[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Proposed Rules]
[Pages 38960-38969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15154]
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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
41 CFR Parts 51-1, 51-2, 51-3, 51-4, 51-5, 51-6, 51-7, 51-8, 51-9,
and 51-10
RIN 3037-AA13
Provisions Relating to Public Contracts
AGENCY: Committee for Purchase From People Who Are Blind or Severely
Disabled.
ACTION: Proposed rule with request for comments.
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SUMMARY: This proposed rule would amend the Committee for Purchase From
People Who Are Blind or Severely Disabled's (Committee) regulations to
address outdated information and proposes correction and clarifications
within the chapter or with the Javits-Wagner-O'Day Act or the
AbilityOne Program. This regulation was originally published in 1991
and changes in Committee practices and concepts have occurred which
requires updates to the CFR. These updates merely are administrative in
nature.
DATES: Comments should be submitted on or before August 23, 2021.
ADDRESSES: You may submit your comments, identified by ``RIN 3037-
AA13'' by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Comments received will be posted without change to
www.regulations.gov including any personal information provided. To
confirm receipt of your comment(s) please check www.regulations.gov
approximately two to three days after submission to verify posting
(except allow for 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Shelly Hammond,
[email protected], (571) 457-9468.
SUPPLEMENTARY INFORMATION:
I. Background
The Committee's last rule making administrative changes was
published in the Federal Register at June 2, 2000, at 65 FR 35286.
The Committee seeks to provide the following administrative changes
based on changes to the Office of the Federal Register's language and
processes. The Commission seeks to remove mailing address and add email
address for the Committee and Central Nonprofit Agencies.
[[Page 38961]]
This proposed rule would update the Committee's regulations in 41
CFR chapter 51-1.1--51-10.101 to reflect those statutory changes.
II. Changes Proposed by the Committee in This Rulemaking
This proposed rule amends the Committee's regulations to include
the following administrative changes:
III. Expected Impact of the Proposed Rule
This rulemaking is not expected to have a significant impact on
small businesses.
IV. Regulatory Procedures
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
This proposed rule is not a significant regulatory action, under
E.O. 12866.
Executive Order 13771--Reducing Regulations and Controlling Regulatory
Costs
This proposed rule is not expected to be an E.O. 13771 deregulatory
action.
Regulatory Flexibility Act
It has been certified that this proposed rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Paperwork Reduction Act
This proposed rule does not contain an information collection
requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments.
List of Subjects
41 CFR Part 51-1
Government procurement, Individuals with disabilities.
41 CFR Part 51-2
Government procurement, Individuals with disabilities, Organization
and functions (Government agencies).
41 CFR Part 51-3
Government procurement, Individuals with disabilities.
41 CFR Part 51-4
Government procurement, Individuals with disabilities, Reporting
and recordkeeping requirements.
41 CFR Parts 51-5 and 51-6
Government procurement, Individuals with disabilities.
41 CFR Part 51-7
Environmental impact statements.
41 CFR Part 51-8
Administrative practice and procedure, Archives and records,
Confidential business information, Freedom of information, Privacy Act.
41 CFR Part 51-9
Privacy Act Rules.
41 CFR Part 51-10
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Individuals
with disabilities.
For reasons set forth in the preamble, the Committee proposes to
amend 41 CFR parts 51-1 through 51-10 as follows:
0
1. The authority citation for parts 51-1, 51-2, 51-3, 51-4, 51-5, 51-6,
51-7, 51-8, 51-9, and 51-10 continues to read as follows:
Authority: 41 U.S.C. 46-48c.
PART 51-1--GENERAL
0
2. Revise Sec. 51-1.1 to read as follows:
Sec. 51-1.1 Policy.
(a) It is the policy of the Government to increase employment and
training opportunities for persons who are blind or have other severe
disabilities through the purchase of products and services from
qualified nonprofit agencies employing persons who are blind or have
other severe disabilities. The Committee for Purchase from People Who
Are Blind or Severely Disabled (hereinafter the Committee) was
established by the Javits-Wagner-O'Day Act, Public Law [111-350,
section 3, Jan. 4, 2011, 124 Stat. 3837], as amended and recodifies, 41
U.S.C. 8501-8506 (hereinafter the JWOD Act). The Committee is
responsible for implementation of a comprehensive program designed to
enforce this policy.
(b) It is the policy of the Committee to encourage all Federal
entities and employees to provide the necessary support to ensure that
the JWOD Act is implemented in an effective manner. This support
includes purchase of products and services published on the Committee's
Procurement List through appropriate channels from nonprofit agencies
employing persons who are blind or have other severe disabilities
designated by the Committee; recommendations to the Committee of new
products and services suitable for addition to the Procurement List;
and cooperation with the Committee and the central nonprofit agencies
in the provision of such data as the Committee may decide is necessary
to determine suitability for addition to the Procurement List.
0
3. Revise Sec. 51-1.2 to read as follows:
Sec. 51-1.2 Mandatory source priorities.
(a) The JWOD Act mandates that products or services on the
Procurement List required by Government entities be procured, as
prescribed in this regulation, from a nonprofit agency employing
persons who are blind or have other severe disabilities, at a price
established by the Committee, if that product or service is available
within the normal period required by that Government entity. Except as
provided in paragraph (b) of this section, the JWOD Act has priority,
under the provisions of 41 U.S.C. 8504, over any other supplier of the
Government's requirements for products and services on the Committee's
Procurement List.
(b) Federal Prison Industries, Inc. has priority, under the
provisions of 18 U.S.C. 4124 and 41 U.S.C. 8504(b), over nonprofit
agencies employing persons who are blind or have other severe
disabilities in furnishing products for sale to the Government. All or
a portion of the Government's requirement for a product for which
Federal Prison Industries, Inc. has exercised its priority may be added
to the Procurement List. However, such addition is made with the
understanding that procurement under the JWOD Act shall be limited to
that portion of the Government's requirement for the product which is
not available or not required to be procured from Federal Prison
Industries, Inc.
