The U.S. Government Accountability Office, in the recent bid protest decision Team Wendy LLC, clarified the scope of its authority to review protests involving the addition of products or services to the AbilityOne procurement list.[1] As discussed below, the GAO’s decision in this case provides important guidance to protesters, intervenors and procuring agencies alike.

What is the AbilityOne program?

In 1938, Congress created a program pursuant to the Javits-Wagner-O’Day Act that was intended to provide employment opportunities for persons who are blind.[2] In 1971, Congress expanded the program to include persons with severe disabilities.

Now known as the AbilityOne program, the program’s public-private structure consists of the federal, independent AbilityOne Commission to oversee the program, two central nonprofit agencies — SourceAmerica and the National Industries for the Blind — to administer much of the program and hundreds of qualified nonprofit agencies employing persons who are blind or severely disabled to provide products and services to federal agencies.

Under the program, the AbilityOne Commission has the exclusive authority to establish and maintain a procurement list of supplies and services provided by the qualified nonprofit agencies. The JWOD Act states that the AbilityOne procurement list is the mandatory source for federal agencies for any good or service on that list.[3]

The original article, "How AbilityOne Bid-Protest Case Clarifies GAO's Limits," first appeared in Law360 on October 24, 2019.