[Federal Register: December 1, 2004 (Volume 69, Number 230)]
[Notices]
[Page 69900-69901]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de04-50]
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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: The Department gives notice that on July 26, 2002, an
arbitration panel rendered a decision in the matter of Kentucky
Department for the Blind v. U.S. Department of Defense, Department of
the Army (Docket No. R-S/01-11). This panel was convened by the U.S.
Department of Education, under 20 U.S.C. 107d-1(b), after the
Department received a complaint filed by the petitioner, the Kentucky
Department for the Blind.
FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text
of the arbitration panel decision from Suzette E. Haynes, U.S.
Department of Education, 400 Maryland Avenue, SW., Room 5022, Potomac
Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7374. If
you use a telecommunication device for the deaf (TDD), you may call the
Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard
Act (the Act), 20 U.S.C. 107d-2(c), 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 noncompliance with the Act by the
U.S. Department of Defense, Department of the Army (the Army),
regarding its cancellation of a food service contract at Ft. Campbell,
Kentucky, operated by the Kentucky Department for the Blind, the State
licensing agency (SLA), in violation of the Act (20 U.S.C. 107 et seq.)
and the implementing regulations in 34 CFR part 395.
A summary of the facts is as follows: On February 15, 1996, the SLA
was awarded a contract to provide full food services in the military
dining facilities at Ft. Campbell, Kentucky. Following the contract
award, the SLA appointed a qualified Randolph-Sheppard vendor to
perform the contract requirements. Subsequently, the vendor entered
into a joint venture contract agreement with First Choice Food Service
to assume the contractual obligations.
On January 21, 2000, at the end of the third option period for the
food service contract at Ft. Campbell, the SLA contacted the Army to
request that both parties enter into negotiations for the continuation
of the food service contract. The Army did not respond to this initial
request. Then on August 9, 2000, both parties met to discuss
continuation of the food service contract, but this meeting did not
result in a negotiated contract.
Later in March 2001, the SLA alleged that, without explanation, the
Army discontinued the SLA's contract effective April 1, 2001. The SLA
further alleged that, despite repeated requests to negotiate the Ft.
Campbell food service contract with the Army, there was no
communication until June 20, 2001, when an Army contracting officer
posted a solicitation announcement in Commerce Business Daily (CBD) for
provision of the dining facility attendant services at Ft. Campbell.
The procurement was limited to Small Business Administration (SBA)
certified personnel.
On July 25, 2001, the Governor of Kentucky wrote to the Secretary
of the Army requesting that the Army reconsider its decision to exclude
the SLA from competing for the contract to provide dining facility
attendant services at Ft. Campbell. The Army did not respond to the
Governor's letter. On August 14, 2001, the Army amended its CBD
announcement. On August 24, the Army issued a solicitation stating that
the procurement was to be administered by an SBA 8(a) set-aside
contractor.
The SLA alleged that, as the result of a recent court case, NISH
and Goodwill Services, Inc. v. Cohen, 95 F. Supp.2d 497, 503-04 (E.D.
Va. 2000), military dining facilities have been determined to come
within the definition of cafeteria under the Act.
The SLA further maintained that neither the Act nor its
implementing regulations differentiate between the performance of
``full food services'' or ``dining facility attendant services'' in
military dining facilities. In fact, it was the SLA's position that
dining facility attendant services and full food services constitute
cafeteria operations under the Act.
Therefore, the SLA alleged that the Army's refusal to allow the SLA
to renegotiate its food service contract at Ft. Campbell demonstrated
the Army's unwillingness to comply with the Act and its implementing
regulations.
[[Page 69901]]
As a result of this dispute, the SLA requested the Secretary of
Education to convene a Federal arbitration panel to hear this
complaint. A panel was convened, and a hearing on this matter was held
on May 13, 2002.
Arbitration Panel Decision
The arbitration panel heard the following issue: whether the Army's
alleged failure to negotiate with the SLA in good faith for the full
food services and dining facility attendant services contract at Ft.
Campbell, Kentucky, constituted a violation of the Act (20 U.S.C. 107
et seq.) and the implementing regulations in 34 CFR part 395.
After considering the evidence presented, the majority of the panel
ruled that the Act clearly covers all types of food service operations
including military troop dining facilities. The panel stated that the
Army's provision of cooks for the dining facility at Ft. Campbell did
not mandate the exclusion of the SLA from the opportunity to provide
other services.
Further, the panel found that the Army's issuance of a new
solicitation amounted to a limitation on the placement or operation of
vending facility services on Federal property as provided by the Act.
The panel also noted that the Act states that Federal agencies may give
priority to SLAs through direct negotiation whenever a vending facility
can be provided at a reasonable cost with food of a high quality,
comparable to that currently provided.
Accordingly, the panel ruled that the Army failed to present any
evidence that it complied with the requirements of the Act and the
implementing regulations prior to excluding the SLA from its
procurement for food services at Ft. Campbell, Kentucky.
Therefore, the panel ruled that the Army should engage in direct
negotiations with the SLA for its dining facility attendant services
requirement at Ft. Campbell, Kentucky.
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.
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 the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 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.gpoaccess.gov/nara/index.html
.
Dated: November 24, 2004.
Troy R. Justesen,
Acting Deputy Assistant Secretary for Special Education and
Rehabilitative Services.
[FR Doc. E4-3400 Filed 11-30-04; 8:45 am]
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