July 11, 2003
Defense Acquisition Regulations Council
Attn: Ms. Susan Schneider
OUSD (AT&L) DPAP (DAR)
3062 Defense Pentagon
Washington, DC 20301-3062
Re: DFARS Case 2002-D003
Defense Federal Acquisition Regulation Supplement; Competition Requirements
for Purchases from a Required Source
Dear Ms. Schneider:
The Council on Federal Procurement of Architectural and Engineering Services (COFPAES), is a coalition of the nation's leading design professional associations and professional societies. Our member organizations, the American Congress on Surveying and Mapping (ACSM), American Institute of Architects (AIA), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE) and the Management Association for Private Photogrammetric Surveyors (MAPPS), appreciate this opportunity to comment on the proposed DFARS rule implementing Section 811 of the Defense Authorization Act for Fiscal Year 2002 and Section 819 of the Defense Authorization Act for Fiscal Year 2003, as published in the Federal Register on May 15, 2003 (68 Fed. Reg. 26265).
The proposed rule implements legislation enacted by Congress to reform purchases from Federal Prison Industries (FPI) by the Department of Defense (DoD).
Section 811 and 819 require DoD to conduct market research before purchasing a product listed in the Federal Prison Industries (FPI) catalog, to determine whether the FPI product is comparable in price, quality, and time of delivery to products available from the private sector. COFPAES support this rule and believes it accurately implements the intent of Congress.
There are two provisions which particularly affect the design professionals - architects, engineers, surveyors and mappers - that COFPAES strongly supports. That is the language prohibiting FPI inmate workers from having access to classified data, critical infrastructure data, and personal or financial data under any DoD contracts. This information of this nature should not be in the hands of convicted criminals. This provision would effectively prohibit FPI from providing any mapping or geographic information services to DoD agencies, including the National Imagery and Mapping Agency (NIMA). We strongly support this provision in the final rule.
COFPAES has been a leader in supporting enactment of legislation, as reflected in the proposed rule, to prohibit Federal agencies from requiring Federal prime contractors and subcontractors at any tier be required or encouraged to use or specify products or services furnished by FPI. Under Sections 811 and 819, FPI can no longer be forced upon Defense Department contractors as a mandatory source for products or specified as a mandatory source on Defense contracts. In order to implement the spirit and intent of sections 811 and 819, and to prevent FPI from delegating or subcontracting the mandatory source status it no longer enjoys under these provisions of law, we would urge that the rule also prohibit a Federal contractor from being required to "specify" FPI products or services in the designs, specifications or standards it develops for DoD, or to use a firm's capability in specifying FPI as a selection criteria in a QBS (FAR part 36) A/E selection. For example, a DoD contact for architect/engineer services should not require the A/E to specify FPI modular furniture in its building designs and specifications. This point was made by Senator Thomas of Wyoming, on the floor of the Senate, as reflected in the CONGRESSIONAL RECORD, upon approval of the Conference report on the Defense Authorization bill. We would urge that section 208.670 be slightly modified to clarify this point. That section should add a new subparagraph (c) to read, "A solicitation provision utilizing knowledge of FPI products or services, or the ability to specify FPI products or services, as an evaluation or selection criteria or factor", and redesignate the current (c) as (d).
We appreciate the opportunity to comment on the proposed rule and appreciate the consideration of our views.
Thomas Brooks, Jr.