81 FR 7508 - Procurement List Additions and Deletions

COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED

Federal Register Volume 81, Issue 29 (February 12, 2016)

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.

[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)]
[Notices]
[Pages 7508-7510]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-02940]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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