Subpart 538.71— Federal Supply Schedule Ordering Procedures 

Note. The Revolutionary Federal Acquisition Regulation Overhaul (RFO) was used for purposes of providing citations to the FAR.  The RFO is available at https://www.acquisition.gov/far-overhaul

538.7100 Scope of subpart.

This subpart prescribes the procedures for placing orders and establishing blanket purchase agreements (BPAs) against Federal Supply Schedule (FSS) contracts. Learn more about the FSS program at http://www.gsa.gov/schedules. 

538.7101 Definitions. 

As used in this subpart—

Ordering activity means an entity that is eligible to place orders or establish BPAs against FSS contracts.

Order-level materials (OLMs) means products, services, and/or solutions (a combination of products and/or services) acquired in direct support of an order placed against a FSS contract, including orders under FSS BPAs, when the products, services, and/or solutions are not known at the time of FSS contract or FSS BPA award. OLM pricing is not established in FSS contracts or FSS BPAs.

538.7102 General.

538.7102-1 FSS program. 

(a) The procedures in this subpart constitute competitive procedures and meet the requirements of the Competition in Contracting Act (see 41 U.S.C. 152(3)). 

(b) Unless otherwise prescribed, FAR parts 5, 6, 14, 15, 16, and 19 do not apply to this subpart. 

(c) Requirements that substantially or to a dominant extent specify performance of architect-engineer services (as defined in FAR 2.101) are not within scope of the FSS program (see 40 U.S.C. 1103 note).

(d) Two or more FSS contractors can combine their offerings and propose a FSS contractor team arrangement (CTA) to meet an ordering activity’s needs. Learn more about FSS CTAs at http://www.gsa.gov/schedules.

(e) In performance of a FSS order, including orders under FSS BPAs, a FSS contractor may acquire products, services, or solutions from other FSS contractors.

(f) The Governmentwide commercial purchase card or other authorized means may be used—

(1) As a payment mechanism for orders, regardless of dollar amount, subject to any applicable limitations (e.g., limitations established by the FSS BPA, ordering activity policies, or the Governmentwide commercial purchase card program). 

(2) To place orders, regardless of dollar amount subject to any applicable limitations (e.g., limitations established by the FSS BPA, ordering activity policies, or the Governmentwide commercial purchase card program).

538.7102-2 Placing FSS orders and establishing FSS BPAs

(a) To solicit quotations for orders and BPAs against FSS contracts, issue a Request for Quotation (RFQ). A quotation is not an offer. Consequently, the procedures described in this subpart are not considered negotiations or source selection. Ordering activities are not required to have evaluation plans, score quotations, or establish a competitive range before communicating with quoters or soliciting revised quotations. To maximize efficiency, ordering activities are encouraged to use innovative RFQ approaches when placing orders and establishing FSS BPAs. Learn more about innovative RFQ approaches in the Periodic Table of Acquisition Innovations at https://acquisitiongateway.gov/periodic-table. 

(b) Ordering activities must—

(1) Follow FAR parts 4, 7, 10, and 11, to the extent necessary, for purposes of planning, conducting market research, and defining their needs. For example, ordering activities may use FSS e-tools (e.g., GSA Advantage!®) to search for and compare products, services, and solutions offered under the FSS program.

(2) Comply with the requirements of FAR 12.104(b) when placing an order, including orders under FSS BPAs, using a contract type other than fixed-price.

(3) Check the System for Award Management (SAM.gov) for active contractor exclusion records prior to award.

(4) Award the FSS order to (or establish the FSS BPA with) the FSS contractor that represents the best value (as defined by FAR 2.101) and notify any unsuccessful quoters.

(5) Document the file to the extent necessary to support the award decision, such as demonstrating that each quotation submitted by an FSS contractor in response to an RFQ was fairly considered. See 538.7104-3 for additional documentation requirements when the order is to be placed, or FSS BPA established, on a sole source basis.

(6) If an unsuccessful quoter requests information on an award within 3 days after the date on which that quoter received notification of contract award, provide a brief explanation of the award decision that explains why the unsuccessful quoter was not selected. 

(c) Ordering activities may—

(1) Set aside, reserve or otherwise place orders or establish FSS BPAs with small business concerns identified in FAR part 19.

(2) Seek further price discounts or other concessions before placing an order or establishing a FSS BPA.

(3) Place orders orally when using the procedures in 538.7103-1 or 538.7103-2(a).

