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    Hello, I work in construction and we have a MACC that has 8 awardees where we will award our construction projects to. We are running into an issue where there are two contractors that prodominantly win most of the awards. This is causing issues with those two contractors having a ton of projects they are working at the same time. In order for them to get on base and work these projects they have to be approved for a gate pass. The companies will ask for gate pass extensions and time extensions on these task orders because of their workload burden. This in-turn causes an admin burden for us. We want to know if we can solicit to the contractors that aren't winning to promote true fair opportunity. We have looked through FAR 16.505 and have found enough justification in our eyes to not solicit to every one of the 8 contractors, however it is a point of contention and I would like to get a professor's opinion on this.


    Answer

    This response is based on the information provided.  We suggest you discuss with your contracting team, program manager and/or legal department as appropriate. 

    We think you are asking if you can limit the Fair Opportunity to other than the two companies that are winning most of the IDIQ orders.  We believe you need to justify excluding two of the eight companies from submitting simply on the basis of "those companies always win".  FAR 16.505(b) does not offer a clear process to exclude offerors within the framework of data you provide here.  There is a reason those companies win.

    Can you do a set-aside for some opportunities that would preclude these companies from submitting an offer?  If not, i.e., one or both is a small business, you can look at the selection criteria you use to evaluate.  Based on your submission, these companies are struggling to meet schedule on awarded projects.  Schedule and past performance could be part of your streamlined evaluation criteria.

    Another possibility is Full and Open Competition After Exclusion of Sources.  That will require approval of Head of Agency or Designee.  See AFFARS 5316.505, AFFARS subpart 5306.2 and AFFARS 5306.304(a).

     

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