DATE: March 26, 2004
SUBJECT: Federal Acquisition Circular (FAC) 2001-21, Purchases from Federal Prison Industries, Inc.
SOURCE: Federal Register, March 26, 2004, Vol. 69, No. 59, page 16147
AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)
ACTION: Interim Rule
SYNOPSIS: The Federal Acquisition Secretariat is issuing FAC 2001-21 to amend FAR Subpart 8.6, Acquisition from Federal Prison Industries, Inc., to implement Section 637 of the Consolidated Appropriations Act of 2004 (Public Law 108-199), which prohibits the expenditure of fiscal year 2004 funds for the purchase of a product or service offered by Federal Prison Industries, Inc. (FPI) unless the purchasing agency determines the offered product or service provides the best value to the buying agency.
EDITOR'S NOTE: FPI is also known by the trade name "UNICOR."
DATES: The effective date of this interim rule is March 26, 2004. Comments on the interim rule must be submitted on or before May 25, 2004.
ADDRESSES: Comments on the interim rule must be submitted to General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW, Room 4035, Attn: Laurie Duarte, Washington, DC 20405; or by e-mail to firstname.lastname@example.org. Cite "FAC 2001-21, FAR case 2003-023" in correspondence related to the interim rule.
FOR FURTHER INFORMATION CONTACT: Linda Nelson, 202-501-1900. For general information, contact the FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, 202-501-4755.
SUPPLEMENTAL INFORMATION: Section 637 of Public Law 108-199 provides that none of the funds made available under that or any other act for fiscal year 2004 shall be expended for the purchase of a product or service offered by Federal Prison Industries, Inc. (FPI), unless the agency making such purchase determines that the offered product or service provides the best value to the buying agency in accordance with governmentwide procurement regulations that impose procedures, standards, and limitations of Title 10 of the United States Code, Section 2410n (10 U.S.C. 2410n). (EDITOR'S NOTE: Section 811 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107) added 10 U.S.C. 2410n, which was subsequently clarified by Section 819 of the National Defense Authorization Act for Fiscal Year 2003 (Public Law 107-314). For more on the changes made to the Defense FAR Supplement (DFARS) to implement 10 U.S.C. 2410n, as amended, see the November 14, 2003, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Competition Requirements for Purchases from the Federal Prison Industries (FPI).")
To implement Section 637, the following changes are made to FAR Subpart 8.6:
"(1) Before purchasing an item of supply listed in the FPI Schedule, conduct market research to determine whether the FPI item is comparable to supplies available from the private sector that best meet the government's needs in terms of price, quality, and time of delivery. This is a unilateral determination made at the discretion of the contracting officer...;
"(2) Prepare a written determination that includes supporting rationale explaining the assessment of price, quality, and time of delivery, based on the results of market research comparing the FPI item to supplies available from the private sector;
"(3) If the FPI item is comparable, purchase the item from FPI following the ordering procedures at http://www.unicor.gov, unless a waiver is obtained in accordance with [FAR] 8.604, [Waivers}; and
"(4) If the FPI item is not comparable in one or more of the areas of price, quality, and time of delivery --
"(i) Acquire the item using --
"(A) Competitive procedures (e.g., the procedures in [FAR] 6.102 [Use of Competitive Procedures], the set-aside procedures in [FAR] Subpart 19.5 [Set-Asides for Small Businesses], or competition conducted in accordance with [FAR] Part 13, [Simplified Acquisition Procedures]); or"(B) The fair opportunity procedures in [FAR] 16.505 [Ordering], if placing an order under a multiple award delivery-order contract;"(ii) Include FPI in the solicitation process and consider a timely offer from FPI for award in accordance with the requirements and evaluation factors in the solicitation; and"(iii) When using a multiple award schedule issued under the procedures in [FAR] Subpart 8.4 [Federal Supply Schedules] or when making an award using the fair opportunity procedures in [FAR] 16.505 --
"(A) Establish and communicate to FPI the requirements and evaluation factors that will be used as the basis for selecting a source, so that an offer from FPI can be evaluated on the same basis as the contract or schedule holder; and"(B) Consider a timely offer from FPI."
In addition to the revisions to FAR Subpart 8.6, the interim rule makes the following related changes:
"(b) General. (1) Offers are solicited only from small business concerns and Federal Prison Industries, Inc. (FPI). Offers received from concerns that are not small business concerns or FPI shall be considered nonresponsive and will be rejected.
"(2) Any award resulting from this solicitation will be made to either a small business concern or FPI."
"(d) Notwithstanding paragraph (b) of this clause, offers from Federal Prison Industries, Inc., will be solicited and considered for both the set-aside and non-set-aside portion of this requirement."
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