Attachment6 J-L3 Individual Waiver Approval.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

March 28, 2023

VIA EMAIL: Stephenie.W.Charlot.civ@mail.mil

Ms. Stephenie Charlot, Contracting Officer Department of Defense Washington Headquarters Services 1155 Defense Pentagon Washington, DC 20301-1155

RE: Solicitation No. HQ003423R0002

Ms. Charlot:

On March 2, 2023, the Department of Defense (DOD) Washington Headquarters Services (WHS) submitted a request to the U.S. Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) for the purchase of Standard and Arc Flash Uniforms. The applicable North American Industry Classification System code for this procurement is 315210 – Cut and Sew Apparel Contractor.

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).

mailto:Stephenie.W.Charlot.civ@mail.mil

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

According to your request, the WHS plans to establish a firm-fixed price Blanket Purchase Agreement to procure “Arc Flash (AF) and standard (non-AF)” uniforms. This will entail providing a uniform distribution system to include contractor delivery and tracking all uniform pieces/parts for accurate distribution to WHS personnel, and providing safety compliant, durable, and professional appearance uniforms that comply with the Berry Amendment Act. WHS has identified Standard and Arc Flash Uniforms as the only product that will meet its needs.

This is a multiple item procurement (i.e., coveralls, pants, shirts, nametags, patches) and WHS has stated that there is no reasonable expectation that a small business manufacturer or processor can reasonably be expected to manufacture all of these items in the time frame required. Market research included a Sources Sought Notice (SSN) being posed on SAM.gov for 45 days and a search of the Thomas Industry Index (www.thomasnet.com). Several small businesses were found to be capable of manufacturing one or more pieces of the uniform items, however, this is a multiple item procurement and WHS found that there is no reasonable expectation that a small business manufacturer or processor can reasonably be expected to manufacturer at least 50 percent of the total contract value as required under 13 CFR 121.406(d).

As WHS has demonstrated no small business can meet the specifications of the contract as a manufacturer in the quantity and time frame required, 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.

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.

http://www.thomasnet.com/ mailto:nmrwaivers@sba.gov

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

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 Bernard Durham of my staff at 202 510-0292 or Bernard.Durham@sba.gov.

Sincerely, For Wallace D. Sermons, II Deputy Director Office of Government Contracting mailto:%20Bernard.Durham@sba.gov mailto:%20Bernard.Durham@sba.gov