Competition and extending the PoP of BPAs

[C Culham]

15 minutes ago, Vern Edwards said:

Another Wifcon wild diversion.

Yes sir!   

I too am in the dark to some extent about Don and ji's comment as Jamaal's quote about poor man's multiple award contract pegs it for me.   Even more so after reading some of the BPA's on SAM.gov where they seem to me to look like multiple awards not "establishment of a charge account".  I even found one that seemed to provide that calls/orders were a firm offer by the government that the BPA holder could no reject.  If it walks like a duck........

[Vern Edwards]

The decision by GSA to adopt the term "BPA" in connection with schedule contracts created a lot of confusion. Before his death in 2005, Professor John Cibinic criticized that decision in "Contracting Methods: Square Pegs and Round Holes," The Nash & Cibinic Report, September 2001.

I think that conducting competitions for the "award" of SAP BPAs is a needless complication of simplified acquisition. It is not clear to me what practical advantage there is in such a process. I think GSA's hijacking of the term has poisoned the well of common sense. But I am open to be educated.

[formerfed]

2 hours ago, Vern Edwards said:

I think that conducting competitions for the "award" of SAP BPAs is a needless complication of simplified acquisition. It is not clear to me what practical advantage there is in such a process. I think GSA's hijacking of the term has poisoned the well of common sense. But I am open to be educated.

No doubt hijacking of the terms has a lot to do with the way current SAPs evolved.  I’ve seen several ways BPAs are used, some of which are probably improper.  But without seeing details or agency documentation and rational, it’s hard to pass judgement.  For example:

• Synopsizing upfront the intent to competitively award BPAs.  The synopsis includes the scope of the BPAs and orders are not further synopsized regardless of dollar value
• Competition at the order level is limited to BPA holders
• Program office individuals are authorized to place calls for supplies and some services and contracting officers later consolidate all calls on a recurring basis such as monthly 
• Program officers may solicit quotes from BPA holders directly
• A single order is placed as bulk funding and subsequent orders for supplies/services draw down from the bulk funds
• As many BPAs are for commercial items, orders can be significant in terms of dollar value
• Noncompetitive orders are justified in narrative terms with only contracting officer approval or selection of a specific source is based upon past performance 

[ji20874]

Yes, I do like the Logan decision.  However, I do not encourage widespread use of the Logan decision as justification for any other contracting officer's action -- as I 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.

The old adage is that hard cases make bad law.  Logan was a hard case, with a tortured history.  The agency had a real and difficult need, and stretched the FAR 13 text beyond the comfort level of many in order to meet their need -- the GAO allowed it to stand.

Vern says the Logan decision was a big whoopee -- but I think it was a meaningful decision, because until then the approach was untested legally and probably rarely (or never?) used.  The Logan players in the DEA were bold and did it, and they won the protest.  I like that.

[Vern Edwards]

Unless I missed something, all Logan boils down to is that if you conduct a competition to establish BPAs and get competitive quotes, you don't have get new quotes from the BPA holders for each order. You can just use the quotes you already have. That strikes me as nothing more than common sense. I presume DEA included price lists in each BPA and that the work was fairly standard from one order to the next.

Were the BPAs in Logan agreements or contracts? Take a look at footnote 4:

Quote

The RFQ also included a “minimum guaranteed amount” of work for each BPA holder for each contract area. AR, Tab 3, RFQ No. DEA-06-R-0002, at 4-6.

Did the agency obligate funds to cover the minimum?

There were untimely protest issues that the GAO did not consider. See footnote 6. There may have been protest issues that were not raised. 

I don't like the Logan example because I think conducting competitions is a lot of work and protest-risky. Protests cost money and delay awards. We know that competitions under FAR Part 13 have generated sustained protests largely due to needless use of FAR Part 15 procedures.

In 2006 JAN Army Law 9 (2008), in a description of the Logan decision, the author, a Lieutenant Colonel, described the DEA's BPAs as "noncompetitive." He did not explain why. Maybe he was thinking that BPAs were competitively established but that the placement of the orders was done without competition, which appears to have been the case. No need for new quotes, but shouldn't the quotes have been compared before awarding orders? It appears that they were not. The GAO dismissed that thought with a couple of simple sentences:

Quote

In this case, DEA complied with the statutory requirement to obtain maximum practicable competition when it established the BPAs for these small purchases. Under these circumstances, there is no requirement that DEA compete among the BPA holders each individual purchase order subsequently issued under the BPAs.

Why not?

I think that is a questionable statement. GAO might rethink that in dealing with a protester armed with experienced lawyers from a large firm.

