Multiple award schedules

Army Lawyer, Jan-Feb, 2003

Electronic Listing of Multiple Agency Use Contracts

In February 2002, the Federal Acquisition Regulatory Council (FARC) issued a proposed amendment to the Federal Acquisition Regulation (FAR) (1) that would require electronic listings of multiple agency use contracts. (2) The proposed rule requires contracting activities to provide the information online within ten days of the award of a procurement instrument intended for use by multiple agencies. (3) The Web site would include information about the procurement instrument, placing orders, and other general information. The FARC proposes placing the new subpart in Federal Acquisition Regulation part 5, Publicizing Contract Actions, but is also considering inserting this database in FAR part 4, Administrative Matters, and FAR part 7, Acquisition Planning. (4)

We're Not In Kansas Anymore

The Department of Defense Acquisition Council (DDAC) and the Civilian Agency Acquisition Council (CAAC) issued a final rule that requires the development of acquisition plans and an information technology acquisition strategy for orders placed under a Federal Supply Schedule (FSS) contract. (5) All "information technology acquisitions shall comply with capital planning and investment control requirements" (6) and Office of Management and Budget (OMB) Circular A-130. (7) The rule excludes FSS orders using simplified acquisitions procedures under FAR part 13 and small business programs under FAR part 19. (8) Although orders placed under Multiple Award Schedule (9) (MAS) procedures are still considered full and open competition, (10) FFS orders are not exempt from the fair opportunity competition requirement. Contracting officers must ensure that all awardees have a fair opportunity (11) to compete for a delivery-order or task-order exceeding $2500 unless an exception applies. (12) Contracting officers must also document the rationale for the order, the price, any tradeoffs, and the basis for the award. The contracting officer must also have a documented rationale for authorizing fair opportunity or logical follow-on exceptions. (13) The new rules will increase contracting officers' procedural responsibilities.

Competition Required Among FSS Vendors

The Defense Acquisition Regulations Council (DARC) recently proposed an amendment the Defense Federal Acquisition Regulation Supplement (14) (DFARS) to require competition for FSS service contracts exceeding $100,000. (15) The amendment implements section 803 of the National Defense Authorization Act for Fiscal Year 2002. (16) The rule requires award on a competitive basis unless an exception (17) applies or a statute expressly authorizes or requires the purchase from another source.

A competitive basis requires agencies to give contractors fair notice of the intent to purchase, a description of the work the contractor must perform, and the basis for selection. All responding contractors must have a fair opportunity to submit an offer and have that offer fairly considered. Alternatively, a competitive basis requires the contracting officer to notify as many contractors on the schedule as practicable and receive offers from at least three qualified contractors. (18) If fewer than three qualified contractors submit offers, the contracting officer must determine whether he could identify additional qualified contractors through reasonable efforts. The contracting officer must provide written documentation when he determines that reasonable efforts would not reveal additional qualified contractors. (19)

Contracting officers are authorized to establish single and multiple blanket purchase agreements (BPAs) against the FSS if they meet the competitive basis and fair notice requirements. In addition, for single BPAs, the statement of work must define the task and establish a firm-fixed price for identified tasks or services. For multiple BPAs, all awardees must receive the statement of work and selection criteria on the FSS before the contracting officer places an order. (20)

It's Not Incidental

The CAAC and the DARC recently issued a final rule governing incidental purchases from FSS vendors and disputes with FSS vendors. (21) The final rule authorizes incidental orders from a FSS BPA or a task or delivery order if the agency follows the non-FSS acquisition rules. The contracting officer must also determine that the price of the incidental items is fair and reasonable, clearly identify the non-FSS items on the order, and include all applicable FSS clauses. (22)

The final rule also adds a section regarding the disposition of disputes under the FSS. The ordering contracting officer may issue a final decision or refer the dispute to the schedule contracting officer. The rule refers disputes relating to contract terms and conditions to the schedule contracting officer. The rule also encourages parties to use alternative dispute resolution to the maximum extent practicable. Contracting officers are authorized to appeal final decisions to the agency's Board of Contract of Appeals or the U.S. Court of Federal Claims. (23)