[Federal Register Volume 60, Number 37 (Friday, February 24, 1995)]
[Notices]
[Pages 10371-10372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4702]
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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 tabulating machine
paper to be furnished by nonprofit agencies employing persons who are
blind or have other severe disabilities.
EFFECTIVE DATE: March 27, 1995.
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 July 29, 1994, the Committee for Purchase
From People Who Are Blind or Severely Disabled published notice (59 FR
38586) of proposed addition to the Procurement List.
Comments were received from a contractor for this type of paper and
two trade associations. One of the trade associations objected to the
proposal because it is concerned about the impact of taxpayer-sponsored
printing operations, largely in the Federal Prison Industries, on an
industry which it claims has very small profit margins. The other trade
association reiterated its earlier objections to the Committee's 1991
addition of this paper to the Procurement List, which centered on the
action's substantial adverse impact on the entire business forms
industry. The association stated, without providing specific details,
that the industry's experience since that supported its earlier
contentions.
Neither trade association provided any data that would support a
contention that the Committee's action in adding a portion of the
Government requirement for this particular type of paper to the
Procurement List would have a severe adverse impact on the entire
business forms industry. The Committee believes that what it is adding
to the Procurement List is only a small part of the total demand for
this paper, as the Government version is identical to what is widely
used in the private sector and the private market is considerably
larger than the Government market. Moreover, other types of business
forms are purchased in both the Government and commercial markets.
Consequently, the Committee does not believe that its action with
respect to one particular type of paper purchased by the Government
will have a severe impact on the entire business forms industry.
The contractor submitted information on several firms in the
industry which had suffered from declining Government sales, including
itself, and claimed that the 1991 addition of this paper to the
Procurement List had caused these impacts, as it indicated Government
sales had declined but commercial sales had not. The contractor also
attempted to incorporate in its comments by reference all materials
submitted by all parties to the 1991 addition of the paper to the
Procurement List, the Committee's subsequent reconsideration of its
addition decision, and resulting litigation, including all court
opinions filed by the trial and appellate courts.
The Committee rejected the attempted incorporation by reference as
unreasonably burdensome on the Committee's resources, and asked the
contractor to provide the documents which it considered relevant to its
present arguments. While it provided an extensive collection of
documents in response, the contractor indicated that the Committee
should not consider the contractor's contentions to be limited to what
appeared in those specific documents. The contractor also indicated
that all the materials supported its contention that the Committee is
required to make four determinations, which the contractor enumerated,
before it can decide in accordance with its regulations that a
commodity or service may be added to the Procurement List.
Accordingly, the Committee believes that its duty to explain its
conclusion that the paper may be properly added to the Procurement List
will be met by addressing these four determination requirements and the
contractor's industry impact contentions.
These determinations are that: (1) The nonprofit agencies have the
capacity to produce the paper; (2) the level of blind employment
claimed by the nonprofit agencies will be used in producing the paper;
(3) the nonprofit agencies can produce the paper at the fair market
price established by the Committee; and (4) there will not be a severe
adverse impact on current suppliers. These determinations are the
contractor's summation of the Committee's regulatory criteria for
adding a commodity or service to the Procurement List.
The Committee's determinations that the nonprofit agencies have the
capacity [[Page 10372]] to produce the paper and will use the amount of
blind direct labor claimed by the participating nonprofit agencies are
supported by the Committee's industrial engineer's assessments of the
data submitted and inspection of a producing facility. In addition, the
nonprofit agencies successfully produced the paper for some time before
the previous addition to the Procurement List was voided by the
appellate court. As a result of this performance, the Federal agency
which buys paper for the Government waived its opportunity to conduct
its own inspection of the nonprofit agencies to determine their
capability.
The Committee does not agree with the contractor that its
regulations require it to make a determination that the nonprofit
agencies can produce the paper at the fair market price. The
contractor's contention is based on its reading of a Committee
regulation in effect in 1991. That interpretation of the regulatory
language was not consistent with the Committee's statute, which
separates the establishment of a fair market price from the suitability
determination which is subject to the rulemaking requirements of the
Administrative Procedure Act. To remove the appearance of
inconsistency, the Committee in 1994 amended its regulations to remove
the fair market price determination from the factors the Committee must
consider to decide that an item is suitable for addition to the
Procurement List. The Committee does require the nonprofit agencies to
agree to provide the item in question at the fair market price when it
adds a commodity or service to the Procurement List, and all five
nonprofit agencies which will produce this paper have provided their
agreement to provide it at the fair market price established by the
Committee.
The commenting contractor is the current supplier of this paper to
the Government. The Committee used the sales figure provided by the
contractor for its fiscal year 1994, adjusted to account for the fact
that the figure includes no Government sales of the paper, as the basis
of its impact determination for the contractor. The Committee has also
reduced the portion of the Government requirement for the paper being
added to the Procurement List by approximately 25 percent from the
original proposal, by removing the requirement for one of the
purchasing agency's four depots from the scope of the addition. This
reduced addition represents a percentage of the contractor's adjusted
sales which is well below the level the Committee normally considers to
constitute severe adverse impact. Because the contractor will continue
to have an opportunity to supply the paper to the Government, and
because the contractor also supplies other paper items to the
Government regularly, the Committee believes that the other economic
impacts on itself cited in the contractor's comments do not add
sufficiently to the impact to raise it to a severe level. The
contractor appears to concur, as it recently informed the Committee
that it would not challenge the Committee's action if the Committee
added to the Procurement List only the supply requirements for the
three depots covered by this rulemaking.
While the commenting contractor submitted more information to
support a claim of industry impact than did the trade associations, it
did not establish conclusively that this impact was due to the
Committee's action in 1991, rather than to Government downsizing or
other factors. Consequently, the Committee believes that the conclusion
it reached in rejecting the association's claims of industry impact
would apply as well to the contractor's claim, for the reasons already
stated.
After consideration of the material presented to it concerning
capability of qualified nonprofit agencies to provide the commodity,
fair market price, and impact of the addition on the current or most
recent contractors, the Committee has determined that the commodity
listed below is 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 commodity to the
Government.
2. The action does not appear to have a severe adverse impact on
current contractors for the commodity.
3. The action will result in authorizing small entities to furnish
the commodity 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 commodity proposed for addition to the
Procurement List.
Accordingly, the following commodity is hereby added to the
Procurement List:
Paper, Tabulating Machine
7530-00-800-0996
(Requirements for the Palmetto, GA; Fort Worth, TX; and Stockton, CA
depots only)
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. 95-4702 Filed 2-23-95; 8:45 am]
BILLING CODE 6820-33-P
