NSWC _H92240-22-T-0024_Individual Waiver Approved.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

May 26, 2022

VIA EMAIL: taylor.laman@socom.mil

Ms. Taylor Laman

Contracting Officer

Naval Special Warfare Command

3632 Guadalcanal Road, Building 401

Naval Amphibious Base

Coronado, California 92155

RE: Solicitation H92240‐22‐T‐0024

Dear Ms. Laman:

On May 25, 2022, the U.S. Naval Special Warfare Command (NSWC) submitted a request to the U.S. Small Business Administration (SBA) for an individual waiver of the Nonmanufacturer Rule (NMR) to purchase engine parts and accessories. NSWC identified the applicable North American Industry Classification System (NAICS) code for this procurement as 333618 (Other Engine Equipment Manufacturing). The estimated value of this procurement is $2,000,000.00 under an indefinite delivery, indefinite quantity contract with a five‐year period.

Firms supplying products to the Federal Government must either be the manufacturer of the product or (under the NMR) be a small business supplying the goods manufactured by another small business. 15 U.S.C. § 637(a)(17) & 13 C.F.R. § 121.406 (a) & (b). The NMR applies to socioeconomic categories for contracts valued above the micropurchase threshold. The rule applies to both socioeconomic categories and small businesses above the simplified acquisition threshold. 13 C.F.R. § 121.406(c). A waiver to the NMR permits a small business to supply products of another manufacturer, regardless of the size of the manufacturer, to the Federal Government. 15 U.S.C. § 657s & 13 C.F.R. § 121.406(b)(7).

The procedure for obtaining an individual waiver is provided in 13 C.F.R. § 121.1204. At a minimum, an individual NMR waiver request must include the specific item to be waived, the reason 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

All SBA programs and services are extended to the public on a nondiscriminatory basis. 2 supported by a narrative of market research and by providing supporting documentation. 13 C.F.R. § 121.1204(b)(1)(iii).

According to NSWC’s submission, NSWC plans to purchase engine parts and accessories for its 8m and 11m Surface Support Craft and Combat Rubber Raiding Craft used for highly specialized training in a variety of waterfront environments. The specific items are listed in Attachment 1. NSWC currently uses Evinrude engine parts and accessories manufactured by BRP US Inc., a large business. NSWC justifies this brand name requirement based on the fact that no other parts will satisfy the requirements, maintain staff familiarity with equipment, and provide the necessary level of standardization required for personnel safety and operational function. As this is a brand name requirement, there is no reasonable expectation a small business can meet the requirements of this solicitation as a manufacturer.

As NSWC has shown there are no small businesses that could reasonably meet the specifications of the contract, an individual waiver is appropriate in this instance. This individual waiver applies to this one‐time award only and to the specific product identified in the waiver request. This waiver 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). In no event shall this waiver be effective for more than five years. In addition, this waiver must be published with the solicitation to put all potential offerors on notice of the specific product(s) this waiver covers.

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. 13 C.F.R. § 121.406(b)(7).

This individual waiver is effective for the duration of the contract and must be used within one year of issuance.

Please inform SBA of the date you enter a contract utilizing 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 Carol J. Hulme of my staff at (202) 205‐6347 or Carol‐ Ann.Hulme@sba.gov .

Sincerely, Acting Deputy Director Office of Government Contracting for

Wallace D. Sermons, II Acting Director Office of Government Contracting