Federal Prison Industries Comes First on Furniture: Comparability, Waivers and What a Commercial Supplier Can Provide

If you are buying office furniture for a federal agency, the first question is not which supplier. It is whether Federal Prison Industries (FPI, trading as UNICOR) has to be considered, and what you have to document before you can look elsewhere. We are a commercial supplier and we are not writing this to talk anyone out of it. FPI considerations come first on many furniture buys, and the buyer who skips the step usually has to redo the file.

This guide walks through the process in FAR subpart 8.6: the comparability market research, what happens if FPI's product is comparable and if it is not, the cases where FPI is not mandatory, and how waivers work. It ends with what a commercial supplier can give you for the research.

Why furniture is an FPI category

FPI is a government corporation that employs federal inmates to make products, and office furniture is one of its best known lines. FAR 8.002 puts FPI third in the priority order of sources for supplies, after the agency's own inventory and excess property from other agencies, and ahead of the AbilityOne Procurement List and commercial sources. Section 8.603 says that when FPI and AbilityOne nonprofits make identical items, FPI comes first for supplies.

This is the regulation as it stands on acquisition.gov on the publish date. The FAR is going through a rewrite, and agencies are issuing deviations, so check the current text and your agency's procedures before you finalize a file.

Step one: market research and the comparability determination

Under FAR 8.602(a), before you buy an item on the FPI Schedule, you conduct market research to determine whether the FPI item is comparable to supplies available from the private sector in three respects: price, quality and delivery time. The contracting officer makes the determination, in writing, with the reasoning. The arbitration provisions of 18 U.S.C. 4124(b) do not apply to this determination, so it is the contracting officer's call.

The determination has two possible outcomes.

If FPI's item is comparable

You buy from FPI, using UNICOR's ordering procedures, unless you get a waiver under section 8.604. That is the "mandatory source" part. "Comparable" does not mean identical, it means FPI is in the same range as the private sector on price, quality and delivery.

If it is not comparable in one or more areas

Then FPI is not the mandatory source, and you move to a competition. The regulation tells you to:

1. Buy using competitive procedures appropriate to the action, such as those in FAR 6.102, the set aside procedures in subpart 19.5, or Part 13 simplified procedures. For multiple-award delivery order contracts, use the fair opportunity procedures in 16.505.
2. Include FPI in the solicitation process and consider a timely FPI offer. If you post the solicitation on SAM.gov you do not need a separate copy for FPI. Otherwise, send FPI a copy.
3. For schedule orders and orders under 16.505, describe the item, specifications and evaluation factors so that FPI's offer can be judged on the same basis as everyone else's.
4. Award to the source offering the best value to the government.
5. If FPI offers the best value in response to the competitive solicitation, follow UNICOR's ordering procedures.

So even a "not comparable" finding does not remove FPI. It becomes a bidder.

When FPI is not mandatory at all

Section 8.605 lists the cases where buying from FPI is not mandatory and a waiver is not required:

• The contracting officer determines the FPI item is not comparable, and the item is acquired under the competitive route in 8.602(a)(4).
• Public exigency requires immediate delivery or performance.
• Suitable used or excess supplies are available.
• The supplies are acquired and used outside the United States.
• The listed items total $3,500 or less.
• FPI offers the item exclusively on a competitive basis, as identified in the FPI Schedule.
• The purchase is for services.

The $3,500 figure is the one in the FAR text we checked. It is not the micro-purchase threshold, and the two are easy to confuse. Read the current section before you rely on it. The competitive basis exception is also worth knowing: some items on the FPI Schedule are offered to agencies as non-mandatory, and the schedule says which.

Waivers

A waiver is permission from FPI to buy a listed item from another source. Section 8.604 describes two kinds:

• General (blanket) waivers, issued when a class of supplies is not available from FPI.
• Formal waivers, issued in response to a request from an agency that wants to buy a listed item from another source and is not covered by a general waiver.

The process is FPI's, not your agency's. UNICOR publishes its waiver instructions and request form on its site at unicor.gov. Use the current form and instructions there, and ask your contracting office how it routes requests.

