice or requisition or J&A -- and if you establish several BPAs, those BPA holders may provide you with adequate competition for some of your subsequent simplified acquisition purchases. 

A BPA doesn't have a POP as there is no performance; rather, a BPA may have a period for making purchases.

A BPA is established, not awarded.

If a purchase intended for a BPA exceeds the threshold for posting or synopsis, you will want to comply with those rules for that purchase.

 

[C Culham]

5 hours ago, Sascha Kemper said:

As such, I think that I can extend the PoP by 5 years without having to do a J&A?

"Extend" the BPA's does not in my view seem to be the appropriate terminology.  By my read of FAR 13.303-7 you have 3 completed BPA's ("stated time period has expired') therefore you are intending to issue 3 new BPA's.

5 hours ago, Sascha Kemper said:

As such, I think that I can extend the PoP by 5 years without having to do a J&A?

Continuing my line of thought that they would be new BPA's the question becomes whether simply issuing the 3 new BPA's to the same three vendors is accomplishing maxiable practicable competition for not only issuing the 3 new BPA's and then in use of the BPA's to issue calls or orders against them.

The basis for my thoughts is a GAO decision in Envirosolve LLC, B-294974.4, June 8, 2005.   Go to this WIFCON website (link follows) and read the synopsis of the case where you can find the link to the full GAO decision.   https://www.wifcon.com/pd13_303.htm

In the end you may be on the right track but there are considerations that you need to make that while documentation may not be a J&A one would want to document the rational of why maximum practicable competition has been met by simply returning to the same 3 contractors with the BPA's.  Documentation that most certainly would address the considerations of FAR 13.104.

PS - jio20874 posted as I was completing my thoughts.   Even in consdieration of his comments I have decided to leave mine exactly as I wrote them initially. 

[Vern Edwards]

6 hours ago, Sascha Kemper said:

I think that I can extend the PoP by 5 years without having to do a J&A? Am I wrong? Please let me know if I need to provide additional details to assist with this question.

@Sascha KemperFAR Part 13 BPA's are agreements, not contracts. Do you understand the distinction under FAR? As mere agreements, they are not binding on the parties, do not buy anything, and do not obligate any funds. That's why they are not "awarded" and don't have periods of performance. They need only be reviewed, and updated if necessary, on an annual basis.

And that's why you don't need a J&A to extend the agreement.

 

[C Culham]

9 hours ago, Vern Edwards said:

That's why they are not "awarded" and don't have periods of performance. They need only be reviewed, and updated if necessary, on an annual basis.

But a BPA can be considered complete    -

"FAR 13.303-7 - An individual BPA is considered complete when the purchases under it equal its total dollar limitation, if any, or when its stated time period expires."

 

•  

[Sascha Kemper]

15 hours ago, Vern Edwards said:

And that's why you don't need a J&A to extend the agreement.

 

Thanks, Vern!

[Vern Edwards]

@Sascha KemperYou're welcome! One more thing. Let me explain in a little more detain about FAR 6.001.

On 3/20/2024 at 12:59 AM, Sascha Kemper said:

FAR part 6.001 states that it is not applicable to Part 13.

Here's what FAR 6.001 says about Part 13:

Quote

This part applies to all acquisitions except—

(a) Contracts awarded using the simplified acquisition procedures of part  13 (but see 13.501 for requirements pertaining to sole source acquisitions of commercial products or commercial services, under subpart  13.5)...

Emphasis added.

Now look a the definition of acquisition in FAR 2.101, which begins:

Quote

Acquisition means the acquiring by contract with appropriated funds of supplies or services (including construction)... 

Now look at the definition of contract in FAR 2.101, which begins:

Quote

Contract means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds... 

FAR Part 13 BPA's are agreements, not contracts as defined by FAR. They are not purchase orders. They're supposed to be "charge accounts", i.e., billing arrangements. They anticipate future buys, but don't buy anything. Orders (or "calls") may or may not be made later. They are paperwork reduction devices. Thus, the creation of a BPA is not an acquisition. (Who knows what GSA's stupid BPAs under 8.405-3 are. I am not addressing them.)

Thus, nothing in FAR Part 6, which applies to "all acquisitions", applies to Part 13 BPAs, including FAR 6.001(a), which applies only to contracts awarded using SAP.

So if you want to create or extend a BPA you can stop reading 6.001 after "This part applies to all acquisitions..." It's not paragraph 6.001(a) that takes us off the hook, it's the prefatory phrase.

