Date:
March 16, 2007
Subject:
AbilityOne Price and Price-Related Impasse and Dispute
Resolution Procedures
1. Purpose
The purpose of this Operations Memorandum is to prescribe procedures
for resolving price and price-related disputes between parties in
the exercise and administration of the AbilityOne (Formerly JWOD)
Program (41 CFR Chapter 51). These procedures are applicable to:
(A) Federal Contracting
Activities obtaining products or services under the JWOD Program.
(B) Nonprofit Agencies associated
with NIB or NISH and providing products or services under JWOD contracts.
(C) The Central Nonprofit Agencies
(CNA): National Industries for the Blind (NIB) and NISH.
(D) Federal contractors awarding
subcontracts under the JWOD Program.
2. Effective Date: April 1, 2007
This memorandum replaces and supersedes Committee Operations Memorandum No. 19,
Javits-Wagner-O'Day Price and Price Related Impasse and Dispute Resolution Procedure
, date April 16, 2001
3. Authority
The Committee for Purchase From People Who Are Blind or Severely Disabled (the
Committee) was established by the Javits-Wagner-O'Day Act (4 1 U.S.C. 46-48c). The
price impasse procedures implemented herein derive from the authority of the Javits-
Wagner-O'Day Act as implemented through Federal Acquisition Regulation (FAR)
Subpart 8.7,41 CFR Chapter 51, and OMB Circular A-122. The Committee has sole
authority to establish the Fair Market Price. Because of this authority, the
Committee's pricing procedures take precedence for AbilityOne contracts over other
pricing provisions of the FAR (See FAR 8.707). However, the Committee's pricing
procedures follow FAR practices that are consistent with the Committee's statutory
and regulatory authorities
4. Applicability
This Memorandum serves as the sole procedure for resolving AbilityOne price and
price related disputes. The Committee encourages Contracting Activities and
Nonprofit Agencies to use this Memorandum as an Alternate Disputes Resolution (ADR)
procedure for non-price issues. The Committee's AbilityOne Price and Price-Related
Impasse and Disputes Resolution Procedures do not preclude the Contracting Activity
or the Nonprofit Agency from pursuing remedies under the Contract Disputes Act of
1978,41 U.S.C. 601-613, for other than price and price-related issues.
5. Policy
Partnering concepts will be used to establish business protocols for contract
performance under the AbilityOne Program. Partnering encourages team building and
mutual gains approaches to problem-solving. Business relationships under the AbilityOne
Program must be conducted with fairness, integrity and openness. Issues should be
resolved early and in a timely manner and at the local level if at all possible.
When price and price-related issues cannot be resolved at the local level, the dispute
resolution process of this Memorandum will be used.
6. AbilityOne Program Definitions
The following definitions are provided to establish a common language for parties
participating in the pricing of an AbilityOne product contract.
A. AbilityOne Program. The Committee
has changed the program name from JWOD to the AbilityOne Program. Use of the name
AbilityOne will be transitioned to gradually replace JWOD as the program name.
During that time, the two names may be used synonymously.
B. Central Nonprofit Agency (CNA)
means a not-for-profit corporation operated in the interest of people who are blind or
have other severe disabilities, and designated by the Committee to facilitate the
distribution (by direct allocation, subcontract, or any other means) of Government
orders 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 AbilityOne Program,
and to otherwise assist the Committee in administering these regulations as set
forth herein by the Committee. (41 CFR 5 1-1.3).
C. Fair Market Price (FMP) is the
price that the Committee has set and approved for each product or service on its
Procurement List, and the price that the Government is required to pay when purchasing
the product or service from the designated nonprofit agency. FMP can either be FOB
Origin or Destination as recommended by negotiation between the designated NPA and
CA and as approved by the Committee.
D. Impasse exists when an issue, controversy or disagreement occurs and the
Contracting Activity, contractor or the Nonprofit Agency is unable to proceed
with a contract action.
E. Javits-Wagner-O'Day Act (41 U.S.C. 46-4%) is the law under which the
Program operates; "JWOD" has been used to describe the Program and is
often used as an adjective (e.g., a JWOD contract). The Committee has
changed the program name from JWOD to the AbilityOne Program. Use of
the name AbilityOne will be transitioned to gradually replace JWOD as the
program name. During that time the two names may be used synonymously.
