[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)]
[Notices]
[Pages 18127-18128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07731]


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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 
June 11, 2015, an arbitration panel (the Panel) rendered a decision in 
the matter of Maryland Department of Education v. General Services 
Administration (Case no. R-S/13-06).

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 Panel was convened by the Department 
under the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-1(b), after 
receiving a complaint from the Maryland State Department of Education 
(MSDE), the State Licensing Agency (SLA) designated to administer the 
Randolph-Sheppard program in Maryland. Under 20 U.S.C. 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, MSDE, filed a grievance against the respondent, 
the General Services Administration (GSA), challenging the award of a 
contract for cafeteria service. The Panel decided the case on motions 
for summary judgment. The chair and one member sustained the grievance, 
and one member dissented.
    The issue before the Panel was whether GSA violated the Act when it 
awarded the contract for operation of cafeteria services to a bidder 
other than the SLA and, if so, what was the appropriate remedy.
    MSDE argued that GSA violated the Act by awarding a contract for 
cafeteria service at the Social Security Administration's cafeteria in 
Baltimore, Maryland, to a private entity without establishing a 
competitive range to carry out the Act's requirement that priority be 
given to blind vendors. The SLA had submitted a proposal in partnership 
with a blind vendor.
    GSA took the position that it was not required to establish a 
competitive range and that the SLA had confused the requirements of the 
solicitation, the Federal Acquisition Regulations (FAR), and the Act. 
Specifically, GSA argued that, while the FAR requires a competitive 
range only if discussions are held, the solicitation provided that GSA 
could make an award without discussion. GSA further argued that when 
there is a single offer that clearly exceeds all others and merits 
direct award, it can make an award to that offeror without creating a 
competitive range.

Synopsis of the Panel Decision

    At the MSDE's request, the Panel was convened on June 11, 2015. The 
Panel concluded that GSA violated the Act by failing to establish a 
competitive range. The Panel recognized that Congress established the 
Act's priority requirement to enhance economic opportunity for the 
blind. When a Federal agency solicits services, it is

[[Page 18128]]

required to invite the SLA to bid on the contract. If the SLA's 
proposal falls within the competitive range and has been ranked among 
those with a reasonable chance of being selected, a Federal agency must 
give priority to the SLA's proposal.
    GSA acknowledged that a competitive range was not established and 
that it awarded the contract based on its determination that the 
private company's proposal merited a direct award, but the failure to 
create a competitive range constituted a violation of the Act. 
(Southfork Sys. v. United States, 141 F. 3d 1124 (Fed. Cir. 1998); 
Kentucky v. United States, 2014 WL 7375566 (W.D. Ky. Dec.29, 2014).
    Having found that GSA violated the Act, the Panel next considered 
the issue of remedy. The Panel recognized that, while it had no 
authority to impose a specific remedy, the Act requires the head of the 
agency, subject to appeal, to take such action as may be necessary to 
carry out the Panel's decision.
    The Panel recommended that GSA give (1) notice of the Panel's 
decision to the current contractor and (2) notice that the contract 
would terminate within a specified period. The Panel also recommended 
that GSA enter into direct negotiations with the SLA. If the GSA 
declined to enter into such negotiations, the Panel recommended that 
GSA issue a new solicitation, with a competitive range.
    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.gpo.gov/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. 2017-07731 Filed 4-14-17; 8:45 am]
 BILLING CODE 4000-01-P