[Federal Register Volume 60, Number 250 (Friday, December 29, 1995)]
[Notices]
[Pages 67349-67350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31493]
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[[Page 67350]]
COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
Procurement List Additions
AGENCY: Committee for Purchase From People Who Are Blind or Severely
Disabled.
ACTION: Additions to the procurement list.
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SUMMARY: This action adds to the Procurement List mimeograph and
duplicating paper to be furnished by nonprofit agencies employing
persons who are blind or have other severe disabilities.
EFFECTIVE DATE: January 29, 1996.
ADDRESSES: Committee for Purchase From People Who Are Blind or Severely
Disabled, Crystal Square 3, Suite 403, 1735 Jefferson Davis Highway,
Arlington, Virginia 22202-3461.
FOR FURTHER INFORMATION CONTACT: Beverly Milkman (703) 603-7740.
SUPPLEMENTARY INFORMATION: On September 22, 1995, the Committee for
Purchase From People Who Are Blind or Severely Disabled published
notice (60 F.R. 49263) of proposed addition to the Procurement List.
Comments were received from a lawyer representing the current
contractor for this mimeograph and duplicating paper. The lawyer
claimed that addition of the paper to the Procurement List would
violate the Committee's statute, the Javits-Wagner-O'Day (JWOD) Act, 41
U.S.C. 46-48c, because the fair market price established for the paper
could not meet what the lawyer claimed to be the accepted legal meaning
of that term, which is essentially the lowest possible price on which a
buyer and seller could agree for the item in question.
The JWOD Act considers the determination of whether a commodity or
service is suitable for addition to the Procurement List to be a
separate Committee function from the establishment and modification as
conditions change of a fair market price for the commodity or service.
41 U.S.C. 47 (a) & (b). The statutory requirement to use the informal
rulemaking procedure set forth in 5 U.S.C. 553 applies only to the
addition decision, and not the determination of a fair market price.
This point was emphasized in a court decision which led to a 1994
revision of the Committee's regulations in this area. Consequently, the
lawyer's claim is not one which the Committee is required to consider
in making a decision to add mimeograph and duplicating paper to the
Procurement List.
The suitability factors which the Committee considers in adding
commodities and services to the Procurement List are set forth in its
regulations at 41 CFR 51-2.4. The lawyer has attempted to link his
pricing argument to one of these factors, capability of the designated
nonprofit agency to produce a commodity, by claiming that this factor
requires the nonprofit agency to demonstrate a capability to produce
the commodity at what the lawyer considers to be a fair market price.
The lawyer relied on an obsolete and ambiguous formulation of the
Committee's suitability regulation to make the connection between
nonprofit agency capability and fair market price. The Committee
revised its regulation in 1991 to remove this ambiguous language. As
the lawyer has been informed, the Committee has never agreed with the
interpretation he placed on the regulation.
In addition, the Committee does not believe that its discretion in
setting fair market prices is as limited as the lawyer claimed. In a
second comment letter, the lawyer admitted that his point was that
``fair market price'' must have an objective meaning rather than
permitting the Committee to be totally arbitrary in setting prices, and
that the objective meaning left room for some discretion. His
difference with the Committee is thus over the extent of the
Committee's discretion to set prices. The Committee believes that the
JWOD Act and its legislative history allow for the discretion which the
Committee exercises in setting prices under its fair market pricing
policy. The initial fair market prices established for the mimeograph
and duplicating paper are in accord with this policy.
After consideration of the material presented to it concerning
capability of qualified nonprofit agencies to provide the commodities,
fair market price, and impact of the addition on the current or most
recent contractors, the Committee has determined that the commodities
listed below are suitable for procurement by the Federal Government
under 41 U.S.C. 46-48c and 41 CFR 51-2.4. 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 commodities to the
Government.
2. The action will not have a severe economic impact on current
contractors for the commodities.
3. The action will result in authorizing small entities to furnish
the commodities to the Government.
4. There are no known regulatory alternatives which would
accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-
48c) in connection with the commodities proposed for addition to the
Procurement List.
Accordingly, the following commodities are hereby added to the
Procurement List:
Paper, Mimeograph and Duplicating
7530-00-234-7169
7530-00-285-3070
7530-00-364-3035
7530-00-286-6178
7530-01-072-2533
7530-01-074-1832
7530-00-213-7125
7530-00-221-0805
7530-00-224-6754
7530-00-239-9747
7530-00-253-0986
7530-01-037-5555
7530-01-072-2534
7530-01-240-4768
This action does not affect current contracts awarded prior to the
effective date of this addition or options exercised under those
contracts.
Beverly L. Milkman,
Executive Director.
[FR Doc. 95-31493 Filed 12-28-95; 8:45 am]
BILLING CODE 6820-33-P
