[Federal Register: May 12, 2000 (Volume 65, Number 93)]
[Notices]
[Page 30575-30577]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my00-46]
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DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of Arbitration Panel Decision Under the Randolph-
Sheppard Act.
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SUMMARY: Notice is hereby given that on March 31, 1999, an arbitration
panel rendered a decision in the matter of West Virginia Department of
Education and the Arts, Division of Rehabilitation Services v. U.S.
Department of Labor, Mine Safety and Health Administration (Docket No.
R-S/97-14). This panel was
[[Page 30576]]
convened by the U.S. Department of Education pursuant to 20 U.S.C.
107d-1(b) upon receipt of a complaint filed by petitioner, the West
Virginia Department of Education and the Arts, Division of
Rehabilitation Services.
FOR FURTHER INFORMATION: A copy of the full text of the arbitration
panel decision may be obtained from George F. Arsnow, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer
Building, Washington DC 20202-2738. Telephone: (202) 205-9317. If you
use a telecommunications device for the deaf (TDD), you may call the
TDD number at (202) 205-8298.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at either of the
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To use the PDF you must have the Adobe Acrobat Reader, which is
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512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://
www.access.gpo.gov/nara/index.html.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)) (the Act), the Secretary publishes in the Federal
Register a synopsis of each arbitration panel decision affecting the
administration of vending facilities on Federal and other property.
Background
This dispute concerns the alleged violation by the U.S. Department
of Labor in the termination of the contract of the West Virginia
Department of Education and the Arts, Division of Rehabilitation
Services, the State licensing agency (SLA), to operate a facility at
the National Mine Health and Safety Academy in Beckley, West Virginia.
A summary of the facts is as follows: On July 13, 1997, Mr. David
Naylor, Director of the West Virginia Society for the Blind (Society),
received a letter dated July 2, 1997, from Mr. William Och, the
Contracting Officer for the National Mine Health and Safety Academy in
Beckley. In the letter, which was entitled ``Notice of Partial
Termination of Contract Number J2566023 for Food Service at the
National Mine Health and Safety Academy, Beaver, WV,'' Mr. Och was
informed that a substantial part of the Society's food service would be
terminated effective July 7, 1997, for the remainder of the Federal
fiscal year. The reason given for the termination was simply ``the
Government's convenience.''
The SLA alleged that the contract was terminated with less than 1
business day's notice since the Fourth of July holiday in that year
fell on Friday. The SLA further alleged that the actions taken by the
U.S. Department of Labor, Mine Safety and Health Administration, in
terminating the SLA's contract, violated the substantive and procedural
provisions of the Act and implementing regulations.
The SLA filed a request for Federal arbitration dated July 15,
1997, which was received by the Department on July 24, 1997. While the
complaint was under review by the Department, the parties were
encouraged to meet and discuss the issues in an effort to reach an
amicable settlement.
To that end, the parties successfully negotiated a resolution
concerning two of the three issues in the SLA's original complaint. The
two issues settled were: (1) That the SLA through its agent, the West
Virginia Society for the Blind, and the Mine Safety and Health
Administration would negotiate and enter into a contract providing for
the operation of the cafeteria and vending facilities at the Academy.
The contract would begin on or before November 1, 1997. The contract
would provide for a term of 120 days with ongoing options for renewal
on a 30-day basis. (2) For the duration of the previously-named
contract, the Mine Safety and Health Administration would permit no
other entity to provide food or vending services at the Academy unless
the right to furnish those food or vending services would be first
offered to the West Virginia Society for the Blind. If the Society was
unable to provide those services, it would advise the Mine Safety and
Health Administration.
The SLA filed a request to proceed with arbitration on the
remaining issue in the complaint. A Federal arbitration hearing on this
matter was held on September 18, 1998.
Arbitration Panel Decision
The central issue before the arbitration panel was whether the Mine
Safety and Health Administration may seek bids for the operation of the
food and vending facilities contract at the National Mine Health and
Safety Academy while a contractor is already in place pursuant to the
provisions of the Act (20 U.S.C. 107 et seq.) and the implementing
regulations (34 CFR part 395).
The majority of the panel ruled that the sole purpose of the Act is
to benefit blind persons through employment as entrepreneurs on all
Federal property. Additionally, it is a requirement of the Act that a
priority be given to blind vending facilities on all Federal property,
and it is the obligation of every Federal department, agency, and
instrumentality to ensure that one or more vending facilities is
established on all Federal property.
In its complaint, the SLA argued that the Mine Safety and Health
Administration, the respondent, was prohibited from seeking bids
because of the priority provisions of the Act. Conversely, the Mine
Safety and Health Administration responded that the Act and
implementing regulations do not expressly prohibit it from soliciting
bids.
After review of all evidence and arguments, the majority of the
panel ruled that the Mine Safety and Health Administration was entitled
to seek bids. The panel concluded that if the SLA submitted a bid to
the Mine Safety and Health Administration, then the priority provisions
of the Act and regulations would apply. The panel further ruled that
the priority provisions of the Act do not affect the bidding process
and are only pertinent after the bidding process has been completed.
Specifically, the panel found that there is no requirement in the Act
that precludes the contracting agency from soliciting for the food
service operation merely because a blind vendor was previously
operating the facility under a contract. Consequently, the Mine Safety
and Health Administration is free to seek bids as long as it ultimately
gives preferential treatment to a qualified blind vendor consistent
with the Act.
Additionally, the panel ruled that if the SLA demonstrates that it
can provide food service at comparable cost and of comparable high
quality as that available from other providers, the Act's priority
provisions would apply. Therefore, this would mean that at the end of
the contract period with the SLA, if the SLA submits a new contract
proposal that is within the competitive
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range, the SLA is entitled to the contract. Further, the Mine Safety
and Health Administration may negotiate directly with the SLA without
opening the competitive bidding process.
One panel member dissented.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: May 8, 2000.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 00-11914 Filed 5-11-00; 8:45 am]
BILLING CODE 4000-01-P