RFQ HC101925R0007 Q-A 62-63_5.27.26.pdf

RFQ HC101925R0007 – DISA-PAC VIDEO WALL – Questions and Answers (Q+A)

Q62:

The spares required in the SOW are DELIVERABLES under contract. Thus, they must be DELIVERED to the GOVERNMENT at the place of delivery. At that time, they become the PROPERTY of the government.

GFE cannot be stored off-site at the vendor's facility. GFE, especially GFE that is certified for use in a SECRET facility, must remain under government control.

Please revise the SOW to allow delivery of spares to the government. Where the government stores them is their decision, however, they fit in a small 3-4 cu. ft box that would make sense in the rack room behind the video wall.

In summary, requiring the VENDOR to store GFE at a vendor facility is unreasonable and against the government interest.

Please amend RFQ accordingly.

A62: The PWS accurately describes the agency’s need and will not be amended to allow delivery of spares to the government prior to the end of the warranty period.

Q63: Amendment 0002 implies a non-manufacturer class waiver. However, no specific waiver is listed, as required by FAR:

(iv) The contracting officer must provide potential offerors with written notification of any class or individual waiver in the solicitation.

There is only a reference to a waiver and a link to the SBA Class Waiver list.

The only NMR Class Waiver for the assigned NAICS 334220 is:

However, the solicitation is not for Televisions. Thus, there is no NMR Class Waiver applicable to this solicitation.

If the government is asserting that this waiver applies to this solicitation, then they have to provide the NOTICE of the CLASS WAIVER. That means that the solicitation has to identify WHICH Class Waiver applies. A generic reference to the hundreds of waivers is insufficient to meet this requirement.

I think the generic link was provided because the government can't reasonably assert that this solicitation is for Televisions.

A63: The solicitation is for a video wall tech refresh of LED video displays/screens which is reasonably described as encompassing a group of televisions. Notice was provided in the solicitation.

As is well understood, this solicitation is principally for Video Walls, which cannot in any way be described as Televisions. When the waiver for Television was published in 2008, the government clearly knew that Video Walls are distinctly different from Televisions. SAM shows many solicitation for Television that do not include Video Walls, and many solicitations for Video Walls that do not include Televisions.

I can provide reference to several SAM examples.

The SBA has made it clear that NMR Class Waivers only cover the listed products:

SBA OHA SIZ-6075, SIZE APPEAL OF: AEROSAGE LLC, APPELLANT RE: FOSTER

FUELS, INC., Oct 13, 2020 Moreover, while it is true that SBA has promulgated a class waiver relating to NAICS code 324110, that class waiver does not extend to every procurement under NAICS code 324110, but only to those for "Refinery Gases made in Petroleum Refineries". See 71 Fed. Reg.

24,889 (Apr. 27, 2006). The instant RFP was for liquid petroleum fuel products, not refinery gases, and thus does not appear to fall within the scope of the class waiver.

SBA OHA SIZ-5986, SIZE APPEAL OF: CYPHER ANALYTICS, INC. D/8/A CROWN POINT

SYSTEMS, APPELLANT, 19 Feb 2019 SBA Comment:

- SBA asserts that the CO mistakenly determined that a class waiver for mainframe computers applies to the instant procurement, even though the procurement is not for mainframe computers. The CO's error, however, does not alter the fact that only SBA has authority to grant a waiver of the non manufacturer rule. (SBA Response at 5.) Similarly, under OHA case precedent, in order to waive the requirements of the non manufacturer rule, "the dispositive fact is not whether the [CO] has identified a given class waiver, but whether the items being procured are in fact covered by the waiver." (Id. at 3, citing Size Appeal of All Around Access, LLC, SBA No. SIZ-5656 (2015).)

- The Small Business Act gives the authority for deciding which items should be waived to the Administrator of the [SBA], not to the contracting officer. The Administrator has provided neither a class waiver nor individual waiver for the items being procured. Therefore, SBA believes that the Area Office('s] decision not to apply the [nonmanufacturer rule] waiver exception if the items being procured have not themselves been waived should be affirmed on appeal.

OHA Analysis and Decision Because SBA alone has authority to grant a new class waiver, a CO's mistaken belief that a class waiver applies to a given procurement is not binding.

The appeal therefore is DENIED and the size determination is AFFIRMED, In summary, in SIZ-5986, the CO claimed an Class Waiver. An unsuccessful offeror filed a size protest, claiming there was no waiver and the NMR should apply, making the awardee ineligible for award. Both the Area Director and OHA agreed with the protester. Thus, the NMR was applied post-award and an award decision was overturned.

Thus, from the above, it would in inadvisable for the government to claim an NMR waiver that is not applicable to the class of products being procured.

On a separate note, if in fact the Class Waiver to 334220 for Televisions is applicable to more than just TELEVISIONS, then the waiver is subject to termination. The reason is that a small business, GPO Displays, manufacturers large commercial 4K LED displays. These have clearly been procured by the government. See attachments. Thus, any Class Waiver applicable to commercial displays would have to be withdrawn due to the existence of a small business manufacturer of that class of products.

Attached is a datasheet from the GPO Display product, and a USA Spending contract summary showing that these items have been procured by the federal government. Thus, any Class Waiver for commercial displays is subject to termination if it includes anything beyond the well understood definition of Television.

Please clarify whether the government is actually procuring products covered by the NMR class waiver. If not, restore 52.219-33 to the solicitation. Otherwise, list the TELEVISION Class Waiver and explain its applicability to the procurement.

For reference, Television is not defined in the FAR, however it is defined by DOE in the CFR: