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  • Writer's pictureDick Lieberman,Consultant

Contracting Officers: Don't Make the Mistake of Asking AbilityOne for the Impossible

The Javits-Wagner-O’Day Act (“JWOD”) , 41 U.S.C. § 8501-606, as implemented in the Federal Acquisition Regulation (“FAR”) at Subpart 8.7, “Acquisition from Nonprofit Agencies Employing People Who are Blind or Severely Disabled” is not always a panacea for agencies. The Act authorizes creation of a Committee for Purchase from People Who Are Blind or Severely Disabled (now known as the “AbilityOne Program”). This Committee and the FAR Section are designed to increase employment and training opportunities for persons who are blind or have other severe disabilities. A person with severe disabilities is “unable to engage in normal competitive employment over an extended period of time.”The AbilityOne contracting program can provide real benefits. But contracting officers can make significant mistakes when working with program, as shown in Systems Application & Technologies, Inc. v. United States, 107 Fed. Cl. 795 (2012).

The Committee develops a “Procurement List” of products and services suitable for the Federal Government to buy from qualified Nonprofit Agencies (“NPA”) which employ blind or severely disabled individuals. Once placed on the Procurement List, the agency is obligated to obtain the product or service from the AbilityOne-approved NPA.

Systems Applications & Technologies (“SAT”) operated and maintained the Range and Facilities Services at the Yakima Training Center (“YTC”) in Washington State for the Army. This center is used as a training area for large scale military maneuvers involving tanks, long range weapons and other heavy wheeled and tracked vehicles. The work includes live fire range during training by repairing and replacing targets. YTC is in a remote desert area, with no public transportation. At the time of the procurement, all job descriptions specifically required that employees be able to drive, lift up to 100 pounds, engage in strenuous physical exertion during stressful conditions and be available 24 hours a day.

For reasons that are not apparent, the Army contracting officer proposed placing the Yakima Training Center operation and maintenance contract on the Procurement List, operated by Skookum Educations Systems, which promised to do the work using at least 60% disabled workers. Skookum planned to start with SAT’s crew, and over five years, integrate people with disabilities into the work force. Skookum’s CEO promised that if it was not successful, Skookum would move the project out of the AbilityOne program and back to competitive procurement. The Nonprofit Agency involved (National Institute of Severe Handicapped-NISH, now renamed SourceAmerica) waived the need for an assessment of Skookum’s ability to do the work. The Committee approved adding the YTC to the Procurement List, even though the Army was fully aware (through an internal memo from the Civilian Range Officer) that the work was “highly dangerous and could be compromised by a severely disabled workforce.” SAT protested in Court objecting to the placement on the Procurement List.

The Court of Federal Claims sustained SAT’s protest, concluding that the Committee had acted in an arbitrary and capricious way in placing the YTC contract on the Procurement List. First, Skookum’s proposal to initially hire all incumbent employees (none disabled), and attempt to ramp up to 60% disabled, contravened the usual requirement for a 90 day phase in. Also, Skookum’s guarantee that if it couldn’t do the work, it would abandon the effort to achieve the 60% and simply use able bodied workers, was at odds with the JWOD statute. There was a serious question of whether Skookum, even if it found sufficient disabled personnel, had the capability to do the work, given its lack of experience, the inability to drive (required) and the physical characteristics of its workforce vis-à-vis the work.

As the Court put it, based on Skookum’s promises, the Army and the Committee “should have realized that Skookum was offering only a promissory note, with no collateral.” The Court concluded that the Army did not provide meaningful answers to serious questions raised by its own personnel in internal memos, and merely accepted Skookum’s word that it could do the work. This gave Skookum a “three year pass on its obligation to employ the severely disabled”.

The Court concluded it was arbitrary and capricious for the AbilityOne Committee to designate YTC for placement on the Procurement List, and granted an injunction prohibiting it to be so placed. In sum, the Court said this:

The harm to plaintiff outweighs any potential harm to the government. The current contracting officer submitted a declaration outlining the affect on the Army of enjoining award to Skookum. In substance what the contracting officer reports is that it will take time to prepare for a commercial solicitation and it will add expense, primarily in terms of overtime or the potentially higher cost of a bridge contract. These are routine and minor consequences. They do not outweigh the harm to plaintiff and to the equally important public interest in the proper application of the JWOD Act.

Systems Application demonstrates that notwithstanding its very commendable goals, the JWOD act must be administered properly and in the proper interest of the government and the disabled. These types of mistakes must be avoided. Procurements must be carefully selected for inclusion in the program, and although using AbilityOne is a laudable goal, the program must be evaluated with a clear understanding that a blind person or a significantly disabled person may be unable to perform the work successfully. In any event, Systems Application demonstrates that a headlong rush into this type of program by a contracting officer is never a prudent way to procure services for the Federal Government. Much greater care and deliberation is required, even though the goals of the program are highly commendable, and there are numerous procurements that could benefit from the program.

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