Are Competitions for Part 13 BPAs "Contract Actions"?

@Vern Edwards  

1.  Within the context of traditional BPAs, agencies are free to solicit whomever they choose based on market research and buying experience.

2. Again, they are not envisioned as contract actions and don’t need synopsizing

3. They should refer to “quoters” and not “offerors”

4.  The common traditional terminology used “establish” rather than “award”

But what evolved at some offices now is a cross between BPAs and IDIQ contracts.  They are competed often using a FAR 15 approach.  Synopsis at the BPA level presumably eliminates the need at the “call” or order level when the value exceeds the individual synopsis threshold.  Just from memory, I think the term offeror is used rather than quoter.

It’s definitely something not envisioned in the FAR but difficult to say whether it’s proper or not.  I haven’t seen it challenged yet either via protest.

@formerfed

If you have time, go to SAM.gov and look at solicitation 12363N23Q4024, Amendment 004, issued in 2023 by the USDA. It was still there a month ago.

Tell me what you think.

Also look at W912EQ25Q0004, issued by the Corps of Engineers in March of this year.

I want to note that this response was in the tryping phase when @formerfed and @Vern Edwards replied.  Of  note I had already pulled up and re-looked at 12363N23Q4024 as I had downloaded it many many months ago.  Note its issuance date.   While I could not find a post I made back one to two years ago I did raise question about simliar BPA's I had seen.   I will keep looking but providing my response now anyways. 

My thoughts regarding the questions posed. 

2 hours ago, Vern Edwards said:

Must multiple-award Part 13 (not FAR 8.405-3) BPAs be publicly competed, or may agencies privately choose the firms they want to solicit based on market research and buying experience?

"Publicly competed" throws me off a little especially as subsequent questions refer to synopsis.  But here is my thought.  If one could support that they had met the standard of the promotion of competition to the maximum extent practicable such an effort might stand the test of a denied protest for simply going to selected or privately chosen firms.  Reference - FAR 13.104. 

2 hours ago, Vern Edwards said:

Are such competitions "contract actions" as defined in FAR 5.001? Must they be synopsized?

I think so as they would be "proposed" contract actions as the resulting BPA call or whatever would met the definition of FAR 2.101 of a contract.  I note here further discussion of FAR part 5 after FAR 5.001 uses "proposed" with FAR 5.101 and 5.202 setting the side boards of synopsis of a proposed action. 

2 hours ago, Vern Edwards said:

Is it proper to refer to the firms responding to the solicitations as "offerors"?

I am going to say no in general.  It is well founded that what I will call a "true BPA" is not an express contract is how I arrive at the No.  However having read some of the BPA solicitations on SAM.gov it seems that agencies have bastardized the term BPA by using language in the intended BPA to make it an express contract (such as "firm offer").   One for the boards and courts to wrangle over I guess.  By example lets say FAR 52.212-3 is in the solicitation to establish the BPA's.  Do the "Offeror" reps and certs apply at BPA issuance or at award of a call or whatever it may be called?

2 hours ago, Vern Edwards said:

Is it proper to say that such BPAs are "awarded"?

Again in general No based on information already noted above but then again the specific solicitation sets the standard so in truth it depends.

2 hours ago, Vern Edwards said:

With reference to Question 4--If not, how should COs describe the competition decision if it's not an "award" decision?

"Issued" again unless the specific action suggests "award" is more appropriate.

The dilemma for me is that for the ones I have read I believe that the agencies are creating an illusory contract.  Yet, in the illusion both the government and contractor think they have something that is akin to a contract and as long as any conflicts at solved at the level of the CO and do not make it to a protest both go along fat, dumb and happy where the government has found a workaround to issues of competition and those contractors selected get work and payment for it. My critical view is that in truth they have created multiple award IDIQ's.

W912EQ25Q0004 is very similar to a contract.  It even has defined labor categories with locked in labor rates.  About the only thing that makes it close to a BPA is the $250,000 call limit.  Odd and I wonder why they just didn’t establish IDIQ contracts instead?  

12363N23Q4024 even includes Fair Opportunity provisions and 85 awardees!  These really are BPAs in name only.

