NMR Individual Waiver Approval - VA NCO2 36C242-24-AP-2340.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

July 9, 2024

VIA EMAIL: Paul.Speedling@va.gov

Mr. Paul Speedling Contracting Officer U.S. Department of Veterans Affairs Network Contracting Office 2 (NCO 2) 2094 Albany Post Road, Route 9A Montrose, NY 10548

RE: NMR Individual Waiver Request – Solicitation 36C242-24-AP-2340

Dear Mr. Speedling:

On June 28, 2024, the U.S. Department of Veterans Affairs, NCO 2, submitted a request to the U.S.

Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) for the purchase of a Steris Corporation ENDODRY Drying and Storage System. The applicable North American Industry Classification System code for this procurement is 339113, Surgical Appliances and Supplies Manufacturing, and the estimated value of this procurement is $361,968.

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:Paul.Speedling@va.gov

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

According to your submission, NCO 2 plans to procure a Steris Corporation ENDODRY Drying and Storage System. NCO 2 justified that the brand name product is the only product that will meet its needs due to unique characteristics that limit availability to one source. NCO 2 conducted market research to include a Dynamic Small Business Search (DSBS) and a synopsis in SAM.gov. NCO 2 identified the original equipment manufacturer as Steris Corporation, a large business that manufactures the ENDODRY Drying and Storage System. Market research also identified a service-disabled veteran-owned small business and a small disadvantaged business that are authorized distributors (Veterans Healthcare Supply Solutions, Inc., Jacksonville, FL, and Surgical Tools, Inc., Bedford, VA, respectively) that can provide the required brand name item.

Since the NCO 2 has demonstrated that 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.

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. Please inform SBA of the date you enter a contract using the waiver, the contract number, the award value, and the identity of the awardee and its size status. Should you have any questions or require any additional information, please contact Timothy Berdan at 973-645-6064 or timothy.berdan@sba.gov.

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