Individual Waiver_36C24521Q0350 WS 4.23 Rev.pdf

All SBA programs and services are extended to the public on a nondiscriminatory basis. 1

Office of Government Contracting and Business Development | 409 3rd Street SW | Washington DC 20416

April 23, 2021

VIA EMAIL: Bradley.Fasnacht2@va.gov

Mr. David J. Valenciabonilla Contracting Officer

U.S. Department of Veterans Affairs

Veterans Health Administration

50 Irving Street NW

Washington, DC 20422

RE: Solicitation 36C24521Q0350

Dear Mr. Valenciabonilla:

On April 12, 2021, the U.S. Department of Veterans Affairs (VA) submitted a request to the U.S. Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) for the purchase of television sets. This submission was amended on April 21, 2021. The VA identified the applicable North American Industry Classification System (NAICS) code for this procurement as 541519 (Other Computer Related Services). The estimated value of this procurement is $632,625.76.

Firms supplying products to the Federal Government must either be the manufacturer of the product or (under the NMR) be a small business supplying the goods manufactured by another small business.

15 U.S.C. § 637(a)(17) & 13 C.F.R. § 121.406 (a) & (b). The NMR applies to socioeconomic categories for contracts valued above the micropurchase threshold. The rule applies to both socioeconomic categories and small businesses above the simplified acquisition threshold. 13 C.F.R. § 121.406(c). A waiver to the NMR permits a small business to supply products of another manufacturer, regardless of the size of the manufacturer, to the Federal Government. 15 U.S.C. § 657s & 13 C.F.R. § 121.406(b)(7).

All SBA programs and services are extended to the public on a nondiscriminatory basis. 2

The procedure for obtaining an individual waiver is provided in 13 C.F.R. § 121.1204. At a minimum, an individual NMR waiver request must include the specific item to be waived, the reason the specific item is required, the proposed solicitation number, the NAICS code, the dollar amount of the procurement, a brief statement of the procurement history, and a Statement of Work (for contracts expected to exceed $500,000). 13 C.F.R. § 121.1204(b)(1). In addition, the contracting officer must provide a determination that no small business manufacturer can reasonably be expected to offer the product(s) required under the solicitation. This determination must be supported by a narrative of market research and by providing supporting documentation. 13 C.F.R. § 121.1204(b)(1)(iii).

According to the VA’s submission, the VA plans to procure television sets and hardware for a facility-wide upgrade. This equipment will replace the existing outdated equipment and improve available technology by providing built in cameras for video communications. The VA has identified

GetWellNetwork, Inc’s products and software as the product that will meet its needs as it is compatible with GetWell televisions already in place.

However, there are no small business manufacturers that can produce this product as

GetWellNetwork, Inc., is the sole manufacturer. As such, there is no reasonable expectation that a small business could meet the specifications of the solicitation as a manufacturer. As the VA has demonstrated there are no small business manufacturers capable of meeting the specifications of the contract, a waiver of the Nonmanufacturer Rule is appropriate in this instance.

This individual waiver applies to this one-time award only and does not apply to modifications to the scope of the contract or other procurement actions. Modifications determined by the contracting officer to be within the scope of the contract will require an additional waiver. 13 C.F.R. § 121.1203(b).

The effect of this waiver is to allow an otherwise qualified small business to supply the product of an other-than-small manufacturer or processor on this intended small business set-aside contract.

However, it must be emphasized that this waiver of the NMR does not waive other legal requirements applicable to Government procurements, such as the Buy American Act and the Trade Agreements Act.

13 C.F.R. § 121.406(b)(7).

This individual waiver is effective for the duration of the contract and must be used within one year of issuance. Please inform SBA of the date you enter a contract utilizing the waiver, the contract number, and the actual dollar value of the contract. Should you have any questions or require any additional information, please contact Carol J. Hulme of my staff at (202) 205-6347 or Carol- Ann.Hulme@sba.gov.

Sincerely, David Wm. Loines Director Office of Government Contracting mailto:Carol-Ann.Hulme@sba.gov mailto:Carol-Ann.Hulme@sba.gov