[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)]
[Notices]
[Pages 7508-7510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02940]
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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
Procurement List Additions and Deletions
AGENCY: Committee for Purchase From People Who Are Blind or Severely
Disabled.
ACTION: Additions to and deletions from the procurement list.
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SUMMARY: This action adds products and a service to the Procurement
List that will be furnished by nonprofit agencies employing persons who
are blind or have other severe disabilities, and deletes products from
the Procurement List previously furnished by such agencies.
DATES: Effective Date: 3/13/2016.
ADDRESSES: Committee for Purchase From People Who Are Blind or Severely
Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-
4149.
FOR FURTHER INFORMATION CONTACT: Barry S. Lineback, Telephone: (703)
603-7740, Fax: (703) 603-0655, or email [email protected].
SUPPLEMENTARY INFORMATION:
Additions
On May 8, 2015 (80 FR 26548-26549) and November 16, 2015 (80 FR
70761-70762), the Committee for Purchase From People Who Are Blind or
Severely Disabled published notices of proposed additions to the
Procurement List.
After consideration of the material presented to it concerning
capability of qualified nonprofit agencies to provide the products and
service and impact of the additions on the current or most recent
contractors, the Committee has determined that the products and service
listed below are suitable for procurement by the Federal Government
under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
Regulatory Flexibility Act Certification
I certify that the following action will not have a significant
impact on a substantial number of small entities. The major factors
considered for this certification were:
1. The action will not result in any additional reporting,
recordkeeping or other compliance requirements for small entities other
than the small organizations that will furnish the products and service
to the Government.
2. The action will result in authorizing small entities to furnish
the products and service to the Government.
3. There are no known regulatory alternatives which would
accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C.
8501-8506) in connection with the products and service proposed for
addition to the Procurement List.
End of Certification
Accordingly, the following products and service are added to the
Procurement List:
Products
Product Name(s)--NSN(s): Coat, Army Combat Uniform, Permethrin,
Unisex, OCP 2015
8415-01-623-5052--XS-XXS
8415-01-623-5162--XS-XS
8415-01-623-5165--XS-S
8415-01-623-5166--XS-R
8415-01-623-5169--XS-L
8415-01-623-5170--XS-XL
8415-01-623-5172--S-XXS
8415-01-623-5174--S-XS
8415-01-623-5178--S-S
8415-01-623-5180--S-R
8415-01-623-5182--S-L
8415-01-623-5236--S-XL
8415-01-623-5237--M-XXS
8415-01-623-5525--M-XS
8415-01-623-5526--M-S
8415-01-623-5528--M-R
8415-01-623-5529--M-L
8415-01-623-5534--M-XL
8415-01-623-5537--M-XXL
8415-01-623-5541--L-XXS
8415-01-623-5542--L-XS
8415-01-623-5543--L-S
8415-01-623-5552--L-R
8415-01-623-5553--L-L
8415-01-623-5554--L-XL
8415-01-623-5557--L-XXL
8415-01-623-5740--XL-XXS
8415-01-623-5742--XL-XS
8415-01-623-5789--XL-S
8415-01-623-5790--XL-R
8415-01-623-5793--XL-L
8415-01-623-5795--XL-XL
8415-01-623-5796--XL-XXL
8415-01-623-5797--XXL-R
8415-01-623-5801--XXL-L
8415-01-623-5803--XXL-XL
8415-01-623-5805--XXL-XXL
Mandatory Source(s) of Supply: Industries of the Blind, Inc.,
Greensboro, NC, Mississippi Industries for the Blind, Jackson, MS,
San Antonio Lighthouse for the Blind, San Antonio, TX
Mandatory Purchase For: US Army; surge requirements as determined by
DLA Troop Support that are above and beyond those quantities of ACU
Coats allocated to small business, large business, and/or other
purchase priority programs
Contracting Activity: Defense Logistics Agency Troop Support,
Philadelphia, PA
Distribution: C-List
The Committee for Purchase From People Who Are Blind or Severely
Disabled (Committee) operates pursuant to statutory and regulatory
requirements. Committee regulations state for a commodity or service to
be suitable for addition to the Procurement List, each of the following
criteria must be satisfied: The addition to the Procurement List must
demonstrate a potential to generate employment of people who are blind
or have other severe disabilities; the nonprofit agency proposing to
provide the product or service to the Federal Government must be
qualified to participate in the AbilityOne program as defined in
separate Committee regulations; the nonprofit agency must prove itself
capable to deliver the product or service at the quality standard and
delivery schedule required by the Government; and the Committee reviews
the level of impact on the current contractor for the commodity or
service.