But if, as ji20874 suggests, an agency has top-notch people to think through and work out potential issues, plot a good course, and steer the thing through the rocks and shoals, they should give it a try.

Experiment, by all means. What do you have to lose?

[Don Mansfield]

A lot has already been written here about what they like and don't like about the DEA's procedure and the GAO's decision that I won't repeat or challenge. However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure. They disclosed their intent to rotate purchases among BPA holders in the solicitation and nobody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely. So it seems DEA was home free to rotate purchases among the BPA holders.

[joel hoffman]

7 hours ago, Don Mansfield said:

A lot has already been written here about what they like and don't like about the DEA's procedure and the GAO's decision that I won't repeat or challenge. However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure. They disclosed their intent to rotate purchases among BPA holders in the solicitation and nobody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely. So it seems DEA was home free to rotate purchases among the BPA holders.

Many of our USACE Districts used to rotate task orders among IDIQ holders but quit in the late 90’s. I don’t see a big problem with rotating purchase orders off of BPAs if the vendors are similar in pricing and performance. 

[Jamaal Valentine]

8 hours ago, Don Mansfield said:

However, I think the most remarkable part of the Logan decision was the DEA's rotation procedure.

When I was first trained by the Air Force, we were instructed to rotate BPAs. It was the common practice although I never understood how it worked over the micro-purchase threshold. Nobody gave a good explanation besides traditions and norms. I bet someone with an old contingency contracting handbook, the Van Matthews, or early BPA guidance would find the practice in writing.

[Vern Edwards]

8 hours ago, Don Mansfield said:

I think the most remarkable part of the Logan decision was the DEA's rotation procedure.

I agree.

But is award of orders by rotation a competitive procedure? (Is rotation the same as, or a type of, "allocation"? See FAR 16.505(b)(1)(ii)(B).)

And since DEA awarded only one BPA per geographical region they must have awarded orders without comparing competitive quotes. If so, was that a competitive procedure? Was it maximum practicable competition?

8 hours ago, Don Mansfield said:

[N]obody protested before quotes were due. When Logan tried to protest the rotation procedure after establishment of the BPAs, the protest was untimely.

Logan's (aka Envirosolve) attorney was a single practitioner. Their name appeared as representing a protester in only nine GAO decisions, all between 1999 and 2017. In one of those nine they represented an intervenor. In three of them they represented Logan versus the DEA. Of the nine protests only one was sustained in full (one of the Logan cases), and one was sustained in part (involving a different client). They represented two clients in three COFC protests between 2004 and 2007. They succeeded only once, partially, on a motion for discovery.

They represented six clients (including Logan (as Envirosolve) in 20 BCA cases, in seven of which they represented the same client and in six of which they represented another client. The outcomes were mixed. Several were settled before coming before the board. I did not read them all.

I cannot help but wonder how Logan might have fared had they hired an attorney with extensive bid protest experience. What issues and arguments  might a more experienced protest attorney have presented based on facts we don't know about? Also, the impression I have of GAO is that it does not always have a lot of patience with inexperienced lawyers.

Be careful not to read too much in, and rely too much on, a single GAO decision that has never been cited on-point after eight years. But feel free to innovate experiment. 😀

[C Culham]

I do not think DEA and any other agencies actually uses a purely rotational basis to place calls and see the term as a distraction for this discussion.  Why?   Afterall Envirosolve was excluded from the rotation, so would not that mean that DEA was using other than a  rotation basis to determine who to  issue calls to(see below excerpt from the decision)?  In reviewing several BPA solicitations on SAM.gov it seems that where rotation is indicated there is an out for adverse performance.  In other words the calls may be rotated yet carry a BUT.  I have faith that CO discreation is still used and trumps just rotating calls.

"On or about July 17, 2006, DEA began excluding Envirosolve from the rotation of purchase orders for hazardous waste cleanup services among BPA holders. Envirosolve then filed the current protest challenging its exclusion. In its report to our Office in response to the protest, the agency explained that the DEA Hazardous Waste Disposal Section is presently conducting an investigation concerning the discovery of three drums containing clandestine drug laboratory waste at a location in Tulsa, Oklahoma. AR, Sept. 25, 2006, at 2. According to DEA, its initial investigation determined that the labeling on the drums indicated that the hazardous waste had been processed and transported by Envirosolve. Given Envirosolve’s apparent loss of control of the three drums of hazardous waste, the contracting officer decided to temporarily discontinue issuing purchase orders to Envirosolve during the pendency of the investigation."

[Retreadfed]

On 3/21/2024 at 2:35 PM, ji20874 said:

The Logan decision

What is the Logan decision?

[C Culham]

On 3/23/2024 at 2:51 PM, Retreadfed said:

What is the Logan decision?

