[Federal Register Volume 65, Number 89 (Monday, May 8, 2000)]
[Notices]
[Pages 26591-26592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11345]


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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: Notice is hereby given that on November 16, 1998, an 
arbitration panel rendered a decision in the matter of Alabama 
Department of Rehabilitation Services v. U.S. Department of Defense, 
Department of the Air Force (Docket No. R-S/97-4). This panel was 
convened by the U.S. Department of Education pursuant to 20 U.S.C. 
107d-1(b) upon receipt of a complaint filed by petitioner, the Alabama 
Department of Rehabilitation Services.

FOR FURTHER INFORMATION CONTACT: A copy of the full text of the 
arbitration panel decision may be obtained from George F. Arsnow, U.S. 
Department of Education, 400 Maryland Avenue, SW., room 3230, Mary E. 
Switzer Building, Washington DC 20202-2738. Telephone: (202) 205-9317. 
If you use a telecommunications device for the deaf (TDD), you may call 
the TDD number at (202) 205-8298.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

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SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20 
U.S.C. 107d-2(c)) (the Act), 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 violation by the U.S. Department 
of Defense, Department of the Air Force (Air Force), of the priority 
provisions of the Act by the exclusion of the proposal submitted by the 
Alabama Department of Rehabilitation Services, the State licensing 
agency (SLA), from the competitive range for a full food service 
contract at Maxwell Air Force Base, Gunter Annex, Alabama. A summary of 
the facts is as follows: On July 2, 1996, the Air Force issued a 
request for proposal (RFP) for full food service at Maxwell Air Force 
Base, Gunter Annex, Alabama. The SLA responded to the RFP as the State 
licensing agency authorized to administer the Act in Alabama. In the 
SLA's proposal, a blind person was designated as the State's licensee, 
and Food Service, Inc. was identified as a subcontractor to the SLA.
    The RFP specified that the technical criteria of management, 
production, quality control and safety would be used to evaluate the 
proposal. Following the technical evaluation of the proposal by the Air 
Force, the SLA was informed that its proposal was determined to be 
unacceptable under the management criteria. In excluding the SLA, the 
Air Force determined that the SLA's proposal had three primary 
deficiencies: (1) It failed to provide evidence of the

[[Page 26592]]

contractor's full understanding of the requirement for maintaining the 
SIMS computer system for the food service operation, in particular with 
regard to the contractor's role in providing contractor personnel 
identifications and passwords. (2) The proposed SIMS Administrator did 
not have the level of experience required by the solicitation. (3) The 
alternate SIMS Administrators did not have the experience required by 
the solicitation.
    In October 1996, the Air Force issued four clarification/deficiency 
letters to the SLA requesting that the SLA respond to its concerns. In 
a letter dated November 20, 1996, the Air Force advised the SLA of its 
exclusion from the competitive range of the RFP. The letter referred to 
the three previously stated reasons as the basis for the Air Force's 
decision.
    The SLA received the November 20th letter from the Air Force on 
November 22 and on November 27 filed a protest against the Air Force 
with the U.S. General Accounting Office (GAO). The SLA then learned 
that the Air Force had awarded a contract to a private concessionaire 
on November 22, 1996. On November 29, the SLA filed a supplemental 
protest with GAO alleging that the Air Force had violated the Federal 
Acquisition Regulation, which requires contracting officers to notify 
in writing an unsuccessful offeror at the earliest practicable time 
that its proposal is no longer in the competitive range.
    On December 2, 1996, the Air Force filed a request for summary 
dismissal of the SLA's protest with GAO. On December 12, the SLA 
received notification that its protest had been dismissed. The SLA 
filed a request for arbitration with the Secretary of Education 
concerning this dispute. A Federal arbitration hearing on this matter 
was held on June 16, 1998.

Arbitration Panel Decision

    The central issues before the arbitration panel were: (1) Did the 
Air Force reasonably and properly evaluate the proposal submitted by 
the SLA? (2) Did the Air Force comply with the legal requirements to 
conduct meaningful discussions with the SLA pursuant to the Act and 
implementing regulations? (3) Did the Air Force comply with the legal 
requirement to treat all offerors equally?
    The majority of the panel ruled that the record demonstrated that 
the Air Force technical evaluation team evaluated the SLA's proposal 
reasonably and in accordance with the terms of the solicitation. The 
solicitation required that the proposed SIMS Administrator have 3 years 
experience performing complete system back-ups including daily back-
ups, as well as 3 years experience in trouble-shooting the system. The 
offeror was required to provide resumes and other evidence that 
substantiated that its proposed SIMS Administrator satisfied this 
requirement. The record reflects that the SLA failed to do so.
    The panel further found that, in order to show that it was 
improperly excluded from the competitive range, the burden of proof was 
on the SLA to show that the determinations concerning the 
unacceptability of its proposal were unreasonable. The majority of the 
panel concluded that the evidence failed to meet this burden. Further, 
the record showed that the Air Force evaluators reasonably reached each 
determination concerning the technical unacceptability of the SLA's 
proposal and the Air Force Contracting Officer reasonably excluded the 
SLA's proposal from the final competitive range. Accordingly, the panel 
found that the Air Force's evaluation of the SLA's proposal and 
decision to eliminate the SLA from the competitive range were 
reasonable, rational, proper, and in accordance with the requirements 
of the solicitation.
    Concerning the second issue, regarding the alleged failure of the 
Air Force to conduct meaningful discussions with the SLA, the majority 
of the panel stated that, when conducting meaningful discussions, an 
agency merely must direct or lead offerors into areas of their 
proposals needing amplification. An agency is not obligated to give 
offerors all-encompassing negotiations, nor is the agency required to 
rewrite an offeror's proposal. The panel found that, in this 
procurement, the Air Force on several occasions informed the SLA 
representatives of the Air Force's concerns with regard to the SLA's 
SIMS experience and its role in maintaining the system.
    Regarding the third issue, concerning the alleged failure of the 
Air Force to treat all offerors fairly, the majority of the panel found 
that the record fully supported the reasonableness of the Air Force's 
evaluation of the SLA's proposal. The panel further ruled that there 
was no evidence of unequal or unfair treatment. After fully considering 
the record, the majority of the panel ruled that the Air Force acted 
reasonably, properly, and in accordance with the solicitation in 
evaluating and excluding the proposal submitted by the SLA. Therefore, 
the complaint was denied.
    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.

    Dated: May 1, 2000.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 00-11345 Filed 5-5-00; 8:45 am]
BILLING CODE 4000-01-P