82 FR 18128 - 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 | 18128-18129 | |
| FR Document | 2017-07727 |
[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)] [Notices] [Pages 18128-18129] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-07727] ----------------------------------------------------------------------- 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 March 17, 2011, an arbitration panel (the Panel) rendered a decision in Bernard Werwie, Jr. v. Pennsylvania Office of Vocational Rehabilitation (Case no. R-S/07-16). 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(a), after receiving a complaint from the complainant, Bernard Werwie, Jr., a licensed blind operator of a vending facility in Luzerne County, Pennsylvania. Under section 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, Bernard Werwie, Jr., was a licensed blind operator of a vending facility in Luzerne County, Pennsylvania. His dispute with the respondent, the Commonwealth of Pennsylvania's Office of Vocational Rehabilitation (PA OVR), arose out of the termination of his participation in the Business Enterprises Program by the PA OVR effective December 31, 2006. Pursuant to the Act, Mr. Werwie sought a hearing of his claims against the PA OVR. On July 7, 2008, a hearing officer dismissed his appeal and denied his request for damages and attorney's fees. The PA OVR adopted the hearing officer's decision as its final agency action. Mr. Werwie then requested the convening of the Panel. The Panel chair moved to schedule a hearing for that summer. There were no acceptable hearing dates available in the summer, so the Panel chair circulated a list of proposed dates in late 2009. The hearing was not held in 2009 because, in July, Mr. Werwie discharged the attorneys he had engaged to handle the case. The Panel granted him until January 2010 to find new counsel. Despite being granted an extension to name a new representative by January of 2010, Mr. Werwie did not respond until February 25. In his response, he indicated that he was still looking for new counsel and asked that the case be held in abeyance until September 2010 or until further notice. The PA OVR objected to this request for delay, and, on March 29, 2010, the Panel gave Mr. Werwie until May 3, 2010, to find new counsel. Mr. Werwie never responded with the name of a new representative as requested by that deadline. Accordingly, the Panel chair informed him that, if he intended to proceed with his case against the PA OVR, he had to respond by June 10, 2010. On July 1, 2010, the PA OVR filed a motion to dismiss Mr. Werwie's claims for failure to prosecute. Counsel for the PA OVR served Mr. Werwie a copy of this motion and supporting brief by sending them by First Class Mail to his Fredericksburg, Virginia, address. On July 18, 2010, the RSA informed the Panel chair of an email received from Mr. Werwie asking about the status of his case. In it, he alleged that he had heard nothing about the case since early March. This message was from email and postal mail addresses different from those he had used in his prior correspondence. The New Cumberland, Pennsylvania, address that he listed in his July 18 communication was identified as his father's address. The Panel responded to Mr. Werwie on August 9, 2010. It asked him for confirmation that he was ready to proceed with the case and instructed him to inform it of the name and contact information of his new counsel on or before August 29, 2010. The Panel indicated that, if it could not schedule a hearing, it would then proceed with the PA OVR's motion to dismiss the complaint. On August 18, Mr. Werwie notified the Panel that his representatives were [[Page 18129]] the same attorneys whom he fired on July 22, 2009. The Panel then asked the attorneys to confirm that they represented Mr. Werwie and proposed a conference call to be held on September 2, 2010. On August 30, one of the attorneys, Mr. Leiterman, responded by email that Mr. Werwie asked him and his colleague to represent him in this case. Mr. Leiterman continued that they had ``agreed in principle,'' and they expected the letter of representation to be signed in the next week. However, in the two weeks that followed, the Panel did not hear from either attorney. On September 17, 2010, the Panel sent Mr. Werwie a letter indicating that it would grant the PA OVR's motion to dismiss if Mr. Werwie did not respond by November 1, 2010. Neither Mr. Werwie nor his attorneys responded to the motion to dismiss. On March 17, 2011, the Panel granted the PA OVR's motion to dismiss for failure to prosecute. Synopsis of the Panel Decision The Panel reviewed the statutory language of the Act and the RSA's implementing regulations, policies, and procedures. The Panel concluded that it has the authority to grant a motion to dismiss in this case without first conducting a hearing. It also concluded that there were unusual circumstances present in this case, notably delays in the process due to the change of Mr. Werwie's lawyers. The Panel repeatedly warned Mr. Werwie that his failure to move the case forward could result in dismissal and noted that he chose not to file a response at all although he was given ample time to do so. Because of these circumstances, the Panel decided that granting the PA OVR's motion to dismiss for Mr. Werwie's failure to prosecute was an appropriate exercise of its discretion. 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. 2017-07727 Filed 4-14-17; 8:45 am] BILLING CODE 4000-01-P
![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
VerDate Sep<11>2014 17:14 Apr 14, 2017 Jkt 241001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\17APN1.SGM 17APN1](https://thefederalregister.org/doc/82_FR_18200/page/1.svg)
![Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices 18129
the same attorneys whom he fired on You may also access documents of the Background
July 22, 2009. The Panel then asked the Department published in the Federal This is an arbitration between the
attorneys to confirm that they Register by using the article search Colorado Department of Human
represented Mr. Werwie and proposed a feature at www.federalregister.gov. Services and the United States
conference call to be held on September Specifically, through the advanced Department of Defense, Department of
2, 2010. search feature at this site, you can limit the Air Force, pursuant to the Act.
