[Federal Register Volume 60, Number 236 (Friday, December 8, 1995)]
[Notices]
[Pages 63026-63027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29957]
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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
Procurement List; Addition
AGENCY: Committee for Purchase From People Who Are Blind or Severely
Disabled.
ACTION: Addition to the Procurement List.
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SUMMARY: This action adds to the Procurement List a service to be
furnished by nonprofit agencies employing persons who are blind or have
other severe disabilities.
EFFECTIVE DATE: January 8, 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 29, 1995, the Committee for
Purchase From People Who Are Blind or Severely Disabled published
notice (60 F.R. 50558) of proposed addition to the Procurement List.
Comments were received from the current contractor for this service
before the notice of proposed rulemaking was published in the Federal
Register. Some of these comments were transmitted to the Committee by a
Member of Congress. The Committee initially was asked to add janitorial
services at a group of buildings to the Procurement List, but the
request was revised to include only the Ariel Rios Building to minimize
the impact on the current contractor.
Despite the limitation, the contractor continued to claim that the
proposed addition would have a severe impact on the company. The
contractor claimed that the percentage of contract revenues it would
lose on its award for the remaining buildings exceeds a ``rule of
thumb'' percentage beyond which the Committee will consider impact to
be severe. The contractor also indicated that it has been a continuous
supplier of building maintenance at various Government sites and is
thus more dependent on such sales to the Government. The contractor
claimed that the remaining buildings in the group would soon be closing
for extensive renovations, so the limitation of the Procurement List
addition to the one building would not lessen the impact on the
contractor.
The Committee's criteria on permissible impact on a current
contractor for a Procurement List addition, at 41 CFR 51-2.4(a)(4),
look at the impact on the total sales of a company, not the percentage
of revenue for a particular contract. The Committee has no ``rule of
thumb'' for total sales percentage, as impact determinations are made
on the facts of each situation. In this situation, the percentage of
sales which the contractor will lose is well below the percentage cited
as the ``rule of thumb'' level and, even when consideration is given to
the contractor's dependence on Government sales, does not reach a level
which would be considered severe adverse impact. In addition, the
contracting activity has informed the Committee that the other two
buildings in the group will not close for renovation until April and
December 1997, respectively, later than the contractor contended, which
should give the contractor ample time to develop other business to
replace business temporarily lost to the renovations.
The contractor also claimed that addition of the services at the
Ariel Rios Building does not meet the legislative intent of the
Committee's statute, the Javits-Wagner-O'Day (JWOD) Act, 41 U.S.C. 46-
48c, in regard to the labor operations to be performed. According to
the contractor, the JWOD Act requires that 75 percent of the total
labor operations to be performed in providing these services must be
done by people with a severe disability.
The contractor has misconstrued the labor requirement in the JWOD
Act. In order to qualify for participation in the JWOD Program, a
nonprofit agency employing people with severe disabilities must employ
such people for not less than 75 percent of the overall total of direct
labor performed on commodities and services which the nonprofit agency
provides, whether or not these commodities or services are provided to
the Government under the JWOD Program. 41 U.S.C. 48b(4)(C). There is no
statutory requirement for a specific percentage of direct labor on a
JWOD contract, although it is anticipated that the designated nonprofit
agency performing the services at the Ariel Rios Building will reach a
75 percent disabled direct labor level on that contract. Addition of
these services to the Procurement List will thus create substantial
work for people with disabilities, and is not a ``front'' for
[[Page 63027]]
awarding a contract to people without disabilities as the contractor
contended. The statutory definition of direct labor, at 41 U.S.C.
48b(5), excludes activities such as supervision, administration,
inspection and shipping, which are considered indirect labor by the
Committee and not counted in assessing direct labor ratios.
The contractor also contended that the Committee has abused its
authority to the disadvantage of small businesses and the competitive
process of Government contracting. While the JWOD Program's share of
Government contracts has grown in recent years, it is still only a very
small part of total Government contracting, and is dwarfed by the share
of Government contracts which goes to small businesses. The
contractor's claim that the JWOD Program has permitted abuses of the
competitive contracting process is based on the contractor's just-
discussed misunderstanding of the JWOD Act's direct labor requirement,
and is thus without foundation.
The contractor also attempted, in its comments relayed by a Member
of Congress, to characterize the JWOD Act as requiring only that a
Government agency give ``priority consideration'' to purchasing JWOD
commodities and services, with the mandatory nature of such
procurements coming only from a Committee regulation. However, the
mandate comes directly from the JWOD Act, at 41 U.S.C. 48, which
requires Government agencies intending to procure commodities or
services on the Procurement List to buy them from a JWOD nonprofit
agency, unless they are not available or are commodities available from
Federal Prison Industries.
After consideration of the material presented to it concerning
capability of qualified nonprofit agencies to provide the service, fair
market price, and impact of the addition on the current or most recent
contractors, the Committee has determined that the service listed below
is a 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 service to the
Government.
2. The action will not have a severe economic impact on current
contractors for the service.
3. The action will result in authorizing small entities to furnish
the service 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 service proposed for addition to the
Procurement List.
Accordingly, the following service is hereby added to the
Procurement List: Janitorial/Custodial, Ariel Rios Federal Building,
12th & Pennsylvania Avenue, NW, Washington, DC.
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. 95-29957 Filed 12-7-95; 8:45 am]
BILLING CODE 6820-33-P