(c) The JWOD Act requires the Committee to prescribe regulations
providing that, in the purchase by the Government of products produced
and offered for sale by qualified nonprofit agencies employing persons
who are blind and nonprofit agencies employing persons who have other
severe disabilities, priority shall be accorded to products produced
and offered for sale by qualified nonprofit agencies for the blind. In
approving the addition of products, to the Procurement List, the
Committee accords priority to nonprofit agencies for the blind.
Nonprofit agencies for the blind and nonprofit agencies employing
persons with severe
[[Page 38962]]
disabilities have equal priority for services.
0
4. Amend Sec. 51-1.3 by:
0
a. Revising the definitions of ``AbilityOne Program,'' ``Central
nonprofit agency,'' ``Committee'', Contracting activity'', ``Direct
labor'', ``Interested person'', ``Military resale'', ``Nonprofit
agency'', ``Participating nonprofit agency'', and ``Procurement List'';
0
b. Adding in alphabetical order a definition for ``Qualified nonprofit
agency for other severely disabled'';
0
c. Removing the definition of ``Qualified nonprofit agency for other
severely handicapped''; and
0
d. Revising the definition of ``Qualified nonprofit agency for the
blind''.
The revisions and addition read as follows:
Sec. 51-1.3 Definitions.
* * * * *
AbilityOne Program means the program authorized by the JWOD Act to
increase employment and training opportunities for persons who are
blind or have other severe disabilities through Government purchasing
of products and services from nonprofit agencies employing these
persons.
* * * * *
Central nonprofit agency means an agency organized under the laws
of the United States or of any State, operated in the interest of the
blind or persons with other severe disabilities, the net income of
which does not incur in whole or in part to the benefit of any
shareholder or other individual, and designated by the Committee to
facilitate the distribution (by direct allocation, subcontract, or any
other means) of orders of the Government for products and services on
the Procurement List among nonprofit agencies employing persons who are
blind or have other severe disabilities, to provide information
required by the Committee to implement the JWOD Program, and to
otherwise assist the Committee in administering these regulations as
set forth herein by the Committee.
Committee means the Committee for Purchase from People Who Are
Blind or Severely Disabled.
Contracting activity means any element of an entity of the
Government that has responsibility for identifying and/or procuring
Government requirements for products or services. Components of a
contracting activity, such as a contracting office and an ordering
office, are incorporated in this definition, which includes all offices
within the definitions of ``contracting activity,'' ``contracting
office,'' and ``contract administration office'' contained in the
Federal Acquisition Regulation, 48 CFR 2.101.
Direct labor means all work required for preparation, processing,
and packing of a product or work directly related to the performance of
a service, but not supervision, administration, inspection or shipping.
* * * * *
Interested person means an individual or legal entity affected by a
proposed addition of a product or service to the Procurement List or a
deletion from it.
Military resale products means products on the Procurement List
sold for the private, individual use of authorized patrons of Armed
Forces commissaries and exchanges, or like activities of other
Government departments and agencies.
Nonprofit agency (formerly workshop) means a nonprofit agency
serving people who are blind or a nonprofit agency employing persons
with severe disabilities, as appropriate.
* * * * *
Participating nonprofit agency (formerly participating workshop)
means any nonprofit agency which has been authorized by the Committee
to furnish a product or service to the Government under the JWOD Act.
Procurement List means a list of products (including military
resale products) and services which the Committee has determined to be
suitable to be furnished to the Government by nonprofit agencies for
the blind or nonprofit agencies employing persons with severe
disabilities pursuant to the JWOD Act and these regulations.
Qualified nonprofit agency for other severely disabled (formerly
workshop for other severely handicapped) means an agency organized
under the laws of the United States or any State, operated in the
interests of persons with severe disabilities who are not blind, and
the net income of which does not inure in whole or in part to the
benefit of any shareholder or other individual; which complies with
applicable occupational health and safety standards prescribed by the
Secretary of Labor; and which in furnishing products and services
(whether or not the products or services are procured under these
regulations) during the fiscal year employs persons with severe
disabilities (including blind) for not less than 75 percent of the
work-hours of direct labor required to furnish such products or
services.
Qualified nonprofit agency for the blind (hereinafter nonprofit
agency for the blind) (formerly workshop for the blind) means an agency
organized under the laws of the United States or of any State, operated
in the interest of blind individuals, and the net income of which does
not inure in whole or in part to the benefit of any shareholder or
other individual; which complies with applicable occupational health
and safety standards prescribed by the Secretary of Labor; and which in
furnishing products and services (whether or not the products or
services are procured under these regulations) during the fiscal year
employs blind individuals for not less than 75 percent of the work-
hours of direct labor required to furnish such products or services.
* * * * *
PART 51-2--COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
0
5. Revise Sec. 51-2.2 to read as follows:
Sec. 51-2.2 Powers and responsibilities.
The Committee is responsible for carrying out the following
functions in support of its mission of providing employment and
training opportunities for persons who are blind or have other severe
disabilities and, whenever possible, preparing those individuals to
engage in competitive employment:
(a) Establish rules, regulations, and policies to assure effective
implementation of the JWOD Act.
(b) Determine which product and services procured by the Federal
Government are suitable to be furnished by qualified nonprofit agencies
employing persons who are blind or have other severe disabilities and
add those items to the Committee's Procurement List. Publish notices of
addition to the Procurement List in the Federal Register. Disseminate
information on Procurement List items to Federal agencies. Delete items
no longer suitable to be furnished by nonprofit agencies. Authorize and
deauthorize central nonprofit agencies and nonprofit agencies to accept
orders from contracting activities for the furnishing of specific
products and services on the Procurement List.
(c) Determine fair market prices for items added to the Procurement
List and revise those prices in accordance with changing market
conditions to assure that the prices established are reflective of the
market.
(d) Monitor nonprofit agency compliance with Committee regulations
and procedures.
(e) Inform Federal agencies about the AbilityOne Program and the
statutory mandate that items on the Procurement
[[Page 38963]]
List be purchased from qualified nonprofit agencies, and encourage and
assist entities of the Federal Government to identify additional
products and services that can be purchased from qualified nonprofit
agencies. To the extent possible, monitor Federal agencies' compliance
with JWOD requirements.