Federal Prison Industries (FPI) submitted a comment objecting to
the proposed addition of the U.S. Army Combat Uniform Coat to the
Procurement List. FPI asserts in its comments that, for items already
listed on FPI's Schedule of Products like the proposed U.S. Army Combat
Uniform Coat, a designated central nonprofit agency of the AbilityOne
program must seek a waiver of FPI's purchase priority before requesting
to add the same product to the Committee's Procurement List pursuant to
41 CFR 51-3.3. Normally, FPI products have a purchase priority over
AbilityOne products, as stated in FAR subparts 8.002, 8.603 and 8.704.
However, 10 U.S.C. 2410n and DFARS subpart 208.602-70 provide that,
if FPI's share for the particular product is greater than five percent
of the Department of Defense (DOD) market, then DOD must use
competitive and fair opportunity procedures in order to purchase
additional quantities from FPI, permitting FPI to participate in such
competitive process which establishes that FPI no longer has a
[[Page 7509]]
mandatory priority. The plain reading of both the statute and FAR
provision is that FPI temporarily loses its mandatory purchase priority
in DOD procurements when FPI provides more than five percent of the
particular product market share to the DOD. In February 2015, DOD
published its annual memorandum reporting that FPI's share of the DOD
market for special purpose clothing, like the U.S. Army Combat Uniform
Coat, is greater than five percent and must be competed in accordance
with section 2410n and subpart 208.602-70. Because FPI does not have a
purchase priority for the U.S. Army Combat Uniform Coat, then a
designated AbilityOne Program central nonprofit agency is not required
to obtain a decision from FPI as to whether it will exercise or waive
its purchase priority before requesting to add a product to the
Committee's Procurement List. Also, regardless of whether or not FPI
has a particular product purchase priority, no statute or regulation
prevents the simultaneous listing of the identical product on the
Committee's Procurement List.
In fact, the FAR subparts 8.603 and 8.704 contemplate a purchasing
priority ``when identical supplies or services are on the Procurement
List and the Schedule of Products issued by the Federal Prison
Industries, Inc.'' For this particular product, FPI has lost its
priority by operation of law, but the AbilityOne priority remains
effective.
Section 827 of National Defense Authorization Act for Fiscal Year
2008 (NDAA for FY2008, now 10 U.S.C. 2410n) and supplemental Defense
Federal Acquisition Regulation 208.602-70 do not apply to the Javits-
Wagner-O'Day (JWOD) Act purchase priority established in 41 U.S.C. 8504
and implemented in FAR subpart 8.7. As preset forth at 10 U.S.C. 2410n,
if FPI provides a significant market share of a particular product to
DOD, then, by statute, DOD procurement activities may purchase a
product listed in the latest edition of the Federal Prison Industries
catalog for which Federal Prison Industries has a significant market
share [defined as greater than 5%] only if the Secretary uses
competitive procedures for the procurement or the product or makes an
individual purchase under a multiple award contract in accordance with
the competition requirements applicable to such contract. In conducting
such a competition, the Secretary shall consider a timely offer from
Federal Prison Industries.
See 10 U.S.C. 2410n (emphasis added). That language does not direct
or permit the Secretary--either expressly or implicitly--to bypass the
purchase priorities stated in the FAR subparts setting forth those
purchase priorities. Thus, the language in section 2410n permits DOD to
purchase products from FPI only when the Secretary conducts a
competitive procurement.
In addition, the basis for both competitive and fair opportunity
procurement procedures is the Competition in Contract Act (CICA) (10
U.S.C. 2304 or 41 U.S.C. 3304) and FAR Subpart 6. Both 10 U.S.C.
2304(c)(5) and FAR Subpart 6.302-5, the implementing regulation,
provide that an Agency is not required to follow CICA when expressly
required by another statute to use different procurement procedures.
