[Federal Register Volume 65, Number 29 (Friday, February 11, 2000)]
[Notices]
[Pages 6981-6983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3203]


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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED


Procurement List Additions and Deletions

AGENCY: Committee for Purchase From People Who Are Blind or Severely 
Disabled.

ACTION: Additions to and deletions from the Procurement List.

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SUMMARY: This action adds to the Procurement List services to be 
furnished by nonprofit agencies employing persons who are blind or have 
other severe disabilities, and deletes from the Procurement List 
commodities previously furnished by such agencies.

EFFECTIVE DATE: March 13, 2000.

ADDRESSES: Committee for Purchase From People Who Are Blind or Severely 
Disabled, CrystalGateway 3, Suite 310, 1215 Jefferson Davis Highway, 
Arlington, Virginia 22202-4302.

FOR FURTHER INFORMATION CONTACT: Leon A. Wilson, Jr. (703) 603-7740.

SUPPLEMENTARY INFORMATION: On November 29 and December 17, and 27, 
1999, the Committee for Purchase From PeopleWho Are Blind or Severely 
Disabled published notices (64 F.R. 66611, 70694 and 72312) of proposed 
additions to and deletions from the Procurement List:

Additions

    The following comments pertain to Janitorial/Custodial, The Library 
of Congress, Washington, DC for the following locations: James Madison 
Memorial, Thomas Jefferson Building, John Adams Building and Little 
Scholars Child Care Facility.
    Comments were received from counsel for two companies: the current 
contractor for this service, and a new company whose president was 
until recently the president of the current contractor.
    Both companies noted the impact on them of adding this service to 
the Procurement List, and questioned the capability of the nonprofit 
agency originally designated to perform the service. The second company 
also questioned whether this addition to the Procurement List met 
certain statutory requirements, and the role of a consultant to that 
nonprofit agency. This service is currently being procured under a 
small business set-aside, and the contracting officer has stated for 
the record that, if the Committee does not add the service to the 
Procurement List, the service will continue to be reserved for small 
businesses. The current contractor is no longer a small business, so it 
is not eligible for contracts for the service. Consequently, addition 
of this service to the Procurement List would not be the cause of any 
impact the current contractor suffers by not being able to provide the 
service, regardless of the size of the impact or any dependency the 
contractor has developed over the five years it has provided the 
service. Although the current contractor anticipates that its declining 
sales will return it to the small business category by 2001, the 
Committee does not consider such speculation as demonstrating severe 
adverse impact resulting from addition of a service to the Procurement 
List.
    Unlike the current contractor, the other commenting company is a 
small business. It has not, however, been a current contractor for this 
service. Losing the ability to compete for the service is not 
considered by the Committee to constitute severe adverse impact on a 
company which has not developed a dependence on having the contract for 
the service.
    The current contractor noted that loss of this service would 
require it to discharge a substantial number of its employees, who 
would collect unemployment benefits from the company, increasing its 
indirect rates and making it more difficult for the

[[Page 6982]]