For what it is worth the Forest Service in the early 2000's started the multiple award BPA effort with establishment of Incident Blanket Purchase Agreements (IBPA) for incident response.   Coupled with the IBPA establishment was the use of a system (VIPR - Virtual Incident Procurement) to make selections of vendors that had BPA's.   The new generation of BPA's as represented by the solicition referenced by Vern Edwards is, I believe, a spinoff of the IBPA effort. 

The IBPA effort was created after consideration of protest case law where references to some can be found on WIFCON here - https://www.wifcon.com/pd13_303.htm and date back to 2005.

IBPA solicitions, like the example BPA referenced by Vern Edwards, can also be found on SAM.gov with minimal effort. 

I am not sure the below links are current but all the same are some with regard to IBPA's.   From my experience regarding BPA's and IBPAs is that the latter has a structured process for calls which in my humble opinion supports that the IBPA's are in fact BPA's whereby they simply establish charge accounts with vendors and calls result from VIPR selection.   I think the new era BPAs set a different tone. 

https://www.fs.usda.gov/business/incident/ibpa_policy.php?tab=tab_b

https://www.fs.usda.gov/business/incident/vipr.php?tab=tab_d

I don't think that what we are seeing are FAR part 13 BPAs as contemplated in the FAR. The Government is not establishing "charge accounts", making calls, maintaining call logs, receiving "delivery tickets", receiving summary monthly invoices, etc. Now that agencies can use SAP up to $7.5 million (or $15 million in emergencies), there's a need for something like an IDIQ for simplified acquisitions. I think the type of agreements we are seeing are more BOAs than BPAs.

I think the multiple award BPAs give agencies all the bennies of an IDIQ without a requirement for a minimum, funding, and without the need to comply with the fair opportunity rules in FAR 16.5. I think that's why (some) agencies are creating them.

But I think the way (some) agencies write them can mislead inexperienced suppliers into thinking they're contracts. See The Kennedy Collective v. U.S., 175 Fed. Cl. 545 (2025).

3 hours ago, Vern Edwards said:

I think the multiple award BPAs give agencies all the bennies of an IDIQ without a requirement for a minimum, funding, and without the need to comply with the fair opportunity rules in FAR 16.5. I think that's why (some) agencies are creating them.

But I think the way (some) agencies write them can mislead inexperienced suppliers into thinking they're contracts. See The Kennedy Collective v. U.S., 175 Fed. Cl. 545 (2025).

This reminds me of an additional thought.  I bet it would be interesting to track the RFQ solicitation referenced as found in SAM.gov to acutally awarded BPAs and then to orders awarded found in FPDS.

Got my engine running......I wonder how SB setasides are handled at the Call level?

13 CFR 121(c)(3)  Agreements. With respect to agreements established under FAR part 13, size is determined as of the date the business concern submits its initial offer, which includes price, for the agreement. Because an agreement is not a contract, the concern must also qualify as small as of the date the concern submits its initial offer, which includes price, for each order issued pursuant to the agreement to be considered small for the order.

Keep in mind that the SF-1449 states an "Unrestricted" competition and then this is stated in the solicition at 52.212-5 [Contracting Officer check as appropriate.] - with a check appearing at " _X_ (14) (i) 52.219-6, Notice of Total Small Business Set-Aside (Nov 2020) (15 U.S.C. 644)."

On 3/18/2025 at 7:43 AM, Vern Edwards said:

1. Must multiple-award Part 13 (not FAR 8.405-3) BPAs be publicly competed, or may agencies privately choose the firms they want to solicit based on market research and buying experience?
2. Are such competitions "contract actions" as defined in FAR 5.001? Must they be synopsized

On 3/18/2025 at 9:55 AM, formerfed said:

@Vern Edwards  

1.  Within the context of traditional BPAs, agencies are free to solicit whomever they choose based on market research and buying experience.

2. Again, they are not envisioned as contract actions and don’t need synopsizing.

This got me thinking.  The examples we saw come from SAM.gov.  I wonder if any multiple award BPAs are done without synopsizing?  

I suppose someone could argue BPAs are just agreements and “calls” are not orders.  Carrying this further, I would if someone could put BPAs in place without senior management or headquarters knowledge?  Many agency policies establish requirements for contract review boards and legal reviews based on contract actions and monetary thresholds.  So BPAs may not trigger reviews.