The JWOD purchase priority, set forth at 41 U.S.C. 8504, is listed in
FAR Subpart 6.302-5 as an express exception to CICA and full and open
competition. While FPI is precluded by law from exercising its purchase
priority for DOD procurements when it already provides greater than 5%
of the market share for a particular product, competition in accordance
with the Competition in Contracting Act does not apply because the JWOD
purchase priority is applicable. The JWOD Act states:
Sec. 8504. Procurement Requirements for the Federal Government
(a) In General.--An entity of the Federal Government intending to
procure a product or service on the procurement list referred to in
section 8503 of this title shall procure the product or service from a
qualified nonprofit agency for the blind or a qualified nonprofit
agency for other severely disabled in accordance with regulations of
the Committee and at the price the Committee establishes if the product
or service is available within the period required by the entity.
(b) Exception.--This section does not apply to the procurement of a
product that is available from an industry established under chapter
307 of title 18 and that is required under section 4124 of title 18 to
be procured from that industry.
Pursuant to section 8504, an exception to the JWOD priority exists
for procurement of a ``product that is available'' from FPI. When an
FPI product reaches the market share of sales specified in section
2410n the product is no longer available from FPI on a priority basis
pursuant to 18 U.S.C. 4124.
Therefore, if the same product is listed on the Procurement List,
then Federal agencies must purchase from the designated nonprofit
agencies (assuming nonprofits are able to deliver the substantially
same product in the delivery window required), and cannot elect to
pursue the competitive process outlined in section 2410n while ignoring
the priorities set forth in the JWOD Act 41 U.S.C. 8504, and FAR
subparts 8.002, 8.603 and 8.704.
Service
Service Type: Furniture Design and Configuration Service
Service Is Mandatory For: New Hampshire National Guard, Newington,
NH
Mandatory Source of Supply: Industries for the Blind Inc., West
Allis, WI
Contracting Activity: United States Property and Fiscal Office
(USPFO), New Hampshire National Guard, Pease ANGB, NH
Deletions
On January 8, 2016 (81 FR 916-917), the Committee for Purchase From
People Who Are Blind or Severely Disabled published notice of proposed
deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee
has determined that the products listed below are no longer suitable
for procurement by the Federal Government under 41 U.S.C. 8501-8506 and
41 CFR 51-2.4.
Regulatory Flexibility Act Certification
I certify that the following action will not have a significant
impact on a substantial number of small entities. The major factors
considered for this certification were:
1. The action will not result in additional reporting,
recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish
the products to the Government.
3. There are no known regulatory alternatives which would
accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C.
8501-8506) in connection with the products deleted from the Procurement
List.
End of Certification
Accordingly, the following products are deleted from the
Procurement List:
Products
NSN(s)--Product Name(s):
7510-01-600-8033--Dated 2015 18-month Paper Wall Planner, 24'' x
37''
7510-01-600-8044--Dated 2015 12-Month 2-Sided Laminated Wall
Planner, 24'' x 37''
Mandatory Source(s) of Supply: The Chicago Lighthouse for People Who
Are Blind or Visually Impaired, Chicago, IL
Contracting Activity: General Services Administration, FSS Household
and Industrial Furniture, Arlington, VA
NSN(s)--Product Name(s):
7510-01-600-7560--Monthly Wall Calendar, Dated 2015, Jan-Dec,
8\1/2\'' x 11''
[[Page 7510]]
7530-01-600-7569--Daily Desk Planner, Dated 2015, Wire bound,
Non-refillable, Black Cover
7510-01-600-7574--Wall Calendar, Dated 2015, Wire Bound w/
Hanger, 12'' x 17''
7530-01-600-7603--Monthly Desk Planner, Dated 2015, Wire Bound,
Non-refillable, Black Cover
7530-01-600-7613--Weekly Desk Planner, Dated 2015, Wire Bound,
Non-refillable, Black Cover
7530-01-600-7628--Weekly Planner Book, Dated 2015, 5'' x 8''
7510-01-600-7631--Wall Calendar, Dated 2015, Wire Bound w/
hanger, 15.5'' x 22''
Mandatory Source(s) of Supply: The Chicago Lighthouse for People Who
Are Blind or Visually Impaired, Chicago, IL
Contracting Activity: General Services Administration, New York, NY
NSN(s)--Product Name(s): 4240-00-803-5839--Bag, Waterproof
Mandatory Source(s) of Supply: Winston-Salem Industries for the
Blind, Inc., Winston-Salem, NC
Contracting Activity: W40M Northern Region Contract Office, Fort
Belvoir, VA
Barry S. Lineback,
Director, Business Operations.
[FR Doc. 2016-02940 Filed 2-11-16; 8:45 am]
BILLING CODE 6353-01-P