(f) Designate, set appropriate ceilings on fee paid to these
central nonprofit agencies by nonprofit agencies selling items under
the AbilityOne Program, and provide guidance to central nonprofit
agencies engaged in facilitating the distribution of Government orders
and helping State and private nonprofit agencies participate in the
AbilityOne Program.
(g) Conduct a continuing study and evaluation of its activities
under the JWOD Act for the purpose of assuring effective and efficient
administration of the JWOD Act. The Committee may study, independently,
or in cooperation with other public or nonprofit private agencies,
problems relating to:
(1) The employment of the blind or individuals with other severe
disabilities.
(2) The development and adaptation of production methods which
would enable a greater utilization of these individuals.
(h) Provide technical assistance to the central nonprofit agencies
and the nonprofit agencies to contribute to the successful
implementation of the JWOD Act.
(i) Assure that nonprofit agencies employing persons who are blind
will have priority over nonprofit agencies employing persons with
severe disabilities in furnishing products.
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6. Revise Sec. 51-2.3 to read as follows:
Sec. 51-2.3 Notice of proposed addition or deletion.
At least 30 days prior to the Committee's consideration of the
addition or deletion of a product or service to or from the Procurement
List, the Committee publishes a notice in the Federal Register
announcing the proposed addition or deletion and providing interested
persons an opportunity to submit written data or comments on the
proposal. Interested persons submitting comments in bound form should
also submit an unbound copy that is capable of being legibly
photocopied.
0
7. Revise Sec. 51-2.4 to read as follows:
Sec. 51-2.4 Determination of suitability.
(a) For a product or service to be suitable for addition to the
Procurement List, each of the following criteria must be satisfied:
(1) Employment potential. The proposed addition must demonstrate a
potential to generate employment for persons who are blind or have
other severe disabilities.
(2) Nonprofit agency qualifications. The nonprofit agency (or
agencies) proposing to furnish the item must qualify as a nonprofit
agency serving persons who are blind or have other severe disabilities,
as set forth in part 51-4 of this chapter.
(3) Capability. The nonprofit agency (or agencies) desiring to
furnish a product or service under the JWOD Program must satisfy the
Committee as to the extent of the labor operations to be performed and
that it will have the capability to meet Government quality standards
and delivery schedules by the time it assumes responsibility for
supplying the Government.
(4) Level of impact on the current contractor for the product or
service. (i) In deciding whether or not a proposed addition to the
Procurement List is likely to have a severe adverse impact on the
current contractor for the specific product or service, the Committee
gives particular attention to:
(A) The possible impact on the contractor's total sales, including
the sales of affiliated companies and parent corporations. In addition,
the Committee considers the effects of previous Committee actions.
(B) Whether that contractor has been a continuous supplier to the
Government of the specific product or service proposed for addition and
is, therefore, more dependent on the income from such sales to the
Government.
(ii) If there is not a current contract for the product or service
being proposed for addition to the Procurement List, the Committee may
consider the most recent contractor to furnish the item to the
Government as the current contractor for the purpose of determining the
level of impact.
(b) In determining the suitability of a product or service for
addition to the Procurement List, the Committee also considers other
information it deems pertinent, including comments on a proposal
published in the Federal Register to add the product or service to the
Procurement List and information submitted by Government personnel and
interested persons. Because the Committee's authority to establish fair
market prices is separate from its authority to determine the
suitability of a product or service for addition to the Procurement
List, the Committee does not consider comments on proposed fair market
prices for products and services proposed for addition to the
Procurement List to be pertinent to a suitability determination.
0
8. Revise Sec. 51-2.5 to read as follows:
Sec. 51-2.5 Committee decision.
The Committee considers the particular facts and circumstances in
each case in determining if a product or service is suitable for
addition to the Procurement List. When the Committee determines that a
proposed addition is likely to have a severe adverse impact on a
current contractor, it takes this fact into consideration in deciding
not to add the product or service to the Procurement List, or to add
only a portion of the Government requirement for the item. If the
Committee decides to add a product or service in whole or in part to
the Procurement List, that decision is announced in the Federal
Register with a notice that includes information on the effective date
of the addition.
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9. Amend Sec. 51-2.7 by revising paragraphs (a) and (c) to read as
follows:
Sec. 51-2.7 Fair market price.
(a) The Committee is responsible for determining fair market
prices, and changes thereto, for products and services on the
Procurement List. The Committee establishes an initial fair market
price at the time a product or service is added to the Procurement
List. This initial price is based on Committee procedures, which permit
negotiations between the contracting activity and the nonprofit agency
which will produce or provide the product or service to the Government,
assisted by the appropriate central nonprofit agency. If agreed to by
the negotiating parties, the initial price may be developed using other
methodologies specified in Committee pricing procedures.
* * * * *
(c) Recommendations for initial fair market prices, or changes
thereto, shall be submitted jointly by the contracting activities and
nonprofit agencies concerned to the appropriate central nonprofit
agency. After review and analysis, the central nonprofit agency shall
submit the recommended prices and methods by which prices shall be
changed to the Committee, along with the information required by
Committee pricing procedures to support each recommendation. The
Committee will review the recommendations, revise the recommended
prices where appropriate, and establish a fair market price, or change
thereto, for each product or service which is the subject of a
recommendation.
[[Page 38964]]
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10. Amend Sec. 51-2.8 by revising the section heading and paragraphs
(a) and (b) to read as follows:
Sec. 51-2.8 Procurement List.
(a) The Committee maintains a Procurement List which includes the
products and services which shall be procured by Government departments
and agencies under the JWOD Act from the nonprofit agency(ies)
designated by the Committee. Copies of the Procurement List, together
with information on procurement requirements and procedures, are
available at the Committee's website: https://www.abilityone.gov.
(b) For products, including military resale products, the
Procurement List identifies the name and national stock number or item
designation for each product, and where appropriate, any limitation on
the portion of the product which must be procured under the JWOD Act.
* * * * *
PART 51-3--CENTRAL NONPROFIT AGENCIES
0
11. Revise Sec. 51-3.1 to read as follows:
Sec. 51-3.1 General.
Under the provisions of section 2(c) of the JWOD Act, the Committee
designates Central Nonprofit Agency(ies) (CNAs) through a separate
written agreement approved by vote of the Commission. The list of the
current central nonprofit agency(ies) designated by the Committee is
available at the Committee's website: https://www.abilityone.gov.