[C Culham]

On 3/19/2024 at 11:59 PM, Sascha Kemper said:

Please let me know if I need to provide additional details to assist with this question.

You have probably disappeared based on Vern's most recent post but the continuing thread had me come up with this question.

Was the issuance of the 3 BPA's done competitively, or in other words, synposized in SAM.gov?   If so and the wording in the BPA's carried the term "period of performance"  then I as one commenter am concerned that a simple extension of the BPA's, absent some kind of wording in the original solicitation and BPA itself, would still demand documentation that they still represent maximum practiable competition otherwise the BPA's could be at odds with the guiding principles of FAR part 13 and case law.  To be clear I am not saying the documentation is to be a J&A but a determination, similiar to that as suggested in FAR 13.106-1(b).

Now I understand that my view may be not in alignment with reality where the concerned contractors surely want the work and as it goes in the Federal government a CO or other authorized official can  simply extend the BPA's and nobody would be concerned.   Or in other words noboby is going to protest the extensions.   

This goes along with my crazy thoughts as I read the ongoing thread  that if in fact the establishment BPA's was done competitively why did the agency do that in the first place?   Seek competition?  And if so one would seem to think at least some documentation as to why after 5 years the establishment of the BPA's with the same 3 firms still represents maximum practicable competition.  

[Vern Edwards]

35 minutes ago, C Culham said:

Was the issuance of the 3 BPA's done competitively, or in other words, synposized in SAM.gov?   

Why would they synopsize it? You must synopsize only contract actions, as defined in FAR 5.001. An action to create or extend a BPA issued under FAR Part 13 is not a contract action.

[Jamaal Valentine]

Presumably because the “[s]tatutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” Logan, LLC., B-294974.6, December 1, 2006. It’s likely that this is an attractive feature to some contracting officers. They can establish a poor man’s IDIQ without funding or minimum guarantees.

[C Culham]

21 minutes ago, Vern Edwards said:

Why would they synopsize it?

(My inclusion of "synopsize" was probably not correct.    I should of kept to competitively.)

 Why?   I am reminded of a Forum discussion of years back from which I have captured this quote.  As to the Forum discussion it is referenced at the very end of this post.

"Statutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs." Reference  https://www.gao.gov/assets/b-294974.6.pdf

Many agencies do use competitive procedures to establish BPA's so that they only have to compete an actual reguirement via the BPA's that were established competitively.   My reference to "many agencies" can be confirmed by a search of SAM.gov Contract Opportunities. 

Example of wording I found in SAM solicited contract opportunities - 

• "The Government anticipates this solicitation will result in multiple BPAs." 
• "The anticipated period of performance for any contract awarded..."
• "The anticipated contract type for any contract awarded as a result of this solicitation is a Blanket Purchase Agreement (BPA)."

So what do you think?  Should an agency that competitively established multiple BPAs simply extend the BPA's established in the competition if the BPA's had a set "performance period" which has ended/expired and neither the BPA(s), nor the solicitation, carry or carried language, options or otherwise, that the BPA's would be extended beyond the stated performance period?  

 

The past WIFCON discussion noted above -

 

[C Culham]

4 minutes ago, Jamaal Valentine said:

Presumably because the “[s]tatutory requirement to obtain maximum practicable competition in simplified acquisitions is met where agency uses competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors; under those circumstances, there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” It’s likely that this is an attractive feature to some contracting officers.

Sorry we posted simultaneously.   

[ji20874]

The Logan decision goes farther than the text of FAR 13 on the topic of BPAs, and has not been codified in a FAR update.  Logan's premise should only be used by competent and careful practitioners.

That said, I like it!

[Don Mansfield]

19 minutes ago, ji20874 said:

The Logan decision goes farther than the text of FAR 13 on the topic of BPAs, and has not been codified in a FAR update.  Logan's premise should only be used by competent and careful practitioners.

That said, I like it!

Me too.

[Vern Edwards]

I don't understand what there is to like so much about the Logan decision. That decision has been cited only four times, and never about the BPA competition issue. A few agencies have established priced BPAs for decades. Logan is just common sense in such cases.

And I don't understand how the Logan decision answers my question: Why synopsize a competition for BPAs  when such competitions are not contract actions? What would it do for you?

Clue me in, fellas.