In practice, the steps look like this:

1. Confirm the item is on the FPI Schedule.
2. Check whether a general waiver covers it.
3. If not, complete your comparability market research. Often the research and the waiver request use the same facts, such as a documented difference in price, quality or delivery.
4. If you need a formal waiver, submit it to FPI through UNICOR's process, with the supporting documents.
5. Do not place the order until FPI has answered. If FPI grants the waiver, keep it in the file.

A waiver is not the same as a "not comparable" finding. The finding is your decision, documented in your market research. The waiver is FPI's decision, made on your request.

What good market research looks like

The comparability file is the part buyers find hardest, because it requires current information from the private sector. A defensible file has:

• The FPI item's number, description, price and stated lead time.
• At least two or three commercial items that meet the same requirement, with prices and lead times from written quotes.
• A side by side comparison on price, quality and delivery time, with the contracting officer's conclusion for each.
• Your specification, written so that the comparison is fair. See writing salient characteristics.
• The date of each source, because furniture prices and lead times change.

The weak point is usually quality. "Quality" is not a number. Write down what you mean: material, construction, warranty length, test standards the item meets, and what the requirement actually needs in daily use. Without that, the quality comparison turns into opinion.

What a commercial supplier can provide

If you ask a commercial supplier for help with the research, the supplier should be able to give you:

• A written quote for each item, with the model, dimensions, finish and quantity broken out.
• The lead time, stated as a delivery date or a number of days from order, and what it depends on.
• A warranty statement from the manufacturer, in writing.
• Country of origin for each line, so you can check trade agreement requirements.
• Product specifications, and test or certification documentation if your requirement calls for it.
• The sourcing channel for each line. We label manufacturer, distributor or retail on every line, and a retail fallback is labeled as such.

Keep expectations honest on both sides. A quote used for market research is information, not an award. A supplier should not be asked to hold a price indefinitely for a determination that may end with the FPI order, and a supplier should say so when a quote has an expiration date. We do not treat a request for research quotes as a lost sale. It is part of the buyer doing the job correctly.

Common mistakes

• Skipping the check because the dollar amount feels small. Know the exception amount in the current FAR before you assume.
• Ordering furniture on a card first. Use your contracting office when an FPI schedule item is involved.
• Writing the determination after the award. It has to come before.
• Treating "not comparable" as a way to avoid FPI. The finding sends you to competition, where FPI can still bid.
• Describing quality loosely. Write the attributes down.

How Lunula Supply handles it

We supply commercial products and we do not claim FPI will not be the right source. When a furniture requirement reaches us, we read it for the FPI considerations first, and tell the buyer if we think a determination or waiver is needed. When the buyer is doing comparability research, we send a written quote with the details above, with the channel and country of origin labeled, so the file holds up. If the buyer finds FPI is the required source, we say so and step back.

If you are doing market research on a furniture requirement, send it to us or see what we supply. For what a complete quote contains, read what a complete supply quote includes. For another category where a mandatory source comes before the commercial market, see janitorial supplies: mandatory sources and green rules.

Frequently asked questions

Does a buyer always have to buy furniture from FPI?

No. FAR 8.602 requires market research on comparability of price, quality and delivery time. If FPI's item is comparable, the buyer purchases from FPI unless a waiver is obtained. If it is not comparable, the buyer competes the requirement and includes FPI as an offeror.

Is a waiver the same as a not comparable determination?

No. The comparability determination is the contracting officer's written finding from market research. A waiver is FPI's permission to buy a listed item from another source, either a general waiver for a class of supplies or a formal waiver on request.

When is a waiver not required?

FAR 8.605 lists cases, including public exigency, suitable used or excess supplies, supplies bought and used outside the United States, listed items totaling $3,500 or less, items FPI offers only on a competitive basis, and services. Check the current text before you rely on one.

Can a commercial supplier help with the research?

Yes. A supplier can provide written quotes with specifications, lead times, warranty and country of origin. The contracting officer still makes the determination and keeps it in the file.

General information, not legal advice. FAR text was checked against acquisition.gov on the publish date, and the FAR is being rewritten, so confirm the current text and your agency's procedures. Your contract's terms control.