NMR Individiual Waiver Approval VA Patio Umbrellas.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 19, 2024

VIA EMAIL: Adrienne.Brown4@va.gov

Ms. Adrienne Brown, Contracting Officer U.S. Department of Veterans Affairs, NCO 22 4811 Airport Plaza Drive, Suite 600 Long Beach, CA 90815

RE: NMR Individual Waiver Approval for Patio Umbrellas

Dear Ms. Brown:

On August 8, 2024, the U.S. Department of Veteran’s Affairs (VA) submitted a request to the U.S. Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) for the purchase of patio umbrellas (umbrellas). The applicable North American Industry Classification System code for this procurement is 337127, Institutional Furniture Manufacturing, and the estimated value of this procurement is

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 VA has a requirement to replace existing umbrellas used to provide proper shade for patients and staff members outside the facility’s main cafeteria. The salient characteristics are as follows:

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

Top cap shade panels must be able to quietly shield area with structured aluminum framing material, no loose fabrics.

Must be wind and weather resistant, equal in durability as Pangard II ® polyester.

Must has shade diameter of a minimum of 86’’ wide to a maximum of 90’’ wide.

Must have pole height of a minimum of 82’’ and a maximum of 86’’.

Must be compatible with existing Landscape Forms Chairman table with pole cut out.

Must be able to be surface mounted to outdoor tables.

Must be compatible with table height of 30’’.

Pole diameter must be able to fit 3” diameter table mount hole.

Must come with surface mount stand and include stainless steel bolts for secure umbrella poles in place.

Must have polyester powder coated metal similar to Pangard II ® polyester, that is lead free, and is able to resists rusting, chipping, peeling and fading.

Umbrellas must be consistent in color including umbrella cap, metal pole, stand, and strut ring.

Color must be similar to Landscape Forms Architectural Series Blue Ash or equal.

Must come with top cap, strut rings, and end caps for proper security and sturdiness.

The VA’s market research included:

A search of the Veteran Small Business Certification (VetCert) database to identify verified capable Service-Disabled Veteran-Owned Small Businesses (SDVOSB) and Veteran-Owned Small Businesses (VOSB) under NAICS 337127. Collectively, 215 SDVOSBs and VOSBs were identified.

A review of recent market research undertaken to meet similar or identical requirements. Using FPDS, a previously awarded May 24, 2023, VA contract (36C26223P1246) was identified. The contract was for outside umbrellas, with an awarded amount of $40,930.

A query of the GSA and NAC Federal Supply Schedules indicated that the umbrellas were not available on either.

The issuance of a Sources Sought, published on SAM.gov and active from June 5, 2024, through June 13, 2024, resulting in responses from one SDVOSB and one Small Business concern.

The issuance of an emailed Sources Sought to concerns identified via a Dynamic Small Business Search (DSBS). This Sources Sought was active from July 25, 2024, through July 31, 2024, and resulted in responses from five small and one SDVOSB concern.

None of the above small businesses identified were manufacturers. The VA identified several small businesses that can provide the required umbrellas as resellers or distributors, which include:

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

Since the VA has demonstrated no small business can meet the specifications of the contract as a manufacturer, 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.

Notice that an individual waiver has been granted must be published with the solicitation so that potential offerors are aware of the waiver and the specific item(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 SDVOSB 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 this waiver, the contract number, and the dollar value of the contract, and the name of the awardee and its size status. Should you have any questions or require any additional information, please contact Dwayne Pugh at (916) 735-1720, dwayne.pugh@sba.gov.

Sincerely, For Francine H. Morris Director, Office of Government Contracting