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October marks National Disability Employment Awareness Month,
celebrating the contributions of America’s workers with
disabilities and emphasizing supportive, inclusive employment
policies and practices. One such federal program is the AbilityOne
Program, derived from the Javits-Wagner-O’Day (JWOD) Act, which
implements a series of rules and regulations for federal employment
of individuals with severe disabilities. (See generally, 41 C.F.R.
pt. 51, 48 C.F.R. Subpart 8.7) In essence, the AbilityOne Program,
overseen by the AbilityOne Commission, creates a government
procurement set-aside (via the Procurement List) for qualified
non-profits for an identified good or service. Under the JWOD Act,
and its implementing rules and regulations, goods and/or services
identified on the Procurement List must be purchased from a
qualified non-profit agency employing individuals with severe
disabilities.
Recently, the Defense Logistics Agency (“DLA”) tried
to conduct a work around, seeking competitive procurement of an
item on the Procurement List from a contractor outside the
AbilityOne Program. Goodwill Industries of South Florida
(“Goodwill”) filed a protest with the Court of Federal
Claims challenging the DLA solicitation. Goodwill maintained
“that as the mandatory source of supply, it should not have
had to submit a proposal to DLA in order to be awarded this
requirement” because the presence of the item on the
Procurement List requires all government agencies, including DLA,
to procure the item from the mandatory source. Goodwill argued that
the item in question, Women’s Hot-Weather Combat Uniform
Trousers, were on the Procurement List, and thus must be purchased
from an AbilityOne non-profit agency. DLA tried to argue that the
mandatory source requirement of the Procurement List was not
necessarily mandatory for DLA and that it was only mandatory that
the Army procure the trousers in question from the Procurement
List, not necessarily other government agencies. DLA (and the
AbilityOne Commission) argued that regulations authorize AbilityOne
to place scope limitations on the Procurement List by adding only
portions of a product requirement to the Procurement List, and thus
DLA was exempt from the Procurement List requirements.
The Court of Federal Claims disagreed, issuing its opinion on September
18, 2022. The court issued a 69-page decision analyzing all of the
various statutes, rules, and regulations that govern the complex
AbilityOne Program, as well as examining the jurisprudence of the
Federal Circuit and other decisions in the Court of Federal Claims
that have explored the intent and meaning of the AbilityOne
Program. The court emphasized the plain language of the procurement
rules and regulations—including the statutory use of the word
“shall” and “mandatory”—as well as the
fact that the statute clearly includes DLA as an entity with the
United States Department of Defense. DLA’s selective quoting of
the statute, and the AbilityOne Commission’s retroactive
attempt to argue limitations on the procurement, were unpersuasive
to the court. The AbilityOne Commission was again reminded by the
court that it cannot selectively point to internal
“Clarifications” or other memos that do not follow the
rule-making processes and/or are not codified. (See also, this 2021 Court of Federal Claims decision in
Melwood Horticultural Training Center, Inc. v. The United
States, wherein the court enjoined the AbilityOne Commission
and the Department of Defense from working around the Procurement
List). The court determined the government’s actions were
arbitrary and capricious, that Goodwill would be irreparably
harmed, the balance of the hardships favored Goodwill, and that a
permanent injunction was in the public’s interest thereby
permanently enjoining DLA from going forward with the competitive
procurement of the trousers.
It seems that each year brings more AbilityOne-related protests
before the court, as the AbilityOne Commission and other federal
agencies issue competitive procurements that are contrary to the
statutes governing the AbilityOne Program. It remains to be seen
whether the AbilityOne Commission and the government will continue
to gut the AbilityOne Program with these competitive procurements
(forcing the non-profits to file protests), or whether they will
ultimately seek congressional support to amend the statutes, rules,
and regulations. In either instance, the focus should remain on the
intent of the JWOD Act—assisting those who are blind or
severely disabled with obtaining long-term employment.
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