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  • Question

    When establishing a BPA, are there coordinations (SASS, Legal) required along with posting requirements through FBO? Is a vendor price list for the items required or can I reference the vendors catalog price minus the discount for all items.


    Answer

    1. The FAR and DFARS references quoted below in pertinent part are applicable to this response.

    FAR 13.003 -- Policy
    (b)(1) Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 ($15,000 for acquisitions as described in 13.201(g)(1)) and not exceeding $150,000 ($300,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101) is reserved exclusively for small business concerns and shall be set aside (see 19.000, 19.203, and subpart 19.5). See 19.000(b) and 19.502-2 for exceptions.

    (h) In addition to other considerations, contracting officers shall -- (1) Promote competition to the maximum extent practicable (see 13.104);

    FAR 13.104 -- Promoting Competition
    The contracting officer must promote competition to the maximum extent practicable to obtain supplies and services from the source whose offer is the most advantageous to the Government, considering the administrative cost of the purchase.

    FAR 13.303-2 -- Establishment of BPAs.
    (b) After determining a BPA would be advantageous, contracting officers shall -- (1) Establish the parameters to limit purchases to individual items or commodity groups or classes, or permit the supplier to furnish unlimited supplies or services; and

    (c) BPAs may be established with --
      (1) More than one supplier for supplies or services of the same type to provide maximum practicable competition;
      (2) A single firm from which numerous individual purchases at or below the simplified acquisition threshold will likely be made in a given period; or

    (d) BPAs should be prepared without a purchase requisition and only after contacting suppliers to make the necessary arrangements for --
      (1) Securing maximum discounts;
      (2) Documenting individual purchase transactions;
      (3) Periodic billings; and
      (4) Incorporating other necessary details.

    FAR 13.303-3 -- Preparation of BPAs.
    (a) The following terms and conditions are mandatory:
      (1) Description of agreement. A statement that the supplier shall furnish supplies or services, … during a specified period and within a stipulated aggregate amount, if any.
      (2) Extent of obligation. A statement that the Government is obligated only to the extent of authorized purchases actually made under the BPA.
      (3) Purchase limitation. A statement that specifies the dollar limitation for each individual purchase under the BPA (see 13.303-5(b)).
      (4) Individuals authorized to purchase under the BPA. A statement that a list of individuals authorized to purchase under the BPA, … and the dollar limitation per purchase for each position title or individual …
      (5) Delivery tickets. A requirement that all shipments under the agreement, …, shall be accompanied by delivery tickets or sales slips that shall contain the following minimum information: (i) Name of supplier;   (ii) BPA number; (iii) Date of purchase; (iv) Purchase number; (v) Itemized list of supplies or services furnished; (vi) Quantity, unit price, and extension of each item, less applicable discounts (unit prices and extensions need not be shown when incompatible with the use of automated systems, provided that the invoice is itemized to show this information); (vii) Date of delivery or shipment.
      (6) Invoices. One of the following statements shall be included: (i) A summary invoice … supported by receipt copies of the delivery tickets. (ii) An itemized invoice … . These invoices need not be supported by copies of delivery tickets. (iii) When billing procedures provide for an individual invoice for each delivery, these invoices shall be accumulated, … .

    FAR 13.303-5 -- Purchases Under BPAs
    (c) The existence of a BPA does not justify purchasing from only one source or avoiding small business set-asides. The requirements of 13.003(b) and subpart 19.5 also apply to each order.

    (d) If, for a particular purchase greater than the micro-purchase threshold, there is an insufficient number of BPAs to ensure maximum practicable competition, the contracting officer shall -- 
      (2) Establish additional BPAs to facilitate future purchases if -- (i) Recurring requirements for the same or similar supplies or services seem likely; (ii) Qualified sources are willing to accept BPAs; and (iii) It is otherwise practical to do so.

    DFARS PGI 219.201 – General policy
    (e) Contracting and contract administration activities appoint small business specialists as directed by DoDD 4205.1, DoD Small Business and Small Disadvantaged Business Utilization Programs. Specialists— (ii) Make sure that the contracting activity takes the necessary actions to implement small business, historically black college and university/minority institution, and labor surplus area programs;

    2. It appears from the Background statement that the contracting activity is considering establishing a single BPA under which to procure the plumbing supplies. While FAR 13.303-2(c)(2) permits such an arrangement, FAR 13.303-5(c) expressly states that that the existence of a BPA does not justify purchasing from only one source or avoiding small business set-asides and that the requirements of FAR 13.003(b) and FAR Subpart 19.5 would apply to each order under the BPA. Furthermore, FAR 13.003(h)(1) and FAR 13.104 state that Contracting Officers must promote competition to the maximum extent practicable, and, when BPAs are being considered, FAR 13.303-5(d)(2) indicates that the Contracting Officer should establish a sufficient number of BPAs to ensure maximum practicable competition.

    3. Therefore, regarding the first question (i.e., When establishing a BPA, is other coordination required along with posting requirements through FBO?), if a single BPA at this significant, estimated dollar value is contemplated, then in our opinion the Contracting Officer should coordinate this BPA with the contracting activity’s Small Business Specialist and with the Competition Advocate and obtain their approval before publicizing the BPA synopsis in the FBO. In view of the small business program and competition requirements described above, the Contracting Officer will be in a better position to justify individual orders issued under the BPA if there is pre-agreement from the Small Business Advisor that such orders will meet FAR small business program requirements and meet the contracting activity’s socio-economic goals and if there is pre-agreement from the Competition Advocate that such orders would be fairly priced. Of course, these issues could be greatly mitigated if the contracting activity were to negotiate BPAs with two or more responsible small business suppliers from which to obtain competitive quotes for these supplies, rather than issue a single BPA.

    4. FAR 13.303-2(d) and FAR 13.303-3(a) described above specify the essential terms and conditions that must be included in BPAs.  There is no requirement in either of these FAR subdivisions that the BPA itself must contain a detailed, priced list of every item of supply that may be furnished under the BPA. The only documentation that requires a priced list are Delivery Tickets (reference FAR 13.303-3(a)(5)) and Invoices (reference FAR 13.303-3(a)(6)). Therefore, as long as the BPA’s terms and conditions are otherwise compliant with the provisions of FAR 13.303-2(d) and FAR 13.303-3(a), (e.g., include a statement of discount terms as required by FAR 13.303-2(d)(1)), then in our opinion, the BPA can reference the vendor’s catalog prices minus the discounts applicable to any of the items, and it need not contain a list that shows separate prices for each item that may be delivered under the BPA.


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