0
12. Amend Sec. 51-3.2 by revising paragraphs (c), (d), (e), (h), (i),
(k), and (l) to read as follows:
Sec. 51-3.2 Responsibilities under the AbilityOne Program.
* * * * *
(c) Obtain from Federal contracting activities such procurement
information as is required by the Committee to:
(1) Determine the suitability of a product or service being
recommended to the Committee for addition to the Procurement List; and
(2) Establish an initial fair market price for a product or service
or make changes in the fair market price.
(d) Recommend to the Committee, with the supporting information
required by Committee policy or procedures, suitable products or
services for procurement from its nonprofit agencies.
(e) Recommend to the Committee, with the supporting information
required by Committee policy or procedures, initial fair market prices
for products or services proposed for addition to the Procurement List.
* * * * *
(h) Oversee and assist its nonprofit agencies to ensure contract
compliance in furnishing a product or a service.
(i) As market conditions change, recommend price changes with
appropriate justification for assigned products or services on the
Procurement List.
* * * * *
(k) When authorized by the Committee, enter into contracts with
Federal contracting activities for the furnishing of products or
services provided by its nonprofit agencies.
(l) At the time designated by the Committee, submit a completed,
original copy of the appropriate Initial Representations and
Certification(s) for the nonprofit agency concerned. This requirement
does not apply to a nonprofit agency that is already authorized to
furnish a product or service under the JWOD Act.
* * * * *
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13. Revise Sec. 51-3.3 to read as follows:
Sec. 51-3.3 Assignment of product or service.
(a) The central nonprofit agencies shall determine by mutual
agreement the assignment to one of them of a product or service for the
purpose of evaluating its potential for possible future addition to the
Procurement List, except that the Committee shall initially assign a
product to a central nonprofit agency for the blind when a central
nonprofit agency for other severely disabled has expressed an interest
in the product and a central nonprofit agency for the blind has
exercised the blind priority.
(b) Central nonprofit agencies for other severely disabled shall
provide a central nonprofit agency for the blind with procurement
information necessary for a decision to exercise or waive the blind
priority when it requests a decision. A central nonprofit agency for
the blind shall normally notify an interested central nonprofit agency
of its decision within 30 days, but not later than 60 days after
receipt of the procurement information, unless the central nonprofit
agencies agree to an extension of time for the decision. Disagreements
on extensions shall be referred to the Committee for resolution.
(c) If a central nonprofit agency for the blind exercises the blind
priority for a product, it shall immediately notify the Committee and
any other central nonprofit agency and shall submit to the Committee a
proposal to add the product to the Procurement List within nine months
of the notification, unless the Committee extends the assignment period
because of delays beyond the control of the central nonprofit agency
for the blind. Upon expiration of the assignment period, the Committee
shall reassign the product to another central nonprofit agency.
(d) The central nonprofit agency assigned a product shall,
consistent with 41 U.S.C. 8504(b) and 41 CFR 51-6.2(d), confirm that
the contracting activity obtain a decision from Federal Prison
Industries on the exercise or waiver of its priority, including
submitting the procurement information required by Federal Prison
Industries when it requests the decision. Federal Prison Industries
shall normally notify the contracting activity of its decision within
30 days, but not later than 60 days after receipt of the procurement
information, unless it agrees with the contracting activity on an
extension of time for the decision. The contracting activity shall
notify the central nonprofit agency of any disagreements with Federal
Prison Industries and the central nonprofit agency shall refer a
disagreement over an extension to the Committee for resolution with
Federal Prison Industries.
(e) The central nonprofit agency shall provide the Committee the
decision of Federal Prison Industries on the waiver or exercise of its
priority when it requests the addition of the product to the
Procurement List. The central nonprofit agency shall also provide the
decision of a central nonprofit agency for the blind waiving its
priority.
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14. Revise Sec. 51-3.4 to read as follows:
Sec. 51-3.4 Distribution of orders.
Central nonprofit agencies shall distribute orders from the
Government only to nonprofit agencies which the Committee has approved
to furnish the specific product or service. When the Committee has
approved two or more nonprofit agencies to furnish a specific product
or service, the central nonprofit agency shall distribute orders among
those nonprofit agencies in a fair and equitable manner.
PART 51-4--NONPROFIT AGENCIES
0
15. Amend Sec. 51-4.3 by revising paragraphs (a), (b) introductory
text, and (b)(1) and (9) to read as follows:
Sec. 51-4.3 Maintaining qualification.
(a) To maintain its qualification under the JWOD Act, each
nonprofit agency authorized to furnish a product or a service shall
continue to comply with the requirements of a ``nonprofit agency for
other severely disabled'' or a ``nonprofit agency for the blind'' as
defined in Sec. 51-1.3 of this chapter. In
[[Page 38965]]
addition, each such nonprofit agency must submit to its central
nonprofit agency by November 1 of each year, two completed copies of
the appropriate Annual Representations and Certifications covering the
fiscal year ending the preceding September 30.
(b) In addition to paragraph (a) of this section, each nonprofit
agency participating in the Ability One Program shall:
(1) Furnish products or services in strict accordance with
Government orders.
* * * * *
(9) Upon receipt of payment by the Government for products or
services furnished under the Ability One Program, pay to the central
nonprofit agency a fee which meets the requirements of Sec. 51-3.5 of
this chapter.
* * * * *
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16. Amend Sec. 51-4.4 by revising paragraphs (a) through (c) to read
as follows:
Sec. 51-4.4 Subcontracting.
(a) Nonprofit agencies shall seek broad competition in the purchase
of materials and components used in the products and services furnished
to the Government under the JWOD Act. Nonprofit agencies shall inform
the Committee, through their central nonprofit agency, before entering
into multiyear contracts for materials or components used in the
products and services furnished to the Government under the JWOD Act.
(b) Each nonprofit agency shall accomplish the maximum amount of
subcontracting with other nonprofit agencies and small business
concerns that the nonprofit agency finds to be consistent both with
efficient performance in furnishing products or services under the JWOD
Act and maximizing employment for persons who are blind or have other
severe disabilities.
