Before the answer, I just want to say a conversation with the question submitter revealed they were put in a very difficult situation because the original solicitation and resultant contract(s) did not include critical information required to efficiently issue orders. Additionally, the submitter had done excellent research.

Also, another reminder, the AAP site has a fantastic search capability, please use it prior to submitting your question. There is a very good chance we’ve answered your question or something similar before. That way you get your answer(s) almost instantaneously. As an example, if only using the search term “fair opportunity” in this instance would have revealed 35 results, almost all of which would have provided the submitter enough information to go forward.

In general, this question highlights the importance of conducting adequate acquisition planning. FAR 7.105(b)(2)(i) Competition, FAR 7.1205(b)(3) Contract type selection, and FAR 7.105(b) Acquisition considerations [especially FAR 7.105(b)(5)(ii)(B)(2)] would have prepared the ordering activity prior to contract start on how to execute fair opportunity requirements. Remember, FAR 7.102(a)(2) requires agencies perform acquisition planning for “all acquisitions”. DFARS 207.103 provides the guidance on when a written acquisition plan is required for DoD. Note, always check your agency supplement to see if there is implementing or supplementing language for your specific agency.

I’ll provide a high-level response to 1 and 2 as a more detailed, structured response was provided via phone to the question submitter.

1. Do we need to conduct a market research or sources sought every time we have requirements to call out for new delivery orders?

Market Research: It depends on the dollar amount (above or below the SAT for order in question). See FAR 10.001(a)(2)(v). When required, that information is used to determine if you should set-aside that TO/DO see FAR 10.001(a)(3)(viii) and DFARS 210(a)(i)(B).

Sources Sought: Generally, “no”, see FAR 16.505(a)(1) (but see the exception) and FAR 5.202(a)(6). See FAR 5.301(d)(3) for posting a synopsis of award if not using fair opportunity.

On that note, the market research done prior to the acquisition is most likely still valid and can be used as a starting point to conduct targeted market research of individual orders when required.

2. Do we need to set-aside for small business if we have 2 or more responses from all of the MAC IDIQ contract holders?

In short, “no”, not necessarily. Here we need to follow the guidance at FAR 16.505(b) Orders under multiple award contracts.

First, we see the KO (contracting officer) has “broad discretion in developing appropriate order placement procedures.” See FAR 16.505(b)(1)(ii). These procedures should have already beeen in the basic contract(s), including an identification of scenarios of when the KO may choose to set-aside a particular order. See FAR 16.505(b)(1(ii)(D). (note: bold italics added for emphasis.)

{Unfortunately for the question submitter (who was not involved in the original award), it was revealed the original solicitation and resultant award of the basic IDIQ contracts did not include a description of the fair opportunity process (citation to do so below) or the requirement at FAR 19.504(a)(1) to identify whether order set-asides will be discretionary or mandatory. A fatal flaw of the original solicitation.}

FAR 16.505(b)(1)(i) The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding the micro-purchase threshold issued under multiple delivery-order contracts or multiple task-order contracts, except— (note: again, bold italics added for emphasis.)

FAR 16.505 (b)(1)(i)(B) Orders issued under 19.504(c)(1)(ii). This is the exception to fair opportunity if the KO chooses to set-aside the order. If we go to that citation we see that FAR 19.504(c)(1) says “the contracting officer may-“ see the definition of “may” at FAR 2.101, it denotes the permissive, meaning it is not mandatory. Again, the original solicitation lacked the language required by FAR 19.504(a)(1).

Remember, providing fair opportunity is a statutory requirement above the micro-purchase threshold. FAR 16.505(b)(2)(i) provides guidance on when an exception to that requirement might exist. See FAR 16.505(b)(2)(i)(D) satisfy minimum guarantees. See 16.505(b)(2)(i)(F) where it says KO’s “… may, at their discretion, set-aside…” (again, bold italics added for emphasis).

Note there is guidance in the DFARS tangentially related to your question and I’m sure there is some in the NMCARS as well. But it speaks more on what to do if the KO uses their discretion to set-aside the order.

3. If answer is yes to Question 2, then it would make almost all orders as set-aside since there are at least 6 small businesses that are contract holders and the rest are 3 large businesses.

Mute, due to answer for #2.

Final note; I refrained from using the words task or delivery in front of “order”. The question submitter used “delivery” but stated the contract was for repair and maintenance. If we see the definition of supplies at FAR 2.101 and service contract at FAR 37.101, it appears these are most likely task orders. See FAR 16.501-1.