Government Contracts Jobs Act Consolidation Analysis Not Required for BPA Awards
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Thursday, August 29, 2019

Jobs Act Consolidation Analysis Not Required for BPA Awards

By Government Contracts Editorial Staff

The government was not required to perform a Small Business Jobs Act consolidation analysis for an information technology procurement, because the request for quotations contemplated the award of blanket purchase agreements, not contracts. The RFQ was issued under the Federal Supply Schedule utilizing FAR Subpart 8.4 procedures and was limited to vendors holding schedule No. 70 contracts. The nine BPAs, valued at $5.5 billion, contemplated the supply of a “total solution” for IT equipment, software, and ancillary supplies and services. According to the protester, the government failed to comply with provisions of the SBJA of 2010 that require agencies to consider the effect on small businesses of the consolidation of contract requirements for over $2 million (15 USC 657q). The government relied on the final rule in FAR Case 2014-015, Consolidation and Bundling (¶70,002.193), which states the definitions of “bundling” and “consolidation” in 15 USC 632(o) and 657q and the Small Business Administration’s regulations refer only to “contracts” when addressing bundling and consolidation, and contended BPAs are not contracts. SBA maintained there was a consolidation “because the eventual orders issued off the BPA will be limited to competition among the nine BPA awardees,” and the term “contract” in the consolidation definition “applies here to the IT70 contracts affected by the BPA.”

Not Contracts. The Comptroller General denied the protest, finding SBA’s interpretation was not supported by the applicable authority. The rule was finalized after SBA issued its regulations implementing the SBJA and revising its regulations on contract consolidation and bundling, and it incorporated SBA’s regulatory changes. SBA 125.1 provides that “contract” “has the same definition as set forth in FAR 2.101 and “includes orders issued against Multiple Award Contracts and orders competed under agreements where the execution of the order is the contract (e.g., a [BPA] …).” Accordingly, task orders issued under the BPAs are contracts, but the BPAs are not. The Comptroller General concluded “a consolidation analysis is not required prior to establishment of a BPA—which is not a contract, according to the SBA’s definition of a contract—but rather, … the required consolidation analysis is to be performed at the task order level. Accordingly, while practical implications of such an approach may prove burdensome to agencies, based on this record, we conclude [the government] was not required to perform a consolidation analysis prior to issuing the RFQ.” (Coast to Coast Computer Products, Inc., 34 CGEN ¶116,488)

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