8.602 Policy
Source: FAR 8.602 on acquisition.gov
Before buying items listed on the FPI Schedule, agencies must conduct and document market research to determine comparability with private sector alternatives, and follow specific procedures based on the outcome.
Overview
FAR 8.602 establishes the policy for acquiring supplies from Federal Prison Industries, Inc. (FPI), also known as UNICOR. Before purchasing any item listed on the FPI Schedule, agencies must conduct market research to determine if the FPI item is comparable to private sector alternatives in price, quality, and delivery time. If comparable, the item must be purchased from FPI unless a waiver is obtained. If not comparable, agencies may use competitive procedures but must include FPI in the solicitation process and consider any timely offers from FPI. Special procedures apply when using multiple award schedules or fair opportunity procedures. Exceptions to these requirements are outlined in FAR 8.605(b)-(g). If FPI grants a waiver for items also produced by AbilityOne agencies, those items must be purchased from AbilityOne using the appropriate procedures. Disputes over FPI supplies, except for initial comparability determinations, are subject to arbitration as specified by law.
Key Rules
- Market Research Requirement
- Agencies must conduct market research to compare FPI items with private sector alternatives on price, quality, and delivery time.
- Written Determination
- A written determination with supporting rationale is required to document the comparability assessment.
- Mandatory Source
- If the FPI item is comparable, it must be purchased from FPI unless a waiver is obtained.
- Competitive Acquisition
- If not comparable, agencies may use competitive procedures but must include FPI in the solicitation and consider its offers.
- AbilityOne Waivers
- If FPI grants a waiver for items also produced by AbilityOne, those items must be purchased from AbilityOne agencies.
- Arbitration of Disputes
- Disputes (except initial comparability) are subject to binding arbitration as specified in 18 U.S.C. 4124.
Responsibilities
- Contracting Officers: Must conduct and document market research, make comparability determinations, include FPI in solicitations, and follow proper procedures for waivers and disputes.
- Contractors: Should be aware of FPI's mandatory source status and participate in competitive processes when FPI items are not comparable.
- Agencies: Must ensure compliance with FPI and AbilityOne purchasing requirements and manage dispute resolution as required.
Practical Implications
This policy ensures FPI is given priority as a source for certain supplies, but only when their products are competitive. It requires careful documentation and procedural compliance, especially regarding market research and solicitation processes. Failure to follow these steps can result in procurement delays or disputes. Contracting professionals must be diligent in applying these rules to avoid compliance issues and ensure fair competition.
(a) In accordance with https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3905&num=0&edition=prelim" target="_blank">10 U.S.C. 3905 and Section 637 of Division H of the Consolidated Appropriations Act, 2005 (Pub. L. 108-447) (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section4124&num=0&edition=prelim" target="_blank">18 U.S.C. 4124 note), and except as provided in paragraph (b) of this section, agencies shall-
(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. The arbitration provisions of http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section4124(b)&num=0&edition=prelim" target="_blank">18 U.S.C. 4124(b) do not apply.
(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" target="_blank">http://www.unicor.gov, unless a waiver is obtained in accordance with 8.604; 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 6.102, the set-aside procedures in subpart 19.5, or competition conducted in accordance with part 13); or
(B) The fair opportunity procedures in 16.505, 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 item description or specifications, and evaluation factors in the solicitation-
(A) If the solicitation is available through the Governmentwide point of entry (Contract Opportunities at https://www.sam.gov" target="_blank">SAM.gov ), it is not necessary to provide a separate copy of the solicitation to FPI;
(B) If the solicitation is not available through Contract Opportunities at https://www.sam.gov" target="_blank">SAM.gov , provide a copy of the solicitation to FPI;
(iii) When using a multiple award schedule issued under the procedures in subpart 8.4 or when using the fair opportunity procedures in 16.505-
(A) Establish and communicate to FPI the item description or specifications, 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;
(iv) Award to the source offering the item determined by the agency to provide the best value to the Government; and
(v) When the FPI item is determined to provide the best value to the Government as a result of FPI’s response to a competitive solicitation, follow the ordering procedures at http://www.unicor.gov" target="_blank">http://www.unicor.gov.
(b) The procedures in paragraph (a) of this section do not apply if an exception in 8.605(b) through (g) applies.
(c) In some cases where FPI and an AbilityOne participating nonprofit agency produce identical items (see 8.603), FPI grants a waiver to permit the Government to purchase a portion of its requirement from the AbilityOne participating nonprofit agency. When this occurs, the portion of the requirement for which FPI has granted a waiver-
(1) Shall be purchased from the AbilityOne participating nonprofit agency using the procedures in subpart 8.7; and
(2) Shall not be subject to the procedures in paragraph (a) of this section.
(d) Disputes regarding price, quality, character, or suitability of supplies produced by FPI, except for determinations under paragraph (a)(1) of this section, are subject to arbitration as specified in http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section4124&num=0&edition=prelim" target="_blank">18 U.S.C. 4124. The statute provides that the arbitration shall be conducted by a board consisting of the Comptroller General of the United States, the Administrator of General Services, and the President, or their representatives. The decisions of the board are final and binding on all parties.