F. The Committee for Purchase From People Who Are Blind or Severely
Disabled (the Committee) is the independent Federal Government agency
responsible for administering the AbilityOne Program. The Committee
establishes rules, regulations, and policies to assure effective administration of
the Javits-Wagner-O'Day Act. For more information, go to
http://www.jwod.gov.
G. National Industries for the Blind (NIB) is the CNA designated by the
Committee to assist in creating employment opportunities for people who are
blind. NIB is not a Government Agency. For more information, go to
http://www.nib.org.
H. NISH is the CNA designated by the Committee to assist in creating
employment opportunities for people with severe disabilities. NISH is not a
Government Agency. (NISH is not an acronym.). For more information, go to
http:://www.nish.org.
I. Nonprofit Agency (NPA) is the term used to describe the state and local
agencies employing people who are blind (NIB-associated agencies) or
severely disabled (NISH-associated agencies). Nonprofit Agencies are also
referred to as Community Rehabilitation Programs (CRP).
J. Procurement List Number is the term used to identify a potential or actual
Procurement List product(s) or service(s) addition also known as Action
Number, JPID number or Request number.
7. Roles and Responsibilities:
The acquisition process under the AbilityOne Program is governed by a different set of
rules from "typical" FAR contracts. One of the unique aspects of the AbilityOne
Program is the roles and responsibilities of the groups involved with the disputes
resolution process
A. The Committee establishes rules, regulations,
and policies to assure effective implementation of the JWOD Act. (See 41 CFR 51-2.2,
Committee Powers and Responsibilities.
(1) Disputes which cannot be
resolved by these parties (Nonprofit Agency and Contracting Activity)
shall be referred to the Committee for resolution. (See 41 CFR 51-6.15)
(2) The Committee determines
Fair Market Prices for items added to the Procurement List and revises
those prices in accordance with changing market conditions to assure
that the prices established are reflective of the market. (See 41
CFR 51-2.2(c)
B. Contracting Activities
shall provide the Committee and NIB or NISH with information needed
to enable the Committee to effectively manage the AbilityOne process and
AbilityOne Program requirements. (See 41 CFR 51-5.1) Contracting Activities
shall also:
(1) Provide the Committee detailed
and timely information, to include Government estimates and budgetary
restrictions, during the impasse resolution process.
(2) Provide NIB or NISH, as appropriate,
copies of all contract documents for AbilityOne contracts.
(3) Keep NIB or NISH informed
of contract issues that may result in an impasse.
(4) When unable to resolve issues
locally with the Nonprofit Agency, seek support from NIB or NISH
in resolving the issue before declaring impasse.
(5) Provide the Committee all
relevant data in a Business Case when requested to support impasse
resolution.
C. NIB and NISH are Central
Nonprofit Agencies designated by the Committee which have a unique
role in Federal Government acquisition program functions. NIB and
NISH are responsible for ensuring that recommended Fair Market Prices
are fair to all parties in the Program. NIB and NISH will:
(1) Provide technical assistance to
both Contracting Activities and Nonprofit Agencies in negotiations.
NIB or NISH shall participate and/or review all negotiations for Fair Market
Price recommendation before submission to the Committee.
(2) Evaluate prices and, when used,
cost elements proposed by Nonprofit Agencies for consistency with Committee
guidelines and procedures.
(3) Ensure the Nonprofit Agencies and
Contracting Activities are aware of and adhere to Committee rules, regulations
and policies.
(4) Assemble and forward required information
for impasse resolution to the Committee as required. NIB or NISH will assist
Contracting Activities and Nonprofit Agencies in preparation of impasse Business
Cases unless designated by the Nonprofit Agency to represent it in the
impasse.
D. Nonprofit Agencies will provide a
product or service at the established Fair Market Price and act as a responsible
partner with Contracting Activities and endeavor to provide best value products or
services to the Government. Nonprofit Agencies will:
(1) Continue contract performance
during the impasse resolution process.
(2) Maintain accounting records
to capture, allocate and report costs and support audits with full
disclosure when directed by the Committee.
