Attachment 2 - Nonmanufacturer Rule Waiver Approval.pdf

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

January 2, 2023

Via Email: gregory.johnson.68@us.af.mil

Mr. Gregory Johnson Director of Business Operations, Small Business Professional, Contracting Officer 354 Contracting Squadron Eielson Air Force Base, Alaska

RE: NMR Individual Waiver Request

Dear Mr. Johnson:

On December 26, 2023, the 354th CONS 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 Hardside Expandable Small Air Mobile Shelter (HESAMS) manufactured by AAR Corporation (AAR).

The applicable North American Industry Classification System code for this procurement is 332439, air cargo containers, light gauge metal, manufacturing, and the estimated value of this procurement is $779, 238.

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).

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, the 354th CONS plans to procure a HESAMS manufactured by AAR, a large business. The 354th CONS has identified the AAR HESAMS is the only product that will meet its needs. This is because these are the only shelters that meet the F-35 ALIS/OMS deploy-ability, facility, and security requirements. The 354th CONS has also located several small businesses that can provide the required AAR HESAMS as resellers or distributors.

mailto:gregory.johnson.68@us.af.mil

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

As the 354th CONS has demonstrated no small business can meet the specifications of the contract as a manufacturer, an individual waiver is appropriate in this instance. This waiver specifically applies to AAR HESAMS (58205-003). 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.

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.

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, and the actual dollar value of the contract. Should you have any questions or require any additional information, please contact Randall Miller at (907) 229-6939 or randall.miller@sba.gov.

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