NCD letter to U.S. House Armed Services, Rules Committees opposing FY2024 NDAA contract set-aside goal for AbilityOne

July 7, 2023

The Honorable Representative
Mike Rogers, Chairman
U.S. House Committee on Armed Services
2216 Rayburn House Office Building
Washington, D.C. 20515

The Honorable Representative
Adam Smith, Ranking Member
U.S. House Committee on Armed Services
2208 Rayburn House Office Building
Washington, DC 20515

The Honorable Representative
Tom Cole, Chairman
U.S. House Committee on Rules\

H-312, The Capitol
Washington, DC 20515

The Honorable Representative
Jim McGovern, Ranking Member
U.S. House Committee on Rules
H-152, The Capitol
Washington, DC 20515

Re:  NCD’s opposition to any legislative efforts in the FY2024 National Defense Authorization Act (NDAA) process that may increase the AbilityOne program’s congressionally mandated contract set-aside goal.

Dear Honorable Members of the House Armed Services and Rules Committees:

I write on behalf of the National Council on Disability (NCD), an independent nonpartisan federal agency with the statutory mission is to advise the President, Congress and federal agencies on all policy matters affecting people with disabilities in the country and in our territories.  NCD extremely opposes any congressional attempt to increase the Department of Defense’s contract set-aside goal for the AbilityOne program. For several years, NCD has analyzed the structure of the AbilityOne program and concluded that its effect to improve job opportunities for people with disabilities has been minimal.[1]

Despite some recent efforts to modernize the program, the statutory framework governing the AbilityOne program remains unchanged and continues to limit job opportunities for people with disabilities. NCD’s research has found that the AbilityOne program undermines the goals of current disability rights laws like the Workforce Innovation and Opportunity Act, which intends to transition people with disabilities into competitive integrated employment. Under the Javits Wagner-O’Day Act[2], also known as the AbilityOne program, employees with disabilities must perform 75% of the “direct labor” on each contract,[3] but are excluded from positions as supervisors, administrators, inspectors, and shipping.[4] These statutory restrictions discourage employers from promoting employees with disabilities into higher paying positions for fear of losing federal contracts.[5]

More precisely, NCD’s 2019 report found that in fiscal years 2016 and 2017, the percentages of AbilityOne employees that achieved supervisory positions were only 0.87%[6] and 1%[7] respectively. Even more disturbing, NCD found that in fiscal year 2016, 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.[8]

Based upon its research, in 2020, NCD advised Congress that it should phase-out and replace the outdated program. For reasons outlined in the report, NCD continues to caution policymakers against increasing the mandatory contract set-aside goal for the AbilityOne program. Congress should instead redirect Department of Defense funds towards programs with measurable goals to transition employees with disabilities into competitive integrated employment and give equal opportunities for career advancement to all employees.

NCD welcomes the opportunity to brief the Committees on the content of the research it conducted into the AbilityOne program and the recommendations we have made to policymakers as a result of the research. I encourage your staff to follow up with Joan Durocher, NCD’s Director of Policy and General Counsel at jdurocher@ncd.gov to that end.

Respectfully submitted,

Andrés J. Gallegos, Esq.

Chairman

 

[1], 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)

[2] 41 U.S.C. §§ 8501-8506.

[3] 41 U.S.C. § 8501(2011).

[4] Id.

[5] See Id.

[6], 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)

[7] U.S. AbilityOne Commission staff written responses to NCD research questions (on file with author)

[8] NCD at 17 (citing Committee for Purchase, “FY 2019 Budget Justification,” 25.)