(c) Nonprofit agencies may subcontract a portion of the process for
producing a product or providing a service on the Procurement List
provided that the portion of the process retained by the prime
nonprofit agency generates employment for persons who are blind or have
other severe disabilities. Subcontracting intended to be a routine part
of the production of a product or provision of a service shall be
identified to the Committee at the time the product or service is
proposed for addition to the Procurement List and any significant
changes in the extent of subcontracting must be approved in advance by
the Committee.
* * * * *
PART 51-5--CONTRACTING REQUIREMENTS
0
17. Revise Sec. 51-5.1 to read as follows:
Sec. 51-5.1 General.
(a) Contracting activities are encouraged to assist the Committee
and the central nonprofit agencies in identifying suitable products and
services to be furnished by nonprofit agencies employing persons who
are blind or have other severe disabilities so that the Committee can
attain its objective of increasing employment and training
opportunities for individuals who are blind or have other severe
disabilities. For items which appear to be suitable to be furnished by
nonprofit agencies, the contracting activity should refer the candidate
products and services to the Committee or a central nonprofit agency.
If a contracting activity decides to procure one or more products which
are similar to a product or products on the Procurement List, the
contracting activity should refer the products it intends to procure to
the Committee or a central nonprofit agency.
(b) Contracting activities shall provide the Committee and
designated central nonprofit agencies with information needed to enable
the Committee to determine whether a product or service is suitable to
be furnished by a nonprofit agency. For products, information such as
the latest solicitation and amendments, bid abstracts, procurement
history, estimated annual usage quantities, and anticipated date of
next solicitation issuance and opening may be needed. For services,
similar information including the statement of work and applicable wage
determination may be required. In order to assist in evaluating the
suitability of an Office of Management and Budget Circular No. A-76
conversion, contracting activities should provide a copy of the draft
statement of work and applicable wage determination to the central
nonprofit agency upon its request.
0
18. Amend Sec. 51-5.2 by revising paragraphs (a) through (d) to read
as follows:
Sec. 51-5.2 Mandatory source requirement.
(a) As provided in 41 U.S.C. 8504, entities of the Federal
Government intending to procure products or services on the Procurement
List shall procure such products and services from nonprofit agencies
authorized by the Committee. The only exception to this mandatory
requirement is for products available from the Federal Prison
Industries, Inc., which has a purchase priority over products on the
Procurement List.
(b) Purchases of products on the Procurement List by entities of
the Government shall be made from sources authorized by the Committee.
These sources may include nonprofit agencies, central nonprofit
agencies when approved by the Committee, Government central supply
agencies such as the Defense Logistics Agency and the General Services
Administration, and certain commercial distributors. As noted in Sec.
51-6.2 of this chapter, identification of the authorized sources for a
particular product may be obtained from the central nonprofit agencies
indicated on the Procurement List which is found at www.abilityone.gov.
(c) Contracting activities shall require other persons providing
products which are on the Procurement List to entities of the
Government by contract to order these products from the sources
authorized by the Committee.
(d) Procedures for obtaining military resale products are contained
in Sec. 51-6.4 of this chapter.
* * * * *
0
19. Amend Sec. 51-5.3 by revising paragraphs (a) and (c) to read as
follows:
Sec. 51-5.3 Scope of requirement.
(a) When a product is included on the Procurement List, the
mandatory source requirement covers the National Stock Number or item
designation listed and products that are essentially the same as the
listed item. In some instances, only a portion of the Government
requirement for a National Stock Number or item designation is
specified by the Procurement List. Where geographic areas, quantities,
percentages or specific supply locations for a product are listed, the
mandatory provisions of the JWOD Act apply only to the portion or
portions of the product indicated by the Procurement List.
* * * * *
(c) When a product or service is added to the Procurement List, the
addition does not affect contracts for the product or service awarded
prior to the effective date of the Procurement List addition or options
exercised under those contracts.
0
20. Amend Sec. 51-5.4 by revising paragraphs (a)(1) and (2) to read as
follows:
Sec. 51-5.4 Purchase exceptions.
(a) * * *
(1) The central nonprofit agency or its nonprofit agency(ies)
cannot furnish a product or service within the period specified, and
[[Page 38966]]
(2) The product or service is available from commercial sources in
the quantities needed and significantly sooner than it will be
available from the nonprofit agency(ies).
* * * * *
0
21. Amend Sec. 51-5.5 by revising paragraphs (a), (b), (c), and (e) to
read as follows:
Sec. 51-5.5 Prices.
(a) The prices for items on the Procurement List are fair market
prices established by the Committee under authority of the Javits-
Wagner-O'Day Act (41 U.S.C. 8503(b)]).
(b) Prices for products include applicable packaging, packing, and
marking. Prices include transportation to point of delivery as
specified in Sec. 51-5.6.
(c) Price changes for products and services shall usually apply to
orders received by the nonprofit agency on or after the effective date
of the change. In special cases, after considering the views of the
contracting activity, the Committee may make price changes applicable
to orders received by the nonprofit agency prior to the effective date
of the change.
* * * * *
(e) If a contracting activity desires packing, packaging, or
marking of products other than the standard pack or as provided in the
Procurement List, any difference in cost shall be negotiated with the
nonprofit agency.
0
22. Revise Sec. 51-5.6 to read as follows:
Sec. 51-5.6 Shipping.
(a) Except as provided in paragraph (b) of this section, products
are sold to the Government on an ``F.O.B. destination'' basis, with
delivery being accomplished when the shipment reaches the facility
designated by the contracting activity. Time of delivery is when the
shipment is released by the carrier and accepted by the contracting
activity or its agent. In this delivery method, the nonprofit agency
will normally use commercial bills of lading and will be responsible
for any loss or damage to the goods occurring before the products reach
the designated delivery point. The nonprofit agency will prepare and
distribute commercial bills of lading, furnish delivery schedules,
designate the carriers, and pay all shipping charges to specified
delivery points.
(b) The Committee may determine that certain products are to be
sold to the Government on an ``F.O.B. origin'' basis, with delivery
being accomplished when a shipment is placed aboard the vehicle of the
initial carrier. Time of delivery is when the shipment is released to
and accepted by the initial carrier. In this delivery method, the
nonprofit agency will normally use Government bills of lading, and
responsibility for loss or damage to the goods while in transit passes
to the Government at the time the initial carrier accepts a shipment.
