[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