82 FR 18127 - Arbitration Panel Decision Under the Randolph-Sheppard Act
DEPARTMENT OF EDUCATION Federal Register Volume 82, Issue 72 (April 17, 2017)
Federal Register Volume 82, Issue 72 (April 17, 2017)
| Page Range | 18127-18128 | |
| FR Document | 2017-07731 |
[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)] [Notices] [Pages 18127-18128] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-07731] ----------------------------------------------------------------------- DEPARTMENT OF EDUCATION Arbitration Panel Decision Under the Randolph-Sheppard Act AGENCY: Department of Education. ACTION: Notice of arbitration decision. ----------------------------------------------------------------------- SUMMARY: The Department of Education (Department) gives notice that, on June 11, 2015, an arbitration panel (the Panel) rendered a decision in the matter of Maryland Department of Education v. General Services Administration (Case no. R-S/13-06). FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text of the Panel decision from Donald Brinson, U.S. Department of Education, 400 Maryland Avenue SW., Room 5045, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7310. If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll-free, at 1-800-877-8339. Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: The Panel was convened by the Department under the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-1(b), after receiving a complaint from the Maryland State Department of Education (MSDE), the State Licensing Agency (SLA) designated to administer the Randolph-Sheppard program in Maryland. Under 20 U.S.C. 107d-2(c) of the Act, the Secretary publishes in the Federal Register a synopsis of each Panel decision affecting the administration of vending facilities on Federal and other property. Background The complainant, MSDE, filed a grievance against the respondent, the General Services Administration (GSA), challenging the award of a contract for cafeteria service. The Panel decided the case on motions for summary judgment. The chair and one member sustained the grievance, and one member dissented. The issue before the Panel was whether GSA violated the Act when it awarded the contract for operation of cafeteria services to a bidder other than the SLA and, if so, what was the appropriate remedy. MSDE argued that GSA violated the Act by awarding a contract for cafeteria service at the Social Security Administration's cafeteria in Baltimore, Maryland, to a private entity without establishing a competitive range to carry out the Act's requirement that priority be given to blind vendors. The SLA had submitted a proposal in partnership with a blind vendor. GSA took the position that it was not required to establish a competitive range and that the SLA had confused the requirements of the solicitation, the Federal Acquisition Regulations (FAR), and the Act. Specifically, GSA argued that, while the FAR requires a competitive range only if discussions are held, the solicitation provided that GSA could make an award without discussion. GSA further argued that when there is a single offer that clearly exceeds all others and merits direct award, it can make an award to that offeror without creating a competitive range. Synopsis of the Panel Decision At the MSDE's request, the Panel was convened on June 11, 2015. The Panel concluded that GSA violated the Act by failing to establish a competitive range. The Panel recognized that Congress established the Act's priority requirement to enhance economic opportunity for the blind. When a Federal agency solicits services, it is [[Page 18128]] required to invite the SLA to bid on the contract. If the SLA's proposal falls within the competitive range and has been ranked among those with a reasonable chance of being selected, a Federal agency must give priority to the SLA's proposal. GSA acknowledged that a competitive range was not established and that it awarded the contract based on its determination that the private company's proposal merited a direct award, but the failure to create a competitive range constituted a violation of the Act. (Southfork Sys. v. United States, 141 F. 3d 1124 (Fed. Cir. 1998); Kentucky v. United States, 2014 WL 7375566 (W.D. Ky. Dec.29, 2014). Having found that GSA violated the Act, the Panel next considered the issue of remedy. The Panel recognized that, while it had no authority to impose a specific remedy, the Act requires the head of the agency, subject to appeal, to take such action as may be necessary to carry out the Panel's decision. The Panel recommended that GSA give (1) notice of the Panel's decision to the current contractor and (2) notice that the contract would terminate within a specified period. The Panel also recommended that GSA enter into direct negotiations with the SLA. If the GSA declined to enter into such negotiations, the Panel recommended that GSA issue a new solicitation, with a competitive range. The views and opinions expressed by the Panel do not necessarily represent the views and opinions of the Department. Electronic Access to This Document: 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 via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Dated: April 11, 2017. Ruth E. Ryder, Deputy Director, Office of Special Education Programs, delegated the duties of the Assistant Secretary for Special Education and Rehabilitative Services. [FR Doc. 2017-07731 Filed 4-14-17; 8:45 am] BILLING CODE 4000-01-P
![Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices 18127
the difference between the percentage of and a copy of the application package in SUPPLEMENTARY INFORMATION: The Panel
AI/AN students in grades three through an accessible format (e.g., braille, large was convened by the Department under
eight at or above the proficient level in print, audiotape, or compact disc) by the Randolph-Sheppard Act (Act), 20
reading and mathematics on State contacting the EDFacts PSC listed under U.S.C. 107d–1(b), after receiving a
assessments and the percentage of all Agency Contacts in section VI of this complaint from the Maryland State
students scoring at those levels; (5) the notice. Department of Education (MSDE), the
percentage of AI/AN students who Electronic Access to This Document: State Licensing Agency (SLA)
graduate from high school as measured The official version of this document is designated to administer the Randolph-
by the four-year adjusted cohort the document published in the Federal Sheppard program in Maryland. Under
graduation rate; and (6) the percentage Register. Free Internet access to the 20 U.S.C. 107d–2(c) of the Act, the
of funds used by grantees prior to award official edition of the Federal Register Secretary publishes in the Federal
close-out. and the Code of Federal Regulations is Register a synopsis of each Panel
5. Integrity and Performance System: available via the Federal Digital System decision affecting the administration of
If you receive an award under this grant at: www.gpo.gov/fdsys. At this site you vending facilities on Federal and other
program that over the course of the can view this document, as well as other property.
project period may exceed the documents of this Department
simplified acquisition threshold Background
published in the Federal Register in text
(currently $150,000), under 2 CFR or PDF. To use PDF you must have The complainant, MSDE, filed a
200.205(a)(2) we must make a judgment Adobe Acrobat Reader, which is grievance against the respondent, the
about your integrity, business ethics, available free at the site. General Services Administration (GSA),
and record of performance under You may also access documents of the challenging the award of a contract for
Federal awards—that is, the risk posed Department published in the Federal cafeteria service. The Panel decided the
by you as an applicant—before we make Register by using the article search case on motions for summary judgment.
an award. In doing so, we must consider feature at: www.federalregister.gov. The chair and one member sustained
any information about you that is in the Specifically, through the advanced the grievance, and one member
integrity and performance system search feature at this site, you can limit dissented.
(currently referred to as the Federal The issue before the Panel was
your search to documents published by
Awardee Performance and Integrity whether GSA violated the Act when it
the Department.
Information System (FAPIIS)), awarded the contract for operation of
accessible through SAM. You may Dated: April 12, 2017. cafeteria services to a bidder other than
review and comment on any Monique M. Chism, the SLA and, if so, what was the
information about yourself that a Acting Assistant Secretary for Elementary and appropriate remedy.
Federal agency previously entered and Secondary Education. MSDE argued that GSA violated the
that is currently in FAPIIS. [FR Doc. 2017–07732 Filed 4–14–17; 8:45 am] Act by awarding a contract for cafeteria
Please note that, if the total value of BILLING CODE 4000–01–P service at the Social Security
your currently active grants, cooperative Administration’s cafeteria in Baltimore,
agreements, and procurement contracts Maryland, to a private entity without
from the Federal Government exceeds DEPARTMENT OF EDUCATION establishing a competitive range to carry
$10,000,000, the reporting requirements out the Act’s requirement that priority
in 2 CFR part 200, Appendix XII, Arbitration Panel Decision Under the be given to blind vendors. The SLA had
require you to report certain integrity Randolph-Sheppard Act submitted a proposal in partnership
information to FAPIIS semiannually. with a blind vendor.
AGENCY: Department of Education. GSA took the position that it was not
Please review the requirements in 2 CFR
part 200, Appendix XII, if this grant ACTION: Notice of arbitration decision. required to establish a competitive range
plus all the other Federal funds you and that the SLA had confused the
SUMMARY: The Department of Education
receive exceed $10,000,000. requirements of the solicitation, the
(Department) gives notice that, on June
Federal Acquisition Regulations (FAR),
VI. Agency Contacts 11, 2015, an arbitration panel (the
and the Act. Specifically, GSA argued
Panel) rendered a decision in the matter
FOR FURTHER INFORMATION CONTACT: For that, while the FAR requires a
of Maryland Department of Education v.
questions about the Formula Grants competitive range only if discussions
General Services Administration (Case
program, contact Bernard Garcia, U.S. are held, the solicitation provided that
no. R–S/13–06).
