NMR Individual Waiver Approval - CBRND Commercial Equipt.pdf

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

March 3, 2025

Via Email: abbey.gallivan@gsa.gov

Ms. Abbey Gallivan Contracting Officer U.S. General Services Administration Assisted Acquisition Services, Federal Acquisition Service 10 Causeway Street Boston, MA 02222

RE: NMR Individual Waiver Request for brand name items for Chemical, Biological, Radiological and Nuclear Defense (CBRND) Commercial Equipment

Dear Ms. Gallivan:

On February 24, 2025, the U.S. General Services Administration (GSA) submitted a request to the U.S.

Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) for the purchase of a catalog of brand name commercial equipment items on behalf of the U.S. Army Joint Program Executive Office (JPEO), Chemical, Biological, Radiological, and Nuclear Defense (CBRND). The applicable North American Industry Classification System code for this procurement is 334519, Other Measuring and Controlling Device Manufacturing, and the estimated value of this procurement is $500 Million.

The waiver of the NMR on an individual procurement is provided for in section 8(a)(17) of the Small Business Act, 15 U.S.C. § 637(a)(17), and section 121.406(b)(5) of title 13 of the Code of Federal Regulations, 13 C.F.R. § 121.406(b)(5). At a minimum, an individual NMR waiver request must include the specific item to be waived, why 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).

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

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 supporting documentation. 13 C.F.R. § 121.1204(b)(1)(iii).

According to your submission, on behalf of JPEO-CBRND, GSA plans to procure a catalog of brand name commercial equipment as indicated in the catalog provided. GSA has identified that due to the brand name requirements for the specific commercial equipment required by the JPEO-CBRND client and mission, there is no small business manufacturer or processor that can be reasonably expected to offer a product or products meeting the specifications. This is because all orders will be for various, specific brand name items. No substitutions are allowed including offeror perceived “equal” products, as covered by Class Brand Name Justification numbered 47QFNA24K0047. The agency’s market research and previous acquisition history for JPEO-CBRND has shown that these items are of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purchases and have been sold or offered for sale to the general public, per FAR 2.101. Based on the responses to the RFI, the GSA acquisition team determined that if/when the RFP is released for the catalog of items, a set-aside for small business is likely to receive enough responses from responsible and technically capable small business to provide adequate competition. It is GSA’s intent to award a multiple-award IDIQ contract in accordance with FAR Part 12 utilizing FAR Part 15 procedures as a small business set aside. The contract will have a five-year ordering period.

Since GSA has demonstrated no small business can meet the specifications of the contract as a manufacturer, an individual waiver 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).

This individual waiver is good for the duration of the contract provided that it does not exceed five years. At the end of the fifth year, whether the contract is in the base period or an option period, the agency must submit and receive a new waiver before entering into the contract’s sixth year.

Notice of this waiver must be published with the solicitation so that potential offerors are aware of the waiver and the specific product(s) covered. 13 C.F.R. § 121.1206. 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.

All SBA programs and services are extended to the public on a nondiscriminatory basis. 3

This individual waiver must be used within one year of issuance. If that time period expires, the agency may request a waiver extension by contacting nmrwaivers@sba.gov. Please inform SBA of the date you enter a contract using the waiver, the contract number, the award value, the names of the awardees and their size status. Should you have any questions or require any additional information, please contact Timothy Berdan at 973-645-6064 or timothy.berdan@sba.gov.

Sincerely, Francine H. Morris Director, Office of Government Contracting mailto:nmrwaivers@sba.gov