# Procurement List Addition > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-28053 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 14, 1994 ## Text 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. ----------------------------------------------------------------------- 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: December 14, 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 September 2, 1994, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (59 F.R. 45666) of proposed addition to the Procurement List. Comments were received from one of the current contractors for the litter during the development phase of the proposal to add the litter to the Procurement List. This contractor indicated that addition of the litter to the Procurement List would have catastrophic consequences for the company, which is totally dependent on sales to the Government, particularly the Defense Personnel Support Center (DPSC), which buys the litter from this contractor. According to the contractor, loss of the ability to supply the litter to the Government, along with other losses due to reduced Government purchasing, will result in significant layoffs of the contractor's personnel in a labor surplus area and will place the company's ability to survive in jeopardy. This contractor also noted that it had made a substantial investment in tooling and fixtures to make the litter. The other current contractor for the litter contacted the Committee after the comment period for the proposal to add the litter to the Procurement List had ended. This contractor provided data to support its claim of being a longtime supplier of the litter. The contractor questioned the adequacy of notice to it of the Committee's proposal to add the litter to the Procurement List, and challenged the propriety of the Committee's determinations on the suitability of the nonprofit agency to produce the litter and the impact of the action on the contractor. The contractor also claimed that addition of the litter would have an adverse impact on national security. The second contractor also indicated that it had Government sales of the litter outside of DPSC, which the Committee initially believed bought all the Government requirement for this litter for distribution to other agencies. As the Committee's proposal was based on the DPSC requirement for the litter, the Committee has decided to limit its addition of this litter to the Procurement List to the DPSC requirement, rather than the total Government requirement as originally proposed. This will also limit the effect of the Committee's action on the two contractors, as the Government market outside DPSC will remain available for them to compete to supply. In order to gauge the likely impact on the two contractors of adding the DPSC requirement for the litter to the Procurement List in a period of declining Government purchases, the Committee has acquired DPSC data concerning its purchases of the litter since 1988 (all from the two commenting contractors). The Committee has determined impact on the two contractors by assigning each of them a portion of the estimated requirement for the litter for next year in proportion to the average percentage of the requirement which they supplied during that period, and by applying the portion to the latest sales data and projections provided by each contractor, in one case through a financial reporting service to which the Committee subscribes. Using this approach, the percentage of each contractor's total sales which it would lose is not high enough to constitute severe adverse impact, in the Committee's estimation. Consequently, the Committee does not believe its action will jeopardize the survival of either company. As to the possible displacement of workers in a labor surplus area, the addition of the litter to the Procurement List will create jobs for blind people, whose unemployment rate far exceeds that of nondisabled workers, even in labor surplus areas. Under the competitive bidding system, no contractor is guaranteed a contract with the Government to supply an item. A decision to make an investment in tooling and fixtures to produce an item thus requires a business to assume a certain amount of risk. In this case, the first contractor did not get the previous contract for the litter and has not indicated that it will be unable to use its tooling and fixtures to produce litters commercially. Consequently, the Committee does not believe that addition of the Government requirement for the litter to the Procurement List will severely impact the contractor in this regard. The second contractor's challenge to the propriety of the Committee's notice is that the Committee did not give it actual notice of the proposal and that the notice published in the Federal Register did not provide sufficient detail to allow the contractor to evaluate the suitability of the litter for inclusion on the Procurement List. When it adds items to the Procurement List, the Committee is required to use a rulemaking process set forth in 5 U.S.C. 553 which includes notice of its intent in the Federal Register, which in turn is considered under the law to be adequate notice to all affected parties. The Committee believes that its notices contain all the elements which the law requires for a notice of proposed rulemaking. The second contractor also challenged the adequacy of the Committee's determinations on suitability and impact of the addition to the Procurement List on the contractor, as the contractor had not provided information on these two points. The Committee, following its usual practice, based its suitability determination on an inspection of the nonprofit agency arranged by DPSC, a separate inspection by the central nonprofit agency which represents the nonprofit agency in the Committee's program, and the nonprofit agency's long record of successful production of a variety of items including a comparable litter. The basis for the Committee's determination that addition of the litter to the Procurement List will not have a severe adverse impact on either contractor was described earlier in this notice. The Committee does not believe that additional information from the contractor would be likely to alter either determination, and the delay necessary for the information to be provided would frustrate the purpose of the Committee's program, to create employment for blind people, as DPSC needs to procure litters before the information can be provided. The Committee's regulations provide for a reconsideration of its decision if information can be provided which would significantly affect any of the factors on which the decision was made, so the contractor will still be able to present any significant information it finds. The second contractor's claim that addition of the litter to the Procurement List will have an adverse effect on national security is based on the fact that as a defense contractor the second contractor is required to be able to provide additional quantities of the litter in the event of a national emergency. The nonprofit agency which will produce the litter is also required to possess this capacity, and the surveys which were done on it took this factor into account. As the contractor will still be able to bid on the non-DPSC part of the Government requirement, it is unlikely that it will give up its productive capabilities for the litter, and thus lose its capability to contribute to the defense industrial base for the item, as it had indicated it would do in response to the Committee's original proposal to add the entire Government requirement for the litter to the Procurement List. 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: Litter, Folding 6530-00-783-7205 (Requirements for the Defense Personnel Support Center only) This action does not affect current contracts awarded prior to the effective date of this addition or options exercised under those contracts. E.R. Alley, Jr., Deputy Executive Director. [FR Doc. 94-28053 Filed 11-10-94; 8:45 am] BILLING CODE 6820-33-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-28053. Public record. Not legal advice.