Waivers of the Small Business Administration's Nonmanufacturer Rule Have Limited Effect
Gao ID: GAO-03-311R December 19, 2002Under section 8(a) of the Small Business Act, the Small Business Administration (SBA) conducts a program for developing small businesses that are owned by socially and economically disadvantaged individuals. Participants can receive contracts under acquisitions that federal agencies offer to the 8(a) program as well as business development assistance from SBA. A firm that receives a supply contract under the 8(a) program or a small business set aside can be either a manufacturer or a nonmanufacturer of a product. Under SBA's rules, however, a nonmanufacturer who receives one of these contracts must agree to supply the product of a domestic small manufacturer or processor. SBA can waive this requirement when there are no small manufacturers or processors available to supply the product. There are two types of waivers to the nonmanufacturer rule: (1) individual waivers, which apply only to a specific contract and are effective for the life of that contract, and (2) class waivers, which apply to categories of items and continue in effect unless revoked by SBA. Once a waiver of the nonmanufacturer rule is approved, a firm may supply the product of a large manufacturer. GAO reviewed (1) the number of individual waivers SBA approved in fiscal year 2001 and the dollar amount of fiscal year 2001 contract obligations that resulted from those waivers, and (2) the number of class waivers available for use during fiscal year 2001 and the dollar amount of fiscal year 2001 obligations that resulted from those waivers. SBA approved 23 individual waivers of the nonmanufacturer rule in fiscal year 2001. Sixteen of the waivers were used on ten 8(a) contracts with a total of $6.3 million in fiscal year 2001 obligations. The remaining seven waivers either did not result in 8(a) contracts during fiscal year 2001 or did not involve fiscal year 2001 funds. SBA approved one class waiver in fiscal year 2001, and there were 84 other class waivers still in effect from prior years. Five of these 85 class waivers resulted in contracts with $20.5 million in fiscal year 2001 obligations. The other 80 approved class waivers were not used on 8(a) contracts during fiscal year 2001. In total, GAO identified $27 million in fiscal year 2001 obligations for contracts covered by individual or class waivers.
GAO-03-311R, Waivers of the Small Business Administration's Nonmanufacturer Rule Have Limited Effect
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Letter:
December 20, 2002:
The Honorable Christopher S. Bond:
Ranking Minority Member:
Committee on Small Business and Entrepreneurship:
United States Senate:
Subject: Waivers of the Small Business Administration‘s Nonmanufacturer
Rule Have Limited Effect:
Dear Senator Bond:
Under section 8(a) of the Small Business Act, the Small Business
Administration (SBA) conducts a program for developing small businesses
that are owned by socially and economically disadvantaged individuals.
Participants can receive contracts under acquisitions that federal
agencies offer to the 8(a) program as well as business development
assistance from SBA. In fiscal year 2001, there were 5,110 small
businesses that participated in the program.
A firm that receives a supply contract under the 8(a) program or a
small business set aside can be either a manufacturer or a
nonmanufacturer of a product. Under SBA‘s rules, however, a
nonmanufacturer who receives one of these contracts must agree to
supply the product of a domestic small manufacturer or
processor.[Footnote 1] This nonmanufacturer rule is one key mechanism
for ensuring that procurement dollars under the 8(a) program and small
business set-asides are spent on products made by small businesses. SBA
can waive this requirement when there are no small manufacturers or
processors available to supply the product. There are two types of
waivers to the nonmanufacturer rule: (1) individual waivers, which
apply only to a specific contract and are effective for the life of
that contract, and (2) class waivers, which apply to categories of
items and continue in effect unless revoked by SBA. Once a waiver of
the nonmanufacturer rule is approved, a firm may supply the product of
a large manufacturer.
In response to your concern about the extent waivers of the
nonmanufacturer rule may be resulting in 8(a) procurement dollars going
to firms that are not small businesses, we determined: (1) the number
of individual waivers SBA approved in fiscal year 2001 and the dollar
amount of fiscal year 2001 contract obligations that resulted from
those waivers, and (2) the number of class waivers available for use
during fiscal year 2001 and the dollar amount of fiscal year 2001
obligations that resulted from those waivers.
