Is there anything that would prevent us from establishing a 10 year open market BPA (no option years, just a 10 year period)? I cannot find anything in the FAR or our agency regulations that establishes a term limit for agreements.
The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your program and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance. Below, I have provided you with what I found in the Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) in relation to Blanket Purchase Agreement (BPA) term/duration limitations.
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The FAR provides regulations for placing a BPA in two different parts. FAR 8.405-3 is for BPAs placed against the General Service Administration's (GSA) Federal Supply Schedules (FSS) . Paragraphs (d) and (e) of FAR 8.405-3 state:
(d) Duration of BPAs.
(1) Multiple-award BPAs generally should not exceed five years in length, but may do so to meet program requirements.
(2) A single-award BPA shall not exceed one year. It may have up to four one-year options. See paragraph (e) of this section for requirements associated with option exercise.
(3) Contractors may be awarded BPAs that extend beyond the current term of their GSA Schedule contract, so long as there are option periods in their GSA Schedule contract that, if exercised, will cover the BPA's period of performance.
(e) Review of BPAs.
(1) The ordering activity contracting officer shall review the BPA and determine in writing, at least once a year (e.g., at option exercise), whether—
(i) The schedule contract, upon which the BPA was established, is still in effect;
(ii) The BPA still represents the best value (see 8.404(d)); and
(iii) Estimated quantities/amounts have been exceeded and additional price reductions can be obtained.
(2) The determination shall be included in the BPA file documentation.
FAR 13.303 provides regulations for BPAs that are placed under the Simplified Acquisition Procedures (SAP), and are essentially stand-alone BPAs in the sense that these BPAs are not issued against an existing GSA FSS. FAR 13.303-3 paragraph (a) (1); FAR 13.303-6; and FAR 13:303-7 state:
a) The following terms and conditions are mandatory:
(1) Description of agreement. A statement that the supplier shall furnish supplies or services, described in general terms, if and when requested by the contracting officer (or the authorized representative of the contracting officer) during a specified period and within a stipulated aggregate amount, if any.
(a) The contracting officer placing orders under a BPA, or the designated representative of the contracting officer, shall review a sufficient random sample of the BPA files at least annually to ensure that authorized procedures are being followed.
(b) The contracting officer that entered into the BPA shall --
(1) Ensure that each BPA is reviewed at least annually and, if necessary, updated at that time; and
(2) Maintain awareness of changes in market conditions, sources of supply, and other pertinent factors that may warrant making new arrangements with different suppliers or modifying existing arrangements.
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.
The DFARS provides supplemental regulations for placing a BPA. None of the DFARS supplemental regulations speak to term/duration limitations of a BPA.
As can be seen above, the FAR does not specifically address term/duration limitations of a BPA (i.e. BPAs against GSA FSS under FAR 8.405-3 or BPAs under FAR 13.303). Therefore, one must turn to the actual BPA itself. Unless extensions, terms, and/or duration limitations were addressed or specifically limited and/or authorized within the BPA itself (e.g. inclusion of an extension clause such as the FAR 52.217-8 clause) the FAR and DFARS are silent on this. As with a regular contract, a BPA needs to meet all the competition and establishment requirements stated in the regulations. This includes considering whether or not the BPA term/duration is of a nature that it would violate the Competition in Contracting Act (CICA) by providing a particular contractor(s) a BPA term that it is unfair to other possible contractors or is used as a means to eliminate competitive acquisitions.