Logan, LLC., B-294974.6, December 1, 2006

[Retreadfed]

Thanks, Carl

[NotEnoughMoney]

I'm going to piggyback off this since I have a question that's so similar:

At my office we have one BPA for a chartered bus when a person in our area eventually passes away (state funeral) for our base's band. The BPA was solicited, and the master agreement has a one-year ordering period. The person was expected to pass away within that year, but they didn't. Now we have to extend the BPA master. 

The office wants to add in -8 to extend the agreement for 6 months, but I was wondering if that is even necessary? Looking at the discussion in this thread it seems like we should just be able to bilaterally push out the ordering period, but since we solicited, I think it might be thorny. What do you guys think?

[joel hoffman]

16 hours ago, NotEnoughMoney said:

but since we solicited, I think it might be thorny. What do you guys think?

Please clarify: Did you receive multiple responses to your “solicitation”?  Is the purpose of the BPA for a one time charter or for multiple bus charters?

It appears to be below the simplified acquisition threshold and perhaps commercial services. How thorny can that be to simply agree to extend the BPA? 

Edited April 5 by joel hoffman

[C Culham]

18 hours ago, NotEnoughMoney said:

The BPA was solicited, and the master agreement has a one-year ordering period. The person was expected to pass away within that year, but they didn't. Now we have to extend the BPA master. 

And really a one time event?  

[NotEnoughMoney]

On 4/5/2024 at 9:13 AM, joel hoffman said:

Please clarify: Did you receive multiple responses to your “solicitation”?  Is the purpose of the BPA for a one time charter or for multiple bus charters?

It appears to be below the simplified acquisition threshold and perhaps commercial services. How thorny can that be to simply agree to extend the BPA? 

Yes, it did have multiple responses to the solicitation. It also had a protest (which is wild for a BPA at all; I inherited this). That's why I think it might be thorny if we extend it very much. We're already treating this thing like an IDIQ. That's why I'm fighting tooth and nail to not add a -8 to it. That just reinforces the thinking that this is a contract. 

And yes, it was anticipated (but not stated in the PWS) that it would only be used once, for one specific person. They didn't pass away within a year, though, so now the customer is scrambling. 

[joel hoffman]

Don’t know the basis of the initial selection or a protest or the basis of the protest decision. 

But if it is a one time event can you simply issue  a new BPA? Does it need to be a BPA for a single event? 

Does it necessarily need to be with the existing vendor? 

[NotEnoughMoney]

2 hours ago, joel hoffman said:

Don’t know the basis of the initial selection or a protest or the basis of the protest decision. 

But if it is a one time event can you simply issue  a new BPA? Does it need to be a BPA for a single event? 

Does it necessarily need to be with the existing vendor? 

I already made that argument. I said this morning, "if it's such a low amount, why not just use oral solicitation when the person passes and put it out to our existing vendors that replied to the BPA solicitation?" I think that's the best way to do this, but the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go. 

[joel hoffman]

Set it up ahead of time so you can make the call when it occurs. Is it’s matter of on-call availability of a bus?

If there is a possibility of non-availability from any one company, how about prearrange with a couple companies for a rental and whoever is available gets the call. Or something like that… it just doesn’t seem to be that complicated. If they are both available for the same price, the tiebreaker would be flipping a coin. Fair enough…

Well, good luck.

[C Culham]

6 hours ago, NotEnoughMoney said:

I think that's the best way to do this, but the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go. 

Does your customer understand that the BPA holder can reject the call against the BPA?

[NotEnoughMoney]

10 hours ago, C Culham said:

Does your customer understand that the BPA holder can reject the call against the BPA?

They do, but I think they're hoping for the best at this point. And there is a lot of cross chatter at our own office about what we can and can't mod on a BPA, with legal, policy, and multiple KOs all saying different things. It's a pretty big mess. 

[jtolli]

If it is just a one time event, what is the cost?  Can it be done with the Government Purchase Card?

[joel hoffman]

41 minutes ago, jtolli said:

If it is just a one time event, what is the cost?  Can it be done with the Government Purchase Card?

Agree

[Witty_Username]

19 hours ago, NotEnoughMoney said:

the customer wants to have a bus ready to go the second this person dies to get them down to whatever location they need to go

This sounds like either a requirement for a definitive contract awarded now with clearly defined availability and response timelines (if market research indicates buses may be scarce), or a pre-planned GPC buy/oral solicitation (e.g. have a market research report with local vendors, etc.) if you are confident there will be busses available from someone.

The single BPA seems to risk unavailability of a bus when you need it, but will give people misplaced confidence that there is a solution in place.