House Armed Services letter re: AbilityOne contract set-aside amendment
The Honorable Congressman
Adam Smith, Chairman
U.S. House Committee on Armed Services
2216 Rayburn House Office Building
Washington, DC 20515
The Honorable Congressman
Mac Thornberry, Ranking Member
U.S. House Committee on Armed Services
2208 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Smith and Ranking Member Thornberry:
I write on behalf of the National Council on Disability (NCD), an independent nonpartisan federal agency authorized to conduct objective and comprehensive research and analysis to assist Congress in the development of national disability policies, to express opposition to any legislative attempt during the National Defense Authorization Act markup to increase the Department of Defense’s contract set-aside goal for the AbilityOne program.
On May 26, NCD hosted a virtual briefing for House Armed Services Committee staff to provide an overview of our key research findings into the AbilityOne program as the basis for our opposition for an increased set-aside. For several years, NCD has analyzed the AbilityOne program and has concluded that its impact on improving job opportunities for people with disabilities has been de minimus. The sorely outdated statutory framework governing the AbilityOne program limits job opportunities for people with disabilities and undermines the goals of current disability rights laws like the Workforce Innovation and Opportunity Act, which is to transition people with disabilities into competitive integrated employment. Under the Javits Wagner-O’Day Act[[1]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn1), also known as the AbilityOne program, employees with disabilities must perform 75% of the “direct labor” on each contract,[[2]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn2) but are excluded from positions as supervisors, administrators, inspectors, and shipping.[[3]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn3) These statutory restrictions discourage employers from promoting employees with disabilities into higher paying positions for fear of losing federal contracts.[[4]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn4)
More precisely, NCD’s 2019 report, A Cursory Look at AbilityOne, found that in fiscal years 2016 and 2017, the percentages of AbilityOne employees that achieved supervisory positions were only 0.87%[[5]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn5) and 1%[[6]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn6) respectively. Even more disturbing, NCD found that in fiscal year 2018, only 18.6% of the $3.3 billion of the annual federal government purchases through the AbilityOne Program actually went to wages paid to employees with disabilities while the remaining 81.4% of these funds paid for other expenditures.[[7]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftn7) And in a forthcoming NCD report about AbilityOne, set for release in late summer, NCD found that in recent years, as revenues have risen for AbilityOne nonprofit agencies, the number of people with disabilities employed by them have either remained relatively static in the case of blind employees or in the case of people with significant disabilities, have decreased every year but one between FY 2011 and FY 2018. The number of direct labor hours worked by people with disabilities also declined by 1.43 million hours comparing FY 2011 and FY 2018.
Jobs that limit opportunities for their employees with disabilities should not be rewarded. For this reason, NCD encourages support for programs with measurable goals to transition employees with disabilities into competitive integrated employment and give equal opportunities for career advancement to all employees.
The concerns described here are only a few of many that NCD has raised in its investigations into the AbilityOne program, and we welcome the opportunity for Committee staff to discuss those additional issues with NCD staff. I encourage your staff to follow up with Anne Sommers, Director of Legislative Affairs and Outreach, at asommers@ncd.gov or Joan Durocher, General Counsel and Director of Policy, at jdurocher@ncd.gov to discuss these matters further.
Neil Romano
Chairman
[[1]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref1) 41 U.S.C. §§ 8501-8506.
[[2]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref2) 41 U.S.C. § 8501(2011).
[[3]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref3) Id.
[[4]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref4) See Id.
[[5]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref5) National Council on Disability, A Cursory Look at AbilityOne (Feb. 22, 2019) 16, available at https://www.ncd.gov/publications/2019/cursory-look-abilityone (citing the U.S. AbilityOne Commission, FY 2017 Performance and Accountability Report, 19).
[[6]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref6) U.S. AbilityOne Commission staff written responses to NCD research questions (on file with author)
[[7]](https://ncd.gov/publications/2020/house-armed-services-letter-re-abilityone-contract-set-aside-amendment#_ftnref7) ncd at 17 (citing Committee for Purchase, “FY 2019 Budget Justification,” 25.)