company to offer competitive prices in the future. The Committee 
considers this impact on the company to be too speculative to 
constitute severe adverse impact. As for the company's employees, the 
Committee has authorized the nonprofit agency which will provide the 
service to phase in its workers with severe disabilities, preserving 
the jobs of the current workers while they seek employment elsewhere in 
the area, which is currently experiencing very low unemployment for 
workers without disabilities. In addition, a custodial corporation has 
offered to provide comparable employment opportunities, with similar 
pay and benefits, for workers displaced by this Procurement List 
addition.
    On the basis of the Committee's response to a Freedom of 
Information Act request the current contractor filed early in the 
addition process, that contractor questioned whether this project would 
generate jobs for people with severe disabilities. The contractor also 
noted the lack of a technical or management proposal for the project, 
and other evidence addressing the capability of the nonprofit agency 
and its employees with disabilities to perform this service.
    The Committee believes that the record now compiled fully supports 
the determination it has made that this service will eventually create 
approximately 58 work years of employment for people with severe 
disabilities. This record does includes a technical proposal for the 
service. The nonprofit agency has been found capable of performing the 
service by the Committee based on assessments by the central nonprofit 
agency concerned and the contracting officer at the Library of 
Congress, who has reviewed and accepted the technical proposal.
    Both commenters noted that the Library of Congress buildings, 
particularly the Jefferson Building, contain numerous antiques and 
ornamental items in their elaborate interiors, which require 
specialized cleaning techniques and expertise. Some of these features 
of the buildings, however, are not within the statement of work for the 
service, as cleaning them is the responsibility of the Architect of the 
Capitol. If other such features are beyond the capability of workers 
with disabilities to perform, they will be handled by those workers 
without disabilities which the Committee's statute permits the 
nonprofit agency to retain on the job.
    The current contractor noted that 31 Federal janitorial/custodial 
services with Washington, DC addresses are already on the Procurement 
List, some of them substantial in scope. The contractor claimed that it 
had been substantially impacted by some of these additions. The 
contractor also claimed that additional people with severe disabilities 
could be employed at these locations, making the addition of the 
service at the Library of Congress unnecessary to create jobs for these 
people.
    The continued viability of the current contractor casts serious 
doubt on any contention that it has been severely impacted by previous 
Procurement List additions. As noted above, the current contractor 
would not be eligible for the next contract for this service at the 
Library of Congress, whether or not the Committee adds it to the 
Procurement List. Given the large number of people with severe 
disabilities in the Washington area who remain unemployed, the 
Committee believes there is a need to add the service at the Library of 
Congress to the Procurement List and thereby generate additional jobs 
for such individuals. Incremental addition of workers with severe 
disabilities to the janitorial/custodial services in Washington which 
have already been placed on the Procurement List will not fill this 
need. For the same reason, and given that the nonprofit agency has been 
found capable of providing the entire service, it would not be 
appropriate for the Committee to add just a portion of the service to 
the Procurement List, as the other commenter suggested.
    The current contractor claimed that the fact that price proposals 
it reviewed show variation above and below the current price for the 
service shows that the nonprofit agency does not understand the work 
requirements for the service and thus cannot be considered capable of 
performing it. The Committee, however, considers these proposals to be 
evidence that the nonprofit agency and the Library of Congress were 
engaged in price negotiation, which is now the preferred method of 
setting a fair market price in the Committee's program, and not 
evidence of a lack of capability on the nonprofit agency's part.
    The current contractor also claimed that the nonprofit agency must 
specifically identify the individuals with disabilities who will be 
employed on this service and demonstrate how these individuals are 
capable of performing the work involved in the service. The Committee 
does not consider this degree of specificity to be appropriate, given 
that commercial janitorial contractors do not so identify workers 
before beginning a project, and does not require this level of detail 
from nonprofit agencies participating in its program.
    The other commenter claimed that this service does not meet the 
Committee's statutory requirement that 75 percent of the direct labor 
for the service be performed by persons with severe disabilities. The 
commenter noted that the requirement must be met each year the 
nonprofit agency performs the services, so a phase-in of people with 
disabilities would not be permissible. Such a phase-in, according to 
the commenter, would also lower the nonprofit agency's overall disabled 
labor percentage below the level the statute requires. The commenter 
misunderstands the statutory direct labor requirement, which applies to 
a nonprofit agency's total direct labor, not to the labor used on a 
specific service. However, the commenter is correct that Ability 
Unlimited, Inc., the nonprofit agency originally proposed to perform 
this service, does not currently meet the total direct labor 
requirement. Another qualified nonprofit agency, The Chimes, Inc., 
which does meet the total direct labor requirement and has been found 
capable of providing this service, has been designated to replace 
Ability Unlimited as the service provider under the Procurement List 
for at least one year. If Ability Unlimited meets the total direct 
labor requirement at that time, the service will be transferred to it. 
The commenter also questioned whether the price established for the 
service is a true fair market price. The commenter assumed, in 
accordance with former Committee pricing policies, that the price was 
based on the current price for the service, which is being provided 
under a contractual arrangement which is now over five years old. 
However, in accordance with new Committee pricing policies, the price 
for this service was set by negotiation between the Library of Congress 
and the nonprofit agency. Such a price by its nature is a fair market 
price, as it is an agreement at this time between a knowledgeable buyer 
and a seller, without regard to the price of the previous contractual 
arrangement.
    The same commenter also questioned the use by Ability Unlimited of 
a for-profit janitorial firm as a consultant and materials supplier for 
this service. The commenter claimed that this arrangement violates the 
statutory requirement that a nonprofit agency's net income not inure to 
any individual. The commenter also indicated that the consultant firm's 
performance record on another Government contract made its role in 
connection with this service inappropriate. Again, the commenter

[[Page 6983]]

misinterprets the Committee's statute. The statutory language the 
commenter mentioned is intended to assure that non-governmental 
participants in the Committee's program are nonprofit corporations. 
Ability Unlimited and The Chimes meet that requirement, as well as a 
Committee policy requirement designed to assure nonprofit status and 
organizational independence. The Committee has examined the 
relationship between AbilityUnlimited and the for-profit consultant, 
and has received information from the president of the consultant firm 
that demonstrates that the firm will not profit from the relationship. 
In addition, the consultant's performance on its own janitorial 
contracts is not a dispositive factor in this instance because of the 
limited role the consultant would play in providing the service at 
issue. Furthermore, if Ability Unlimited fails to increase its total 
direct labor being performed by people with severe disabilities to the 
level required by the Committee's statute, it will not be performing 
this service at the Library of Congress under the Committee's program.
    The following material pertains to the two services being added to 
the Procurement List: After consideration of the material presented to 
it concerning capability of qualified nonprofit agencies to provide the 
services and impact of the additions on the current or most recent 
contractors, the Committee has determined that the services 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 services to the 
Government.
    2. The action will not have a severe economic impact on current 
contractors for the services.
    3. The action will result in authorizing small entities to furnish 
the services 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 services proposed for addition to the 
Procurement List.
    Accordingly, the following services are hereby added to the 
Procurement List:

Janitorial/Custodial
The Library of Congress, Washington, DC for the following buildings:
James Madison Memorial
Thomas Jefferson Building
John Adams Building
Little Scholars Child Development Center

Janitorial/Custodial
U.S. Coast Guard
Southwest Harbor Building
Southwest Harbor, Maine

    This action does not affect current contracts awarded prior to the 
effective date of this addition or options that may be exercised under 
those contracts.

Deletions

    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 may not result in any additional reporting, 
recordkeeping or other compliance requirements for small entities.
    2. The action will not have a severe economic impact on future 
contractors for the commodities.
    3. The action may 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 deleted from the Procurement 
List.
    After consideration of the relevant matter presented, the Committee 
has determined that the commodities listed below are no longer suitable 
for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 
CFR 51-2.4.
    Accordingly, the following commodities are hereby deleted from the 
Procurement List:

Paper, Tabulating Machine
7530-00-249-4847
7530-00-057-9487
Pad, Parachutists' Helmet
8470-01-092-8494

Leon A. Wilson, Jr.,
Executive Director.
[FR Doc. 00-3203 Filed 2-10-00; 8:45 am]
BILLING CODE 6353-01-P