Good morning, I have a question that i cannot find answers to. Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts? All government agencies are bound to the same FAR regulations that incorporate the use of BAA and NMR. So, why would the follow on orders require a waiver for the BAA or NMR if the BAA and NMR should have been considered at the time of the base award? We recently have had NMR training by our legal, they couldn't back up their statement that COs shouldn't assume that the NMR or BAA was considered at time of award. Why not? Again they were bound to the same FAR as the CO issuing the order. I am not a fan of opinion not backed by policy or regulations, legal opinion or not, especially if it adds significant hoops to jump through that should have been jumped through previously. 

If you are issuing an order for supplies under an indefinite-delivery contract, follow the instructions in FAR Subpart 16.5 and issue the order.  You do not need to comply with all the other rules in the FAR that relate to contract formation, as your contract is already formed.  Just follow FAR Subpart 16.5 and issue the order.

1 hour ago, ji20874 said:

follow the instructions in FAR Subpart 16.5 and issue the order.

Specific to the NMR. 

 I am trying to wrap my head around the above statement.  I do read at FAR 16.5  the following (emphasis added) "(e) See subpart  19.5 for procedures to set aside part or parts of multiple-award contracts for small businesses; to reserve one or more awards for small business on multiple-award contracts; and to set aside orders for small businesses under multiple-award contracts."  So are you trying to relay to the OP that they must apply the NMR at the order level or not?  And if they must when?  And is there a difference between between all "existing government contracts" or just some when applying the NMR.

And for both BAA and NFR there is this statement (emphasis added) in the Connections II GSA-FSS contract.  What is Connections II https://www.gsa.gov/technology/technology-purchasing-programs/telecommunications-and-network-services/connections-ii

"The clauses in I.2 apply at the Order level, as applicable, depending upon the contract type of the Order, or as specifically referenced in the applicable Order."  All the small business clauses and the Buy American clause is listed in I.2.

2 hours ago, philb said:

I am not a fan of opinion not backed by policy or regulations, legal opinion or not, especially if it adds significant hoops to jump through that should have been jumped through previously. 

I am truly interested in the response of ji20874 as to where in 16.5 it specifically addresses when NMR and BAA are or are not applicable at the order level for an existing government contract such as a Definite Quantity, Requirements, or IDIQ contract is used as authority to issue the order?   

3 hours ago, ji20874 said:

You do not need to comply with all the other rules in the FAR that relate to contract formation, as your contract is already formed.  Just follow FAR Subpart 16.5 and issue the order.

That statement seems to be incorrect with respect to the nonmanufacturer rule (NMR). It's more complicated than that. But I'm prepared to be corrected through explanation.

3 hours ago, C Culham said:

I am truly interested in the response of ji20874 as to where in 16.5 it specifically addresses when NMR and BAA are or are not applicable at the order level for an existing government contract such as a Definite Quantity, Requirements, or IDIQ contract is used as authority to issue the order?   

Those matters (NMR and BAA) were addressed in the parent indefinite-delivery contract.  For NMR, any desired waiver of the nonmanufacturer rule should have already been obtained for the competition for the parent contract.  And for BAA, any public interest or unreasonable cost waivers will have been already handled for the parent contract.

FAR Subpart 16.5 does not contain rules for NMR and BAA analysis and waivers because these apply (or not) at the parent contract level.  Whatever the parent contract says about NMR and BAA apply to all orders under that contract.

51 minutes ago, ji20874 said:

Those matters (NMR and BAA) were addressed in the parent indefinite-delivery contract.

I am still not tracking.  By definition a Delivery Order Contract does not procure anything so how is NMR and/or BAA applied to nothing?  Aren't the orders the "contract"?  I pose this especially in the current atmosphere where ID contracts that provide for possible Delivery Orders of everything under the sun (almost)?

The parent indefinite-delivery contract is a contract that includes terms and conditions for any orders that might be issued, and those orders make purchases amenable to the parent contract's terms and conditions.

28 minutes ago, ji20874 said:

The parent indefinite-delivery contract is a contract that includes terms and conditions for any orders that might be issued, and those orders make purchases amenable to the parent contract's terms and conditions.

Are you sure?   Now consider a multiple award to both SBs and OSBs. Yet you decide to reserve an order for SBs.  So are you saying that the parent contract for say computers has already addressed the computer a SB will provide both as to the SB status under NMR and the BAA for the specific item the SB will provide?  How?

1 hour ago, C Culham said:

Now consider a multiple award to both SBs and OSBs. Yet you decide to reserve an order for SBs.

It's quite simple.  

• For NMR:  If a set of parent multiple-award infinite-delivery contracts allows for orders to be set-aside for small business concerns, the contracting officer for the multiple-award infinite-delivery contracts will have already included the clause at FAR 52.219-33, Nonmanufacturer Rule, in the parent contracts.
• For BAA:  If a contractor contemplates providing an end product that is not a domestic end product at any time during the life of the contract, it will have already declared such by including the product in the list in its response to the solicitation provision for the parent contract at FAR 52.225-2, Buy American Certificate, or other appropriate certification.