(3) Provide the Committee all
relevant data in a Business Case when requested to support impasse
resolution.
8. Impasse Resolution
The Committee Impasse Resolution process involves 6 steps:
Step 1. Informal Resolution:
Disputes should be resolved locally if possible. NIB or NISH, as appropriate,
should be involved in resolution if local attempts to resolve the issue are
unsuccessful. Early involvement of NIB or NISH should facilitate a
timely resolution. NIB and NISH are encouraged to issue procedures for resolving
issues and that support this Memorandum. Step 1 should not extend beyond 30 days.
Step 2. Declaration of Impasse:
The Impasse Resolution process of this Memorandum will be initiated by a
Declaration of Impasse.
(1) Impasse may be declared only:
(a) At the Contracting Activity by an official
an organizational level above the Contracting Officer.
Or
(b) By the Chief Executive Officer of the Nonprofit
Agency, or if designated by the Nonprofit Agency to represent it in the impasse
process, by the Vice President, Operations Management &
Business Development of NIB or the NISH Regional Executive
Director or by an official at an organizational level above these
positions.
(2) Impasse will be declared by written notice to the Executive Director of
the Committee (electronic mail is acceptable) with simultaneous
service of copies to the other party to the impasse and NIB or NISH.
(3) The written declaration of impasse must indicate an acknowledgement
that Business Cases will be submitted to the Committee within fifteen
(15) working days of the date that impasse is declared. However, on
receipt of the impasse declaration or a request from either party, the
Committee staff may elect to extend the deadline for Business Cases
submittal beyond 15 working days for impasses that involve unusually
complex issues, multiple parties, voluminous records, or in other
extenuating circumstances.
Step 3. Preparation and submission of Business Cases:
The Contracting Activity and the Nonprofit Agency will each prepare a Business Case for submission to the
Committee within fifteen (15) working days after declaration of impasse unless a later
deadline has been established by the Committee staff. At a minimun, each Business
Case shall include the following information:
(1) The project name and location.
The contract number if a contract is involved. The NIB or NISH project
number and Committee Procurement List number if appropriate.
(2) A statement of the issue
that is the basis for the impasse and the desired outcome.
(3) The position and opinion
of the party submitting the Business Case with supporting data.
(4) A chronology of steps taken
to resolve the impasse.
(5) A discussion of areas of
agreement pertaining to the issue.
(6) Specifically for price and
price-related issues (See Committee Pricing Memorandum Number 3 (PR-3)
and Pricing Memorandum Number 2 (PR-2) for more details):
(a) The Contracting Officer will provide the Independent
Government Estimate and any Pre- or Post Negotiation Memoranda available.
(b) The Nonprofit Agency will provide market research
information (if available) in addition to details of cost elements
that support the proposed price.
(7) The Contracting Activity
will provide a copy of the current contract (if applicable) and
all contract modifications.
(8) Each party will provide the
name, telephone number, fax number, e-mail address (if available)
and address of their point of contact. The Nonprofit Agency Business
Case will provide information on the NIB or NISH point of contact.
Step 4. Initial Committee
review: The Committee staff will review the Business
Cases and usually within ten working days of receipt shall issue a written plan of
action with milestones for resolution of the impasse and a request for any additional
data to be submitted by either or both parties. The Committee staff will provide a
copy of the plan to designated points of contact at the Contracting Activity, Nonprofit
Agency and NIB or NISH.
Step 5. Committee staff decision:
The Committee staff will issue a written decision
in accordance with the plan, advising all parties if there is to be a delay in the
decision. The decision will represent the best interests of the AbilityOne Program.
The decision may or may not directly support one of the Business Cases submitted.
Step 6. Availability of Committee
review: After a decision from the Committee
staff, either the Contracting Activity or the Nonprofit Agency may request a formal
review and decision from the full Committee. The request for an appeal must be
received in the Committee offices no later than 30 calendar days from the transmittal
date of the staff decision letter. The Committee staff will forward its written decision,
along with the two Business Cases, to the Committee. The Committee may also
request additional information from the parties. The Committee will make a final
decision that is binding on all parties. The Committee staff is responsible for
enforcement of decisions.
(signed)
Leon A. Wilson, Jr.
Executive Director
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