Results in Brief:
SBA approved 23 individual waivers of the nonmanufacturer rule in
fiscal year 2001. Sixteen of the waivers were used on ten 8(a)
contracts with a total of $6.3 million in fiscal year 2001 obligations.
The remaining seven waivers either did not result in 8(a) contracts
during fiscal year 2001 or did not involve fiscal year 2001 funds.
SBA approved one class waiver in fiscal year 2001, and there were 84
other class waivers still in effect from prior years. Five of these 85
class waivers resulted in contracts with $20.5 million in fiscal year
2001 obligations. The other 80 approved class waivers were not used on
8(a) contracts during fiscal year 2001.
In sum, we identified close to $27 million in fiscal year 2001
obligations for contracts covered by individual or class
waivers.[Footnote 2] This represents 4.4 percent of the $606 million
obligated in fiscal year 2001 for supplies and equipment under the 8(a)
program, and a fraction of 1 percent of the $6.2 billion obligated for
all 8(a) contracts during the fiscal year.
We are not making recommendations in this report. During our review,
however, we determined that some of the information disseminated by SBA
on existing class waivers was inaccurate. We discussed this problem
with SBA officials and suggested that the information be revised. SBA
revised the class waiver information and made changes to its Web site
on November 15, 2002.
We received written comments on the draft of this report from the Small
Business Administration. SBA concurred with our findings but suggested
two changes in our discussion of the nonmanufacturer rule. We made the
suggested changes. SBA‘s written comments are enclosed.
Background:
To be eligible for SBA‘s 8(a) program, a firm must be a small business
that is at least 51-percent owned by one or more socially and
economically disadvantaged individuals.[Footnote 3] An eligible firm
generally must have been in business for at least 2 years and have a
reasonable prospect for success in the private sector.
SBA‘s Associate Administrator for Government Contracting is responsible
for approving requests for individual and class waivers of the
nonmanufacturer rule. Only a contracting officer of a federal agency
can request an individual waiver. After conducting market research and
determining that no domestic small business exists that can supply the
product in the quantity, time frame, or specifications needed by the
agency, a contracting officer can submit a waiver request to SBA. Class
waivers may be requested by anyone, including suppliers, subject to
approval by SBA. Class waivers may be approved for all contracts
involving a particular class of products[Footnote 4] if no small
manufacturer is available to participate in the federal procurement
market. Such classes currently include construction equipment,
mainframe computers, and certain chemicals.
Contracts can be classified into three categories: (1) research, (2)
other services and construction, and (3) supplies and equipment. The
nonmanufacturer rule applies only to contracts for supplies and
equipment. In fiscal year 2001, 87 percent of the 8(a) purchases were
under services and construction contracts while research contracts
accounted for just 3 percent. The remaining 10 percent, about $606
million, was used for contracts for supplies and equipment. (See table
1.):
Table 1: 8(a) Program Obligations by Category for Fiscal Year 2001
(Dollars in millions):
Contract category: Research; Obligations: $180.8; % of total
obligations: 2.9.
Contract category: Supplies and equipment; Obligations: 605.9; % of
total obligations: 9.8.
Contract category: Other services and construction; Obligations:
5,389.8; % of total obligations: 87.3.
Contract category: Total; Obligations: $6,176.5; % of total
obligations: 100.0.
Source: Federal Procurement Data System (FPDS)--includes obligations
greater than $25,000.
[End of table]
Use of Individual Waivers in Fiscal Year 2001 Was Limited:
SBA approved 23 individual waivers in 2001. Seven individual waivers
were approved for one multiple-year contract at the National Institutes
of Health, which contracted with Integrated Concepts and Research
Corporation, an Alaskan Native Corporation participating in the 8(a)
program. The waivers allowed the firm to supply seven different types
of medical testing equipment from large manufacturers, including
scanners and cameras. The other waivers were requested for 16 separate
proposed contracts--4 at the Department of Energy, 3 at the U.S. Army,
and 9 at eight other agencies. In one of these cases, for example, the
Department of Energy obtained a waiver and contracted with an 8(a) firm
to make a one-time purchase of fiber optic ground wire.
