(a) For a commodity 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 commodity 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 commodity 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 commodity 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 commodity 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 commodity 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 commodity 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 commodity 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 commodity or service for addition to the Procurement List, the Committee does not consider comments on proposed fair market prices for commodities and services proposed for addition to the Procurement List to be pertinent to a suitability determination.
[56 FR 48977, Sept. 26, 1991, as amended at 59 FR 59341, Nov. 16, 1994; 62 FR 66529, Dec. 19, 1997]
Notes of Decisions
Pds Consultants, Inc. v. United States, 907 F.3d 1345 (Fed. Cir. 2018).
“41 C.F.R. § 51-2.4 . AbilityOne can make changes to the List by posting a notice in the Federal Register and following the notice and comment procedures set forth in the Administrative Procedure Act.”
McGregor Printing Corp. v. Kemp, 20 F.3d 1188 (D.C. Cir. 1994).
· cites it 6× “6 (1990); see 41 C.F.R. § 51-2.4 (e) (1993). To these conditions, the new regulations add an explicit requirement that “the proposed addition must demonstrate a potential to generate employment for persons who are blind or have other severe disabilities.”
Sys. Application & Tech., Inc. v. United States, 107 Fed. Cl. 795 (Fed. Cl. 2012).
· cites it 4× “41 C.F.R. § 51-2.4 . Once the Committee concludes that a product or service is suitable, it is added to the Procurement List and the agency is obligated to obtain that product or service from the AbilityOne approved NPA.”
Akima Intra-Data, LLC v. United States, 119 Fed. Cl. 520 (Fed. Cl. 2014).
· cites it 2× “41 C.F.R. § 51-2.4 (a)(l). Such a finding may be challenged at two stages: following the addition of the services to the Federal Register and, as here, in court with a bid protest.”
Magic Brite Janitorial v. United States, 69 Fed. Cl. 319 (Fed. Cl. 2006).
· cites it 2× “2 Magic Brite relies on the “severe adverse impact" language of 41 C.F.R. § 51-2.4 (a)(4), which imposes on the Committee a requirement to consider the “[flevel of impact on the current contractor for the commodity or service.”
Sekri, Inc. v. United States (Fed. Cl. 2023).
· cites it 5× “) AbilityOne staff recommended that AbilityOne approve the ATAP “as suitable for addition to the [procurement list], in accordance with 41 C.F.R. § 51-2.4 .” (Id.) The addition was made, however, “with the understanding that procurement under the JWOD Act shall be limited to…”
Bona Fide Conglomerate, Inc. v. SourceAmerica, 377 F. Supp. 3d 1093 (S.D. Cal. 2019).
· cites it 4× “In that respect, 41 CFR § 51-2.4 obligates SourceAmerica to consider whether the NPAs seeking recommendation could fulfil the requirement of "satisf[ying] the Committee as to the extent of the labor operations to be performed and that it will have the capability to meet…”
Sekri, Inc. v. United States (Fed. Cl. 2022).
“41 C.F.R. § 51-2.4 . (Id. at ¶¶ 13, 14.) The contracting officer averred that if the parties cannot agree on a price, then the DLA will engage in the Committee impasse process contemplated by 41 C.”
— 41 C.F.R. § 51-2.4(a)(3) — 1 case
Bona Fide Conglomerate, Inc. v. SourceAmerica, 377 F. Supp. 3d 1093 (S.D. Cal. 2019).
“In that respect, 41 CFR § 51-2.4 obligates SourceAmerica to consider whether the NPAs seeking recommendation could fulfil the requirement of "satisf[ying] the Committee as to the extent of the labor operations to be performed and that it will have the capability to meet…”
— 41 C.F.R. § 51-2.4(a)(4) — 1 case
Sekri, Inc. v. United States (Fed. Cl. 2023).
“) AbilityOne staff recommended that AbilityOne approve the ATAP “as suitable for addition to the [procurement list], in accordance with 41 C.F.R. § 51-2.4 .” (Id.) The addition was made, however, “with the understanding that procurement under the JWOD Act shall be limited to…”
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