Department of Education, 400 Maryland GSA could make an award without
Avenue SW., Room 3W115, FOR FURTHER INFORMATION CONTACT: You discussion. GSA further argued that
Washington, DC 20202–6335. may obtain a copy of the full text of the when there is a single offer that clearly
Telephone: (202) 260–1454 or by email: Panel decision from Donald Brinson, exceeds all others and merits direct
Bernard.Garcia@ed.gov. For questions U.S. Department of Education, 400 award, it can make an award to that
about the EASIE application and Maryland Avenue SW., Room 5045, offeror without creating a competitive
uploading documentation, contact the Potomac Center Plaza, Washington, DC range.
EDFacts PSC, telephone: 877–457–3336 20202–2800. Telephone: (202) 245–
7310. If you use a telecommunications Synopsis of the Panel Decision
(877–HLP–EDEN) or by email at: eden_
OIE@ed.gov. device for the deaf or a text telephone, At the MSDE’s request, the Panel was
If you use a telecommunications call the Federal Relay Service, toll-free, convened on June 11, 2015. The Panel
mstockstill on DSK30JT082PROD with NOTICES
device for the deaf or a text telephone, at 1–800–877–8339. concluded that GSA violated the Act by
call the EDFacts PSC, toll free, at 1–888– Individuals with disabilities can failing to establish a competitive range.
403–3336 (888–403–EDEN). obtain this document in an accessible The Panel recognized that Congress
format (e.g., braille, large print, established the Act’s priority
VII. Other Information audiotape, or compact disc) on request requirement to enhance economic
Accessible Format: Individuals with to the contact person listed under FOR opportunity for the blind. When a
disabilities can obtain this document FURTHER INFORMATION CONTACT. Federal agency solicits services, it is
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![18128 Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices
required to invite the SLA to bid on the Dated: April 11, 2017. the PA OVR. On July 7, 2008, a hearing
contract. If the SLA’s proposal falls Ruth E. Ryder, officer dismissed his appeal and denied
within the competitive range and has Deputy Director, Office of Special Education his request for damages and attorney’s
been ranked among those with a Programs, delegated the duties of the fees. The PA OVR adopted the hearing
reasonable chance of being selected, a Assistant Secretary for Special Education and officer’s decision as its final agency
Rehabilitative Services. action.
Federal agency must give priority to the
SLA’s proposal. [FR Doc. 2017–07731 Filed 4–14–17; 8:45 am] Mr. Werwie then requested the
BILLING CODE 4000–01–P convening of the Panel. The Panel chair
GSA acknowledged that a competitive moved to schedule a hearing for that
range was not established and that it summer. There were no acceptable
awarded the contract based on its DEPARTMENT OF EDUCATION hearing dates available in the summer,
determination that the private so the Panel chair circulated a list of
company’s proposal merited a direct Arbitration Panel Decision Under the proposed dates in late 2009.
award, but the failure to create a Randolph-Sheppard Act The hearing was not held in 2009
competitive range constituted a because, in July, Mr. Werwie discharged
AGENCY: Department of Education.
violation of the Act. (Southfork Sys. v. the attorneys he had engaged to handle
ACTION: Notice of arbitration decision. the case. The Panel granted him until
United States, 141 F. 3d 1124 (Fed. Cir.
1998); Kentucky v. United States, 2014 SUMMARY: The Department of Education January 2010 to find new counsel.
WL 7375566 (W.D. Ky. Dec.29, 2014). (Department) gives notice that, on Despite being granted an extension to
name a new representative by January of
Having found that GSA violated the March 17, 2011, an arbitration panel
2010, Mr. Werwie did not respond until
Act, the Panel next considered the issue (the Panel) rendered a decision in
February 25. In his response, he
of remedy. The Panel recognized that, Bernard Werwie, Jr. v. Pennsylvania
indicated that he was still looking for
while it had no authority to impose a Office of Vocational Rehabilitation
new counsel and asked that the case be
specific remedy, the Act requires the (Case no. R–S/07–16).
held in abeyance until September 2010
head of the agency, subject to appeal, to FOR FURTHER INFORMATION CONTACT: You
or until further notice. The PA OVR
take such action as may be necessary to may obtain a copy of the full text of the objected to this request for delay, and,
carry out the Panel’s decision. Panel decision from Donald Brinson, on March 29, 2010, the Panel gave Mr.
