Questions and Answers

Q1) We note that this procurement is set aside 100% for small business, yet it is for the brand name only products or services manufactured by a large business, Amazon. Has NIST received a non-manufacturer waiver to be able to set aside the procurement for a large business item as a 100% small business procurement?
A1) Under FAR 2.101, "software," "firmware," and similar procedures and resources are defined as "information technology," rather than ""supplies" or "manufactured end-products." As a result, information technology is not manufactured per set; therefore, NIST does not need to obtain a waiver to the non-manufacturer rule in order to set aside this procurement for small businesses.

Q2) If this is considered a services procurement, the limitations of subcontracting clause (52.219-14) included in the solicitation requires that the small business perform 50% of the services, which is not possible if all of the services are provided by Amazon, a large business.

A2) See excerpt from FAR 52.219-14 regarding services below. In summary, 50% of the cost of services provided by "personnel" shall be expended for employees of the concern. Therefore, the cost of the software is not included in the calculation. Offerors must represent their ability to meet the requirements of FAR 52.219-14 in their respective quotations in accordance with the RFQ.

52.219-14 -- Limitations on Subcontracting.
(a) This clause does not apply to the unrestricted portion of a partial set-aside.
(b) Applicability. This clause applies only to--
(1) Contracts that have been set aside or reserved for small business concerns or 8(a) concerns;
(2) Part or parts of a multiple-award contract that have been set aside for small business concerns or 8(a) concerns; and
(3) Orders set aside for small business or 8(a) concerns under multiple-award contracts as described in 8.405-5 and 16.505(b)(2)(i)(F).
(c) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for --
(1) Services (except construction). At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.