(d) Ordering activities are not required to—

(1) Determine contractor responsibility at the order level or BPA level as contractor responsibility has been determined at the FSS contract level. 

(2) Make a fair and reasonable price determination for FSS products, services, or solutions at the order level or BPA level as FSS contract pricing has been determined fair and reasonable.

538.7103 Procedures.

These procedures apply to placing orders and establishing BPAs against FSS contracts. See 538.7104-1(d) for placing orders against FSS BPAs. 

538.7103-1 Acquisitions valued at or below the micro-purchase threshold. 

(a) Place order or establish BPA with any FSS contractor that can meet the need. 

(b) Although not required to solicit from a specific number of FSS contractors, ordering activities should attempt to distribute orders among FSS contractors.

538.7103-2 Acquisitions valued above the micro-purchase threshold, but not above the simplified acquisition threshold (SAT).

(a) When the product, service, or solution is clearly defined and is available for purchase at a fixed-price (e.g., capability-as-a-service, subscription, training) place the order after—

(1) Considering reasonably available information about the product, service, or solution by surveying three or more FSS contractors on GSA Advantage!®; 

(2) Considering reasonably available information about the product, service, or solution by reviewing the FSS contract catalogs of three or more FSS contractors; 

(3) Publishing an RFQ on GSA’s eBuy; or

(4) Issuing an RFQ to three or more FSS contractors. 

     (b) When the product, service, or solution is not clearly defined, involves OLMs, requires a statement of objectives, statement of work, or performance work statement, or is not available for purchase at a fixed-price— 

(1) Publish an RFQ on GSA’s eBuy; or 

(2) Issue an RFQ to three or more FSS contractors. 

     (c) When the product, service, or solution is to be procured on a sole source basis, execute a justification in accordance with 538.7104-3(a).

538.7103-3 Acquisitions valued above the SAT.

     (a) Unless a justification is executed and approved in accordance with 538.7104-3(b)—

(1) Publish an RFQ on GSA’s eBuy; or

(2) Issue an RFQ to as many FSS contractors offering the product, service, or solution as practicable, to reasonably ensure that quotations will be received from at least three FSS contractors. If fewer than three quotations are received, document the file by describing how no additional FSS contractors capable of meeting the need could be identified despite reasonable efforts taken.

     (b) RFQs must describe the work to be performed and the basis on which selection will be made.

     (c) Fairly consider all quotations received by evaluating and making award according to the basis described in the RFQ. 

538.7104 Additional requirements.

538.7104-1 FSS Blanket purchase agreements.

This section outlines additional requirements specific to FSS BPAs. FSS BPAs may be established with one or more FSS contractors to fill repetitive needs. FSS BPAs shall be established in accordance with the procedures in 538.7102-2 and 538.7103. 

(a) Content requirements. FSS BPAs must, at a minimum, include—

(1) Sufficient detail about the need, such as scope of work;

(2) An ordering period, inclusive of any options or award terms; 

(3) Ordering activity requirements (e.g., invoicing, delivery, and discounts/other concessions) that are not otherwise included in the FSS contract; and

(4) Ordering procedures that—

(i) Identify the customers/individuals authorized to place orders and any limitations surrounding the placement of orders; 

(ii) For multiple-award BPAs, ensure that orders above the SAT are solicited from— 

(A) all BPA holders; or

(B) as many BPA holders as practicable and document when three qualified BPA holders were not solicited.

(b) Duration. FSS BPAs may be established with an ordering period that extends beyond the current term of a contractor’s FSS contract, so long as there are option periods in the contractor’s FSS contract that, if exercised by the FSS contracting officer, will cover the FSS BPA's ordering period, including options and award terms.

(c) Review. On an annual basis or prior to exercise of an option or award of an award term, FSS BPAs must be reviewed and a written determination made as to whether—

(1) The BPA still represents the best value; 

(2) Estimated quantities/amounts have been reached or exceeded; 

(3) The BPA ordering procedures are being followed;

(4) Additional price discounts or other concessions can be obtained; and

(5) The FSS contract, against which the BPA is established, is still in effect.

(d) Ordering. When placing orders against multiple-award FSS BPAs, follow the ordering procedures established by the FSS BPA.

538.7104-2 Order-level materials. 

(a) Mandatory requirements. For OLMs to be included in an order—

(1) They must not be the primary purpose of the order;

(2) They must be clearly identified in the order as items not on the contractor’s FSS contract or FSS BPA; and

(3) A fair and reasonable price determination must be made for each authorized OLM, but is not required prior to award of the order; and. 

