This article will explain Non-Manufacturer waivers and what the contracting officer is responsible for. In addition, it will explain the Nonmanufacturer Rule (NMR) as some background information. If you know this information already you may skip to the Non-Manufacturer Waiver information.
What is the Nonmanufacturer Rule?
The Small Business Act and SBA's regulations impose performance requirements (limitations on subcontracting) on firms that are awarded set-aside contracts.
15 USC §§ 637(a)(14), 644(o);
13 CFR § 125.6;
Federal Acquisition Regulation (FAR) §§ 52.219-14, 52.219-27
On a supply contract, a firm must perform at least 50% of the cost of manufacturing the supplies (not including the cost of materials).
The NMR is an exception to the performance requirements, and provides that a firm that is not a manufacturer may qualify as a small business on a supply contract set aside for small business if, among other things, it supplies the product of a small business made in the United States. 15 USC § 637(a)(17); 13 CFR § 121.406.
What is the difference between a Manufacturer and a Nonmanufacturer?
A manufacturer is a concern which, with its own facilities, performs the primary activities in transforming inorganic or organic substances, including the assembly of parts and components, into the end item being acquired. 13 CFR § 121.406(b)(2); FAR § 19.102(f)(1).
A concern may qualify a nonmanufacturer if it:
Does not exceed 500 employees;
Is primarily engaged in the retail or wholesale trade and normally sells the type of item being supplied; and
Will supply the end item of a small business manufacturer or processor made in the United States, or obtains a waiver of such requirement. 13 CFR § 121.406(b).
Nonmanufacturer Rule Reminders
As the contracting officer applying the Nonmanufacturer Rule to your acquisition strategy, there are some things to remember.
The NMR does not apply to service contracts. The NMR is an exception to the manufacturing performance requirements (limitations on subcontracting) applicable to supply contracts. Service and construction contracts have different performance requirements. See 13 CFR § 125.6; FAR §§ 19.102(f), 19.502-2(c).
You will designate the proper NAICS code and size standard in the solicitation, selecting the NAICS code which best describes the principal purpose of the product or service being acquired. Primary consideration is given to the industry description in the NAICS, the product or service description in the solicitation and any attachments to it, the relative value and importance of the components of the procurement making up the end item being procured, and the function of the goods or services being purchased.
You cannot assign a wholesale or retail trade to NAICS code to a procurement for supplies.
Nonmanufacturer waivers are not granted for HUBZone procurements.
Nonmanufacturer waivers cannot be granted after bids on a solicitation have been received.
In order to qualify as a small business on a small business set-aside, Service-Disabled Veteran-Owned set-aside or 8(a) Business Development procurement (sole source or competitive) for the acquisition of supplies, an offeror must either manufacture the item in accordance with the Limitations on Subcontracting (see FAR section 52.219-14, 52.219-27 and 13 C.F.R. section 125.6)) or supply the product of a small business made in the United States. The requirement that a nonmanufacturer supply the product of a small business concern is commonly referred to as the Nonmanufacturer Rule. 13 C.F.R. section 121.406. The Small Business Act also contains provisions that allow the Administrator of the SBA to waive this requirement when there are no small business manufacturers or processors available to supply the product to the Federal Government. The Administrator has delegated the authority to make decisions on waivers of the Nonmanufacturer Rule to the Associate Administrator for Government Contracting in the following cases:
Individual waiver. After reviewing a determination by a contracting officer that no small business manufacturer or processor can reasonably be expected to offer a product meeting the specifications (including period of performance) required of an offeror or by the solicitation; or
Class waiver. For a product or class of products after determining that no small business is available to participate in the Federal procurement market. To see Class Waivers click here.
For the purpose of waivers, a class of products is defined based on the Office of Management and Budget's North American Industry Classification (NAICS) Manual and the General Services Administration's Product and Service Code (PSC) Directory. Within each NAICS code and PSC are subdivisions of products that can be considered for waiver. A request for a waiver of a class of products should refer to a specific subdivision, or statement of product, within the NAICS and PSC.
Any individual or organization (government agency, business, association, etc.) may request a waiver for a class of products. The request should be in writing addressed to the Associate Administrator for Government Contracting and should specifically state the class (or classes) of products for which the waiver is sought.
Requesting the Individual Waiver
As the contracting officer, you are the only one who can request an individual waiver for a specific solicitation. In summary, you must, at a minimum, include:
A definite statement identifying the specific products for which you are requesting the waiver, and provide SBA with the market research documentation supporting your determination that there are no known small business manufacturers or processors for the requested items.
The solicitation number for the procurement on which the item(s) is required, the NAICS code, estimated dollar amount of the procurement, and a brief statement of the procurement history.
For contracts expected to exceed $500,000, a copy of the Statement of Work.
A determination by the procuring agency's contracting officer that there are no known small business manufacturers for the requested items. The determination must contain a clear, narrative statement of the contracting officer's efforts to search for small business manufacturers or processors of the item(s) and the results of those efforts. The information should include the findings of a search of the SBA's Dynamic Small Business Search; other market surveys performed; the results of discussions with small business representatives to find manufacturers (i.e., Office of Small Disadvantaged Business Utilization (OSDBU) Representative or Procurement Center Representative (PCR)); and, a statement by the contracting officer that there are no known small business manufacturers for the items and that no small business can reasonably be expected to offer the required supplies.
A contracting officer may request an individual waiver for more than one item on a solicitation. The required information indicated above must be included for each item.
Requests for waivers of the Non-manufacturer Rule should be sent to the Director for Government Contracting at:
U. S. Small Business Administration
Office of Government Contracting
Mail Code 6700
409 3rd Street, SW
Washington, DC 20416
Anyone can request a class waiver. The requester should supply SBA with the relevant NAICS code and other identifying information concerning the item. The requester should also supply SBA with market research and other data to support a determination that no small business manufacturer is participating in the Federal procurement market.
Use the following format for submitting class waivers:
In accordance with 13 Code of Federal Regulations (Reference 12l.1204(a)(2)), the ( your name and/or the name of your organization) hereby requests a class waiver of the Non-manufacturer Rule (NMR) for name of product(s)_______, under the North American Industry Classification (NAICS) code _______, Product Service Code (PSC) _____.
(Describe any background information relative to the product(s) you are requesting to be waived. Include detailed information on the efforts made to identify small business manufacturers or processors for the class.)
I can be reached at ( ) ______, fax number ( ) _______, and mailing address_______.
Office of Government Contracting
U.S. Small Business Administration
409 3rd Street, SW , MC 6700
Washington , DC 20416
Timeframes for Handling
A request for an individual waiver will take about 15 working days to process if you, the contracting officer, provide complete information.
Requests for waivers of classes of products take an average of 45 - 60 working days for processing.
This period of time allows SBA staff to publish Waivers of the Non-manufacturer Rule in the Federal Register, a required notice of an intent to grant a waiver for the class of products, a notice in the FedBizOpps of potential sources sought, and a final notice in the Federal Register of decision to grant the waiver if no small business manufacturers or processors have been identified.
For questions about the Nonmanufacturer Rule or questions on how to submit a waiver request, please contact Edward Halstead at email@example.com