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Acquisition Policy Flash! 17-13

What's Changed?

Authority to approve the submission of a request for a Nonmanufacturer Rule Waiver to the Small Business Administration (SBA) and use of other than competitive procedures or restricted competition as defined in 38 U.S.C. § 8127, for procurements where SBA has issued a class waiver to the Nonmanufacturer Rule.

Purpose:  To issue a class deviation that provides guidance to VA procurement personnel regarding the delegation of authority to the VA Heads of the Contracting Activities (HCAs) to approve all requests for waivers of the Nonmanufacturer Rule by VA contracting officers; or use of other than competitive procedures and restricted competition as defined in 38 U.S.C. § 8127, for procurements where SBA has issued a class waiver to the Nonmanufacturer Rule.

Federal Acquisition Regulation (FAR) and VA Acquisition Regulation (VAAR) Sections Referenced:  VAAR 819.102(f)(4) and (5) is added as a result of the attached class deviation.

Dated:  February 17, 2017

Effective Date:  Immediately

Background:

  • FAR 19.102(f)(4) reads:  “[i]n the case of acquisitions set aside for small business or awarded under section 8(a) of the Small Business Act, when the acquisition is for a specific product (or a product in a class of products) for which the SBA has determined that there are no small business manufacturers or processors in the Federal market, then the SBA may grant a class waiver so that a nonmanufacturer does not have to furnish the product of a small business.  For the most current listing of classes for which SBA has granted a waiver, contact an SBA Office of Government Contracting.  A listing is also available on SBA’s website.”  Currently, the VAAR is silent on this issue.
  • FAR 19.102(f)(4) further reads:  “Contracting officers may request that the SBA waive the Nonmanufacturer Rule for a particular class of products.  For procedures in requesting a waiver see 13 CFR 121.1204.”  Currently, the VAAR is silent on this issue.
  • FAR 19.102(f)(5) authorizes a contracting officer to request a waiver of the Nonmanufacturer Rule from the SBA for a specific solicitation.  Currently, the VAAR is silent on this issue.
  • A deviation is required to establish the requirement that any request for a Nonmanufacturer Rule waiver requires VA HCA approval prior to submission to the SBA, for both class and individual (specific solicitation) waivers.  Further, approval by the HCA is required for use of other than competitive procedures and restricted competition as defined in 38 U.S.C. § 8127, for procurements where SBA has issued a class waiver to the Nonmanufacturer Rule.  This is necessary in order to ensure HCAs have situational awareness of issues prompting the requests and, if needed, can take actions to mitigate requests or use of other than competitive procedures and restricted competition under 38 U.S.C. § 8127 where a class waiver has previously been issued by SBA.

Applicability:  This notice applies to VA contracting activities.

Action Required:  Contracting officers shall comply with the attached class deviation which requires the HCA to approve any use of the Nonmanufacturer Rule waiver by VA contracting officers and prior to coordination with the SBA.  This authority cannot be redelegated.

Additional Information:  Direct any questions or comments regarding to Procurement Policy and Warrant Management services via email at va.procurement.policy@va.gov or (202) 632-5288.