Government agencies often establish Blanket Purchase Agreements (BPAs) with General Services Administration (GSA) Federal Supply Schedule (FSS) contractors to meet their repetitive procurement needs in a flexible and streamlined manner. Such BPAs may be single or multiple award and may be utilized by one or more agencies with a period of performance of up to five years. The Federal Acquisition Regulation (FAR) 8.405-3, which contains ordering procedures for BPAs established under FSS contracts, states that a single award BPA may not exceed one year, although it may have up to four one-year options. Contractors should be mindful that such BPAs are not contracts in and of themselves and are awarded against and tied to a contractor’s underlying GSA FSS contract. In this regard, FAR 8.405-3(d)(3) provides that schedule contractors may be awarded BPAs that extend beyond the term of their FSS contract only if there are option periods remaining in their FSS contract that, if exercised, will cover the BPA’s period of performance. Consequently, if an FSS contractor’s schedule contract, including its options, is set to expire before the end of the BPA’s period of performance, then that contractor is ineligible to receive a BPA award.

Contractors frequently form joint ventures to respond to federal contracts solicitations that require the submission of past performance information. Since joint ventures are entities separate from their member firms, created in many instances to pursue specific federal opportunities, they may not have the necessary past performance history. As a result, joint ventures often rely upon the past performance history of their individual member firms. Meanwhile, procuring agencies are generally permitted to consider the past performance history of individual member firms during evaluation. This is true even when the solicitation expressly limits the use of past performance information to contracts performed as a prime contractor. When responding to such solicitations, joint ventures may utilize the past performance history of their individual member firms, as long as the member firm was a prime contractor on the referenced contract, and the past performance information is reasonably predictive of the quality of the joint venture’s future performance under the contract being awarded. Similarly, if reasonably predictive of performance, joint ventures may use the past performance history of their individual members, even when those members earned it as members of a different joint venture. Contractors should be mindful that while joint ventures can usually submit the past performance history of their member firms, an exception to this general rule is if the solicitation contains an express provision prohibiting the use of such past performance information.

Solicitations for federal contracts often contain provisions that generally require compliance with all state and local laws, including obtaining all state and local licenses or permits necessary for performance. The Federal Acquisition Regulation (FAR) contains a permits and responsibilities clause at FAR 52.236-7, which requires contractors to obtain state and local licenses or permits relevant to the work being performed, which provides in pertinent part:

“The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work.”

When included in federal solicitations, FAR 52.236-7 or similar provisions that generally mandate a contractor’s compliance with state and local laws, such as by obtaining licenses or permits, do not require offerors to demonstrate compliance prior to award. This is because such matters are considered a matter of contract administration, only applicable to the successful contractor during the performance phase of the contract. Furthermore, such general solicitation provisions concerning state and local licenses have no impact on the procuring agency’s award decision, except as a general matter of responsibility. Thus, unless the solicitation specifically instructs otherwise, offerors need not obtain state and local licenses or permits before contract award on account of these general provisions.