[Federal Register: July 3, 2006 (Volume 71, Number 127)]
[Notices]
[Page 37928-37930]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jy06-47]
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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 November 1, 2005, an
arbitration panel rendered a decision in the matter of Billie Ruth
Schlank v. District of Columbia Department of Human Services,
Rehabilitation Services Administration (Docket No. R-S/04-6). This
panel was convened by the U.S. Department of Education, under 20 U.S.C.
107d-1(a), after the Department received a complaint filed by the
complainant, Billie Ruth Schlank.
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 telecommunications device for the deaf (TDD), you may call
the Federal Relay Service (FRS) 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
[[Page 37929]]
administration of vending facilities on Federal and other property.
Background
This dispute concerned alleged violations of the Act (20 U.S.C. 107
et seq.), the implementing regulations in 34 CFR part 395, and State
rules and regulations by the District of Columbia Department of Human
Services, Rehabilitation Services Administration, the State licensing
agency (SLA), regarding complainant's bid to operate a cafeteria at the
National Imagery Mapping Agency (NIMA) located at the District of
Columbia Navy Yard.
A summary of the facts is as follows: Complainant is a licensed
vendor in the District of Columbia Department of Human Services,
Rehabilitation Services Administration (DCRSA) Randolph-Sheppard
vending facility program. In February 2003, DCRSA entered into a
subcontracting agreement with the Department of Defense, Department of
the Navy (Navy) and the State of Maryland Business Enterprise Program
to operate three cafeterias, including a new cafeteria at NIMA, which
was to take effect in March 2003. Subsequently, DCRSA, in accordance
with its transfer and promotion policies, solicited bids from
interested blind vendors to manage the NIMA cafeteria. The SLA's
Promotion and Transfer Committee (Committee) makes decisions about a
vendor's eligibility to transfer to another facility. Vendors receive
points based on their seniority and performance, and the vendor with
the highest number of points is given the first opportunity to transfer
to a new facility.
In early 2003, the Committee determined that complainant was the
second-ranked vendor who had submitted a bid to manage the NIMA
cafeteria. However, soon thereafter, the Committee ruled that the
highest-ranked vendor was ineligible and that complainant should be
selected for the position.
Subsequently, complainant alleged that, although she was the next
eligible vendor, the SLA refused to allow her to read the terms of the
NIMA cafeteria contract or to visit the facility, both of which are
standard procedures when a vendor is bidding on a new facility. On May
14, 2003, complainant requested an administrative review from DCRSA
concerning her dissatisfaction with not being allowed to transfer to
the NIMA cafeteria as the next eligible vendor. The SLA did not act on
complainant's administrative review request. On May 16, 2003,
complainant requested from DCRSA a State fair hearing on this matter.
Complainant alleged that DCRSA also did not act on her request for
a State fair hearing. Consequently, in July 2003 complainant filed a
request for a Federal arbitration with the Secretary of Education
alleging DCRSA's failure to provide a State fair hearing to her
concerning her bid on the NIMA cafeteria.
In the meantime, the Department of Education, Rehabilitation
Services Administration (RSA) corresponded with the SLA requesting that
complainant be given a State fair hearing. By letter dated September
10, 2003, the SLA informed RSA that a pre-hearing was scheduled for
September 15, 2003, and a State fair hearing was scheduled for
September 18, 2003.
On October 28, 2003, a pre-hearing was held by the SLA on
complainant's request for a State fair hearing. However, on December
15, 2003, the SLA filed a Motion to Dismiss the complaint with the
District of Columbia's Office of Fair Hearings. The hearing officer
granted the SLA's Motion to Dismiss, thus canceling the State fair
hearing that was scheduled for January 23, 2004. The SLA adopted the
hearing officer's decision as final agency action.
By letter dated March 22, 2004, complainant informed the
Commissioner of RSA that the hearing officer had dismissed her
complaint and that DCRSA had adopted the hearing officer's decision.
Complainant requested review by a Federal arbitration panel of that
decision. On April 20, 2004, the Commissioner of RSA issued a letter to
complainant and the SLA authorizing the convening of a Federal
arbitration panel. A hearing on this matter was held on April 26 and
May 12, 2005.
Arbitration Panel Decision
The issues heard by the panel were--(1) whether DCRSA improperly
refused complainant the right to transfer to the NIMA cafeteria, in
violation of the Act and implementing regulations, and (2) whether
DCRSA entered into a binding and enforceable agreement with the State
of Maryland's Randolph-Sheppard Business Enterprise Program to
subcontract the NIMA cafeteria using a teaming partner.
After reviewing all of the records and hearing testimony of
witnesses, the panel majority ruled that the complainant was entitled
to be assigned as the new vendor at the NIMA cafeteria in March 2003.
Moreover, the panel majority found no evidence to support the SLA's
contention that the highest-ranked vendor's protest to the Committee
regarding the Committee's decision to withdraw the vendor's assignment
justified the Committee's failure to assign complainant as the next
eligible vendor.
Concerning the second issue regarding the contractual arrangement
between DCRSA and the State of Maryland to operate the NIMA cafeteria,
the majority of the panel concluded that, since March 2003, DCRSA had
acted in a manner that could be reasonably construed as entering into a
subcontracting partnership among the State of Maryland's Business
Enterprise Program, the teaming partner, and DCRSA.
Specifically, the majority of the panel found that DCRSA had been
receiving monthly payments of the vendor's salary from the teaming
partner. However, the panel found that DCRSA had not used the money
collected from the NIMA cafeteria contract for any services pertaining
to the SLA's Randolph-Sheppard program in violation of the Act and
regulations.
Accordingly, the panel majority ruled that the complainant was the
next eligible vendor and should have been transferred to the NIMA
cafeteria. Additionally, the panel majority ruled that complainant was
entitled to back pay at the rate of $3,750.00 per month retroactive to
March 2003 minus her monthly set-aside fees. Thus, the amount that the
complainant should receive is $2,925.00 per month from March 2003
including interest at the statutory rate as well as reasonable costs of
attorney fees.
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
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Note: The official version of this document is the document
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.
[[Page 37930]]
Dated: June 27, 2006.
John H. Hager,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. E6-10397 Filed 6-30-06; 8:45 am]
BILLING CODE 4000-01-P