[Federal Register Volume 59, Number 184 (Friday, September 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23631]
[[Page Unknown]]
[Federal Register: September 23, 1994]
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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 commodity to be
furnished by nonprofit agencies employing persons who are blind or have
other severe disabilities.
EFFECTIVE DATE: October 24, 1994.
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 May 20, 1994, the Committee for Purchase
From People Who Are Blind or Severely Disabled published notice (59 FR
26482) of proposed addition to the Procurement List.
Comments were received from the current contractor for this day
planner. The commenter claimed that the day planner proposed by the
designated nonprofit agency did not meet the Committee's suitability
requirements for addition to the Procurement List. Specifically, the
commenter claimed that the nonprofit agency has never produced the
required planner, has little experience in producing time management
planners, lacks the capacity to produce the planner in required
quantities, and cannot provide the customer support and training which
the commenter provides. The commenter also claimed that the nonprofit
agency's day planner infringes the commenter's copyrights and
trademarks in its day planner. The commenter further claimed that the
addition of this specific Government agency requirement to the
Procurement List is a ``bait and switch'' situation in which the
addition of a limited Government requirement for a specific day planner
will inexorably lead to addition of more planners and more Government
customers so the ultimate impact on the commenter will be severe.
The nonprofit agency which will produce the day planner has a long
history of producing calendar products for the Government. The
Committee based its conclusion that the nonprofit agency is capable of
producing the day planner and can do so in sufficient quantities on a
capability assessment by a central nonprofit agency industrial
engineer, the contracting activity's decision to waive inspection, and
the nonprofit agency's experience in producing other calendar products.
The Government agency has been procuring the day planner on a ``brand
name or equal'' basis, with the commenter's planner being the name
brand, so the capability findings mean that the nonprofit agency's day
planner serves all the functions of the commenter's planner which the
Government agency considers essential. The Government agency's
requirements do not include the customer support and training services
which the commenter claims to offer, so the nonprofit agency does not
need to provide them.
In order to address the commenter's claims concerning possible
copyright and trademark infringement, the Committee asked for and
received from the commenter a further discussion of the basis of its
claims and a copy of those features of its day planner which it
believed to be at issue in this claim, to compare with the nonprofit
agency's day planner and trademark registration. The Committee review
disclosed that there was no evidence to support the commenter's claim
that it had a trademark in the term ``Travel- Size Day Planner'' or
that either the commenter or the nonprofit agency used this term in its
respective day planners. Additionally, neither day planner used any
trademark which the other producer has registered.
The Committee's review also revealed that, while each day planner
possessed the elements required by the Government agency, none of the
approaches which the nonprofit agency's day planner used to meet the
requirements copied the information and method of presenting it which
the commenter's day planner used. The features which were unique to the
commenter's day planner, such as a delegation record, were not required
by the Government and did not appear in the nonprofit agency's day
planner. Consequently, the Committee has concluded that the nonprofit
agency's day planner does not appear to infringe the commenter's
copyrights and trademarks in its day planner.
The Committee is required to conduct an informal rulemaking
procedure with a public comment period for each proposal to add a
partial or total Government requirement for a commodity or service to
the Procurement List. If the Committee were to propose to add
additional day planners to the Procurement List, or even extend the
scope of the Government requirement to purchase the day planner which
is the subject of the current addition to other Government agencies,
the commenter could present its concerns to the Committee on each
occasion, and the Committee would be required to take them into account
in making its decision. In addition, Committee regulations require the
Committee to take into account the impacts of eariler actions on
affected contractors such as the commenter. Accordingly, the ``bait and
switch'' situation described by the contractor could not occur.
In connection with its ``bait and switch'' claim, the commenter has
requested an assurance that the Committee will not add any other
products the commenter makes to the Procurement List for ten years. The
Committee can not make this assurance without compromising its
statutory mission to increase employment for people with severe
disabilities. In a 1987 court opinion, the Committee's refusal to give
a similar assurance to another contractor was upheld by the court,
which stated that to do otherwise would have been an abdication of the
Committee's responsibility.
In concluding its comments, the commenter reproduced excerpts from
a 1938 Congressional debate on the enactment of the initial version of
the Committee's statute to the effect that Congress did not intend for
commodities to be added to the Procurement List if the action would
have any impact on private manufacturers. These same excerpts were
reproduced in a 1970 court opinion construing the 1938 statute.
However, it should be noted that the Committee's statute was
extensively revised in 1971, and the same court in a 1978 opinion
upheld the Procurement List addition with an impact many times the size
of the impact of the current addition by noting that the legislative
intent of the act as revised was to accept the fact that every
Procurement List addition would deprive private industry of a
substantial amount of potential business.
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 economic 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:
Organizer, Day Planner, Travel Size 7530-01-D08-7294
(Requirements for the Defense Supply Service, 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. 94-23631 Filed 9-22-94; 8:45 am]
BILLING CODE 6820-33-P
