Attachment-6 SBA NMR Waiver.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 13, 2022

VIA EMAIL: dpyates@fbi.gov

Mr. David P. Yates Division Contracting Officer Federal Bureau of Investigation National Acquisition Programs 4942 Fowler Road Huntsville, Alabama 35898

RE: Solicitation 15F06722R0000032A

Dear Mr. Yates:

On April 4, 2022, the Federal Bureau of Investigation (FBI) submitted a request to the U.S. Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) to purchase computer laptops. The FBI identified the applicable North American Industry Classification System (NAICS) code for this procurement as 334111 (Electronic Computer Manufacturing). This will be an indefinite-delivery indefinite-quantity with one base year and four possible one year option periods with a maximum estimated amount of $24,000,000.00.

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 mailto:dpyates@fbi.gov

All SBA programs and services are extended to the public on a nondiscriminatory basis. 2 manufacturer, to the Federal Government. 15 U.S.C. § 657s & 13 C.F.R. § 121.406(b)(7).

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 FBI’s submission, the FBI plans to purchase Apple brand desktop computers, laptops, tablets, and accessories to support its forensic examiners in the field of computer forensic investigations. Agents performing digital forensic analysis and investigative procedures require an operating system that is capable of analyzing devices that run on Microsoft Windows, Apple macOS, Android, Apple iOS and Linux. Apple macOS is the only operating system that is compatible with these systems. Moreover, Apple products can only be analyzed with Apple macOS. Lastly, Apple macOS is the only operating system that allows agents, computer scientists and forensic examiners to add tools through open-source package management software. Apple’s proprietary operating system is only licensed and designed to work with Apple computers. As the requirement is for brand name items and no company other than Apple manufactures Apple products, the FBI did not identify small business manufacturers that can meet the specifications of the contract. However, the FBI located several small business resellers that can provide these products.

As the FBI has shown there are no small businesses that could reasonably meet the specifications of the contract, an individual waiver is appropriate in this instance. This individual waiver applies to this one-time award only and to the specific product identified in the waiver request. This waiver 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

All SBA programs and services are extended to the public on a nondiscriminatory basis. 3 additional information, please contact Carol J. Hulme of my staff at (202) 205-6347 or Carol- Ann.Hulme@sba.gov.

Sincerely, Wallace D. Sermons, II Acting Director Office of Government Contracting mailto:Carol-Ann.Hulme@sba.gov mailto:Carol-Ann.Hulme@sba.gov