If the contracting activity fails to furnish a Government bill of
lading promptly, such failure shall be considered an excusable delay in
delivery.
0
23. Revise Sec. 51-5.7 to read as follows:
Sec. 51-5.7 Payments.
Payments for products or services of persons who are blind or have
other severe disabilities shall be made within 30 days after shipment
or receipt of a proper invoice or voucher.
PART 51-6--PROCUREMENT PROCEDURES
0
24. Amend Sec. 51-6.1 by revising paragraphs (a) and (c) to read as
follows:
Sec. 51-6.1 Direct order process.
(a) Once a product or service is added to the Procurement List, the
central nonprofit agency may authorize the contracting activity to
issue orders directly to a nonprofit agency without requesting an
allocation for each order. This procedure is known as the direct order
process.
* * * * *
(c) An order for products or services shall provide leadtime
sufficient for purchase of materials, production or preparation, and
delivery or completion.
* * * * *
0
25. Amend Sec. 51-6.2 by revising paragraphs (a), (b) introductory
text, (b)(1), (c), (d), (g), (i), and (k) to read as follows:
51-6.2 Allocation process.
(a) In those cases where a direct order authorization has not been
issued as described in Sec. 51-6.1, the contracting activity shall
submit written requests for allocation to the appropriate central
nonprofit agency indicated by the Procurement List which is found at
the Committee's website: https://www.abilityone.gov.
(b) Requests for allocations shall contain, as a minimum:
(1) For products. Name, stock number, latest specification,
quantity, unit price, and place and time of delivery.
* * * * *
(c) Contracting activities shall request allocations in sufficient
time for the central nonprofit agency to reply, for the order(s) to be
placed, and for the nonprofit agencies to furnish the product or
service (see paragraph (i) of this section).
(d) When a product on the Procurement List also appears on the
Federal Prison Industries' ``Schedule of Products,'' the contracting
activity shall obtain clearance from the Federal Prison Industries
prior to requesting an allocation or placing an order directly to the
nonprofit agency(ies).
* * * * *
(g) An allocation is not an obligation to supply a product or
service, or an obligation for the contracting activity to issue an
order. Nonprofit agencies are not authorized to commence production
until receipt of an order.
* * * * *
(i) An order for products or services shall provide leadtime
sufficient for purchase of materials, production or preparation, and
delivery or completion.
* * * * *
(k) In those instances where the central nonprofit agency is the
prime contractor rather than the nonprofit agency, the central
nonprofit agency will designate the nonprofit agency(ies) authorized by
the Committee to furnish definite quantities of products or specific
services upon receipt of an order from the contracting activity.
0
26. Revise Sec. 51-6.3 to read as follows:
Sec. 51-6.3 Long-term procurements.
(a) Contracting activities are encouraged to investigate long-term
ordering agreements for products listed on the Procurement List to
level off demand, thereby helping ensure stability of employment and
development of job skills for persons who are blind or have other
severe disabilities.
(b) Contracting activities are encouraged to use the longest
contract term available by law to their agencies for contracts for
products and services under the AbilityOne Program, in order to
minimize the time and expense devoted to formation and renewal of these
contracts.
0
27. Revise Sec. 51-6.4 to read as follows:
Sec. 51-6.4 Military resale products.
(a) Purchase procedures for ordering military resale products are
available from the central nonprofit agencies. Authorized resale
outlets (military commissary stores, Armed Forces exchanges and like
activities of other Government departments and agencies) shall request
the central nonprofit agency responsible for the military resale
product being ordered to designate the nonprofit agency or its agent to
which the outlets shall forward orders.
(b) Authorized resale outlets shall stock military resale products
in as
[[Page 38967]]
broad a range as practicable. Authorized resale outlets may stock
commercial items comparable to military resale products they stock,
except that military commissary stores shall stock military resale
products in the 300-800-, 900-, 1000-, 1100-, 10000- (10000-10999);
13000 (13000-13999); 14000 (14000-14999); 15000 (15000-15999); and
16000 (16000-16999) series exclusively, unless an exception has been
granted on an individual store basis for the stocking of comparable
commercial items for which there is a significant customer demand.
(c) The Defense Commissary Agency shall, after consultation with
the Committee:
(1) Establish mandatory lists of military resale products to be
stocked in commissary stores.
(2) Require the stocking in commissary stores of military resale
products in the 0- (0-99), 200-, 300-, 400-, 500-, 600-, 700-, 800-,
900-, 1000-, 1100-, 1200- (1200-9999), 10000- (10000-10999), 11000
(11000-11999); 12000 (12000-12999); 13000 (13000-13999); 14000 (14000-
14999); 15000 (15000-15999); and 16000 (16000-16999) series in as broad
a range as is practicable.
(3) Issue guidance requiring commissary store personnel to maximize
sales potential of military resale products.
(4) Establish policies and procedures which reserve to its agency
headquarters the authority to grant exceptions to the exclusive
stocking of 300-, 800-, 900-, 1000-, 1100-, 10000- (10000-10999); 13000
(13000-13999); 14000 (14000-14999); 15000 (15000-15999); and 16000
(16000-16999) series military resale products.
(d) The Defense Commissary Agency shall provide the Committee a
copy of each directive which relates to the stocking of military resale
products in commissary stores, including exceptions authorizing the
stocking of commercial items in competition with 300-, 800-, 900-,
1000-, 1100-, 10000- (10000-10999); 13000 (13000-13999); 14000 (14000-
14999); 15000 (15000-15999); and 16000 (16000-16999) series military
resale products.
(e) The prices of military resale products include delivery to
destination or, in the case of destinations overseas, to designated
depots at ports of embarkation. Zone pricing is used for delivery to
Alaska and Hawaii.
0
28. Amend Sec. 51-6.6. by revising paragraph (a) to read as follows:
Sec. 51-6.6 Request for waiver of specification requirement.
(a) Nonprofit agencies and central nonprofit agencies are
encouraged to recommend changes to specification requirements or
request waivers where there are opportunities to provide equal or
improved products at a lower cost to the Government.