U.S. Department of Education, 400 Werwie until May 3, 2010, to find new
The Panel recommended that GSA Maryland Avenue SW., Room 5045,
give (1) notice of the Panel’s decision to counsel.
Potomac Center Plaza, Washington, DC Mr. Werwie never responded with the
the current contractor and (2) notice that 20202–2800. Telephone: (202) 245– name of a new representative as
the contract would terminate within a 7310. If you use a telecommunications requested by that deadline. Accordingly,
specified period. The Panel also device for the deaf or a text telephone, the Panel chair informed him that, if he
recommended that GSA enter into direct call the Federal Relay Service, toll-free, intended to proceed with his case
negotiations with the SLA. If the GSA at 1–800–877–8339. against the PA OVR, he had to respond
declined to enter into such negotiations, Individuals with disabilities can by June 10, 2010.
the Panel recommended that GSA issue obtain this document in an accessible On July 1, 2010, the PA OVR filed a
a new solicitation, with a competitive format (e.g., braille, large print, motion to dismiss Mr. Werwie’s claims
range. audiotape, or compact disc) on request for failure to prosecute. Counsel for the
The views and opinions expressed by to the contact person listed under FOR PA OVR served Mr. Werwie a copy of
FURTHER INFORMATION CONTACT. this motion and supporting brief by
the Panel do not necessarily represent
the views and opinions of the SUPPLEMENTARY INFORMATION: The Panel sending them by First Class Mail to his
Department. was convened by the Department under Fredericksburg, Virginia, address.
the Randolph-Sheppard Act (Act), 20 On July 18, 2010, the RSA informed
Electronic Access to This Document: U.S.C. 107d–1(a), after receiving a the Panel chair of an email received
The official version of this document is complaint from the complainant, from Mr. Werwie asking about the status
the document published in the Federal Bernard Werwie, Jr., a licensed blind of his case. In it, he alleged that he had
Register. Free internet access to the operator of a vending facility in Luzerne heard nothing about the case since early
official edition of the Federal Register County, Pennsylvania. Under section March. This message was from email
and the Code of Federal Regulations is 107d–2(c) of the Act, the Secretary and postal mail addresses different from
available via the Federal Digital System publishes in the Federal Register a those he had used in his prior
at: www.gpo.gov/fdsys. At this site you synopsis of each Panel decision correspondence. The New Cumberland,
can view this document, as well as all affecting the administration of vending Pennsylvania, address that he listed in
other documents of this Department facilities on Federal and other property. his July 18 communication was
published in the Federal Register, in identified as his father’s address.
Background The Panel responded to Mr. Werwie
text or Portable Document Format
(PDF). To use PDF you must have The complainant, Bernard Werwie, on August 9, 2010. It asked him for
Adobe Acrobat Reader, which is Jr., was a licensed blind operator of a confirmation that he was ready to
available free at the site. vending facility in Luzerne County, proceed with the case and instructed
Pennsylvania. His dispute with the him to inform it of the name and contact
You may also access documents of the respondent, the Commonwealth of information of his new counsel on or
mstockstill on DSK30JT082PROD with NOTICES
Department published in the Federal Pennsylvania’s Office of Vocational before August 29, 2010. The Panel
Register by using the article search Rehabilitation (PA OVR), arose out of indicated that, if it could not schedule
feature at www.federalregister.gov. the termination of his participation in a hearing, it would then proceed with
Specifically, through the advanced the Business Enterprises Program by the the PA OVR’s motion to dismiss the
search feature at this site, you can limit PA OVR effective December 31, 2006. complaint.
your search to documents published by Pursuant to the Act, Mr. Werwie On August 18, Mr. Werwie notified
the Department. sought a hearing of his claims against the Panel that his representatives were
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Document Created: 2018-08-25 11:27:01
Document Modified: 2018-08-25 11:27:01
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of arbitration decision. | |
| Contact | You may obtain a copy of the full text of the Panel decision from Donald Brinson, U.S. Department of Education, 400 Maryland Avenue SW., Room 5045, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7310. If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll-free, at 1-800-877-8339. | |
| FR Citation | 82 FR 18127 |
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