[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