Individual Waiver Approval FA301624Q0127 redacted.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

August 27, 2024

VIA EMAIL: amanda.mateo.3@us.af.mil

Ms. Amanda Mateo, Contracting Officer Department of the Air Force 502d Air Base Wing Joint Base San Antonio, Lackland, TX

RE: NMR Individual Waiver Request for Solicitation FA301624Q0127

Dear Ms. Mateo:

On August 21, 2024, the Department of the Air Force, Joint Base San Antonio, submitted a request to the U.S. Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) for the purchase of multiple items to be included in Solicitation FA301624Q0127, CLIN 0001, for 9000 IBM MaaS360 Essentials Suite (Saa) Management Client Devices. This is a platform that allows IT managers to centrally manage devices and perform software updates remotely. This includes the following items (9000 each):

• IBM MaaS360 Essentials Suite (SaaS) Managed Client Device per Month-Renewal, Manufacturer Part Number: D1P3GLL-R

• IBM MaaS360 Essentials Suite (SaaS) Cloud Service Level Agreement CUNONE, Manufacturer Part Number: D1P3KLL

• IBM MaaS360 Essentials Suite (SaaS) Managed Client Device Overage – Renewal, Manufacturer Part Number D1P3HLLR

The applicable North American Industry Classification System (NAICS) code for this procurement is 513210, Software Publishers, and the estimated value of this procurement is $280,800. The Contracting Officer provided an assurance that the items meet the requirements of 13 CFR 121.1203(g), which requires that the items being procured by the Government are the same items, without modification, in the same form that are sold, leased, or licensed in substantial quantity to the general in the commercial marketplace.

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

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 for a multi-item procurement must include the specific items to be waived, why the specific items are 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 when the contract is 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 for each item a waiver is requested for. 13 C.F.R. § 121.1204(b)(1)(iii).

According to its submission, the Air Force has a requirement for a multi-item procurement for 9000 each of:

IBM MaaS360 Essentials Suite (SaaS) Managed Client Device per Month-Renewal, Manufacturer Part Number: D1P3GLL-R

IBM MaaS360 Essentials Suite (SaaS) Cloud Service Level Agreement CUNONE, Manufacturer Part Number: D1P3KLL

IBM MaaS360 Essentials Suite (SaaS) Managed Client Device Overage – Renewal, Manufacturer Part Number D1P3HLLR

The Air Force provided a brand name justification for the items. The manufacturer is IBM, a large business. IBM indicated to the Air Force that there were over thirty authorized resellers, all of which are small businesses. The Air Force received the most interest responses from Women-Owned Small Businesses (WOSBs) so the Air Force posted a solicitation on SAM.gov as a WOSB set-aside.

Since the Air Force has demonstrated no small business can meet the specifications of the contract as a manufacturer, an individual waiver is appropriate in this instance for all of the requested items.

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). Please note that in no case shall a waiver be valid for more than five years.

Notice of an NMR waiver must be published with the solicitation so that potential offerors are aware of the waiver and the specific product(s) covered. Since a solicitation has already been issued, notice of the waiver must be provided and all potential offerors must be provided additional time to respond. 13 C.F.R. § 121.1203(a).

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

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 WOSB 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, the actual dollar value of the contract, and the identity of the awardee and its size status. Should you have any questions or require any additional information, please contact Stephanie Lewis (817) 684-5303 or Stephanie.Lewis@sba.gov.

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