 

[Jamaal Valentine]

It’s probably worth distinguishing what a synopsis is under FAR. That would highlight that the value isn’t in the synopsis itself. The value is in using competitive procedures in establishing blanket purchase agreements (BPA) with multiple vendors. Disseminating information through a so-called synopsis just seems to be a convenient avenue of approach for soliciting competition because the so-called synopsis is a byproduct of using SAM.gov to publish solicitations. 

[Vern Edwards]

Why use competitive procedures to establish multiple BPAs? Why not just do market research and then enter into BPAs with vendors you like? Then seek competitive quotes from them. Maximum practicable competition is not full and open competition.

Again... A Part 13 BPA is just a charge account, a billing arrangement. That's all it does for you. It's not a contract.

[Vern Edwards]

11 hours ago, C Culham said:

So what do you think?  Should an agency that competitively established multiple BPAs simply extend the BPA's established in the competition if the BPA's had a set "performance period" which has ended/expired and neither the BPA(s), nor the solicitation, carry or carried language, options or otherwise, that the BPA's would be extended beyond the stated performance period? 

Well, if you're going to conduct competitions for SAP BPAs when you don't have to, why not conduct new competitions when they expire?

BTW, I do not think GAO has protest jurisdiction over actions to establish or extend BPAs. See 31 USC 3551 and the definition of protest in FAR 33.101.

Logan was not about the establishment or extension of a BPA.

[Jamaal Valentine]

Using competitive procedures to establish multiple BPAs means “there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” This could facilitate rotation of vendors contracting officers often talk about. In context, rotating is where orders are placed with different BPA holders to maintain properly balanced sources of supply/services, for example. If the BPAs aren’t established competitively, mini competitions would be necessary for certain actions over the micropurchase threshold.

I need to think about actions over the micropurchase but less than $25K since actions over $25K would need to be synopsized.

[Vern Edwards]

I think establishing BPAs competitively might make you vulnerable to protests when you place orders ("calls") against the BPAs. Is rotating vendors consistent with competition? How do yo explain paying a higher price just because someone has come up on rotation? If you're going to do that, what was the point of the original competition?

And remember, an order against a BPA is contract action, and each one that meets the criteria in 5.201(b) must be synopsized. I don't think you can restrict the competition to BPA-holders.

A SAP BPA is just a charge account. It is not a contractual instrument.

[Jamaal Valentine]

6 hours ago, Vern Edwards said:

A SAP BPA is just a charge account.

Over time, it seems that BPAs stopped being used this way. The modern practice for many BPAs more closely resembles the thing FAR 13.303-2(a)(3) implies they were supposed to avoid - writing numerous purchase orders.

Now, purchase requisitions and accounting and appropriation data initiate many orders and the literal calls of the past are extinct. In there place are ad-hoc electronically written orders—from a contract writing system—for each delivery or performance required.

Today, BPAs are used more like standing RFQs or a poor man’s multi-award contract (noting that they are not contracts at all) rather than charge accounts. There aren’t any billing periods and invoices have replaced delivery tickets.

 Has anyone else had similar experiences/observations? What about in the civilian agencies?

[C Culham]

8 hours ago, Vern Edwards said:

Well, if you're going to conduct competitions for SAP BPAs when you don't have to, why not conduct new competitions when they expire?

Yep.  My view is that an agency has set an expectation on competition for the future.   I tried and could not find any protests that addressed the situation.  I wonder if GAO would do an advance decision on the matter? 

 

8 hours ago, Vern Edwards said:

BTW, I do not think GAO has protest jurisdiction over actions to establish or extend BPAs. See 31 USC 3551 and the definition of protest in FAR 33.101.

I agree in general.  I would add clarity that I believe you are referring to FAR part 13 BPA's.   I will also play the "it depends" card only from the view that as mulitple award FAR part 13 BPA's get more and more use as "the poor mans mulitple award contract" (thanks @Jamaal Valentine) some day, some how jurisdiction will be found by GAO or created by congress just as they interjected requirements for multiple award IDIQs.  By example I agree Logan was not about jurisdiction but does this quote in footnote 5 leave the door open - "In order to obtain competition to the maximum extent practicable, agencies must make reasonable efforts, consistent with efficiency and economy, to give responsible sources the opportunity to compete..."

[formerfed]

2 hours ago, Jamaal Valentine said:

Over time, it seems that BPAs stopped being used this way. The modern practice for many BPAs more closely resembles the thing FAR 13.303-2(a)(3) implies they were supposed to avoid - writing numerous purchase orders.

Now, purchase requisitions and accounting and appropriation data initiate many orders and the literal calls of the past are extinct. In there place are ad-hoc electronically written orders—from a contract writing system—for each delivery or performance required.

Today, BPAs are used more like standing RFQs or a poor man’s multi-award contract (noting that they are not contracts at all) rather than charge accounts. There aren’t any billing periods and invoices have replaced delivery tickets.

 Has anyone else had similar experiences/observations? What about in the civilian agencies?

Yes.  I’ve seen similar situations all across the government in both DoD and civilian agencies.   The practices vary but they are for the most part just as you described.  In some instances, individuals in program offices are designated as ordering officials and place “calls” through use of P-cards.

[C Culham]

8 hours ago, Jamaal Valentine said:

Using competitive procedures to establish multiple BPAs means “there is no requirement that the agency conduct a further competition among the BPA holders in connection with each individual purchase order subsequently issued under the BPAs.” This could facilitate rotation of vendors contracting officers often talk about. In context, rotating is where orders are placed with different BPA holders to maintain properly balanced sources of supply/services, for example. If the BPAs aren’t established competitively, mini competitions would be necessary for certain actions over the micropurchase threshold.

I need to think about actions over the micropurchase but less than $25K since actions over $25K would need to be synopsized.

 

8 hours ago, Vern Edwards said:

I think establishing BPAs competitively might make you vulnerable to protests when you place orders ("calls") against the BPAs. Is rotating vendors consistent with competition? How do yo explain paying a higher price just because someone has come up on rotation? If you're going to do that, what was the point of the original competition?

And remember, an order against a BPA is contract action, and each one that meets the criteria in 5.201(b) must be synopsized. I don't think you can restrict the competition to BPA-holders.

A SAP BPA is just a charge account. It is not a contractual instrument.

This part of the discussion leads me back to the obeservation by Vern that in Logan GAO avoided discussion of rotating where GAO said in footnote 6 -   "To the extent Envirosolve argues that DEA did not achieve competition to the maximum extent practicable by competing the establishment of the BPAs (and thus must compete issuance of the purchase orders under the BPAs), this argument is untimely."  I have not taken the time to look at every multiple BPA advertisement on SAM.gov but in the few I have looked at there is an indication of a mini-competition among BPA holders at the discreation of the agency with the door left open that they might do "sole source" too.     So my view would be the issue of rotating or not would be dictated by the BPA wording. 

I guess we just wait and see.

[Vern Edwards]

Just now, C Culham said:

I would add clarity that I believe you are referring to FAR part 13 BPA's. 

Yes. I'm talking about FAR Part 13 SAP BPAs, not the GSA FSS 8.405-3 things ("Schedule BPAs").

Under the terms of 31 USC 3551 and FAR Part 33, protests are complaints about contract actions. See GAO's protest rules, 4 CFR 21.1(a):

Quote

An interested party may protest a solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; the cancellation of such a solicitation or other request; an award or proposed award of such a contract; and a termination of such a contract, if the protest alleges that the termination was based on improprieties in the award of the contract.

Emphasis added. SAP BPAs are not contracts.

Moreover, synopsis of a competition for multiple SAP BPAs does not free an agency from the statutory requirement to synopsize "each" contract action conducted thereafter. Any prospective order (or "call") against a SAP BPA that meets the criteria in FAR Part 5 must be synopsized. The existence of a SAP BPA provides no exception.

However... Practice generally precedes regulation, and many new practices are based on faulty interpretations of the regs. I do not doubt that buyers today are using SAP BPAs in ways that the regulations do not contemplate.

Anyway, I am still in the dark about what ji20874 and Don like so much about Logan with respect to BPAs. To me, what it says about maximum practicable competition is just a common sense reading of the FAR. Under Part 13, competitive quotes are competitive quotes, no matter how you got them. Having received competitive quotes through its (seemingly) pointless BPA competition, the agency did not have to get new quotes when placing orders against the BPAs. Big whoopee. (Apparently, the BPAs included prices. Agencies have been issuing "priced BPAs" since I entered contracting in 1974. They did that in order to permit no KO "ordering officers" to place calls without having to determine fairness and reasonableness.)

I suspect that the agency in Logan may have been confused about the difference between SAP BPAs and Schedule BPAs.

Another Wifcon wild diversion.