Another Contractor Successfully Protests the Government’s Attempt to Circumvent the AbilityOne Program

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.