     (b) Optional requirements. The ordering activity should— 

(1) Authorize FSS contractors to acquire OLMs from priority sources under FAR part 8. Ordering activities do not need to authorize FSS contractors when OLMs are acquired under 538.7102-1(e). 

     (2) Include any additional requirements governing the OLMs being ordered that are not otherwise included in the contractor’s FSS contract or FSS BPA. 

538.7104-3 Sole source justifications.

Orders placed or BPAs established against FSS contracts are exempt from the requirements in FAR part 6. However, an ordering activity must justify its action when awarding on a sole source basis in accordance with this subsection.

(a) Exceeding MPT, but not exceeding the SAT.  The ordering activity contracting officer must determine in writing that the circumstances of the acquisition deems only one source reasonably capable of providing the products, services, or solutions (e.g., urgency, exclusive licensing agreements, items particular to one manufacturer).

(b) Exceeding the SAT. (1) Statutory exceptions. The statutory exceptions supporting the placement of an order or establishment of a FSS BPA that exceeds the SAT on a sole source basis are:

(i) The need is of such unusual urgency that following the procedures would result in unacceptable delays in fulfilling that need;

(ii) Only one source is capable of providing the products, services, or solution required at the level of quality required because the products, services, or solutions are unique or highly specialized; 

(iii) The order should be issued on a sole source basis in the interest of economy and efficiency because it is a logical follow-on to an FSS order already issued on a competitive basis;

(iv) It is necessary to place the order with a particular FSS contractor to satisfy a minimum guarantee established in the FSS BPA; or

(v) A law expressly authorizes or requires that the purchase be made from a specified source.

(2) Content requirements. Justifications must be in writing and include sufficient detail and supporting rationale to support the exception used.

(3) Publication requirements. (i) Justifications must be made publicly available within 14 days after award, except—

(A) For justifications made under paragraph (b)(1)(i) of this subsection, which must be posted within 30 days after contract award; and

(B) When publication is not required. Publication is not required in the event of extraordinary circumstances or where publication would compromise national security (e.g., would result in disclosure of classified information or create other security risks). 

(ii) Justifications must be made publicly available—

(A) At the Government-wide Point of Entry (GPE); or

(B) On the website of the ordering activity, which may provide access to the justifications by linking to the GPE; and

(C) For a minimum of 30 days.

(iii) Before publication, justifications must be carefully screened—

(A) To identify and remove any contractor proprietary data, including references and citations as are necessary to protect such proprietary data. 

(B) To determine whether the justification, or portions of the justification, are exempt from publication under any of the exemptions to disclosure of information contained in the Freedom of Information Act (5 U.S.C. 552) and the prohibitions against disclosure contained in FAR part 24.

538.7104-4 Items peculiar to one manufacturer.

(a) General. An item peculiar to one manufacturer can be a particular brand name, product, or a feature of a product, peculiar to one manufacturer. A brand name item, whether available on one or more schedule contracts, is an item peculiar to one manufacturer.

(b) Requirement. Items peculiar to one manufacturer must not be acquired unless—

(1) The particular brand name, product, or feature is essential to the ordering activity’s requirements, and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the need; and

(2) The file is documented accordingly— 

     (i) If the order is to be placed (or FSS BPA established) competitively, the file must be documented concerning the basis for restricting consideration to an item peculiar to one manufacturer, or 

     (ii) If the order is to be placed (or FSS BPA established) on a sole source basis, a justification must be executed in accordance with 538.7104-3. 

538.7105 Disputes.

(a) Disputes. Under the Disputes clause of the FSS contract, the ordering activity contracting officer must— 

(1) Consult with the FSS contracting officer prior to resolving a dispute arising under or relating to an FSS order that requires interpretation of material FSS contract terms or involves a significant FSS contract administration issue.

(2) Issue any final decision on a dispute arising under or relating to an FSS order, unless the FSS contracting officer agrees, after consultation with the ordering activity contracting officer, to issue the final decision.

     (b) Appeals. Contractors may appeal final decisions to either the Board of Contract Appeals servicing the agency that issued the final decision or the U.S. Court of Federal Claims.

     (c) Alternative dispute resolution. The ordering activity contracting officer should use the alternative dispute resolution (ADR) procedures, to the maximum extent practicable.