Our analysis showed that $6.3 million in fiscal year 2001 obligations
were associated with individual waivers approved in fiscal year 2001.
This represents a fraction of 1 percent of the total of $6.2 billion
obligated on 8(a) contracts during the fiscal year. Although the 23
individual waivers were requested for 17 contracts, only 10 of these
contracts had obligations during the fiscal year. Six of the contracts
did not have fiscal year 2001 obligations because the contracts were
not signed during fiscal year 2001 or there was no delivery order
issued until fiscal year 2002. One contract was awarded to a company
that was not an 8(a) firm. The results of our analysis are shown in
table 2.
Table 2: Summary of 8(a) Contracts Resulting from SBA-Approved
Individual Waivers in Fiscal Year 2001:
Product: Medical test equipment; Dollars obligated in fiscal year 2001:
$818,176.
Product: Fiber optic equipment; Dollars obligated in fiscal year 2001:
1,991,000.
Product: Microsoft computer equipment; Dollars obligated in fiscal year
2001: 2,192,000.
Product: Microsoft software upgrades/licenses; Dollars obligated in
fiscal year 2001: 39,118.
Product: Cisco video telecommunication equipment; Dollars obligated in
fiscal year 2001: 103,000.
Product: Data tapes; Dollars obligated in fiscal year 2001: 149,000.
Product: Xerographic paper; Dollars obligated in fiscal year 2001:
442,866.
Product: TV/camera equipment; Dollars obligated in fiscal year 2001:
261,222.
Product: Generator engines; Dollars obligated in fiscal year 2001:
32,000.
Product: Custom configured information technology; Dollars obligated in
fiscal year 2001: 300,000.
Product: Total; Dollars obligated in fiscal year 2001: $6,328,382.
Source: Obligation data was obtained from the FPDS and supplemented by
data provided by agency contracting officers.
[End of table]
In the first 6 months of fiscal year 2002, the waivers approved in
fiscal year 2001 resulted in additional obligations of $5.9 million on
8(a) contracts.
Obligations Using Class Waivers Also Limited:
During fiscal year 2001, there were 85 SBA-approved class waivers that
contracting officers could use. Of these, 84 had been approved in prior
years. During fiscal year 2001, there were 209 purchases for products
covered by five class waivers, totaling $20.5 million in obligations on
8(a) contracts. This was a very small percentage of the total $6.2
billion obligated on 8(a) contracts during the fiscal year. The most
frequently used class waiver was for fruit and vegetable canning, as
shown in table 3.
Table 3: Class Waiver Obligations on 8(a) Contracts in Fiscal Year
2001:
Product: Telephone apparatus; Actions: 5; Dollars: $ 926,000.
Product: Electronic computer; Actions: 13; Dollars: 4,554,000.
Product: Other computer peripheral equipment; Actions: 49; Dollars:
2,205,000.
Product: Fruit and vegetable canning; Actions: 141; Dollars:
12,817,000.
Product: Iron and steel; Actions: 1; Dollars: 26,000.
Product: Total; Actions: 209; Dollars: $ 20,528,000.
Source: FPDS.
[End of table]
Some of SBA‘s Information on Class Waivers Was Inaccurate:
During our review of class waivers, we analyzed SBA information used by
agency contracting officers when they decide whether a class waiver is
available to purchase a product from an 8(a) firm. We determined that
SBA‘s listing of class waivers dated October 2000 included many
instances where product codes were not accurate or the product codes
were inconsistent with product definitions. For example, one product
was miscoded and classified as a nuclear battery when it should have
been classified as a storage battery. In another case, several
different chemicals were matched with a North American Industry
Classification System code that did not exist. According to SBA
officials, the inaccurate information on the class waiver listing
existed prior to the last change to its Web page in October 2000.
