GAO: Federal Supply Schedule Shorter in Duration than Blanket Purchase Agreement Spells Doom for Protester

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Many GAO protests can hinge on fairly minute details that render a proposal unacceptable. A recent GAO case is a reminder that a contractor’s GSA Federal Supply Schedule must have sufficient duration to cover the period of performance for a blanket purchase agreement or the contractor may be ineligible for award.

In GBK Partnership, LLC-Constant Associates, Inc., B-417039 (Comp. Gen. Jan. 24, 2019), GAO considered the EPA’s RFQ to establish a blanket purchase agreement (BPA) under the GSA’s Professional Services Federal Supply Schedule (FSS) for environmental training and consulting services. GBK challenged its exclusion from the competition.

Under the BPA, EPA would place fixed-price orders up to a not-to-exceed amount of $8 million. Under the RFQ language, “[t]he period of performance of this [BPA] shall be from the date of award or 10/01/2018 (whichever is later) through 09/30/2019 unless the optional periods are exercised in accordance with [Federal Acquisition Regulation (FAR) clause] 52.217-9.”

FAR 8.405-3(d)(3) provides that: “[c]ontractors may be awarded BPAs that extend beyond the current term of their GSA Schedule contract, so long as there are option periods in their GSA Schedule contract that, if exercised, will cover the BPA’s period of performance.” A corresponding GSA FSS contract clause, I-FSS-646, provides a similar rule.

After EPA asked for clarification from GSA, GSA indicated “that GBK’s applicable FSS contract is effective through August 18, 2022, with no additional option periods remaining.” Based on this information, the EPA contracting officer determined that GBK was ineligible for the BPA “because the potential period of performance of the resulting BPA would exceed the period of GBK’s FSS contract.”

GBK filed a GAO bid protest challenging the EPA’s decision. GBK argued “that the BPA’s period of performance should be interpreted as only the base period of performance, unless and until any of the four potential option periods are exercised.” So, its FSS only had to cover the base year of the BPA’s performance period.

Not surprisingly, the EPA and GSA argued that the FSS must have sufficient period of performance to cover the entire period of performance for the BPA, including all options.

GAO, siding with the EPA and GSA, held that the FSS must cover the entire period of performance for the BPA. Here, the RFQ “does not reasonably support the protester’s interpretation that the RFQ sought to exclude the option periods from the BPA’s anticipated period of performance. Rather, the RFQ, when read in reasonable context, conveys that the BPA’s period of performance anticipates a base and four optional periods.”

GBK was ineligible for award because its FSS contract, which expires in August 2022, does not have sufficient duration to cover the entire period of performance of the resulting BPA, which if all options are exercised would expire in September 2023. The protest was denied. This one detail, matching up the end date of the FSS with end date of the BPA, made the difference in potentially getting a contract award versus being excluded from competition.

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