* * * * *
0
29. Revise Sec. 51-6.7 to read as follows:
Sec. 51-6.7 Orders in excess of nonprofit agency capability.
(a) Nonprofit agencies are expected to furnish products on the
Procurement List within the time frames specified by the Government.
The nonprofit agency must have the necessary production facilities to
meet normal fluctuations in demand.
(b) Nonprofit agencies shall take those actions necessary to ensure
that they can ship products within the time frames specified by the
Government. In instances where the nonprofit agency determines that it
cannot ship the product in the quantities specified by the required
shipping date, it shall notify the central nonprofit agency and the
contracting activity. The central nonprofit agency shall request a
revision of the shipping schedule which the contracting activity should
grant, if feasible, or the central nonprofit agency shall issue a
purchase exception authorizing procurement from commercial sources as
provided in Sec. 51-5.4 of this chapter.
0
30. Amend Sec. 51-6.8 by revising paragraphs (a), (b), (c), and (e) to
read as follows:
Sec. 51-6.8 Deletion of items from the Procurement List.
(a) When a central nonprofit agency decides to request that the
Committee delete a product or service from the Procurement List, it
shall notify the Committee staff immediately. Before reaching a
decision to request a deletion of an item from the Procurement List,
the central nonprofit agency shall determine that none of its nonprofit
agencies is capable and desirous of furnishing the product or service
involved.
(b) Except in cases where the Government is no longer procuring the
item in question, the Committee shall, prior to deleting an item from
the Procurement List, determine that none of the nonprofit agencies of
any other central nonprofit agency is desirous and capable of
furnishing the product or service involved.
(c) Nonprofit agencies will normally be required to complete
production of any orders for products on hand regardless of the
decision to delete the item. Nonprofit agencies shall obtain
concurrence of the contracting activity and the Committee prior to
returning a purchase order to the contracting activity.
* * * * *
(e) The Committee may delete an item from the Procurement List
without a request from a central nonprofit agency if the Committee
determines that none of the nonprofit agencies participating in the
AbilityOne Program are capable and desirous of furnishing the product
or service to the Government, or if the Committee determines that the
product or service is no longer suitable for procurement from nonprofit
agencies employing people who are blind or have other severe
disabilities. In considering such an action, the Committee will consult
with the appropriate central nonprofit agency, the nonprofit agency or
agencies involved, and the contracting activity.
0
31. Revise Sec. 51-6.9 to read as follows:
Sec. 51-6.9 Correspondence and inquiries.
Routine contracting activity correspondence or inquiries concerning
deliveries of products being shipped from or performance of services by
nonprofit agencies employing persons who are blind or have other severe
disabilities shall be with the nonprofit agency involved. Major
problems shall be referred to the appropriate central nonprofit agency.
In those instances, where the problem cannot be resolved by the central
nonprofit agency and the contracting activity involved, the contracting
activity or central nonprofit agency shall notify the Committee of the
problem so that action can be taken by the Committee to resolve it.
0
32. Amend Sec. 51-6.10 by revising paragraph (a) to read as follows:
Sec. 51-6.10 Quality of merchandise.
(a) Products furnished under Government specification by nonprofit
agencies employing persons who are blind or have other severe
disabilities shall be manufactured in strict compliance with such
specifications. Where no specifications exist, products furnished shall
be of a quality equal to or higher than similar items available on the
commercial market. Products shall be inspected utilizing nationally
recognized test methods and procedures for sampling and inspection.
* * * * *
0
33. Amend Sec. 51-6.11 by revising paragraph (a) to read as follows:
Sec. 51-6.11 Quality complaints.
(a) When the quality of a product received is not considered
satisfactory
[[Page 38968]]
by the using activity, the activity shall take the following actions as
appropriate:
(1) For products received from Defense Logistics Agency supply
centers, General Services Administration supply distribution
facilities, Department of Veterans Affairs distribution division or
other central stockage depots, or specifically authorized supply
source, notify the supplying agency in writing in accordance with that
agency's procedures. The supplying agency shall, in turn, provide
copies of the notice to the nonprofit agency involved and its central
nonprofit agency.
(2) For products received directly from nonprofit agencies
employing persons who are blind or have other severe disabilities,
address complaints to the nonprofit agency involved with a copy to the
central nonprofit agency with which it is affiliated.
* * * * *
0
34. Amend Sec. 51-6.12 by revising paragraphs (a), (b), and (e) to
read as follows:
Sec. 51-6.12 Specification changes and similar actions.
(a) Contracting activities shall notify the nonprofit agency or
agencies authorized to furnish a product on the Procurement List and
the central nonprofit agency concerned of any changes to the
specification or other description of the product.
(b) When a government entity is changing the specification or
description of a product on the Procurement List, including a change
that involves the assignment of a new national stock number or item
designation, the office assigned responsibility for the action shall
obtain the comments of the Committee and the central nonprofit agency
concerned on the proposed change and shall notify the nonprofit agency
and the central nonprofit agency concerned at least 90 days prior to
placing an order for a product covered by the new specification or
description.
* * * * *
(e) Nonprofit agencies shall recommend changes in specifications,
item descriptions, and statements of work that will improve the product
or service being provided, reduce costs, or improve overall value to
the Government. Contracting activities shall respond promptly to these
recommendations and work with the nonprofit agencies to implement them
when appropriate.
0
35. Revise Sec. 51-6.13 to read as follows:
Sec. 51-6.13 Replacement and similar products.
(a) When a product on the Procurement List is replaced by another
product which has not been recently procured, and a nonprofit agency
can furnish the replacement product in accordance with the Government's
quality standards and delivery schedules, the replacement product is
automatically considered to be on the Procurement List and shall be
procured from the nonprofit agency designated by the Committee at the
fair market price the Committee has set for the replacement product.
The product being replaced shall continue to be included on the
Procurement List until there is no longer a Government requirement for
that product.
(b) If contracting activities desire to procure additional sizes,
colors, or other variations of a product after the product is added to
the Procurement List, and these similar products have not recently been
procured, these products are also automatically considered to be on the
Procurement List.
(c) In accordance with Sec. 51-5.3 of this chapter, contracting
activities are not permitted to purchase commercial items that are
essentially the same as products on the Procurement List.