We discussed this problem with SBA officials and suggested that the
class waiver listing be revised. As a result, SBA revised the listing
for the 85 class waivers in effect during fiscal year 2001, and made
changes to 47 of the waiver codes or product descriptions. SBA
incorporated these changes into its Web site on November 15, 2002. SBA
did not know whether these inaccuracies affected any contracting
officer‘s decision to use the class waivers.
Agency Comments and Our Evaluation:
We provided a draft of our report to SBA for its review and comment.
SBA concurred with our findings, but suggested two changes in our
discussion of the nonmanufacturer rule. We agreed, and made the
suggested changes where appropriate. SBA‘s comments are enclosed.
Scope and Methodology:
To determine the extent of fiscal year 2001 obligations on 8(a)
contracts using waivers of the nonmanufacturer rule, we focused on
individual waivers approved by SBA in fiscal year 2001 and class
waivers available for use during that year. We discussed the waiver
process with officials at SBA headquarters (Washington, D.C.) and
reviewed case files for individual waivers approved during that period.
We then contacted federal agency contracting officers who requested the
individual waivers to identify which 8(a) firms were awarded the
contracts, and the number and value of purchases under those contracts.
Further, we compared this information to obligations reported in the
Federal Procurement Data System (FPDS). For the class waivers, we
reviewed SBA‘s listing of all active waivers in effect during fiscal
year 2001 and compared the product codes cited to all codes reported in
FPDS. We also relied on previous GAO reports, SBA reports, and
applicable laws and regulations for background information on waivers
and the 8(a) small business development program. We conducted our
review from May through October 2002 in accordance with generally
accepted government auditing standards.
As we agreed with your office, unless you publicly announce the
contents of this report earlier, we plan no further distribution of it
until 30 days from the date of this letter. We will then send copies of
this report to the Administrator, SBA, and the Director, Office of
Management and Budget. We will also make copies available to others
upon request. In addition, the report will be available at no charge on
the GAO Web site at http://www.gao.gov.
If you have any questions on this report, please contact me at (202)
512-8214 or Karen Zuckerstein at (202) 512-6785. Major contributors to
this report were William Bricking, Jean Lee, Sylvia Schatz, and Robert
Swierczek.
Sincerely yours,
William T. Woods
Director, Acquisition and
Sourcing Management:
Signed by William T. Woods:
Enclosure:
Comments From the U.S. Small Business Administration:
U.S. SMALL BUSINESS ADMINISTRATION WASHINGTON, D.C. 20416:
DEC 13 2002:
Mr. William T. Woods Director:
Acquisition and Sourcing Management U.S. General Accounting Office
Washington, DC 20548:
Dear Mr. Woods:
Thank you for your letter of November 27, 2002, requesting the U.S.
Small Business Administration‘s (SBA) comments of your draft briefing
report on Waivers of the Small Business Administration‘s
Nonmanufacturer Rule Have Limited Effect (GAO code 820028).
While GAO made no formal recommendations, we concur with the findings
in the report with the following exceptions found on page 1, paragraph
2, which needs to be clarified that the nonmanufacturer rule is a
requirement that applies equally to 8(a) and small business set-aside
programs. Also, refer to page 3, paragraph 3, concerning guidance on
existing class waivers. We suggest that the word ’guidance“ on existing
class waivers be changed to ’information“ on existing class waivers.
Should you have questions, please contact Linda Williams, Associate
Administrator for Government Contracting, at (202) 401-8150.
Sincerely,
Fred C. Armendariz:
Associate Deputy Administrator for Government Contracting
and Business Development:
Signed by Fred C. Armendariz:
FOOTNOTES
[1] A nonmanufacturer is also required to be small and a regular dealer
primarily engaged in the retail or wholesale trade.
[2] There could have been additional obligations in fiscal year 2001
related to individual waivers approved in prior years. Our scope did
not include a review of these waivers.
[3] A firm is considered a small business if it meets size standards
established by SBA for the firm‘s particular industry. Size standards
are based on either the average number of employees during the previous
12 months or sales averaged over the previous 3 years.
[4] A class of products is defined based on the North American Industry
Classification System and the General Services Administration‘s Product
and Service Codes Manual. In each six-digit code, there are
subdivisions of products that can be considered for waiver.
