82 FR 18435 - Arbitration Panel Decision Under the Randolph-Sheppard Act

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 74 (April 19, 2017)

The Department of Education (Department) gives notice that, on February 14, 2014, an arbitration panel (Panel) rendered a decision in the matter of Kentucky Office of the Blind vs. Department of the Army, Fort Campbell (Case no. R-S/11-06).

[Federal Register Volume 82, Number 74 (Wednesday, April 19, 2017)]
[Notices]
[Pages 18435-18436]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07858]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of arbitration decision.

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SUMMARY: The Department of Education (Department) gives notice that, on 
February 14, 2014, an arbitration panel (Panel) rendered a decision in 
the matter of Kentucky Office of the Blind vs. Department of the Army, 
Fort Campbell (Case no. R-S/11-06).

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 Department convened the Panel under the 
Randolph-Sheppard Act (Act), 20 U.S.C. 107d-1(b), after receiving a 
complaint from the Kentucky Office of the Blind, the State licensing 
agency (SLA) designated to administer the Randolph-Sheppard program in 
Kentucky. 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 Department of the Army, Fort Campbell (Army) used contractors 
through the SLA for several years because most of the Army's cooks

[[Page 18436]]

located at the base were deployed. Thus, the Army had to contract for 
cooks to provide food service to those located on the base. As the 
number of troops deployed decreased, the cooks from Fort Campbell 
returned to the base. Military personnel began to perform multiple 
tasks, including selecting the menus, preparing and cooking the food, 
ordering supplies, maintaining quality control of all food prepared and 
served, maintaining equipment, conducting headcount of soldiers served, 
and noting accountability of cash received. While these duties had been 
performed by the SLA, due to these changes, the Army no longer needed 
to have a contractor provide these services. However, the Army still 
had a need for a contractor to perform certain services because 
soldiers are precluded by Army Regulation 30-22 from performing dining 
facility attendant duties in a garrison environment.
    The Performance Work Statement outlined the duties the contractor 
would now be required to perform. According to the Panel's decision:

    [T]he contractor is to ``hire and staff of qualified personnel . 
. . provide an on-site contract manager and with full authority to 
obligate the company and be responsible for overall performance . . 
. provide all employees with uniforms . . . establish and maintain a 
comprehensive quality control plan . . . train employees . . . 
maintain certificates and records . . . operate, and clean after 
each use, mechanical vegetable peeling machine . . . requisition, 
wash, peel and cut potatoes and fruit.''

The Army Contracting Officer concluded that the required services did 
not fall within the scope of the Act.
    Because of the Army Contracting Officer's decision, the SLA filed a 
request for arbitration with the Department contending the Army 
violated the Act and its applicable regulations, in 34 CFR part 395, 
when it issued this solicitation without applying the provisions of the 
Act to the Army's source selection process. The matter was then 
submitted to the Panel.

Synopsis of the Panel Decision

    A similar issue had arisen at Fort Campbell in the late 1990s. In 
2002, an arbitration panel concluded that the services described in 
that Performance Work Statement fell within the terms of the Act. The 
Panel was asked whether the 2002 decision was binding through the 
principle of res judicata, given the similarity of issues and parties. 
The Panel concluded unanimously that the 2002 decision was not binding 
on the Panel because there had been several judicial rulings and 
pronouncements by Congress since the earlier case was decided. The 
Panel decided, however, to give that case ``respectful consideration.''
    The Army argued that the Panel should give great deference to the 
decision of the Contracting Officer. The Panel majority disagreed with 
that argument. While there was no disagreement that the Army had full 
authority to have its own cooks handle food preparation and manage the 
dining facility, the issue was whether the Army's conclusion that the 
remaining work was not covered by the Act was correct. The Panel 
determined that resolution of the issues in this case involved 
statutory interpretation, and, because the Department is charged with 
interpreting the Act, by extension, so is the Panel.
    The remaining question then was whether the Act was intended to 
apply to the discrete dining facility attendant services that were to 
be provided at the dining halls at Fort Campbell. The Panel majority 
noted that because interpretations had changed over the years, to 
understand what the Act, as it stands today, was intended to cover, it 
had to explore this history. As a result, the Panel reviewed and 
discussed the 1974 Amendments, various pronouncements from the 
Department and the Comptroller General's various court decisions, the 
relationship between the Act and the Javits-Wagner-O'Day Act (JWOD), 
and the passage of the National Defense Authorization Act of 2007 
(NDAA).
    The majority ultimately concluded the Act applies to this 
solicitation at Fort Campbell. In reaching that conclusion, the Panel 
rejected the Army's assertion that Washington State Department of 
Services for the Blind v. United States, 58 Fed. Cl. 781 (2003), was 
binding on the Panel. The Panel determined that the Washington case was 
limited to just ``busboy'' services, whereas the Fort Campbell 
solicitation also involved food handling. The Panel also discussed the 
impact of the NDAA and the interplay between the services covered by 
the Act and JWOD. In determining that the NDAA defined food services to 
include mess attendant services, the Panel concluded that this 
``impliedly indicated those services are covered by the [Act].''
    Finally, in rejecting the argument that the NDAA did not apply 
because the contract in effect at Fort Campbell was not awarded under 
the Act, the Panel concluded that the NDAA was still a ``pronouncement 
by Congress as to the coverage of the [NDAA] and is, therefore, a 
significant factor here.'' The Panel then concluded that had the Army 
complied with the earlier arbitration panel ruling in 2002, ``the 
contract for [mess attendant] services in 2006 would have been issued 
under the [Act].''
    For the reasons stated in the decision, the Panel found that the 
Army violated the Act when it issued the solicitation for Dining 
Facility Attendant Services at Fort Campbell without applying the 
provisions of the Act to the Army's source selection process. In terms 
of a remedy, the Panel recognized that the Act requires that, when a 
violation has been found, the Federal agency must ``cause such acts or 
practices to be terminated promptly and shall take such other action as 
may be necessary to carry out the decision of the panel.'' The Panel 
directed the Army to notify the current contractor that its contract 
would not be renewed at expiration and to begin negotiations with the 
SLA for services to commence upon the expiration of the current 
contract.
    One panel member concurred in part and dissented in part.
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    Dated: April 13, 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. 2017-07858 Filed 4-18-17; 8:45 am]
 BILLING CODE 4000-01-P