PART 51-7--PROCEDURES FOR ENVIRONMENTAL ANALYSIS
0
36. Amend Sec. 51-7.1 by revising paragraph (b) to read as follows:
Sec. 51-7.1 Purpose and scope.
* * * * *
(b) Scope. This part applies to all actions of the Committee for
Purchase from Persons Who Are Blind or Severely Disabled which may
affect environmental quality in the United States.
0
37. Amend Sec. 51-7.2 by revising paragraph (a) to read as follows:
Sec. 51-7.2 Early involvement in private, State, and local
activities requiring Federal approval.
(a) 40 CFR 1501.2(d) requires agencies to provide for early
involvement in actions which, while planned by private applicants or
other non-Federal entities, require some sort of Federal approval.
Pursuant to the JWOD Act (41 U.S.C. 8501-8506), the Committee for
Purchase from People Who Are Blind or Severely Disabled makes the
determination as to which qualified nonprofit agency serving persons
who are blind or have other severe disabilities will furnish designated
products and services to the Government.
* * * * *
PART 51-8--PUBLIC AVAILABILTY OF AGENCY MATERIALS
0
38. Amend Sec. 51-8.4 by revising the section heading and adding
paragraph (g) to read as follows:
Sec. 51-8.4 Responsibility for responding to requests.
* * * * *
(g) Appointments. Material described in 5 U.S.C. 552(a)(2) shall be
available for inspection during normal business hours at the
Committee's offices. An individual who intends to visit the Committee
offices to inspect this material shall make an appointment with the
Executive Director at least one week in advance, except when the
Committee has provided notification to the individual that the material
is available for inspection in the Committee offices, in which case an
appointment must be made at least 24 hours in advance. Appointments can
be requested at the Committee's email address: [email protected].
0
39. Amend Sec. 51-8.5 by adding paragraph (a) introductory text and
revising paragraph (a)(1) to read as follows:
Sec. 51-8.5 Timing of Responses to Requests.
(a) In general. Requests to obtain copies of any material
maintained by the Committee must be submitted to the Executive Director
at the Committee's offices, email address: [email protected]. The
requester may in his or her petition ask for a fee waiver if there is
likely to be a charge for the requested information. All requests for
records shall be deemed to have been made pursuant to the FOIA,
regardless of whether the Act is specifically mentioned. Failure to
submit a request in accordance with these procedures may delay the
processing of the request.
(1) The Committee ordinarily will respond to requests according to
their order of receipt. The time limits prescribed in the FOIA will
begin only after the Committee identifies a request as being made under
the FOIA and deemed received by the Committee.
* * * * *
PART 51-9--PRIVACY ACT RULES
0
40. Revise Sec. 51-9.301 to read as follows:
Sec. 51-9.301 Notification.
Any individual who wishes to determine if a system of records
maintained by the Committee contains a record pertaining to him should
direct a request to the Executive Director at the address indicated in
the public notice or
[[Page 38969]]
at the Committee's email address: [email protected] describing the
system of records which has been published in the Federal Register. The
request should display clearly the legend ``Privacy Act Request'' on
the face of the request letter. The request letter should contain the
complete name and identifying number of the system as published in the
Federal Register; the full name, address, and telephone number of the
subject individual; a brief description of the nature, time, place and
circumstances of the individual's association with the Committee and
any other information which the individual believes would facilitate
the Executive Director's determination whether the individual's name is
included in the system of records. The Executive Director shall answer
or acknowledge the request within ten working days.
0
41. Amend Sec. 51-9.301-1 by revising paragraphs (b) and (c) to read
as follows:
Sec. 51-9.303-1 Form of requests.
* * * * *
(b) A written request should be directed to the Executive Director
as listed in the public notice describing the system of records or at
the Committee's email address: [email protected]. The individual
should display clearly on the face of the request letter and on the
face of the envelope the legend ``Privacy Act Request'', and include
the complete name and identifying number of the system as published in
the Federal Register; the full name, address, the telephone number of
the individual; a brief description of the nature, time, place and
circumstances of the individual's association with the Committee; and
any other information which the individual believes would facilitate
the Executive Director's search for the record.
(c) An individual who wishes to have a person of his choosing
accompany him in reviewing a record must sign a statement authorizing
the disclosure of his record in the presence of another individual, if
so requested by the Executive Director. An individual who intends to
visit the Committee office in order to review a record should make an
appointment with the Executive Director using the Committee's email
address at: [email protected] at least one week in advance.
0
42. Revise Sec. 51-9.304-4 to read as follows:
Sec. 51-9.304-4 Form of payment.
Payment shall be by check or money order payable to the Committee
for Purchase from People Who Are Blind or Severely Disabled and shall
be addressed to the Executive Director.
0
43. Amend Sec. 51-9.401 by revising paragraph (a) to read as follows:
Sec. 51-9.401 Submission of requests to amend records.
(a) An individual who desires to amend any record or information
pertaining to him should direct a written request to the Executive
Director, Committee for Purchase From People Who Are Blind or Severely
Disabled at the Committee's email address: [email protected].
* * * * *
0
44. Amend Sec. 51-9.405 by revising paragraph (a) to read as follows:
Sec. 51-9.405 Request of review of refusal to amend a record.
(a) An individual who disagrees with the refusal to amend may
appeal that refusal with the Committee. An individual should address a
request for review of a refusal to amend any record, exclusive of a
personnel record of a current Committee employee to the Chairperson,
Committee for Purchase from People Who Are Blind or Severely Disabled
at the Committee's email address: [email protected].
* * * * *
PART 51-10--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE COMMITTEE FOR
PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
0
45. Amend Sec. 51-10.170 by revising paragraph (c) to read as follows:
Sec. 51-10.170 Compliance procedures.
* * * * *
(c) The Executive Director shall be responsible for coordinating
the implementation of this section. Complaints may be sent to the
Executive Director, Committee for Purchase from People Who Are Blind or
Severely Disabled at the Committee's email address:
[email protected].
* * * * *
Michael R. Jurkowski,
Deputy Director, Business Operations.
[FR Doc. 2021-15154 Filed 7-22-21; 8:45 am]
BILLING CODE 6353-01-P