On August 30, one of the attorneys, your search to documents published by From October 1, 2006 through March
Mr. Leiterman, responded by email that the Department. 31, 2011, Don Hudson, a blind vendor
Mr. Werwie asked him and his Dated: April 11, 2017. licensed by the complainant, the
colleague to represent him in this case. Ruth E. Ryder, Colorado Department of Human
Mr. Leiterman continued that they had Deputy Director, Office of Special Education Services (CO DHS), Division of
‘‘agreed in principle,’’ and they Programs, delegated the duties of the Vocational Rehabilitation, Business
expected the letter of representation to Assistant Secretary for Special Education and Enterprise Program, operated the High
be signed in the next week. However, in Rehabilitative Services. Country Inn, a food service operation
the two weeks that followed, the Panel [FR Doc. 2017–07727 Filed 4–14–17; 8:45 am] located at the United States Air Force
did not hear from either attorney. BILLING CODE 4000–01–P Academy near Colorado Springs,
On September 17, 2010, the Panel Colorado. In 2010, the respondent, the
sent Mr. Werwie a letter indicating that United States Department of Defense,
it would grant the PA OVR’s motion to DEPARTMENT OF EDUCATION Department of the Air Force (Air Force),
dismiss if Mr. Werwie did not respond published a competitive bidding
by November 1, 2010. Neither Mr. Arbitration Panel Decision Under the announcement for the operation of the
Werwie nor his attorneys responded to Randolph-Sheppard Act High Country Inn. The Air Force
the motion to dismiss. On March 17, included in its solicitation for this
2011, the Panel granted the PA OVR’s AGENCY: Department of Education.
contract a requirement that only those
motion to dismiss for failure to ACTION: Notice of arbitration decision. offerors whose price was within 5
prosecute. percent of the lowest offeror’s price
Synopsis of the Panel Decision SUMMARY: The Department of Education would be considered for award of the
(Department) gives notice that, on May contract.
The Panel reviewed the statutory 30, 2012, an arbitration panel (the The CO DHS’s bid was in excess of
language of the Act and the RSA’s Panel) rendered a decision in the matter this 5 percent competitive range and,
implementing regulations, policies, and of the Colorado Department of Human accordingly, the CO DHS was
procedures. The Panel concluded that it Services, Division of Vocational eliminated from competition for the
has the authority to grant a motion to Rehabilitation, Business Enterprise contract. The contract was awarded to
dismiss in this case without first Program v. the United States the lowest bidder.
conducting a hearing. It also concluded Department of Defense, Department of The CO DHS filed a complaint with
that there were unusual circumstances the Air Force (Case no. R–S/10–06). the United States Secretary of Education
present in this case, notably delays in pursuant to the Act and its regulations.
FOR FURTHER INFORMATION CONTACT: You
the process due to the change of Mr. The CO DHS claimed that the 5 percent
may obtain a copy of the full text of the
Werwie’s lawyers. The Panel repeatedly competitive range was set at such a low
Panel decision from Donald Brinson,
warned Mr. Werwie that his failure to figure that it eliminated the priority to
U.S. Department of Education, 400
move the case forward could result in be afforded to blind vendors under the
Maryland Avenue SW., Room 5028,
dismissal and noted that he chose not to Act and its regulations. It also asserted
Potomac Center Plaza, Washington, DC
file a response at all although he was that the Air Force misled it into
20202–2800. Telephone: (202) 245–
given ample time to do so. Because of thinking it had the lowest bid and,
7310. If you use a telecommunications
these circumstances, the Panel decided therefore, the CO DHS did not reduce its
device for the deaf or a text telephone,
that granting the PA OVR’s motion to price when it had the opportunity to
call the Federal Relay Service, toll-free,
dismiss for Mr. Werwie’s failure to revise its bid in response to an
at 1–800–877–8339.
prosecute was an appropriate exercise of amendment to the solicitation. In
its discretion. Individuals with disabilities can
addition, it claimed that the Air Force
The views and opinions expressed by obtain this document in an accessible
should have conducted direct
the Panel do not necessarily represent format (e.g., braille, large print,
negotiations with the blind vendor
the views and opinions of the audiotape, or compact disc) on request
rather than using a competitive process.
Department. to the contact person listed under FOR
The CO DHS also claimed that the Air
FURTHER INFORMATION CONTACT.
Electronic Access to This Document: Force violated 34 CFR 395.20(b) because
The official version of this document is SUPPLEMENTARY INFORMATION: The Panel the 5 percent competitive range was a
the document published in the Federal was convened by the Department under limitation that the Air Force did not
Register. Free internet access to the the Randolph-Sheppard Act (Act), 20 justify in writing to the Secretary of
official edition of the Federal Register U.S.C. 107d-1(b), after receiving a Education. Finally, the CO DHS asserted
and the Code of Federal Regulations is complaint from the Colorado that the 5 percent competitive range was
available via the Federal Digital System Department of Human Services, unlawful because it was based on the
at: www.gpo.gov/fdsys. At this site you Division of Vocational Rehabilitation, August 29, 2006, Joint Report to
mstockstill on DSK30JT082PROD with NOTICES
can view this document, as well as all Business Enterprise Program. Under Congress, which required the setting of
other documents of this Department section 107d-2(c) of the Act, the this competitive range but had not yet
published in the Federal Register, in Secretary publishes in the Federal been implemented.
text or Portable Document Format Register a synopsis of each Panel
(PDF). To use PDF you must have decision affecting the administration of Synopsis of the Panel Decision
Adobe Acrobat Reader, which is vending facilities on Federal and other The Panel held, with one member
available free at the site. property. dissenting, that the CO DHS had waived
VerDate Sep<11>2014 17:14 Apr 14, 2017 Jkt 241001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\17APN1.SGM 17APN1](https://thefederalregister.org/doc/82_FR_18200/page/2.svg)
Document Created: 2018-08-25 11:27:39
Document Modified: 2018-08-25 11:27:39
| 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 18128 |
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