11 hours ago, philb said:

Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?

No, because--

1. Requests for individual waivers of the nonmanufacturer rule are discretionary (see FAR 19.505(c)(4)(i)(B)), and

2. There is no requirement for the CO to request a "waiver" of the BAA under any circumstance. 

10 hours ago, Don Mansfield said:

No, because-

Thanks Don, this is getting closer but I honestly do not get the responses.   i know you answered a specific question that the OP stated but I really think the OP is asking should NMR and BAA be a consideration of the CO at the order level or just at the parent contract level.

ji20874's comments provide, at least by my read and I could be wrong, to not worry about NMR when getting quotes for a FAR 8.4 order, nor when doing fair opportunity under a MAS per FAR 16.5.  Your response implies the same thing but for different reasons.  Discretionary act for NMF rule and not required for BAA as I read your comment. 

First off I find referring to FAR 16.5 in total is not appropriate as the OP has referenced both FAR 8 and 16 and in many cases there are different rules regarding a procurement made under the two references.  Specific to FAR 16.5 simply referring to the subpart on what to do regarding an order under a FAR 16.5 contract is not the rule, the contract is, so to make a blanket statement that FAR 16.5 tells you what to do is not appropriate.   The contract rules and as has been discussed a million times in Forum who knows what an agency might put in an indefinite delivery contract.

My research in attempting to find a reference that the OP can lean on it would seem that the OP is asking if at the order level  is there a need to do the discretionary act of requesting a waiver and/or consider BAA.   Or in other words does making the waiver consideration for NMR and application of BAA occur at the parent contract level or order level?   I am having difficulty concluding that it is made at the parent contract level.

First for FAR 8.4.

FAR 8.405-5(a)(2)(a) provides that when setting aside orders "The specific small business program eligibility requirements identified in part 19 apply."  

Found in GSA's "GSA Schedules and the Utilization of Small Businesses "Language applying the NMR to set-aside Schedule orders can be found in the following clauses:"

And this -  found here https://www.gsa.gov/buy-through-us/purchasing-programs/gsa-multiple-award-schedule/small-and-disadvantaged-business-utilization  "Yes, the Non-Manufacturer Rule (NMR) does apply to Schedule orders set-aside for small business. The NMR requires that a small business performing under a set-aside contract/order must provide the product of a small business manufacturer."

And then I wonder about CTA's with this noted in the same reference website noted above - "Under an MAS CTA the Team must perform fifty percent (50%) of the value of the work in the aggregate. For example, on a team consisting of three contractors, the Team Leader could perform thirty percent (30%) of the work and each Team Member could perform ten percent (10%) of the work to meet the fifty percent (50%) requirement. The remaining fifty percent (50%) of the work may be performed by subcontractors working under any of the team members Schedule contracts. Socioeconomic restrictions do not apply to subcontractors; i.e., they may be large business."

As to FAR 16.5 I really cannot find a reference in the subpart other than that already noted where the subpart provides that a indefinite delivery contract does not procure anything the orders do and likewise FAR 2.101 provides that the definition of a contract is an "order".   Related is the fact that when entering an IDIQ parent into FPDS there is no pop-up for BAA.  "This information is recorded at the contract level, or at the delivery order level for orders from indefinite delivery contracts."  Reference https://www.gao.gov/assets/gao-19-17.pdf

21 hours ago, philb said:

So, why would the follow on orders require a waiver for the BAA or NMR if the BAA and NMR should have been considered at the time of the base award? We recently have had NMR training by our legal, they couldn't back up their statement that COs shouldn't assume that the NMR or BAA was considered at time of award. Why not?

All told it would seem that CO's should not assume that NMR or BAA was consider at time of award of a GSA FSS contract because FAR part 8.4 and GSA guidance provides that the considerations are made at the order level.   For indefinite delivery contracts pursuant to FAR 16.5 it depends and the contract will provide whether consideration was made at the parent contract level or is to made at the order level.   

12 hours ago, Don Mansfield said:

No, because--

1. Requests for individual waivers of the nonmanufacturer rule are discretionary (see FAR 19.505(c)(4)(i)(B)), and

2. There is no requirement for the CO to request a "waiver" of the BAA under any circumstance. 

Don, I have been waiting for your reply as well as others, I have seen you  and Vern here for my 12 years in contracting...the VA is super strict about obtaining BAA Waivers right now, we dont have an exemption like the DoD does. Basically if the product is not manufactured in the USA or the business is not an American owned business, we have to submit to the BAA council to obtain a waiver which also goes through the HCA first for all above MPT. BUT the VHA has no policy about FAR 8 or FAR 16 orders and if both the BAA and NMR applies to the orders. 

I don't see anything about BAA waivers in the VAAR. Do you mean Determinations of Nonavailability?