All this means an agency could do market research, identify a pool of good candidates, select a few for awards, and put BPAs in place in a very short period.  This allows a reasonable expectation that sources under consideration are good candidates without having to deal with an extensive number of unknowns.

On 3/18/2025 at 5:01 PM, C Culham said:

Got my engine running......I wonder how SB setasides are handled at the Call level?

Keep in mind that the SF-1449 states an "Unrestricted" competition and then this is stated in the solicition at 52.212-5 [Contracting Officer check as appropriate.] - with a check appearing at " _X_ (14) (i) 52.219-6, Notice of Total Small Business Set-Aside (Nov 2020) (15 U.S.C. 644)."

I think BPAs are awarded on an unrestricted basis but the CO has discretion to set orders aside for small businesses.  But that’s not clear from the solicitation and the existing language is partially in conflict.  Overall just poor wording of the intent.

7 hours ago, formerfed said:

I wonder if any multiple award BPAs are done without synopsizing?

It’s almost certainly done. However, the orders (calls) would need to be synopsized and competed based, in part, on their individual dollar value.

12 hours ago, Jamaal Valentine said:

It’s almost certainly done. However, the orders (calls) would need to be synopsized and competed based, in part, on their individual dollar value.

That’s the mostly standard notion.  But BPA calls aren’t specifically mentioned as “contract actions” in FAR 5.001.  I’ve heard people say they don’t publicize on that basis.  That’s wrong in my opinion based on the FAR 2 definition of contracts.

Preface: Today's 1102s may use BPAs differently than they were originally intended to be used, but the current method (at least how I've used them, and I think others have; described in the next paragraph) fills a critical hole in simplified acquisition procedures. I hope the RFO at the very least allows these to continue. Is the below method even "allowed"? I haven't been challenged, and both vendor and customer are so far happy, so I think so.

My take:
I've issued FAR 13 BPAs w/ per-order maximums of $250k (agency procedures do not allow calls/orders over $250k). Orders were competed at the order level to ensure best price, vendor availability, and simply because these were very simple, non-complex commercial purchases that didn't take much time to price. I synopsized in enough detail to satisfy FAR 5.207 (I know FAR 5.202(a)(11) references contract actions, and I could make the argument just like C Culham that BPAs are contract actions -- but -- even if they're not, satisfying FAR 5.207 satisfies the spirit of FAR 5.202(a)(11) and so I relied on that exception) and ensured the T&Cs were clear and narrow enough for fair pricing (when priced) and flexible enough to remain useful to the customers over five years. We considered standing solicitations in cases where we felt more competition was necessary, and likely over a period of time, but I'm not sure those were ever implemented. At the end of the day, we had a need, we communicated that need to industry, we fairly evaluated their responses, and we issued BPAs that made everyone happy. Like Vern mentioned, in cases where we might establish six regional BPAs, forgoing minimum guarantees made these vehicles not only cheaper to establish, but administratively easier for all involved, and we knew based on market research that most BPA holders would receive at least 2-3 orders over the five-year period.

To answer your questions:

1. Must multiple-award Part 13 (not FAR 8.405-3) BPAs be publicly competed, or may agencies privately choose the firms they want to solicit based on market research and buying experience?

   1. A: If the per-order maximum exceeds $25k (which I think is relevant to this discussion), then they must be synopsized to satisfy FAR 5.207 otherwise orders are exposed to procurement challenge.

2. Are such competitions "contract actions" as defined in FAR 5.001? Must they be synopsized?

   1. I like C Culham's response, so I could argue they are, and if the agency wants to treat them like simple indefinite delivery vehicles like I did above then they must synopsize in enough detail to satisfy FAR 5.207.

3. Is it proper to refer to the firms responding to the solicitations as "offerors"?

   1. I wouldn't. If I was establishing a priced BPA, I would issue an RFQ and awkwardly call them "quoters".

4. Is it proper to say that such BPAs are "awarded"?

   1. Awarded seems fine to met. "Award" isn't mentioned in FAR 13.303, but is in FAR8.405-3.

5. With reference to Question 4--If not, how should COs describe the competition decision if it's not an "award" decision?

   1. I may also say "issued" or "established".

      Krimz