Indeed, the courts, the various boards of appeal and the recognized authorities in the field of public procurement are generally understood that a BPA does not bind any of the parties until an individual order is issued by the government and accepted by the contractor. See, for example.B. Potomac Computers, 94-1 BCA 26,304 (1993) (Recognizing that the provider could refuse to accept calls); Julian Freeman, 94-3 BCA 27280 (1994) (under an EPS, neither party actually commits or assumes any obligation to the other.); BPAs vs. IDIQs: To Interesting Choice, 24 NASH &CIBINIC REPORT 26 (In a broader discussion of the pros and cons of BPAs, the commentator points out that the use of this technique of course means that the contractor is not bound by contract, but it is of little importance to an agency if there are multiple contractors capable of performing the work.) In ace-Federal Reporters, ten contractors obtained agreements in response to a call for proposals issued by the U.S. General Services Administration. See 226 F.3d at 1330-31. The contractors of the winner have expressed their willingness to provide similar items at different prices at the request of the Government. Id. at 1330.

The contractors gained the advantage of having to compete with only one or four contractors, who were also on the schedule. Id. at 1332. Six of the contractors brought an action before a member of the contract staff, in which they alleged a breach of their contracts for unauthorized unsused purchases. Id. at 1331. The contract agent refused to take action, which led to an appeal to the Contract Board of the General Administration of Services (GSA). The Board of Directors found that there was no contract because no transaction was guaranteed to the contractors. Following this appeal, the United States Court of Appeals for the Federal Circuit decided that there was a contract. The Court of Appeal explained that the government, taking into account the contractors` promises in terms of price, availability, delivery and quantity, promised that it would only buy by the contractors according to the schedule, with a few exceptions. Id.

at 1332. (A) The order activity must offer each holder of several BPA distinctions a fair opportunity to be considered for each order exceeding the micro-purchase threshold, but which does not exceed the simplified acquisition threshold, unless one of the exceptions referred to in point 8.405-6 (a) (1) (i) is applicable. The FAR even goes so far as to set binding conditions for an EPS that clearly show that the BPA has no guarantee of performance. These include the obligation to attach [a] statement that the supplier must provide supplies or services which are described in general where and when the contract agent so requires. for a given period and in a specified total amount, if applicable. FAR 13.303-3 (a) (1) (highlighted here only). In this sense, the FAR provides that the BPA must declare that the government is only liable to the extent that the authorized purchases were actually made under the BPA. Id.

at 13.303-3 (a) (2) (highlighted only here). (ii) a description of the delivery or service acquired; BPAs are a simplified acquisition method. FAR 13.303; See Native Res. Dev., Inc., B-246597.2, B-246597.3, July 13, 1992, 92-2 CPD 15 to 10 n. 11. Agencies are not required to request proposals or hold a competition before establishing BPAs. Information system. Tech. Corp., B-280013.2, August 6, 1998, 98-2 CPD 36-3.

However, following the creation of a BPA, the competition requirements otherwise applicable to all BPA markets remain applicable. FAR 13.303-5 (a) (BPA may only be used for purchases authorized by law or regulation); Information system. Tech. Corp., a.a.O. In addition, the existence of a BPA does not justify the purchase of a single source. FAR 13.303-5 (c). If there are not enough BPAs established to ensure maximum competition, the contract agent must solicit offers from other sources if the purchase exceeds $2500. FAR 13.303-5 (d) (1). We find that the DEA`s use of BPAs to meet its hazardous waste clean-up requirements did not meet existing competition requirements in several respects. .

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