Procurement List Additions and Deletions, 7508-7510 [2016-02940]
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Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Notices
305(c) of the Magnuson-Stevens Fishery
Conservation and Management Act,
provided the public has been notified of
the intent to take final action to address
the emergency.
Special Accommodations
The public listening station is
physically accessible to people with
disabilities. Requests for sign language
interpretation or other auxiliary aids
should be directed to Mr. Kris
Kleinschmidt at (503) 820–2425 at least
5 days prior to the meeting date.
Dated: February 9, 2016.
Tracey L. Thompson,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2016–02933 Filed 2–11–16; 8:45 am]
BILLING CODE 3510–22–P
COMMITTEE FOR PURCHASE FROM
PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
Procurement List Additions and
Deletions
Committee for Purchase From
People Who Are Blind or Severely
Disabled.
ACTION: Additions to and deletions from
the procurement list.
AGENCY:
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
CMTEFedReg@AbilityOne.gov.
SUPPLEMENTARY INFORMATION:
asabaliauskas on DSK9F6TC42PROD with NOTICES2
SUMMARY:
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
VerDate Sep<11>2014
17:38 Feb 11, 2016
Jkt 238001
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-WagnerO’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
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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
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asabaliauskas on DSK9F6TC42PROD with NOTICES2
Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Notices
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 JavitsWagner-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
VerDate Sep<11>2014
17:38 Feb 11, 2016
Jkt 238001
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:
§ 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
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7509
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-WagnerO’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, 81⁄2″ x
11″
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7510
Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Notices
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, Nonrefillable, 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: WinstonSalem 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
Committee for Purchase From
People Who Are Blind or Severely
Disabled.
ACTION: Addition to the procurement
list.
AGENCY:
This action adds a service to
the Procurement List that will be
provided by nonprofit agencies
employing persons who are blind or
have other severe disabilities.
DATES: Effective Date: 2/29/2016.
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
CMTEFedReg@AbilityOne.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
asabaliauskas on DSK9F6TC42PROD with NOTICES2
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 provide the
service to the Government.
2. The action will result in
authorizing small entities to provide the
service to the Government.
3. There are no known regulatory
alternatives which would accomplish
the objectives of the Javits-WagnerO’Day Act (41 U.S.C. 8501–8506) in
connection with the service proposed
for addition to the Procurement List.
Accordingly, the following service is
added to the Procurement List:
Procurement List Addition
Addition
On December 18, 2015 (80 FR 79031–
79032), the Committee for Purchase
From People Who Are Blind or Severely
Disabled published notice of proposed
additions to the Procurement List.
After consideration of the material
presented to it concerning capability of
qualified nonprofit agencies to furnish
the service and impact of the additions
17:38 Feb 11, 2016
Regulatory Flexibility Act Certification
End of Certification
COMMITTEE FOR PURCHASE FROM
PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
VerDate Sep<11>2014
on the current or most recent
contractors, the Committee has
determined that the service listed below
is suitable for procurement by the
Federal Government under 41 U.S.C.
8501–8506 and 41 CFR 51–2.4.
Jkt 238001
Service
Service Type: Help Desk Support Service
Service is Mandatory For: U.S. Army, Army
Training Support Center, Combined
Arms Center for Training, 3306 Wilson
Avenue, Joint Base Langley-Eustis, VA
Mandatory Source(s) of Supply:
ServiceSource, Inc., Alexandria, VA,
Orion Career Works, Auburn, WA
Contracting Activity: Dept of the Army,
W6QM MICC–FDO Ft Eustis, Fort Eustis,
VA
Additional Information
The Committee finds good cause to
dispense with the 30-day delay in the
effective date normally required by the
Administrative Procedure Act. 5 U.S.C.
553(d). This addition to the Committee’s
Procurement List is a reaction to the
expiration of the U.S. Army help desk
support services contract. The Federal
customer contacted, and has worked
with the AbilityOne Program since
April 2015 to fulfill this service need
under the AbilityOne Program. To avoid
performance disruption, and the
possibility that the U.S. Army will have
no viable alternative but to procure this
service, this addition must be effective
on February 29, 2016, ensuring timely
execution for a March 1, 2016, start date
while still allowing 18 days for
comment. Pursuant to its own
regulation 41 CFR 51–2.4, the
Committee has been in contact with one
of the affected parties, the incumbent of
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the expiring contract, since May 2015
and determined that no severe adverse
impact exists. The Committee also
published a notice of proposed
Procurement List addition in the
Federal Register on December 18, 2015,
and did not receive any comments from
any interested persons, including from
the incumbent contractor. This addition
will not create a public hardship and
has limited effect on the public at large,
but rather will create new jobs for other
affected parties—people with severe
disabilities in the AbilityOne program
who otherwise face challenges locating
employment and will enable Federal
customer operations to continue
without interruption.
Barry S. Lineback,
Director, Business Operations.
[FR Doc. 2016–02941 Filed 2–11–16; 8:45 am]
BILLING CODE 6353–01–P
COMMITTEE FOR PURCHASE FROM
PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
Procurement List, Proposed Additions
And Deletion
Committee for Purchase From
People Who Are Blind or Severely
Disabled.
ACTION: Proposed Additions to and
Deletion from the Procurement List.
AGENCY:
The Committee is proposing
to add products to the Procurement List
that will be furnished by nonprofit
agencies employing persons who are
blind or have other severe disabilities,
and deletes a product previously
furnished by such agency.
DATES: Comments Must Be Received On
Or Before: 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 or To Submit
Comments Contact: Barry S. Lineback,
Telephone: (703) 603–7740, Fax: (703)
603–0655, or email CMTEFedReg@
AbilityOne.gov.
SUMMARY:
This
notice is published pursuant to 41
U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its
purpose is to provide interested persons
an opportunity to submit comments on
the proposed actions.
SUPPLEMENTARY INFORMATION:
Additions
If the Committee approves the
proposed additions, the entities of the
Federal Government identified in this
notice will be required to procure the
products listed below from nonprofit
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]]>Agencies
[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.
-----------------------------------------------------------------------
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 CMTEFedReg@AbilityOne.gov.
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