Carl,

It is true that I addressed indefinite-delivery contracts, but it is the same for schedule contracts as well.

On 2/2/2023 at 9:24 AM, philb said:

Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts? A

Is that question clear to everyone?

Don, Yes, the determination of non-availability that we need to send to the BAA council. I dont get why the VA makes this so difficult, very little medical equipment, pharmaceuticals, etc are made in America. Then the BAA trumps any trade agreements already in place no matter the dollar amount. At least, that what our leadership and training is telling us

Is the BAA Council a VA thing? Never heard of it. 

So, from what I understand you're being told that a determination of nonavailability is required for each order because you can't trust that the CO got one approved when planning the original contract. Is that correct?

I know that VA has some different statutory authorities, but I know nothing about the particulars.  So I'm speaking generally...

Some agencies make it too hard.  If you have a procurement for medical equipment, you can issue an unrestricted solicitation with the appropriate BAA clauses/provisions (such as FAR 52.225-1 and -2).  If you get both domestic and foreign offers, you do the price evaluation exercise and you award to either the domestic or the foreign, based on the outcome of the price evaluation exercise.  If you get only foreign offers, well, pick the best one.

There is no real need for a determination of nonavailability.  That determination gets you out of the price evaluation exercise, but that exercise is really easy, far easier than getting a determination of nonavailability.

See FAR 25.103(b)(3).

2 hours ago, philb said:

Then the BAA trumps any trade agreements already in place no matter the dollar amount.

I have always understood that trade agreements, if applicable, trump BAA.

On 2/3/2023 at 12:00 PM, ji20874 said:

Carl,

It is true that I addressed indefinite-delivery contracts, but it is the same for schedule contracts as well.

I believe you continue to error in your conclusion -

"Where an underlying ID/IQ solicitation or contract by itself does not acquire services with appropriated funds, describe agency requirements, obligate funds, or establish agency needs, a solicitation or RFP for a delivery order calling itself a procurement with different evaluation factors for award is a procurement, a particular procurement, and a separate procurement. SBA must determine an offeror's size for that procurement as of the date of the offer for the delivery order RFP."   Ref. SBA No. SIZ-4748 (S.B.A.), 2005 WL 3644772

Carl,

You are moving the goalposts.  The question is "Basically, do COs need to seek waivers for the NMR and BAA when we issue orders off of existing government contracts?"  The answer is no.

Your citation doesn't fit the discussion.  As a general rule, the contracting officer has no affirmative duty to determine the size status of indefinite-quantity contract holders before placing an order -- your citation makes the case that the SBA may do its thing if there is a size challenge, and I am fine with that, but that is wholly irrelevant to this discussion thread.  Even so, we're talking about orders for supply items -- there might not even be any "separate procurement[s]" going on.

Issuing orders is supposed to be easy.  Too many people want to bog the process down and sink the ship by imposing all sorts of unneeded demands on the ordering process.  

7 hours ago, ji20874 said:

You are moving the goalposts.

No sir.  I respectfully submit that you are not fully knowledgeable of the matter and your general statements of your beliefs may put folks at risk of not doing the right thing.  It is more complicated than you imply and as I have noted in a previous post it depends on the facts of the procurement.   You on the other hand have provided a matter of fact statement which I continue to question.    I highly encourage you to read the whole of 13 CFR 121.   As a teaser I am offering the following -

"Unrestricted Multiple Award Contracts. For an unrestricted Multiple Award Contract, if a business concern (including a joint venture) is small at the time of offer and contract-level recertification for the Multiple Award Contract, it is small for goaling purposes for each order issued against the contract, unless a contracting officer requests a size recertification for a specific order or Blanket Purchase Agreement. Except for orders and Blanket Purchase Agreements issued under any Federal Supply Schedule contract, if an order or a Blanket Purchase Agreement under an unrestricted Multiple Award Contract is set-aside exclusively for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business), a concern must recertify its size status and qualify as a small business at the time it submits its initial offer, which includes price, for the particular order or Blanket Purchase Agreement. However, where the underlying Multiple Award Contract has been awarded to a pool of concerns for which small business status is required, if an order or a Blanket Purchase Agreement under that Multiple Award Contract is set-aside exclusively for concerns in the small business pool, concerns need not recertify their status as small business concerns (unless a contracting officer requests size certifications with respect to a specific order or Blanket Purchase Agreement).

On 2/7/2023 at 9:31 AM, ji20874 said:

Issuing orders is supposed to be easy.  Too many people want to bog the process down and sink the ship by imposing all sorts of unneeded demands on the ordering process.  

ya' think?  I have a branch chief who followed Part 15 procedures for awarding task orders under a single-award IDIQ.  Apparently, he had been doing this for years so when I took it over and pivoted everything to 16.505 you would have thought I cured cancer or something based on the reactions from the program office and vendor.  I'll take the easy wins every time.

I’m Curious. Which Part 15 procedures did your branch Chief follow ?