Protest challenging the award of a blanket purchase agreement (BPA) is sustained. The BPA had a period of performance that ended in 2025. The awardee had two FSS contracts, one that ended in 2023 and another that ended in 2025. The BPA was based only on the first FSS contract. GAO found that the award of the BPA was improper because the awardee’s underlying FSS contract, which ended in 2023, did not cover the BPA’s full period of performance. Moreover, while vendors may have overlapping FSS contracts, they are not permitted to stack two FSS contracts for a single BPA. Rather, the first-awarded FSS contract must be used for existing BPAs. Only the second FSS contract be used for a new BPA.
The Social Security Administration (SSA) issued a request for quotations to vendors holding contracts under GSA FSS No. 70, Information Technology. The RFQ sought to establish a single BPA for laptops and workstations. The RFQ stated that in order to be eligible for award, a vendor’s FSS contract had to be operative through 2025.
New Tech Solutions, Inc. submitted a quote in response to the RFQ. New Tech’s quote stated that it had an existing FSS that ended in 2023. But right before the closing date for proposals, New Tech had been awarded a new FSS Information Technology contract that extended through 2039. Based on these two contracts, the SSA concluded that New Tech was eligible for to perform a BPA that extended to 2025. The SSA then awarded the BPA to New Tech.
A disappointed bidder, NCS Technologies, protested the award to New Tech. NCS alleged that the award to New Tech was improper because the SSA had established a BPA under New Tech’s first FSS contract, which expired 2023. That FSS contract did not include a sufficient period of performance to cover the BPA, which ended in 2025. NCS claimed the award violated the RFQ’s period of performance as well as FAR 8.405-3(d)(3), which states that contractors can only be awarded a BPA that extends beyond the term of the FSS contract if the FSS contract has unexercised option periods that cover the BPA’s period of performance.
GAO agreed with NCS. As an initial matter, the record clearly showed that the SSA established the BPA under New Tech’s first FSS contract. New Tech’s final quote was based exclusively on the first FSS contract. That contract, however, did not have a sufficient period of performance to cover the BPA. As result, New Tech’s quote was ineligible for award. While the SSA made note of New Tech’s second FSS contract in the “supplies and services” section of the BPA, GAO found that this did not alter the basis on which the BPA was established.
GAO was also not persuaded by the SSA’s argument that it could establish a BPA under two FSS contracts. GAO noted that while FAR 8.405-3(d)(3) allows for the establishment of BPA that extends beyond the term of an FSS contract, that section only allows for a BPA to be established under one contract, not multiple FSS contracts.
To be sure, GAO opined, GSA regulations allow vendors to hold continuous or overlapping FSS contracts. But those regulations are also clear that a vendor can only use the first FSS contract to complete work for an existing BPA. And it can only use the second FSS contract for new business. A vendor cannot use the first FSS contract to complete a portion of a new BPA, and it cannot stack multiple FSS contracts for a single BPA.
The SSA argued that it could have properly established a BPA under New Tech’s second FSS contract. Thus, the agency concluded, the establishment of the BPA under the first contract should simply be disregarded as minor procurement deficiency.
GAO took a dim view of his argument. New Tech had been awarded the second FSS contract when it submitted it final quotation revision, but it did not revise the quote so that it was based on the second FSS contract. A contractor bears the burden of submitting an adequately written proposal that includes information necessary for it proposal to be evaluated. Indeed, GSA had advised agencies and contractors that vendors who hold overlapping FSS contracts must not use the first contract to compete for new business. The fact that SSA later learned of New Tech’s second FSS contract did not excuse New Tech’s failure to revise its quote.
NCS is represented by Thomas K. David, Kenneth D. Brody, and Katherine A. David of David, Brody & Dondershine, LLP. The intervenor, New Tech, is represented by William T. Welch and Johana A. Reed, McMahon of Welch and Learned, PLLC. The government is represented by Dorothy M. Guy, Tal Kedem, and Alice Somers of the Social Security Administration as well as Jennifer L. Howard of the General Services Administration. GAO attorneys April Y. Shields and Christina Sklarew participated in the preparation of the decision.
